Dismissal John Grogan

Dismissal / Preface
Preface
4th Ed, 2022, p v
It is the fate of most legal works to begin to date from the moment of publication. Four years have passed since the third print
edition of Dismissal was published and hundreds of judgments and awards have in the meantime added to the rich body of
jurisprudence on the law relating to dismissal. Fortunately, modern technology provides means to continuously keep publications up
to date, which is being done through quarterly electronic updates of this volume and its three companions, Employment Rights,
Collective Labour Law and Labour Litigation and Dispute Resolution.
This edition of Dismissal incorporates developments in case law and legislation up to at least December 2021. The text has been
edited to remove cases which have been overtaken, overturned or refined, while leaving sufficient background to set cases in
context and keep the volume to a manageable size. Historical material can still be found in earlier print editions.
As with previous editions, the aim remains to deal with all issues that may arise from the termination of employment, an area
which regrettably takes employers time and money to manage which could be spent on the business of production. Dismissal is
structured to systematically cover discrete topics in each chapter, from the conventional forms – for misconduct, incapacity and
operational requirements – to less commonplace but no less important situations like automatically unfair dismissals, incompatibility,
mass dismissals of strikers, disciplining of shop stewards, dismissal pursuant to transfers of business and by labour brokers or their
clients, and the different procedural requirements for each of these situations. Liberal reference is made to actual cases to
illustrate how the general principles of labour law have been applied in practical situations, many of which frequently recur.
Although it bears the author’s name, the publication of this book was not a lone effort. The work is a distillation of the insights of
judges, arbitrators, litigants and academics as well as the observations and advice of colleagues who have played various roles in
the practice, elucidation and analysis of this fascinating area of law.
Assistance of a more immediate nature was provided by the staff of Juta and Company. My special thanks to Nasreen Ally for
arranging the publication, to Waldo Müller and Sarah de Jager for their meticulous editing, and to the staff who performed the
gruelling tasks of preparing the index and table of cases, and the linking of cases to Juta platforms where the full judgments are
available. Any errors which might have crept through are my responsibility.
Lastly, my thanks to my wife, Felicity, for putting up with the time I spend on this and other projects, and for casting her
schoolteacher’s eye over the text to red-flag legal jargon. Once again, I dedicate this book to her, with love.
John Grogan
Grahamstown
May 2022
Dismissal / Table of contents
Table of contents
4th Ed, 2022, p vii
Preface
Abbreviations
Chapter 1
Introduction and overview
1. Introduction
2. Development of dismissal law
3. The South African backdrop
4. Developments under the current LRA
5. Developments in the civil law
6. Overview
Chapter 2
What is a dismissal?
1. Introduction
2. The statutory definition
3. Unique features
4. Dismissal at common law
5. Dismissal under the LRA
Chapter 3
Who may be dismissed?
1. Introduction
2. Parties to contracts of employment
3. Statutory employees
4. Persons rendering service through the medium of corporate entities
5. Deemed employees
6. Persons who have not yet commenced work
7. Employees on fixed-term contracts
© 2023 J uta and Com pany (P ty) Ltd. Downloaded: Fri Feb 10 2023 16:49:57 GMT +0200 (S outh A fric a S tandard T im e)
8. Probationary employees
9. Trainees
10. Employees of labour brokers
11. Employees who have resigned
12. Employees who have been given notice of termination
13. Employees who have already been dismissed
14. Employees who have reached retirement age
15. Employees excluded from the LRA
16. Those employed abroad
17. Directors
18. Members of co-operatives
19. Parties to unlawful contracts
20. Employees of insolvent companies
4th Ed, 2022, p viii
Chapter 4
Was there a dismissal?
1. Introduction
2. The statutory definition of dismissal
3. Termination of employment by the employer
3.1 Resignation or dismissal
3.2 Desertion
3.3 Termination on notice
3.4 Summary termination
3.5 Retirement
3.6 Directors
3.7 Termination at the instance of third parties
3.8 Lock-out dismissals
4. Non-renewal of fixed-term contracts
4.1 Termination before expiry
4.2 Novation
4.3 Section 186(1)(b)
4.4 The needs of third parties
4.5 ‘Automatic termination’ contracts
4.6 Section 198B
4.7 Premature termination
4.8 Reasonable expectation of renewal
5. Termination while on maternity leave
6. Selective non-re-employment
7. Constructive dismissal
8. Section 197 dismissals
9. Termination of a TES employee’s services with a client
10. Non-statutory terminations
10.1 Impossibility of performance
10.2 Insolvency
10.3 Settlement or waiver
10.4 Termination in consequence of collective agreements
10.5 Dissolution of contracts that are void ab initio
10.6 Termination by operation of law (‘deemed dismissals’)
10.7 Unlawful dismissals
10.8 Lapsed contracts
10.9 Resolutive conditions
11. Onus of proving dismissal
Chapter 5
When did the dismissal occur?
1. Introduction
2. Section 190
3. Termination with or without notice
4. The effect of internal appeals
5. Dating other forms of dismissal
5.1 Termination of fixed-term contracts
5.2 Non-re-employment
5.3 Constructive dismissals
4th Ed, 2022, p ix
Chapter 6
Unfair dismissals
1. Introduction
2. Unlawful and unfair dismissals
3. Scheme of the LRA
4. Categories of unfair dismissals
5. Fair reason
6. Fair procedure scheme of the LRA
7. Relationship between substantive and procedural fairness
Chapter 7
Automatically unfair dismissals
1. Introduction
2. Dismissals contrary to s 5 of the LRA, and those covered by s 187(1)(d)
2.1 What is ‘victimisation’?
2.2 Proof of victimisation
2.3 Dismissal for union activities
2.4 Closed shop dismissals
2.5 Dismissal for exercising other rights
2.6 Section 187(1)(d)
3. Participation in lawful strikes
3.1 What is lawful strike action?
3.2 Misconduct during the strike
3.3 Retrenchment of protected strikers
4. Refusal to perform the work of strikers or locked-out employees
5. To compel the employee to accept a demand
6. Pregnancy
7. Discriminatory dismissals
7.1 What is discrimination?
7.2 Direct and indirect discrimination
7.3 Onus of proof in alleged discriminatory dismissals
7.4 The prohibited grounds
7.4.1 Race
7.4.2 Age
7.4.3 Disability
7.4.4 Religion
7.4.5 Conscience
7.4.6 Belief
7.4.7 Freedom of expression
7.4.8 Language
7.4.9 Sexual orientation and gender
7.4.10 Nationality
7.4.11 Harassment
7.4.12 Other ‘arbitrary’ grounds
8. Transfers of business
9. Whistleblowers
10. Defences
10.1 Inherent requirements of the job
4th Ed, 2022, p x
10.2 Retirement
10.3 Affirmative action
Chapter 8
Dismissal for misconduct
1. Introduction
2. Essential questions in misconduct cases
3. Existence of a rule
4. Contravention of the rule
4.1 Onus of proof
4.2 Standard of proof
5. Knowledge of a rule
6. Consistency
7. Appropriate sanction
7.1 Generally
7.2 The ‘reasonable commissioner’ test
7.3 The effect of the misconduct on the employment relationship
7.4 Whether the sanction was in accordance with the employer’s disciplinary code
7.5 Whether a lesser sanction would have served the purpose
7.6 Whether the employer could reasonably have been expected to continue with the employment relationship
7.7 The gravity of the offence
7.8 The employee’s disciplinary record
7.9 The employee’s length of service
7.10 Mitigating and aggravating factors
7.11 The employee’s personal circumstances
Chapter 9
Specific forms of misconduct
1. Introduction
2. Absence from work
3. Abusive language and conduct
4. Assault
5. Intimidation
6. Competing with the employer, or conflict of interest
7. Damage to property
8. Disclosing confidential information
9. Dishonesty
10. Misrepresentation of qualifications, skills, etc
11. Drug use
12. Offences relating to alcohol
13. Fraud
14. Bringing the employer’s name into disrepute
15. Insolence and insubordination
15.1 Insolence
15.2 Insubordination
16. Negligence or poor work performance
17. Harassment
4th Ed, 2022, p xi
18. Sleeping on duty
19. Theft
20. Unauthorised use or possession of the employer’s property
21. Failure to comply with rules or policies
22. Miscellaneous offences
Chapter 10
Procedural fairness in misconduct cases
1. Introduction
2. The common law
3. Procedural fairness under the LRA
4. The employer’s disciplinary authority
5. General requirements of fair procedure
6. Investigation of the offence
6.1 General
6.2 Entrapment
6.3 Telephone tapping
6.4 Lie detectors
6.5 Invasion of privacy
7. Fair hearing
7.1 Generally
7.2 Overview
7.3 The role of disciplinary codes
7.4 The disciplinary hearing must be properly constituted
7.5 Adequate notice
7.6 Charges
7.7 The plea
7.8 Delay
7.9 The hearing should precede the dismissal
7.10 Presence of the employee
7.11 Representation
7.12 The right to call and cross-examine witnesses
7.13 The presiding officer should keep minutes
7.14 The presiding officer must be impartial
7.15 The decision
7.16 The right to appeal
8. ‘Double jeopardy’
9. ‘Review’ by higher levels of management
10. Judicial review of disciplinary proceedings
11. When disciplinary hearings may be dispensed with
11.1 The ‘crisis zone’
11.2 Deserters
11.3 The ‘no difference principle’
11.4 Waiver of the right to be heard
11.5 Strike dismissals
12. Procedural issues in mass dismissals
13. Consequences of procedural unfairness
4th Ed, 2022, p xii
Chapter 11
Group misconduct
1. Introduction
2. Selection for discipline
3. ‘Collective guilt’
4. ‘Derivative misconduct’
5. Common purpose
6. ‘Team liability’
7. The retrenchment option
8. Sanction
9. Disciplinary procedure
Chapter 12
Misconduct outside the workplace and criminal conduct
1. Introduction
2. Misconduct outside the workplace
3. Criminal conduct
4. Past criminal convictions
5. Criminal proceedings and disciplinary action
5.1 Pending criminal proceedings
5.2 Outcomes of criminal and disciplinary proceedings
Chapter 13
Discipline and shop stewards
1. Introduction
2. Statutory protection
3. General principles
4. Victimisation
5. Misconduct by shop stewards in the bargaining context
6. Absence from work and attendance at meetings
7. Representation at disciplinary hearings
8. Failure to discharge duties
9. Consistency
10. Procedural fairness
Chapter 14
Dismissal for poor work performance
1. Introduction
2. Substantive fairness
2.1 Generally
2.2 Proving that the employee’s performance is substandard
2.2.1 Senior employees
2.2.2 Probationary employees
2.3 Awareness of the performance standard
2.4 Reasonable opportunity to improve
2.5 Appropriate ‘sanction’
3.1 Generally
3.2 Fair appraisal
3.3 Initial warning
3.4 Counselling and assistance
4th Ed, 2022, p xiii
3.6 Final warning
3.7 Incapacity hearing
3.8 Consideration of alternatives
3.9 Circumstances in which a hearing may be dispensed with
Chapter 15
Dismissal for incapacity
1. Introduction
2. The nature of the incapacity
2.1 ‘Legal incapacity’
2.2 Incompatibility
2.3 Addiction
3. Ascertaining whether the employee is capable of doing the job
4. The seriousness of the incapacity
5. Alternative/adapted employment
6. When termination is fair
7. Procedure in incapacity cases
8. The relationship between medical boarding and the incapacity procedure
Chapter 16
Dismissal for operational requirements: Fair reason
1. Introduction
2. What is a retrenchment?
3. The reason for retrenchment
4. Section 189 of the LRA
5. The scope of s 189
6. Adequacy of the reason
Chapter 17
Dismissal for operational requirements: Fair procedure
1. Introduction
2. What is consultation?
3. The role of consultation
4. Procedure in large-scale retrenchments
4.1 When a facilitator is appointed
4.2 When no facilitator is appointed
5. When consultation must commence
6. Prior notice
7. Who must consult?
8. Who must be consulted?
9. The decision to retrench
10. The subjects for consultation
10.1 Selection criteria
10.2 Avoiding or minimising dismissals
10.3 Means of avoiding retrenchment
10.3.1 Moratorium on hiring new employees
10.3.2 Shedding of contract workers
10.3.3 Elimination of overtime
10.3.4 Voluntary severance
4th Ed, 2022, p xiv
10.3.5 Extended unpaid leave or temporary layoff
10.3.6 Early retirement
10.3.7 Reduction of working hours
10.3.8 Redeployment or transfer
10.3.9 Unilateral amendment of employees’ conditions of service
10.4 Changing the timing of dismissals
10.5 Mitigating the adverse effects of dismissals
10.7 Severance pay
11. The sufficiency of consultation
12. Disclosure of information
13. The final decision
14. Correcting a flawed process
15. The ‘no difference’ principle
Chapter 18
Dismissal for operational requirements: Selection and severance pay
1. Introduction
2. Fair selection criteria
3. ‘Bumping’
4. Severance pay
4.1 Section 41 of the BCEA
4.2 Quantification
4.3 When payable
5. Offers of re-employment
Chapter 19
Closures, mergers, transfers and sales of businesses
1. Introduction
2. Section 197
3. ‘Transfer of business as a going concern’
4. Date of transfer
5. Effects of transfer
6. Conditions of employment of transferred employees
7. Collective agreements and awards
8. The duties of the transferring employer
9. Obligations on the employers after the transfer
10. Transfers in circumstances of insolvency
Chapter 20
Unilateral change to terms and conditions of employment
1. Introduction
2. The retrenchment approach
3. Lock-outs and unilateral implementation
4. The ‘dispute of interest’ approach
5. The misconduct approach
6. Section 187(1)(c)
4th Ed, 2022, p xv
Chapter 21
Other reasons for dismissal
1. Introduction
2. Incompatibility
3. Dismissal at the behest of third parties
4. Breakdown of trust
6. Dismissal on the basis of personal relationships
7. Dismissal in terms of closed shop agreements
8. Dismissal as a result of new legislation
9. Termination as a result of the employer’s insolvency
10. ‘Unfitness’ for office
Chapter 22
Dismissal of unprotected strikers
1. Introduction
2. Background
3. The Code of Good Practice: Dismissal
4. What is a strike?
5. Non-compliance with the LRA
6. Unjustified conduct by the employer
7. The duration of the strike
8. The harm caused by the strike
9. The ‘legitimacy’ of the strikers’ demands
10. The timing of the strike
11. The conduct of the strikers
12. The ‘parity principle’
13. Procedural fairness in strike dismissals
13.1 Contact with the strikers’ union
13.2 Fair ultimatum
13.2.1 The ultimatum must be communicated to the strikers in clear, unambiguous terms in a medium understood by
the strikers
13.2.2 The ultimatum must indicate in clear terms what is demanded of the strikers, when and where they are
required to comply, and what sanction will be imposed if they fail to comply
13.2.3 Sufficient time must be given for all the strikers to be informed of the ultimatum to enable them to reflect on
it, and to respond to it by either compliance or rejection
13.2.4 The ultimatum must be a bona fide attempt to induce the strikers to resume work
14. Waiver of the right to dismiss strikers
15. Pre-dismissal hearings
16. The parties’ conduct before, during and after the strike
17. Dismissal for other forms of collective action
17.1 Protest action
17.2 Refusal to work not amounting to strike or protest action
4th Ed, 2022, p xvi
Chapter 23
Procedures for challenging dismissals
1. Introduction
2. Urgent relief
3. Reviews of disciplinary proceedings
4. ‘Pre-dismissal inquiry’
5. Section 191
6. Initiating the action
7. Conciliation
8. ‘Con-arb’
9. Settlement
10. Adjudication or arbitration?
11. Statutory arbitration
12. Private arbitration
13. Adjudication
13.1 Labour Court
13.2 Breach of contract claims
13.3 Judicial review of disciplinary proceedings
13.4 Review of arbitration awards
14. Appeals
14.1 Labour Appeal Court
14.2 Full Bench of the High Court
14.3 Supreme Court of Appeal
14.4 Constitutional Court
Chapter 24
Remedies
1. Introduction
2. Interim and final relief
3. Relief under the LRA
3.1 Reinstatement
3.2 Re-employment
3.3 When neither reinstatement nor re-employment can or need be ordered
3.4 Compensation
3.5 Combined claims under the LRA and EEA
3.6 Other orders
3.7 Additional damages
4. Consequential damages
5. Severance pay
6. Contractual damages under the common law
Chapter 25
Costs in dismissal matters
1. Introduction
2. Labour Court
3. The CCMA and bargaining councils
5. The civil courts
4th Ed, 2022, p xvii
Table of cases
Table of legislation
Subject index
Dismissal / Abbreviations
Abbreviations
4th Ed, 2022, p xviii
1956 LRA Labour Relations Act 28 of 1956
ABET adult basic education and training

ABI Amalgamated Beverage Industries
ACTW USA Amalgamated Clothing Textile W orkers Union

of South Africa
Aids Acquired Immune Deficiency Syndrome

AMCU Association of Mineworkers and Construction
Union
AMSSA Arbitration and Mediation Society of South
Africa
ANC African National Congress

ARB Arbitration
ARMSCOR Armaments Corporation of South Africa

AUSA Aviation Union of Southern Africa
AW OL absent without leave

AW U Amalungelo W orkers Union
BAISEMW U Black Allied Iron, Steel, Engineering and

Metallurgical W orkers Union
BALR Butterworths Arbitration Law Reports
BASODW U Black Allied Shops Offices and Distributive

Trade W orkers Union
BAW U Black Allied W orkers Union

BCA Bargaining Council Arbitration
BCAW U Building Construction and Allied W orkers
Union
BCEA Basic Conditions of Employment Act 75 of

1997
BCFMI Bargaining Council for the Furniture

Manufacturing Industry
BCRCAT Bargaining Council for the Restaurant,
Catering and Allied Trades
BEE black economic empowerment
BEMAW U Broadcasting, Electronic Media and Allied

W orkers Union
BIAW U Banking, Insurance, Assurance W orkers Union
BIFAW U Banking, Insurance, Finance and Assurance

W orkers Union
BLLR Butterworths Labour Law Reports
CAC Competition Appeal Court

CAW U Construction and Allied W orkers Union
CC close corporation
CC Constitutional Court
CCAW USA Commercial, Catering and Allied W orkers

Union of South Africa
CCMA Commission for Conciliation, Mediation and
Arbitration
CEO chief executive officer
CEPPW AW U Chemical, Energy, Paper, Printing, W ood and
Allied W orkers Union
CFO chief financial officer

CGE Commission for Gender Equality
COIDA Compensation for Occupational Injuries and

Diseases Act 130 of 1993
COO chief operating officer
COSATU Congress of South African Trade Unions
4th Ed, 2022, p xix
COSAW U Commercial, Services and Allied W orkers

Union
Covid-19 Coronavirus disease 2019
CSAAW U Commercial, Stevedoring, Agricultural and

CSFW U Combined Small Factory W orkers Union
CSIR Council for Scientific and Industrial Research

CUT Central University of Technology
CV curriculum vitae
CW IU Chemical W orkers Industrial Union
CW U Communication W orkers Union

DAFF Department of Agriculture, Forestry and
Fisheries
DCS Department of Correctional Services

DEL Department of Employment and Labour (but
see entry for ‘DOL’)
DENOSA Democratic Nursing Organisation of South
Africa
DETAW U Democratised Transport Logistics and Allied

W orkers Union
DG director-general
DHA Department of Home Affairs

DIMES Durban Integrated Municipal Employees
Society
DIRCO Department of International Relations and

Cooperation
DOH Department of Health
DOL Department of Labour (‘DOL’ is also used to

refer to the department under its new name,
‘Department of Employment and Labour’)
DPP Director of Public Prosecutions
EAW TUSA Electrical and Allied W orkers Trade Union of
South Africa
ECB Eastern Cape Local Division, Bhisho

ECCAW USA Entertainment, Catering, Commercial and
Allied W orkers Union of South Africa
ECG Eastern Cape High Court, Grahamstown

ECM Eastern Cape Local Division, Mthatha
ECP Eastern Cape High Court, Port Elizabeth

ECSA Engineering Council of South Africa
EEA Employment Equity Act 55 of 1998

EFF Economic Freedom Fighters
EIMW U Engineering, Industrial and Mining W orkers

Union
ELRC Education Labour Relations Council
EqC Equality Court

FAW U Food and Allied W orkers Union
FBW U Food and Beverage W orkers Union
FEDCRAW Federal Council of Retail and Allied W orkers

FEDSAS Federation of Governing Bodies of South
African Schools
FGW U Food and General W orkers Union

FIFO first in, first out
FOCSW U Food, Cleaning and Security W orkers Union
FW CSA Food W orkers Council of South Africa
GenN General Notice

GG Government Gazette
GIW USA General Industries W orkers Union of South
Africa
GJ Gauteng High Court, Johannesburg
GM general manager
4th Ed, 2022, p xx
GN Government Notice
GNP North Gauteng High Court, Pretoria

GP Gauteng High Court, Pretoria
GPSSBC General Public Service Sectoral Bargaining
Council
GRIP Greater Nelspruit Rape Intervention Project
HIV human immunodeficiency virus
HOD head of department
HOSPERSA Health and Other Service Personnel Trade

Union of South Africa
HR human resources
HRW U Hotel and Restaurant W orkers Union
IBSA Insurance and Banking Staff Association
IC industrial court
ICHAW U Independent Commercial Hospitality and

IDC Industrial Development Corporation of South
Africa Limited
IIE Independent Institute of Education
ILGM Institute for Local Government Management
of South Africa
ILJ Industrial Law Journal
ILO International Labour Organisation

IMATU Independent Municipal and Allied Trade
Union
IMSSA Independent Mediation Services of South

Africa
IT information technology
JAMAFO Joint Affirmative Management Forum

JLA junior laboratory assistant
KZN KwaZulu-Natal
LAC Labour Appeal Court
LC Labour Court
LCD Labour Court Digest
LGBTQIA+ lesbian, gay, bisexual, transgender,
queer/questioning, intersex, and
asexual/aromantic/agender plus other sexual
and gender identies
LIFO last in, first out
LLD Labour Law Digest
LRA Labour Relations Act 66 of 1995

MADAM Movement Against Domination of African
Minorities
MAW U Metal and Allied W orkers Union
MD managing director
MDB Municipal Demarcation Board
MEC Member of the Executive Council

MEIBC Metal and Engineering Industries Bargaining
Council
MIBCO Motor Industry Bargaining Council
MIF Motor Industries’ Federation
MISA Motor Industry Staff Association
MJC Muslim Judicial Council

MM Mpumalanga High Court, Mbombela
MRTAW U Manufacturing, Retail, Transport and Allied
W orkers Union
MTW U Motor Transport W orkers Union
MW ASA Media W orkers Association of South Africa
MW U Mineworkers Union
NAAW U National Automobile and Allied W orkers

Union
4th Ed, 2022, p xxi
NACBAW U National Construction, Building and Allied

W orkers Union
NACTW USA National Clothing and Textile W orkers Union
of South Africa
NASA National Association of South African
W orkers
NASARIEU National Sugar Refining and Allied Industries
Employees Union
NASAW U National Service and Allied W orkers Union
NBCCI National Bargaining Council for the Chemical
Industry
NBCCMI National Bargaining Council for the Clothing
Manufacturing Industry
NBCRFI National Bargaining Council for the Road
Freight Industry
NBCW PS National Bargaining Council for the W ood and

Paper Sector
NDCAW U National Democratic Change and Allied
W orkers Union
NEDLAC National Economic Development and Labour
Council
NEHAW U National Education, Health and Allied
W orkers Union
NETU National Employees Trade Union
NEW U National Entitled W orkers Union
NIW USA National Industrial W orkers Union of South
Africa
NLB National Lotteries Board
NMBMM Nelson Mandela Bay Metropolitan Municipality
NmLC Labour Court of Namibia
NO nomine officio (meaning ‘in official capacity’)

NPA National Prosecuting Authority
NTM National Transport Movement
NUCCAW U National Union of Commerce, Catering and
NUFAW SA National Union of Furniture and Allied

W orkers of South Africa
NUFBW SAW National Union of Food, Beverage, W ine,
Spirit and Allied W orkers
NULAW National Union of Leather and Allied W orkers
NUM National Union of Mineworkers
NUMSA National Union of Metalworkers of South

Africa
NUPSAW National Union of Public Service and Allied
W orkers
NUPSW National Union of Public Service W orkers
NUTW National Union of Textile W orkers

obo on behalf of
OCGAW U Oil, Chemical, General and Allied W orkers
Union
OHSA Occupational Health and Safety Act 85 of
1993
PAJA Promotion of Administrative Justice Act 3 of
2000
PAW USA Public and Allied W orkers Union of South

Africa
PDA Protected Disclosures Act 26 of 2000
PEPUDA Promotion of Equality and Prevention of

Unfair Discrimination Act 4 of 2000
PetroSA Petroleum Oil and Gas Corporation of South

Africa
PETUSA Professional Employees Trade Union of South
Africa
PHSDSBC Public Health and Social Development
Sectoral Bargaining Council
PHW SBC Public Health and W elfare Sectoral
Bargaining Council
POPCRU Police and Prisons Civil Rights Union
POPIA Protection of Personal Information Act 4 of
2013
PPW AW U Paper, Printing, W ood and Allied W orkers
Union
PRASA Passenger Rail Agency of South Africa

Limited
PSA Public Servants Association of South Africa
4th Ed, 2022, p xxii
PSLRA Public Service Labour Relations Act 102 of

1993
PTAW U Professional Transport and Allied W orkers

Union
RAF Road Accident Fund
RAW USA Retail and Associated W orkers Union of

South Africa
RICA Regulation of Interception of

Communications and Provision of
Communication-related Information Act 70 of
2002
RSA Republic of South Africa

RTMC Road Traffic Management Corporation
SAA South African Airways
SAAPAW U South African Agricultural Plantation and
SAAW U South African Allied W orkers Union
SAB South African Breweries
SABC South African Broadcasting Corporation

SACAA South African Civil Aviation Authority
SACCAW U South African Commercial, Catering and
SACM South African Custodial Management

SACTW U Southern African Clothing and Textile
W orkers Union
SACU South African Communication Union
SACW U South African Chemical W orkers Union
SADTU South African Democratic Teachers Union
SAEW A South African Equity W orkers Association

SAFA South African Football Association
SAFW U South African Federal W orkers Union
SAIMR South African Institute for Medical Research
SAJHR South African Journal on Human Rights

SALDCDAW U South African Laundry, Dry Cleaning, Dyeing
and Allied W orkers Union
SALGBC South African Local Government Bargaining
Council
SALSTAFF Salaried Staff Association
SAMA South African Medical Association

SAMSA South African Maritime Safety Authority
SAMW U South African Municipal W orkers Union
SANCA South African National Council on Alcoholism
and Drug Dependence
SANDF South African National Defence Force
SANParks South African National Parks
SAPA South African Press Association

SAPO South African Post Office
SAPS South African Police Service
SAPS Act South African Police Service Act 68 of 1995
SARHW U South African Railway and Harbour W orkers

Union
SARPA South African Rugby Players Association
SARS South African Revenue Service

SARU South African Rugby Union
SASBO South African Society of Bank Officials
SASTAW U South African Scooter and Transport Allied
W orkers Union
SATAW U South African Transport and Allied W orkers
Union
SATU South African Typographical Union
SAW U South African W orkers Union
4th Ed, 2022, p xxiii
SCA Supreme Court of Appeal
SE South Eastern Cape Local Division

SEFA Small Enterprise Finance Agency
SETA/SETAs Sector Education and Training
Authority/Authorities
SG superintendent-general
SITA State Information Technology Agency
SSSBC Safety and Security Sectoral Bargaining

Council
STEMCW U Steel, Mining and Commercial W orkers Union
t/a trading as
TAW U Transport and Allied W orkers Union

TAW USA Transport and Allied W orkers Union of South
Africa
TBC Transnet Bargaining Council
TES temporary employment service
TEUSA Technical Employees Union of South Africa
TGW U Transport and General W orkers Union
THORN Transport, Retail and General W orkers Union

Tk Transkei High Court
TW U Technical W orkers Union
TW U Textile W orkers Union
TW U Transport W orkers Union

UAMAW U United African and Motor Allied W orkers
Union
UASA United Association of South Africa

UCT University of Cape Town
UIF Unemployment Insurance Fund
UK United Kingdom
UKZN University of KwaZulu-Natal

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Dismissal / Chapter 1 Introduction and overview
Chapter 1
Introduction and overview
4th Ed, 2022, ch 1-p 1
1. Introduction
6. Overview
1. Introduction
The first book in this quartet, 1 which is a companion to this and two others, 2 deals with the law governing the relationship
between employers and employees during the currency of the relationship. This volume of the series deals with the termination of
the employment relationship.
With disappointing frequency, employers and managers are confronted with the problem of how to get rid of what they deem to
be errant, incompetent or redundant employees. In South Africa, it is of great importance to be able to deal with this problem with
certainty: a botched dismissal can prove costly, both in time and money, and may impact negatively on labour relations and
production. On the other hand, retaining operationally redundant employees, those who are untrustworthy or not performing the
work for which they are paid, does little for the welfare of the enterprise.
Dismissing employees without unwanted repercussions may be far from simple. A host of tribunals stand ready to pronounce on
the fairness of dismissals. They are all empowered to reinstate unfairly dismissed employees or to order their former employers to
compensate them. Access to these tribunals has become easier for dismissed employees, whatever the merits of their cases. In
addition, if dismissed employees do not act for themselves, trade unions and other organisations stand ready to take up the
cudgels on their behalf. In some cases, legislation or collective agreements compel employers to defend themselves without the
help of legal representatives, even though the employees may be assisted by seasoned union officials. If employers are to have any
chance of successfully doing so, they must
4th Ed, 2022, ch 1-p 2
know from the outset how to set about the task of dismissing employees. A mistake in the pre-dismissal process may prove fatal in
subsequent litigation or arbitration, and may cost the employer dearly.
This volume draws on more than 30 years of case law to demonstrate the mistakes and the successes that both employers and
employees have made or achieved over these years. Knowledge of the principles laid down in this body of case law will assist
employers to avoid mistakes, and will alert employees to their rights.
The case law emanates from tribunals established under the Labour Relations Act 28 of 1956 (1956 LRA) and its successor, the
current Labour Relations Act 66 of 1995 (LRA). 3 The former industrial court, labour appeal court (LAC) and Appellate Division of the
Supreme Court, in its capacity as the ultimate court of appeal in labour and employment matters under the 1956 LRA, developed an
equity-based approach to dismissal which was, for its time, a jurisprudential revolution in South Africa. This revolution was
prompted by the concept of ‘unfair labour practice’, a statutory innovation that enabled the labour tribunals to travel beyond the
narrow confines of contract law, which was solely concerned with questions of legality, and into the novel and uncertain terrain of
fairness. 4 The question to be decided by courts confronted with dismissal actions was no longer simply whether the employer was
contractually entitled to terminate the contract, but whether the employer acted fairly in doing so. The shift from ‘black-letter’ law
to equity constituted a dramatic change for employers, judges and lawyers.
Until then the common law had permitted parties to contracts of employment, like parties to any contract of a continuous
nature, to terminate it on terms provided for in the contract – that is, if not by mutual agreement, by giving the other party due
notice or accepting the other party’s repudiation. Effectively, the only basis on which a contract of employment could be unlawfully
terminated was by failing to give the required notice. 5 This meant that if an employment contract had been unlawfully terminated,
the relief afforded employees was limited to damages equivalent to the amount they would have earned had the required notice
been given – scant recompense for people who have lost their livelihoods. Otherwise, the common law imposed virtually no
limitation on the power of private sector employers to fire at will, whether for good reason, for no reason, or for the worst possible
reason.
But there was a significant exception. The common-law courts had established a rich body of principles when adjudicating
dismissal disputes between dismissed public servants and the state. The state and other statutory organs, in their capacity as
employers, were required to adhere to the principles of administrative law when dealing with their officials. In the public sector,
dismissal, like any action that deprives subjects of rights or adversely affects their interests, was treated as ‘administrative action’,
open to judicial review. From the turn of the 20th century, the state was required to adhere to the principles of rationality and the
audi alteram
4th Ed, 2022, ch 1-p 3
partem rule before dismissing its employees. 6 The labour tribunals established under the 1956 LRA drew on principles of
administrative law and international labour law to develop the concepts of ‘substantive’ and ‘procedural’ fairness in dismissal law,
which now also applies to the state. The right not to be unfairly dismissed is now enshrined in statute, 7 and the principles of fair
dismissal are set out in the current LRA or in codes of good practice by which employers, arbitrators and judges are bound. Trade
unions also negotiate collective agreements with employers that may govern the circumstances in which employees may be
disciplined or dismissed. 8
These developments are not intended to make employers’ lives more difficult or to protect employees who do not deserve their
positions. The narrowing of the employer’s ‘prerogative’ to fire at will is intended to serve purposes greater than merely securing
jobs, which is one of the objects of the LRA.
1 Grogan Employment Rights 3 ed (Juta 2019).

2 Grogan Collective Labour Law 3 ed (Juta 2019) and Grogan Labour Litigation and Dispute Resolution 3 ed (Juta 2019).
3 See Labour Litigation and Dispute Resolution C hapter 4.
4 See Employment Rights C hapters 1 and 3.
5 Except in the case of premature termination of a fixed-term contract: see C hapter 2.
6 See, in particular, Administrator of the Transvaal v Traub (1989) 10 ILJ 823 (A); Administrator, Transvaal v Zenzile 1991 (1) SA 21 (A);
Administrator, Natal v Sibiya 1992 (4) SA 532 (A); Administrator, Orange Free State v Mokopanele (1990) 11 ILJ 963 (A).
7 Section 185 of the LRA.
8 On which collective agreements, see Collective Labour Law C hapter 8.

Historically, legal protection against unfair dismissal has been achieved mainly through collective bargaining, legislation, or a
combination of both. In most countries with civil or common-law traditions, the contractual rules governing the employment
relationship developed during the 19th century. These rules emphasised freedom of contract; it was generally accepted that
employers and employees agreed as equals to the terms of their relationship. That being the case, both employers and employees
incurred rights and duties when the contract was concluded. 9 It was also accepted that, unless the contrary had been agreed,
each party had a right to terminate the contract by giving the other the required or reasonable notice. Once this was done, the
contract was regarded as having been lawfully terminated, irrespective of the terminating party’s reasons or motives.
The word ‘dismissal’ is also unknown to the common law. The ‘release’ of an employee was seen simply as the termination of a
contractual relationship, which was either lawful (ie in terms of the contract) or unlawful. If, under the common law, employers had
not given the required period of notice (ie terminated the contract summarily) they could incur liability for breach of contract unless
they could prove that there was a justifiable reason for terminating the contract without notice. Any serious failure by employees
to discharge their obligations under the contract or for a legitimate operational requirement provided such justification. Even if
employees could prove a breach of contract and had had the resources to approach a competent court, they could in most
instances hope only for a pyrrhic victory. Employees who were victims of unlawful dismissal would in all likelihood
4th Ed, 2022, ch 1-p 4
have obtained no more than a sum of money equivalent to the salary they would have received had proper notice been given.
Reinstatement, though theoretically possible, would rarely have been granted. 10 In short, ordinary contract law afforded scant
legal protection to employees. 11
The international struggle to protect employees from arbitrary and unfair dismissal took a long time to arrive in South Africa. It
started in the United States of America, where protection against unfair dismissal developed through the process of collective
bargaining. Trade unions there fought for the inclusion of clauses that prevented employers from dismissing employees ‘without just
cause’ into their collective agreements. Collective agreements also began to contain clauses providing for the referral of disputes
over dismissals to third parties (arbitrators). Even if collective agreements did not contain provisions relating to dismissals,
arbitrators and labour tribunals (which developed later) were prepared to read into them implied provisions binding employers to
refrain from dismissing unfairly.
In many countries, including South Africa, regulation of dismissals by collective agreements was considered inadequate because
collective agreements bind only the parties to them, and afford no protection to unorganised labour. In some jurisdictions, the civil
courts began independently to question the notion of ‘termination at will’ and interference with dismissal was justified on the basis
of ‘public policy’. Civil courts in some countries were also prepared to read implied guarantees of fair treatment into contracts of
employment.
National legislatures have provided the main impetus for the development of principles relating to unfair dismissal. Although
statutes dealing with dismissals vary greatly in content, they generally share most of the following characteristics:
• Protection against unfair dismissal is granted in fairly general terms – eg, dismissal must be for a ‘just cause’ or a ‘fair reason’
and must be ‘procedurally fair’.
• Impermissible grounds for dismissal are identified.
• Specialised courts and tribunals are empowered to give content to the general terms of the statute on a case-by-case basis.
• The scope of protection extended to employees is usually restricted or qualified.
• Small employers and some sectors of employment (eg, the public service, armed services or essential services) are often
excluded in some respects.
• The onus is usually placed on employers to prove that dismissals were fair.
• Reinstatement is normally the preferred remedy.
4th Ed, 2022, ch 1-p 5
Labour law has developed in much the same way in South Africa, although over a briefer period and in the context of a rapidly
changing society and legal system.
9 Duties of employees are to enter and remain in service, to maintain reasonable efficiency, to further the employer’s business interests; to obey
the employer’s instructions and to refrain from acts calculated to undermine the relationship of trust with the employer. Duties of employers are to
receive the employee into service, to remunerate the employee, to ensure safe working conditions and, generally, to adhere to specific provisions of the
contract.
10 The question whether an order of specific performance would be granted in respect of a contract of employment was controversial. Initially, on
the authority of Schierhout v Union Government 1926 AD 286 at 295, such orders were regarded as incompetent. However, it is now accepted that the
civil courts may order specific performance on employment contracts, albeit under exceptional circumstances (see Stewart Wrightson v Thorpe 1977 (2)
SA 943 (A) and NUTW v Stag Packings 1982 (4) SA 151 (T)).
11 However, towards the end of the last century the former Supreme C ourt showed signs of developing a more liberal approach to the
employment relationship. The court’s willingness to extend protection to public servants has already been noted. The court also accepted that a job is an
economic asset worthy of protection (see Hawker v Life Offices Association of SA (1987) 8 ILJ 231 (C )), and that, in certain circumstances, requirements
of fairness should be read as implied terms into some contracts of employment (see Key Delta v Marriner 1998 JDR 0387 (E); [1998] 6 BLLR 647 (E)).

As in most countries, the labour relationship was viewed by South African courts as purely contractual. The superior economic
position of employers was reflected in the social and political structures of society. The difference between South Africa and most
other countries was that these structures were based primarily on race. Whites not only owned the ‘means of production’, they
also occupied most managerial and skilled positions. For much of the 20th century, the apartheid state promoted employment for
whites by a system of ‘job reservation’ that made it a criminal offence to employ blacks in certain positions or sectors.
South African workers, like those in many other countries, were forced to resort to industrial action to protect their jobs. The
white trade union movement in South Africa was originally dedicated to this goal. Although the government first excluded blacks
from the union movement, then imposed a racially segregated union system, the labour arena was formally deracialised in the
1980s. Legislation from then on applied to all workers irrespective of race and colour, except for certain excluded categories of
employees of any race.
In 1979, the industrial court was created to determine disputes concerning ‘unfair labour practices’. The first statutory definition
of that term was open-ended, 12 thus providing scope for the development by that court of a new set of principles relating to
dismissal. The breadth of that definition reflects the scope of the mandate given to the court to restructure industrial and labour
relations, as well as relations between individual employees and their employers.
For all its imperfections, the industrial court used its discretion to interpret and apply the unfair labour practice concept in a way
that radically altered the traditional view of the employment relationship in general, and its termination in particular. Both that court
and the former LAC and Appellate Division of the Supreme Court used the unfair labour practice concept to develop and apply new
principles in the arena of collective bargaining and to the individual employment relationship. 13 After the Appellate Division decided
that dismissals could in principle constitute unfair labour practices, the way was cleared for the labour
4th Ed, 2022, ch 1-p 6
courts to develop a dismissal law that bore little resemblance to the common-law system.
In 1982, the industrial court acquired an additional legislative tool for assisting unfairly dismissed employees: the power to grant
interim relief in cases concerning not only alleged unfair labour practices of the general sort but also the suspension or termination
of employment contracts and changes to terms and conditions of employment. In disputes concerning the termination of
employment, the industrial court was expressly given power to grant reinstatement orders. If the dispute concerned changes to
terms and conditions of employment, the court could order the original terms and conditions to be restored. These orders, termed
‘status quo orders’ for obvious reasons, remained in force either until the minister refused to appoint a conciliation board, or until
the dispute was settled, or until a final determination by the court in terms of s 46(9), 14 whichever eventually transpired. Although
status quo orders were of interim effect, they often encouraged parties to settle the dispute before a final determination was
made.
Until the industrial court’s dissolution in 2000, when its powers were transferred to the Commission for Conciliation, Mediation and
Arbitration (CCMA) or the Labour Court, 15 that court not only decided individual dismissals on the basis of fairness, it also
determined the fairness of retrenchments and other mass dismissals. By 1988, the foundations of South African dismissal law had
been laid. In that year, the legislature intervened again in an attempt – so the unions contended – to restrict their new-found
rights. Certain amendments effected in 1998 were of significance to dismissal law. The new definition of ‘unfair labour practice’ was
withdrawn in 1991, and the legislature reverted to the earlier definition.
Of more lasting importance was the creation in that year of the former LAC, 16 which entertained appeals from and reviews of
proceedings in the industrial court, and the creation of a further right of appeal to the then Appellate Division of the Supreme
Court. These developments linked the industrial court to the ordinary court structures, and exposed civil judges to the principles of
labour law. The industrial court was no longer the only interpreter of the unfair labour practice concept. Judges now became the
final arbiters. The former LAC and the Appellate Division continued to develop and refine the equity-based principles introduced by
the industrial court.
By that stage, although labour law was racially neutral, it still did not cover significant sectors of the working population, notably
the public service and farm workers. Public servants had to take dismissal cases to the civil courts, relying either on their
contractual rights or on their common-law right to lawful and fair administrative action. But legislation enacted in the early 1990s
greatly expanded the scope of labour law. An Education Labour Relations Act granted protection
4th Ed, 2022, ch 1-p 7
against unfair labour practices and unfair dismissal to teachers. 17 A Public Service Labour Relations Act followed. 18 Finally, an
Agricultural Labour Act extended protection to neglected farm workers. 19
Although many employers and trade unions utilised the services of the statutory labour tribunals in the 1990s, it was inevitable
that, with the advent of non-racial government in 1994, its association with apartheid legislation would have tainted the original
court structure and legislation emanating from the previous legislature. The Constitution, 20 which was adopted in 1996, enjoined
Parliament to enact laws to give effect to the now entrenched right to fair labour practices. The new government committed itself
to producing labour legislation which had been agreed by government, organised labour and business. After 1994, three statutes
were enacted to give effect to the general constitutional rights to fair labour practices and to bargain collectively. These were the
LRA, the Basic Conditions of Employment Act 75 of 1997 (BCEA) and the Employment Equity Act 55 of 1998 (EEA). Initially, the idea
was to locate the general provisions governing dispute resolution and collective bargaining in the LRA, and those pertaining to
individual rights, including the right to fair labour practices and protection against unfair dismissal, in the BCEA. That did not occur,
and provisions governing dismissal are now to be found in the LRA and codes of good practice issued under that Act.
12 The first statutory definition described an unfair labour practice as ‘any practice which in the opinion of the industrial court constitutes an unfair
labour practice’. In 1982, this ‘definition’ was refined, but remained vague. In terms of that definition an unfair labour practice was ‘any act or omission,
other than a strike a lock-out, which has or may have the effect that . . . (i) any employee or class of employees is or may be unfairly affected or that
his or their employment opportunities or work security is or may be prejudiced or jeopardised hereby; (ii) the labour relationship between employer and
employee is detrimentally affected thereby’.
13 The former labour appeal court was created in 1988. It consisted of a judge of the then Supreme C ourt, sitting with two assessors chosen for
their knowledge in labour law. This labour appeal court is not to be confused with the similarly named court created under the current LRA. Under the
1956 LRA, appeals were allowed from the former labour appeal court to the then Appellate Division of the Supreme C ourt. The jurisdiction of the current
Supreme C ourt of Appeal (SC A) in labour matters was abolished in 2013. Appeals from the current Labour Appeal C ourt now lie to the C onstitutional
C ourt.
14 1956 LRA.
15 As explained in C hapter 23, the current LRA differentiates between those dismissals that must be referred to the Labour C ourt for adjudication
and those that must be referred to the C C MA or bargaining councils for arbitration. See also Labour Litigation and Dispute Resolution C hapter 5. The
current LAC took over the powers of the then LAC , and from the date of implementation of the Act, heard appeals from the industrial court.
16 C onsisting of a Supreme C ourt judge sitting with two assessors.
17 Act 146 of 1993.
18 Act 102 of 1993.
19 Act 147 of 1993. Domestic workers had to wait their turn until the enactment of the current LRA.
20 C onstitution of the Republic of South Africa, 1996.

Until 1996, dismissal disputes were resolved in a number of forums, and sometimes according to different principles. Labour law
jurisprudence, though relatively rich by that stage, was also complex. The drafters of the new labour legislation set themselves the
task of consolidating and simplifying the law. Many of the principles developed by the former labour tribunals before then were
codified in the new Act and in codes of good practice – the most important of which for present purposes are the code on
dismissal, 21 and the code on retrenchment. 22 The idea behind the new labour legislation was to extend its scope to all
employees, excepting only the national defence force and intelligence services, 23 and to create specialist tribunals to resolve all
labour and employment disputes.
The present LRA provides unfairly dismissed employees with three forums for challenging their dismissals: the CCMA, bargaining
councils authorised by the CCMA to conduct arbitrations, and the Labour Court. Employees falling within the registered scope of
bargaining councils must refer disputes concerning dismissals or unfair labour practices to the relevant council for conciliation or, if
they do not fall within the scope of a council, to the CCMA. If the dismissal was for misconduct or incapacity, the CCMA or a
council accredited to do so must arbitrate
4th Ed, 2022, ch 1-p 8
the matter. If a recognition agreement or contract of employment provides that disputes concerning the termination of employment
must be referred for private arbitration, the employee cannot in most cases utilise the statutory forums. Unless the parties agree to
arbitration, all other disputes must be referred to the Labour Court, which has review powers over CCMA and bargaining council
arbitrations. Appeal lies from the Labour Court to the Labour Appeal Court (LAC), and from there to the Constitutional Court, unless
the highest court is willing to entertain appeals directly from the Labour Court.
Although the Labour Court was given exclusive jurisdiction over all matters it is required to determine under the LRA and other
legislation, 24 and the LAC was declared the final court of appeal in all matters emanating from the Labour Court, 25 jurisdictional
issues became more complex. Firstly, the Supreme Court of Appeal (SCA) found that, in terms of the Constitution, the legislature
could not deprive it of appeal jurisdiction in matters decided by the LAC, and had not in fact done so. 26 Secondly, the SCA and
the High Court ruled that the LRA had not deprived the civil courts of jurisdiction to hear dismissal cases in which dismissed
employees claimed that their dismissals infringed either their rights to lawful and fair administrative action, 27 or their contractual
rights. 28 Thirdly, the SCA held that it was required by the Constitution to ‘develop’ the common-law contract of employment to
incorporate an implied or tacit term that all employees were entitled to be fairly treated by their employers. 29 Fourthly, the
Constitutional Court itself became actively involved in adjudicating the merits of unfair dismissal disputes. 30 Fifthly, review of
statutory arbitration proceedings, which the lawmakers decided should replace appeals, encouraged some courts to adopt a more
interventionist approach than had been anticipated, leading to many appeals, and further appeals, against the outcomes of
reviews.
The result of these developments was to frustrate the main objective of labour legislation, ie to resolve dismissal disputes simply
and swiftly. Disputes that could, and arguably should, have been dealt with expeditiously by statutory arbitrators became bogged
down in complex jurisdictional arguments; some were resolved only years after the employees had been dismissed. 31 The appeal
process now extends over three stages in three different courts.
4th Ed, 2022, ch 1-p 9
The Constitutional Court has thrown its weight behind an attempt, started by a few Labour Court judges, to revert to less
complex dismissal law by ruling that dismissed public servants may not approach the civil courts with claims that their right to fair
administrative actions has been infringed. 32 However, as far as the overlap between contract law and statutory dismissal law is
concerned, the situation remains uncertain. The development of the law of contract to include a general right to a fair dismissal
was affirmed by three judgments of the SCA and confirmed by other judgments, 33 but has since been diluted by another SCA
judgment. 34 As things stand, therefore, the law of dismissal in South Africa is an amalgam of statutory and contractual principles
that may be pursued either in the civil courts or in statutory tribunals. This volume attempts to cover both areas of law.
21 The C ode of Good Practice: Dismissal is set out in Schedule 8 to the LRA.
22 The C ode of Good Practice on Dismissal Based on Operational Requirements (GenN 1517 in GG 20254 of 16 July 1999).
24 Section 157(1).
25 Section 167(1).
26 Chevron Engineering v Nkambule (2003) 24 ILJ 1331 (SC A); NUMSA v Fry’s Metals (2005) 26 ILJ 689 (SC A).
27 See, in particular, POPCRU v Minister of Correctional Services (2006) 27 ILJ 555 (E).
28 Fedlife Assurance v Wolfaardt (2001) 22 ILJ 2407 (SC A); Boxer Superstores Mthatha v Mbenya (2007) 28 ILJ 2209 (SC A); Old Mutual Life
Assurance Co SA v Gumbi (2007) 28 ILJ 1499 (SC A).
29 Murray v Minister of Defence (2008) 29 ILJ 1369 (SC A). But, as indicated presently, this ‘development’ was short-lived. The SC A was deprived
of jurisdiction to entertain appeals from the LAC by the C onstitution Seventeenth Amendment Act of 2012, which took effect in August 2013.
30 The earliest notable intervention by the C onstitutional C ourt was Sidumo v Rustenburg Platinum Mines (2007) 28 ILJ 2405 (C C ). Many other
subsequent judgments in labour by the highest court followed, and are discussed in the following chapters.
31 Both the SC A and the C onstitutional C ourt have deplored the delays that have characterised the resolution of some matters: see Netherburn
Engineering t/a Netherburn Ceramics v Mudau NO (2009) 30 ILJ 1521 (C C ) (10 years); Shoprite Checkers v CCMA (2009) 30 ILJ 829 (SC A) (nine years).
32 Chirwa v Transnet (2008) 29 ILJ 73 (C C ); Provincial Commissioner, Gauteng SAPS v Mnguni (2013) 34 ILJ 1107 (SC A).
33 See, in particular, Tsika v Buffalo City Municipality (2009) 30 ILJ 105 (E); Mogothle v Premier of the North-West Province (2009) 30 ILJ 605
(LC ); Makhanya v University of Zululand (2009) 30 ILJ 1539 (SC A).
34 See SAMSA v McKenzie (2010) 31 ILJ 529 (SC A) (followed in Moloto v City of Cape Town (2011) 32 ILJ 1153 (LC )). These developments are
fully discussed in Labour Litigation and Dispute Resolution C hapter 5.

Recognition by the SCA of an ‘implied duty of fairness’ in every contract of employment was a development of potentially
incalculable significance for the law of dismissal. Prompted by the Constitution, which affords to ‘everyone’ the right to fair labour
practices, 35 and guided by the decisions of labour tribunals, the SCA held that contracts of employment carry an implied term that
employees must be treated fairly. 36 In line with this development, the SCA ruled that employees were contractually entitled to a
proper pre-dismissal hearing, 37 and recognised that the notion of ‘constructive dismissal’ applied also to employees not covered by
the LRA. 38 This development, which was greeted with apparent reluctance by the Constitutional Court and the Labour Court, in
theory gave dismissed employees a choice between suing for unfair dismissal under the LRA and suing for breach of contract in a
civil court, or possibly to pursue separate actions in these tribunals. However, the SCA performed an about-turn on this point, and
ruled that the authorities in which a general right to fair dealing before termination has been implied by law into contracts of
employment are either wrong, or that the statements confirming this point were obiter.
But this did not end the overlapping and porous jurisdictions between the civil courts and the specialist labour tribunals. Until it
was deprived of jurisdiction to entertain ‘labour matters’, the SCA retained its jurisdiction to entertain appeals from the labour
courts. However, when the SCA did so, it applied the relevant statutory provisions. In that sense, no ‘conflict of law’ was created.
But the SCA also
4th Ed, 2022, ch 1-p 10
ruled that it retained jurisdiction in employment matters where employees framed their causes of action in contractual terms. 39
Where this was done, the matter was decided on the principles of the law of contract, unless it was found that the claim in truth
concerned the fairness of the dismissal, in which case a civil court would either dismiss the matter for want of jurisdiction or rule
that the employee has failed to make out a cause of action. The overlap between ‘LRA claims’ and breach of contract actions still
exists. In several cases, the labour courts have accepted that, where ‘fairness’ requirements are infused into contracts of
employment via cross-reference to disciplinary codes or even statutes, the employee is free to rely on them in breach of contract
claims. 40
35 C onstitution, s 23.
36 Old Mutual Life Assurance Co SA v Gumbi (2007) 28 ILJ 1499 (SC A).
37 Boxer Superstores Mthatha v Mbenya (2007) 28 ILJ 2209 (SC A).
38 Murray v Minister of Defence (2008) 29 ILJ 1369 (SC A).
39 SAMSA v McKenzie (2010) 31 ILJ 529 (SC A). This case is discussed in Labour Litigation and Dispute Resolution C hapter 5.
40 This issue is discussed in Labour Litigation and Dispute Resolution C hapter 5.
6. Overview
The position is now as follows: the LRA confers on all employees the right not to be unfairly dismissed, 41 and the civil law also
confers a right not to be unlawfully dismissed. This book is concerned primarily with how those rights are protected, and proceeds
as follows. The first question in any dismissal dispute is whether the person claiming relief was an employee, because only
employees can be dismissed. That issue is dealt with in Chapter 3. The second question, addressed in Chapters 2 and 4, is whether
the act which brought the employment relationship to an end was in fact a dismissal, or whether the employment relationship was
terminated in some other manner. Once these preliminary issues are settled, the question arises: was the dismissal lawful and fair?
A lawful dismissal is almost inevitably also fair, but not necessarily so. Conversely, a dismissal that is unfair is also now unlawful. To
be lawful, a dismissal must accord with the contract of employment and statutory law. To pass muster as fair, a dismissal must be
for a fair reason and in accordance with a fair procedure.
The LRA recognises four permissible grounds for dismissal: misconduct; poor work performance by employees; the inability of
employees to perform their contractual obligations because of ill health or injury; and the operational requirements of the employer.
Any dismissal must fall into one or other of these categories if it is to be accepted as fair. However, the LRA prohibits dismissing
employees for particular reasons, whether or not the employer considers them to be justified. ‘Automatically unfair’ dismissals are
discussed in Chapter 7. The requirements of the various categories of dismissals are set out in Chapters 8 to 22, while Chapters 23
to 25 deal with procedures for challenging dismissals, remedies, and costs.
41 Section 185.
Dismissal / Chapter 2 What is a dismissal?
Chapter 2
What is a dismissal?
4th Ed, 2022, ch 2-p 11
1. Introduction
3. Unique features
1. Introduction
The first issue to be determined in every case in which a person seeks relief for an alleged unfair dismissal is whether the act or
event that gave rise to the termination of the employment relationship was in fact and in law a dismissal. 1 The 1956 LRA contained
no definition of the word ‘dismissal’; indeed, the word did not even appear in the Act. Similarly, the common law knows no such
notion; what is colloquially termed a ‘dismissal’ is, under the common law, merely a repudiation of a contract of employment by the
employer.
The industrial court recognised that employers could unfairly terminate employment contracts in ways not then considered
unlawful under common law. In the exercise of its unfair labour practice jurisdiction, therefore, the court recognised new and novel
forms of ‘dismissal’. These included so-called constructive dismissal, selective non-re-employment and the non-renewal of fixed-
term contracts, all then unknown to the common law.
The legislature drew on this jurisprudence when it defined ‘dismissal’ under the current LRA. That definition now sets out the only
forms of dismissal recognised in South African law.
1 If the employee relies on a contractual claim, the question is whether the employer has unlawfully breached or repudiated the contract.

The statutory definition of ‘dismissal’, set out in s 186(1) of the LRA and amended in 2014, reads:
4th Ed, 2022, ch 2-p 12
(1) ‘Dismissal’ means that—
(a) an employer has terminated employment with or without notice;
(b) an employee employed in terms of a fixed-term contract of employment
reasonably expected the employer—
(i) to renew a fixed-term contract of employment on the same or similar
terms but the employer offered to renew it on less favourable terms, or
did not renew it; or
(ii) to retain the employee in employment on an indefinite basis but otherwise
on the same or similar terms as the fixed-term contract, but the employer
offered to retain the employee on less favourable terms, or did not offer to
retain the employee;
(c) an employer refused to allow an employee to resume work after she—
(i) took maternity leave in terms of any law, collective agreement or her
contract of employment; or
(ii) [deleted]
(d) an employer who dismissed a number of employees for the same or similar
reasons has offered to re-employ one or more of them but has refused to re-
employ another; or
(e) an employee terminated employment with or without notice because the
employer made continued employment intolerable for the employee; or
(f) an employee terminated employment with or without notice because the new
employer, after a transfer in terms of section 197 or section 197A, provided the
employee with conditions or circumstances at work that are substantially less
favourable to the employee than those provided by the old employer.
3. Unique features
Viewed from the perspective of the common law, the definition contains some oddities. Paragraph (a) of the definition is the only
form of dismissal that was recognised by the common law, although it does not exactly mirror the common-law principles relating to
the termination of contracts of employment. For one, the dismissals contemplated in para (a) now speak of the termination of
employment, which is wider than the termination of a contract of employment, as the original definition read. As appears below,
an employment relationship can exist even if no formal contract is concluded and even, on rare occasions, when there is no
contract at all.
At common law, a contract of service can be terminated lawfully by either party giving the required notice. Or the contract may
simply expire with the passage of time or the occurrence of a particular event, if the parties intended the contract to expire at a
particular time or on the occurrence of that event. 2 A ‘dismissal’ was deemed to have taken place if the employer gave the
required notice. However, at common law the employee on an ‘indefinite’ contract had no legal remedy if this happened because
one of the implied terms of the common-law contract was that it could be terminated by either party on the agreed notice or, if
the parties had not agreed on a particular notice period, on reasonable notice. The only dismissal for which a party can claim relief
under the common law is dismissal without notice (generally known as ‘summary dismissal’), which is really nothing more
4th Ed, 2022, ch 2-p 13
than a breach of the notice requirement, unless there was good cause for not giving notice. 3
Apart from rendering actionable the lawful termination of employment contracts by the giving of the required notice, the
legislature has now also included in the definition of ‘dismissal’ actions by employers which the common law does not recognise as a
repudiation of a contract of employment. Common to paras (b), (c) and (d) of the definition of ‘dismissal’ are situations in which
there is no contractual relationship between the parties at the time of the ‘dismissal’. Paragraph (d) creates a situation in which an
employee can be dismissed twice by the same employer. Paragraphs (e) and (f) recognise resignations as ‘dismissals’ in certain
circumstances.
The question whether a dismissal occurred is separate from, and logically precedes, the question whether a dismissal was unfair.
Although some forms of dismissal – for example constructive dismissal and selective non-re-employment – appear to be self-
evidently unfair, this is not necessarily so. If a dismissal is found to have occurred, the question must in every case still be asked:
was it unfair? The onus of proving that the dismissal occurred rests on the employee. The employer must then prove that the
dismissal was fair. 4 These provisions are considered in more detail in the following chapters.
2 On fixed-term contracts, see Grogan Employment Rights 3 ed (Juta 2019) C hapter 3.

3 The resilience of the common law in this regard is demonstrated by the judgment in Harper v Morgan Guarantee Trust Co of New York,
Johannesburg (2004) 25 ILJ 1024 (W) in which the court refused to accept a claim that the employer had ulterior purposes for dismissing her. An
exception that the claim did not disclose a cause of action was upheld.
4 Section 192(2).

Although the civil courts have begun to use the term ‘dismissal’, the word does not occur in the language of the common law. At
common law, a ‘dismissal’ is simply the repudiation by the employer party to a contract of employment of its obligations under the
contract. Where the termination of a contract is not consensual, the employee party has a choice of either accepting the
repudiation and suing for contractual damages, or holding the employer to the contract and suing for specific performance. Whether
a dismissal in this sense occurs is established according to the normal principles of contract.
Dismissed employees may sue for breach of contract only if by terminating the contract the employer has breached an express,
implied or tacit term of the contract. 5 If the repudiation is lawful, the employee has no remedy. If the contract is for a fixed term
and is unlawfully terminated prematurely by the employer, the employee may sue for damages. 6 If the contract is for an indefinite
period, the most the employee can claim by way of damages for unlawful breach is an amount equivalent to the notice pay he
should have received. 7 At common law, not all forms of non-consensual termination constitute repudiation. For example, where it
becomes impossible for either party to perform, the contract terminates
4th Ed, 2022, ch 2-p 14
automatically on the basis of ‘impossibility of performance’. A contract that was void at inception also dissolves by operation of law.
5 See SAMSA v McKenzie (2010) 31 ILJ 529 (SC A).

6 Fedlife Assurance v Wolfaardt (2001) 22 ILJ 2407 (SC A).
7 Harper v Morgan Guarantee Trust Co of New York, Johannesburg 2004 (3) SA 253 (W).

Under the LRA, a dismissal is said to occur if an employment relationship terminates in any of the manners contemplated in
s 186(1). The phrase ‘contract of’ has been deleted from all sections of the statutory definition in which it originally occurred. This
means that a dismissal occurs if ‘employment’ is terminated. The amendment aligns the Act with decisions of the courts in which it
was previously held that the existence of a valid contract is not a sine qua non for a dismissal. A dismissal may now be held to
have occurred even if the contract is unlawful, or if in strict contractual terms it is questionable whether the contract was ever
formed, or if the contractual relationship is not strictly speaking between the employee and the employer. These issues are
discussed in the following chapter and in Chapter 4.
Dismissal / Chapter 3 Who may be dismissed?
Chapter 3
Who may be dismissed?
4th Ed, 2022, ch 3-p 15
1. Introduction
5. Deemed employees
9. Trainees
17. Directors
1. Introduction
Under the common law, only employees – ie persons who are parties to current contracts of employment – can be dismissed. 1 As
pointed out in the previous chapter, the LRA extends the concept of dismissal to include persons not parties to contracts of
employment. In this chapter, parties who may claim relief for unfair dismissal under the LRA are identified.
1 Whitehead v Woolworths (1999) 20 ILJ 2133 (LC ).

4th Ed, 2022, ch 3-p 16
Section 186(1)(a) of the statutory definition of dismissal initially provided that a dismissal meant, inter alia, the termination of a
contract of employment with or without notice by an employer. The phrase ‘contract of’ has now been removed from the
definition. This means that the existence of a valid contract is not a necessary precondition for a dismissal in the statutory sense.
Apart from this, s 186(1)(a) is still meant to reflect the common-law notion of dismissal.
To constitute a dismissal in terms of the statute, the relationship between the parties must be one of employment. Therefore,
termination of a contract between an employer and an independent contractor, or some other person providing work, does not
constitute a dismissal actionable under the LRA.
It is accordingly still necessary to identify the true nature of the relationship before pursuing an action under the LRA or the
BCEA. Numerous attempts to distinguish the contract of employment (locatio conductio operis) from other contracts in which
people work for others have consumed many pages of reported judgments. The distinction will not be fully drawn here. Briefly put, a
contract of employment is one in terms of which a person provides another with labour in exchange for remuneration for a
continuous period. The contract should, but need not, be in writing to be binding. A person who undertakes to complete a specific
job for another without reference to time is termed an ‘independent contractor’, and the termination of such a contract does not
constitute a dismissal. Independent contractors have no remedies for unfair dismissal under the LRA because the statutory
definition of ‘employee’ expressly excludes independent contractors. 2 If their principals fail to discharge their obligations under the
contract or repudiate the contract, independent contractors must sue in the civil courts. 3
But the mere fact that a person may have been designated an ‘independent contractor’ in a contract to perform work does not
mean that the courts will not deem him or her to be an ‘employee’ if the reality of the relationship is one of employment. 4
To constitute a dismissal within the meaning of paras (a) to (c) of the definition of ‘dismissal’, the employment relationship must
be terminated by the employer of the employee concerned. 5 An employer has no authority to discipline or dismiss employees once
they have left their services, whatever the circumstances of the
4th Ed, 2022, ch 3-p 17
departure. 6 The word ‘employer’ is not defined in the LRA, 7 but must bear a meaning that correlates with the meaning of
‘employee’, and is therefore fraught with the same conceptual difficulties. An employer must be a person (natural or juristic) for
whom an employee works, or whose business is assisted by an employee. The starting point is accordingly to determine whether
people who work for an alleged employer are, indeed, its employees; if they are not employees, the other party cannot be an
employer.
A person may be an employer, but not the employer of the person claiming protection against unfair dismissal. In such cases, the
identity of the employer is the issue, not its status as such. The onus then rests on the employee to prove that the person against
whom he or she institutes action is the true employer. 8
Contracts between employees and subsidiaries in groups of companies are problematic in this regard. When seeking to identify
the employer in such cases the courts may either ‘pierce the corporate veil’, where appropriate, or identify the entity that actually
benefits from the employee’s labour, exercises control over the employee, and possesses the power to terminate the relationship. 9
A party asking a court to pierce the corporate veil must prove that the corporate entity was formed for a fraudulent or dishonest
purpose. 10
The legislature has made it easier for the courts to conduct this form of inquiry by the addition of s 200B, which reads:
(1) For the purposes of this Act and any other employment law, ‘employer’ includes one or
more persons who carry on associated or related activity or business by or through an
employer if the intent or effect of their doing so is or has been to directly or indirectly defeat
the purposes of this Act or any other employment law.
(2) If more than one person is held to be the employer of an employee in terms of
subsection (1), those persons are jointly and severally liable for any failure to comply with
the obligations of an employer in terms of this Act or any other employment law.
The search for the true employer becomes even more complicated in the case of foreign and multinational corporations, discussed
below.
Labour brokers or temporary employment services (TESes) – those who hire out labour to others for gain – are the employers of
the persons hired out, even though
4th Ed, 2022, ch 3-p 18
the hired employee works for the labour broker’s client. 11 If a labour broker’s client decides that it no longer wishes to retain the
hired employee, the labour broker is the entity responsible for terminating the employment relationship. The LRA imposes joint and
several liability on the broker and the client for any infringements by the broker of the requirements of labour legislation except for
unfair dismissals. This means that dismissed employees of labour brokers must sue the broker, not its client, for unfair dismissals. If
a ‘hired’ employee is reinstated, the order also operates against the broker. However, after employees are ‘deemed’ an employee of
the client in terms of s 198A, the client and the broker are jointly liable for their dismissals. 12
The existence of a contract of employment is no longer a sine qua non for some forms of dismissal. But in all cases the parties
must at some stage have been parties to a contract of employment. An employee may not, for example, claim to have been
constructively dismissed if a contract was not in existence at the time of the employee’s resignation. 13 Nor may an employee claim
to have been dismissed on the basis of non-renewal of a fixed-term contract, or on the basis of ‘selective non-re-employment’, if a
contract did not exist at some stage.

3 On the requirements of the contract of employment, see Grogan Employment Rights 3 ed (Juta 2019) C hapter 3. Independent contractors may
sue for breach of contract, and may also have remedies under other statutes: see, for example, Strydom v Nederduitse Gereformeerde Gemeente
Moreleta Park (2009) 30 ILJ 868 (EqC ), in which a church music teacher engaged as an ‘independent contractor’ successfully sued for discrimination
under the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA).
4 See Dyokhwe v De Kock (2012) 33 ILJ 2401 (LC ).
5 Uber drivers operating in C ape Town were found not to be the employees of Uber SA because that company merely served as a marketing and
administrative agent for the overseas holding company. The employment relationship, if any, could exist only between the drivers and the holding
company because the contract licensing the drivers to operate for Uber was concluded by it: see Uber SA Technology Services v NUPSAW (2018) 39 ILJ
903 (LC ).
6 See Radebe v MEC: Health, Eastern Cape (2015) 36 ILJ 478 (LC ), in which the employee found himself transferred from the government of the
Eastern C ape to the government of KwaZulu-Natal (KZN) as a result of a change of borders. The Eastern C ape government nonetheless instituted
disciplinary action and purported to dismiss him for misconduct Radebe had committed while still employed by the Eastern C ape government. The court
held that the Eastern C ape government had no authority or power to discipline or dismiss Radebe and ruled the dismissal a nullity.
7 ‘Employer’ was defined in the 1956 LRA as ‘any person who employs or provides work for any person and remunerates or expressly or tacitly
remunerates him or who . . . permits any person whatsoever in any manner to assist him in the carrying on or conducting of his business’.
8 Jadwat’s Wholesalers v Maphumolo (1992) 13 ILJ 979 (LAC ).
9 See, for example, Board of Executors v McCafferty (1997) 18 ILJ 949 (LAC ) and Footware Trading v Mdlalose (2005) 26 ILJ 443 (LAC ), in both of
which holding entities were identified as the employer.
10 See Wilson v Prinsloo: In re Prinsloo v Expidor 163 t/a The League of Gentlemen (2021) 42 ILJ 1714 (LAC ), where the applicant failed to do so.
11 Section 198(2), which gives expression to the rulings to the same effect in Pienaar v Tony Cooper & Associates (1995) 16 ILJ 192 (IC ). See
Qwabe and Robertson’s Foods (2007) 28 ILJ 1356 (C C MA).
12 The nature and effect of the deeming provision was considered in Assign Services v NUMSA (Casual Workers Advice Office as Amicus
Curiae) (2018) 39 ILJ 1911 (C C ), in which it was held that the TES remains the sole employer of employees ‘hired’ to the client.
13 MEC, DOH, Eastern Cape v Odendaal (2009) 30 ILJ 2093 (LC ).
To determine whether people may be dismissed, the question is not so much whether they are parties to a contract of employment,
but whether they fall within the terms of the statutory definition of ‘employee’. The statutory definition defines an ‘employee’ as
any person, excluding an independent contractor, who works for another person or for the state and who receives, or is entitled to
receive, remuneration. This is extended to ‘any other person who in any manner assists in carrying on or conducting the business of
an employer’. The definition is accordingly much wider than what is understood by the common law as a party to an employment
contract. Were it not for the exclusion of independent contractors, the definition potentially embraces any person who provides
labour or services for another. Significantly, the statutory definition does not mention a contract of employment. This is because
the statute includes within its scope various persons who are not currently parties to contracts of employment.
When determining whether workers fall within the scope of the statutory definition, the courts have been prepared to recognise
as employees categories of workers who would not be classified as such under the common law. For example, the LAC has found
that a person working for another through the medium of a juristic person falls within the statutory definition although the common
law holds that a juristic person cannot be an employee. 14 Where the relationship was in truth one of employment, the termination
of the contract between the juristic person, and
4th Ed, 2022, ch 3-p 19
the other constitutes a dismissal. The Labour Court has gone so far as to find that workers in a pool from whom temporaries were
selected on a rotating basis were employees within the meaning of the statutory definition. 15 Although the context was different,
it follows from this judgment that if the employer were to have decided that it would no longer employ employees who fell within
the pool, they would presumably have been deemed ‘dismissed’.
In Denel v Gerber, 16 the judgment strongly suggests (without an express finding having been made in that regard) that to fall
within the scope of the statutory definition of ‘employee’, a person rendering service need not be a party to a valid employment
contract. Denel concerned an arrangement between a purported independent contractor and an employer.
But what if parties to an employment relationship have not concluded a valid contract or if the contract has become invalid?
That issue has arisen in two cases, one concerning the termination of the relationship between an employer and a foreigner without
a work permit, the other concerning the termination of the employment relationship between a brothel and a prostitute. In the first
case, Discovery Health v CCMA, 17 the court held that the foreigner had been dismissed because the contract was in fact valid.
The court also agreed with the commissioner’s finding that the foreigner remained an employee, notwithstanding the fact that his
work permit had lapsed. In ‘Kylie’ v CCMA, 18 the court also accepted that a ‘sex worker’ was an employee, but held that she was
not entitled to relief under the LRA because the contract was unlawful and unenforceable. While the LAC confirmed that ‘sex
workers’ are employees, it did not agree that, in principle, they were not entitled to relief under the LRA. 19
The drift of judgments in which the scope of the statutory definition of ‘employee’ has been steadily widened to embrace as wide
a category of persons who work for others seems to have been reversed by Universal Church of the Kingdom of God v Myeni, 20 in
which the LAC held that some kind of contractual relationship is an essential element of an employment relationship, even if it
apparently satisfies all the elements of the presumption of employment created by s 200A. The respondent, a pastor, was expelled
from the church after being accused of theft. A CCMA commissioner held that Mr Myeni was employed by the church, and that the
termination of his services constituted an unfair dismissal. The LAC noted that s 200A was introduced into the LRA to create a
presumption that a person is an employee, regardless of the form of the contract, if the relationship has certain characteristics.
The Code of Good Practice: Who is an Employee affirms that a person applying s 200A must examine the actual nature of the
relationship. Both the commissioner and the Labour Court had assumed that the presumption applied automatically. This was
incorrect. The words ‘regardless of the form of the contract’ suggested to the LAC that some form of contract must be in
existence,
4th Ed, 2022, ch 3-p 20
whether written or oral, before the presumption can apply. Only legally enforceable agreements or contractual arrangements
therefore fall within the scope of s 200A.
14 Denel v Gerber (2005) 26 ILJ 1256 (LAC ). See also SITA v CCMA (2008) 29 ILJ 2234 (LAC ).
15 NUCCAWU v Transnet t/a Portnet (2000) 21 ILJ 2288 (LC ).
16 (2005) 26 ILJ 1256 (LAC ).
17 (2008) 29 ILJ 1480 (LC ).
18 (2008) 29 ILJ 1918 (LC ).
19 ‘Kylie’ v CCMA (2010) 31 ILJ 1600 (LAC ).
20 (2015) 36 ILJ 2832 (LAC ).

On occasion, to avoid paying tax or for some other reason, people make arrangements with those to whom they render service to
invoice the employer in the name of a separate legal entity, such as a close corporation or company. On the face of it, this results
in an arrangement between two legal entities, which cannot be an employment relationship because a legal entity cannot be an
employee. Denel, 21 however, makes it clear that a court may in appropriate circumstances disregard the legal fiction and examine
the nature of the relationship between the employer and the person rendering service, and if that satisfies the normal tests for an
employment relationship, declare the person who renders the service to be de facto and de jure an employee. Where this is the
case, the formal termination of the relationship between the employer and the surrogate corporate cover will constitute a
dismissal. 22
21 Denel v Gerber (2005) 26 ILJ 1256 (LAC ).

22 See, for example, Melomed Hospital Holdings v CCMA (2013) 34 ILJ 920 (LC ).
5. Deemed employees
Employees on lower salaries are deemed employees if the relationship displays one or more of the following characteristics: 23
• The manner in which the person works is subject to the control or direction of another person.
• The person’s hours of work are subject to the direction or control of another person.
• In the case of a person who works for an organisation, the person forms part of the organisation.
• The person has worked for another person for an average of 40 hours per month for the past three months.
• The person is economically dependent on the person to whom he or she renders service.
• The person is provided with the tools of the trade by the other person.
• The person works for or renders service only to one other person.
Strictly speaking, the provision applies only to employees earning below a threshold set periodically by regulation. Section 200A
clearly reflects the common-law approach to identifying an employment relationship, except that it is stricter because it provides
that a person will be deemed an employee if ‘one or more’ of the ‘characteristics’ applies. While in the case of employees earning
above the threshold the courts do not require proof of the existence of a contract of employment to determine whether a dismissal
took place, the LAC has now ruled that some kind of
4th Ed, 2022, ch 3-p 21
enforceable contract must exist before an employee can rely on the presumption. 24 This seems out of kilter with the general run
of opinion on this issue, and with the removal of the phrase ‘contract of employment’ from the definition of dismissal.
Employees of labour brokers and on fixed-term contracts may also be deemed permanently employed by the brokers’ clients or by
the employer after a period of three months if they qualify for such treatment under ss 198A and 198B of the LRA. 25 The
importance of these provisions for dismissal law is that, after being so ‘deemed’, the termination of the contract by the broker or
the client or of the fixed-term contract may constitute a dismissal, which must be challenged as such under s 191(5) of the LRA,
but not under s 198D(5). 26
23 See s 200A.
24 See Universal Church of the Kingdom of God v Myeni (2015) 36 ILJ 2832 (LAC ), discussed above.
25 That is if they earn less than the specified threshold and do not fall among the exceptions allowed by the Act.
26 Nama Khoi Local Municipality v SALGBC (2019) 40 ILJ 2092 (LC ). On labour brokers, see further below.

At common law, a party to a contract of employment may sue for repudiation as soon as it is concluded; if the parties agree that
the employee will commence work at some future date, the employee may claim damages for breach if the employer changes its
mind and withdraws from the contract before that date arrives. This is known as ‘anticipatory breach’.
Initially, there was some doubt as to whether employees who were victims of anticipatory breach could claim to have been
dismissed within the meaning of para (a) of the statutory definition of ‘dismissal’. In Whitehead v Woolworths, 27 the company
offered Ms Whitehead a post, which she accepted. The court held that she could not claim to have been dismissed within the
statutory meaning of that term because at the time the company withdrew from the contract, she was not yet an ‘employee’ as
defined in the LRA, which recognises persons as employees only if they receive or are entitled to receive remuneration from the
employer. This judgment was overruled on appeal. The LAC reasoned that s 188(1)(a), which was the form of dismissal upon which
Whitehead relied, does not contain the word ‘employee’. It provides that a dismissal takes place if an employer has terminated a
contract of employment. If the agreement between Whitehead and Woolworths amounted to a binding contract, as the court
apparently accepted, it can only have been a contract of employment; that being the case, the company’s withdrawal of its ‘offer’
constituted a termination of a contract of employment, and hence a dismissal. 28
In Wyeth SA v Manqele, 29 the Labour Court disagreed with the Woolworths judgment in this regard. The court remarked that
the interpretation of ‘employee’ in Woolworths consigns a person who has contracted a valid contract of employment but has not
yet commenced working for the employer to a ‘jurisprudential limbo’.
4th Ed, 2022, ch 3-p 22
According to the Wyeth court, all the statutory definition of employment requires is the termination of a valid contract of
employment by an employer. The court adopted a similar view in Jack v DG of the Department of Environmental Affairs, 30 in which
the applicant sued for damages under the BCEA.
This debate ended with the judgment in the unsuccessful appeal against Wyeth. 31 The LAC held that employees who have
concluded contracts of employment, but have not commenced working for the employer, may therefore sue for unfair dismissal
under the LRA, or for contractual damages in either the Labour Court, 32 or the civil courts, if the employer decides to repudiate
the contract. This applies even where, after accepting an offer of employment, the employee fails to provide information required
by the employer. 33
27 (1999) 20 ILJ 2133 (LC ).

28 The Labour C ourt’s judgment was subsequently overruled on appeal (Whitehead v Woolworths (2000) 21 ILJ 571 (LAC )), but the LAC was not
required to deal with this point.
29 [2003] 7 BLLR 734 (LC ).
30 [2003] 1 BLLR 28 (LC ).
31 Wyeth SA v Manqele (2005) 26 ILJ 749 (LAC ).
32 See, for example, Jafta v Ezemvelo KZN Wildlife (2009) 30 ILJ 131 (LC ).
33 See also Langa v SALGBC (Mpumulanga) (2013) 34 ILJ 2248 (LC ); Niewoudt v All-Pak (2009) 30 ILJ 2451 (LC ).

A fixed-term contract, as its name implies, is a contract designed to last for a specific period, or until the conclusion of a specified
project. Contractually speaking, the termination of a fixed-term contract does not constitute a dismissal, because on arrival of the
specified date or event, the contract simply expires and the parties are released from their obligations.
Whether employers may rely on the automatic termination of fixed-term contracts to oppose dismissal claims depends on the
circumstances. For one, the contract must indeed be for a fixed term, whether the term is fixed according to a particular period or
to terminate on the arrival of a particular event. A contract which specifies that it will endure for a period but may be terminated
on notice from other side is not a true fixed-term contract, 34 and premature termination will not constitute a breach if the normal
requirements of lawful notice are satisfied. A contract set to terminate on the happening of some event before the termination date
may also be lawfully terminated on the occurrence of that event. 35
A fixed-term contract can also be converted into an indefinite-period contract if the employee is permitted to continue working
after the expiry of the fixed-term contract. The employer cannot then rely on the earlier fixed-term contract if the employment
relationship is subsequently terminated. 36 Subject to certain exceptions, employees earning below the statutory threshold may
now be retained on fixed-term contracts for no longer than three months, after which they become ‘permanent’ employees. 37
4th Ed, 2022, ch 3-p 23
A fixed-term contract works both ways: if either party prematurely terminates the contract, that party commits a breach. 38
Premature termination of a fixed-term contract by an employer accordingly also constitutes a dismissal as contemplated in
s 186(1)(a) of the statutory definition. However, the legislature has gone further in s 186(1)(b) – an employee is deemed dismissed
if the employer fails to renew a fixed-term contract, or renews it on less favourable terms, even if the employer was under no
contractual obligation to do so. The legal obligation in such cases arises from a ‘reasonable expectation’ that the contract would be
renewed. Unless employees on fixed-term contracts can prove that they had such an expectation, they have no remedy under the
LRA. 39
The High Court has also intervened in cases involving the non-renewal of fixed-term contracts where the state breached other
legislation by not filling posts. FEDSAS v MEC for the Department of Basic Education, Eastern Cape concerned the respondents’
decision not to renew the contracts of some 6 000 temporary teachers, 40 which left many schools in crisis at the start of the
2011 school year. The High Court found that the department infringed the applicable legislation because it had failed to announce
the province’s 2011 teacher establishment by September of the previous year. This made it impossible for many schools to plan
their requirements. Since all the posts had been budgeted for in the previous year, the belated decision not to renew the temporary
teachers’ contracts was unlawful and irrational, and had deprived thousands of learners of their constitutional right to basic
education. The court granted an interim order directing the respondents to advertise and fill the positions in accordance with the
applicable statutes and regulation.
34 Such contracts have been aptly termed ‘maximum duration’ contracts: Mafihla v Govan Mbeki Municipality (2005) 26 ILJ 257 (LC ).
35 See, for example, Potgieter v George Municipality (2011) 32 ILJ 104 (WC C ), where the contract was linked to the term of office of the
incumbent mayor.
36 See Owen v DOH, KZN (2009) 30 ILJ 2461 (LC ).
37 Section 198B of the LRA.
38 See, for example, Fedlife Assurance v Wolfaardt (2001) 22 ILJ 2407 (SC A).
39 See further C hapter 4.
40 [2011] 6 BLLR 616 (EC B).
Probationary employees whose contracts are terminated at the end of their probation periods because they have not satisfied the
employer’s standards are deemed to have been dismissed. A probationary clause is no longer regarded as a fixed-term contract
which converts into a permanent contract only if the probationary period is successfully completed. 41
41 Abrahams / Rapitrade 64 t/a Concept Creations [2007] 6 BALR 501 (BC FMI). See further C hapter 14 and Employment Rights C hapter 6.
9. Trainees
The mere fact that individuals are in all respects otherwise employees does not mean that they cease to be such merely because
they receive training from their employer. However, the courts may draw the line at accepting as employees those who are
engaged merely to receive training, unless they are employed in terms of some statutory scheme which affords trainees that
status. The High Court has ruled that ‘student constables’ did not fall within the statutory definition of ‘employee’
4th Ed, 2022, ch 3-p 24
because, while their training was given ‘on the job’, they rendered no service to the employer. 42
42 POPCRU v Minister of Safety & Security (2010) 31 ILJ 556 (GNP).

Section 198A of the LRA limits the period for which labour brokers can assign employees earning below the statutory threshold to
three months, after which those employees, subject to certain exceptions, will be ‘deemed’ to be employed by the client.
Termination of these employees’ services to avoid the operation of the deeming provision constitutes a ‘dismissal’, but of an unusual
kind, which adds to those forms of dismissal contained in the statutory definition. Section 198A(4) provides that the ‘termination by
the temporary employment service of an employee’s service with a client, whether at the instance of the temporary employment
service or the client, for the purpose of avoiding the operation of subsection (3)(b) or because the employee exercised a right in
terms of this Act, is a dismissal’. This provision is aimed at preventing labour brokers from removing their employees from a client to
avoid them becoming deemed employees of the client. However, it applies only to employees earning under the prescribed
threshold. It could also well be that such terminations are deemed automatically unfair.
Labour brokers have long attempted to immunise themselves against unfair dismissal claims by concluding contracts with their
employees which contain clauses that give them an unfettered right to terminate if the client to whom the employee is assigned no
longer requires the employee’s services. Section 189A anticipates judicial pronouncements on dismissals by labour brokers. While
some commissioners have accepted that the termination of the services of a labour broker’s employee in these circumstances does
not constitute a dismissal, the tide seems to have turned in the opposite direction.
When an employer attempts to deny liability for a dismissal by attributing it to a labour broker, the court or arbitrator may
examine the true relationship between the employee and the respective parties. Dyokhwe and Adecco Recruitment Services
conveys a warning in this regard. 43 Mr Dyokhwe had been employed by Mondipak for three years when that company concluded
an arrangement with a labour broker in terms of which all Mondipak workers were purportedly transferred to the broker, which would
henceforth be responsible for payment of their wages and performing other personnel functions. Six years after this arrangement
had started, Mondipak told Dyokhwe that it had no further use for his services. The company asked him to sign a form indicating
that he had been employed by the broker on a ‘fixed-term contract by time’. When Dyokhwe approached the broker, he was told
that it had no work for him either. Dyokhwe claimed in the CCMA that he had been unfairly dismissed by the broker. The broker
denied it had dismissed him, claiming that he had been placed in a ‘pool’ where he was to await further assignment. The
commissioner found that Dyokhwe had been dismissed, and that the dismissal had been effected by Mondi because the relationship
between the parties was not a true broking relationship. Dyokhwe had continued in Mondi’s employment after the
4th Ed, 2022, ch 3-p 25
arrangement with the broker had been concluded, but that arrangement was merely a sham to enable Mondi to escape its
obligations to its employees. Mondi was ordered to reinstate Dyokhwe.
The Dyokhwe award was set aside on review. 44 When the matter came before a bargaining council, the new arbitrator proved
less sympathetic than the first. He ruled that Adecco was Dyokhwe’s employer, and that this meant that he could not claim to
have been dismissed by Mondi. On a further review, Dyokhwe argued that Mondi had not terminated the employment relationship
between him and that company before his dismissal and, more to the point, that the contractual arrangement between himself,
Mondi and Adecco was a sham and in fraudem legis. Dyokhwe v De Kock NO focused on the relationship between Mondi and
Adecco. 45 The judge observed that because the vulnerability of employees in labour broking arrangements has been widely
recognised, arbitrators and courts must ensure that alleged TES arrangements satisfy the requirements of s 198 of the LRA and
must not regard them as presumptively valid. The courts had on several occasions recognised that brokers’ employees cannot be
dismissed at will simply because clients no longer require their services. In this case, Dyokhwe may have received his salary from
Adecco. But the fact was that he had remained in the same workplace performing the same work for almost nine years, if on a
reduced wage.
At this point, the court broke new ground. The judge noted that the statutory provision which deems a TES to be the employer
of persons on its payroll may not apply where the employee has a closer relationship with the client than the TES. The court also
observed that the constitutionality of s 198 of the LRA was questionable, but that there was no need to consider that issue
because Dyokhwe had merely pleaded that the provision should be interpreted purposively and in accordance with the
constitutional right to fair labour practices. Since this was a review application, the further question was whether the
commissioner’s interpretation of s 198 was reasonable. The court could find no evidence to prove that Mondi had terminated
Dyokhwe’s employment before his dismissal. The commissioner’s finding to the contrary was therefore unjustified. But, more fatally,
the arbitrator had also failed to inquire into the true relationship between the parties, as he was obliged to do. Just as courts and
arbitrators must inquire into the true nature of the relationship when the existence of an employment relationship is in dispute, the
judge could see no reason why the same approach should not be applied to relationships between brokers, their clients and
employees. Adecco had neither procured Dyokhwe’s services nor provided them to Mondi. The relationship between Mondi and
Adecco was therefore not a TES relationship, as defined in the LRA. This meant that Dyokhwe had been dismissed, not by Adecco,
but by Mondi.
The converse also applies. Labour brokers frequently try to escape liability for dismissing their employees on the basis that a
client insists that they be removed from their property, and an alternative assignment cannot be found. Nape v INTCS Corporate
Solutions has undermined this defence. 46 INTCS – which supplied labour to, among others, Nissan SA – ran into the classic problem
when Nissan complained
4th Ed, 2022, ch 3-p 26
about the conduct of one of its (the broker’s) employees, Mr Nape. Nissan took exception to an e-mail Nape had sent to a
colleague, and insisted that INTCS deals with him. INTCS convened a disciplinary hearing, and Nape was given a final warning and
told to return to work at Nissan. But Nissan refused to have him back. So INTCS consulted Nape and dismissed him because it had
no other post to which to deploy him. Nape claimed he was unfairly dismissed and sought compensation. INTCS said it had no
option but to terminate Nape’s services, and that it had merely complied with Nissan’s request, which it was contractually entitled
to make.
The court took a fresh look at this common situation, observing that, while labour broking arrangements are sanctioned by the
legislature, this does not mean that they can be used to evade obligations under labour legislation. Since brokers and their clients
did not then share joint liability for unfair dismissals, the action had correctly been brought against INTCS. But INTCS could not rely
on the contract between itself and its client: provisions in such contracts that permit the client or the broker to unfairly dismiss the
broker’s employees are contrary to public policy and without legal effect. So what should INTCS have done? The judge pointed out
that Nissan was the agent of the unfair dismissal. Even if it had ‘superior bargaining power’ as a major client of INTCS, this did not
mean that INTCS was powerless. According to the judge, the broker should have insisted that Nissan accept the employee’s
services and, if it could not, it should have approached the court for an order compelling it to do so. The judge did not deal with
the scenario that might have unfolded had Nissan taken exception to the suggested action and cancelled its contract with INTCS.
A possible argument might then have been that Nissan was in breach of contract because INTCS could not be compelled to perform
an unlawful action. Whether that argument would have succeeded is moot. 47
The extent to which a broker can rely on the wishes of its client depends on the circumstances. Abancedisi Labour Brokers was
confronted with a problem which, on the face of it, seemed similar to that faced by INTCS, but managed to get off the hook. 48
After Abancedisi’s employees working at K went on an unlawful strike, K told them to stay off its premises because they refused to
sign a ‘code of conduct’ designed by K to regulate future industrial action at its plant. Their union claimed they had been unfairly
dismissed. But, as it turned out, the referral was premature. The Labour Court noted that the contract between Abancedisi and K
merely provided that the client was entitled to demand that Abancedisi remove employees from its site, and gave the broker the
right to terminate the contract. The broker had not yet done so. The court held that the applicants had failed to prove that they
were dismissed, and the application suffered the same fate. 49
Employees who perform work under the ‘subcontracts’ with their employers (so-called service contracts) are in much the same
position as the employees of labour
4th Ed, 2022, ch 3-p 27
brokers proper. Their employers also frequently link the duration of the employees’ contracts to the subcontract to which they, the
employers, have been assigned. The situation of these employees is discussed in the following chapter.
43 (2009) 30 ILJ 2989 (C C MA).

44 The judgment in that case is not reported.
45 (2012) 33 ILJ 2401 (LC ).
46 (2010) 31 ILJ 2120 (LC ).
47 In NUMSA obo Ngoyi and Lapace Construction (2010) 31 ILJ 1275 (BC A) the arbitrator also accepted that labour brokers may not dismiss their
employees solely because their clients request them to do so, but held that reinstatement was not feasible where the broker had only one client. This
award may have been different had Nape v INTCS Corporate Solutions (2010) 31 ILJ 2120 (LC ) been brought to the arbitrator’s attention.
48 In NUMSA obo Ketlhoilwe v Abancedisi Labour Brokers (2010) 31 ILJ 2142 (LC ).
49 This judgment was confirmed on appeal: NUMSA v Abancedisi Labour Services (2012) 33 ILJ 2824 (LAC ).

A dismissal, as ordinarily understood, entails a decision by an employer to end the contract. Where employees terminate the
contract, they are said to have resigned, which constitutes a termination, not a dismissal. The statutory definition and now also
the common law recognise one form of dismissal which is initiated by employees. This is so-called constructive dismissal; a dismissal
is deemed to have occurred when the employee is driven to resign or abandon the employment relationship by the conduct of the
employer.
The only issue in such cases is whether an employee who has tendered notice of resignation has been dismissed. When an
employee resigns in ordinary circumstances, the consequent termination on acceptance of the resignation by the employer does
not constitute a dismissal. If the resignation is on notice, the employee cannot be dismissed after the notice period expires,
because the employment relationship has already terminated. But in one case, 50 an arbitrator held that a resignation during the
notice period may constitute a dismissal. The facts in that case were unusual. The employee had in fact resigned and claimed
constructive dismissal. The employer contended that the subsequent dismissal nullified the claim for constructive dismissal. The
arbitrator reasoned that, if the employee’s resignation proved to be constructive dismissal, the resignation would itself have
constituted a dismissal. The employee could not therefore be dismissed twice.
Uthingo Management v Shear NO involved an apparently bona fide termination of the contract before the expiry of the notice
period. 51 The two respondent employees had resigned and their services terminated a month later. The Labour Court held that
once employees tender their resignations, their employers may either allow them to render service for the remainder of the notice
period, or pay them off in lieu of notice. By resigning, the employees had evinced a clear intention not to continue with the
contract and their resignations had been accepted. Once the employees had unequivocally indicated that they had resigned and
the employer had unequivocally accepted their resignations, the contract terminated and the employees could not be dismissed
after that date.
The situation of an employee who has tendered a resignation, whether in writing or orally, has always been accepted to be that,
once the tender comes to the employer’s attention, or to the attention of an employee with authority to accept the resignation,
the employee is bound by the resignation, even if he or she subsequently has second thoughts. 52 This means that a resignation
cannot be withdrawn without the employer’s consent.
4th Ed, 2022, ch 3-p 28
A change of what has always been trite law may have been foreshadowed by an obiter dictum in the judgment of the concurring
minority of the Constitutional Court in Toyota SA Motors v CCMA. 53 The respondent employee in that case had been absent
without leave (AWOL) for a few days and on his return was summoned to a disciplinary hearing. Before the inquiry was convened,
the employee resigned. Toyota declined to accept his resignation, convened the inquiry and dismissed the employee. In a
subsequent arbitration, the employee claimed that he was dismayed that he had been charged with being AWOL and that he had
resigned in anger. The respondent CCMA commissioner ruled that the employee had been unfairly dismissed and ordered Toyota to
reinstate him and to pay him six months’ salary. Toyota argued in the Constitutional Court that the reinstatement order was
incompetent because the employee had resigned. The majority decided that the Labour Court had correctly dismissed the review on
the basis of Toyota’s failure to pursue the matter. Only the single dissenting justice and a minority that concurred with the majority
judgment dealt with the argument that reinstatement was incompetent because the employee had resigned. One justice accepted
that argument. The concurring minority agreed that, generally speaking, an employee who has resigned cannot be reinstated.
However, to them this case was slightly different: the employee had tendered his resignation but had been dismissed before the
resignation took effect. This minority also accepted that an employee who resigns to avoid being dismissed cannot seek
reinstatement. But in this case, the employee had resigned and changed his mind before the contract ended. One of Toyota’s
problems was that it had raised the resignation point only on appeal. That was enough for the majority to dismiss the point.
The concurring minority pointed out that the idea that resignation is a ‘unilateral act’ that cannot be withdrawn is based on old
authorities which may have been rendered outmoded by the Bill of Rights. There is no reason why an employer who refuses to
accept an employee’s resignation should be allowed to rely on it later as a defence to an unfair dismissal claim. Having rejected the
resignation, the employer can hardly accept it after the event. These justices advanced three possible answers to the concern
raised by the dissenting justice that, if employers were permitted to refuse to accept a resignation, they could force a reluctant
employee to remain in employment. These were to:
• require employers to accept resignations before they became binding
• disallow the withdrawal of resignations only when the employer would be prejudiced
• find that employers may not rely on resignations where it would be unfair to allow them to do so.
This was as far as the concurring minority took the issue. But its suggestion could well pave the way for a major change in the
principle that employees may not withdraw resignations without the employer’s consent, even if the employees change their minds.
4th Ed, 2022, ch 3-p 29
Although the respondent in IIE v Mbileni may not strictly speaking have resigned, his case was treated as if he had. 54 The
applicant in that case had purchased equipment for the school at which she had acted as chief financial officer (CFO), and agreed
that after tying up the transfer, the CFO would be placed on a retainer while he looked for another job. The CFO then disappeared,
but when his retainer was stopped, he claimed he had been dismissed. The court rejected that claim on the basis that at the time
the former CFO was not rendering service to the applicant and was accordingly not employed by it. He could not therefore have
been dismissed.
50 SALSTAFF obo Bezuidenhout and Metrorail (2) (2001) 22 ILJ 2531 (BC A).
51 (2009) 30 ILJ 2152 (LC ).
52 ANC v Municipal Manager: George Local Municipality (2010) 31 ILJ 69 (SC A).
53 (2016) 37 ILJ 313 (C C ).
54 (2013) 34 ILJ 1538 (LC ).

Employers may wish to dismiss employees who have resigned to evade disciplinary action that is likely to result in dismissal. Since
resignation is a unilateral act that does not require acceptance by the employer, 55 a dismissal in such circumstances is normally
unnecessary, because the employer is free to release the employee during the notice period. If, for some reason, an employer
wishes to terminate the employment relationship before the end of the notice period the employer may do so at any time before the
expiry of the notice period by simply paying the employee off. In such cases, the employer need not follow the procedures
prescribed by the LRA.
However, the reason for the dismissal will sometimes be of consequence. For example, employees dismissed for serious
misconduct may forfeit certain benefits, such as payouts of share options or pension benefits. If the employer cannot institute
disciplinary action for the serious misconduct during the notice period, the employee will also go back to the job market with a
clean record. The answer to the employer’s dilemma is this: the employer retains disciplinary authority over an employee to the end
of the notice period. The employer is accordingly entitled to take disciplinary action against an employee who, for example, has
been retrenched for operational reasons if the employee steals during the notice period. In that case, the employee may be
summarily dismissed (ie the contract may be terminated without notice). That termination will still constitute a dismissal, and the
employee will have a claim for the balance of his notice pay. If serious misconduct is proved, the employee has no claim, because
summary termination is permissible in such cases. However, if an employer wishes to discipline an employee who has resigned on
notice during the notice period, it should not decline to accept the resignation. If it does so, it may find itself in difficulty if the
employee subsequently challenges the outcome of the disciplinary proceedings, as occurred in Toyota SA Motors, 56 discussed
above.
In one isolated case, the Labour Court has held that an employer lacks power to dismiss an employee who has resigned without
notice, even if the dismissal takes place during the period for which notice should have been given. This was Mtati v KPMG
Services. 57 When she was told that certain allegations against her relating to
4th Ed, 2022, ch 3-p 30
alleged conflicts of interest were being investigated, Ms Mtati resigned on notice. After being told that disciplinary proceedings
would commence, she resigned again, this time ‘with immediate effect’. KPMG accepted the first resignation, but rejected the
second resignation, and convened a disciplinary hearing a few days before Mtati’s notice period would have expired. A disciplinary
hearing continued in spite of Mtati’s objections and she was found guilty on all charges and summarily dismissed. In an urgent
application for orders interdicting KPMG from instituting disciplinary action against Mtati, the Labour Court accepted that when an
employee resigns on notice, all rights and obligations under the employment contract continue until the expiry of the notice period.
If the employee dismisses the employee during the notice period, the contract terminates then. KPMG was therefore entitled to
discipline Mtati after accepting the first resignation. However, nothing prevents an employee who has resigned on notice from
resigning with immediate effect during the notice period, and the employer’s consent to the withdrawal of the first resignation is not
required. Mtati’s second resignation changed her status from that of an employee to that of a former employee. This deprived KPMG
of its right to discipline her. The court ruled that KPMG lacked jurisdiction to discipline Mtati after her second letter or resignation
and that the proceedings that followed the resignation were null and void.
In Coetzee v Zeitz Mocaa Foundation Trust, 58 the court came to the opposite conclusion – employees remain subject to the
employer’s disciplinary authority until the period of notice they should have given expires. But, in Naidoo v Standard Bank of SA, 59
another judge of the Labour Court took a via media – after the employee resigns without notice, the employer may continue with
disciplinary action during the notice period, provided that the employer obtains an order declaring that the employee is in breach of
contract and an order of ‘specific performance’ is granted against the employee. For the rest, the court agreed with KPMG. The
court reasoned that once employees resign, they cease to be employees from the moment the resignation takes effect. A
resignation on notice takes effect on expiry of the notice period; a resignation without notice takes effect immediately, although
the employer is entitled to hold the employee to the contract or to accept the repudiation and sue for damages. Standard Bank
could therefore have approached the court for an order of specific performance but had not done so. The court held that the
correct view is that after an employee resigns without notice, the employer loses its disciplinary authority unless it first approached
the court for an order of specific performance. The bank was effectively trying to retain control over the employees after their
resignations, which it could not do without an appropriate court order. The bank was found to have no authority to discipline the
employees after their resignations and was restrained from proceeding with disciplinary action against them.
In Mthimkhulu v Standard Bank of SA, 60 the Labour Court disagreed with Naidoo and held that the employer’s mere refusal to
accept a ‘summary resignation’ is sufficient to hold the contract to the notice period.
4th Ed, 2022, ch 3-p 31
In Standard Bank of SA v Chiloane, 61 another case involving the legal effect of a resignation ‘with immediate effect’, the LAC
resolved all these issues and more. The court noted that the obligation to give periods of notice before resignation arises from both
contracts of employment and the BCEA. Ms Chiloane’s contract provided for four weeks’ notice from either side. Unless the parties
agreed otherwise, the contractual notice period or that prescribed by the BCEA was binding. The court described as ‘misconceived’
the idea that resignation is a valid unilateral act that comes into effect on a date chosen by the employee. Judgments like
Lottering v Stellenbosch Municipality, 62 and those that followed it, were clearly wrong. Where a resignation breaches a
contractual term or the BCEA, the terms of the contract or the statute remain valid and binding until the required notice period
expires, unless the other party elects not to act on it. Chiloane’s claim that her resignation was with ‘immediate effect’ was of no
consequence because it did not comply with her contract. The bank was entitled to proceed with the disciplinary period during the
required notice period.
A similar situation arose in the High Court in Nogoduka v Minister of the Department of Higher Education & Training. 63 After
being served with a notice to attend a disciplinary hearing, Mr Nogoduka resigned ‘with immediate effect’. After the hearing
proceeded in his absence and he was dismissed, Nogoduka claimed that the tribunal had no authority to dismiss him because he
was no longer in the employer’s employment when the decision to dismiss him was taken. The court noted that the Public Service
Act (Proc 103 of 1994) expressly prohibits executive authorities from accepting notice shorter than is required from employees
charged with misconduct. It followed that Nogoduka was still in employment when the decision to terminate his employment was
taken, and that this amounted to an unlawful dismissal.
However, once the notice period that the employee was required to give when he resigned had expired, the employer’s purported
acceptance of the withdrawal of the resignation was treated as a nullity because he was required to apply for the position in
accordance with the normal recruitment and selection procedures in the local government sector. 64
55 Du Toit v Sasko (1999) 20 ILJ 1253 (LC ).

56 (2016) 37 ILJ 313 (C C ).
57 (2017) 38 ILJ 1362 (LC ).
58 (2018) 39 ILJ 2529 (LC ).
59 (2019) 40 ILJ 2589 (LC ).
60 (2021) 42 ILJ 158 (LC ).
61 (2021) 42 ILJ 863 (LAC ).
62 (2010) 31 ILJ 2923 (LC ).
63 [2017] 6 BLLR 634 (EC G).
64 Monareng v Dr JS Moroka Municipality (2022) 43 ILJ 1855 (LC ).

Under the common law, once employees have been lawfully dismissed, they have no remedy against their employer except,
perhaps, for monies owing under the contract. The statutory law of dismissal distinguishes between dismissals that are lawful and
those that are unfair, and gives employees remedies even if they have been ‘lawfully’ dismissed. But the LRA goes further: the Act
provides remedies even for employees whose dismissals were both lawful and fair if the employer subsequently fails to reinstate or
re-employ a dismissed employee in terms of an agreement or if the employer later offers to re-employ one or more of the dismissed
employee’s former colleagues who were dismissed for the same or similar reasons. 65 This provision is discussed in Chapter 4.
The courts have also applied a so-called extended employment relationship in other contexts. In Transport Fleet Maintenance v
NUMSA, 66 the respondent
4th Ed, 2022, ch 3-p 32
employees were dismissed by a firm called TFM (Cape). A CCMA commissioner reinstated them, but without retrospective effect. 67
At the time he issued the award, the commissioner was unaware that Transport Fleet Maintenance had taken over the business of
TFM (Cape) as a going concern. Had the employees been employed by TFM (Cape) at the time of the dismissal, they would have
been transferred automatically to Transport Fleet Maintenance. But when the transfer occurred, they had already been dismissed.
When they reported for duty at their former workplace, they were told that the business had changed hands and that their former
employer no longer existed. The LAC ultimately held that, although strictly speaking the original s 197 (repealed in 2002) applied
only to employees actually employed by the transferring employer at the time of the transfer, the notion of an ‘extended
employment relationship’ applies with equal force under the current LRA. The reference to ‘employee’ in the current s 197 can
therefore be interpreted to include people who have been dismissed but are pursuing legal actions against their former
employers. 68 If employees have already obtained orders in their favour at the time of the transfer, the orders are enforceable
against the new employer. 69
65 Section 186(1)(d).
66 (2004) 25 ILJ 104 (LAC ).
67 See NUMSA obo Members and TFM Cape (1999) 20 ILJ 3030 (C C MA).
68 Section 197 is discussed in C hapter 19.
69 Section 197(5)(b)(i).

No contract of employment lasts forever; contracts of employment end either with the death of the employee or when the
employee reaches the age of retirement. If the employee is contractually obliged to retire at a specified age, the termination of the
contract does not constitute a dismissal. However, if no retirement age is specified and the employer compels the employee to
retire, a dismissal occurs. So, too, may a dismissal occur if an employee is permitted to work beyond an agreed retirement age, and
is forced to retire later. The LRA recognises that persons forced to retire are dismissed: the Act merely states that a dismissal
based on age is not unfair if the employee has reached the normal or agreed retirement age. 70
70 Section 187(2)(b), discussed in C hapter 7.

To be dismissed within the statutory meaning of that term, employees must fall within the scope of the LRA. Those specifically
excluded cannot claim relief under that Act. These include members of the South African National Defence Force (SANDF) and
National Intelligence Agency. 71 The courts have also held that judges, magistrates and members of statutory boards are not
employees within the meaning of the statutory definition. 72 If the employment of such officials is terminated, they must seek relief
in the civil courts on constitutional, administrative law or contractual grounds.

72 See Khanyile v CCMA (2004) 25 ILJ 2348 (LC ) (magistrates); Hannah v Government of the Republic of Namibia 2000 (4) SA 940 (NmLC )
(judges); Miskey v Maritz NO (2007) 28 ILJ 661 (LC ) (members of statutory boards).

4th Ed, 2022, ch 3-p 33
South African labour legislation applies only within the borders of the Republic. Employees employed abroad by foreign companies
cannot claim relief for unfair dismissal against their employers under the LRA. 73 But foreign companies operating in South Africa are
governed by South African labour legislation. The question in such cases is whether the employer is based in South Africa and the
foreign branch at which the employee worked is an independent operation.
The LAC has warned against placing form over substance when approaching this issue. In Robineau v Schenker SA, 74 the court
had to decide whether Ms Robineau, a French citizen, who was dismissed from her post as general manager (GM) of Schenker SA’s
branch in Mozambique, could have her unfair dismissal claim arbitrated by the CCMA. The court found that Schenker’s Mozambican
operation could not be separated from its South African parent company. The Mozambique office did not have its own legal
personality and was part of the South African undertaking. Robineau was therefore an employee of the South African undertaking,
which fell under the CCMA’s jurisdiction.
However, where a dismissed employee is assigned to an independent subsidiary based in a foreign country, the position changes.
This is apparent from Astral Operations v Parry. 75 Mr Parry had claimed relief for unfair dismissal under the LRA, and for breach of
contract. The LAC held that the starting point is to apply the law of the country in which the employee worked. This could not be
the LRA or BCEA, because neither Act had extraterritorial application. Apart from the fact that Parry worked for an independent
subsidiary, this judgment would be difficult to reconcile with Schenker.
73 Pearson v Sheerbonnet SA (1999) 20 ILJ 1580 (LC ).

74 (2020) 41 ILJ 1648 (LAC ).
75 (2008) 29 ILJ 2668 (LAC ).
17. Directors
‘Ordinary’ directors of companies who sit on boards merely to advise companies and to discharge only the duties imposed on them
by the Companies Act 71 of 2008, and members of entities established in terms of the Close Corporations Act 69 of 1984 are not
‘employees’ as contemplated by the statutory definitions. Their removal from boards or expulsion as members therefore does not
constitute dismissal justiciable under the LRA, unless they are also employed by the company in executive or other capacities.
Company directors and members of close corporations may also perform day-to-day duties for the company or close corporation
in return for salaries. Their status as directors or members does not then exclude them from the statutory definition of ‘employee’.
Even though a managing director (MD) was appointed by shareholders, their decision to terminate his appointment still constitutes
a dismissal. 76 The termination of a director’s position as such constitutes a dismissal if the consequence
4th Ed, 2022, ch 3-p 34
of that termination is to deprive the director of his or her employment in the same company. 77 An MD of a subsidiary in a group of
companies is deemed employed by the holding company, but not by other subsidiaries in the group. 78
76 See PG Group v Mbambo NO (2004) 25 ILJ 2366 (LC ); SAPO v Mampeule (2009) 30 ILJ 664 (LC ) (confirmed on appeal: SAPO v
Mampeule (2010) 31 ILJ 2051 (LAC )); Chillibush Communications v Johnston NO (2010) 31 ILJ 1358 (LC ); Protect a Partner v Machaba-Abiodun (2013)
34 ILJ 392 (LC ).
77 PG Group v Mbambo NO supra; Amazwi Power Products v Turnbull (2008) 29 ILJ 2554 (LAC ); SAPO v Mampeule (2009) 30 ILJ 664 (LC )
(confirmed on appeal (SAPO v Mampeule (2010) 31 ILJ 2051 (LAC )); Chillibush Communications v Johnston NO (2010) 31 ILJ 1358 (LC ); Wienand v
Pharmanatura (2013) 34 ILJ 1012 (LC ). See also Hydraulic Engineering Repair Services v Ntshona (2008) 29 ILJ 163 (LC ).
78 Kruger v Jigsaw Holdings (2006) 27 ILJ 1161 (LC ).

The formation of ‘worker’ or ‘service’ co-operatives is made possible by the Co-operatives Act 14 of 2005. A co-operative is
intended to provide a vehicle for pooling the labour of its members and for the management of contracts to persons who utilise
services managed by the co-operative. While members of co-operatives were deemed employees under the earlier Co-operatives
Act, 79 they are now expressly excluded from the operation of the labour statutes. 80 Members of co-operatives who are expelled
must therefore seek relief in the High Court by means of applications for judicial review.
79 Act 91 of 1981. See Nonzamo Cleaning Services Co-operative v Appie (2008) 29 ILJ 2168 (E) and NBCCMI (KZN Chamber) v Glamour Fashions
Worker Primary Co-operative (2018) 39 ILJ 1737 (LAC ).
80 See Schedule 1 to the C o-operatives Act 14 of 2005, item 6(1).

There is a difference between employment the performance of which is unlawful, and contracts that entail the performance of
lawful work but which are invalid for want of compliance with some statute. Under the common law, a contract concluded for an
unlawful purpose will not be enforced by the courts. Under the LRA, this is not necessarily the case. In ‘Kylie’ v CCMA, 81 a case
involving a claim for unfair dismissal by a self-confessed ‘sex worker’, the LAC held that ‘Kylie’ could be dismissed, but that she
could not claim relief under the Act.
Situations in which the particular employee is prohibited by law from performing work which is otherwise lawful may include
immigrants without work permits or employees who lack statutory qualifications to perform certain work. The validity of the
dismissals of such employees must also now be interpreted in the light of the Constitution. The point arose in Discovery Health v
CCMA, 82 in which the employer had terminated the contract of a foreigner when it learned that he did not have a work permit. The
court held that the contract should be regarded as lawful and noted that, in any case, a valid contract was not required as the
statutory definition of employee does not necessarily assume the existence of a valid contract. 83
81 ‘Kylie’ v CCMA (2010) 31 ILJ 1600 (LAC ).

82 (2008) 29 ILJ 1480 (LC ).
83 It goes without saying that to justify the dismissal of a foreign national, the employer must prove that the employee was in fact an illegal
immigrant: see Dunwell Property Services v Sibande (2011) 32 ILJ 2652 (LAC ). A ‘reasonable suspicion’ that he had not obtained a work permit is not
enough. See also Ndikumdavy v Valkenberg Hospital (2012) 33 ILJ 2648 (LC ).

4th Ed, 2022, ch 3-p 35
If a company is liquidated, their employees’ contracts terminate automatically, and they become preferred creditors of the insolvent
company. 84 However, if a company seeks voluntary sequestration, the consequent termination of its employment contracts
constitutes dismissals. 85 Once a company has been deregistered it has no legal existence and cannot therefore dismiss
employees. 86
84 SAAPAWU v H Hall & Sons (Group Services) (1999) 20 ILJ 399 (LC ); Ndima v Waverley Blankets (1999) 20 ILJ 1563 (LC ).
85 NULAW v Barnard NO (2001) 22 ILJ 2290 (LAC ). See also Van Zyl NO v CCMA (2012) 33 ILJ 2471 (LC ).
86 Joseph v Killarney Engineering (2021) 42 ILJ 1492 (LC ).
Dismissal / Chapter 4 Was there a dismissal?
Chapter 4
Was there a dismissal?
4th Ed, 2022, ch 4-p 36
1. Introduction
3.2 Desertion
3.5 Retirement
3.6 Directors
4.2 Novation
4.3 Section 186(1)(b)
4.6 Section 198B
10.2 Insolvency
4th Ed, 2022, ch 4-p 37
1. Introduction
The LRA stipulates that in proceedings concerning dismissals, the employee must ‘establish the existence of the dismissal’. 1 This
means that, if that issue is in dispute, the onus rests on the employee to prove that a dismissal actually occurred. In many
dismissal disputes, the employer challenges the jurisdiction of the forum entertaining the matter on the basis that the employee has
not in fact been dismissed.
This is because, in dismissal matters, the ‘existence’ of a dismissal is considered a jurisdictional precondition to conciliation or
arbitration in the CCMA and bargaining councils, or adjudication in the Labour Court. All these forums are obliged to determine
whether a dismissal indeed occurred before assuming jurisdiction under the LRA.
Whether a dismissal occurred is a question of fact and law, or both. In the civil courts, a ‘dismissal’ is accepted as having
occurred if a contract of employment has been repudiated. In labour forums, the existence of a dismissal is established by
determining whether the act concerned fell within the terms of one or other of the provisions of the statutory definition of
‘dismissal’. 2
1 Section 192(1) of the LRA. The full statutory definition of ‘dismissal’ appears at the start of C hapter 2.
2 The provisions governing the procedures for dismissal disputes are premised on the assumption that the employee has been dismissed: see s
191. However, it is arguable that the ‘existence’ of a dismissal is not a true jurisdictional fact. If an employee’s contract is terminated, these bodies have
jurisdiction to determine whether the termination indeed constituted a dismissal. Only then is the presence or absence of the jurisdictional precondition
determined.

Under common law, the term ‘dismissal’ does not exist. The termination of an employment contract is treated the same as the
termination of any other form of contract: it is either lawful or unlawful. The notion of ‘dismissal’ was introduced as a form of unfair
labour practice under the 1956 LRA, and in the current Act it is defined in detail. Employers may no longer simply rely on the terms
of the contract to justify a dismissal, for example, by only relying on the right to terminate on notice or for some reason set out in
the contract – they must still prove that the
4th Ed, 2022, ch 4-p 38
dismissal was fair. 3 This chapter discusses the various forms of dismissal provided for in the definition, as well as those falling
outside its scope.
3 See, for example, Chubisi v SABC (2021) 42 ILJ 395 (LC ), in which the court rejected out of hand the SABC ’s attempt to rely on the claim that Ms
C hubisi’s contract was no longer ‘recognised’. See also SABC v Phasha (2021) 42 ILJ 816 (LAC ).

Section 186(1)(a) defines the first form of dismissal as the termination by an employer of employment with or without notice. This
is the only form of dismissal recognised by the common law. Dismissal on notice is always regarded as a ‘lawful’ termination,
provided that the notice given was that provided for in the contract. Dismissal without notice, otherwise known as summary
dismissal, is permitted only if the employee had breached the contract; otherwise, a summary termination constituted a breach by
the employer, giving rise to an action by the employee for the wages that would have been payable had the required notice been
given. In labour law, the significance of the phrase ‘with or without notice’ is that both forms of termination must meet the
requirements of the LRA – employers may no longer claim that they were lawfully entitled to terminate the contract by giving
notice: the dismissal must also satisfy the requirements of fairness.
To fall within the reach of s 186(1)(a), the contract must be terminated by the employer. Whether the person claiming to have
been dismissed was an employee as defined in the LRA is discussed in Chapter 3. Situations in which those who qualify as
employees were dismissed in terms of that provision are discussed below.
Disputes frequently arise over whether employees resigned or whether they were dismissed. CSIR v Fijen was one such case. 4 Mr
Fijen wished to leave the CSIR and requested to be released on payment of a severance package. Negotiations turned acrimonious
and Fijen ultimately informed his superior that the working relationship had ‘finished’ and that he no longer wished to continue in the
services of the CSIR. The CSIR then purported to accept Fijen’s alleged ‘resignation’. Both the LAC, 5 and the Appellate Division of
the former Supreme Court, held that the employment relationship had in fact been terminated by the CSIR, and not by Fijen. The
LAC noted that Fijen could be held to have resigned only if he evinced ‘a clear and unambiguous intention not to go on with his
contract of employment’ by words or conduct which would lead a reasonable person to conclude that he harboured such an
intention. 6 Since his alleged resignation did not evince a clear and unambiguous intention to terminate the contract there had
been no repudiation for the CSIR to
4th Ed, 2022, ch 4-p 39
accept, and the CSIR had therefore terminated the contract, ie dismissed Fijen. The Appellate Division agreed. 7
Maada v MEC of the Northern Province for Finance & Expenditure provides another example. 8 Mr Maada accepted his employer’s
invitation to apply for a voluntary severance package (VSP). When he discovered that the package would be far less than he had
expected, he asked the employer if he could withdraw the application. The Member of the Executive Council (MEC) refused, and
Maada’s employment came to an end. The LAC held that Maada had been dismissed – the employer’s invitation to employees to
apply for severance packages was just that: an invitation, as opposed to an offer. By accepting the invitation, Mr Maada had made
the offer, which was subject to the employer’s acceptance. That being the case, the general principle that an offer may be
withdrawn before acceptance applied. Maada’s offer was not a resignation, and was therefore not subject to the general rule that
notices of resignation cannot be revoked once made.
Fijen and Maada suggest that employees may be deemed to have resigned (ie to have terminated the contract themselves) only
if the employees perform some act which unambiguously informs their employers that they intend abandoning their employment, and
when they intend to do so. Words uttered during negotiations about conditions of departure do not in themselves constitute a
resignation because the setting of conditions necessarily renders the notice of intention conditional. In circumstances such as
those in Fijen, therefore, the employer terminates the contract by accepting the employee’s alleged repudiation. Acceptance
constitutes an election by the employer to accept the alleged repudiation rather than to continue with the contract. By exercising
that choice, the employer brings the contract to an end – ie it dismisses the employee. 9
The converse also applies: where an employee is required to prove ‘some overt act by the employer that is the proximate cause
of the termination of employment’. 10 Where the employee has tendered notice of resignation, the employer’s acceptance does not
constitute a dismissal because the contract terminates by consent. 11 The mere fact that employees refuse to confirm their oral
tender of resignation in writing does not alter this principle. 12 Once employees have resigned and their notice period has expired, it
goes without saying that they cannot be dismissed. 13
These principles are nicely illustrated by Sihlali v SABC. 14 When Mr Sihlali was suspended pending disciplinary action, he
immediately sent an SMS to the CEO stating: ‘I quit with immediate effect’. About six weeks later, Sihlali had second thoughts, and
decided to defend the charges against him. He told the CEO that he
4th Ed, 2022, ch 4-p 40
considered himself still in the SABC’s employ. But by then the horse had bolted; the CEO had already written a letter accepting
Sihlali’s resignation, which had not yet been posted. The CEO refused to accept Sihlali’s attempt to withdraw his resignation. Sihlali
sued for the equivalent of the salary he would have earned during the remainder of his contract. After he testified, the SABC
applied for absolution from the instance, which was granted. Where the facts point overwhelmingly to a voluntary resignation, the
employee cannot claim to have been dismissed.
Employees may resign by way of conduct or orally without submitting a written resignation. 15 The employee’s conduct is what
matters. In 21st Century Life v Nombewu, 16 however, the court found that an employee who had intimated that she might start
her own business if she was retrenched had not resigned. So, too, when an employee had merely indicated that he intended to
resign at some future stage but that he would give notice only when he found another job. The employer’s purported acceptance
of the employee’s alleged resignation constituted a dismissal. A financial director gave notice of her intention to resign from the
board, but said she was still willing to ‘give 100% as an employee’ and the employer accepted her resignation as both an employee
and a board member, the termination of the relationship was also held to constitute a dismissal. 17 On the other hand, that the
employee signed a letter of resignation is not necessarily conclusive: it may be that the employee did so in ignorance or to obtain
money to which he was entitled. 18 a resignation becomes binding when it comes to the employer’s attention, not when the
employer accepts it. 19
However, the courts have been prepared to accept that, in certain circumstances, even when the employee has communicated
a clear intention to resign, acceptance of that resignation constitutes a dismissal if the employee subsequently changes his or her
mind and asks to withdraw the resignation. CEPPWAWU v Glass & Aluminium 2000 is a case in point. 20 The court noted that there
was some doubt as to whether the employee had resigned during an altercation with the employer’s wife. But the court found that,
even if the employee had resigned, he had clearly done so ‘in the heat of the moment’. His change of mind the next day indicated
that his resignation had been ill-considered. Glass & Aluminium seems to ignore the general rule that a resignation is a unilateral act
which cannot be revoked. 21 But the judgment makes it clear that an employee may withdraw a resignation if the resignation was
tendered without full knowledge of the implications, or in circumstances where the employer knew or should have known that the
resignation should not have been taken seriously. In such circumstances, the act of ‘seizing on the employee’s words’ constitutes a
dismissal. 22
4th Ed, 2022, ch 4-p 41
In Glass & Aluminium the issue became somewhat confused when the court found that the resignation had been a consequence
of the ‘unbearable’ situation in which the employee had found himself, and thus constituted a constructive dismissal. A constructive
dismissal, discussed below, occurs only if the employee terminated the contract. An employee cannot possibly be dismissed in the
sense contemplated by s 186(1)(a) and also be constructively dismissed in the sense used in s 186(1)(e). 23
Once the employer has accepted an employee’s unambiguous notice of resignation, the employee may not revoke the notice
unless the employer agrees. Holding the employee to the notice does not therefore mean that employee is dismissed at the end of
the notice period. 24 However, a consenting minority of the Constitutional Court has ruled that this principle may have been
overtaken by the Bill of Rights. Three justices could not see why an employer should be able to rely on the fact that the employee
has resigned after refusing the employee’s tender of resignation, proceeding with a disciplinary inquiry, and unfairly dismissing the
employee. The justices suggested that employers should be able to rely on the employee’s resignation in these circumstances only
if the resignation is expressly accepted, where the employer can show that it would be prejudiced if the employee were not bound
by the resignation or where it would be unfair to the employer.
If the employee resigns unlawfully by not giving the required notice, all the employer can do is seek an order compelling the
employee to abide by the contract, or sue under the BCEA for compensation equivalent to the loss it is able to prove. 25
Employers ‘terminate’ employment contracts by performing acts which signify that they no longer regard themselves bound by
the contract, or that they will be freed from the contract after a specified time. The act concerned may be formal, ie an express
statement that the contract has terminated or that it will terminate at some specified time. The BCEA requires that notice of
termination of an employment contract must be in writing, unless the employee is illiterate. 26 This does not mean that oral
termination of a contract will not be recognised as a dismissal. Any action which implies that the employer regards the contract as
over – even the classic expletive by which employers have been known to order employees off the workplace – constitutes a
termination for purposes of the section, provided that it can be inferred that the employer’s intention was to bring the contract to
an end.
The proviso that a party must have intended to terminate the employment relationship cuts both ways. An employer may tell an
employee to ‘go home’ without intending to end the contract permanently. Communication of this kind will not constitute a dismissal
unless the employee concerned can prove that he or she reasonably understood the words to signify an intention on the part of
the
4th Ed, 2022, ch 4-p 42
employer to terminate the contract, and that this subjective belief was reasonable. For example, an employee who fled from the
workplace after pouring boiling water over his supervisor failed to prove that he had been dismissed even if, quite understandably,
the employer did not wish to see the employee again. 27 However, once an employer has terminated the contract, it cannot revoke
its termination and claim that the employee was not dismissed because the employee declined to return to work. 28
A consensual termination does not constitute a dismissal under the LRA, or in any other sense. 29 If the employer claims that
the termination was consensual, the onus rests on it to prove the existence and terms of the agreement on which that claim is
based. 30 Whether a termination is consensual may be inferred from the facts. For example, an employee’s acceptance of
severance pay has been regarded as proof of a mutually agreed termination. 31 But where an employee is induced to accept
severance pay by deception, or is ‘tricked’ into resigning, a dismissal may still be held to have occurred. 32
In one case the Labour Court held that the dismissal of an employee after his summary resignation, albeit held in the period in
which notice should have been served, was null and void because the employer no longer had jurisdiction to dismiss the former
employee. 33 However, this judgment was impliedly overruled by the LAC after much debate on this issue. 34 Where an employee
resigns without giving notice, the contract terminates (and the dismissal occurs) at the end of the period of notice the employee
should have given.
3.2 Desertion
Employees who permanently abandon their employment are in much the same position as those who resign – by deserting, they
repudiate their contracts and bring them to an end. But there are significant differences between desertion and resignation.
Repudiation by an employee occurs only when the employee forms the intention of abandoning their work permanently; before that,
the employee is simply absent from work, and the employer must treat the unauthorised absence as a form of misconduct. 35
4th Ed, 2022, ch 4-p 43
Unless a statute or, possibly, a disciplinary code, provides that an employee who is AWOL for more than a specified period is
‘deemed’ dismissed, 36 the employer may not simply treat the contract as terminated if the employee does not report for duty.
The courts and arbitrators generally apply this principle in matters involving alleged desertion, holding that the employer’s
acceptance of the repudiation constitutes a dismissal, because it is the employer’s act that terminates the contract. In some
cases, this proposition may be too widely stated. It may well be that the employer must sue for specific performance even if the
employee has firmly resolved to abandon his or her post. But it does not seem to follow that in such cases the employer can be
said to have terminated the contract. If the employer were successfully to sue for specific performance, such an order would
compel the employee to resume work, so reviving the contract. But if the employer does not sue for specific performance and
simply accepts the employee’s repudiation, it seems somewhat artificial to say that the employer has terminated the contract. The
critical issue is whether the employee has formed the intention not to resume work. Where that intention has been formed, the
courts recognise that a dismissal will not have occurred. 37 a contract cannot be said to have terminated in consequence of the
employee’s repudiation until the employee irrevocably decides never to return to work. Where that intention cannot be proved, the
employer will not be able to rely on the employee’s absence to support a denial that the termination does not constitute a
dismissal. 38
The giving of notice by an employer does not in itself amount to a dismissal, because that act does not terminate the contract.
The contract terminates only when the period of notice ends. This means that the parties remain bound by the contract until its
formal expiry. If employees abandon their employment during the notice period, then, theoretically, it is they who terminate the
contract.
Notice, once given, cannot be unilaterally revoked by either the employer or the employee. Before the 2002 amendments to the
LRA, employees who felt they had been unfairly dismissed were required to wait until their notice expired before commencing action.
If the employer changed its mind during the notice period, it could at most offer to rescind the notice of termination in the hope
that the offer would induce the court to deny the employee compensation. Now employees are permitted to refer disputes for
conciliation before the notice period expires. 39
4th Ed, 2022, ch 4-p 44

In terms of the BCEA and the common law, employers are entitled to terminate contracts of employment without notice (ie
summarily) if there is lawful cause for such action. ‘Lawful cause’ is established if the employee has breached a fundamental term or
repudiated the contract. 40
Employers that are party to fixed-term contracts are not ordinarily required to give notice of their intention not to renew the
contract. But because the non-renewal of fixed-term contracts can constitute dismissal (see below), it is advisable to give notice.
3.5 Retirement
It is generally accepted that employees compelled to retire when they reach the agreed or normal retirement age are not dismissed
for reasons much the same as the reason why an employee is not dismissed on the expiry of a fixed-term contract: the parties
have agreed that the contract will expire on a determinable date, and it does so on the arrival of that date by operation of law.
Section 187(2)(b) provides that the dismissal of an employee who is compelled to retire on the agreed or normal retirement age
for employees of that category is not unfair. This suggests that, contrary to some decisions of the Labour Court, 41 termination of
employment in such circumstances does indeed constitute a dismissal. Section 187(2)(b) does not state that an employee who is
compelled to retire on reaching retirement age is not dismissed; it says that if such an employee challenges the fairness of his or
her dismissal, the dismissal cannot be ruled unfair.
3.6 Directors
The requirements of s 186(1)(a) apply also to situations where executive directors are dismissed by a vote of shareholders. So, in
PG Group v Mbambo NO, 42 the company sought to rely on its articles of association, which provided that the offices of directors
would terminate if they were required to resign by a resolution signed by a majority of shareholders, and that the appointment of
any executive director ceased when that director resigned. The company argued that the financial director had not been dismissed.
However, the court noted that a company operates through its various organs. In terms of the Companies Act members may by
special resolution remove directors from office. However, such a resolution is an act of the company. PG Group, not its
shareholders, was accordingly deemed to have taken the decision to terminate the financial director’s services. This constituted a
dismissal.
SAPO v Mampeule is to the same effect. 43 In that judgment the court added that contractual provisions which render
continuing employment contingent on the acts of third parties are impermissible because they conflict with the Code of
4th Ed, 2022, ch 4-p 45
Good Practice: Dismissal and the constitutional right to fair labour practices. 44 On appeal, 45 the LAC found it trite that the act of
a company’s board is deemed an act of the company. A person employed simultaneously as an executive director and a board
member holds two distinct positions. By acknowledging in the employment contract that the CEO could be dismissed for incapacity,
misconduct or operational requirements, SAPO had itself recognised that the CEO enjoyed the full range of employee rights,
including the right not to be unfairly dismissed. That provision superseded the ‘automatic termination’ clause in the contract. The
court added that, in any case, parties cannot contract out of the rights afforded by the Constitution and the LRA. In the absence
of a satisfactory explanation for why SAPO had suspended Mampeule from his position as CEO and relied on the ‘automatic
termination’ provision, the unavoidable inference was that the company was merely trying to evade its obligations under the LRA. In
the light of this finding, it was unnecessary to decide on the constitutional validity of the automatic termination clause in other
cases where employees are dismissed at the request of third parties; 46 the termination constitutes a dismissal, even if the
employer had no option but to acquiesce to the third party’s wish.
This is typically the situation in which service providers or labour brokers find themselves when their clients insist that an employee
be removed from their service. In some such cases, the broker or service provider may be able to rely on a clause of the contract
providing for ‘automatic termination’ where the client no longer requires the employee’s services. But unless there is such a
provision, the dismissal in such circumstances is effected by the broker or service provider, not by the client, provided that the
labour broking relationship is a genuine one. 47 Where, however, a labour broker’s employee’s services are terminated at the
instance of either the client or the broker to evade the provisions of s 198A, by which the broker’s client is deemed an employee of
the client after three months, the termination will constitute a dismissal for which either the client or the broker,
4th Ed, 2022, ch 4-p 46
or both, may be held liable. 48 In NULAW v Barnard NO, 49 the LAC held that the voluntary winding-up of a company results in a
dismissal within the meaning of s 186(1)(a) because it leads directly to the termination of contracts of employment without
notice. 50
A further problem arising from the proviso that to effect a dismissal the employer must intend to terminate the contract occurs in
the contexts of ‘lock-out dismissals’, ie dismissals prohibited by s 187(1)(c) of LRA. 51 That provision renders automatically unfair
dismissals effected ‘to compel an employee to accept a demand in respect of any matter of mutual interest between the employer
and the employee’.
The courts have held that an employee is dismissed in terms of s 187(1)(c) only if the dismissal is ‘final and irrevocable’. 52 This
means that to fall within the scope of s 187(1)(c), the dismissal must be conditional, ie the employer must intend to reinstate the
dismissed employees if they accept the employer’s demand. Such a ‘dismissal’ occurred in CWIU v Algorax, 53 in which the employer
repeatedly offered to reinstate the employees if they accepted a change to the existing shift system.
In Fry’s Metals, 54 the LAC acknowledged that the ‘conditional’ dismissals envisaged by s 187(1)(a) do not easily fit into the
definition of dismissal in s 186(1)(a). The difference between a dismissal as defined in s 186(1)(a), and a dismissal contemplated by
s 187(1)(c), said the court, is that the latter must be effected to get rid of workers who refuse to accept a demand. According to
the court, this purpose makes a s 187(1)(c) dismissal a ‘special kind of dismissal’.
This reasoning is debatable. At the time, s 186(1)(a) provided that a dismissal occurred when an employer had ‘terminated
contract of employment’. The words ‘contract of’ have now been excised from s 186(1)(a). But the word ‘terminate’ means to ‘bring
to an end, put an end to, cause to cease, finish, end’. According to Algorax, a dismissal contemplated by s 187(1)(c) is ‘subject to
withdrawal upon the employee accepting the employer’s demand’. If this is so, such a dismissal, strictly
4th Ed, 2022, ch 4-p 47
speaking, merely suspends employment for an unspecified period, subject to the employee accepting the new conditions. The only
basis on which a ‘dismissal’ of this kind can be reconciled with the definition of ‘dismissal’ in s 186(1)(a) is to substitute for the
phrase ‘contract of employment’ the words ‘employment relationship’. In that sense, perhaps, it can be argued that the conditional
dismissal envisaged by s 187(1)(c) terminates the contract but preserves a relationship which entitles the employee to accept the
employer’s demand. This interpretation would be consistent with the current definition in s 186(1)(a) and also with the approach
adopted in the earlier case of Borg-Warner SA v NAAWU (now known as NUMSA), 55 in which it was held that in certain
circumstances a justiciable employment relationship may outlast the contract of employment. But even so this does not fit easily
under the new statutory definition of ‘dismissal’. 56
4 (1996) 17 ILJ 18 (A).

5 Fijen v CSIR (1994) 15 ILJ 759 (LAC ).
6 At 772C –D, citing Tuckers Land and Development Corporation v Hovis 1980 (1) SA 645 (A).
7 At 25D. The LAC adopted much the same approach in Le Monde Luggage t/a Pakwells Petje v Dunn NO (2007) 28 ILJ 2238 (LAC ), in which it was
held that a fax written by the employee’s mother informing the employer that the employee had resigned was enough to constitute a letter of resignation
because the letter communicated the employee’s intention in unequivocal terms.
8 (2003) 24 ILJ 937 (LAC ).
9 See also April and Workforce Group Holdings t/a The Workforce Group (2005) 26 ILJ 2224 (C C MA).
10 Ouwehand v Hout Bay Fishing Industries (2004) 25 ILJ 731 (LC ).
11 See, for example, De Villiers v Premier, Eastern Cape Provincial Government (2012) 33 ILJ 382 (LC ).
12 See, for example, Samuels and B & G Displays (2005) 26 ILJ 1145 (BC A).
13 Moila v Shai NO (2007) 28 ILJ 1028 (LAC ).
14 (2010) 31 ILJ 1477 (LC ).
15 Mnguti v CCMA (2015) 36 ILJ 3111 (LC ).
16 (2019) 40 ILJ 1493 (LAC ).
17 Amazwi Power Products v Turnbull (2008) 29 ILJ 2554 (LAC ).
18 See, for example, Maila and Dynamic Marketing Corporation (2009) 30 ILJ 1176 (C C MA).
19 See Sihlali v SABC (2010) 31 ILJ 1477 (LC ).
20 (2002) 23 ILJ 695 (LAC ).
21 Rustenburg Town Council v Minister of Labour 1942 TPD 220; Maada v MEC of the Northern Province for Finance & Expenditure (2003) 24 ILJ
937 (LAC ).
22 Southern v Franks Charlesly and Co [1981] IRLR 278.
23 See NUMSA obo Williams and Southern Wind Shipyard (2003) 24 ILJ 1454 (BC A), where the arbitrator accepted that failure to allow an
employee to retract a resignation may be deemed a constructive dismissal. This is correct, because in such cases the employee had in fact resigned.
24 Esack NO v CGE (2000) 21 ILJ 467 (W); ANC v Municipal Manager: George Local Municipality (2010) 31 ILJ 69 (SC A).
25 NEWU v CCMA (2003) 24 ILJ 2335 (LC ). In this case, the court left open the question whether employers can invoke the wider constitutional
right to unfair labour practice against employees.
26 This would amount to an offer of reinstatement which, if unreasonably refused by the employee, could deprive him or her of his right to relief.
27 NUMSA v CCMA [2002] 7 BLLR 632 (LC ).
28 In terms of s 191(2A) of the LRA, employees may now refer disputes concerning unfair labour practices for conciliation during the period of
notice. This will not, however, affect compensation as the notice period will inevitably have expired before the dispute is arbitrated or adjudicated.
29 United Tobacco Co v Baudach (1997) 18 ILJ 506 (LAC ); Chiloane v Rema Tip Top Industrial [2002] 11 BLLR 1066 (LC ); Ackron v Northern
Province Development Corporation (1998) 3 LLD 403 (LC ); [1998] 9 BLLR 916 (LC ); Kynoch Feeds v CCMA (1998) 19 ILJ 836 (LC ).
30 Springbok Trading v Zondani (2004) 25 ILJ 1681 (LAC ); Manhattan Motors Trust v Abdulla (2002) 23 ILJ 1544 (LAC ). The employer succeeded in
doing so in Moila v Shai NO (2007) 28 ILJ 1028 (LAC ).
31 NUMSA obo Members and Bevcan (2006) 27 ILJ 414 (BC A).
32 Maritz v Calibre Clinical Consultants (2010) 31 ILJ 1436 (LC ).
33 Mtati v KPMG Services (2017) 38 ILJ 1362 (LC ).
34 See Standard Bank of SA v Chiloane (2021) 42 ILJ 863 (LAC ) and the post-Mtati judgments of Coetzee v Zeitz Mocaa Foundation Trust (2018) 39
ILJ 2529 (LC ); Naidoo v Standard Bank of SA (2019) 40 ILJ 2589 (LC ); Nogoduka v Minister of the Department of Higher Education & Training [2017] 6
BLLR 634 (EC G); Solidarity obo Liebenberg-Botes v Lyttelton Dolomite t/a Afrimat (2020) 41 ILJ 1438 (LC ).
35 See, for example, Khulani Fidelity Services Group v CCMA [2009] 7 BLLR 664 (LC ).
36 See below.
37 See SACWU v Dyasi [2001] 7 BLLR 731 (LAC ) at [20]: ‘If a party to a contract breaches a fundamental term thereof or repudiates it, the other
party can elect to hold the first to the contract, or to cancel it. In the case of desertion by an employee, the choice is not always in fact real: For instance,
when the employee deserts and cannot be traced, the employer has no practical choice other than to accept the repudiation. Where there is no real
choice, it can probably be argued that the employer did not terminate the contract.’ In SATAWU obo Langa v Zebediela Bricks (2011) 32 ILJ 428 (LC ), the
Labour C ourt held that desertion, as opposed to protracted absenteeism, automatically terminates an employment contract, and that the termination
does not constitute a dismissal.
38 On dismissal for absenteeism, see C hapter 9.
39 Section 191(2A).
40 NULAW v Barnard NO (2001) 22 ILJ 2290 (LAC ).
41 See, for example, Schweitzer v Waco Distributors (a Division of Voltex) (1998) 19 ILJ 1573 (LC ). This issue is discussed in C hapter 7.
42 (2004) 25 ILJ 2366 (LC ).
43 (2009) 30 ILJ 664 (LC ).
44 See also Chillibush Communications v Johnston NO (2010) 31 ILJ 1358 (LC ). But see Sindane v Prestige Cleaning Services (2010) 31 ILJ 733
(LC ), in which the court declined to extend this view to fixed-term contracts which the parties have agreed will terminate on the occurrence of a specified
event, in that case, a client no longer requiring the services of a labour broker’s employee.
45 SAPO v Mampeule (2010) 31 ILJ 2051 (LAC ).
46 Discussed in C hapter 21.
47 Which was found not to be the case in Dyokhwe v De Kock NO (2012) 33 ILJ 2401 (LC ), discussed in C hapter 3. See also Colven Associates
Border v MEIBC (2009) 30 ILJ 2406 (LC ), where the court set aside an arbitration award in which the arbitrator examined the circumstances in which the
client formed the conclusion that the employee should leave, without noting that the broker had in fact specifically informed the employee that he had not
been dismissed. The court accordingly ruled that there had been no dismissal.
48 Section 198A(4), which reads: ‘The termination by the temporary employment services of an employee’s service with a client, whether at the
instance of the temporary employment service or the client, for the purpose of avoiding the operation of subsection (3)(b) or because the employee
exercised a right in terms of this Act, is a dismissal.’ Subsection (3)(b) deems the placed employee to be permanently employed by the client after three
months unless certain exceptions apply. For the authoritative judgment on the proper interpretation of s 198A, see Assign Services v NUMSA (Casual
Workers Advice Office as Amicus Curiae) (2018) 39 ILJ 1911 (C C ).
49 (2001) 22 ILJ 2290 (LAC ). On the effects of insolvency on contracts of employment, see further in the present chapter: ‘Insolvency’, a
subheading under ‘Non-statutory terminations’.
50 These considerations are implicit in the judgment that entrenched the doctrine of legitimate expectation in South African law: Administrator of
the Transvaal v Traub (1989) 10 ILJ 823 (A). See also Grogan ‘When is the “expectation” of a hearing “legitimate”?’ (1990) 6 SAJHR 36.
52 Fry’s Metals v NUMSA (2003) 24 ILJ 133 (LAC ). Upheld by the SC A: NUMSA v Fry’s Metals (2005) 26 ILJ 689 (SC A).
53 (2003) 24 ILJ 1917 (LAC ).
54 Supra. Lock-out dismissals are more fully discussed in Grogan Collective Labour Law 3 ed (Juta 2019) C hapter 17.
55 (1991) 12 ILJ 549 (LAC ).
56 As was pointed out in CSAAWU obo Dube v Robertson Abattoir (2017) 38 ILJ 121 (LAC ).

A fixed-term contract of employment is a contract the duration of which is determined in advance by agreement between the
parties. The period for which the contract will remain in force can be determined either by reference to a specific date or by the
occurrence of a specified event, for example, the completion of a project for which the employee’s services were engaged. When
the date arrives or the event occurs, the contract expires in accordance with the intention of the parties.
Termination before that date constitutes a dismissal, which will be unlawful unless the contract permits mid-term termination. 57
Otherwise, the employee may not be dismissed before the contract expires, unless the employee is in material breach. 58 However,
this does not apply to employees whose contracts do not provide for ‘automatic termination’ when some event occurs, 59 or those
employed on fixed-term contracts who after three months become permanent employees in terms of s 198B. If these employees are
subsequently dismissed, the dismissal will fall under s 186(1)(a). 60
4.2 Novation
Where employees on fixed-term contracts work beyond the date on which their contracts otherwise would have terminated, the
subsequent termination of the employment relationship may constitute dismissal in the ‘ordinary’ sense
4th Ed, 2022, ch 4-p 48
contemplated by s 186(1)(a) (see above) – their contracts novate into indefinite period contracts. 61 However, employees claiming
this form of extension must prove that the employer agreed, either expressly or tacitly, to continue employing them indefinitely. 62
The notion that employees on fixed-term contracts may be deemed permanently employed had been given statutory force by s
198B of the LRA, which provides that employees earning below a prescribed threshold are deemed permanently employed after
three months, unless certain exceptions apply. This occurred in NUPSAW v Mfingwana. 63 Mr Mfingwana was employed as an
organiser on a six-month fixed-term contract. When the contract expired it was not renewed, but Mfingwana continued to work for
the union. A few months later the contract was extended for a period by way of an addendum and when that period expired,
Mfingwana was told that it would not be renewed. A CCMA commissioner ruled that Mfingwana had been deemed a permanent
employee and that he had been unfairly dismissed. Mfingwana was reinstated on those terms. The union argued on review that the
addendum had rebutted the deeming provisions of s 198B(5) of the LRA and that it had novated any claim Mfingwana might have
had to permanent employment. The court noted that the union had not contended that the employee’s work was of a limited or
definite duration and that there were no justifiable reasons for keeping Mfingwana employed on a fixed-term contract for longer
than three months. A novation was only valid and enforceable if the contract it novated was also legally valid. The notion that the
presumption of permanent employment in s 198B(5) had been rebutted through novation flew in the face of the wording of that
provision, whose deeming provision was itself triggered by the renewal of a fixed-term contract where the exceptions listed in s
198B(3) did not apply. 64 The termination of fixed-term contracts by a TES will not amount to a dismissal by the client if the
relationship between the TES and its client is not a true labour broking relationship. 65 In UASA – The Union obo Maribe v Coca Cola
Fortune, 66 the court held that nothing prevents employees from coupling a claim that they have become permanent employees by
virtue of s 198B with a further claim that they had a reasonable expectation of permanent employment.
4.3 Section 186(1)(b)
The Labour Court has pointed out that s 186(1)(b) merely defines a form of dismissal; it does not as such confer rights on
employees. 67 To acquire a right, the employee must prove that the elements of that form of dismissal are present.
Whether a dismissal as envisaged by the LRA occurs on the expiry of a fixed-term contract depends on the circumstances.
Where the parties have agreed that the contract will endure to a specified date the contract is deemed to have automatically
4th Ed, 2022, ch 4-p 49
expired on the agreed date, and the parties’ respective rights and obligations end unless they agree to renew the contract. 68
Where the parties have agreed that the contract is for a specific purpose, and that purpose is attained, the position may be
different. Typical of such fixed-term contracts is an agreement in terms of which the employer engages the employee to work on a
certain project until its completion. Where the employer declines to extend the contract in such circumstances, a dismissal will not
have occurred, provided the project is indeed complete. Where an employee is employed in the knowledge that the post is
dependent on external funding, the employer may not merely decline to renew the contract unless there is proof that the funding
had dried up. 69
Where an employee is engaged to work for a third party subject to the proviso that the contract will endure only for so long as the
employee’s services are required by the third party, the third party’s intimation that the employee’s services are no longer needed
does not necessarily terminate the employment relationship between the employer and the employee.
The court confirmed the last point in Mahlamu v CCMA. 70 Mr Mahlamu was employed as a security guard on an employment
contract which stipulated that it would expire automatically on termination of the contract between his employer and the client to
which he was assigned, or if the client no longer required his services ‘for whatsoever reason’. The client cancelled the security
contract. Mahlamu’s employer duly informed him that his services were no longer required because it had no alternative position for
him. A bargaining council arbitrator found that Mahlamu’s contract had terminated automatically, and that he had accordingly not
been dismissed, as he claimed. On review, the court noted that the legal consequences of contracts of service, the duration of
which are linked to the occurrence of some external event, had been the subject of judicial debate. However, the judge noted that
on appeal in SAPO v Mampeule, 71 the LAC had endorsed the view that parties may not contract out of the fair dismissal
requirements of the LRA, and that in such cases the employer must still prove that the termination clause was fairly triggered. The
commissioner had accepted that Mahlamu’s job security was dependent on the will or whim of the client; it could at any time, and
for any reason, simply state that his services were no longer required and, that done, the contract would terminate automatically
and by operation of law, leaving Mahlamu without remedy. However, the LRA gives every employee the right not to be unfairly
dismissed. Section 5, in particular, prohibits preventing employees from exercising rights conferred by the Act, except by
contractual provisions permitted by the LRA. The question was accordingly whether contracts of the type between Mahlamu and
his employer (and between many employees and other service providers) were permitted by the
4th Ed, 2022, ch 4-p 50
LRA. The court held that that they are not. Employers and employees may not contract out of the protection against unfair
dismissal afforded by the LRA.
A contractual scheme that purports to terminate a contract of employment as something other than a dismissal and that strips
employees of their right to challenge the fairness of the termination is precisely the ‘mischief’ s 5 of the Act prohibits. Secondly, a
contractual term to this effect does not fall within the exclusion created by s 5(4), because contracting out of the right not to be
unfairly dismissed is not permitted by the Act. The court set the award aside and granted Mahlamu leave to refer his claim to the
appropriate forum.
The judge hastened to add, however, that this did not mean that all fixed-term contracts are prohibited by the LRA. Contracts
which prescribe their duration in advance or which provide for termination on the occurrence of some future event remain lawful.
Such contracts are distinguishable from those like Mahlamu’s. In cases like his, the event was determined at the whim of a third
party, or by action on the part of the employer that is covered by the LRA.
It may well be, however, that the distinction between ‘legitimate’ and ‘illegitimate’ fixed-term contracts proves unclear in
practice. Many fixed-term contracts specify that they will end when some event occurs, which may not be within the control of
the employer. But, like Mampeule, Mahlamu demonstrates that the court will not accept those contracts which provide for
‘automatic termination’ when the termination, properly construed, is a retrenchment, or a dismissal related to the employee’s
conduct or capacity. 72 Where the contract provides that it will lapse before its expiry date on the happening of some event,
however, the contract lapses on the occurrence of that event, provided the ‘event’ has been proved to have occurred. 73
It has been held in a number of cases, typically involving labour brokers or service providers, that where the party to whom the
employee is assigned instructs the employer to remove the employee, the employer is obliged either to conduct a disciplinary
inquiry, if the reason for the third party’s objection to the employee is alleged misconduct, 74 or to try to find an alternative
position for the employee elsewhere in its operation, if the third party no longer requires the employee for its own operational
reasons. 75
The rationale for this is that labour brokers make their profit from hiring the employee’s labour, and must assume some of the
risk. Where the employer seeks to evade its obligations under the LRA by simply relying on a contract which provides for expiry if
the employee is no longer needed by the client, the courts and
4th Ed, 2022, ch 4-p 51
arbitrators are entitled to ignore the contract and apply the statutory requirements of fairness.
In view of the above, the decision in Sindane v Prestige Cleaning Services proved controversial. 76 Prestige terminated the
service of Mr Sindane and one of his colleagues when a client scaled down its cleaning requirements. Sindane claimed he was
unfairly retrenched. The court noted that in Mampeule, 77 contracts that made continued employment conditional on the
occurrence of some external event were ruled against public policy and unenforceable because they conflicted with the provisions
of the LRA. But in Sindane the court declined to extend that principle to all fixed-term contracts. Where, as in Sindane’s case, the
contract provides that an employee will be employed only for so long as their services are required by another, the termination does
not constitute a dismissal because it is not caused by the employer. The Sindane court found Mampeule distinguishable because in
that case the termination was linked to the employee’s alleged misconduct, not to the occurrence of a specified event. The court
ruled that Sindane had not been dismissed.
It may be that the Sindane court gave too literal an interpretation to the phrase ‘by the employer’ in relation to the definition of
‘dismissal’ in s 186(1)(a). The judge simply reasoned that since the contract provided for ‘automatic’ termination when the
employee’s services were no longer required by its client, the termination could not be said to have been effected by the
employer. 78 This may well have been a case in which the court could have disregarded the contract and asked whether the
employer in fact triggered the termination of the employment relationship, and whether the employer retained its statutory
obligation to treat the employee fairly in spite of the formal termination of the contract. Whether a dismissal has occurred in such
cases is one question; whether the dismissal was unfair is quite another. 79
The court adopted this approach in Fidelity Supercare Cleaning v Busakwhe, 80 and elaborated on it in SATAWU obo Dube v
Fidelity Supercare Cleaning Services Group. 81 On being informed by one of its clients, Wits University, that its service contract
would not be renewed, Supercare Cleaning Services gave its employees who had been assigned to the contract notice that their
contracts had also ended in terms of a provision that provided for ‘automatic termination’ when their services were no longer
required by the client. When Wits later agreed to renew the contract on scaled down terms, Supercare asked its employees to
apply for the remaining posts. Supercare’s Wits contract manager claimed that when she asked Dube why she had not applied for a
post, Dube told her that she intended applying for a disability grant.
If the termination is triggered by an ‘event’ and not the employer’s own decision, there is no dismissal. Where a series of events
have occurred, the court must
4th Ed, 2022, ch 4-p 52
decide which event is capable of terminating the contract of employment validly. Where the act of the employer is not the
proximate cause of the termination of the employment contract, it does not constitute a dismissal. The proximate cause is not that
which happens to be latest, but that which is ‘proximate in efficiency’. An act by a third party terminating a service-level
agreement with a labour broker cannot be a proximate cause and therefore cannot result in the dismissal of an employee of the
labour broker because these are not dismissals as envisaged in s 186(1) of the LRA.
‘Automatic termination’ is impermissible because s 5(2)(b) and (4) of the LRA provides that no person may prevent an employee
from exercising any right conferred in terms of the LRA and that any provision of a contract that directly or indirectly limits that
right is invalid. Parties cannot contract out of the protection against unfair dismissal. It was therefore irrelevant that Dube had
voluntarily signed a contract containing an automatic termination clause.
4.6 Section 198B
The 2014 amendments to the LRA have made the law clear. Section 198B(1) defines a fixed-term contract as a contract of
employment that terminates on the occurrence of a specified event, the completion of a task or project, or a fixed date. But the
‘event’ referred to cannot include a client’s demand that an employee be removed from site or where a client terminates an
agreement with the employer. In addition, s 198(4C) provides that employees of TESes cannot be employed on any terms and
conditions of employment not permitted by the LRA. All this made it clear that the ‘automatic termination’ clause on which
Supercare relied was prohibited and invalid. In Fidelity Supercare the court concluded that Dube had been dismissed and that the
dismissal was based on the employer’s operational requirements. But that was as far as the argument went for Dube. Had she
applied for a post, she would have been employed. Supercare could not be blamed for her losing her job. The court declined to
award her compensation.
Pecton Outsourcing Solutions v Pillemer NO was to the same effect but considered the issue in more detail. 82 Each of the
respondent employees had signed fixed-term contracts with the applicant labour broker, the duration of which was set by the
period of the service agreement between Pecton and its only client – the contracts provided for ‘automatic’ termination if the
service contract ended. The client thought it was paying too much for Pecton’s services, and told the broker that it would cancel
the service agreement unless Pecton reduced the wages of its approximately 400 employees. Pecton did so. Unsurprisingly, the
workers objected, and downed tools. This displeased the client, which cancelled the service contract. Pecton gave the employees
notice that their employment had terminated in accordance with the contracts. The employees claimed that they had been unfairly
dismissed. A CCMA commissioner agreed and awarded them compensation. Pecton argued on review that the commissioner had
wrongly found that an employment contract can be terminated only by a fair dismissal.
4th Ed, 2022, ch 4-p 53
The court did not understand the commissioner to have regarded the termination of fixed-term contracts as necessarily unlawful,
as Pecton argued he had. The commissioner had held, rather, that contracts of employment must be terminated in accordance with
the LRA and that employers cannot ‘contract out’ of the Act. The commissioner had reason in law for declining to enforce the
automatic termination clause. If Pecton could not rely on that provision, the terminations must have been dismissals.
As to whether the commissioner was right when she found that the termination clause amounted to an attempt to contract out
of the LRA, the court noted that there are only three classes of fixed-term contract: those providing for expiry on a given date;
those that expire on completion of a specified task; and those terminating on the occurrence of a particular event. The latter is
most susceptible to the kind of abuse that was anticipated by s 5(4) of the LRA. This provides that provisions of contracts
calculated to undermine the rights of employees enshrined in s 4 are invalid, unless permitted by the Act. Pecton’s contention that
the commissioner had misdirected herself by failing to appreciate that contracts may terminate in ways other than by dismissal was
accordingly a red herring. That left the question: was the termination clause invalid? Pecton tried to get around earlier case law
which seemed to yield an affirmative answer by arguing that cases in which it had been held that automatic termination provisions
could not be relied on had all involved situations in which termination had been orchestrated by the TES. The court found this
distinction too subtle. The judge accepted that there may be a difference between cases in which a TES relies on an automatic
termination clause to get rid of an employee while the service agreement continues and cases such as the present, in which the
service contract is terminated by the client. But in both situations reliance on the automatic termination provisions left the
employees’ employment subject to the will or whim of the client. Pecton had two options: it could either dismiss the employees
fairly, as required by the LRA, or rely on the contracts. The court rejected as ‘artificial’ the distinction between situations in which
a TES relies on an automatic termination provision in respect of one or two employees, and those in which the entire contract is
terminated. The proper approach is to examine, in all cases where the termination of TES contracts is triggered by the will of a
client, whether the underlying cause of the termination, from the point of view of the TES, is one for which employees are typically
dismissed. The focus should be on the reason for the dismissal, rather than on the contract by which it is purportedly justified. In
this case, there was a clear attempt to contract out of s 189 of the LRA. Once the facts disclosed a termination relating to the
conduct or incapacity of the employee, or to the employer’s operational requirements, the commissioner had jurisdiction over the
matter. But after that, the commissioner had made a fatal mistake. Given the number of employees involved, the commissioner
should not have considered whether the dismissal was fair. She should then have stayed the arbitration so that the matter could
be referred for adjudication by the Labour Court.
Section 198B provides that employers may employ employees on fixed-term contracts for no longer than three months unless the
nature of their work was of limited duration or there was some justifiable reason for fixing the duration of the contract.
4th Ed, 2022, ch 4-p 54
AMCU v Piet Wes Civils illustrates the effects of this provision. 83 After the respondent companies terminated the services of the
applicant employees, their union launched an urgent application under s 189A(13) of the LRA for an order reinstating them so that it
could consult over the employees’ fate. The employers claimed that the employees had not been dismissed, but that their
contracts had terminated automatically with their service contracts, which contained a clause specifying that the contracts would
last only while they worked for the applicant’s clients. Section 198B of the LRA was enacted just after the contracts were
terminated. The employees had worked for the respondent employers for several years. The onus therefore rested on the employers
to prove that there was a justifiable reason for keeping the employees on fixed-term contracts for longer than three months. The
employer had not pleaded that the work for which it employed the employees was of limited duration. The term of the contract was
only linked to the supply of work by ‘clients’. Employees may be employed on fixed-term contracts for longer than three months
only to work on projects of ‘limited or defined duration’. This was not the case here. The work performed by the employees would
still have continued but for the termination of the contract with the respondent’s client.
Under s 198B, contractual terms providing for automatic termination at the behest of third parties or in consequence of external
circumstances other than those permitted by the LRA are regarded as unconstitutional and unenforceable. The employees’
contracts were not intended for a fixed duration or the completion of a specified project. Section 198B is aimed at securing
employment except where fixed-term contracts are clearly justified, such as with seasonal work or to carry out a specified task.
The employees’ contracts were accordingly either of unlimited duration or deemed to be such. Although the termination of the
service contracts might have been a justifiable reason for dismissing the employees, this could be done only after consulting, as
required by ss 189 and 189A. This judgment was upheld by the LAC, 84 which found that many of the employees had not been
given written contracts, which meant that they had been permanently employed and that employment for a term fixed according to
the period the employee is needed by a client cannot conceivably be regarded as a fixed-term contract, as defined.
An employee may not be compelled to conclude a fixed-term contract after being employed on a permanent basis. If that
happens, and the ‘contract’ is terminated on the expiry date, the employee will have been unfairly dismissed. 85
A fixed-term contract may be terminated by either party before its expiry if the other repudiates or commits material breach. 86
Whether an employer could prematurely terminate a fixed-term contract for operational requirements was an open question until
the Labour Court’s judgment in Buthelezi v MDB. 87 Mr Buthelezi, who had completed one year of a five-year employment contract,
was retrenched after he
4th Ed, 2022, ch 4-p 55
unsuccessfully applied for a post in the board’s restructured operation. The Labour Court held that his dismissal was fair in all
respects, save that his contract had been prematurely terminated. The LAC agreed that the premature termination of the fixed-
term contract was unfair, but went further by saying that the dismissal was wholly unfair. The LAC rejected the board’s arguments
that the LRA impliedly confers on employers the right or freedom to dismiss employees on fixed-term contracts for operational
requirements, or that in the light of the constitutional right to fair labour practices the common law should be developed to
recognise such a right. The court’s answer to these submissions was that both employers and employees conclude fixed-term
contracts with open eyes, and cannot be heard to complain if the risk of finding the term inconvenient materialises before the
expiry of the term.
The MDB judgment leaves no doubt that employers may not retrench employees for operational reasons if they are on fixed-term
contracts and that, if they do, they may be liable for contractual claims for damages for the balance of the contract period. Apart
from the obvious inconvenience of this judgment to employers, this prohibition could cause real problems in a retrenchment
exercise. It means, effectively, that employees on fixed-term contracts are absolutely protected against retrenchment for the full
period of their contracts. The court did not deal with the obvious difficulty that would arise if an employer were faced with
selecting two employees for retrenchment, one on an indefinite-period contract with, say 20 years’ service, and the other on a
five-year contract with, say one month’s service. Nor did the court pronounce on whether it is possible to cater for the problem
created by the judgment to make specific provision in a fixed-term contract for premature termination for operational requirements.
There would seem to be no objection in law or logic to such a provision. 88
The effect of MDB may have been somewhat diluted by Dube v University of Zululand. 89 The employees in this case were all
employed in the university’s catering division on fixed-term contracts. When the university decided not to renew the last of their
contracts, the employees claimed that they had been unfairly dismissed because they had reasonably expected the contracts to be
renewed. The university said the employees’ services were no longer required because a new funding model for student grants
allowed them to spend their grants on anything they wished. This had reduced demand for meals in university dining halls, which
had lost R11 million during the previous two years. The court noted that although the employees’ contracts had been terminated
after the introduction of s 198B of the LRA, the employees had relied solely on a claim that the university had created a reasonable
expectation that their contracts would be renewed. They had not challenged the university’s claim that termination was
operationally necessary. Given the circumstances there was nothing untoward about the university’s invoking the automatic
termination of the employees’ contracts because they had not yet been deemed permanently employed. However, once the
deeming provision
4th Ed, 2022, ch 4-p 56
kicks in, the employer can no longer rely on the termination clause in a fixed-term contract to defend itself against an unfair
dismissal claim. 90
The Kouga Municipality found a novel (and questionable) way to terminate a fixed-term contract prematurely without incurring
liability for breach of contract when it prematurely terminated the employment of its then CFO, Mr Abdullah – it simply terminated
the contract and paid him the amount he would have earned until its expiry date. Relying mainly on the judgment in Masetlha v
President of the RSA, 91 in which the Constitutional Court held that the fired head of the National Intelligence Service was not
entitled to reinstatement even though his ‘dismissal’ was unlawful, the municipality argued that Abdullah had no contractual right to
work during the remaining months of his contract. The Labour Court agreed. 92 Since Abdullah had not established a right to work,
he was not entitled to reinstatement. Although the termination of the contract was unlawful, the municipality was ordered to pay
Abdullah’s remuneration until the expiry of his contract – which it had offered to do in the first place. By so ordering, the court
handed all employers a licence to terminate fixed-term contracts at any stage, provided they pay out the balance of the
employee’s salary, and irrespective of how unfair the termination might have been.
The legislature has not gone so far as to prohibit fixed-term contracts entirely. Instead, it has chosen to limit the period for which
lower paid employees may be engaged on such contracts, subject to certain exceptions. 93 For the rest, the LRA regards the
failure to renew such contracts, or their renewal on different terms, as a form of dismissal when the employee had a reasonable
expectation that the contract would be renewed on the same or similar terms, or that he or she would be employed permanently.
Even when this is the case, it is still open to the employer to prove that the ‘dismissal’ was for a fair reason and in accordance with
a fair procedure.
The requirement that the termination of a fixed-term contract will be regarded as a dismissal only when the employee reasonably
expected it to be renewed enables a court or arbitrator to examine the circumstances behind non-renewal to establish whether the
termination was merely a disguised form of dismissal. Although this inquiry goes beyond the normal principles of contract law, it is
consistent with the idea that unfair dismissal is based not merely on the termination of the contract between an employer and an
employee but also on the termination of the employment relationship. When a court finds that the termination of a fixed-term
contract constitutes a dismissal, it is in effect saying that the employment relationship would have endured had it not been for the
employer’s failure to renew the contract: the decision not to renew the contract was a pretext for terminating the employment
relationship.
4th Ed, 2022, ch 4-p 57
The legislature has chosen to identify situations in which non-renewals of fixed-term contracts constitute dismissals by focusing
on the expectation of the employee. This constitutes a radical departure from recognised contractual principles, which are posited
on agreement between the parties on the terms of a contract. Strictly speaking, therefore, the non-renewal of a fixed-term
contract may constitute a dismissal even if the employer genuinely believed that the contract would expire when it did, provided
only that the employee had a reasonable expectation that it would be renewed.
The critical issue when determining when this form of dismissal has occurred is whether the employee’s claim that he or she
expected the contract to be renewed was reasonable in the objective sense, ie whether the circumstances were such that any
reasonable employee would in the circumstances have expected the contract to be renewed on the same or similar terms or that
he or she would be permanently employed.
Self-evidently, the first requirement is that the employee must subjectively have expected the contract to be renewed. If there
is no such subjective expectation, the employee cannot claim to have been dismissed in this sense, even if the circumstances were
such that the expectation could be judged reasonable. 94
The case law indicates that a number of circumstances favour acceptance of employees’ claims that they expected a fixed-term
contract to be renewed. The two most obvious considerations are past practice and prior promise. 95 Logic indicates that the more
frequently an employer has renewed a fixed-term contract in the past, the more reasonable is the employee’s expectation that the
employer will continue to do so in future. 96 But this is not an absolute rule. Employees whose contracts have been renewed many
times may still be unable to prove a reasonable expectation when the final contract is not renewed. 97 It merely becomes more
likely that repeated renewals would reinforce the impression that the employment relationship has de facto become permanent, and
also lend credence to the employee’s claim that he or she viewed the relationship as permanent.
Joseph v University of Limpopo provides a good example of the kind of circumstances in which a reasonable expectation of
renewal of a fixed-term contract arises. 98 After Mr Joseph, originally from India, had been employed by the university on two
successive fixed-term contracts, his post was advertised. After turning down a post at another university, Joseph applied for his
post when it was advertised. He was unsuccessful. Even though the successful candidate resigned soon after assuming office, the
university declined to appoint Joseph. The respondent CCMA commissioner ruled the dismissal unfair and ordered the university to
reinstate Joseph. The LAC dismissed the university’s argument that Joseph could not have had a reasonable expectation that his
contract would be renewed because, as a foreigner, he had to acquire a work permit before he could
4th Ed, 2022, ch 4-p 58
take up a position with the university and because Joseph had conceded that he had fallen out with some of his superiors. A senior
employee of the university had motivated for the extension of Joseph’s current work permit and Joseph had also developed two
ongoing teaching programmes, of which he had been the intellectual anchor, and the successful candidate did not have the
qualifications to run the courses. The court concluded that Joseph had a reasonable expectation that his contract would be
renewed, and that the university had unfairly dismissed him by frustrating that expectation. 99
Whether an employee has a reasonable expectation must also be decided objectively: the issue is not at this point whether the
employee should have had a reasonable expectation, but whether he or she actually held such an expectation. 100 That is a
question of fact. The facts went against Ms Njikelana after her fixed-term contract was not renewed when her employer discovered
that she had failed to disclose a criminal conviction at her pre-employment interview. 101 The Labour Court found her claim that
she reasonably expected her contract to be renewed meritless because she dishonestly failed to disclose her criminal record in the
first place and could not possibly have harboured an objectively reasonable expectation after she was caught out. The same
applied to two municipal officials who accepted an extension of their fixed-term contracts, well knowing that the council had
resolved to discontinue appointments on fixed-term contracts. 102
An implied assurance that a fixed-term contract will be renewed may be given in a number of ways. Silence may be sufficient,
especially if the contract has been habitually renewed in the past, or if the contract requires an express indication before its expiry
that it will not be renewed. An employer may also create a reasonable expectation of renewal by arranging the employee’s work
schedule for the future, or by indicating in some other way that the employee will still be working after the date on which the
contract is due to lapse. 103 Apart from overt conduct by the employer, custom and practice in the sector concerned or the
nature of the employer’s business, the availability of the post, the purpose or reason for concluding the fixed-term contract,
conduct inconsistent with an intention not to renew and failure to give reasonable notice of non-renewal may all be relevant
factors. 104
The mere fact that an employer gives the employee the impression that he will remain in employment after the lapse of the
contract is not necessarily sufficient to create a reasonable expectation of renewal. The LAC dismissed an employee’s claim that he
had acquired a reasonable expectation because the employer had agreed to subsidise his tertiary studies on condition that he
would work for them for two years. 105 The LAC has also held that an employee’s application for the position in which he had been
acting on a fixed-term contract when it was made permanent
4th Ed, 2022, ch 4-p 59
was inconsistent with a subjective expectation of permanent employment. 106 In another judgment, the LAC said that employees
cannot claim in one breath that they have become permanently employed and in the next that they had a reasonable expectation
that their contracts would be renewed. 107
An assurance, express or implied, given by the employer at some stage before the date on which a fixed-term contract is set to
expire also naturally gives rise to an expectation on the part of the employee that the employment relationship will continue.
Whether the expectation so aroused will be regarded as reasonable depends on the nature of the alleged assurance, the position of
the person who gave it, 108 and the strength of warnings by the employer that the contract would in fact expire.
The practice of inserting into fixed-term contracts of employment disclaimers to the effect that the employee ‘has no
expectation that the contract will be renewed’, or that no expectation of renewal can arise unless the employer gives notice in
writing of its intention to renew, though advisable, is not conclusive proof that the employee could not reasonably have expected
the contract to be renewed. 109 A clause in the contract stating that renewal may be negotiated one month prior to the
termination date has been held not in itself to create a reasonable expectation of renewal, especially when the employee has made
no attempt to open such negotiations. 110 It has, however, been held that a clause in the contract that unambiguously specifies
that the contract will not be renewed places a heavier onus on the employee to prove a reasonable expectation. 111
Failure to renew a fixed-term contract does not automatically terminate the employment relationship, even if the employee does
not claim a reasonable expectation of renewal. If the employer permits the employee to continue working after the date on which
the contract would otherwise have expired, the contract may be deemed to have been tacitly renewed on the same terms, except
that the contractual relationship is now of indefinite duration, unless the circumstances point to the conclusion that the contract
has indeed lapsed. 112 Once this happens, the only way in which the contract can be terminated is by conventional dismissal with
or without notice, or by the employee’s resignation.
The second issue that arises when determining whether the termination of a fixed-term contract constitutes a dismissal relates
to the nature, as opposed to the reasonableness, of the employee’s expectation. The LRA initially required that the employee must
reasonably expect the employer to renew the contract on the same
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or similar terms. The judicial debate over this meant that employees could rely on s 186(1)(b) if they expected that they would be
permanently appointed, which began with Dierks v UNISA. 113 This debate occurred before the LAC, in University of Pretoria v
CCMA, 114 affirmed that the then s 186(1)(b) did not apply if the employee claimed a reasonable expectation of permanent
employment. However, statutory recognition of an expectation of employment on an indefinite basis ends this debate: employees
can claim to have been dismissed within the meaning of s 186(1)(b) whether their expectation was that their contracts would be
renewed for a further period, or that they would be employed permanently.
The form of dismissal currently under discussion may occur not only when the employee’s contract is not renewed at all; it may
also occur when the contract is renewed on terms less favourable to the employee. Where a renewal occurs, but on less favourable
terms, the employee must prove that he or she had a reasonable expectation that it would be renewed on the same or similar
terms; a mere expectation of renewal is insufficient if the employee cannot prove that he or she expected renewal on that
basis. 115
That a dismissal is deemed to have occurred when a fixed-term contract is renewed on terms less favourable to the employee
raises the question how much ‘less favourable’ those terms must be to fall within the terms of s 186(1)(b). Section 186(1)(f), which
provides that a variation by the ‘new employer’ of the terms of the contracts of employees transferred in terms of s 197 may
constitute a dismissal, states that the variation must be ‘substantially less favourable to the employee’. In terms of that provision,
a minor variation, say of shift arrangements, will not constitute a dismissal. The use of the words or similar in s 186(1)(b) seems to
indicate that that provision should be interpreted in the same manner.
Despite the amendment, an employee cannot claim in one breath that he is in fact a permanent employee and in the next that
he had a reasonable expectation that he would be permanently employed. Where an employee did so, he was told that he should
have sued for the unfair termination of his permanent employment, if he could prove it. 116
57 In which case the contract is more properly described as a ‘maximum duration contract’.
58 Joni v Kei Fresh Produce Market (2018) 39 ILJ 2405 (EC M).
59 See, for example, Khum MK Investments & Bie Joint Venture v CCMA (2020) 41 ILJ 1129 (LAC ). But in Ukweza Holdings v Nyondo (2020) 41 ILJ
1354 (LAC ) the court found a finding that the employee had been permanently employed ‘too technical’.
60 See SANDF v Blaauw (2021) 42 ILJ 2672 (LC ), in which the employee was also held to have had a reasonable expectation of being permanently
employed (see below). See also UASA – The Union obo Maribe v Coca Cola Fortune (2021) 42 ILJ 2702 (LC ), in which the court held that an employee
who had been deemed permanently employed and was dismissed was entitled to bring claims under both s 198D and s 186(1)(a) or (b).
61 DAFF v Teto (2020) 41 ILJ 2086 (LAC ); Owen v DOH, KZN (2009) 30 ILJ 2461 (LC ).
62 Gauteng Provincial Legislature v CCMA (2022) 43 ILJ 616 (LAC ).
63 (2020) 41 ILJ 2190 (LC ).
64 See also SANDF v Blaauw (2021) 42 ILJ 2672 (LC ).
65 Ekurhuleni Metropolitan Municipality v Madonsela (2021) 42 ILJ 2168 (LAC ).
66 (2021) 42 ILJ 2702 (LC ).
67 Smith v Office of the Chief Justice (2018) 39 ILJ 1357 (LC ).
68 Maritz and Cash Towing (2002) 23 ILJ 1083 (C C MA); Jonas / Quest Staffing Solutions [2003] 7 BALR 811 (C C MA).
69 Makoti v Jesuit Refugee Service of SA (2012) 33 ILJ 1706 (LC ).
70 (2011) 32 ILJ 1122 (LC ).
71 (2010) 31 ILJ 2051 (LAC ).
72 See also NUM obo Milisa v WBHO Construction [2016] 6 BLLR 642 (LC ), in which the contracts were set to endure for the duration of ‘the skills
requirement of the project’, but the company failed to prove that the applicant employees’ skills were no longer required.
73 Which was held not to have been proved in Kelly Industrial v CCMA (2015) 36 ILJ 1877 (LC ), in which the company claimed that without proof
that its contract with its client had terminated.
74 See, for example, Molusi and Ngisiza Bonke Manpower Services (2009) 30 ILJ 1657 (C C MA).
75 NUMSA obo Majoro / Purple Moss 1309 t/a Kopano Thermal Insulation [2008] 4 BALR 342 (MEIBC ).
76 (2010) 31 ILJ 733 (LC ).
77 SAPO v Mampeule (2009) 30 ILJ 664 (LC ) (see above).
78 The arbitrators took the same view in NUMSA obo 73 members / BEG Labour Engineering Supplies [2006] 8 BALR 777 (MEIBC ) and Mashabela /
Monyela Services [2006] 2 BALR 122 (MEIBC ). But see Zolwayo / Sparrow Task Force Engineering [2006] 6 BALR 599 (MEIBC ).
79 Molawa / Quyn International Outsourcing [2004] 7 BALR 848 (MEIBC ).
80 [2010] 3 BLLR 260 (LC ).
81 (2015) 36 ILJ 1923 (LC ).
82 (2016) 37 ILJ 693 (LC ).
83 (2017) 38 ILJ 1128 (LC ).
84 Piet Wes Civils v AMCU (2019) 40 ILJ 130 (LAC ).
85 See, for example, Elundini Municipality v SALGBC [2011] 12 BLLR 1193 (LC ).
86 See, for example, Carter v Value Truck Rental (2005) 26 ILJ 711 (SE).
87 (2004) 25 ILJ 2317 (LAC ).
88 In Mafihla v Govan Mbeki Municipality (2005) 26 ILJ 257 (LC ), the court observed that a fixed-term contract which provides for termination on
notice before the expiry date is more properly termed a ‘maximum duration contract’. Employees on such contracts can surely be retrenched.
89 [2019] 3 BLLR 285 (LC ).
90 NUPSAW v Mfingwana (2020) 41 ILJ 2190 (LC ).
91 2008 (1) SA 566 (C C ).
92 Abdullah v Kouga Municipality (2012) 33 ILJ 1850 (LC ).
93 Section 198B.
94 See De Milander v MEC for The Department of Finance: Eastern Cape (2013) 34 ILJ 1427 (LAC ), in which the employee failed the first leg of the
test.
95 These considerations are implicit in the judgment that entrenched the doctrine of legitimate expectation in South African law: Administrator of
the Transvaal v Traub (1989) 10 ILJ 823 (A).
96 See, for example, SACTWU v Cadema Industries [2008] 8 BLLR 790 (LC ).
97 See, for example, Mofokeng v Rotek & Roshcon (2021) 42 ILJ 1902 (LAC ).
98 (2011) 32 ILJ 2085 (LAC ).
99 See also DAFF v Baron (2019) 40 ILJ 2290 (LAC ).
100 In Pik-It-Up Johannesburg v SALGBC (2011) 32 ILJ 2728 (LC ), the court incorrectly added ‘fairness and equity’ to the test.
101 Njikelana v Kruger NO (2019) 40 ILJ 2380 (LC ).
102 Newcastle Municipality v Nzimande [2021] 1 BLLR 94 (LC ).
103 See, for example, McInnes v Technikon Natal (2000) 21 ILJ 1138 (LC ).
104 Dierks v UNISA (1999) 20 ILJ 1227 (LC ) at 1146F–G.
105 IMATU v City of Johannesburg Metropolitan Municipality [2014] 6 BLLR 545 (LAC ).
106 Ukweza Holdings v Nyondo (2020) 41 ILJ 1354 (LAC ).
107 Transnet t/a Transnet Freight Rail v NUMSA obo Manku (2021) 42 ILJ 1948 (LAC ).
108 So, in SARPA v SA Rugby (2008) 29 ILJ 2218 (LAC ) the court found that the assurance given to one of the players by the Springbok rugby
coach could not have given rise to a reasonable expectation of renewal because the coach had no authority to conclude contracts. See also SARS v
CCMA (2009) 30 ILJ 2961 (LC ), in which the court, it is suggested incorrectly, placed exclusive reliance on the principle of estoppel. The question whether
an employee has a reasonable expectation of renewal does not depend solely on whether the employer is entitled to deny the authority of the person
who made the representation but, in addition, on whether a reasonable employee would have formed the expectation on the basis of the renewal.
109 Such a disclaimer may be significant only insofar as it indicates that the employee could not reasonably have expected renewal: see, for
example, Malandoh v SABC (1997) 18 ILJ 544 (LC ).
110 SA Bank of Athens v Cellier NO (2009) 30 ILJ 197 (LC ).
111 SARPA v SA Rugby (2008) 29 ILJ 2218 (LAC ).
112 Owen v DOH, KZN (2009) 30 ILJ 2461 (LC ). The court found on the facts in that case that the contractual relationship had indeed become
permanent.
113 (1999) 20 ILJ 1227 (LC ).
114 (2012) 33 ILJ 183 (LAC ).
115 Manqele and SARS (2004) 25 ILJ 1114 (C C MA).
116 Hamandawana v Dispute Resolution Centre (2014) 35 ILJ 1312 (LC ).

Another statutory form of dismissal is the refusal by an employer to permit an employee to resume employment after she took
maternity leave in terms of any law, collective agreement, or her contract of employment. 117 The ‘law’ referred to is s 25 of the
BCEA, which permits an employee to take leave for at least four consecutive months any time from four weeks before the expected
date of birth, unless otherwise agreed, or on a date from which a medical practitioner or midwife certifies that it is necessary for
the health of the employee or her unborn child.
4th Ed, 2022, ch 4-p 61
The BCEA also prohibits an employee from working for six weeks after the birth, unless a medical practitioner or midwife certifies
that she is fit to do so. If the employee miscarries or produces a stillborn child, she is entitled to six weeks’ leave after the
miscarriage or stillbirth, whether or not she has already commenced maternity leave. Nothing precludes an employer from granting
more generous maternity leave in terms of a collective agreement or contract of employment. 118
In terms of s 186(1)(c) of the LRA, an employer who refuses to allow an employee who has taken leave in terms of these
provisions to resume work is deemed to have dismissed the employee. This deeming provision is superfluous; refusal to permit an
employee to resume work after taking any form of authorised leave constitutes a dismissal. The intention behind this provision is
rather to ensure that when an employee is excluded from employment after maternity leave, in particular, the dismissal will be
deemed automatically unfair. When s 186(1)(c) is read with s 187(1)(e) it appears that such a dismissal is automatically unfair
unless the employer can prove that the reason for the dismissal is not related to the employee’s pregnancy or any reason related to
her pregnancy. 119 So, for example, if the employee committed serious misconduct before or during her maternity leave, the
employee may be dismissed for that misconduct. 120
Unlike s 187(1)(f), s 187(1)(e) is not subject to the defence that the dismissal of an employee while she is on maternity leave is
related to the inherent requirements of the employee’s job. The employer does not accordingly have the option in such cases of
dismissing the employee for operational reasons if, due to her condition, she is incapable of performing her work. The only options
available to the employer are to find another position for the employee or suspend her on full pay until she is capable of resuming
her work. 121
If the employee has stayed away for a period longer than that permitted by the BCEA, collective agreement or contract, the
refusal to permit her to resume work will not amount to a dismissal within the meaning of s 186(1)(c). In that case, the employer’s
decision to terminate the contract still constitutes a dismissal, as the employee will then be treated as having deserted, and must
be dealt with as such. 122
117 This form of dismissal is distinguished from the termination of employment of an employee because she falls pregnant. Such dismissals are
catered for in s 187(1)(f). See C hapter 7.
118 On the rights of expectant employees, see further Grogan Employment Rights 3 ed (Juta 2019) C hapter 4.
119 See C hapter 7.
120 See, for example, Wardlaw v Supreme Mouldings (2004) 25 ILJ 1094 (LC ).
121 See Randall v Progress Knitting Textiles (1992) 13 ILJ 200 (IC ) and, generally, Epstein ‘Maternity protection in South African law’ (1992) 13 ILJ
303.
122 See C hapter 9.
This form of dismissal occurs not when the contracts of employees are terminated, but when the employer re-employs one or more
of their former colleagues who were dismissed together with the employees concerned for the same or similar reasons. Selective
re-employment – or, more precisely if not more elegantly, selective non-re-employment – usually takes place after a mass
dismissal: for example, a group of employees is retrenched or dismissed for participating in some form of collective misconduct, such
as participation in unlawful industrial action. The employer later
4th Ed, 2022, ch 4-p 62
relents and takes some of them back. Section 186(1)(d) permits the employees who are left out in the cold to claim that they have
been dismissed.
Section 186(1)(d) is the product of a number of judgments of courts hearing matters under the unfair labour practice jurisdiction
of the 1956 LRA. These judgments recognised that the refusal to re-employ former employees could amount to an unfair labour
practice, 123 as was confirmed by the former Appellate Division of the Supreme Court in NAAWU (now known as NUMSA) v Borg-
Warner SA. 124 The company had retrenched a number of employees and subsequently re-employed some of them together with
new employees, without explaining why it had favoured only some former employees and preferred newcomers to the retrenched
former employees. The court recognised that the unfair labour practice concept applied not only to relationships between
employers and employees during the existence of the employment contract but also in certain circumstances to the relationship
that extends beyond the termination of the contract. 125
Section 186(1)(d) does not require an express agreement that the employer will re-employ the dismissed employees. In this, s
186(1)(d) differs from s 186(2)(c) (formerly item 2(1)(d) of Schedule 7 to the Act), which renders ‘the failure or refusal of an
employer to reinstate or re-employ a former employee in terms of an agreement’ an unfair labour practice. Section 186(2)(c) does
not require an act of selective non-re-employment for failure by an employer to re-employ an employee to fall within its terms – the
mere breach of an agreement is sufficient. Non-re-employment under s 186(2)(e) is not a dismissal.
Selective non-re-employment is also to be distinguished from selective dismissal. ‘Selective dismissal’ takes place when an
employer dismisses some employees of a group, the members of which are all guilty of the same misconduct. In such cases, the
dismissal occurs when the employer terminates the contracts of the employees with or without notice. The selection of only some
of the employees for dismissal is deemed unfair because the employer has acted inconsistently. 126
The offer to rehire some workers is a precondition for a dismissal of the type envisaged by s 186(1)(d). But it is doubtful
whether a mere offer of re-employment to a dismissed employee is sufficient in itself to bring that provision into operation in
respect of others. Apart from the fact that an offer of employment does not create a binding contract, it seems unlikely that the
legislature intended to permit former employees to claim selective non-re-employment if the employer makes an offer to them,
realises its mistake, and then withdraws that offer before it is accepted.
The limitation of the offer to re-employment also appears to have been a legislative oversight. If an employer were to reinstate
a dismissed employee with full benefits, and to grant him or her back pay for the period of unemployment, it seems highly unlikely
that another employee who was dismissed for the same
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reason would be precluded from invoking s 186(1)(d). This appears to be a case in which the term ‘re-employment’ must be given
its ordinary meaning, ie to take back into employment.
Apart from the offer to rehire, the key requirement of a dismissal in terms of s 186(1)(d) is that employees who seek to rely on
this form of dismissal must prove that they were dismissed for the same or similar reasons as the employees who were rehired. By
‘reasons’ the legislature appears to refer to the causa causans of the decision to dismiss, for example, participation in an unlawful
work stoppage. That test must be applied with caution. It may be, for example, that a group of employees are all dismissed after
an unlawful strike, but the reasons for the dismissals differ. Some workers may have been dismissed because they were on final
warnings; others because they were guilty of intimidation. If after a period the employer decides to re-employ the former
employees, the employer might argue that, although the dismissals occurred in the same context, they were effected for different
reasons. This argument would be supported by the claim that the employees were dismissed for different forms of misconduct and
that the employment relationship had been destroyed in respect of the second group of employees, but not in respect of the
Employees seeking to rely on s 186(1)(d) need not actually apply for re-employment; selective non-re-employment may occur if an
employer invites a group of former employees to apply for positions, but deliberately refrains from informing others who are entitled
to be considered. This may seem strange, because a requirement of s 186(1)(d) is that the employer must have refused to re-
employ the complainant employee; employees cannot claim to have been dismissed if their former employers were unaware that a
particular former employee wished to be re-employed. If this is the case, it can hardly be said that the employer ‘refused’ to re-
employ that employee.
Section 186(1)(d) does not prescribe a limit for the period within which selective re-employment may be deemed to have
occurred. Theoretically, a dismissed employee can claim to have been dismissed if, years after the initial dismissal, the employer re-
employs a former colleague who was originally dismissed for the same or similar reasons. Although the passage of time may be
irrelevant when deciding whether a dismissal has occurred, it may well play a role in determining whether the failure to re-employ is
unfair.
Employees seeking to rely on this form of dismissal must still comply with the statutory time limit for referring disputes for
conciliation. This means that they must refer the dispute within 30 days of the date on which the employer refused or failed to re-
employ them.
123 MAWU v Bonar Long NPC (SA) (1987) 8 ILJ 108 (IC ); MAWU v Feralloys (1987) 8 ILJ 124 (IC ); MAWU v Transvaal Pressed Nuts Bolts &
Rivets (1986) 7 ILJ 703 (IC ); SAAWU v Dorbyl Automotive Products (1988) 9 ILJ 680 (IC ); SACWU v Toiletpak Manufacturers (1988) 9 ILJ 295 (IC );
SACWU v Sentrachem (1988) 9 ILJ 410 (IC ).
124 (1994) 15 ILJ 509 (A).
125 The judgment under appeal is reported at (1991) 12 ILJ 549 (LC ); see also SACTWU v SA Clothing Industries; Mtambo v SA Clothing
Industries (1993) 14 ILJ 983 (LAC ).
126 See C hapter 8.
‘Constructive dismissal’ was a mode of termination once unknown to the common law. 127 This form of dismissal occurs when the
employee abandons the contract,
4th Ed, 2022, ch 4-p 64
either by resigning or by simply leaving his or her place of employment and not returning. Under the common law, employees who
claimed that they were ‘forced’ to abandon employment had no remedy unless they could prove that the employer committed a
material breach or repudiated the contract, in which case, under the law of contract, it was the employer who committed the
breach. 128 In such cases, the employee had a choice of either holding the employer to the contract and seeking an order
compelling it to remedy the breach, or of abandoning the contract and suing for damages.
Section 186(1)(e) introduces a statutory form of relief akin to such a civil action. This provision is in one sense wider than the
common law and in another sense narrower. An employee claiming under s 186(1)(e) to have been dismissed need not prove that
the employer committed a breach of contract, in the technical sense, provided that the conduct of the employer was such as to
create circumstances that, objectively speaking, are intolerable. On the other hand, the mere existence of a breach is not
necessarily a sufficient condition to prove ‘intolerability’.
That an employee has been constructively dismissed does not necessarily mean that the dismissal is unfair. As the LAC has
held, 129 constructive dismissal claims entail a two-stage test: first, the employee must prove that the employer made
circumstances so intolerable that she had no option but to leave; if so, the employer must prove that dismissal was fair.
The singular feature of a dismissal in terms of s 186(1)(e), is that the employee, rather than the employer, ends the contract
with or without notice. Employees who do so, either by formally resigning or by abandoning their employment, can nevertheless
claim to have been dismissed if they can prove that the employer made continued employment intolerable for them.
The critical issues for determination in cases involving claims of constructive dismissal are whether:
• the employee brought the contract to an end
• the reason for the employee’s action was that the employer had rendered the prospect of continued employment ‘intolerable’
• the employee had no reasonable alternative other than terminating the contract.
The onus of proving these requirements rests on the employee. 130
The definition of ‘constructive dismissal’ initially required that the employee had to terminate a contract of employment. This
presupposed that such a contract must have existed at the time of the employee’s resignation or departure from work. An
employee whose contract (or employment) has already terminated cannot claim to have been constructively dismissed. 131
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Employees may terminate employment by formally resigning, ie by exercising their option to end the contract by giving notice or
by signifying in some other way that they no longer intend to be bound by the contract. Self-evidently, an employee cannot claim
in one breath to have been constructively dismissed and in the next that he was dismissed by the employer, even if in the
alternative. The Labour Court has described such a plea as ‘legal nonsense’. 132
It may be difficult in some cases to determine whether the conduct of the employer or that of the employee was the cause of
the termination of an employment relationship. Many cases arise in which employers claim that employees simply ‘walked off the
job’, thereby ending the contract. 133 Such claims, if true, are not regarded as a bar to employees’ claim that they have been
constructively dismissed. This approach is questionable. In legal terms, abandonment by employees of their obligations under
contracts of employment does not end the contracts; the employer retains the election to accept the employee’s breach and to
sue for damages, or to hold the employee to the contract and sue for specific performance. If the employer chooses the former
option, it is the employer, not the employee, who ends the contract. 134 The employer’s acceptance of the breach constitutes a
dismissal for purposes of s 186(1)(a). It is doubtful whether the legislature intended to suggest that a particular dismissal could be
categorised both as a conventional dismissal and as a ‘constructive’ dismissal. 135
This is not to suggest that employees who simply abandon their employment can never claim to have been dismissed within the
meaning of s 186(1)(e). However, in such cases the employees must prove that they, and not the employer, had resolved to
abandon the contract.
Employees who have resigned on notice may bring an action for constructive dismissal if the employer dismissed them during the
notice period. This unusual situation arose in SALSTAFF obo Bezuidenhout and Metrorail (2). 136 Mr Bezuidenhout resigned in
despair after he was charged with a number of offences he alleged were trumped up. Days before the contract expired by virtue of
his resignation, the company held a disciplinary inquiry and dismissed him. Bezuidenhout referred a dispute for arbitration, claiming
that he had been constructively dismissed. The arbitrator held that, although the termination of the contract by the employer
constituted a dismissal for purposes of s 186(1)(a), this did not preclude the employee from pursuing a claim for constructive
dismissal.
The converse question arose in Van der Merwe and Becker. 137 In that case, Ms Becker was told on 21 January that her salary
would be reduced from 1 March,
4th Ed, 2022, ch 4-p 66
failing which she would be retrenched. She resigned on 31 January, and claimed that she had been constructively dismissed. The
commissioner found that, because the notice of termination of Becker’s employment constituted a dismissal in terms of s 186(1)(a),
she could not possibly have resigned and claimed constructive dismissal after she was dismissed. As the commissioner put it, an
employee cannot be dismissed twice.
The second requirement for ‘constructive dismissal’ – in respect of which the onus of proof also rests on the employee – relates
to the reason for the termination of employment by the employee. The employees concerned must have terminated the
employment relationship because they genuinely believed that their employers had rendered the continuation of the employment
relationship ‘intolerable’. However, the subjective feelings of the employee are not enough; their belief must also have been
reasonable. The employee must also prove that the employer was in fact responsible for creating the conditions that induced this
belief. 138
The test for establishing whether a constructive dismissal has taken place is therefore partly subjective and partly objective, ie
regard must be had to the perceptions of the employee at the time of the termination of the contract, as well as to the
circumstances in which the termination took place.
The current test for establishing whether the termination of an employment contract by an employee amounts to a constructive
dismissal is expressed thus in Pretoria Society for the Care of the Retarded v Loots: 139 When employees terminate employment
and claim constructive dismissal they are saying that the situation has become so unbearable that they cannot work and do not
believe that the employer will ever reform or abandon the pattern of creating an unbearable work environment. If the employer
proves that their fears were unfounded then a constructive dismissal is not proved.
It is not enough for the employee merely to claim that he or she believed that the employment relationship was ‘intolerable’.
Employees must satisfy the court or arbitrator that at the time of the termination of the contract they were under the genuine
impression that their employers had actually behaved in the manner that they believed rendered the relationship intolerable and
would continue to do so. 140 Such an apprehension may be difficult to prove if, for example, the employee claims reinstatement. It
will be impossible to prove if, as happened in one case, 141 the employee had sought unsuccessfully to withdraw his resignation, or
as happened in another, 142 the employee had previously attempted to negotiate a severance package to avoid being disciplined
for poor work performance. However, a desire to be reinstated will not serve as proof that the employee did not regard the
employment relationship as intolerable if circumstances changed after the employee referred, for example, the manager who made
the employee’s life intolerable has since resigned or been dismissed. 143
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Since the employee’s conviction must drive him or her to terminate the relationship, the apprehension must exist at the time the
employee resigns or abandons employment. The employee’s perceptions must be tested against the actual reason for the
resignation. Where it is apparent that the employee had an ulterior reason for resigning, such as the desire to take up alternative
employment or to get hold of pension money, a constructive dismissal will not have occurred. 144 Actions by the employer after the
employee’s resignation or departure cannot therefore serve as proof of the necessary apprehension, except to the extent that such
actions cast light on the employer’s conduct and attitude before the resignation or termination.
A mere claim by employees that they believed that there was no point in continuing with the employment relationship is not in
itself sufficient. The employee must also prove that the belief that the employer’s intolerable conduct would continue was
reasonable. ‘Reasonableness’ in this context means, first, that the circumstances in fact existed; second, that the circumstances
which the employees concerned claim induced their belief were such as to justify their claim.
‘Intolerable’ is a strong word. The choice of that term by the legislature indicates that temporary inconvenience is insufficient to
sustain a claim of constructive dismissal. The emphasis is on the effects of the prospect of continued employment. The
circumstances on which the employee relies must therefore appear to be more than merely transient. However, a single incident
may be enough to cause a reasonable employee to conclude that the employment relationship cannot be renewed or sustained.
The test adopted in some cases is whether the employee had any reasonable option other than to resign or to abandon the
contract. Proof that the employee had some effective channel for obtaining relief, such as a grievance procedure, but failed to
utilise it, may be fatal to the employee’s claim. 145 Although this test should not be applied too strictly, it will protect employers
from unscrupulous employees who, detecting circumstances that may be used to press a constructive dismissal claim, resign
without informing the employer of those conditions in the hope of obtaining compensation.
The range of employer actions that can give rise to a claim for constructive dismissal is endless. Abuse, assault, emotional
cruelty and other generally unacceptable forms of conduct by employees’ superiors are the most obvious justification for claims of
constructive dismissal. 146 Forced transfer, failure by employers to adhere to the contract, spurious allegations of misconduct,
forced resignations in the face of unacceptable alternatives, sexual harassment by employees’ superiors, 147 abuse by
4th Ed, 2022, ch 4-p 68
an employer’s wife, 148 demotion, 149 unilateral amendments to terms and conditions of service, 150 failure to pay the employee’s
salary, 151 and unfair disciplinary action 152 have all been accepted as justifying claims of constructive dismissal. So, too, was an
employer’s failure to assist an employee who resigned while suffering from chronic depression, even though the depression was not
caused by the work-related situation of which she complained. 153
In some cases, courts have required compulsion or threat of force by the employer. 154 While compulsion or threat of force may
well justify a claim that a resignation amounted to a constructive dismissal, these requirements are clearly not preconditions for
proof of a dismissal in terms of s 186(1)(e).
The courts will be slow to accept a claim that an employee was ‘forced’ to resign where the employer has exercised its rights in
making the alleged threat, such as indicating an intention to take criminal action against employees. 155
There are limits to the extent to which the courts will accept that rough language and bad manners justify a claim of
constructive dismissal. In Miladys v Naidoo, 156 the court found that the main reason Ms Naidoo resigned was pique about her
superior’s management style, which, although ‘aggressive’, was in the court’s view justified in view of Naidoo’s poor performance as
a store manager. The court acknowledged that abuse of a serious nature can result in constructive dismissal, especially if it is
accompanied by implied threats against the employee. 157 But Naidoo was a ‘mature woman with managerial experience spanning
some ten years and [she] ought to have been able to handle the situation properly’. Her claim that had she been spoken to ‘nicely’
she would not have resigned did not help her. Differences of opinion at senior management level are not enough to justify a claim of
constructive dismissal. 158
The ultimate test for whether any alleged forms of ‘intolerable’ conduct are indeed intolerable is whether the actions complained
of indicated a pattern of conduct on the part of the employer which, if not sufficient in itself to drive the employee to leave, was
one which the employee could not be expected to endure indefinitely. A single spontaneous action, like the muttering of a curse
word, will not satisfy this test. 159 Nor will an employee’s false belief that the employer was bent on unilaterally changing their
terms and conditions of employment. 160
4th Ed, 2022, ch 4-p 69
While abuse of employees and conduct by employers which indicate that the continuation of the employment relationship is futile
are classic justifications for claims of constructive dismissal, 161 the courts and arbitrators have also accepted that employees
were constructively dismissed if they were tricked into resigning in circumstances in which they would not otherwise have done so.
So an employee who resigned rather than face a disciplinary inquiry into his alleged negligence was found to have been
constructively dismissed because the employer had not disclosed that the deficiencies which formed the substance of the charge
had in fact been corrected to the satisfaction of management. 162 So, too, was an employee who was induced to resign with an
offer of alternative employment that never materialised. 163
An employee who resigns because the employer has refused to perform some action which would have entailed the perpetuation
of the employment relationship may be hard put to prove constructive dismissal. In Albany Bakeries v Van Wyk, 164 the employee’s
claim failed because he had stated in his resignation letter that he was aggrieved because he had not been offered demotion or a
severance package. On the other hand, claims by employees that they have suffered mere distress or disappointment as a result of
the actions of their employers do not prove constructive dismissal. Claims by employees that they have been overlooked for
promotion, or that they resigned to avoid disciplinary action which was prima facie justified, 165 have not been accepted as laying
a basis for claims of constructive dismissal. The mere fact that an employee has been given an unreasonable instruction does not in
itself justify a claim of constructive dismissal, especially if the employee failed to make use of the company’s grievance procedure
before resigning; 166 nor does the fact that the employee believes that he is being discriminated against, unless some basis can be
laid for that belief. 167
Employees who resign to avoid disciplinary action generally cannot claim to have been constructively dismissed. A mere suspicion
that the outcome is predetermined is not enough. 168 But there may be exceptions to this rule. 169
The third requirement for proving that a dismissal has taken place within the meaning of s 186(1)(e) is that the circumstances
must have been brought about by the employer. This means that the employer must personally, or through one of its agents, have
performed actions which created the intolerable circumstances.
4th Ed, 2022, ch 4-p 70
A claim of constructive dismissal based on actions of an employee’s colleagues will not succeed unless the employer was aware of
those actions and failed to take action to prevent them. 170 Similarly, an employer cannot be held to have created intolerable
working conditions for an employee if those circumstances arose as a result of actions of a third party outside the employer’s
control.
The fourth requirement for a constructive dismissal is that there must have been a causal nexus between the acts of the
employer of which the employee complains and the decision to resign. This requirement will be difficult to satisfy after a significant
lapse of time between the occurrence of the event of which the employee complained and the resignation. 171 The situation
brought about by those acts must have induced the employee to resign. If, for example, an employee resigns after filing grievances
and it is then proved that his primary motive was, say, to obtain a better job, the claim based on constructive dismissal will fail.
Such claims will also fail if the employee’s primary motive is to make money out of the employer. 172 But failure to file a grievance
will not necessary be fatal to a constructive dismissal claim if it would have been futile to do so. 173
The SCA added a fifth requirement to the test for constructive dismissal in Murray v Minister of Defence: 174 that the employer
must have been to blame for the employee’s intolerable situation. In that case, the appellant, the SA Navy’s most senior military
policeman, resigned after twice being court martialled on false allegations by disgruntled subordinates, then being relegated to a
supernumerary position elsewhere. The court found that the navy could not be blamed for taking action against Commander Murray,
even if that had been done amid a ‘blaze of media publicity’ which he had naturally found distressing. But the navy was to blame for
downgrading Murray’s post after transferring him to the supernumerary position, and for not properly explaining to him the
alternative post it had offered. The distress caused by these blameworthy actions was enough to turn Murray’s resignation into a
constructive dismissal.
In Murray’s case, the court also made the point that, when assessing the relationship between the acts of which the employee
complains and the decision to resign, a court should not adopt a piecemeal approach, ie go through each complaint and assess
whether it was in itself sufficient to warrant resignation. The proper approach is to view the situation ‘holistically’, even if, as in
Murray’s case, the saga that preceded the resignation spanned several years. 175
4th Ed, 2022, ch 4-p 71
Employers who make bona fide efforts to remove the cause of the employee’s complaint will not be held to have rendered the
employment relationship intolerable. In Conti Print v CCMA, 176 the employee had complained that her health was threatened by an
over-effective air-conditioning system, resigned and claimed to have been constructively dismissed. The LAC found that Conti Print
had reacted immediately to the employee’s complaints and had offered to move her workstation and had even urged her to take
sick leave. The court ruled that the employee had failed to make out a case of constructive dismissal.
The converse applied in National Health Laboratory Service v Yona. 177 Ms Yona resigned and claimed to have been
constructively dismissed because she became depressed about not being promoted to a post in which she had acted several times.
Both a CCMA commissioner and the Labour Court held that Ms Yona had been constructively dismissed. The LAC also agreed.
Although the National Health Laboratory Service was entitled to appoint a former subordinate of the employee to the post in
question, the court was of the view that management should have offered more help to Ms Yona when she asked for help to apply
for medical boarding. The LAC found that at the time of her resignation, Yona had experienced intolerable conditions she could not
reasonably be expected to endure.
The final requirement for proving a constructive dismissal is that the employee had no reasonable option in the circumstances
other than to terminate the employment relationship. 178 Whether there were alternatives and, if so, whether those alternatives
were reasonable, is a question of degree. In some circumstances, employees may justifiably conclude that no action on their part
could possibly remedy the situation. In others, some action by the employee to rectify the cause of the distress may be called for.
Where the complaint is such that the employer could, and probably would, have dealt with the cause of the employee’s
unhappiness – such as the conduct of a superior, colleague or client – the employee should file a complaint before resigning. Where
employees have failed to file grievances or formally complain of the treatment which induced them to resign, they are unlikely to
persuade arbitrators that they were constructively dismissed. 179 So, too, where the employee has been referred for counselling
and the employee resigns before the process is completed, 180 or resigns before a grievance hearing initiated by himself has been
convened, 181 or imagines without good reason that he is going to be dismissed for poor work performance. 182
127 But see now Murray v Minister of Defence (2006) 27 ILJ 1607 (C ) and Murray v Minister of Defence (2008) 29 ILJ 1369 (SC A), in which the
High C ourt and the SC A both applied the normal principles of constructive dismissal in a claim for damages by a naval officer against the South African
National Defence Force (SANDF), which is excluded from the operation of the LRA.
128 See, for example, CSIR v Fijen (1996) 17 ILJ 18 (A). The onus of proving that the employer breached the contract by creating intolerable
working conditions is now lightened by the civil court’s recognition of a general duty resting on all employers to treat their employees fairly: see Murray v
Minister of Defence supra.
129 In Jordaan v CCMA (2010) 31 ILJ 2331 (LAC ).
130 Section 192(1). See also Smith and Magnum Security (1997) 2 LLD 50 (C C MA); Secunda Supermarket t/a Secunda Spar v Dreyer NO (1998) 19
ILJ 1584 (LC ); Goliath v Medscheme (1996) 17 ILJ 760 (IC ).
131 See MEC, DOH, Eastern Cape v Odendaal (2009) 30 ILJ 2093 (LC ).
132 Wallis v Thorpe (2010) 31 ILJ 1254 (LC ).
133 See, for example, Redman / Tuinskloof Farms [2000] 11 BALR 1285 (C C MA).
134 SACWU v Dyasi [2001] 7 BLLR 731 (LAC ).
135 See Solid Doors v Commissioner Theron (2004) 25 ILJ 2337 (LAC ), in which it was made clear that employees claiming to have been
constructively dismissed must prove that they, not their employers, terminated employment. The court found that the employee’s case was based
squarely on the allegation that he had been told to ‘f off’ by his employer, and that he had done so. This was effectively a dismissal in the ordinary
sense. The employee could not claim in these circumstances that he had resigned. The apparent confusion between these concepts in CEPPWAWU v
Glass & Aluminium 2000 (2002) 23 ILJ 695 (LAC ) is pointed out above.
136 (2001) 22 ILJ 2531 (BC A).
137 (2004) 25 ILJ 1349 (C C MA).
138 For an extreme example of self-created intolerability, see Shoprite Checkers v Nkosi (2022) 43 ILJ 1386 (LC ).
139 (1997) 18 ILJ 981 (LAC ) at 724E–G, 984E–F.
140 Pretoria Society for the Care of the Retarded v Loots (1997) 18 ILJ 981 (LAC ).
141 Value Logistics v Basson (2011) 32 ILJ 2552 (LC ).
142 Asara Wine Estate & Hotel v Van Rooyen (2012) 33 ILJ 363 (LC ).
143 Western Cape Education Department v GPSSBC (2013) 34 ILJ 2960 (LC ), confirmed on appeal in Western Cape Education Department v
GPSSBC (2014) 35 ILJ 3360 (LAC ).
144 See, for example, Niland v Ntabeni NO (2017) 38 ILJ 1686 (LC ).
145 Albany Bakeries v Van Wyk (2005) 26 ILJ 2142 (LAC ) at [30]; Eastern Cape Tourism Board v CCMA [2010] 11 BLLR 1161 (LC ).
146 See, for example, Le Monde Luggage t/a Pakwells Petje v Dunn NO (2007) 28 ILJ 2238 (LAC ); Riverview Manor v CCMA (2003) 24 ILJ 2196
(LC ); Rossouw / Charl Meyer t/a Capwest Moulding Components [1999] 3 BALR 249 (C C MA).
147 Pretorius v Britz [1997] 5 BLLR 649 (C C MA); Payten / Premier Chemical Industries [1999] 8 BALR 922 (C C MA).
148 Roos / Serfontein [2001] 1 BALR 41 (C C MA).
149 Mhlambi v CCMA (2006) 27 ILJ 814 (LC ).
150 SALSTAFF v Swiss Port South Africa [2003] 3 BLLR 295 (LC ); Baba / East Cape Agricultural Project [1999] 9 BALR 1013 (C C MA); Bhana and
Columbus Stainless (2005) 26 ILJ 1793 (BC A).
151 Dawtrey and BBR Security (1998) 3 LLD 414 (C C MA).
152 SALSTAFF obo Bezuidenhout and Metrorail (2) (2001) 22 ILJ 2531 (BC A).
153 National Health Laboratory Service v Yona (2015) 36 ILJ 2259 (LAC ).
154 Dalgleish v Ampar t/a Sol Energy [1995] 11 BLLR 9 (IC ).
155 Nokeng Tsa Taemene Local Municipality v Louw NO [2019] 1 BLLR 35 (LAC ).
156 (2002) 23 ILJ 1234 (LAC ).
157 C iting, with approval, Palmanor v Cedron [1978] IRLR 303.
158 Solidarity obo Van Tonder v ARMSCOR (2019) 40 ILJ 1539 (LAC ). See also Chimphondah v Housing Investment Partners (2021) 42 ILJ 1720
(LC ).
159 See L M Wulfsohn Motors t/a Lionel Motors v Dispute Resolution Centre (2008) 29 ILJ 356 (LC ) at [14].
160 Gold One v Madalani (2020) 41 ILJ 2832 (LC ).
161 For a classic example, see Centre for Autism Research & Education v CCMA (2020) 41 ILJ 2623 (LC ).
162 NETU v Meadow Feeds [1998] 1 BLLR 99 (C C MA). But see Daniels and Cape Promotional Manufacturing (2006) 27 ILJ 196 (C C MA). The
commissioner found that sufficient pressure had been exerted on Ms Daniels before a disciplinary hearing was convened to render her resignation
‘involuntary’. However, the commissioner accepted that Ms Daniels was in fact guilty of theft and ruled her ‘dismissal’ substantively fair. Ms Daniels was
awarded compensation equivalent to two months’ wages for being denied the opportunity to state her case.
163 Botha / Toys Promotion t/a Novelty Toy [2001] 4 BALR 323 (C C MA).
164 (2005) 26 ILJ 2142 (LAC ).
165 Dallyn v Woolworths (1995) 16 ILJ 696 (IC ).
166 Foschini Group v CCMA (2008) 29 ILJ 1515 (LC ); Kruger v CCMA (2002) 23 ILJ 2069 (LC ); Aldendorff and Outspan International (1997) 18 ILJ
810 (C C MA); Smith and Magnum Security (1997) 2 LLD 52 (C C MA).
167 Mahlangu v Amplats Development Centre (2002) 23 ILJ 910 (LC ).
168 See Shoprite Checkers v JL (2022) 43 ILJ 903 (LC ) – even though the court accepted that there was some justification for the suspicion.
169 See, for example, Metropolitan Health Risk Management v Majatladi (2015) 36 ILJ 958 (LAC ), in which it was found that the disciplinary hearing
the employee had resigned to avoid was the culmination of a sustained attempt to force her to accept a transfer.
170 See, for example, Ntsabo v Real Security (2003) 24 ILJ 2341 (LC ), in which the employee resigned after being sexually harassed by a
supervisor. In such cases, the EEA specifically provides that the employer will not be held liable for the conduct of the offending employee if he takes
steps to prevent the harassment. Under the common law, however, the High C ourt has held that employers are strictly liable for the conduct of their
employees in such cases: see Grobler v Naspers (2004) 25 ILJ 439 (C ).
171 Agricultural Research Council v Ramashowana NO (2018) 39 ILJ 2509 (LC ).
172 This was found to be the main motive of the employee in Murray v Minister of Defence (2006) 27 ILJ 1607 (C ). However, that finding was
overturned on appeal: see Murray v Minister of Defence (2008) 29 ILJ 1369 (SC A).
173 Centre for Autism Research & Education v CCMA (2020) 41 ILJ 2623 (LC ).
174 (2008) 29 ILJ 1369 (SC A).
175 For examples of where this test was applied and employers were found not to be blameworthy, see Daymon Worldwide SA v CCMA (2009) 30
ILJ 575 (LC ) and Niland v Ntabeni NO (2017) 38 ILJ 1686 (LC ).
176 (2015) 36 ILJ 2245 (LAC ).
177 (2015) 36 ILJ 2259 (LAC ).
178 SmithKline Beecham v CCMA (2000) 21 ILJ 988 (LC ).
179 See, for example, Coetzer and The Citizen Newspaper (2003) 24 ILJ 622 (C C MA); Olivier and Imperial Bank (2006) 27 ILJ 1049 (C C MA);
Foschini Group v CCMA (2008) 29 ILJ 1515 (LC ).
180 Kuipers and Durattract Plastics (2004) 25 ILJ 758 (BC A). For the requirements of a plea in cases of constructive dismissal see Aarons v
University of Stellenbosch (2003) 24 ILJ 1123 (LC ) at [7]–[10].
181 HC Heat Exchangers v Araujo [2020] 3 BLLR 280 (LC ).
182 Billion Group v Ntshangase (2018) 39 ILJ 2516 (LC ).

4th Ed, 2022, ch 4-p 72
An amendment to the LRA introduced a form of constructive dismissal (see above) that occurs specifically in the context of a
transfer of a contract of employment along with a business that is transferred as a going concern from one employer to another.
Section 186(1)(f) renders the resignation or abandonment of employment by an employee whose contract is transferred in
accordance with s 197 or s 197A a dismissal if the new employer ‘provides the employee with conditions or circumstances at work
that are substantially less favourable to the employee than those provided by the old employer’. If the ‘new’ employer offers the
same or similar terms and conditions of employment, the transferred employees cannot claim to have been dismissed by the ‘old’
employer. 183 Section 186(1)(f) provides employees with the means of withdrawing from the transfer if the new employer fails to
do so. Only the ‘new’ employer can effect this form of dismissal. 184
An employee claiming compensation under this provision must prove that the conditions offered by the new employer are
substantially different from those offered by the old employer. Minor changes will not justify a resignation in terms of this provision.
183 Krishna v UKZN (2012) 33 ILJ 1688 (LC ). Transfers under s 197 are discussed in detail in C hapter 19.
184 Although, if the old employer had colluded with the new employer, it could also conceivably be held liable. Had s 186(1)(f) been in operation at
the time, the employees in Irvin & Johnson v CCMA (2006) 27 ILJ 935 (LAC ) might have been able to claim to have been dismissed, as well as to have
been entitled to severance pay from the old employer.

Section 198A(4) introduced a further and novel form of dismissal that can occur only in labour broking arrangements. This provides
that the termination by a TES of an employee’s service with a client, ‘whether at the instance of the temporary employment
service or the client, for the purpose of avoiding the operation of sub-s (3)(b) or because the employee exercised a right in terms
of this Act, is a dismissal’.
This provision can be understood only by reading it in the context of s 198A, which is aimed at regulating labour broking
arrangements involving employees earning below an amount determined by the minister. The key to the section is the concept of
‘temporary service’, which means work for a client by an employee for a period not exceeding three months, as a substitute for an
employee of a client who is temporarily absent or in a category of work and for any period which is determined to be a temporary
service by a collective agreement concluded in a bargaining council or in a sectoral determination. 185
Employees performing temporary service, as defined, remain employees of the TES. When ‘temporary service’ ends or does not
apply, s 198A(3) is triggered. This provides that an employee not performing temporary service for the client is ‘deemed to be the
employee of that client and the client is deemed to be the
4th Ed, 2022, ch 4-p 73
employer’ and that ‘subject to the provisions of s 198B, 186 employed in an indefinite basis by the client’.
Treating as a dismissal the termination by a TES of its employee’s services with a client is novel. In ordinary circumstances,
labour brokers are free to withdraw their employees from clients. However, even before the introduction of s 198A, the courts held
that where such withdrawals leave the employees without alternative employment, the employee is regarded as having been
dismissed by the broker, even if the employees signed contracts of employment providing for ‘automatic termination’ where the
client no longer wants or needs the employee’s services (see above).
Section 189A(4) is an obvious attempt to frustrate attempts by brokers to prevent employees from being ‘deemed’ employees of
clients by virtue of s 198A(3). But its scope is perhaps more limited than appears at first glance. First, the termination of the
employee’s services with the client must be effected by the broker, albeit in its own accord or on the insistence of the client.
Secondly, the removal of an employee from a particular client will constitute a dismissal in this sense only if the aim, presumably of
the broker, is to avoid the operation of sub-s (3)(b) or because the employee exercises a right under the LRA. Thirdly, s 198A(4)
merely defines such conduct as a dismissal; it does not at the same time pronounce it unfair or automatically unfair. The bona fide
redeployment of an employee from one client to another, say on better terms for the broker, will accordingly not constitute a
dismissal of this type, or indeed of any kind. Nor, it is suggested, will a dismissal occur where the employee is removed on a client’s
insistence for misconduct, incapacity or the client’s genuine operational requirements. In such cases, the broker is faced with the
choice of finding an alternative placement for the employee, or terminating the employee’s services, in which the case the dismissal
will be effected by the broker, unless the employees were employed on fixed-term contracts which had expired. 187
Similarly, it would seem that the removal of employees as a result of the cancellation of the broking agreement would not
constitute a dismissal as contemplated by s 198A(4). Apart from the fact that the substratum of the TES-client relationship will
then have ended, meaning that there is no longer a ‘client’ to be deemed an employer, neither the client nor the broker could then
arguably be motivated by the desire to evade the operation of the deeming provision. The client would rather be motived by the
desire to cease using the services of the broker, and the broker can hardly be blamed for its client’s wishes. 188
185 Section 198A(1).

186 Discussed above.
187 See, for example, Ekurhuleni Metropolitan Municipality v Madonsela (2021) 42 ILJ 2168 (LAC ).
188 See Assign Services v NUMSA (Casual Workers Advice Office as Amicus Curiae) (2018) 39 ILJ 1911 (C C ).

The forms of termination discussed thus far are all recognised as dismissals for purposes of the LRA. Contracts of employment may
also end in other ways, though. When contracts of employment are terminated in the circumstances discussed below, dismissals will
not generally be deemed to have occurred.
4th Ed, 2022, ch 4-p 74

In terms of ordinary contractual principles, when the obligations under contract have become permanently and objectively
impossible to perform due to no fault of either party, the contract automatically terminates. In the context of the employment
relationship and unfair dismissal law this would mean that no dismissal has taken place.
The doctrine of impossibility of performance has different consequences when raised by employees, on the one hand, and
employers, on the other. Where employees find it impossible to perform, the ordinary principles apply. If the impossibility is
temporary – due, for example, to illness or injury – the contract is suspended for the duration of the incapacity. This means that
the employer need not perform its obligations under the contract, for example, to pay the employee or permit the employee to
render service, until the impossibility ends. But if the circumstances rendering it impossible for employees to perform are permanent
or of lengthy duration, for example, permanent incapacity or a long jail term, the contract automatically terminates once the
permanency of the impossibility is established.
If an employee emerges from a long period of incarceration or illness and brings an action for unfair dismissal, the case can be
treated on one of two bases: it might be accepted that the contract lapsed when the length of the employee’s absence became
unreasonable; or it might be accepted that the contract was terminated by the employer when it accepted the employee’s
repudiation, say, by appointing another person in the employee’s post. In either case, it would be unlikely that the employer would
be held to have acted unfairly.
However, the defence of impossibility of performance will not apply in every case. For example, in NUM v CCMA, 189 the
applicant employee was sentenced to five years’ imprisonment for culpable homicide, which was later reduced on appeal to 10
months. A few months into his jail term, the employee was informed by the employer that his services had terminated because his
absence amounted to a repudiation of his contract of employment which, said the employer, had been accepted. After his release,
the employee referred a dispute to the CCMA. The commissioner held that the employee’s contract had automatically terminated
because he was unable to perform his duties. The court found that the commissioner had made two reviewable errors. First, her
finding that the termination did not constitute a dismissal because the contract terminated ‘automatically’ was clearly wrong;
secondly, the commissioner contradicted herself because she had accepted that, in cases of temporary incapacity due to illness or
injury, a contract of employment is suspended until the employee is able to work again. Yet the commissioner had made no effort to
establish whether the employee’s incapacity was temporary or permanent or, if temporary, whether the period of absence was
reasonable. The point that emerges from this case is that the period of absence must indeed be unreasonable before the contract
will be held to have lapsed because of the employee’s inability to perform.
4th Ed, 2022, ch 4-p 75
This issue also arose in Samancor Tubatse Ferrochrome v MEIBC. 190 The employee involved in that case was arrested for
armed robbery, and was held in police custody. After about 10 days, Samancor informed him that he had been dismissed. When the
employee was released, the company convened a hearing and confirmed the earlier dismissal. An arbitrator and the Labour Court on
review held that the employee had been unfairly dismissed because the employee’s absence was due to circumstances beyond his
control. The LAC held that both the commissioner and the LAC had placed too much emphasis on the notion of ‘incapacity’, and had
incorrectly limited the ambit of that expression to absence caused by ill health or injury. According to the LAC, employees may also
be incapacitated if they are unable to render service for other reasons, of which lengthy incarceration is one. While there was no
inflexible rule that imprisoned employees may be dismissed, the rule applied in this case because Samancor had no idea when the
employee would resume work, and was entitled to fill his position.
It has been held that where an employer can no longer retain an employee because of pressure from a third party, the employer
may not treat the case as an instance of impossibility of performance. That scenario typically arises in labour broking arrangements,
where the broker’s client insists that an employee be taken off the contract, and the broker has no alternative positions. Although,
strictly speaking, the employee cannot perform his or her contractual obligations, such cases must be treated as cases of
incapacity or misconduct, as the case may be. 191
However, the courts and arbitrators will not generally accept that the inability of employees of a labour broker to work for a
particular client absolves the broker of the obligation to seek alternative employment for them or, if the employee was guilty of
serious misconduct, to hold a disciplinary hearing. 192
Where the impossibility is on the side of the employer, a contract of employment does not lapse automatically. If an employer
dies or his factory is destroyed by an earthquake or fire, employment contracts remain in force until they are terminated by notice
or by some other means. In that case, the employees would at common law be left with claims against the deceased employer’s
estate or an action for breach of contract.
The only case in which the defence of impossibility of performance had been considered in detail by a court was a case in which
employees sought to have their employers placed under business rescue. 193 Like many employers, especially those in the
hospitality industry, the respondent restaurants suffered financially during the Covid-19 lockdowns. The restaurants argued that
they had no obligations to their employees because of force majeure and that the employees had no locus standi. They also
pointed out that they had done what they could to assist their employees financially with loans and Unemployment Insurance Fund
(UIF) applications, but
4th Ed, 2022, ch 4-p 76
in the end had notified them that they were temporarily laid off until the end of the lockdown, and that the principle of ‘no work, no
pay’ would be applied.
The High Court held that the employees were ‘affected persons’ in terms of the relevant provisions of the Companies Act and
therefore had locus standi to apply for business rescue. The ‘suspension’ of their contracts did not mean that the contracts had
terminated while they tendered service. Their contracts had made no provision for force majeure. Generally, that principle applied
only when performance was absolutely or objectively impossible, not when it was relatively or subjectively inconvenient. The right
to remuneration arose not from actual performance of work but from the tendering of services. Moreover, the regulations in force
during level 5 of the lockdown made it clear that employers were not excused from their obligation to pay their employees’ salaries.
Under level 4, the restaurants had been allowed to sell food by collection or delivery. That this type of service was not as
profitable as the restaurants would have liked, did not relieve them from their obligations to their employees. Economic hardship did
not render performance objectively and totally impossible. The court found it just and equitable that the restaurants be placed
under business rescue and ordered that rescue proceedings be commenced. The same conclusion might have been drawn had the
restaurants dismissed the employees. But the further question would have been whether the dismissals were fair.
10.2 Insolvency
In terms of s 38 of the Insolvency Act, 194 contracts of employment are automatically suspended the sequestration of the
employer’s estate. This is why a copy of the application for provisional sequestration must be handed to employees of the insolvent
before an order may be granted. 195 In two judgments the court held that termination of employment as a result of employers’
insolvency is not a dismissal for purposes of the LRA, 196 and that ‘the reach of the [LRA] halts once insolvency enters the
picture’.
This proved to be an overstatement. In NULAW v Barnard NO, 197 the LAC drew a distinction in this regard between liquidation
of companies by order of court and voluntary winding-up by resolution of a company’s shareholders. As to whether the termination
of contracts of employment in consequence of voluntary winding-up constituted a dismissal for purposes of the LRA, the court
noted that the key issue in the interpretation of the phrase ‘an employer has terminated the contract with or without notice’ is
whether the employer has engaged in an act which brings the contract of employment to an end in a manner recognised as valid by
law.
Unlike compulsory sequestration, where liquidation occurs as a result of an order of court, voluntary winding-up is an act by the
employer. Since that act results in the termination of the employer’s contracts of employment, it also constitutes a dismissal for
purposes of s 186(1)(a). The dismissal in the NULAW case was
4th Ed, 2022, ch 4-p 77
therefore unfair because the company had failed to comply with the requirements of s 189, 198 ie to consult with the employees,
before going into voluntary liquidation.
Acceptance by employees of a sum of money in return for agreeing to terminate the contract normally amounts to a consensual
termination. In a number of cases, employers faced with claims for unfair dismissal have argued that the court should not hear the
matter because it had been settled and there was therefore no dispute to adjudicate.
Acceptance of an offer of money in settlement of a dispute between parties is generally regarded as a waiver by the employee
of his or her right to litigate over the issue. However, uncritical acceptance of this principle may give rise to obvious inequities. An
unschooled, unrepresented employee in straitened circumstances may easily be persuaded to accept a sum of money ‘in full and
final settlement’. Initially, the industrial court took a principled stand against employers ‘buying off’ employees before they launch
legal proceedings. 199
But if this approach were pressed too far no dismissal disputes could be settled before a matter could come before an arbitrator
or court. The courts should therefore be, and have been willing to investigate whether disputes have really been settled – and
whether such settlements constitute consensual terminations of the employment relationship on the terms contained in the deed of
settlement.
An agreement will not necessarily amount to a waiver by employees of their right to pursue an action simply because it is said to
be in ‘full and final settlement’ of the dispute. Abandonment of employees’ right of action is based upon the principle of waiver.
Waiver is not lightly presumed; the onus of proving a waiver is on the party alleging waiver. 200 Employees entering into settlement
agreements must be fully aware of the implications of the settlement. 201 Acceptance by employees of notice of termination and
severance monies ‘in full and final settlement’ of all claims arising from their retrenchment does not constitute a waiver of their right
to pursue a claim for unfair dismissal if the employer continues to consult the employees’ union after their dismissal. 202
To constitute a waiver, the settlement must have been tendered in respect of the actual dispute the employees wish to
pursue; 203 if employees accept an amount in settlement of a dispute over their dismissal, they do not thereby relinquish claims to
severance pay, or vice versa. Acceptance of severance pay does not in itself amount to a waiver of the right to pursue an unfair
dismissal action. 204 Furthermore,
4th Ed, 2022, ch 4-p 78
settlement agreements must be concluded by the employees themselves, or by persons authorised to conclude settlement
agreements on their behalf.
The employer may have concluded a settlement agreement solely to create an opportunity to do lawfully what was previously
done unlawfully. An employer that agreed to lift an employee’s unfair suspension, only to suspend the employee again immediately
for the same reason, was held to have fraudulently attempted to prevent the employee from pursuing his action by offering
settlement. 205 On the other hand, the subsequent dismissal for a different reason of an employee who was reinstated in terms of
a settlement agreement does not necessarily constitute a breach of the agreement. 206
The manager who concludes the settlement agreement must have the authority to do so on behalf of the employer. 207
Waiver by settlement should not be confused with compromise of employees’ right to claim relief because they unreasonably
refused offers of compensation or reinstatement. Unlike waiver, compromise does not deprive the court of jurisdiction. The
employees can merely be deprived of relief on the basis of their unreasonable conduct.
A valid settlement agreement in which an employee waives the right to contest a dismissal is not unconstitutional merely
because it deprives the employee of the right to vindicate his right not to be unfairly dismissed. 208
It may be unusual, but not inconceivable, that a trade union agrees with an employer that the services of some of its members be
terminated. If such a collective agreement is duly struck, the unfortunate employees are bound by the agreement. According to
one judgment, this does not only mean that the employees concerned may not institute action because they have waived that
right. It means that the employees have not been dismissed at all, because collective agreements bind members of unions that are
party to them, and because the employees are in turn bound by the principle of ‘majoritarianism’, which entitles to unions to act in
the interests of the majority of their members, even if to the detriment of the minority. 209
When a person concludes a contract under duress, or for purposes that are unlawful or contra bonos mores, or if the contract is
forbidden by law, no obligations arise from the contract. It can also be dissolved at any time by either party because it was void ab
initio. If a contract of employment is dissolved for any of these reasons, a dismissal will not be deemed to have taken place.
4th Ed, 2022, ch 4-p 79
A distinction must be drawn in this regard between contracts that are void ab initio, and contracts which are merely unlawful for
want of the parties’ compliance with a statute. In Discovery Health v CCMA, 210 the Labour Court held that employing a foreigner
without a work permit in contravention of the Immigration Act 13 of 2002 nevertheless gave rise to a valid and enforceable
contract, because the legislature’s intention was merely to visit the employer with a penalty. The termination of such a contract
therefore constituted a dismissal. 211 However, the court observed that its judgment did not necessarily apply to situations in
which the work performed was illegal or contra bonos mores, as was found to be the case in ‘Kylie’ and Van Zyl t/a Brigittes, 212 in
which the CCMA declined to assume jurisdiction in a dispute concerning the termination of a sex worker’s services. The Labour
Court’s judgment in ‘Kylie’ was overturned on appeal. 213
A number of statutes, including the Public Service Act (Proc 103 of 1994), 214 provide that employees are ‘deemed’ to have been
discharged if they are absent from work without permission for longer than a stipulated period. The courts have consistently held
that employees whose services are terminated under these provisions are not dismissed, but have rather been ‘discharged by
operation of law’. 215 The ratio for these decisions is that the coming into operation of such a deeming provision is not dependent
on any decision. It is to be noted that all these cases concern public-sector employers.
4th Ed, 2022, ch 4-p 80
These judgments were confirmed by the SCA in Phenithi v Minister of Education. 216 The services of the appellant teacher were
terminated when she had been absent from work for about two months. When she referred a dispute to the Education Labour
Relations Council (ELRC) for arbitration, the arbitrator, following conventional wisdom, ruled that he lacked jurisdiction because Ms
Phenithi had not been dismissed, but had been ‘discharged by operation of law’ in terms of s 14(1)(a) of the Employment of
Educators Act 76 of 1998. Ms Phenithi then launched an application in the High Court, contending that her discharge had been ‘an
unfair labour practice and unconstitutional’. That application was dismissed. 217 On appeal, the court held that the issues were (1)
whether Ms Phenithi’s discharge constituted fair administrative action, and (2) whether s 14(1)(a) of the Act was unconstitutional.
The SCA confirmed earlier judgments in which it was held that, where employees are informed of their discharge in terms of
provisions in which an employee is ‘deemed’ dismissed after a period of absence, there is no exercise of a discretionary power.
There was accordingly no ‘decision’ or administrative act to review.
This reasoning is open to debate. Section 14(1)(a) provides that the termination is effected ‘unless the employer directs
otherwise’. This phrase suggests the existence of a discretion, the exercise of which should in principle be open to attack by way
of review. Furthermore, it is trite that a failure to act is also open to review.
The Phenithi court also rejected the argument that the deeming provision conflicts with the Constitution because s 14(2) affords
absconded employees a right to a hearing if they return to work after their ‘automatic discharge’. So, although the employee is
deemed to have been ‘automatically discharged’, the employer must still afford employees an opportunity to make representations,
albeit after the event, as to why the employer should not exercise the discretion to reinstate them. 218
Phenithi was not directly concerned with whether the discharge of an employee in terms of the ‘deeming’ provision constituted a
dismissal within the meaning of s 186(1)(a) of the LRA. Even so, following Phenithi, arbitrators and the Labour
4th Ed, 2022, ch 4-p 81
Court have consistently ruled that the discharge of an employee under s 17(5) of the Public Service Act and similar statutory
provisions does not constitute dismissal. 219
In spite of these judgments, it remains arguable that for purposes of the LRA, ‘deemed dismissals’ be regarded as arising from
acceptance by the employer of the employee’s repudiation, which has been held to constitute a dismissal in normal cases of
abscondment if the employer subsequently refuses to accept the employee’s tender of service. 220 It is noteworthy that the court
a quo in Phenithi referred to the termination as a ‘dismissal’.
In one case, 221 the Labour Court accepted that a CCMA arbitrator had correctly ruled that an employee purportedly discharged
under s 17(3)(a) of the Public Service Act had in fact been dismissed. The court accepted that commissioners may in the course of
determining unfair dismissal disputes inquire into whether the jurisdictional preconditions for invoking that provision had in fact
arisen, and that in this case they had not because the employee had in fact reported for duty at the workplace from which he had
been transferred. 222 The court came to the same conclusion in a case concerning a similar deeming provision in a collective
agreement, 223 and where there was a dispute over whether the employee had permission to be absent. In such cases, the factual
issues must be resolved through arbitration. 224
The only remedy afforded employees discharged under s 17(3) of the Public Service Act is to ‘appeal’ to the head of the
department concerned, showing cause why they should be reinstated. 225 Initially, the Labour Court held that an employee could
not claim to have been dismissed after an unsuccessful appeal because, so the court said, such an employee is by that stage no
longer in employment and occupies the same position as a work-seeker. 226 However, the court has now uniformly held that an
employee in this situation may seek relief by way of review under s 158(1)(h) of the LRA, because the decision as to whether to
reinstate an employee involves the exercise of discretion. In one case, the court appeared to accept that the refusal constituted a
dismissal as the matter was struck off the roll because the dispute should have been referred for statutory arbitration. 227
It may well be that the reasoning in Phenithi has been transposed too readily, and incorrectly, into the labour context. In
HOSPERSA v MEC for Health, 228
4th Ed, 2022, ch 4-p 82
the Labour Court put an important gloss on s 17(3)(a)(i) of the Public Service Act (at the time of the judgment the relevant
provision was s 17(5)(a)). The employee concerned had been seconded in terms of an agreement to do service as president of the
applicant union. The employer ultimately withdrew from the agreement, and insisted that the employee resume his normal duties.
The employee refused to do so, and the employer invoked the deeming provision and informed the employee that his services had
been terminated. The court held that, apart from the requirement that the employee must indeed have been absent for the
stipulated period, s 17(3)(a)(i) can be invoked only if it is impossible to take disciplinary action against the employee in terms of
Resolution 2 of 1999, being the applicable disciplinary code and procedure. In reaching this conclusion, the court reasoned that, if
statutory employers were free to use s 17(3)(a)(i) in any circumstances, all employees deemed dismissed in terms of that provision
would lose their right to protection afforded by the LRA. The court described s 17(5) (now s 17(3)) as a ‘draconian procedure’ that
must be used sparingly, and ‘only when the code cannot be invoked when the employer has no other alternative’. That would be
so, for example, when the employer was unaware of the whereabouts of the employee or if the employee makes it quite clear that
he or she has no intention of returning to work.
However, in subsequent cases the labour courts have continued to follow Phenithi literally. A recent example was Walsh v SG:
Eastern Cape DOH. 229 The case had an unusual background. After unions threatened to render the Fort England psychiatric
hospital in Grahamstown ungovernable and engaged in a series of unlawful and violent strikes, Dr Walsh was instructed to stay at
home, which turned out to be for a period of about two years. Finally, he was transferred to a position at the head office of the
Department of Health (DOH) in Bhisho. Walsh challenged the transfer in the Labour Court and his application was set down for
hearing on 18 October 2018. After agreeing with the presiding judge’s suggestion that they should try to settle, the matter was
postponed for a month and the parties agreed that Walsh need not report for duty ‘pending settlement of the matter or until after
the hearing on 19 November 2018, whichever may be the earlier’. Settlement talks collapsed and the matter was argued on 19
November 2018, when the court reserved judgment. 230 While awaiting judgment, Walsh applied for annual leave from 14 December
2018 to 7 January 2019. Three days after his leave ended, Walsh was informed by the superintendent-general (SG) of the
provincial DOH that he had been deemed discharged in terms of s 17(3)(a)(i) of the Public Service Act. His attorney filed
representations to the MEC for Health, contending that he had not been absent without leave for 30 days and that the provision
could not be invoked. On 7 February 2019, the MEC gave Walsh ‘the benefit of the doubt’ that he had been excused from reporting
for duty until 19 November 2018, which was declared his last working day, and declined to reinstate him. A while later the Labour
Court dismissed his challenge to the transfer decision. 231
Walsh approached the court again, seeking orders setting aside the decisions of the SG and MEC to discharge him. The court
rejected Walsh’s submission that
4th Ed, 2022, ch 4-p 83
s 17(3)(a)(i) required, in addition to the literal requirement that the employee must have gone AWOL for 30 continuous days, proof
that the employee had intended to desert. The Labour Court noted that several judgments of higher courts had held that the only
requirement for a ‘deemed discharge’ was that the employee had to be absent for a period of 30 days without permission and that a
notice to this effect was not reviewable because it did not require a decision. Walsh had never tendered his services at Bhisho. He
had therefore been absent from work without permission for a continuous period of one month. His ‘deemed’ dismissal was therefore
lawful. However, the court found that the MEC’s decision not to reinstate Walsh was unlawful because that discretion could be
exercised only after the employee had reported for duty, which Walsh had not done. But Walsh remained dismissed.
This judgment did not survive appeal, in which Walsh argued that the entire s 17(3) process had been conducted in bad faith
and for an ulterior motive. In an appeal heard together with his appeal against the transfer matter, 232 he contended that the
ulterior motive was to open the door for an argument that the appeal against his transfer was moot because he was no longer in
the department’s employ.
Having ruled the transfer unlawful, the LAC noted its defence of the deemed discharge ran into two major problems. Firstly, the
court’s finding that the department acted unfairly by transferring Walsh had fatal consequences for the ‘deemed’ discharge. An
essential requirement of s 17(3)(a) of the Public Service Act is that the employee must be absent from official duties without the
permission of his head of department (HOD). However, Walsh was entitled to refuse to perform his official duties at anywhere but
the hospital at which he tendered his services because his transfer was unlawful. Secondly, s 17(3)(b) gave the MEC power to
reinstate on good cause. Such cause was sourced in this LAC’s judgment. The court found it difficult to imagine a better cause to
reinstate Walsh than the finding that the department’s officials had acted egregiously in seeking to apply s 17(3) of the Public
Service Act, thereby allowing it to escape dealing with sustained illegality at a facility under their control. The appeal was upheld
with costs and the department was ordered to reinstate Walsh as CEO of the Fort England Hospital from the date of his purported
discharge in October 2018. The judgment was later confirmed by the Constitutional Court.
Although discharges in terms of deeming provisions are theoretically immune from review, they will be set aside if the
‘jurisdictional preconditions’ for such dismissals are lacking. For example, it was held that the deemed discharge of employees on
suspension could not stand because they could not be said to have been absent without permission. 233 But if the preconditions
are met, the LAC still accepts that letters informing absent employees are unchallengeable if the employees have been absent
without permission for the stipulated period. So a doctor who claimed
4th Ed, 2022, ch 4-p 84
that he was on leave was told that he had no case because, even if leave was due to him, he could not take it when he
pleased. 234
Once employees have been deemed dismissed by the operation of the deeming provision, their only remedy is to make
representations to the relevant executive authority as to why they should be reinstated. Because the courts are alive to the
invidious position of employees deemed discharged in terms of s 17(3)(a)(i) of the Public Service Act, they have taken a more
activist approach to ‘appeals’ conducted in terms of s 17(3)(b).
This line of cases commenced with De Villiers v HOD, Education, Western Cape Province. 235 The department had deemed Mr De
Villiers dismissed because he had failed to report for duty in terms of an arbitration award on the advice of his trade union, which
was of the view that De Villiers should not comply with the award because the department had not satisfied its conditions. 236
The stringency of the test for reviewing the rationality of a decision to refuse reinstatement was indicated in MEC, Department
of Education, Western Cape Government v Jethro NNO, 237 in which case the employee was an educator. The court held that the
test for establishing whether there was good cause for reinstatement depended on several facts and circumstances. These
included the:
• reasons for the absence
• duration of the absence
• conduct of the employee before and after the deemed discharge
• impact of the absence on the employer
• whereabouts of the employee during the period of absence
• practicality and tolerability of a continued employment relationship
• availability of alternative processes and solutions to the problem that led to the employee’s absence.
The Jethro court found that the HOD had acted ‘disproportionately’ by not invoking the department’s disciplinary or incapacity
procedures, or considering whether at the time of the deemed dismissal the employee was incapacitated, or whether corrective
discipline might have been appropriate. The HOD had merely focussed on the extent of the employee’s absence. This meant that
the decision was not rationally connected to the relevant information or the purpose of s 14(2) of the Employment of Educators Act
and was arbitrary, capricious and irrational. 238
The extent to which s 17(3)(b) of the Public Service Act may be abused is well illustrated by Ramonetha v Department of Roads
and Transport, Limpopo. 239
4th Ed, 2022, ch 4-p 85
Mr Ramonetha returned to work after four months’ absence and resumed work as if he had never been away. Seven months later,
he was summoned to a disciplinary hearing to explain his absence and the presiding officer held that he had already been deemed
discharged. Ramonetha appealed, but to no avail. A bargaining council arbitrator found that the council lacked jurisdiction to
entertain the matter because Ramonetha had not been dismissed, and the Labour Court agreed. Both were wrong. The LAC held
that the department’s use of Ramonetha’s services for nearly a year amounted to a waiver of any right the department might have
had to invoke s 17(3)(a)(i). The department was ordered to reinstate Ramonetha from the date of his dismissal.
Another deemed dismissal provision is to be found in s 59(1)(d) of the Defence Act 42 of 2002, which provides for the automatic
discharge of members of the SANDF if they are sentenced to imprisonment. The courts initially followed Phenithi when applying this
provision. In Minister of Defence & Military Veterans v Maswanganyi, 240 the SCA held that the SANDF was not obliged to reinstate
a soldier who had been sentenced to life imprisonment on a charge of rape, even though his appeal against conviction had
succeeded. Maswanganyi’s appeal to the Constitutional Court succeeded as well. 241 That court held that if the SCA’s judgment
were to be accepted, it would effectively mean that subsequent decisions of superior courts were irrelevant and would entitle the
SANDF to ignore a binding decision of an appeal court. The words ‘conviction’ and ‘sentence’ must be read as referring to valid
convictions and sentences. A successful appeal against a conviction means that the initial conviction and sentence must be
regarded as never having occurred. Maswanganyi’s successful appeal reversed his conviction by operation of law and applying s
59(1)(d) served no purpose. He was not required to ‘apply’ for reinstatement or re-employment. The decision not to reinstate him
was, accordingly, unjustified. This judgment shows that in at least this scenario a ‘deemed discharge’ may be reversed by operation
of law.
Maswanganyi had a knock-on effect on deemed dismissals in the South African Police Service (SAPS) as well. Mr Phopho, a
police captain, found himself in much the same position as Mr Maswanganyi. Although he was found not guilty of indecently
assaulting a woman employed at his station, he was convicted by a regional court and sentenced to eight years’ imprisonment,
three suspended. His appeal to the High Court succeeded and about two months after his release Phopho applied to be reinstated,
only to be told that his application was outside the 30-day time limit set by the South African Police Service Act 68 of 1995 (SAPS
Act). Phopho took that decision to the Labour Court, which held that Phopho’s legal team had provided a satisfactory explanation
for the delay: they had launched an application for reinstatement promptly after being belatedly informed that the appeal judgment
had been handed down. The court referred Phopho’s application to the SAPS for reconsideration. The SAPS appealed against this
decision and Phopho cross-appealed, contending that the Labour Court should have ordered him to be reinstated. Following
Maswanganyi in National Commissioner of SAPS v
4th Ed, 2022, ch 4-p 86
Phopho, 242 the LAC found that, although the wording of the applicable provisions in the Defence and SAPS Acts differ, the
principle laid down in Maswanganyi applied to both – a successful appeal expunges a person’s criminal record. The SAPS’ appeal
was dismissed and the national commissioner was ordered to reinstate Phopho.
Whether an employee will be ‘deemed’ dismissed by virtue of a similar provision in a domestic disciplinary code has not yet been
decided. The closest the court has come to affirming such a right was in Mpact v NBCWPS, 243 in which the court held that where
an employer in terms of its own disciplinary code is permitted to deem an employee to have deserted after a certain period of
unexplained absence, the employer need not establish that the employee intended to desert; the employee must on his return
provide satisfactory justification for the absence. 244
The termination of a contract may be unlawful for a number of reasons, such as lack of authority on the part of the decision-
maker, non-compliance with a binding disciplinary code, premature termination without good reason of a fixed-term contract of
employment or breach by public sector employers of the principles of administrative law. Under the common law, such dismissals
could be challenged in the civil courts. However, that situation has changed to the extent that the courts have ruled on a number
of occasions that employment-related matters should be resolved under the LRA.
Whether employees may refer dismissal disputes under the LRA relying only on the claim that their dismissals were unlawful, as
opposed to unfair, has been considered by both the LAC, 245 and the Constitutional Court, 246 in a case arising from a large-scale
retrenchment by Edcon. The employees in that case were retrenched, and approached the Labour Court with a claim that their
dismissals were unlawful because Edcon had not complied with the notice requirements set by s 189A of the LRA. They relied for
this contention on NUM v De Beers Consolidated Mines, 247 and Revan Civil Engineering Contractors v NUM, 248 in which it was
held that premature decisions to dismiss employees in terms of s 198A(8) were unlawful. Acting as a court of first instance, the LAC
held that De Beers and Revan were wrong, and that non-compliance with s 189A(8) and failure to refer the dispute for conciliation
merely rendered the dismissal procedurally unfair. The LAC pointed out that where a dismissal is declared unlawful, the decision to
dismiss is effectively expunged and the employee is entitled to reinstatement, which is not the case where a dismissal is merely
procedurally unfair. The Constitutional Court confirmed that the LRA does not provide for ‘unlawful’, as opposed to unfair dismissals.
Although
4th Ed, 2022, ch 4-p 87
the case turned on the consequences of a breach by employers of s 189A of the LRA, the court made it clear that employees
instituting action under the LRA for any form of dismissal cannot claim that their dismissal are unlawful, as opposed to unfair. The
majority of a divided court pointed out that the statutory definition of ‘dismissal’ does not include unlawful dismissals but does
incorporate fairness. Employees who wish to challenge their dismissals must accordingly do so under the LRA, which offers remedies
only for unfair dismissals. The net result of this judgment was that the employees were granted leave to refer an unfair dismissal
dispute in the ordinary course, with an application for condonation.
In a judgment delivered a short while later, SARS v CCMA, 249 the LAC appeared to accept, without reference to Edcon, that
dismissals after managerial intervention in sanctions imposed by disciplinary tribunals may result in a dismissal being ruled unlawful.
This judgment is at odds with Edcon. But the conflict between Edcon and its own earlier judgment did not worry the LAC in
James v Eskom Holdings. 250 The two appellant employees were fired for stealing watermelons from a farmer while on duty. They
appealed and the sanction was changed to two weeks’ unpaid suspension. After the employees had returned to work, they were
told that the GM had decided to dismiss them. A CCMA commissioner found that the employees had indeed stolen the watermelons,
but ruled the dismissals procedurally unfair because the GM had breached Eskom’s disciplinary code by interfering with the sanction.
James and his colleague received compensation. But they were still dissatisfied. They launched an application in the Labour Court,
claiming only that their dismissals were unlawful and invalid, and that they were entitled to resume work on that ground alone. The
Labour Court dismissed the application with costs.
The LAC noted that the employees had not launched the review in terms of s 145 of the LRA, but had merely sought an order
declaring that the CCMA lacked jurisdiction because there had been no dismissal. It was correct that a dismissal must have
occurred for the CCMA to assume jurisdiction. But jurisdiction must be determined by the pleadings. Considering the employees’
argument that no dismissal had occurred because the dismissal was ‘unlawful’ and the LRA does not cater for unlawful dismissals,
the LAC accepted that the majority in Edcon had held that the LRA does not provide for unlawful dismissals. But the LAC found that
this was in response to an aspect of the minority judgment. The highest court had not expressly overruled the view expressed by
the LAC in Edcon that an unlawful termination of employment falls within the scope of the statutory definition of dismissal. That
view accordingly remained binding. 251
The High Court is still prepared to entertain claims concerning alleged unlawful dismissals, even where the employee would have
had a claim under the LRA. 252
4th Ed, 2022, ch 4-p 88
Where dismissed employees claim that their contract has been repudiated by the dismissal, they must prove the contractual term
on which they rely. 253 A claim that the dismissal was unfair will not pass muster in such cases because the common law of
employment does not require that a dismissal must be either procedurally or substantively unfair, unless the contract of
employment provides for a fair pre-dismissal hearing. Where this is the case, the employer cannot simply rely on its right to
terminate the contract with or without notice. 254
The termination of employment will generally not constitute a dismissal unless the contract of employment is in force at the time.
This is true of valid fixed-term contracts (see above). But contracts can also lapse in other ways. One such is demonstrated by
Motitswe v City of Tshwane. 255 Mr Motitswe signed a five-year fixed-term contract with the City of Tshwane municipality subject
to the condition that he would sign a performance agreement within 90 days. Motitswe was suspended, and sought an order
allowing him to resume work. The municipality contended that Motitswe’s contract had lapsed because he had not signed a
performance agreement within 90 days. Motitswe blamed the municipality for the delay. The court noted that it is generally
accepted that words like ‘subject to’ in contracts created a suspensive condition, non-fulfilment of which automatically terminates
the contract. As the suspensive condition was not fulfilled within 90 days, the employment contract lapsed then. The court
declared that Motitswe’s contract of employment had lapsed and that he was no longer employed by the municipality.
Employers sometimes set conditions with which employees must comply after appointment, failing which their employment will
terminate. Such a condition was at issue in Nogcantsi v Mnquma Local Municipality. 256 The applicant accepted a written offer of
appointment as protection officer in the office of the municipal manager on a three-year fixed-term contract with a six-month
probation period. The offer was also subject to the outcome of a vetting and screening process, and stipulated that the contract
would be automatically terminated if the outcome was negative. Mr Nogcantsi was later informed that the outcome was indeed
negative – his previous employer, the SAPS, had disclosed that he faced several criminal charges. Nogcantsi’s contract was duly
terminated. A bargaining council arbitrator ruled that Nogcantsi had not been dismissed, and that ruling was upheld on review by
the Labour Court. Nogcantsi argued on appeal that the arbitrator had erred by finding that his contract had terminated
automatically and that this did not constitute a dismissal and also that the termination clause was invalid or void for vagueness.
The court held that this was not a case of ‘contracting out’ of the unfair dismissal provisions of the LRA. The municipality had not
triggered the negative
4th Ed, 2022, ch 4-p 89
vetting result; that information had been provided by the SAPS. The municipality had not directed its action to bringing about a
dismissal. A condition is not a term of a contract; it is an external fact on which the existence of an obligation depends. A term
relates to the nature of the obligation. A conditional contract of employment is a commercial reality, and is not in conflict with the
LRA. A suspensive condition means that there is no contract if the condition is fulfilled. With a resolutive condition, the contract
exists, but comes to an end upon fulfilment, and the contract is treated as if it never existed. It had been correctly found that a
dismissal had not occurred.
189 (2008) 29 ILJ 378 (LC ).

190 (2010) 31 ILJ 1838 (LAC ).
191 See, for example, Zondi and PPM Security Services (2009) 30 ILJ 981 (C C MA) and ‘Dismissal at the behest of third parties’ in C hapter 21.
192 See Molusi and Ngisiza Bonke Manpower Services (2009) 30 ILJ 1657 (C C MA).
193 Matshazi v Mezepoli Melrose Arch; Nyoni v Mezepoli Nicolway; Moto v Plaka Eastgate Restaurant; Mohsen v Brand Kitchen Hospitality (2021) 42
ILJ 600 (GJ).
194 Act 24 of 1936.
195 For an analysis of this requirement see Stratford v Investec Bank (2015) 36 ILJ 583 (C C ).
196 SAAPAWU v HL Hall & Sons (Group Services) (1999) 20 ILJ 399 (LC ), approved in Waverley Blankets v Ndima (1999) 20 ILJ 2564 (LAC ).
197 (2001) 22 ILJ 2290 (LAC ).
198 On which, see C hapter 16.
199 See, for example, PPWAWU v Delma (1989) 10 ILJ 424 (IC ); Mdlalose v IE Laher & Sons (1985) 6 ILJ 350 (IC ).
200 Oral evidence may be required for this purpose: Roberts and WC Water Comfort (1999) 4 LLD 117 (LC ).
201 Which was found to be the case in Gbenga-Oluwatoye v Reckitt Benckiser SA (2016) 37 ILJ 902 (LAC ), in which the employee waived his right
to approach the C C MA or the Labour C ourt to avoid disciplinary action.
202 NUM v Crown Mines [2001] 7 BLLR 716 (LAC ).
203 Twani / Hillbank Motor Corporation [2001] 12 BALR 1283 (MIBC O).
204 Elliot International v Veloo (2015) 36 ILJ 422 (LAC ).
205 Ngwenya v Premier of KZN (2001) 22 ILJ 1667 (LC ).
206 Harrisawak v La Farge SA (2001) 22 ILJ 1395 (LC ); Norkie v Diskom Discount (2001) 22 ILJ 1851 (LC ).
207 Saldanha Bay Municipality v SAMWU obo Wilschut (2016) 37 ILJ 1003 (LC ).
208 Gbenga-Oluwatoye v Reckitt Benckiser SA (2016) 37 ILJ 902 (LAC ); confirmed by the C onstitutional C ourt: (2016) 37 ILJ 2723 (C C ).
209 See Fakude v Kwikot (2013) 34 ILJ 2024 (LC ), the facts of which are set out in C hapter 21.
210 (2008) 29 ILJ 1480 (LC ).
211 See also Sithole v MEIBC (2018) 39 ILJ 472 (LC ). The court followed and applied Discovery Health in Ndikumdavyi v Valkenberg
Hospital (2012) 33 ILJ 2648 (LC ).
212 (2007) 28 ILJ 470 (C C MA). This finding was overruled on review. In ‘Kylie’ v CCMA (2008) 29 ILJ 1918 (LC ) the court found that the applicant
was an employee, but that the contract could not be enforced. On appeal (‘Kylie’ v CCMA (2010) 31 ILJ 1600 (LAC )), the LAC found that she was an
employee, and that she had indeed been dismissed.
213 (2010) 31 ILJ 1600 (LAC ). See also Solidarity obo Steyn v Minister of Correctional Services (2009) 30 ILJ 2508 (LC ).
214 Section 17(3)(a)(i) (formerly s 17(5)(a)(i)).
215 See, for example, Yanta v Minister of Education and Culture, KwaZulu 1992 (3) SA 54 (N); Minister van Onderwys en Kultuur v Louw 1995 (4)
SA 383 (A); Nkopo v Public Health & Welfare Bargaining Council (2002) 23 ILJ 520 (LC ); Maidi v MEC for the Department of Education (2003) 24 ILJ 1552
(LC ); Ntabeni v MEC for Education, Eastern Cape (2001) 22 ILJ 2619 (Tk); MEC, Public Works, Northern Province v CCMA (2003) 24 ILJ 2155 (LC );
Seema v GPSSBC (2005) 26 ILJ 2037 (LC ); MEC for Education & Culture v Mabika (2005) 26 ILJ 2368 (LC ); Lebese and SAPS (2003) 24 ILJ 1752 (BC A).
In the Northern Province judgment, the court held that the fact that the employer had refused to reinstate the employee did not bring the termination
within the ambit of the definition of ‘dismissal’: see at 2158G–I.
216 (2006) 27 ILJ 477 (SC A). See also Minister of Defence & Military Veterans v Maswanganyi (2019) 40 ILJ 2267 (SC A), in which the court
followed the same approach to s 59 of the Defence Act 42 of 2002, which deems a soldier dismissed if sentenced to imprisonment without the option of a
fine. The SC A held that this deeming provision became effective from the moment sentence was handed down, even though Mr Maswanganyi
subsequently successfully appealed against his conviction and sentence to life imprisonment for rape. However, this judgment was overturned by the
C onstitutional C ourt, which found that the appeal judgment nullified the conviction and that the jurisdictional facts required for invoking s 59(1)(d) were
only established after the appeal process had concluded. To regard the conviction as the trigger for a ‘deemed’ dismissal as the SANDF and SC A had
done, was tantamount to saying that any decision by an appeal court was irrelevant. For a judgment in which a deemed discharge was upheld in the case
of soldiers who had deserted, see Masinga v Chief of the SANDF (2022) 43 ILJ 805 (SC A).
217 See Phenithi v Minister of Education (2005) 26 ILJ 1231 (O).
218 Seema v GPSSBC (2005) 26 ILJ 2037 (LC ). Phenithi was followed in MEC for Education & Culture v Mabika (2005) 26 ILJ 2368 (LC ) and Free
State Provincial Government (Department of Agriculture) v Makae (2006) 27 ILJ 1845 (LC ); Grootboom v NPA (2010) 31 ILJ 1875 (LC ); Solidarity obo
Kotze v PHWSBC (2010) 31 ILJ 3022 (LC ); NEHAWU v McGladdery NO (2012) 33 ILJ 1236 (LC ); MEC: Department of Education, Gauteng v Msweli (2013)
34 ILJ 650 (L).
219 Free State Provincial Government (Department of Agriculture) v Makae NO (2006) 27 ILJ 1845 (LC ); MEC for Education & Culture v
Mabika (2005) 26 ILJ 2368 (LC ); PAWUSA v Department of Education, Free State Province (2008) 29 ILJ 3013 (LC ); PSA obo Van der Walt v Minister of
Public Enterprises (2010) 31 ILJ 420 (LC ).
220 SACWU v Dyasi [2001] 7 BLLR 731 (LAC ).
221 MEC for Health v Koethe (2011) 32 ILJ 647 (LC ).
222 See also DG: Office of the Premier of the Western Cape v SAMA obo Broens (2011) 32 ILJ 1077 (LC ).
223 DCS v GPSSBC (2012) 33 ILJ 216 (LC ).
224 PSA obo Mohlala v Minister of Home Affairs (2019) 40 ILJ 415 (LC ).
225 See s 17(5)(b).
226 PAWUSA v Department of Education, Free State Province (2008) 29 ILJ 3013 (LC ). But see the obiter remark to the contrary in PSA obo Van
der Walt v Minister of Public Enterprises (2010) 31 ILJ 420 (LC ).
227 Mahlangu v Minister of Sport & Recreation (2010) 31 ILJ 1907 (LC ); See also Grootboom v NPA (2010) 31 ILJ 1875 (LC ); Mogola v HOD,
Department of Education NO (2012) 33 ILJ 1203 (LC ).
228 (2003) 24 ILJ 2320 (LC ). This case illustrates once again the confusing overlap between administrative law and unfair dismissal law.
229 [2020] 7 BLLR 730 (LC ).
230 Walsh v SG: Eastern Cape DOH (2019) 40 ILJ 1328 (LC ).
231 (2019) 40 ILJ 1328 (LC ).
232 See Walsh v SG: Eastern Cape DOH (2021) 42 ILJ 1461 (LAC ). The court decided to hear both appeals together after finding that the transfer
and the deemed dismissal were inextricably linked. The court’s finding on the transfer is discussed in Employment Rights C hapter 7.
233 Grootboom v NPA (2014) 35 ILJ 121 (C C ). See also Solidarity v PHWSBC (2014) 35 ILJ 2105 (SC A); Minister of Correctional Services v
POPCRU (2016) 37 ILJ 1179 (LC ). So, too, where the employee had in fact not been AWOL for the required period: Mkhwanazi v MEC for the Department
of Education, KZN [2022] 6 BLLR 558 (LC ).
234 MEC for Health, North West Province v SAMA (2022) 43 ILJ 134 (LAC ).
235 (2010) 31 ILJ 1377 (LC ).
236 In a number of other cases, the court has granted relief in applications under s 158(1)(h) of the LRA, and reinstated employees: see, for
example, Weder v MEC DOH, Western Cape (2013) 34 ILJ 1315 (LC ). The Labour C ourt’s power to do so was confirmed in the appeal against this
judgment: MEC for the DOH, Western Cape v Weder; MEC for the DOH, Western Cape v DENOSA obo Mangena (2014) 35 ILJ 2131 (LAC ).
237 (2019) 40 ILJ 2318 (LAC ).
238 See also Nyamane v MEC: Free State DOH [2019] 12 BLLR 1371 (LC ); Jordan v ELRC (2021) 42 ILJ 2227 (LC ); PSA obo Jafta v MEC for
Transport, Safety & Liaison (Northern Cape) (2022) 43 ILJ 891 (LC ).
239 (2018) 39 ILJ 384 (LAC ).
240 (2019) 40 ILJ 2267 (SC A).
241 Maswanganyi v Minister of Defence & Military Veterans (2020) 41 ILJ 1287 (C C ).
242 (2021) 42 ILJ 1666 (LAC ).
243 (2013) 34 ILJ 2266 (LC ).
244 This case was followed in Glencore v CCMA (2018) 39 ILJ 2536 (LC ).
245 Edcon v Steenkamp (2015) 36 ILJ 1469 (LAC ).
246 Steenkamp v Edcon (NUMSA intervening) (2016) 37 ILJ 564 (C C ). The Edcon judgments are discussed in more detail in C hapter 17.
247 (2006) 27 ILJ 1909 (LAC ).
248 (2012) 33 ILJ 1846 (LAC ).
249 (2016) 37 ILJ 655 (LAC ).
250 (2017) 38 ILJ 2269 (LAC ).
251 See further Mpele v Municipal Council of the Lesedi Local Municipality (2019) 40 ILJ 572 (LC ); Mokoena v Merafong Municipality (2020) 41 ILJ
234 (LC ).
252 See, for a recent example, Viedge v Rhodes University [2019] 3 BLLR 318 (EC G), in which the court found that the employee had been
unlawfully dismissed for sexual harassment because the university had used the incorrect disciplinary code. The court dismissed the university’s
argument that the matter should have been referred under the LRA as an unfair dismissal claim.
253 Raseroka v SAA (2020) 41 ILJ 978 (LC ).
254 See, for example, Wereley v Productivity SA (2020) 41 ILJ 997 (LC ).
255 (2014) 35 ILJ 3458 (LC ).
256 (2017) 38 ILJ 8 (LAC ).

The onus of proving that they were dismissed in one of the senses provided for in the LRA rests on the employees. 257 Once this
onus is discharged, the onus passes to the employer to prove that the dismissal was for a fair reason and in accordance with a fair
procedure. ‘Onus’ in this context means that, if the employer denies that the employee was dismissed, the employee must produce
evidence to prove that dismissal occurred. As in all proceedings under the LRA, the test for whether this onus is discharged is the
balance of probabilities. The facts required to prove a dismissal depend on the nature of the dismissal that is alleged. The
requirements for proof of the various forms of dismissal defined in s 186 are set out above.
257 Section 192(2).
Dismissal / Chapter 5 When did the dismissal occur?
Chapter 5
When did the dismissal occur?
4th Ed, 2022, ch 5-p 90
1. Introduction
2. Section 190
1. Introduction
Establishing when a dismissal occurred may, for a number of reasons, be vital. The relief afforded by the LRA is fixed in terms of the
date of dismissal. Reinstatement or re-employment cannot be ordered from a date earlier than the date of dismissal. 1 Before the
last amendments to the LRA, the minimum compensation that could be granted was calculated according to the remuneration the
employee would have earned between the date of dismissal and the last day of the trial or arbitration, as the case may be,
calculated at the rate the employee was remunerated on the date of dismissal. 2 Now, reinstatement or re-employment cannot be
ordered from a date earlier than that of the dismissal. 3 The time limits for prescription of claims for unfair dismissal under the LRA
begin to run from the date of dismissal. 4 Although the date of the dismissal has nothing to do with its fairness, 5 the prescribed
dates may also be relevant to determining whether a dismissal occurred. 6
1 Section 193(1)(a).
2 Section 194.
3 Section 193(1)(a) and (b).
4 FAWU obo Gaoshubelwe v Pieman’s Pantry (2017) 38 ILJ 132 (LAC ).
5 Solidarity obo Liebenberg-Botes v Lyttelton Dolomite t/a Afrimat (2020) 41 ILJ 1438 (LC ).
6 See C hapter 4.
2. Section 190
The date of dismissal is fixed by s 190 of the LRA, which provides:
4th Ed, 2022, ch 5-p 91
(1) The date of dismissal is the earlier of—

(a) the date on which the contract of employment terminated; or
(b) the date on which the employee left the service of the employer.
(2) Despite subsection (1)—
(a) if an employer has offered to renew on less favourable terms, or has failed to
renew, a fixed-term contract of employment, the date of dismissal is the date on
which the employer offered the less favourable terms or the date the employer
notified the employee of the intention not to renew the contract;
(b) if the employer refused to allow an employee to resume work, the date of
dismissal is the date on which the employer first refused to allow the employee to
resume work;
(c) if an employer refused to reinstate or re-employ the employee, the date of
dismissal is the date on which the employer first refused to reinstate or re-
employ that employee;
(d) if an employer terminates an employee’s employment on notice, the date of
dismissal is the date on which the notice expires or, if it is an earlier date, the
date on which the employee is paid all outstanding salary.

Subsection (1)(a) applies only to dismissals within the meaning of sub-s (1)(a) and (e) of s 186; ie terminations by employers or
employees (in the case of constructive dismissals) with or without notice. In such cases, the date of dismissal is the earlier of the
dates on which the contract of employment terminated or the date on which the employee left the employer’s service.
This provision is intended to clear up the confusion that reigns in the common law about the relationship between the
termination of contracts of employment and the termination of contracts generally. It does not entirely succeed. Where, for
example, an employee commits misconduct and disappears before the employer can complete disciplinary proceedings, it is difficult
to imagine why the employer should potentially be held accountable for the period in which the employer should have been in
service, if the dismissal is subsequently ruled procedurally unfair.
On the other hand, the provision that a dismissal occurs when the employee leaves the employer’s service has a just result if the
employee is prevented from rendering service. In Keeble and Flashcor 166 t/a CTM–Kimberley, 7 for example, the employee left
work after an altercation with a supervisor, and referred a dispute to the CCMA. She was later summoned to a disciplinary hearing,
which she declined to attend. Ms Keeble was dismissed in absentia for absconding. The employer claimed in the arbitration
proceedings that the referral was premature because the employee had not yet been dismissed. The commissioner found that
Keeble had been told to leave the premises after the altercation. This constituted a dismissal. The employer’s attempt to convene a
disciplinary hearing later had been a futile attempt to shut the stable door after the horse had bolted. Keeble was awarded
compensation.
For purposes of sub-s (1)(a), it is still necessary to determine according to some unexpressed principle when a contract of
employment terminates. If termination is on notice, either by dismissal or by resignation, the contract terminates when
4th Ed, 2022, ch 5-p 92
the notice expires. Only then do the parties’ obligations under the contract cease. Furthermore, if notice of termination or
resignation is revoked with the consent of the other party, the contract continues as if nothing had happened.
This is the approach favoured by the courts, which have refused to order compensation to employees for periods of notice, or to
regard the period of prescription as having commenced on the date that notice was given. This is the correct view. It would be
anomalous were employees to receive compensation for a period during which they were both rendering service and being paid.
The inclusion of s 190(1)(b) makes determining the date of dismissal simple when the employer pays the employee in lieu of
notice, as it is permitted to do, and requires the employee to leave work immediately. In such cases, the date of dismissal is the
last day of the employee’s service, not the date on which the notice would have expired. 8
In cases of abscondment, the common law regards the employer as having accepted the employee’s repudiation of the contract,
which constitutes a dismissal for purposes of the LRA. 9 In such cases the date of dismissal will be that on which the employee
absconded.
The situation that arises when a contract is deemed to have been terminated without notice is also not entirely clear. In theory,
such terminations amount to a repudiation of the contract, which the other party is entitled to accept or reject. Applied to
employment contracts, this means that the termination of a contract by an employer or employee who has not given the required
notice can never be a dismissal or resignation, as the case may be, because the contract is always terminated by the other party’s
acceptance.
This seems an unnecessarily convoluted way of viewing what has come to be known as ‘summary termination’. The problem is
resolved, at least for purposes of ss 190(1)(a) and 188(1)(a), by giving the word ‘terminated’ its ordinary meaning. In everyday
language, an employee is dismissed when the employer performs some act which signifies that, from that moment, it no longer
intends to perform its obligations under the contract. At that moment a dismissal without notice occurs. 10
The provision that dismissal is deemed to have occurred on the date the employee leaves the service of the employer, if the
departure occurred before the formal termination of the contract, further complicates matters. Viewed pragmatically, the intention
behind s 190(1)(b) becomes clear. By giving notice of intention to terminate, employers and employees signify their intention to end
the contract. If the employer gives notice, and the employee decides to leave immediately, the employer is not obliged to pay the
employee for the period in which he or she has not worked. There seems no reason why an employee who has been unfairly
4th Ed, 2022, ch 5-p 93
dismissed should be required to wait until the notice period expires (which in the case of some employees may be up to six months)
before instituting proceedings under the LRA; hence the inclusion of s 191(2A), which permits employees to refer a dispute
concerning a dismissal once notice has been received.
This situation has been somewhat clarified by the addition of s 196(2)(d). This provides that ‘if an employer terminates an
employee’s employment on notice, the date of dismissal is the date on which the notice expires or, if it is an earlier date, the date
on which the employee is paid all outstanding salary’. An employee dismissed on notice therefore remains in employment until the
last day of the notice period. However, if the employer decides to exercise the right to pay the employee out rather than require
him or her to work out the notice period, the dismissal occurs on that date. Either way, the employee will not be entitled to
compensation for that period if the dismissal is subsequently ruled unfair.
Section 190(1)(b) was also apparently drafted with an eye on constructive dismissals. 11 Where the employee’s working life has
been rendered intolerable by the employer, it would be ludicrous to require the employee to refrain from leaving until notice has
been given and to continue working until the notice period expires.
7 (2009) 30 ILJ 3005 (C C MA).

8 Chabeli v CCMA (2010) 31 ILJ 1343 (LC ). In such cases it may be argued that the payment in lieu of notice should be set off against any
compensation awarded.
9 See, for example, SABC v CCMA (2002) 23 ILJ 1549 (LAC ), Mofokeng and KSB Pumps (2003) 24 ILJ 1756 (BC A) and NUMSA obo Magadla and
AMT Services (2003) 24 ILJ 1769 (BC A).
10 If this were not the case, an employee who has been summarily dismissed, and who seeks reinstatement, could be met with the objection that
he or she has elected to enforce the contract, and that therefore the contract has not yet terminated. Such an approach is entirely out of kilter with the
purpose of the LRA, which regards reinstatement (ie enforcement of the contract) as the primary form of relief. See further C hapter 24.
11 See C hapter 4.

Before the LRA was amended, a problem that taxed the courts was when a dismissal should be deemed to have occurred if the
employee was given an opportunity to appeal against the initial decision to dismiss, ie whether the dismissal occurred when the
initial decision to dismiss was taken or whether the dismissal occurred only when the appeal was refused. The question first arose
as a result of the finding in a dispute between Edgars Stores and SACCAWU. 12 In that case, the employees had been dismissed
after a disciplinary hearing held before the commencement of the current LRA but their appeal was turned down after the Act came
into force. The court was therefore required to determine when the dispute over the dismissals arose to establish whether the
court had jurisdiction to entertain the dispute. The Labour Court held that the date of a dispute is the date on which the parties
adopt opposing stances in relation to an issue. This occurred after the decision to dismiss the employees, which was taken after
the commencement of the current LRA. However, the court left open the question whether the lodging of an appeal is in itself
sufficient to indicate the existence of a dispute. The LAC adopted a different approach; it noted that no distinction was drawn in
the 1956 LRA between the date of a dispute and the date on which an unfair labour practice was perpetrated. When an unfair
labour practice took the form of a dismissal, the date of the unfair labour practice was the date of the dismissal. As the unfair
labour practice occurred when the initial decision was taken, the court held that the matter should have been disposed of under
the 1956 Act.
The finding in the Edgars Stores case – that the date of dismissal is the date on which the initial decision to dismiss is
implemented and not the date on which the
4th Ed, 2022, ch 5-p 94
appeal is rejected – is not elaborated upon in the judgment; it does not therefore lay down an inflexible rule that the date of a
dismissal can never be set by the time an internal appeal is concluded. It may be, for example, that an employer’s disciplinary
procedure provides otherwise, or that a collective agreement deems dismissals to have taken place only after the conclusion of an
appeal procedure.
The Edgars Stores judgment was reconsidered in SACCAWU v Shakoane, decided after the current LRA came into force. 13 The
respondent employer dismissed the applicant employee on 29 August 1996. She lodged an appeal, and was informed on 4 April 1997
that it had failed. The employee then referred a dispute to the CCMA, alleging that her dismissal had occurred on 4 April 1997. A
CCMA commissioner dismissed the employer’s argument that he lacked jurisdiction to arbitrate because the dispute had occurred
before the commencement of the Act and ruled that the employee had been unfairly dismissed. The Labour Court set the award
aside on the basis that the commissioner had no jurisdiction over the matter and had accordingly exceeded his powers. A divided
LAC held that the fact that the employee had a right to appeal in terms of the employer’s disciplinary procedure was irrelevant to
determining when the dispute concerning the dismissal arose; that there was a need to exhaust internal procedures suggested that
a dispute existed before they were invoked. It was also irrelevant that the employee was required to exhaust internal procedures
before exercising her statutory rights. She could still have referred the matter to a conciliation board under the 1956 Act at the
time she was informed that her appeal had been rejected, and could have applied for condonation for the late referral. It was
unlikely that condonation would have been refused or opposed in these circumstances. The court also rejected the union’s attempt
to rely on the fact that before arbitration the parties had expressly agreed that the dispute had arisen only in April 1997. The court
held that it was not bound by that agreement, but had to establish whether, objectively, the facts which conferred jurisdiction
existed. The upshot was that the dismissal was held by two of the three judges to have occurred when the employer took the
original decision to dismiss Shakoane.
This debate conducted in Shakoane has now been rendered all but academic by an amendment to s 191, which permits
employees to refer disputes to the CCMA or a council as soon as they receive notice of termination. 14 However, this provision
does not affect the date on which the dismissal is deemed to have occurred; it simply means that employees can in these
circumstances refer a dispute before their employers have taken the final decision confirming the dismissal, even though they have
not yet, in fact, been dismissed.
12 SACCAWU v Edgars Stores (1997) 18 ILJ 1064 (LC ); Edgars Stores v SACCAWU (1998) 19 ILJ 771 (LAC ).
13 (2000) 21 ILJ 1963 (LAC ).
14 Section 191(2A).

Section 190(2) is also necessary because to date dismissals defined by sub-s (1)(b), (c) and (d) of s 186 according to the
provisions of s 190(1) would either be impossible or would operate to the detriment of either employers or employees.
4th Ed, 2022, ch 5-p 95
In terms of s 190(2)(a), when the dismissal consists of non-renewal of a fixed-term contract, the date of dismissal is the date
on which the employer offered to renew the contract on less favourable terms, or failed to renew it. If this were not the case, the
employees concerned would be deemed to have been ‘dismissed’ when the preceding fixed-term contract expired. 15 This could
greatly extend the period for which the employer would be liable for compensation or back pay. It would also not make sense if
prescription were to run from the date on which the preceding contract terminated, because at that date the employees concerned
may not have known that they had been ‘dismissed’ for purposes of s 186(1)(b). Since such dismissals are deemed to have
occurred not only if the employer refused to renew the contract, but also if the employer offered to renew the contract on less
favourable terms, the date on which the dismissal occurred is set by the employees’ refusal of the offer. The date of the refusal of
the offer need not coincide with the end of the earlier contract; nor need it be contemporaneous with the date on which the
contract that the employees reasonably expected would be concluded was due to commence.
The latter possibility creates potential anomalies. If, for example, seasonal workers ask their employers whether they can return
next season and the employer’s answer is negative, the reply might constitute a ‘refusal’. However, the employee is entitled to
commence employment only when the date arrives for renewal of the next contract. Were the employees to refer a dispute before
that date, and were a court or arbitrator to consider reinstatement appropriate, there would be no posts to which the employees
could be reinstated. However, it may be possible in such cases for the court or arbitrator to issue a declaratory order requiring the
employer to permit the employees to resume working when the new season arrives. If the employees and the employers concerned
enter into negotiations over the renewal of an expired fixed-term contract, the date of dismissal would be the date on which the
employer finally decides not to renew.
What is the position where an employer decides not to renew an employee’s contract, but invites the employee to apply for his
post on a new fixed-term contract, as happened in Ndlambe Municipality v CCMA? 16 The respondent employees were informed on
3 August 2006 that their contracts would not be renewed when they expired at the end of November of that year, but that their
contracts would be extended for a month after their expiry date. Interviews were held but the employees were not reappointed.
The municipality contended in the CCMA that the referral was late because the date of dismissal was 3 August 2006. The
employees claimed that the date the dispute arose was 24 November 2006, when they were informed that their applications had
been successful, and that the date of their dismissal was 31 December 2006, when their renewed contracts expired. The referral
was accordingly in time. The CCMA issued a certificate stating that the dispute was not resolved, and the municipality took those
certificates on review. The court ruled that, since the municipality had clearly indicated its intention not to renew the employees’
contracts on 3 August 2006, that was the date of the dismissal. Furthermore, the employees could not rely on the subsequent
extension of the
4th Ed, 2022, ch 5-p 96
contracts because the extension constituted, not a novation, but a variation of the original contracts. The certificates were
accordingly invalid.
In Ndlambe Municipality, the court adopted a literal interpretation of s 190(2)(a), which put the employees in a difficult position.
While their expectation that the contracts might be renewed persisted, they were not in dispute with their employer. However,
they were not without a remedy. The employees could have sought condonation for the late referral of their dispute, and if
condonation had been refused, they could have taken that decision on review. As it happened, the commissioner simply accepted
their argument that the dispute was referred timeously, without considering condonation. That, according to the court, constituted
a fatal irregularity.
Section 190(2)(b) and (c) cater, respectively, for dismissals of the type contemplated in s 186(1)(c) and (d) – refusals by
employers to allow employees to resume work after maternity leave and so-called selective non-re-employment. In these
circumstances, the date of dismissal is the date on which the employer first refused to permit the employees to resume work or
refused to re-employ or reinstate them. It is unclear why the legislature chose to use the word ‘first’ in sub-s (2)(b) and (c).
However, in line with the definition of these forms of dismissal, the word ‘refusal’ indicates that the date of the dismissal is not the
date on which the employee was entitled to resume work, but the date on which the employer refused to permit the employee to
resume work. A refusal cannot take place unless the employee has signified a desire to work. For purposes of s 186(1)(c)
dismissals, the employee must therefore ask to be allowed to resume duties. The word ‘refused’ in s 190(2)(c) indicates that the
dismissal is not deemed to have taken place when the employer reinstates or re-employs the ‘dismissed’ employee’s former
colleagues, but when the employer refuses the ‘dismissed’ employee’s request to be re-employed or reinstated.
Section 190 makes no express reference to constructive dismissals. On the face of it, these occur when the contract is terminated
or when the employee left the employer’s service. But the court has found this provision inapplicable in constructive dismissal
matters. In Helderberg International Importers v McGahey NO, 17 the employer contended that the dispute had been referred
prematurely because the employee was still working out his notice period when he resigned. A commissioner ruled that the date of
the alleged dismissal was that on which the employee tendered his resignation. The court agreed. Section 186(1)(e) of the LRA
states that a dismissal occurs when an employee terminates a contract of employment with or without notice because the
employer has made continued employment intolerable. The date of dismissal is identified in s 190(1) as the earlier of the date on
which the contract of employment terminated or the date on which the
4th Ed, 2022, ch 5-p 97
employee left the employer’s service. While an explanatory memorandum stated that s 191 had been amended to make it clear that
dismissal occurred when the final decision to dismiss the employee was made, s 190(1) does not apply to constructive dismissals,
because in these cases the employee makes the final decision when to stop working. This can be done with or without notice, and
the date of termination of the contract of employment and the date of leaving the employers’ service are always contemporaneous.
The employee in this case had rendered service until the end of his notice period. That was the date of the alleged constructive
dismissal. Since the dispute had been referred prematurely, the CCMA lacked jurisdiction to deal with the matter unless and until
the employee referred the dispute afresh with an application for condonation. The commissioner’s ruling was set aside.
Kukard v GKD Delkor involved a situation in which the employer refused to re-employ an employee, 18 but did not involve s
186(1)(c). Mr Kukard resigned from his post as the company’s technical sales representative and joined a competitor. When his
former employer threatened to enforce a restraint of trade agreement, the parties agreed that Kukard would return to GKD Delkor.
But when he did so, Kukard was presented with a fixed-term contract for a position with a different title. Kukard declined to sign
that document and was told to leave. The Labour Court held on review that Kukard had not been dismissed because he had never
accepted the offer of employment, and that the CCMA accordingly lacked jurisdiction to arbitrate the dispute. The LAC disagreed;
it held that what really had to be established was whether there was an employment relationship between Kukard and GKD Delkor.
Kukard had been employed on an indefinite duration contract before his resignation, and the rehiring agreement required him to be
re-employed on the same terms. The company had made it clear that it was not going to honour the agreement. Ordering Kukard
off the premises clearly constituted an act that terminated the employment relationship, and constituted a dismissal within the
meaning of that term in s 186(1)(a) of the LRA.
15 This was one of the points raised in Ndlambe Municipality below.

16 (2008) 29 ILJ 2263 (LC ).
17 (2015) 36 ILJ 1586 (LC ).
18 (2015) 36 ILJ 640 (LAC ).
Dismissal / Chapter 6 Unfair dismissals
Chapter 6
Unfair dismissals
4th Ed, 2022, ch 6-p 98
1. Introduction
5. Fair reason
1. Introduction
The law relating to unfair dismissals is contained in the LRA, as read with the applicable codes of good conduct issued in terms of
that Act. This chapter deals with general considerations applicable to all forms of unfair dismissal. Specific requirements of the
various classes of dismissal are dealt with in later chapters.

In spite of some attempts to bring it into line with the Constitution, the South African common law was concerned only with
unlawful, as opposed to unfair dismissals. It was not until, after some hesitation, the courts accepted that dismissals could
constitute unfair labour practices as defined in the 1956 LRA that South African employees acquired protection against dismissals
that were unfair. 1 The industrial court then followed this approach, for good reason. Provided the required notice was given to the
employee, a dismissal was considered to be ‘lawful’ under the common law. Unless the contract provided otherwise, or the employer
was a public functionary exercising statutory power, civil courts could not inquire into the reason for the termination of an
employment contract, or the procedure, if any, that had been followed before the decision to dismiss the employee was taken.
That view underwent a brief change in 2008.
4th Ed, 2022, ch 6-p 99
The SCA accepted then that a general duty to act fairly, in both the procedural and substantive senses, must be implied into
the contract of employment. 2 This development presaged a coalescence of the civil and statutory law on dismissal. However, the
SCA backtracked on this issue two years later. 3
The distinction between lawful dismissals and fair dismissals remained controversial, 4 and still remains relevant. That distinction,
according to the SCA, gives employees the right to challenge their dismissals in the High Court or the Labour Court (which also has
jurisdiction to entertain disputes concerning contracts of employment) 5 if they allege that their employers have acted unlawfully,
as opposed to unfairly. 6 The dual jurisdiction is confirmed by s 77(3) of the BCEA.
If employees rely on the unlawfulness as opposed to the unfairness of their dismissals in the Labour Court, they will be taken at
face value. A complaint about the pre-dismissal procedure followed by the employer will not form the basis of an unlawful dismissal
claim if the dismissed employee fails to show that there was a contractual right to a particular procedure. 7 If the employee fails to
prove unlawfulness, the action will fail. 8 Since claims for unlawful, as opposed to unfair dismissal can be brought either in the High
Court or the Labour Court under the BCEA, the latter court has jurisdiction to deal with claims where breach of contract is alleged.
These include claims for procedural unfairness if the contract provides for a specific pre-dismissal procedure and the employer has
not complied with it. 9
However, if the claim is brought under the unfair dismissal provisions of the LRA, employees cannot claim that their dismissal was
‘null and void’, as opposed to unfair. This emerges from the judgment in Edcon v Steenkamp, 10 in which the LAC had overruled two
of its earlier judgments in which dismissals in contravention of the time limit set by s 189A were a nullity, entitling the employees to
automatic
4th Ed, 2022, ch 6-p 100
reinstatement. 11 The Edcon court noted that regarding a dismissal as a nullity removes it entirely from the scope of Chapter VIII
of the LRA and it can then never be assessed on the basis of fairness.
The LRA provides that reinstatement is not a competent remedy in cases of procedural fairness. The court also saw the idea of a
dismissal being a ‘nullity’ as incompatible with the provisions of s 189 in general, which is also cast in peremptory terms. But where
employers have failed to comply with these provisions, dismissals are not declared null and void. The idea of dismissal being a nullity
was also seen to conflict with the scheme of s 189A itself, which provides discrete remedies for correcting flaws of a procedural
nature. The court therefore found that the legislature could not have intended breaches of s 189A to visit dismissals with nullity.
Premature notice of termination, where the dismissal is otherwise substantively fair, relates to the manner in which termination was
effected – ie a procedural issue. The LAC’s judgment in Edcon was upheld by a divided Constitutional Court. 12
The Labour Court has since noted that no distinction is drawn in the LRA between lawful and unlawful dismissals, and dismissed
an urgent application to interdict disciplinary proceedings on that basis. The employee was advised to bring an unfair dismissal
application in the ordinary course. 13 And in James v Eskom Holdings, 14 the LAC confirmed its earlier view, expressed in Edcon, 15
that matters may be adjudicated or arbitrated under the LRA if employees claim that their dismissals are unlawful, in that instance
for non-compliance with a collective agreement. But soon afterwards, in Matatiele Local Municipality v Shaik, 16 the same court
held that if employees can persuade arbitrators that the decision to terminate employment was invalid and of no legal effect, this
means there was no dismissal and the arbitrator lacks jurisdiction to entertain the dispute. That finding was arguably obiter. It is
also probably wrong in view of the Constitutional Court judgment in SARS v CCMA, in which a dismissal in breach of a collective
agreement was held to be only procedurally unfair. 17
Whether the court’s reasoning will apply, for example, in an unfair dismissal matter where it emerges that the employee was
dismissed in contravention of collective agreements incorporated into contracts of employment, or in cases of ‘deemed’ dismissals,
remains open to debate. 18 It seems that employees dismissed in contravention of statutory provisions may still bring claims that
the breach resulted in their dismissals being null and void, provided that these are brought under the common law or under s 77(3)
of the BCEA. In the meantime, the High Court continues to entertain claims by dismissed employees who claim that their
4th Ed, 2022, ch 6-p 101
dismissals were unlawful for want of compliance with their contracts, even if the contracts incorporate the provisions of disciplinary
codes. 19 If the allegation is that the dismissal was unfair, the dispute must be referred to the Labour Court or for statutory
arbitration, as the case may be, because the labour forums then have exclusive jurisdiction. However, SAMSA suggests that a civil
court’s power to determine the claim depends on whether the employee’s true complaint is one for which the LRA provides a
complete remedy. Where this is so, the employer may raise a special plea that the employee may not seek a contractual remedy
because the employee’s rights are fully protected by the LRA. 20
Where a dismissed employee’s claim is properly based on breach or repudiation of the contract, the employee must prove all the
normal requirements of a contractual claim. Alleged unfairness is not among them, 21 unless a pre-termination procedure is
prescribed in a collective agreement that is incorporated by reference into the contract of employment. The court has held that a
procedural irregularity does not necessarily give rise to damages and that, in a breach of contract claim, the dismissed employee
must prove the actual quantum of the damages sought, even if the employee was employed on a fixed-term contract that was
prematurely terminated. 22 But the courts are willing to entertain urgent applications where the employer is breaching contractual
pre-dismissal requirements. 23
The development of the notion of unfair dismissal by the labour courts under the 1956 LRA has been given statutory force by s
185 of the current LRA. This proclaims: ‘Every employee has the right not to be unfairly dismissed.’ While this right does not
expressly cover unlawful dismissals, the courts have accepted that an unlawful dismissal will seldom, if ever, be fair (see above).
Nothing accordingly precludes an employee from challenging a dismissal in the Labour Court on the basis that it is unlawful, provided
that the employee claims and proves that the unlawfulness resulted in unfairness. Conversely, nothing prevents an employee from
suing for enforcement of a breached contract in the civil courts or in the Labour Court under the BCEA, in which case unfairness
cannot be relied upon.
1 Marievale Consolidated Mines v The President of the Industrial Court (1986) 7 ILJ 152 (T).
2 Old Mutual Life Assurance Co SA v Gumbi (2007) 28 ILJ 1499 (SC A); Boxer Superstores Mthatha v Mbenya (2007) 28 ILJ 2209 (SC A); Murray v
Minister of Defence (2008) 29 ILJ 1369 (SC A). But see SAMSA v McKenzie (2010) 31 ILJ 529 (SC A). In that case, the court accepted that a duty of
fairness can be tacitly incorporated into a contract of employment.
3 SAMSA v McKenzie (2010) 31 ILJ 529 (SC A).
4 See the minority judgment of Froneman AJA (as he then was) in Fedlife Assurance v Wolfaardt (2001) 22 ILJ 2407 (SC A). This judge was unable
to discern a distinction between allegations that dismissals are ‘unlawful’ and allegations that they are ‘unfair’.
5 Section 77(3) of the BC EA. In such cases, the court does not exercise an equity jurisdiction.
6 Fedlife Assurance v Wolfaardt (2001) 22 ILJ 2407 (SC A). That case turned on whether the respondent employee was entitled to sue in the High
C ourt for damages for alleged breach of contract as a result of the premature termination by the company of the employee’s fixed-term contract of
employment. The majority of the court answered this question in the affirmative. The minority held, however, that the employee’s case was based
essentially on a complaint that his dismissal was unfair, and that the Labour C ourt had exclusive jurisdiction to entertain the matter. The incorporation of
the implied duty of ‘fair dealing’ into the contract means that employees may claim that a dismissal is unlawful because it is unfair.
7 Mokoena v Merafong Municipality (2020) 41 ILJ 234 (LC ).
8 See, for example, Chafeker v CCMA (2015) 36 ILJ 451 (LC ), where the dismissal involved a violation of the C lose C orporations Act 69 of 1984.
9 See, for example, Ramabulana v Pilansberg Platinum Mines (2015) 36 ILJ 2333 (LC ); Somi v Old Mutual Africa Holdings (2015) 36 ILJ 2370 (LC );
Solidarity v SABC (2016) 37 ILJ 2888 (LC ); Mathabathe v NMBMM (2017) 38 ILJ 391 (LC ).
10 (2015) 36 ILJ 1469 (LAC ). The full judgment is outlined in C hapter 17.
11 See De Beers Group Services v NUM (2011) 32 ILJ 1293 (LAC ) and Revan Civil Engineering Contractors v NUM (2012) 33 ILJ 1846 (LAC ).
12 Also discussed in C hapter 17.
13 See Ravhura v Zungu NO (2015) 36 ILJ 1615 (LC ).
14 (2017) 38 ILJ 2269 (LAC ).
15 (2015) 36 ILJ 1469 (LAC ).
16 (2017) 38 ILJ 2280 (LAC ).
17 But see Tshivhandekano v Minister of Mineral Resources (2018) 39 ILJ 1847 (LC ), in which the court held that Edcon did not deprive it of power
to entertain claims brought under the BC EA or s 158(1)(h) of the LRA relating to the alleged invalidity of dismissals.
19 For example, see Viedge v Rhodes University [2019] 3 BLLR 318 (EC G), in which the employee’s dismissal for sexual harassment was ruled
unlawful because the university had used an outdated disciplinary code. A further example is provided by Mawonga (ILGM intervening) v Walter Sisulu
Local Municipality (2019) 40 ILJ 974 (EC G), which concerned the non-renewal of the employee’s contract as municipal manager. The court rejected the
municipality’s argument that the case concerned a failure to renew a fixed-term contract, which should have been referred under the LRA.
20 See at [9].
21 SAMSA v McKenzie (2010) 31 ILJ 529 (SC A). In Pilanesberg Platinum Mines v Ramabulana (2019) 40 ILJ 2723 (LAC ), the court was prepared to
accept that the employee’s dismissal might have been unfair, but found that this did not render the dismissal unlawful for purposes of a contractual claim.
22 SAFA v Mangope (2013) 34 ILJ 311 (LAC ); KZN Tourism Authority v Wasa (2016) 37 ILJ 2581 (LAC ).
23 See, for example, Ngubeni v National Youth Development Agency (2014) 35 ILJ 1356 (LC ); Somi v Old Mutual Africa Holdings (2015) 36 ILJ
2370 (LC ); Ramabulana v Pilansberg Platinum Mines (2015) 36 ILJ 2333 (LC ); Solidarity v SABC (2016) 37 ILJ 2888 (LC ).

The LRA sets up an elaborate scheme to protect the right not to be unfairly dismissed. By so doing, the Act extends the common-
law concept of dismissal,
4th Ed, 2022, ch 6-p 102
renders dismissal for certain reasons impermissible in any circumstances, and limits to three the reasons for which employers are
permitted to dismiss employees, to misconduct by, or incapacity of, the employee, and the operational requirements of the
employer. 24 The employer must also follow a fair pre-dismissal procedure. 25 This scheme in turn dictates the procedures for the
resolution of dismissal disputes, and the principles that are applied to determine whether the respective forms of dismissal are fair.
24 Section 188(1)(a).
25 Section 188(1)(b).

The provisions regulating dismissal disputes are built upon a threefold classification of dismissals: automatically unfair dismissals;
dismissals related to the conduct or capacity of the employee and dismissals related to the operational requirements of the
employer. This classification determines not only the forum in which dismissal disputes must ultimately be resolved; 26 it also
determines the principles that must be applied by those forums when they decide whether a dismissal is fair. However, the dividing
line between dismissals for misconduct, incapacity and operational requirements is not impermeable. If there is a dispute over
whether the matter belongs in one forum or another, the judge or arbitrator must identify the true reason for, and hence
classification of the dismissal.
Common to any inquiry into the fairness or otherwise of all forms of dismissal are three issues: whether the termination of the
employment relationship amounted to a dismissal (see Chapter 4); if so, whether there was a fair reason for the dismissal and
whether the employer followed a fair procedure before taking the decision to dismiss the employee (see Chapters 10 and 17).
Dismissals that are not for a fair reason are referred to as substantively unfair; dismissals not in accordance with a fair procedure
are termed procedurally unfair.
Section 188 makes it clear that procedural fairness and substantive fairness are independent requirements for a fair dismissal. 27
It may therefore be that a dismissal is found to be for a fair reason, but that it is nevertheless unfair because the employer failed
to follow a fair procedure. It may also be that a dismissal is both procedurally and substantively unfair.
The nature of the inquiry concerning whether there has in fact been a dismissal was dealt with in Chapter 4. The issues of fair
reason and fair procedure are dealt with in general terms in the following sections, and in greater detail in the remainder of this
work.
26 See C hapter 23 and Grogan Labour Litigation and Dispute Resolution 3 ed (Juta 2019) C hapter 5.
27 Although this was questioned in SARS v CCMA (2016) 37 ILJ 655 (LAC ), in which the court held the concept procedural and substantive fairness
was no more than a ‘useful forensic tool, not a principle of law creating two separate concepts’. This judgment was overruled on further appeal, but the
C onstitutional C ourt did not deal with this observation.
5. Fair reason
4th Ed, 2022, ch 6-p 103
Whether, for jurisdictional purposes, the reason for the dismissal is determined by the way the employee characterises it or by the
true reason for the dismissal is open to debate. 28 For present purposes it may be accepted that, except for constructive
dismissals, the reason for the dismissal relates to the ground or grounds that prompted the employer to terminate the contract.
Were this not the case employers could treat all dismissals as dismissals for ‘operational requirements’, which would mean they
would not be required to prove that the employee was guilty of the offence concerned or incapacitated, as the case may be. The
ground for a dismissal, and its adequacy, must be established by objective inquiry. How the parties characterise the dismissal does
not therefore determine whether a dismissal was substantively fair. That is for a judge or arbitrator to decide.
Assessing the substantive fairness of a dismissal generally entails a two-stage inquiry: the first is to establish why the employer
dismissed the employee; the second is to establish the adequacy of that reason. If the reason is found to be a reason listed in s
187 (ie automatically unfair) the inquiry ends, unless the statute permits the employer to raise a defence. 29 If the dismissal is
found to be for reasons related to the conduct or capacity of the employer, or for reasons not covered by s 187, the adequacy of
that reason must be assessed. Fairness requires some correlation between the seriousness of the employee’s misconduct or
incapacity and the employer’s response.
Dismissal on the ground of the conduct of the employee is generally termed dismissal for misconduct. The employees concerned
have been dismissed because they have contravened a disciplinary rule imposed by the employer, or have wilfully refused to fulfil
their obligations under the contract of employment. But dismissals related to conduct need not necessarily involve misconduct, as
generally understood. Eccentric behaviour by employees that compromises the relationship with their superiors or colleagues may
also fall under this head. 30 So, too, may negligent performance of workplace tasks. The test in these cases is always whether the
employee was at fault.
Dismissals related to the capacity of employees refer to situations in which the employees are unable to perform their duties for
reasons beyond their control, for example, because they are too unskilled to perform their tasks, or because they are rendered
physically or mentally incapable by illness or injury. However, ‘poor work performance’ may also be culpable, and may relate to
employees’ conduct, rather than their ‘capacity’. 31
Dismissals related to the operational requirements of the employer typically arise when the employee’s post becomes redundant
to the needs of the employer’s business. Commonly referred to as ‘retrenchments’, dismissals in these circumstances are effected
for a variety of reasons such as economic downturn, technological or
4th Ed, 2022, ch 6-p 104
structural change, as well as mergers and rationalisations. Dismissals due to union pressure or incompatibility have also been
described as ‘operational’. 32
Although the distinctions between the various grounds of dismissal are useful in practice, and while categorisation of various
forms of dismissal has certain legal consequences, the division between dismissals related to the conduct or capacity of employees,
and those related to the employer’s operational requirements, is not absolute. Some individual cases clearly fall into one or other
category; others may straddle two or more. For example, a dismissal for poor work performance may be due to the employee’s fault
(eg, idleness), or to circumstances beyond his or her control (eg, technological change), or may be due to a combination of the
two. Whether the dismissal should be cast as a dismissal for misconduct or a dismissal for incapacity therefore depends on the
facts of each case. Similarly, an employer who has dismissed an employee for ‘incompatibility’ may plead that the employee could
have changed his behaviour, and was thus guilty of misconduct by not so doing, and that the disruption caused by the employee’s
conduct affected the operational requirements of the business, leaving the employer with no option but to retrench the employee.
It can and has been argued that the ultimate ground for justifying all dismissals is the operational requirements of the
business. 33 The ultimate reason why an employee is dismissed for misconduct or incapacity is not so much that the employee has
infringed a disciplinary rule or that the employee cannot do the job, but rather that it is contrary to the interests of the employer
to retain in service employees who cannot or will not do their work properly. 34 The ultimate test in misconduct dismissals is
whether the employment relationship has been destroyed by the misconduct.
Practical and evidential problems also make the distinction between dismissals for misconduct, incapacity and poor work
performance difficult to apply in practice. For example, the termination of the contracts of employees on the ground of prolonged
absence from work may be justified on the ground of misconduct where the absence is wilful and contrary to managerial
instructions. If an employee’s absence is due to illness or some other cause beyond the employee’s control, the dismissal may be
justified on the ground of incapacity or because the operational requirements of the business require that the absent employee be
replaced by another. 35 Operational needs may also be raised to justify mass dismissals in circumstances in which it is impossible
for the employer to identify the perpetrators of acts of misconduct that threaten the viability of the business. 36
Because the terms ‘conduct’, ‘capacity’ and the ‘operational requirements of the employer’ are elastic, courts operating under
the 1956 LRA resisted applying these terms inflexibly. By codifying the forms of dismissal in the current LRA, the legislature probably
intended the expressions to be nothing more than guides for
4th Ed, 2022, ch 6-p 105
selecting the forum for particular kinds of dismissal disputes, and for assisting the relevant forum to choose the appropriate
principles when deciding the dispute.
The general test for the ‘appropriateness’ of a dismissal has been cast in different terms. When dismissals are related to the
employee’s conduct (particularly cases involving dishonesty or morally opprobrious conduct), the inquiry is usually directed at
establishing whether the relationship of trust on which the employment relationship is (or should be) built has been destroyed. In
cases relating to capacity, the question is whether the employer could reasonably have been expected to continue the employment
relationship. At the most basic level, the question remains: when is it fair to dismiss an employee for the reasons advanced by the
employer?
In the current LRA, the legislature has attempted to provide some guidance by setting out a list of reasons that can never be
regarded as fair. These are the reasons which render a dismissal ‘automatically unfair’. 37 Beyond that, a court or arbitrator must in
each case examine whether the reason given by the employer for the dismissal is compelling enough to justify the termination of
the employment contract.
The division of the requirements of a fair dismissal into substantive and procedural dimensions means that employers must be
able to prove both that their decision to dismiss the employee was reasonable, and that it was reached after following a fair
procedure. ‘Reasonableness’ in this context means essentially that the decision to dismiss the employee is defensible.
When judges and arbitrators determine whether a dismissal is defensible, they are not engaged in a scientific exercise. They ask
whether, in the light of established principles, the reasons advanced by the employer justify the decision to terminate the contract.
The justification will depend on the reason for the dismissal. In a case of misconduct, justification entails proof that the employee
actually committed the misconduct, that the employee was aware that his or her conduct constituted misconduct, and that the
employer treated that conduct as misconduct in the past. In a case of incapacity, the justification will be that the employee has
failed to attain a performance standard set by the employer, that the performance standard was attainable, and that there was no
reasonable alternative but to dismiss the employee. In a case of dismissal for operational requirements, the justification will be that
the employee was superfluous to the employer’s needs.
As will be seen in the following pages, the assessment of whether a dismissal is appropriate entails considering a range of issues,
depending on the form of the dismissal. At this stage, it is sufficient to note that a dismissal will generally be regarded as
substantively fair if the employer can prove that it could not reasonably have been expected to continue the employment
relationship. This will be the case either when the trust relationship has been irreparably damaged, when the employee is no longer
able to perform his or her contractual obligations, or when the employee’s services are no longer required to meet its operational
requirements.
28 See C hapter 21.

29 See C hapter 7.
30 Incompatibility is discussed in C hapters 15, 16 and 21.
31 See C hapter 15.
32 See C hapter 16.
33 Brassey et al The New Labour Law (Juta 1987) C hapter 4.
34 Ibid; Anglo American Farms t/a Boschendal Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC ) at 590; MAN Truck & Bus (SA) and
UAMAWU (1991) 12 ILJ 181 (ARB) at 185.
35 See, for example, Samancor Tubatse Ferrochrome v MEIBC (2010) 31 ILJ 1838 (LAC ), discussed in C hapter 16.
36 See C hapter 11.
37 See s 187, discussed in C hapter 7.

4th Ed, 2022, ch 6-p 106
Under the 1956 Act, the labour courts incorporated the notion of procedural fairness into South African unfair dismissal law. Both
English law and the instruments of the International Labour Organisation, which profoundly influenced the labour courts in their
formative years, require employers to follow a fair procedure before they dismiss employees. The South African civil courts also
consistently applied and developed the audi alteram partem and nemo judex in sua causa principles in matters concerning the
exercise by public institutions of their statutory powers in the employment context. These principles, central to both of which is the
right to a fair hearing, were applied in cases involving the dismissals of public servants. 38
The requirement of procedural fairness has received express statutory confirmation in the current LRA. Section 188 requires
dismissals relating to the conduct or capacity of employees, or to the operational requirements of the employer, to be conducted ‘in
accordance with a fair procedure’. As indicated above, this provision means that procedural fairness is an independent requirement
for a fair dismissal. However, the remedy differs. An employee dismissed for a fair reason but not in accordance with a fair
procedure cannot be reinstated.
The nature of the procedure to be followed depends on the reason for the dismissal. 39 Dismissals relating to misconduct must
generally be preceded by a fair hearing. Dismissals relating to incapacity must be preceded by attempts to counsel the affected
employees, to find them alternative positions and, finally, by an incapacity inquiry. The procedures required for these forms of
dismissals are described in the relevant chapters below.
These procedures are not prescribed by the LRA itself, but in the Code of Good Practice: Dismissal, to which anyone deciding on
the fairness of a dismissal must have regard. 40 Moreover, many employers have their own disciplinary codes, often incorporated by
reference into individual contracts of service. These are also important when it comes to assessing procedural fairness.
The procedures required for a dismissal for retrenchment are spelt out in detail in s 189 of the LRA. Even so, it has been held
that this provision is merely a guideline, 41 as are internal disciplinary codes and the Code of Good Practice: Dismissal. 42
While the reason for dismissal determines the procedure adopted in a particular case, the relationship between reason and the
procedure is not necessarily absolute. SABC v CCMA raised the problem of distinguishing between dismissal for misconduct and
dismissal for poor work performance. 43 The respondent employee had been dismissed after being found guilty on various charges of
misconduct.
4th Ed, 2022, ch 6-p 107
A CCMA commissioner ruled the dismissal unfair because, he said, the true reason for the dismissal was poor work performance, and
the employer had not followed the correct procedure. On review, the Labour Court found that the essence of all the charges
against the employee was abuse of power, which constituted misconduct. While the court acknowledged that the notional line
between dismissals for misconduct and dismissal for poor work performance may be difficult to draw and, in some cases, may
straddle different categories, the ultimate question in all cases is not why the employee was dismissed, but whether there was a
fair reason for the dismissal and whether it was in accordance with a fair procedure. By focusing exclusively on whether the
employer followed the procedural requirements of a fair dismissal for incapacity, the commissioner had lost sight of the central issue
before him.
Whatever the form of the dismissal, however, the basic elements of procedural fairness are that the employee must have been
given a fair opportunity to influence the decision whether he or she should be dismissed, and that the person taking the decision
should be impartial.
38 For the history and application of the rules of natural justice, see Baxter Administrative Law (Juta 1984) 537–9.
39 Section 188(2).
40 Sikhosana v Sasol Synthetic Fuels (2000) 21 ILJ 649 (LC ).
41 Free State Buying Association t/a Alpha Pharm v SACCAWU (1998) 19 ILJ 1481 (LC ).
42 But see the remarks of the LAC in AECI Explosives (Zomerveld) v Mambalu (1995) 16 ILJ 1505 (LAC ) at 1511–12 concerning the dangers of
adhering too strictly to different procedural rules for different categories of dismissals.
43 [2006] 6 BLLR 587 (LC ).

Unless the parties agree otherwise, judges and arbitrators normally make specific findings, where relevant, on whether a dismissal is
procedurally or substantively unfair, or both. Separate inquiries are normally conducted in respect of these two aspects of a
dismissal. A finding that a dismissal was either procedurally or substantively unfair is sufficient to stigmatise the dismissal as unfair.
There is nothing contradictory about a finding that a particular dismissal was thoroughly warranted, but unfair because the
employer failed to follow a fair procedure. Only the relief granted may be affected by a finding that a dismissal is substantively fair
but only procedurally unfair. An employee whose dismissal is procedurally unfair but substantively fair is not entitled to
reinstatement and may, depending on the gravity of the offence, be denied compensation. 44
The dividing line between procedural and substantive fairness may be difficult to determine in some cases. For example, it is
arguable that an employer which fails to consult on alternatives to retrenchment, on the face of it a mere procedural defect, was in
no position to and did not in fact consider alternatives that may have avoided retrenchment altogether, which would render the
dismissal substantively unfair. Such situations often prompt employees to argue that the procedural unfairness of their dismissals
was so gross as to warrant a finding of substantive unfairness. Such was the argument of the employee in Unitrans Zululand v
Cebekhulu. 45 The majority of a divided LAC held that, since substantive fairness is determined according to the circumstances
prevailing at the time of the dismissal, the discussions preceding it are irrelevant. However, the dissenting judge pointed out that
there may be circumstances in which the procedural fairness and substantive fairness ‘are so inextricably linked that the dismissal
cannot be fair in the absence
4th Ed, 2022, ch 6-p 108
of a fair procedure’ and that the majority’s approach could reduce the requirement of pre-retrenchment consultation to a mere
formality.
Logic favours the minority judgment in this regard. But the difference may be more apparent than real. Even if the majority
judgment in Unitrans may appear to draw an impenetrable distinction between substance and procedure, independent proof must
still be placed before court that a fair reason to dismiss existed at the time of dismissal. It remains open to employees to argue
that the employer did not in fact consider alternatives to dismissal, which the minority accepted was the case in Unitrans.
44 See C hapter 24.

45 [2003] 7 BLLR 688 (LAC ).
Dismissal / Chapter 7 Automatically unfair dismissals
Chapter 7
Automatically unfair dismissals
4th Ed, 2022, ch 7-p 109
1. Introduction
2.6 Section 187(1)(d)
6. Pregnancy
7.4.1 Race
7.4.2 Age
7.4.3 Disability
7.4.4 Religion
7.4.5 Conscience
7.4.6 Belief
7.4.8 Language
4th Ed, 2022, ch 7-p 110
7.4.10 Nationality
7.4.11 Harassment
9. Whistleblowers
10. Defences
10.2 Retirement
1. Introduction
The concept ‘automatically unfair dismissal’ has its roots in international law. A dismissal is automatically unfair if it cannot possibly
be fair, or if the reason for the dismissal is contrary to law. These dismissals are absolutely proscribed. Article 5 of Convention 158
of the International Labour Organisation (ILO) lists as automatically unfair those dismissals that are for membership of, or
participation in, the activities of trade unions: for seeking or holding office as a union representative; for filing a complaint or
participating in proceedings against an employer for alleged violations of laws or regulations; for absence during maternity leave; or
for reasons related to the race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national
extraction or social origin of employees. Dismissals based on age, or absence while on military service, are also proscribed, but
‘subject to national law and practice’.
There are two possible methods of dealing with such dismissals: first, to criminalise them; second, to ensure that employees
dismissed for reasons considered unacceptable have recourse to a civil remedy that provides the employee with adequate redress,
and deters the employer from repeating such dismissals. Under the 1956 LRA, it was a criminal offence, among other things, to
dismiss or in any way act to the detriment of employees for providing information regarding terms and conditions of employment to
officials. These offences were generally known as victimisation. Under the 1956 LRA the industrial court also granted relief to
employees who were victims of various other forms of victimisation. 1
The South African legislature chose the non-criminal option in the current LRA to discourage victimisation and other reprehensible
acts and ensure that employers
4th Ed, 2022, ch 7-p 111
complied with the provisions of the LRA. The reasons for which employees may not be dismissed are to be found in s 187(1). This
reads:
A dismissal is automatically unfair if the employer in dismissing the employee acts contrary
to section 5 or if the reason for the dismissal is—
(a) that the employee participated in or supported or indicated an intention to
participate in or support a strike or protest action that complies with the
provisions of C hapter IV;
(b) that the employee refused or indicated an intention to refuse to do any work
normally done by an employee who at the time was taking part in a strike that
complies with the provisions of C hapter IV or was locked out unless that work is
necessary to prevent an actual danger to life personal safety or health;
(c) a refusal by employees to accept a demand in respect of any matter of mutual
interest between them and their employer;
(d) that the employee took action or indicated an intention to take action against the
employer by—
(i) exercising any right conferred by this Act; or
(ii) participating in any proceedings in terms of this Act;
(e) the employee’s pregnancy, intended pregnancy, or any reason related to her
pregnancy;
(f) that the employer unfairly discriminated against an employee, directly or
indirectly, on any arbitrary ground, including, but not limited to race, gender, sex,
ethnic or social origin, colour, sexual orientation, age, disability, religion,
conscience, belief, political opinion, culture, language, marital status or family
responsibility;
(g) a transfer, or a reason related to a transfer, contemplated in section 197 or
197A; or
(h) a contravention of the Protected Disclosures Act, 2000, by the employer, on
account of an employee having made a protected disclosure defined in that Act.
The term ‘automatically unfair’ is borrowed from English unfair dismissal law; 2 it is intended to denote that, if the reason for the
dismissal is prohibited, a finding that the dismissal is unfair must necessarily follow. In other words, it will not generally avail the
employer to argue that it was seeking to protect other, more pressing interests, or that it followed a fair procedure, or that for any
other reason the dismissal should be considered fair. When an automatically unfair dismissal is alleged, the sole factual inquiry is to
establish the true reason for the dismissal, and the only legal issue is whether the reason so identified is covered by one or other of
the provisions of s 187.
Automatically unfair dismissals can take any of the forms identified in the definition of dismissal, 3 ie conventional terminations by
employers: failure to renew a fixed-term contract, 4 constructive dismissal, 5 or selective non-re-employment. These forms of
dismissal may give rise to claims that the dismissal is automatically unfair, provided the dismissal falls within one or other of the
categories listed in s 187(1). Dismissals related to an employee’s pregnancy will almost invariably be automatically unfair.
Automatically unfair dismissals are identified by the reasons that prompted the employer to dismiss the employee. In some cases,
the reason will be clear;
4th Ed, 2022, ch 7-p 112
in others dismissals may have been motivated by a number of reasons, which are either conceptually related or may be distinct
from each other. For example, an employee dismissed for refusing an employer’s instruction to resign from a union may be said to
have been dismissed for insubordination or even, depending on the circumstances, for the operational requirements of the employer.
In such cases the relationship between the reason claimed by the employer and the impermissible reason must be examined. If an
instruction requires the employee to perform an action protected by s 4 of the LRA, the instruction is merely the proximate cause of
the dismissal; the underlying reason is the employee’s refusal to refrain from doing what he or she is entitled to do. It is this
underlying reason that renders the dismissal automatically unfair.
Where an employee is dismissed for a valid reason and an impermissible reason plays a secondary role the dismissal will not be
automatically unfair. An employee who is dismissed for, say, insubordination, might argue that the real reason for the dismissal was
that he was performing duties as a shop steward. 6 Again, the extent, if any, to which the impermissible reason contributed to the
decision to dismiss the employee must be assessed. If the prohibited reason was of secondary importance, and if dismissal was
justified by the primary reason, the dismissal would be fair.
Where there is doubt about whether the dismissal was for a proscribed reason or for a possibly ‘legitimate’ reason, the court
must determine the ‘main’, ‘dominant’ or ‘proximate’ cause. 7 This inquiry is usually necessitated if the employee claims that the
dismissal was for a proscribed reason, but the employer claims that the employee was dismissed for misconduct, incapacity or
operational reasons. If the court is satisfied that the employee has made out a prima facie case on the papers for the claim that
the dismissal was automatically unfair, the court will hear the matter. 8 If the employee has failed to make out such a case, the
dispute must be referred to the CCMA or a bargaining council, as the case may be, unless the parties and the court agree that the
matter should be determined with the court sitting as an arbitrator. 9 Employers often make the mistake in automatically unfair
dismissal cases of applying for ‘absolution from the instance’ at the close of the employee’s case and, if they fail, closing their case
without leading evidence. 10 This may prove fatal because the onus of proving that the dismissal was not for such a reason
specified in s 187(1) rests on the employer throughout.
Once the employee has made out a prima facie case that the dismissal was for a prohibited reason, the employer assumes the
burden of proving that the
4th Ed, 2022, ch 7-p 113
employee was dismissed for some other reason. A finding that a dismissal was not automatically unfair does not necessarily mean
that it was fair. It may be that, although the reason for the dismissal was not one of the reasons mentioned in s 187(1), it was
nevertheless not a fair reason, as contemplated by s 188.
The various forms of automatically unfair dismissal are considered below.
1 See, for example, Kebeni v Cementile Products (Ciskei) (1987) 8 ILJ 442 (IC ) and Simelane v Audell Metal Products (1987) 8 ILJ 438 (IC ), in
which the court held retrenchments unfair because they were in reality aimed at shedding unionised employees. See also MAWU v A Mauchle t/a
Precision Tools (1980) 1 ILJ 227 (IC ). In that case, failure to renew a migrant worker’s contract because of his union membership was held to be unfair
victimisation under current legislation. Victimisation is discussed in Grogan Employment Rights 3 ed (Juta 2019) C hapter 13.
2 See Perrins (ed) Harvey on Industrial Relations and Employment Law vol I (LexisNexis loose-leaf) 1101.
3 See s 186(1) and C hapter 4.
4 See, for example, Solidarity obo McCabe v SAIMR [2003] 9 BLLR 927 (LC ).
5 See, for example, Mafomane v Rustenburg Platinum Mines [2003] 10 BLLR 999 (LC ).
6 See, for example, Adcock Ingram Critical Care v CCMA (2001) 22 ILJ 1799 (LAC ); and Kroukam v SA Airlink (2005) 26 ILJ 2153 (LAC ).
Disciplinary action against shop stewards is discussed in the following section and in C hapter 13.
7 In NUMSA v Aveng Trident Steel (A Division of Aveng Africa) (2021) 42 ILJ 67 (C C ) a minority questioned whether this issue should be
determined by applying the ‘causation test’ or the ordinary rules of evidence. But the difference on this issue meant little because the court unanimously
accepted that the employees had not been dismissed for refusing to accept a demand.
8 See s 158(2)(b). Kroukam v SA Airlink (2005) 26 ILJ 2153 (LAC ); Wardlaw v Supreme Mouldings (2007) 28 ILJ 1042 (LAC ); Chizunza v
MTN (2008) 29 ILJ 2919 (LC ); Mashava v Cuzen & Woods Attorneys (2000) 21 ILJ 402 (LC ).
9 See s 158(2)(b).
10 See, for example, Janda v First National Bank (2006) 27 ILJ 2627 (LC ); Rockliffe v Mincom (2007) 28 ILJ 2041 (LC ).

The policy behind rendering dismissals that amount to victimisation unfair is obvious: all rights conferred by the Act would be
rendered meaningless if employers could rid themselves of employees who exercise those rights. Apart from the general protection
afforded by s 5(1), the LRA expressly forbids a number of particular actions by employers. They may not require an employee or a
person seeking employment not to be a member of a trade union or a workplace forum, or to become a member of such bodies, or
to relinquish membership. Employees and applicants for employment may not be prevented from or prejudiced by exercising any
right conferred by the Act or from participating in any proceedings under the Act. 11 Employees and applicants may also not be
prejudiced because of past, present or anticipated membership of a trade union or workplace forum or federation of trade unions,
for participating in the lawful affairs of such bodies, for failing or refusing to perform actions which employees are not permitted to
do, or for disclosing information which the employee is lawfully entitled or required to disclose. 12
Although there is some overlap between the specific prohibitions set out in s 5, 13 their import is clear: employers may not
dismiss, or in any way prejudice, employees for exercising any rights. While the LRA prohibits prejudicing employees for exercising
any right ‘in terms of this Act’, 14 the courts have taken a relatively wide view of the kind of rights that may be protected,
especially when it comes to the conduct of shop stewards. However, even shop stewards and union officials may not stray too far
from their duties as such. A union official who represented an employee accused of theft from one of the official’s major clients was
found to have exercised ‘poor judgment’ which amounted to misconduct. 15 On the other hand, the dismissal of an employee for
complaining that his MD had called him a ‘stupid bastard’ and demanding a genuine apology was ruled automatically unfair, 16 which
might be stretching the scope of s 5 too far.
4th Ed, 2022, ch 7-p 114

To prove a dismissal automatically unfair on the basis of the exercise by the employer of a statutory right, the employee must
prove a link between the exercise of that right and the employer’s decision to dismiss. 17 Although s 5 includes applicants for
employment under its umbrella, they cannot be protected against unfair dismissal by virtue of the corresponding provision of s
187(1). Applicants for employment cannot be dismissed in terms of the statutory meaning of that expression. 18 They must
accordingly rely on the EEA.
The courts read s 5 fairly widely when it comes to establishing whether a dismissal for what is sometimes loosely termed
‘victimisation’ is automatically unfair. In Harding v Petzetakis Africa, 19 the court was prepared to accept that refusing to comply
with an unlawful instruction fell under this head. Ms Harding was fired for refusing to obey the MD’s instruction that she should
summarily dismiss employees without affording them a hearing. Harding’s dismissal was ruled automatically unfair.
Kaltwasser v Isambulela Group Administrator had a different outcome. 20 Mr Kaltwasser claimed that he had been dismissed for
referring an unfair labour practice dispute to the CCMA and a contractual claim to the Labour Court, and that his dismissal was
accordingly automatically unfair. The court noted that Kaltwasser had been warned of the possibility of disciplinary action long
before he made his referral to the CCMA. The company’s actions were not those of an employer determined that the employee
should be punished for invoking the procedures in the LRA. Had Kaltwasser not taken the statutory steps he did, he would in all
probability have been dismissed anyway. The court dismissed the automatically unfair dismissal claim. 21
Section 5 of the LRA has also been applied to the dismissal of unprotected strikers. In AMCU v Anglogold Ashanti, 22 more than
500 AMCU members who had engaged in a strike were dismissed but no disciplinary action was taken against the remaining 500 who
had also participated because they had relied on transport problems for not reporting for duty. Although lack of transport had been
accepted as a legitimate reason for non-attendance by non-AMCU members, this excuse had not been accepted as justification for
non-attendance by AMCU members. The court found that the AMCU members who advanced a defence of lack of transport had
been unfairly discriminated against because of their union membership and that their dismissals were automatically unfair.
This judgment shows how easily the line can be crossed between dismissals that infringe s 5 and those which are merely
inconsistent. But AMCU was less successful in another case arising from the dismissal of some of its members who
4th Ed, 2022, ch 7-p 115
refused to resume work for fear of being attacked by members of a rival union. After the mine had made detailed security
arrangements with the police, all workers were ordered to report for duty and those who did not were dismissed for being AWOL.
The LAC rejected their claim that they were dismissed because of their union membership but upheld the Labour Court’s finding that
the dismissal was procedurally unfair. The dismissed workers received compensation. 23
The provisions of s 5 may not be circumvented by contract. Employers cannot therefore rely on provisions of employment
contracts in terms of which employees may not, for example, join a trade union, to justify dismissing those employees if they do
so. 24
Fundamental to any system of law designed to promote collective bargaining is the right of employees to join unions of their choice
and take part in their lawful activities. To dismiss an employee for joining or participating in the affairs of a union is therefore
automatically unfair. Cases in which employees have been found to have been dismissed merely because they joined a trade union
are rare. But they do occur. In most cases, the issue is where the line is to be drawn between legitimate or lawful union activities,
which are protected, and illegitimate unlawful activities, which are not.
The only exception to dismissing employees for refusing to join a union is created by s 26(6) of the LRA, which states that it not
unfair to dismiss an employee for refusing to join the union party to a closed shop agreement. However, this is subject to strict
limitations. 25
The majority of a divided Constitutional Court took a liberal view of what constitutes legitimate and lawful activities in NUPSAW
obo Mani v NLB, 26 in which the dismissal of workers for petitioning for the removal of the CEO was ruled automatically unfair.
Legitimate union activity has been held to extend to wearing union T-shirts during working hours if there is no valid operational
justification for a rule to the contrary. 27
Does this mean that all employees are free to exercise these rights, irrespective of their position in the employer’s organisation?
This question is particularly relevant to managerial employees. Problems will be created for an employer if a senior manager
responsible, say, for representing the employer in collective bargaining, belongs to the trade union with which that manager
bargains on behalf of the employer, or is a member of another union that competes with the recognised majority union.
4th Ed, 2022, ch 7-p 116
The dilemma created by this situation has been examined in cases decided before and after the implementation of the current
LRA. In Keshwar v SANCA, 28 a manager was dismissed for refusing to resign as chairperson of a staff association formed to cater
for the interests of employees of her employer. The employer argued that the employee had placed herself in a conflict of interest.
The industrial court found that all the employee had done was to write a letter requesting that the staff association be recognised;
in the court’s view this did not amount to a conflict of interest. But the court warned that if managers indeed assume union
responsibilities in conflict with their duties to their employer, dismissal might be justified.
The Labour Court has adopted a similar view. In IMATU v Rustenburg Transitional Council, 29 the union sought an order declaring
a prohibition imposed on employees at managerial level from taking part in union affairs to be in breach of the Constitution and the
LRA. The court noted that under the common law there is no reason why managerial employees should not be dismissed for joining
unions; by so doing they align themselves with a union against their employers. Although this is arguably a more serious breach of
fidelity than taking up a part-time position with a competitor, the possibility of such a conflict was not enough in itself to warrant
the inference that the legislature did not contemplate such a situation when it conferred on ‘every worker’ the right to join a union
and hold union office. But the court warned that managers who act as union officials must ‘tread carefully’, especially when
handling confidential information.
The Labour Court again followed the same approach, but in a case involving different circumstances, in FAWU v The Cold
Chain. 30 The company had restructured its operation, rendering redundant the position occupied by one of its shop stewards, who
was also a FAWU office-bearer. Instead of retrenching him, management offered the shop steward the post of transport clerk,
which he was happy to accept – until management informed him that he had to relinquish his union position. After the shop steward
accepted the offer of the post, he ignored the condition. He was then handed a notice of retrenchment and dismissed. The court
declined the invitation to regard Rustenburg Transitional Council as distinguishable and accepted that the shop steward could not
be prevented from remaining a member of his union but noted that, if the shop steward proved unable to reconcile his supervisory
duties with his union responsibilities, the employer could dismiss him, or his colleagues could vote him out of office. However, the
company could not dismiss him in anticipation of that possibility.
The locus classicus of judgments in this arena is Kroukam v SA Airlink. 31 Captain Kroukam, an airline pilot, was also chairman of
the SA Airlink Pilots’ Association. In that capacity he became embroiled in a dispute between the airline’s pilots and management
over who was to fly new jets purchased by the company. That dispute found its way to the Labour Court. The union won the case.
But that was not the end of the dispute. Soon after the order was granted, Kroukam met two members of management over lunch
in the company canteen to discuss the situation on what
4th Ed, 2022, ch 7-p 117
the company later claimed was an ‘off the record’ basis. Soon after this, the union launched yet another application, the aim of
which was to have the company’s CEO and its operations director committed for contempt of court. Once again, Kroukam was the
deponent of the founding affidavit, in which reference was made to his lunchtime discussions with management. Soon after this,
the company’s attorney expressed management’s indignation by informing the union that Kroukam’s conduct would ‘not be
forgotten’. Kroukam was charged with insubordination and being a ‘disruptive influence to the orderly operation of the organisation’
as well as unrelated offences. Kroukam was duly found guilty and dismissed. His appeal was unsuccessful. The Labour Court
rejected his claim that his dismissal was automatically unfair.
On appeal, the court held that the critical issue was the reason the company had decided to dismiss Kroukam. Although the
company had clearly had enough of Kroukam, the ultimate question was whether he had been dismissed because of his deficiencies
as an employee, or whether he had been dismissed because he had, to use the words of s 5 of the LRA, exercised rights conferred
by the Act, participated in the lawful activities of a trade union, or participated in proceedings in terms of the Act. The court took
its cue from SACWU v Afrox, 32 in which the test for causation used in delict and criminal cases was applied to establish whether
striking employees had been dismissed for striking or for operational reasons. In the context of SA Airlink, the first question was
whether the dismissal would have occurred had Kroukam not engaged in his union activities; the second question was whether
those activities were the main or dominant reason for his dismissal.
Kroukam was assisted by the way in which the company had formulated its own case. The company itself (somewhat
disingenuously, as it turned out) admitted that Kroukam’s actions as shop steward and those performed in his own name were
difficult to unscramble. But, said the court, the company was not entitled to throw the baby out with the bathwater. The court
had little hesitation in finding that the main or dominant reason for Kroukam’s dismissal was his trade union activities – in particular
the role he played in the two court applications.
Mashaba v Telkom SA was a more clear-cut case. 33 Mr Mashaba, acting in his capacity as deputy secretary of the Tshwane
central branch of the Communication Workers Union (CWU), compiled a memorandum of grievances, including allegations of alleged
corruption by some of Telkom’s senior executives, and sent it to the Telkom employee relations department. Nothing happened, but
a little while later another CWU office-bearer, Mr Motheo, sent an e-mail to various Telkom employees attaching two documents –
one calling for an investigation and the other incorporating a ‘dossier’, purportedly from ‘concerned citizens’, which had been sent
to, among others, the Public Protector, the Minister of Finance, the Minister of Communications, the Standing Committee on Public
Accounts and Telkom’s board. This document also contained allegations of irregular conduct by certain Telkom senior executives,
some duplicating those contained in Mashaba’s memo. The dossier was then e-mailed to the South African Press Association (SAPA)
4th Ed, 2022, ch 7-p 118
and the CWU Gauteng provincial office headlined ‘Unprecedented High-level Corruption in Telkom’.
Telkom’s management was not pleased. A letter of protest was sent to the CWU and Motheo was suspended. The CWU then
asked Mashaba to send his e-mail to its office, which he did, and copied it to COSATU and several Telkom employees. Mashaba was
duly charged, found guilty and dismissed. He referred a dispute to the Labour Court, claiming that his dismissal was automatically
unfair. Again, the critical issue was the ‘dominant’ or ‘more likely’ reason for the dismissal. Mashaba had to show at least that he
had been victimised in contravention of ss 4 and 5 of the LRA for exercising his right to participate in the CWU’s lawful activities.
The court accepted that shop stewards enjoy limited indemnity from discipline for conduct ancillary to the exercise of their
functions. Although this privilege cannot operate as an excuse for conduct which ordinarily would justify dismissal, robust union
activism is acceptable. Mashaba had merely followed the provincial secretary’s instruction to e-mail the dossier. This amounted to
an exercising of his trade union duties, and was enough proof that the dominant reason for his dismissal was the exercise of his
duties as a shop steward. Mashaba was reinstated.
Another instructive case is BIFAWU v Mutual & Federal Insurance Company, 34 a case decided soon after SA Airlink. Mutual &
Federal also involved the dismissal of a shop steward, Mr Nhlapo, who had also discharged his functions with a zeal which his
employer (and this time also the court) regarded as excessive. Nhlapo’s problems began when he represented a colleague in a
disciplinary hearing. The colleague was found guilty of fraud and dismissed. When the matter came before a CCMA arbitrator, the
dismissed employee was again represented by Nhlapo. Nhlapo, who proved a prodigious point-taker, managed to persuade the
commissioner that the dismissal of his former colleague was procedurally unfair. His forensic skills cost the company nearly R40 000
in compensation. Had Nhlapo been dismissed for this reason alone, his dismissal would clearly have been automatically unfair.
However, he was not dismissed merely because of his forensic success. Nhlapo was dismissed because one of the points he took in
support of his argument that the dismissal was procedurally unfair was that the chairman of the disciplinary hearing had
unreasonably refused the employee’s request for a postponement. The company took exception to this submission because it was
simply untrue. The Labour Court also found it untrue, and ruled that Nhlapo could not shelter behind his rights as a shop steward to
protect himself from what amounted to misconduct as an employee. The LAC agreed on appeal. The issue was whether Nhlapo had
in fact exceeded the limits of his role as shop steward, not whether his performance in that role loomed larger in the employer’s
mind than his deficiencies as an employee. While some latitude must be extended to shop stewards when they seek to advance the
interests of their union and its members because they are not lawyers bound by ethical codes, Nhlapo had not only behaved
dishonestly; his conduct, said the court, had been ‘downright devious, unscrupulous and deceitful’. This was enough in itself to
justify the dismissal. The critical difference between Kroukam and Mutual & Federal was that Kroukam had not behaved
dishonestly.
4th Ed, 2022, ch 7-p 119
The test, however, is not merely whether the shop steward was dishonest. Some conduct, even if in genuine pursuit of
collective bargaining goals, simply goes too far. A shop steward who during a strike, accused management of theft and racism and
ordered security guards to give him the names of all workers who reported for duty, was held to have crossed the line and been
justifiably dismissed. 35 The mere fact that a strike happened to be called by a particular union does not mean that the strikers
were dismissed for belonging to that union because they happened to be its members. 36 The LAC has also held that protection of
shop stewards against victimisation is not a licence to resort to defiance and needless confrontation, especially assault. 37
The prohibition against any form of discrimination against employees, including dismissal, does not apply to dismissals pursuant to
closed shop agreements. In terms of s 26 of the LRA, an employer and a registered union with a majority of employees in the
workplace may conclude a closed shop agreement in terms of which all employees of the employer are required to become members
of the union. The LRA expressly provides that dismissing employees who refuse to join a union party to a closed shop agreement, or
who are expelled from such a union, is not unfair. 38 However, this licence is subject to several provisos: first, employees must be
given a reasonable opportunity to join the union after the agreement is concluded; secondly, employees may not be dismissed if
they refuse to join the union on the ground of conscientious objection; thirdly, the union party to the closed shop agreement may
not refuse employees membership, or expel members, except in accordance with their constitution and for valid reasons.
If employees lose their jobs as a result of expulsion from a union that is party to a closed shop agreement, the Labour Court is
enjoined to investigate inter alia whether the expulsion was fair and, if compensation is awarded, to order the union to pay.
Section 26(6) of the LRA applies only to closed shop agreements that comply with the provisions of the LRA. Since the
requirements for a closed shop agreement have statutory force, non-statutory closed shop agreements (which are recognised
under the common law) will probably not provide justification for dismissing employees who refuse to join unions that are parties to
such agreements, 39 unless they comply with the provisions of the LRA.
4th Ed, 2022, ch 7-p 120

As Kroukam illustrates, dismissing an employee for exercising any statutory right, such as referring a dispute to the CCMA or Labour
Court or reporting a matter to the Department of Labour (DOL), will inevitably be automatically unfair if the employee has acted in
good faith, even if erroneously. Section 5(1) protects employees against discrimination for exercising rights ‘conferred by this Act’.
The Labour Court has confirmed that this form of automatically unfair dismissal applies only to those dismissals effected because
the employee has exercised a right in terms of the LRA. An employee dismissed for taking action in the High Court was held not to
have a claim under s 187(1). 40 The LAC has held that filing an internal grievance about the employer’s failure to discipline
particular employees did not amount to an act contemplated by s 187(1)(d)(i) because it did not entail exercising a right conferred
by the LRA. 41
2.6 Section 187(1)(d)
Section 187(1)(d) overlaps significantly with the introductory paragraph in s 187(1), which renders automatically unfair dismissals
contrary to s 5 (see above). However, the opening paragraph is broader, in that it does not require the dismissal to be effected
because the employee exercised rights under the LRA. Section 187(1)(d) merely requires that the employer, when dismissing,
should have acted contrary to s 5. Read together, the two provisions render automatically unfair dismissals effected because the
employee took action, or threatened to take action, against the employer by exercising any right conferred by the LRA, or by
instituting action under the LRA.
The LRA confers many rights on employees, including the right to join and participate in the activities of unions and workplace
forums, the right to strike, picket and engage in protest action, and the right to elect and act as union representatives. A dismissal
effected solely or mainly because an employee exercises any of these rights is automatically unfair. 42
An employee may be dismissed for referring a matter for adjudication or arbitration if the action is based on a spurious or mala
fide claim. But it is generally prudent to await the outcome of the case before taking such action. 43
11 Section 5(2)(a)(i)–(iii) and 5(2)(b).
12 Section 5(2)(c).
13 These prohibitions are discussed in Employment Rights C hapter 13.
14 Section 5(2)(c)(vi).
15 Securitas Specialised Services v Kabelane (2021) 42 ILJ 833 (LAC ).
16 Cosme v Polisak (2010) 31 ILJ 1861 (LC ).
17 For an example of a case in which employees failed to prove such a link, see Ngozo v Scorpion Legal Protection (2008) 29 ILJ 1039 (LC ).
18 See C hapter 3.
19 (2012) 33 ILJ 876 (LC ).
20 (2014) 35 ILJ 3436 (LC ).
21 See also Mkokeli v Bloomberg LP (2021) 42 ILJ 1224 (LC ), in which the applicant made very similar mistakes to those made by Kaltwasser.
22 (2016) 37 ILJ 2320 (LC ).
23 AMCU v Northam Platinum Mine (2021) 42 ILJ 2565 (LAC ).
24 See further Employment Rights C hapter 13.
25 In SATAWU v Servest Security – A division of Servest Group (2022) 43 ILJ 426 (LC ), the court granted an interim interdict prohibiting the
dismissal of employees pending a review of the validity of a closed shop agreement.
26 (2014) 35 ILJ 1885 (C C ).
27 NUMSA obo Members v Transnet (2019) 40 ILJ 583 (LC ).
28 (1991) 12 ILJ 816 (IC ).
29 (2000) 21 ILJ 377 (LC ).
30 (2007) 28 ILJ 1593 (LC ).
31 (2005) 26 ILJ 2153 (LAC ).
32 (1999) 20 ILJ 1718 (LAC ). For the test for legal causation in criminal cases, see S v Mokgethi 1990 (1) SA 32 (A) and Minister of Police v
Skosana 1977 (1) SA 31 (A).
33 (2018) 39 ILJ 1067 (LC ).
34 (2006) 27 ILJ 600 (LAC ). The Labour C ourt judgment is reported as BIAWU v Mutual & Federal Insurance Co (2002) 23 ILJ 1037 (LC ).
35 NUM v Black Mountain Mining (2010) 31 ILJ 387 (LC ).
36 NUMSA obo Maifo v Ulrich Seats (2012) 33 ILJ 2918 (LC ).
37 NUMSA obo Motloba v Johnson Controls Automotive SA (2017) 38 ILJ 1626 (LAC ).
39 Under the 1956 Act, the courts were prepared to judge the fairness of dismissals which took place in terms of non-statutory closed shop
agreements: see Cape Town Municipal Professional Staff Association v The Municipality of the City of Cape Town (1994) 15 ILJ 348 (IC ). C losed shop
agreements are discussed in Grogan Collective Labour Law 3 ed (Juta 2019) C hapter 3. There are no reported cases in which dismissals pursuant to a
closed shop agreement have been challenged.
40 Maimela v UNISA (2010) 31 ILJ 121 (LC ).
41 See DBT Technologies v Garnevska (2020) 41 ILJ 2078 (LAC ), subsequently distinguished in James v Namcon Logistics (2020) 41 ILJ 2845 (LC ),
in which the employee had filed grievances for the employer’s failure to apply on his behalf for compensation for an on-duty injury under the
C ompensation for Occupational Injuries and Diseases Act 130 of 1993 (C OIDA). In Mkokeli v Bloomberg LP (2021) 42 ILJ 1224 (LC ), the court followed
DBT Technologies but disagreed with the manner in which that judgment had been distinguished in Namcon Logistics.
42 See further C hapter 10. Victimisation is fully discussed in Employment Rights C hapter 13.
43 See NUMSA obo Joseph and Hillside Aluminium (2004) 25 ILJ 2264 (BC A), in which the arbitrator held that the dismissal of an employee for
making frivolous allegations of sexual harassment was automatically unfair because the dismissal prejudged the finding of the court.

4th Ed, 2022, ch 7-p 121
Section 187(1)(a) renders automatically unfair dismissals for participation in or support for strike or protest action that complies
with the provisions of Chapter IV of the LRA, ie lawful strikes and protests. This provision reinforces ss 67(4) and 77(3) of the LRA
which provide, respectively, that employers may not dismiss employees for participating in protected strikes or protest action that
comply with the provisions of the Act. Participation in strikes or protest action that do not comply with the Act are expressly
confirmed to be a form of misconduct, for which dismissal may be appropriate. 44 So, too, is misconduct during the course of a
protected strike. 45
Section 187(1)(a) therefore protects employees engaged in lawful strike action or protest action from disciplinary action, including
dismissal for the act of striking. No such absolute protection was granted under the 1956 Act. Under their unfair labour practice
jurisdiction, the labour courts accepted the common-law principle that strikes constituted a breach of contract. 46 However, those
courts also accepted that equitable principles applied when deciding whether the dismissal of lawful strikers was fair in the
circumstances. 47 The courts approached strike dismissals as they would any other forms of dismissal. Except to the extent that
compliance with the Act was deemed a mitigating factor, no distinction was drawn between lawful and unlawful strikes when it
came to the dismissal of the strikers. The underlying question was whether the employer was forced to dismiss the strikers in order
to keep its business going. 48 Such factors as the conduct of the strikers, 49 the duration of the strike, 50 the reasonableness of
the strikers’ refusal to accept the employer’s offer at the time of the dismissal, the degree of flexibility shown by the employer, the
consistency of the selection criteria chosen by the employer and the fairness of the employer’s actions before the decision to
dismiss was taken, 51 were all taken into account. 52
The current LRA to some extent reflects this jurisprudence by qualifying the prohibition on the dismissal of ‘protected’ strikers
with the rider that employers may dismiss employees ‘in accordance with the provisions of Chapter VIII for a reason related to the
employee’s conduct during the strike, or for a reason based on the employer’s operational requirements’. 53 In other words, a
‘protected’ strike
4th Ed, 2022, ch 7-p 122
does not protect employees against the consequences of any misconduct other than absenteeism, which is a necessary corollary
of the exercise of the right to strike. Nor does a protected strike suspend the employer’s right to retrench employees for genuine
operational reasons, even if the operational problems were caused by the strike.
The difference between disciplining employees for misconduct and dismissing them for acts legitimately connected to the strike
may be fine. So, too, may the difference between a retrenchment in the strike context and a dismissal of strikers merely because
they are causing financial harm, which is a necessary consequence of most strikes.
In assessing whether the dismissal of a striker or a worker who has participated in protest action constitutes an automatically
unfair dismissal, therefore, the following questions must be asked:
• Did the strike or protest action comply with the provisions of the Act?
• Was the reason for the dismissal related to the conduct of the employee other than the act of striking and actions in support
of the strike?
• Was the dismissal for operational requirements?
The requirements of a lawful strike or protest action are set out in ss 64 and 77 of the LRA, respectively. An analysis of these
provisions is beyond the scope of this volume. Suffice it to note that limitations on the right to strike or engage in protest action
are both substantive and procedural in nature. To acquire the right to obstruct or retard the business of their employer by refusing
to work according to their contracts, or to stay away from work in order to engage in protest action, the employees concerned
must adhere to the following procedures.
In the case of a strike, the employees or their union must refer a dispute to the CCMA or bargaining council with jurisdiction and
await the issuing of a certificate that the dispute is unresolved. Thereafter, at least 48 hours’ notice in writing of the
commencement of the strike must be given to the employer or bargaining council, as the case may be. In addition, if the dispute
concerns a refusal to bargain, an advisory award must be issued by the CCMA or council before the strike begins. 54
Protest action (ie action to defend or promote the socio-economic interests of workers) may be commenced only if it has been
called by a registered trade union or federation of unions, which has referred the issue to the National Economic Development and
Labour Council (NEDLAC), and given NEDLAC 14 days’ notice of the start of the protest action. 55
Apart from these procedural requirements, workers may not engage in strikes if they are bound by collective agreements that
prohibit industrial action in respect of the issue in dispute, if a collective agreement provides that the issue in dispute must be
referred to arbitration or if the issue in dispute is one which can be referred to arbitration under the Act. Furthermore, workers may
not strike if an arbitration award, collective agreement or ministerial determination regulates the issue in
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dispute. 56 Employees engaged in essential or maintenance services may not strike. 57 Self-evidently, to qualify for protection, a
work stoppage must also fall within the statutory definition of ‘strike’ and ‘protest action’. 58
So-called ‘secondary strikes’ – strikes in sympathy with strikers employed by an employer other than the employer of the primary
strikers – are protected only if the ‘primary’ strike is also protected. The secondary strikers must themselves comply with the
procedural requirements of the Act, and the strike must be ‘reasonable in relation to [the] direct or indirect effect that the
secondary strike will have on the business of the primary employer’. 59
Secondary strikes are not to be confused with strikes by employees in support of demands by their colleagues in a different
division of the same employer. Nothing prevents employees from striking in support of their colleagues’ demands, provided that the
dispute has been properly referred for conciliation, even if the striking employees will not be directly affected by the outcome of
the dispute. 60
Protection against dismissal is afforded strikers if the strike or protest action complies with the provisions of the LRA. Normally,
the legality of participation in a strike and the legality of the strike itself amount to the same thing – if the strike is unlawful, the
strikers lose protection as a result of their participation. However, in some cases it may be unlawful for certain categories of
employee to take part in a protected strike. This is so when particular categories of workers, such as maintenance or essential
service employees, are precluded by the Act or collective agreement from participating in the strike. Dismissal of unprotected
strikers is discussed in Chapter 22.
If there is any doubt on that score, employers should be wary of dismissing strikers because they (the employers) believe the
strike to be unlawful.
Whether the reason for which the employee was dismissed related to the act of striking per se must be determined in relation to
the facts of each case. Strictly speaking, the right to strike entails only the right to refuse, retard or obstruct work in association
with other employees ‘for the purposes of remedying a grievance or resolving a dispute in respect of any matter of mutual interest
between employer and employee’. In principle, therefore, any breach of contract committed by a striking employee for these
purposes does not amount to misconduct.
It is generally recognised that a strike is also to some extent aimed at exerting psychological pressure on employers and their
customers. Supportive action by strikers such as gatherings, pickets, marches and demonstrations are therefore accepted as
legitimate, provided they are peaceful, lawful and not in breach of applicable picketing rules.
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Protected strikers are not protected against dismissal for misconduct committed during the strike. The organising union is expected
to control strikers during a protected strike and to comply with picketing rules. Offences for which strikers are most commonly
dismissed are intimidation, assault and damage to property. 61 When deciding whether to institute action against strikers for these
offences, the fact that the misconduct took place within the strike context may be relevant. Actions that may appear highly
intimidatory or threatening in ordinary circumstances, such as gathering en masse near a factory entrance, may in the context of a
strike be accepted as a legitimate demonstration if they are not in breach of picketing rules. Apart from their right to protect
themselves and their property, employers are obliged to protect non-strikers and even other strikers, who remain their employees.
Strikers received short shrift from a commissioner conducting an inquiry in terms of s 188A because they had defied an interim
interdict issued by the Labour Court by disregarding picketing rules and throwing stones at the police. 62 The court subsequently
rubbed this in by sentencing the employees to suspended jail terms for contempt and fining the union and ordering it to pay the
employer’s costs on a punitive scale. 63
The chief reason for the dismissal must be identified. Where the reason for the dismissal is plainly misconduct, the dismissal is by
definition not automatically unfair. The onus appears to be on the employees to prove that the dismissal was for striking, and not
for misconduct. 64 The Constitutional Court has ruled that, once misconduct is established, the normal onus rests on the employer
to prove the dismissal fair. 65 Employees dismissed for misconduct may be able to prove that, even though they were indeed
dismissed for misconduct, their dismissal was in breach of the parity principle because the offence of which they were guilty was
insufficient to distinguish them from other strikers. 66
Dismissals of employees for misconduct during a strike must comply with the provisions of Chapter VIII of the LRA. 67 This means
that the dismissal must be for a fair reason and in accordance with a fair procedure. The fairness of the reason is determined
according to the normal principles of any misconduct case. These principles are dealt with in Chapters 8 and 9. However, special
considerations may apply in dismissals for misconduct in the strike context. Apart from those already mentioned, the rules relating
to dismissal for collective misconduct may be relevant when a number of employees are charged with the same offence. Of
particular relevance in this regard is the principle of consistency. 68
The procedure to be followed in the case of dismissals for misconduct in the strike context must not be confused with the
procedural requirements for the
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dismissal of unprotected strikers for the act of striking. 69 It goes without saying that the accused employees must be proved to
have committed the misconduct. 70 Procedurally, if employees guilty of individual or group misconduct are dismissed along with
other strikers for failing to comply with a fair ultimatum issued before or after a collective hearing, the need to give them individual
hearings falls away. However, if the ultimatum ends the strike, or if employees charged with misconduct were suspended at the
time of the ultimatum, they cannot be dismissed for failing to comply with the ultimatum. 71 In such cases, the employees charged
with misconduct are entitled to individual hearings after the strike, during which the normal principles of procedural fairness apply.
Hearings will normally be held after the strike, but there is nothing in principle to prevent an employer from convening disciplinary
hearings during a strike. 72 The only grounds upon which an employer can dispense with hearings are waiver or emergency. 73
A plea by an employer that it has retrenched striking employees also raises conflicting considerations. This exception to the
prohibition on dismissing protected strikers endorses the principle accepted in earlier cases that there are limits to the right to
strike. That limit was set by the impact of the strike on the business of the employer. There is no point, so it was held in these
cases, in allowing strikers to destroy the employer’s business. When that prospect raises its head, the strike ceases to be
‘functional’ – ie it is no longer an adjunct to collective bargaining, but a weapon of attrition. Based on this view, the courts have
accepted that there is a point at which a strike-hit employer ought, in fairness, to be permitted to dismiss strikers so that it can
replace them with willing workers.
There has been much debate over the point at which an employer could be permitted to rely on operational requirements to
dismiss strikers. Some courts have held that the employer must be facing extinction, others that the business must have suffered
irreparable harm, still others that it must be facing a real prospect of irreparable harm. 74 The legislature leaves that question open
in s 67(5).
The cross-reference in that provision to Chapter VIII suggests that the test must be the same as that applied in any
retrenchment, ie whether the dismissed employees have in truth become redundant to the operational requirements of the
employer.
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That question must be considered in relation to the business requirements of the employer at the time of the dismissal; that the
need for a reduced workforce arose as a result of the strike cannot logically be regarded as a factor that renders dismissal
automatically unfair, otherwise s 67(5) would be virtually purposeless. 75
Unless the employer would in any event have engaged in a retrenchment exercise, or was perhaps engaged in such an exercise
when the strike commenced, the business needs that justify retrenchment in a strike context must almost invariably be linked in
some way to the consequences of the strike. When entertaining claims by employers that they have dismissed protected strikers
for operational requirements, therefore, the courts must tread a delicate path between undermining the efficacy of strike action, on
the one hand, and on the other, allowing strikes to be wielded as economic weapons.
The delicacy of this balance is illustrated by SACWU v Afrox, 76 in which workers were dismissed for refusing to accept a change
of shift pattern. Some drivers co-operated; others did not. Eventually, all the drivers declined to work according to the company’s
roster and went on strike. The company replied with a lock-out, which was eventually withdrawn and the dissident drivers were
subsequently dismissed. The issue was whether the drivers had been dismissed for operational requirements, or pursuant to a
‘termination lock-out’. 77 The LAC began by observing that there was no real conflict between protecting strikers against dismissal
and allowing employers to retrench them. When strikers are dismissed, the question is whether they are dismissed for a bona fide
reason. The true reason for the dismissal depends on the facts of each case. First, the actual reason for the dismissal must be
identified. If that reason is that the workers were on strike, the inquiry ends; the dismissal is then automatically unfair. But when
the court finds that the reasons were related both to the strike and to the operational requirements of the employer, the dominant
or proximate reason must be identified. That exercise, in turn, entails a twofold inquiry. The first is to establish whether operational
requirements indeed played a role. If they did, this establishes a factual link between operational requirements and the dismissal.
The next inquiry is whether operational requirements were the ‘cause’ of the decision to dismiss in the legal sense. The latter
inquiry, according to the court, is a matter of law and policy; there are ‘no hard and fast rules to determine the question of legal
causation’. The ‘most practical way’ of deciding the issue is ‘to determine what the most probable inference is that may be drawn
from the established facts as a cause of the dismissal, in much the same way as the most probable or plausible inference is drawn
from circumstantial evidence in civil cases’.
Applying that test to the facts of the case, the court found that the need to change the old shift system predated the strike.
The union had been warned of the possibility of retrenchment during consultations. Although continued participation in the strike
contributed to, or accelerated the decision to dismiss, the main reason for the dismissal was the need to get the business going
again on a more stable
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basis. Whether the timing of the dismissals was appropriate belongs more properly to the inquiry whether the dismissals were fair.
This served as a reminder that a finding that a dismissal was not automatically unfair does not necessarily mean that the
employer has discharged the onus of proving that it was fair. Turning to that issue, the court found that Afrox had consulted the
unions sufficiently. 78
Afrox did not deal directly with the further question: must an employer be in extremis before it can resort to retrenchment in
response to a protected strike and escape the effects of s 187(1)(b)? The approach adopted in Afrox suggests that it need not;
strictly speaking, the effect the strike has had on the employer has nothing to do with whether the strike caused the retrenchment
or, to put it another way, whether the retrenchment was in response to the strike. Once the concept of legal, as opposed to
‘factual’ causation is brought into play, the door is opened to a consideration of the employer’s motives. An employer who has been
brought to the brink of bankruptcy by a strike will find it easier to prove that its motive was to save the business, rather than to
retaliate against the strikers. Conversely, an employer that has not suffered at all will be hard put to persuade the court that it is
not using retrenchment as a means of ending the strike. In that sense, the economic consequences of the strike are circumstances
from which deductions about the employer’s motive may be drawn. Beyond that, the debate about the degree of harm an employer
must suffer before it can validly retrench relates to the fairness of the retrenchment, not whether the retrenchment constituted an
automatically unfair dismissal. 79
44 Section 68(3). Dismissal for participation in unprotected strikes is discussed in C hapter 22. See also Collective Labour Law C hapter 15.
45 Section 67(5).
46 Perskor v MWASA (1991) 12 ILJ 86 (LAC ).
47 The jurisprudence relating to strike dismissals under the 1956 LRA is best illustrated in Betha v BTR Sarmcol (a division of BTR Dunlop) (1998)
19 ILJ 459 (SC A).
48 NUM v Black Mountain Mineral Development Co (1994) 15 ILJ 1005 (LAC ).
49 NUMSA v G Vincent Metal Sections (1993) 14 ILJ 1318 (IC ).
50 Sentraal-Wes (Koöperatief) v FAWU (1990) 11 ILJ 977 (LAC ).
51 Performing Arts Council of the Transvaal v PPWAWU (1994) 15 ILJ 65 (A).
52 These factors are derived from the seminal judgment in Die Raad van Mynvakbonde v Die Kamer van Mynwese van SA (1984) 5 ILJ 344 (IC ).
53 Section 67(5).
54 The procedural requirements for a protected strike are set out in s 64. For a full discussion of these and other strike-related provisions, see
Collective Labour Law C hapters 10 and 11.
55 Section 77. See Collective Labour Law C hapter 13.
56 Section 65.
57 Section 65(1)(d).
58 See s 213.
59 Section 66. This requirement was discussed and applied in Billiton Aluminium SA v NUMSA (2001) 22 ILJ 2434 (LC ). See Collective Labour Law
C hapter 12.
60 Early Bird Farms v FAWU (2004) 25 ILJ 2135 (LAC ); Aarons v University of Stellenbosch (2003) 24 ILJ 1123 (LC ).
61 These offences are dealt with in C hapter 9.
62 Spar Eastern Cape Distribution Centre / Warnie [2021] 10 BALR 1104 (C C MA).
63 Spar Eastern Cape Distribution Centre v THORN [2021] 12 BLLR 1264 (LC ).
64 See NDCAWU v Cummins Emission Solutions (2014) 35 ILJ 2222 (LC ); Martin & East v NUM (2014) 35 ILJ 2399 (LAC ).
65 TAWUSA obo Ngedle v Unitrans Fuel and Chemical (2016) 37 ILJ 2485 (C C ).
66 The application of the ‘parity principle’ in the strike context is discussed in C hapter 22.
67 Section 67(5).
70 FAWU obo Kapesi v Premier Foods t/a Blue Ribbon Salt River (2012) 33 ILJ 1779 (LAC ), discussed in C hapter 16.
71 See, for example, Ramotsepane v Barmot Truck Hire [2002] 6 BLLR 525 (LAC ) at 551–2.
72 CEPPWAWU v Metrofile (2004) 25 ILJ 231 (LAC ).
73 Waiver and emergency are confined to extreme cases: see Lefu v Western Areas Gold Mining Co (1985) 6 ILJ 307 (IC ). For cases in which
waiver was held applicable, see Mfazwe v SA Metal & Machinery Co (1987) 8 ILJ 492 (IC ); FBWU v Hercules Cold Storage (1990) 11 ILJ 47 (LAC ).
74 In BAWU v Prestige Hotels t/a Blue Waters Hotel (1993) 14 ILJ 963 (LAC ) the court spoke of ‘genuine economic necessity’ (at 973B–C ) and ‘the
threat of extinction of an enterprise’ (at 972F). In NUM v Black Mountain Mineral Development Co (1994) 15 ILJ 1005 (LAC ) the court said (at 1012A–B)
that the test was ‘the likelihood of substantial economic loss’. In Cobra Watertech v NUMSA (1995) 16 ILJ 607 (LAC ) at 616A–H the court held that the
circumstances which might justify the dismissal of strikers could not be determined in vacuo, but observed that economic circumstances alone would
‘seldom prevail’. The court adopted the same approach in NUMSA v Boart MSA (1995) 16 ILJ 1469 (LAC ).
75 SACWU v Afrox (1999) 20 ILJ 1718 (LAC ).
76 Supra.
77 SACWU v Afrox (1998) 19 ILJ 62 (LC ).
79 In NUMSA v Dorbyl (2007) 28 ILJ 1585 (LAC ) the court was also ‘satisfied that the need to retrench predated the strike’ and that although the
individual appellants’ participation in the strike contributed to, or accelerated, the decision to dismiss, it was not the dominant reason for the dismissal’.

Section 187(1)(b) renders automatically unfair the dismissal of employees who refuse to do the work of employees engaged in a
protected strike or who have been locked out by the employer. This provision is a complement to the protection afforded to the
strikers and locked-out employees themselves (see previous section). Like protection against dismissal, the objective of s 187(1)(b)
is to ensure that the balance of power between employers and employees who have resorted to industrial action is not skewed in
favour of employers. 80
To fall within the terms of s 187(1)(b), the cause of the dismissal must be the employee’s refusal, or intention to refuse, to do
any work normally done by a striker or locked-out employee, provided that the strike is protected and that the work is not
necessary to prevent an actual danger to life, personal safety or health. The use of the word ‘any’ indicates that the legislature
intended the phrase ‘work normally done by’ a striker to be widely construed. The ambit of s 187(1)(b) is not therefore
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limited to work which the striker or locked-out employee actually performed, for example, the operation of the particular machine
normally operated by that employee. The term also appears to have qualitative connotations – compelling non-strikers to perform
additional work to make up production lost as a result of the strikers’ absence. However, in that case, the additional work must be
calculated with reference to normal production.
The reference to work ‘normally done by a striker’ appears to preclude an employer from relying on its contractual power to
instruct employees to perform work falling within their job descriptions, broadly understood, to provide labour withdrawn by strikers.
If employees are merely absent from work, other employees can lawfully be instructed within reason to perform their duties,
provided that employees so instructed are capable of performing those duties. If absent employees happen to be engaged in a
protected strike, the employer cannot exercise that contractual power over non-strikers. Disputes can be expected over whether
work the employee is requested to perform is that ‘normally’ performed by a striker, though none have yet found their way into the
law reports. Each case will have to be decided on its own facts.
The cause of the dismissal must be the employee’s refusal to perform the work of a striker or locked-out employee, not the
employee’s mere failure to do so. This implies that the non-striking employee must have been requested or instructed to perform
the work. If this section is read literally, the use of the word ‘refuse’ means that if non-strikers who have been voluntarily
performing the duties of strikers walk into their supervisor’s office and announce that they will no longer do so, and are dismissed
on the turn, the employees’ dismissal will not automatically be unfair. But this may be too strict a construction; the courts would
probably interpret the word ‘refuse’ liberally to denote any failure by an employee to do the work of striking colleagues if that failure
was the reason for the dismissal.
The inclusion of the phrase ‘or indicated an intention to refuse’ demonstrates that the legislature intended to embrace within the
terms of s 187(1)(b) dismissals in any way related to the frustration of an employer’s intention to compel non-striking employees to
do the work of their striking or locked-out colleagues.
As in the case of the provision dealing with strike dismissals (see above), protection afforded non-strikers against dismissal for
refusing to do the work of strikers is extended only if the strike complies with the requirements of Chapter IV of the LRA. If an
employee is dismissed for refusing to do the work of an unprotected striker, the fairness of the dismissal must be assessed
according to the normal requirements of any dismissal for insubordination. In such cases, the reasonableness of the instruction and
the persistence of the employee’s refusal would be important. An employee’s refusal to perform the work of strikers may, in any
event, mean that, technically speaking, that employee is also on strike.
The proviso that the protection afforded by s 187(1)(b) will not be extended when the work the employee refuses to perform is
‘necessary to prevent an actual danger to life, personal safety or health’ is a further recipe for controversy. Apart from difficulties
of proving a claim or counterclaim that a particular work is ‘necessary’ for the purposes mentioned, the proviso raises the question
whether a non-striker can be dismissed for refusing to perform work of essential or maintenance service
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workers who are unlawfully participating in the strike. For the reasons set out in the previous section, the answer is probably yes.
The considerations mentioned above apply also to employees who refuse to do the work of locked-out employees, except that in
such cases it is immaterial whether the lock-out is lawful or unlawful.
80 Elsewhere in the LRA employers are given the right to use replacement labour during a strike (s 76), and to withhold the wages of strikers (s
67(3)).

Section 187(1)(c) initially rendered a dismissal automatically unfair if the purpose of the dismissal was ‘to compel the employee to
accept a demand in respect of any matter of mutual interest between employer and employee’. This provision was not happily
phrased. On the face of it, it is impossible to compel employees to accept a demand relating to a workplace issue by dismissing
them. The legislature must have had in mind situations in which employers threaten employees with dismissal if they refuse to
accept the employer’s demands. Section 187(1)(c) was accordingly amended to read: ‘a refusal by employees to accept a demand
in respect of any matter of mutual interest between them and their employer’. The amendment was prompted by judicial
interpretations of the initial version.
Section 187(1)(c) was intended to target dismissals that come about because employees refuse to yield to threats to comply
with employer’s demand or be fired. Under the 1956 LRA, these dismissals were called ‘termination lock-outs’. 81 Termination lock-
outs take place when an employer presents a set of demands during the course of collective bargaining, either independently or in
response to a demand from the employees. The employer then refuses to accept the employees’ tender of service, and keeps them
‘locked out’ until they accept the employer’s demands. The ‘termination lock-out’ occurs when the employer tires of this situation
and requires the employees either to accept its demands or to face dismissal, then replaces them with compliant workers.
Under the 1956 LRA, dismissals effected to end lock-outs were not considered part of the lock-outs. The dismissals could
therefore be assessed under the industrial court’s unfair labour practice jurisdiction in spite of the exclusion of lock-outs from the
definition of ‘unfair labour practice’. 82 Section 187(1)(c) renders that debate academic. The reason that renders the dismissal
automatically unfair is expressed in words that echo the lock-out definition. Any such dismissal is therefore, by definition, a
termination lock-out, and is automatically unfair. 83
Now, to be hit by s 187(1)(c) a dismissal for refusing to accept a demand need not be preceded by an actual lock-out. Dismissal
of individual employees who refuse to accept a particular demand made by their employers also falls within the scope of this
provision, provided the demand relates to a ‘matter of mutual interest between employer and employee’. That term refers to issues
not regulated by law, as opposed to issues arising from conflicting assertions of legal rights, ie a dispute
4th Ed, 2022, ch 7-p 130
of interest, as opposed to a dispute of right. 84 Dismissals of employees who refuse to accept demands or instructions which the
employer is lawfully entitled to make are therefore not covered by s 187(1)(c). For a dismissal to fall under that section, the
demand(s) with which the employees refused to comply must relate to changes which the employer wishes to make, but has no
legal right to make without the employees’ consent. The threat of dismissal contemplated in this section is a threat aimed at
compelling the employees to give such consent.
There is another method of pressurising employees to accept changes to terms and conditions of employment which may not be
hit by s 187(1)(c). This is to require the employees to accept the change, or face retrenchment, which has the same result.
Whether a demand that employees accept a change to terms and conditions of employment relates to a matter of mutual interest
contemplated in s 187(1)(c) or to a permissible retrenchment under s 189 is a question of fact, to be determined by the reason for
the proposed change.
MWASA v Independent Newspapers, 85 and BEMAWU obo Mohapi v Clear Channel Independent, 86 both decided under the
original s 187(1)(c), provide examples. The former company placed its editorial employees in a pool, and required them to work for
all its publications, instead of only one of them, as before. The company then gave notice that it intended to retrench those
employees who refused to accept the new arrangement. The employees sought an order restraining the company from implementing
the changes, claiming that they amounted to a unilateral amendment to their terms and conditions of employment. They claimed
further that the company could lock them out only to compel them to accept the change, but not dismiss them if they refused to
do so. The company argued that the dispute was one of ‘right’, as it had initiated a process of restructuring for operational
requirements, and that it was accordingly entitled to retrench employees who refused to accept the new conditions of service. The
court held that the change was motivated by the need to restructure for operational reasons. The changes had been mooted not
as ends in themselves, but with the objective of restructuring. Changes to terms and conditions of employment are permissible if
they are implemented during a bona fide retrenchment exercise as a means of avoiding retrenchment. 87
The employees in Clear Channel Independent were salespersons who worked on commission. The employer decided to restructure
the employees’ salary packages and pay them monthly salaries instead. The employees refused to accept the change, contending
that it amounted to a variation of their terms and conditions of employment. The employees were then handed invitations to
consult with a view to their possible retrenchment. They declined to accept the new salary packages unless they were raised to
the equivalent of the remuneration they had earned by way of commission. The employees were then dismissed on a month’s
notice, without being paid severance pay because, according to the employer, they had
4th Ed, 2022, ch 7-p 131
declined an adequate alternative to dismissal. The court noted that a dismissal falls under s 187(1)(c) of the LRA only if it is made
conditional on acceptance by the employee of the employer’s demand. Otherwise, employers may rely on operational requirements
to terminate the services of employees who refuse to accept their demands. A dismissal based on operational requirements would
be automatically unfair if no valid operational requirements justified the changes and if the dismissal was not final in the sense that
it is intended to replace the dismissed employees with those who were willing to accept the change. In the present case, the
employer had shown that there was a compelling operational reason for doing away with commissions – the risk of duplicated claims
and fraud. The dismissals were also clearly ‘permanent’ and not aimed at replacing the employees with others. The court
accordingly held that the employees had failed to prove that the applicant employees’ dismissals were automatically unfair.
The dividing line between a demand actuated by a bona fide operational decision and a demand aimed merely at compelling
employees to accept a change to existing terms and conditions of employment can be fine. In NUM v Fry’s Metals, 88 the Labour
Court held that the threat of dismissal is not a legitimate means of coercion in the collective bargaining process. The court granted
an interdict restraining the company from dismissing employees if they declined to accept a new shift system and the withdrawal of
a transport subsidy.
The Labour Court followed Fry’s Metals in FAWU v General Food Industries. 89 In that case, the company concluded a wage
agreement granting an across-the-board increase to avert a threatened strike. About a month later, the company announced its
intention to outsource one of its mills and retrench the employees concerned. The court held that the retrenchment was merely a
means of securing an objective, ie a reduction of the wage bill, that should have been secured by negotiation and, if necessary,
industrial action. The retrenchment was nothing more than an attempt to wriggle out of the wage agreement concluded earlier, and
the dismissal was merely a means of inducing the employees to accept a reduction in wages. The court held that the dismissals
were automatically unfair. 90
Both Fry’s Metals and General Food Industries were overturned on appeal. In the latter case, the LAC did not deal with the
Labour Court’s view that retrenchment had been illegitimately and unfairly used to convert an interest dispute into a dispute of
right; it found the retrenchment was fair because General Foods had forewarned the union about the possibility of outsourcing if
the union persisted with its claim for an across-the-board wage increase. 91 In Fry’s Metals, the LAC decided the matter by
applying a literal interpretation of s 187(1)(c): a dismissal falls within the terms of s 187(1)(c) only if it is conditional in the sense
that the employer retains the reservatio mentalis that it will accept the employees back into service if they accept its demand.
Otherwise, the dismissal is a dismissal for operational requirements,
4th Ed, 2022, ch 7-p 132
which is expressly permitted by the LRA. The purpose of retrenchment in such a case, said the court, 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 of the
employer can be employed’.
The curious consequences of the Labour Court’s judgment in Fry’s Metals were illustrated in CWIU v Algorax, 92 a matter that
had already been enrolled when Fry’s Metals judgment was handed down. Algorax also involved the dismissal of employees for
refusing to accept a new shift configuration. Algorax also claimed to have dismissed them for operational requirements, which the
court again found the company had a right to do in principle. 93 But, according to this court, there was one critical difference
between the facts in Algorax and the facts in Fry’s Metals. This was that Algorax persisted until the date of the trial itself with its
offer to reinstate (albeit by this time non-retrospectively) the workers if they were prepared to accept the new shift system.
According to the court, this was one indication that the purpose of the dismissals was to compel the employees to comply with the
company’s demand. Others were that the new shift system had been introduced with the very purpose of avoiding retrenchment,
and that, according to the company, the purpose of the dismissal was to ‘resolve the issue’ – being whether the employees would
work according to the new shift system. All of this was ‘more consistent with an employer who effected the dismissal not to get rid
of the employees but who was using the dismissal as a means to secure their agreement on an issue’, ie a dismissal contemplated
by s 187(1)(c).
What, then, explains the difference in the outcomes of Fry’s Metals and Algorax? The difference turned only on one factual
question: what purpose did the employer intend to achieve by dismissing the employees? More specifically, was the purpose to
induce the employees to comply with the employer’s demand, or was it to get rid of the employees permanently? In the final
analysis, what tipped the balance against Algorax and in favour of Fry’s Metals was the respective companies’ willingness, on the
one hand, and unwillingness, on the other, to take the employees back into service if they agreed to work the new shift systems.
Algorax and Fry’s Metals indicated that the more obdurate employer was likely to escape the trap set by s 187(1)(c). The net
effect of the judgment was that an employer which finally and irrevocably dismissed employees who refused to accept a change to
their terms and conditions of employment did not infringe s 187(1)(c). That section covered only dismissals coupled with an offer,
or prospect, of reinstatement if the workers concerned accept the change. 94
In the later case of Mazista Tiles v NUM, 95 the LAC was prepared to uphold the dismissal of employees who refused to accept
their employer’s proposal that they agreed to the termination of their services and concluded ‘independent contracts’ as self-
employed quarry workers. The court declined the union’s invitation to declare Fry’s Metals and Algorax plainly wrong and revise the
law. Fry’s Metals was
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subsequently upheld by the SCA in an application for special leave to appeal. 96 So, too, was Mazista Tiles. 97 Dismissing an
employee for refusing to sign a contract reflecting amended terms and conditions of employment was also held not to constitute an
automatically unfair dismissal within the terms of s 187(1)(c). 98
The amendment to s 187(1)(c) appeared to have rendered Fry’s Metals and Algorax obsolete. 99 In those judgments, the focus
was on the purpose the employers sought to achieve by the dismissals – ie to persuade the employees to accept a demand. Now,
the focus is on the existence of a demand and the employees’ refusal. If the employer makes a demand the employee refuses and is
dismissed, the dismissal falls within the scope of s 187(1)(c) even if the effect of the dismissal is to sever the employment
relationship permanently. This was intended to make dismissals such as those in Fry’s Metals and Algorax automatically unfair.
But any doubt about whether the approach adopted in Fry’s Metals and Algorax was rendered obsolete by the amendment of s
187(1)(c) was dispelled by NUMSA v Aveng Trident Steel (A Division of Aveng Africa). 100 Aveng had decided to restructure in
response to a market decline and rising costs and consulted NUMSA and other unions. NUMSA accepted that staff numbers had to
be reduced and agreed to voluntary retrenchments and that limited duration workers would be dispensed with. After the workforce
shrunk by about 500 due to these measures, the company implemented its new structure after a phase-in stage, again with the
unions’ consent. Each remaining employee was offered a position in the new structure, and all those who applied were retained. But
733 NUMSA members rejected the offer and were retrenched. NUMSA responded by unilaterally withdrawing from the agreement
and demanding an increase in the allowance paid to workers for performing additional duties under the interim arrangement. But
when the union realised that this would not benefit employees to the extent it had thought, the union demanded an increase in
their members’ pay and referred a dispute to the Labour Court on behalf of the workers who had been retrenched, arguing that the
workers had been dismissed for refusing to accept the company’s demand that they sign new contracts of employment and that
this rendered their dismissals automatically unfair. Aveng’s answer was that they had been fairly dismissed for operational
requirements.
The LAC noted that the 1956 LRA had allowed both exclusion lock-outs and termination lock-outs. Termination lock-outs were
aimed at inducing employees to comply with employers’ demands by dismissing them and re-employing them on different terms and
conditions if they accepted the demand. Such dismissals were not regarded as unfair under the previous Act if they were for valid
operational reasons (see above). But the definition of ‘lock-out’ in the current LRA does not include termination lock-outs. Unlike
the case of protected strikes, the current LRA does not expressly deal with whether or when operational requirements may
4th Ed, 2022, ch 7-p 134
justify dismissing employees who refuse to accept a demand. The LAC held that the new formulation of s 187(1)(c) has a restricted
purpose and a limited reach and found it doubtful whether the amendment was intended to change the prevailing jurisprudence on
that issue. If employers may not dismiss recalcitrant employees, they could only resort to collective bargaining and an ‘offensive’
lock-out, which could be self-defeating because the current LRA prohibits employment of replacement labour during lock-outs. Even
when a dismissal appears to fall within the scope of s 187(1)(c), the employer may still prove that the dismissal was for a more
proximate and fair reason. If employees are dismissed for refusing to accept a proposed change, it does not necessarily follow that
the reason for the dismissal was the employees’ refusal to accept the change. The actual reason for the dismissal still needs to be
considered. The court could see no reason why operational requirements should be excluded from such reasons.
Apart from these theoretical reasons, the court found NUMSA’s argument that the sole reason for the dismissal was the
employees’ refusal to accept changed terms and conditions of employment was not supported by the facts. Strictly speaking,
Aveng had not tabled a demand; it had merely made a proposal during consultations. That proposal was intended to avoid
dismissals and was reasonable and sensible given the company’s problems. When impasse was reached, the employees’ refusal to
accept the company’s proposal created an insurmountable operational problem, which created a fair reason for the dismissal. This
judgment was upheld by a divided Constitutional Court. 101
In Jacobson v Vitalab, 102 the Labour Court held that the dismissal of single employees can never fall within the scope of s
187(1)(c) because it refers to ‘employees’, which means the prohibition against dismissal in support of an employer’s demand applies
only where an employer sought to extract a concession by employees to demands made in the collective context. 103
81 FAWU v Middevrystaatse Suiwel Koöperasie (1990) 11 ILJ 776 (IC ) at 789D. See also Collective Labour Law C hapter 17.
82 See SACWU v Noristan Holdings (1987) 8 ILJ 682 (IC ). Also see Collective Labour Law C hapter 17 and the authorities discussed there.
83 See, for example, NUMSA v Zeuna-Starker Bop (2002) 23 ILJ 2283 (LC ).
84 See Gauteng Provinsiale Administrasie v Scheepers (2000) 21 ILJ 1305 (LAC ); SADTU v Minister of Education (2001) 22 ILJ 2325 (LC ) at [43.2];
HOSPERSA v Northern Cape Provincial Administration (2000) 21 ILJ 1066 (LAC ) at 1070I–1071D.
85 (2002) 23 ILJ 918 (LC ).
86 (2010) 31 ILJ 2863 (LC ).
87 See also ECCAWUSA v Shoprite Checkers t/a OK Krugersdorp (2000) 21 ILJ 1347 (LC ).
88 (2001) 22 ILJ 701 (LC ).
89 (2002) 23 ILJ 1808 (LC ).
90 See also NACBAWU v Hernic Premier Refractories (2003) 24 ILJ 837 (LC ).
91 General Food Industries v FAWU (2004) 25 ILJ 1260 (LAC ). The court did not fully consider that aspect of the judgment a quo because FAWU’s
counsel said he was unable to defend it on the basis of the LAC ’s judgment in Algorax (see below).
92 (2003) 24 ILJ 1917 (LAC ).
93 At 1929E–F.
94 This topic is more fully discussed in C hapter 18.
95 (2004) 25 ILJ 2156 (LAC ).
96 (2005) 26 ILJ 689 (SC A).
97 NUM v Mazista Tiles (2006) 27 ILJ 471 (SC A).
98 Solidarity obo Wehncke v Surf4cars (2011) 32 ILJ 3037 (LC ).
99 The LAC has cast doubt, albeit obiter, about whether these judgments have survived the amendments: CSAAWU obo Dube v Robertson
Abattoir (2017) 38 ILJ 121 (LAC ).
100 (2019) 40 ILJ 2024 (LAC ).
101 NUMSA v Aveng Trident Steel (A Division of Aveng Africa) (2021) 42 ILJ 67 (C C ). The court split only over the question of whether the ‘but for’
test was the proper method of determining the true reason for the dismissal.
102 (2019) 40 ILJ 2363 (LC ).
103 See also Hofmeyr v Saaiman t/a SA Endovascular Group Practice (2020) 41 ILJ 659 (LC ). See also BIFAWU obo Tsotetsi v Old Mutual
Insure (2022) 43 ILJ 1369 (LC ).
6. Pregnancy
Section 187(1)(e), which renders automatically unfair the dismissal of an employee for any reason related to her pregnancy or
‘intended’ pregnancy, is the counterpart of s 186(1)(c). Section 186(1)(c) defines the act as a dismissal. Section 187(1)(e)
prescribes that if such a dismissal occurs, it will be deemed automatically unfair. However, s 187(1)(e) is wider than s 186(1)(c).
Section 186(1)(c) merely refers to the refusal of an employer to allow an employee to resume work after maternity leave. An
automatically unfair dismissal for reasons relating to pregnancy can occur in other circumstances. 104
4th Ed, 2022, ch 7-p 135
Section 187(1)(e) also includes a dismissal for any reason related to the employee’s pregnancy or intended pregnancy. This
means that dismissals such as those defined in s 186(1)(c) are automatically unfair not only if the dismissal is because of the
employee’s pregnancy or intended pregnancy per se, but also for circumstances arising from the pregnancy. The reach of the
phrase ‘any reason related to pregnancy’ was considered in De Beer v SA Export Connection t/a Global Paws. 105 The employee in
that case requested an extension of her maternity leave because she needed to look after her new-born twins, who had developed
severe colic. Even though Ms De Beer was entitled to maternity leave for that period under the BCEA, the employer refused the
request and dismissed her when she declined to resume work. Although the court could have found the dismissal automatically
unfair merely because Ms De Beer was dismissed while her statutory right to maternity leave was still intact, the judge considered
whether the phrase ‘any reason related to her pregnancy’ was confined to the health of the mother, or whether it could be
extended to the health of the child. The court held, correctly, that the answer must depend on the facts of each case, but that in
Ms De Beer’s case the twins’ problems were so closely related to the birth that they fell within the scope of the phrase. However,
given that mothers have a separate right to ‘family responsibility leave’, 106 there must be a limit to the extent mothers can rely on
s 187(1)(e) if they stay away from work to look after sick children.
Except in cases where the employer is disingenuously frank about the reason for the dismissal, or where the reason is patently
obvious, 107 whether the reason for the dismissal is related to the employee’s pregnancy is a question of fact or, where the
employer claims that other reasons were more pressing, a question of ‘legal causation’. 108 If, for example, an employee were to be
selected for retrenchment because she was pregnant, the employer would not be able to raise operational requirements as a
defence.
The causation test was applied in Wardlaw v Supreme Mouldings. 109 Ms Wardlaw, the company’s financial manager, took
maternity leave for five months. On the day she returned, she was summoned to a disciplinary hearing on charges related to her
alleged failure to keep proper financial records and neglecting the company’s books, accounts and income tax. She claimed that the
true reason for her dismissal was that the company was irritated with her for taking maternity leave. The company claimed, in turn,
that Wardlaw’s negligence became apparent only after she had taken maternity leave. The court held that Wardlaw’s version could
not be sustained in the face of the evidence; she had been dismissed for misconduct and the proper forum was therefore the
CCMA. 110
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Employees who happen to be pregnant when they are dismissed must rely on their pregnancy from the outset if they wish to
claim an automatically unfair dismissal on that ground. Ms Ngobe proved that point. She was invited to apply for another senior
position after Morgan Chase Bank restructured. Her application was unsuccessful and she was retrenched. During the run-up to
arbitration by the CCMA the parties held a pre-arbitration conference, at which both were represented by lawyers. The minute
recorded that there were no preliminary points to be determined, and that the commissioner was required to determine whether the
dismissal was procedurally and substantively unfair. The commissioner ruled the dismissal procedurally unfair because Ngobe
legitimately rejected a proposal that she be trained for the new position and the bank failed to consider alternatives to dismissal.
But during the arbitration Ngobe claimed that she was pregnant at the time, and this had discouraged the bank from offering her
training. Ngobe claimed on review that the commissioner had failed to identify the true dispute before the CCMA – she had been
retrenched because of her pregnancy, which rendered the dismissal automatically unfair. This meant that the CCMA did not have
jurisdiction to hear the matter. In Ngobe v J P Morgan Chase Bank, 111 the court pointed out that, as dominus litis, Ngobe had not
raised any jurisdictional point in the pre-arbitration minute or during the arbitration process, even though her pregnancy had been
pertinently raised in evidence. Having elected to rely on a cause of action that could be determined by the CCMA, Ngobe was
bound by that election.
The provision that a dismissal is not automatically unfair if the reason for the dismissal is based on ‘the inherent requirements of
the particular job’ applies only to discriminatory dismissals (see below). The absence of such a qualification in s 187(1)(e) means
that an employer cannot dismiss a pregnant employee because she is physically incapable of doing her work while pregnant, or
because she has become physically incapable of doing her work as a result of pregnancy. In this sense, pregnant women enjoy
more complete protection than employees who are discriminated against for other reasons. This could create problems in some
professions. A model, for example, who gains an enormous amount of weight due to pregnancy, cannot be dismissed if the weight
gain can be linked to her pregnancy. Nor can a woman who develops lengthy bouts of post-natal depression which render her
incapable of working be dismissed because of the inherent requirements of her job. Section 187(1)(e) places no time limit on the
protection afforded women who have been pregnant.
In one reported case in point, Mashava v Cuzen & Woods Attorneys, 112 the Labour Court was unsympathetic to an employer’s
attempt to rely on the claim that the reason for the dismissal was not the employee’s pregnancy but the fact that she had tried to
‘trick’ the employer into offering her a position as a candidate attorney without disclosing the fact that she was pregnant. The
employer claimed that the trust required to offer her a position had been undermined. Relying on English case law, 113 the court
recognised that ‘deceit’ could provide a ground for dismissal in
4th Ed, 2022, ch 7-p 137
general, and could also be accepted as the primary ground for dismissal in instances when the underlying reason was the
employee’s pregnancy. However, the court found that, although the employee’s failure to disclose her pregnancy was indeed the
true reason why the employer had failed to offer her articles of clerkship, the employee’s failure to disclose her pregnancy did not in
the circumstances amount to ‘deceit’. This approach accords with common sense. If an employee cannot be dismissed because she
is pregnant, why should the employer be entitled to dismiss her if she declines to disclose that she is pregnant? 114
The prohibition on dismissals for reasons related to an employee’s intended pregnancy is one of almost limitless breadth.
However, this prohibition is intended to cover situations in which an employer dismisses employees in anticipation, as it were, when
the employer learns of the employees’ plans to start or enlarge their families. In cases like these, employers cannot rely on
contractual undertakings by employees that they will not become pregnant. Such contractual provisions would be regarded as pro
non scripto.
The dismissal of pregnant employees may be automatically unfair even if the employer is compelled to dismiss the employee by a
third party. In Memela v Ekhamanzi Springs, 115 the respondent employer operated a spring water bottling business from the
premises of a religious mission, the code of conduct of which provided that unmarried women who resided or worked on its premises
were not allowed to fall pregnant. Two of the employer’s female employees did not heed this injunction. After they fell pregnant,
they were barred from the mission’s premises, and were consequently unable to report for work. Their request to the employer to
intervene on their behalf fell on deaf ears, and they were dismissed. Ms Memela somehow fell out of the picture. But her colleague
proceeded to court, claiming that she had been dismissed for reasons relating to her pregnancy and that this constituted an
automatically unfair dismissal in terms of s 187(1)(e) of the LRA. The court found that the employer’s refusal to intervene on the
employee’s behalf when she was denied access to her workplace by the mission constituted a refusal to accept the employee’s
tender of services and a repudiation of the contract of employment. The employee had, therefore, been dismissed. Her employer
was obliged to comply with labour legislation, and not to abdicate its responsibility towards its unmarried female employees by
allowing a landlord to violate their rights. It was clear to the court that the only reason for the employee’s dismissal was that she
had fallen pregnant out of wedlock. This constituted an unfair dismissal for reasons related to pregnancy. The employee’s dismissal
was ruled automatically unfair and that ruling was upheld on appeal. 116
104 In Lukie v Rural Alliance t/a Rural Development Specialist (2004) 25 ILJ 1445 (LC ), for example, the employee was told before going on
maternity leave that she need not return to work when she had delivered her child. The dismissal was ruled automatically unfair.
105 (2008) 29 ILJ 347 (LC ).
106 See s 27(2)(b) of the BC EA.
107 See, for example, Mnguni v Gumbi (2004) 25 ILJ 715 (LC ).
108 SACWU v Afrox (1999) 20 ILJ 1718 (LAC ), discussed above.
109 (2004) 25 ILJ 1094 (LC ).
110 See also Vorster v Rednave Enterprises t/a Cash Converters Queenswood (2009) 30 ILJ 407 (LC ). However, in this case the court took heed of
the LAC ’s judgment in Wardlaw v Supreme Mouldings (2007) 28 ILJ 1042 (LAC ) and transferred the matter to the C C MA, rather than dismissing the
application. Uys v Imperial Car Rental (2006) 27 ILJ 2702 (LC ) had much the same outcome.
111 (2015) 36 ILJ 3137 (LC ).
112 (2000) 21 ILJ 402 (LC ).
113 Beyer v City of Birmingham District Council [1997] IRLR 211 (EAT) and Fitzpatrick v British Railways Board [1991] IRLR 376 (C A).
114 See also Swart v Greenmachine Horticultural Services (A Division of Sterikleen) (2010) 31 ILJ 180 (LC ).
115 (2012) 33 ILJ 2911 (LC ).
116 Ekhamanzi Springs v Mnomiya (2014) 35 ILJ 2388 (LAC ), which also shows that employers may not shift the blame to third parties for
terminating services on prohibited grounds.
4th Ed, 2022, ch 7-p 138
Section 187(1)(f) renders automatically unfair dismissals which are the result of, or linked to, discrimination against employees on
certain grounds. These include, but are not limited to, an employee’s race, gender, sex, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility.
There is an obvious overlap between this prohibition and s 6 of the EEA, 117 which proscribes unfair discrimination, whether
direct or indirect, on grounds similar to those in s 187(1)(f). Theoretically, therefore, an employee who is dismissed for
discriminatory reasons can seek relief either under either the LRA or EEA, or both. 118 Section 187(1)(f) also resembles the general
protection afforded all by s 9 of the Constitution and by PEPUDA. Since these provisions all contain similar terms and concepts,
jurisprudence pertaining to the interpretation and application of any of them is relevant to the interpretation and application of the
others.
But there are some noteworthy differences between s 187(1)(f) of the LRA and s 6 of the EEA. The word ‘arbitrary’ did not
initially appear in the list of proscribed reasons in the EEA. While the grounds listed in the EEA are not expressly stated to be mere
examples, the word ‘includes’ suggests that the list is not intended to be exhaustive. The EEA also specifies HIV status and
harassment as impermissible grounds of discrimination, whereas the LRA does not. The exceptions to the prohibition in the EEA also
differ from those in the LRA. Finally, the EEA applies to applicants for employment, whereas s 187(1)(f), for obvious reasons, does
not. The possible significance of these differences is considered, where relevant, below.
Section 187(1)(f) requires not only that a dismissal be discriminatory but also that it must be unfairly discriminatory. For a
dismissal to fall within the scope of s 187(1)(f):
• The dismissal must accordingly be discriminatory.
• The discrimination must be based on an arbitrary ground.
• The discrimination must have been unfair.
These requirements are considered below.
In ordinary parlance, the word ‘discrimination’ has a pejorative connotation. However, the prefix ‘unfair’ indicates that in its
statutory use the word is intended to bear a neutral meaning. Section 187(1)(f) therefore presumes that there are acts of
discrimination which do not amount to unfair discrimination. The word ‘differentiation’ would have more accurately expressed what
the legislature had in mind for ‘fair’ discrimination and ‘discrimination’ could have been reserved for
4th Ed, 2022, ch 7-p 139
what the legislature meant by unfair differentiation. This, at any rate, is how some judges have understood the term. 119
The first step in the inquiry into a case involving an allegation of unfair discrimination is to ask whether the act or conduct
complained of in fact amounts to discrimination in the neutral sense. The courts have accepted that proof of discrimination requires
more than evidence that the employee was treated differently from other employees. 120
Discrimination, in its neutral sense, arises when an employee is treated differently from his or her colleagues in circumstances
which are normally accepted as warranting different treatment in some respects. For example, a sweeper is not the victim of
discrimination because he is paid less than an accountant; the work performed by the accountant is traditionally accepted as being
more complex, and thus remunerated more generously, than the work of a sweeper. This is mere differentiation. Discrimination
arises when two sweepers or two accountants are paid different salaries by the same employer for performing the same work –
apples must be compared with apples in all cases involving alleged unfair discrimination.
In the context of unfair dismissal, an employee who is dismissed for misconduct is not discriminated against because other
employees who did not commit misconduct were not dismissed. This, again, is mere differentiation. When two employees were
involved in the same misconduct, and only one is dismissed, the possibility of discrimination arises; discrimination against (or in
favour of) one employee is proved by the different treatment meted out (or not meted out) to the other. If that differentiation
arises for a proscribed reason, the dismissal will be automatically unfair; if not, the dismissal might be merely unfair because of the
inconsistency.
But, at least in dismissal law, discrimination can exist without differential treatment. The reason for the dismissal can be said to
be discriminatory even if the employee’s situation is not comparable to that of others. If, for example, an employee is dismissed
because the employee is of a particular religious persuasion, that employee does not have to prove that other employees of the
same religious persuasion, or of different religious persuasions, were not dismissed, although this might strengthen the claim of
unfair discrimination. Proof that the employee was dismissed for that reason may be sufficient to prove discrimination. Conversely, if
the employer shows that employees of other religions were also dismissed for the same reason, the claim of unfair discrimination
might be weakened.
‘Discrimination’, for purposes of s 187(1)(f), can therefore be taken to refer to situations in which employees are dismissed for
reasons that appear on the face of it to be arbitrary or unacceptable. If this is correct, it must be accepted that there is an
element of circularity in the section as a whole. Differentiation becomes discrimination when it is arbitrary or unacceptable.
Discrimination becomes unfair discrimination when it is proved that the reason for the dismissal was in truth arbitrary or
unacceptable. To put it another way, discrimination per se is differentiation based on criteria which appear to be arbitrary and
unacceptable; unfair discrimination is discrimination based on criteria that are arbitrary, unacceptable and are on grounds specified
in s 187(1)(f).
4th Ed, 2022, ch 7-p 140
The phrase ‘on any arbitrary ground’ in s 187(1)(f) may seem to extend the reach of automatically unfair dismissal claims to
almost any ground that appears irrational or unfair. But that there are limits to the reach of this phrase appears from a judgment on
the meaning of the words ‘on any other arbitrary ground’ in s 6(1) of the EEA, in which the LAC ruled that the phrase embraces only
those grounds that affect an employee’s dignity, which in this case was found not to include alleged nepotism. 121
An employer alleged to have dismissed an employee for reasons that are unfairly discriminatory can raise the defence that the
employee was not discriminated against at all. 122 However, once the employee proves discrimination, and that the reason for the
discrimination falls within the proscribed grounds, the employer has no defence except those provided by the Act. 123 It is in this
sense that this form of dismissal is ‘automatically unfair’.
Philosophical problems do not end there. As in all forms of dismissal, the employer may still prove that the reason for the
dismissal was not discrimination, but some other consideration which bears no relation to discrimination. The employer succeeded
with such a submission in Woolworths v Whitehead. 124 Ms Whitehead alleged that she had not been permanently appointed to a
position because the employer had discovered that she was pregnant. Without considering whether she had indeed been dismissed,
the LAC accepted that the real reason for the termination of the relationship between Ms Whitehead and the company was simply
that the company had found a superior candidate, and that the company was justified in appointing a candidate who could give an
assurance that he would be able to work for at least 12 months without taking protracted leave.
The Whitehead judgment suggests that, in cases of dismissals, a court will assess a claim of unfair discrimination by asking
whether the reason for which the employee claims he or she was dismissed was in fact the dominant reason for the dismissal. If it
was not, or if it is apparent that there is no connection whatsoever between the reason for the dismissal and the reason alleged by
the employee, the court will find that the employee was not in fact discriminated against.
Another case in point is FAWU v Rainbow Chicken Farms. 125 Rainbow Chicken’s slaughtering methods conformed to Halaal
standards, which require that butchers practise the Islamic faith and be approved by the Muslim Judicial Council (MJC). The
company had concluded an agreement with the butchers’ union in terms of which they were entitled to ‘reasonable’ unpaid time off
on the two principal Muslim religious holidays, but only if the employees concerned made ‘the necessary arrangements’ with their
managers. The agreement also provided that ‘due to business constraints’ all Muslim employees could not be granted time off
simultaneously. After abiding by the agreement for two years, by each working half a shift on Eid, the Muslim butchers informed
management that they would rather not work at all on that day. Management demurred. After further negotiation the
4th Ed, 2022, ch 7-p 141
butchers informed Rainbow the day before Eid that would not work the following day. Despite having been warned that their
absence would be viewed in ‘a very serious light’, they did not report for work and the company managed to avoid a complete
shutdown only by securing the services of certified butchers from a generous competitor.
The company charged the butchers on their return with ‘collective refusal to work as per contract’, and found them guilty as
charged. The butchers were given the option of being dismissed, with the normal right of appeal, or accepting a final warning
without the right of appeal. They accepted the former penalty, and appealed unsuccessfully. The butchers then approached the
Labour Court, claiming that their dismissal was ‘automatically unfair’ because it was based on their religion, conscience or belief. On
the face of it, this seemed to be the case. The butchers’ conduct was motivated solely by the desire to celebrate a religious
holiday. They were dismissed because they had done so. The court found otherwise. The judge reasoned that Eid was not an
official public holiday, on which all Rainbow employees were given the day off. The Muslim butchers had also been given those days
off and had formerly worked on Eid without demur. Having to work half shifts, as the company had proposed, would have allowed
them time to visit a mosque. But most importantly, the company’s operational requirements superseded the butchers’ right to
practise their religious rites at a time of their choosing and to defy a clear instruction to work half-shifts. This amounted to
insubordination.
The court also reached a more fundamental conclusion: not only were the butchers not unfairly discriminated against; they were
not discriminated against at all.
The lesson that emerges from Woolworths and Rainbow Chicken is that employers are not as defenceless against claims that a
dismissal is automatically unfair as the wording of s 187(1)(f) might suggest. When it comes to claims that an employee was
discriminated against, the court must be satisfied that the discrimination was unfair. In Woolworths, Ms Whitehead was not
appointed because of her pregnancy; the court held that this discrimination was rendered fair by the fact that the major reason for
the decision not to appoint her had been that the company had found a better candidate, and that the company needed a person
who would, or would probably, be at his desk for the first 12 months. In Rainbow Chicken, the employees concerned were clearly
discriminated against because of their religion, conscience and belief, in the sense that they were compelled to choose between
working and practising their faith, whereas adherents of, at least, the Christian faith were not confronted with that choice. The
discriminatory treatment was sanctioned by the state, in the sense that the main days of the Christian calendar are recognised as
official holidays. As the court pointed out, to allow the butchers to take their holiday would have resulted in the entire workforce’s
going on holiday as well, at Rainbow’s expense. 126
Employees who resign because they feel that they have been discriminated against must, if they wish to claim that they have
been constructively dismissed for an automatically unfair reason, prove that the incident that gave rise to their
4th Ed, 2022, ch 7-p 142
resignation indeed constituted unfair discrimination. In Maharaj v CP de Leeuw, 127 the applicant failed to discharge this onus, even
though the court found that the employer’s conduct (paying him less than a white colleague who was less qualified than he) was
calculated to cause affront. Mr Maharaj was found to have been constructively dismissed, but that dismissal was held not to be
automatically unfair.
The SCA has warned against simply assuming that, because an employer has dismissed an employee of one race in
circumstances similar to those in which it issued a warning to an employee of another race, the dismissed employee was the victim
of race discrimination. In Raol Investments t/a Thekwini Toyota v Madala, 128 both the Labour Court and the LAC ruled that the
dismissal of a black employee for assaulting a supervisor who accidentally drove over his foot was automatically unfair because a
white colleague who had assaulted Mr Madala two years earlier had been given only a final written warning. The SCA noted that,
while discrimination in the workplace is unlawful, the courts must guard against assuming that any different treatment accorded
white and black employees constitutes race discrimination. On the evidence in this case, there was nothing to gainsay the
employer’s claim that the two assaults had been treated differently because in the first case there had been no formal complaint,
whereas in the second a formal complaint had been lodged. Madala’s dismissal was therefore not automatically unfair. 129
Section 187(1)(f) provides that discrimination may be direct or indirect. Although the distinction between these two forms of
discrimination is difficult to grasp and in some cases to discern, it appears to be this: direct discrimination takes place when the
reason for the action by which it is demonstrated is intended; indirect discrimination takes place when the action has results or
consequences which are discriminatory, but the employer does not intend to discriminate. If an employer dismisses an employee
simply because she is pregnant, the dismissal will amount to direct discrimination; if the employer selects employees for
retrenchment on the basis of their inability to perform work which pregnant employees cannot possibly perform, the discrimination is
indirect. In cases of direct discrimination, the employer intends to discriminate on an unacceptable ground, well knowing that the
employee is being dismissed for that reason. In cases of indirect discrimination, the employer chooses some apparently neutral
criterion for dismissal which has as a consequence that employees who happen to possess particular attributes are dismissed, even
though the employer did not intend that result.
There may be an overlap between direct and indirect discrimination when the employer intentionally chooses an apparently
neutral criterion, knowing that it will result in the dismissal of employees who possess particular attributes. In such cases, the
indirect discrimination will merely be a disguised form of direct discrimination. In any event, it will not assist the employer because s
187(1)(f) expressly hits both
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direct and indirect discrimination. It is the effect of the criterion chosen by the employer that counts, not necessarily the criterion
itself. 130
The closest a court has come to finding that a dismissal was indirectly discriminatory was in CWIU v Johnson & Johnson. 131 The
company had retrenched a number of women workers on the basis that they were incapable of performing ‘physically demanding
work’. Male workers with shorter service were retained to perform this work. The court held that the company’s attitude was based
on an assumption that there are jobs for which women are unsuitable because all women are physically weaker than all men. This
sweeping generalisation was discriminatory against women on the ground of gender.
Although the LRA places the overall onus of proving that a dismissal was fair on the employer, the courts have held that, in cases
involving dismissals for alleged discriminatory reasons, including harassment and victimisation, the employee must produce sufficient
evidence to raise a ‘credible possibility’ that the main or dominant reason for the dismissal was some form of discrimination. 132 If
that onus is discharged, the burden shifts to the employer to disprove the employee’s prima facie case and to satisfy the court
that the dismissal was for a legitimate reason. 133 If the employer fails to discharge that burden, the employee must succeed.
Apart from the specific defences afforded by the Act – on which, see below – a dismissal tainted by discrimination cannot be
defended. However, if the employee fails to raise a prima facie case that the dismissal was automatically unfair, and the employer
persuades the court that it was for reasons relating to the employee’s conduct or incapacity, the matter must be stayed and
referred for arbitration. 134
Once it is found that the dismissal of an employee was discriminatory, the court must establish whether the discrimination was
unfair. This is done with reference to the prohibited ground listed in s 187(1)(f). The thread running through most of the listed
grounds (race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, conscience, culture, language) is that
they are conditions or attributes for which an individual is not responsible and cannot escape, over which a person
4th Ed, 2022, ch 7-p 144
has no control, and which are normally regarded as irrelevant to an assessment of a person’s ability to work. They are all conditions
inextricably linked to a person’s human condition. The individual may have a choice in respect of the remaining grounds (political
opinion, marital status and, arguably, family responsibility), but they are all conditions involving what is generally accepted as the
exercise of fundamental rights. Furthermore, all the listed grounds are universally rejected as a basis for depriving people of rights.
Cases decided on some of the listed grounds are discussed below. 135
7.4.1 Race
Employers accused of dismissal on the ground of race invariably plead that there was some other reason for the dismissal. However,
if that motive is proved, the dismissal would constitute ‘the most egregious form of unfair labour practice’. 136 But allegations of
racism cannot be pushed too far. The SCA has held that in the absence of specific evidence that the dismissal was racially
motivated, it cannot be simply assumed that a person was dismissed on the ground of race because they happen to belong to a
particular race. 137
Unlike the EEA, the LRA does not state that a dismissal based on race may be fair if the dismissal is intended to promote
affirmative action. 138 Yet affirmative action may be a consideration in the context of a retrenchment, in which the application of
the ‘last in, first out’ (LIFO) principle may jeopardise an employer’s efforts to promote its equity ratios. The Labour Court has held in
two judgments that neither the EEA nor the LRA obliges employers to select white rather than black employees for
retrenchment. 139
7.4.2 Age
Ageing is a process which no employee can escape, and is usually catered for by an agreed retirement age. In most cases,
retirement is accepted with equanimity by employees, but in some, employees who have reached the age the employer decides
they should retire feel – often with some justification – that they are still good for a few years’ more work. A mandatory retirement
age must self-evidently be arbitrary, but can be justified by utilitarian considerations (the older must make way for the younger) or
on contractual principles (the employee was told in advance that his or her job would end at retirement age). This is recognised in
s 186(2)(b), which states that a dismissal based on age is fair ‘if the employee has reached the normal or agreed retirement age
for persons employed in that capacity’. An employer cannot rely on s 186(2)(b) if the employee has not in fact reached the
prescribed retirement age. 140
4th Ed, 2022, ch 7-p 145
This provision creates one of the only two possible defences to dismissals based on the prohibited grounds – that the employee
has in fact reached an agreed or ‘normal’ retirement age. This is the only possible basis for a defence to a claim that a dismissal
based on age alone is automatically unfair. An employer may not otherwise decide to dismiss employees merely because they are
‘getting on in years’, even if they have in fact become incapacitated or infirm. Before they actually reach an agreed retirement age,
infirm employees of advancing years must be dealt with as cases of incapacity. 141
The onus of proving that the employee has reached the agreed or normal retirement age rests on the employer. By ‘agreed’, it
seems, the Act requires that the employer must have reached consensus on the retirement age with the employee concerned or in
writing with the employee’s trade union. An agreement on retirement age with one employee, or even the general body of
employees will not otherwise bind another employee. This much is clear from Rubin Sportswear v SACTWU, 142 in which employees
transferred in terms of s 197 were held to retain the right to retire at the age set by their former employer, even though this was
older than the age at which the new employer’s employees were bound to retire.
Voluntary contribution to a pension fund which sets a retirement age denotes agreement between the employer and the
employee that the employer will retire at that age. 143 But where the employer reserved for itself the right to decide when the
employee should retire after working beyond the normal retirement age, there is no dismissal when the employer subsequently
exercises that right. 144 The mere fact that an employer allows an employee to work beyond retirement age does not preclude the
employer from requesting the employee to retire at any time after that. But the Labour Court has held that in such cases
employees are at least entitled to be consulted before their services are terminated. 145
The only circumstances in which an employee who has passed the normal or agreed retirement age may obtain relief is where the
employee and the employer have concluded an agreement in terms of which the employee is employed for a specific period after
that age, whether the agreement was concluded before or after the employee reached retirement age. In that case, the employer
should not logically be permitted to rely on the fact that the employee has passed retirement age, because the employee’s rights
flow from the new contract. 146 In such cases the
4th Ed, 2022, ch 7-p 146
onus rests on the employee to prove the existence of the fresh contract. 147 Where an employee was employed a few months
before her 65th birthday, and nothing was said about a compulsory retirement age, the employer was held bound to the contract
thereafter, even though it introduced a new retirement age of 70 after the employee had reached that age. The employee’s forced
retirement was ruled automatically unfair. 148
A retirement age will be accepted as ‘agreed’ if it is expressly stipulated in the employee’s contract, or in pension funds rules
that are impliedly incorporated in the contract. 149
In Randall v Karan t/a Karan Beef Feedlot, 150 the court noted that there are two schools of thought about an employee who
has reached retirement age and is permitted by the employer to continue working. The first, following Schweitzer v Waco
Distributors (a Division of Voltex), 151 is that even then the employee has no remedy if subsequently compelled to retire. The
second, following Datt v Gunnebo Industries, 152 is that the contract continues on new terms, which must be complied with on
termination. The Randall court preferred the latter view: if the contract is extended beyond the agreed or normal retirement age,
the employer must prove a new agreed or normal retirement age if the defence afforded by s 187(2)(b) is to hold. The only way an
employer can rely on an extended retirement age is to employ the employee on a fixed-term contract for a specific period, or to
conclude a specific project. The Labour Court followed Waco Distributors in Solidarity obo Strydom v SITA. 153 The six applicant
employees were all on a retirement fund which set a retirement age of 60 years, but had been allowed to work beyond that and
were still working when they reached the age of 67. When the State Information Technology Agency (SITA) told them they must
retire, they claimed that the employer had tacitly set a new retirement age of 67 or that they had a reasonable expectation that
they would be allowed to work until they reached that age, that they had been dismissed and that their dismissals were
automatically unfair. SITA raised s 187(2)(b). The court held that the case turned on the interpretation of SITA’s conditions of
employment and the pension fund rules. The normal retirement age was common cause, but the employees appeared to be saying
that there was no agreed age. Section 187(2)(b) creates two bases upon which an employer may justify the dismissal on the
grounds of retirement age: one was an agreed retirement age and the other was the normal retirement age. The perquisites of
s 187(2)(b) are mutually exclusive, and the employees could not successfully rely on both the normal and the agreed retirement
age. Furthermore, even if an employee is allowed to work beyond retirement age, the employer may enforce it at any stage,
provided there was no agreement to the contrary. Since s 187(2)(b) deems such dismissals fair, the application failed.
In Rubin Sportswear v SACTWU, 154 the court also held that a ‘normal’ retirement age must have become the norm with the
passage of time – an employer cannot create a ‘normal’ retirement age by suddenly unilaterally imposing it on its staff. 155
However, the court accepted that an employer may have different normal retirement ages for different categories of staff;
employers may agree to different retirement ages for different categories of employees – provided that the difference is not based
on some invidious criterion, such as race or sex.
Section 187(1)(f) simply prohibits dismissal on the basis of ‘age’. It would accordingly also cover dismissing employees on the
basis of their youth. Although there are no reported cases where this has occurred, the same principles would apply to dismissals of
employees of advanced years, except that the defence afforded by s 187(2)(b) would obviously not apply.
7.4.3 Disability
‘Disability’ is not defined in the LRA itself. But the meaning assigned to that word in the EEA is relevant in this context. The EEA
defines ‘people with disabilities’ as those ‘who have a long-term physical or mental impairment which substantially
4th Ed, 2022, ch 7-p 147
limits their prospects of entry into, or advancement in, employment’. 156 An employee who is incapacitated through sickness or
injury may fall within the scope of that definition. It may well be, therefore, that the dismissal of an employee for incapacity, which
is permitted under the LRA after counselling and in the absence of reasonable alternatives, 157 is prohibited and therefore
automatically unfair if the employee is in fact ‘disabled’. 158
A tragic case was Smith v Kit Kat Group, 159 in which an employee who was left with facial injuries and a speech impediment by
a self-inflicted gunshot wound was dismissed for being ‘cosmetically unacceptable’. The court found that the employee’s condition
amounted to a disability, and that his dismissal was automatically unfair.
Pharmaco Distribution v EWN provides another example. 160 The respondent employee suffered from bipolar disorder. After a
spat over commission payments, she was charged with various counts of misconduct, found guilty on a number and dismissed for
refusing to undergo a psychiatric examination at company expense. The Labour Court found that the instruction to undergo a
medical test was unlawful; the employee had been singled out and stigmatised because of an illness that she was managing. The
LAC agreed.
Disability may also include depression induced by working conditions. The applicant in Legal Aid SA v Jansen suffered from this
condition, which was aggravated by his divorce. 161 Mr Jansen became embroiled in disputes with his employer about overtime and
deductions of child maintenance payments from his salary. When he stayed away from work for lengthy periods, the board charged
Jansen with gross insolence for refusing to obey an instruction to report for duty and insolence. Jansen admitted to the charges,
but attributed his behaviour to mental illness. The presiding officer found Jansen guilty and dismissed him. Jansen claimed in the
Labour Court that his dismissal was automatically unfair because he had been dismissed because of a disability or an analogous
arbitrary ground, and that he had been unfairly discriminated against. The court agreed, reinstated Jansen with retrospective effect
and awarded him compensation of six months’ salary. The LAC found, however, that Jansen had failed to prove that the dominant
reason for his dismissal was his depression, rather than the recurring absences and defiant attitude his depression had induced. The
court accepted Legal Aid SA’s claim that Jansen had been dismissed for misconduct.
Marsland v New Way Motor & Diesel Engineering was a claim for an automatically unfair constructive dismissal. 162 When Mr
Marsland returned to work after a nervous breakdown induced by his wife’s elopement while the family was on holiday, he noticed a
sea change in the attitude of the employer’s senior managers who, he said, treated him as a pariah. He was demoted from his
position
4th Ed, 2022, ch 7-p 148
as marketing manager to a menial post, then suspended and summoned to answer to a host of charges at a disciplinary inquiry,
which resulted in a final warning. Marsland returned to his duties to find his filing cabinet locked and that he was given
supernumerary duties. When he indicated that he wished to appeal against the outcome of the disciplinary hearing, he was
summoned to the boardroom and told that the marketing division was to be outsourced. A director, who Marsland suspected was
armed, then exploded with anger and verbally abused him, and Marsland left the workplace, never to return. The court found that
Marsland had not only been constructively dismissed, but that the dismissal was also automatically unfair because the only
identifiable reason for the ill-treatment to which he had been subjected was his mental condition. Marsland was awarded
compensation equivalent to two years’ remuneration. On appeal, the LAC was prepared to accept that, even if Marsland was not
suffering from a disability, as defined in the EEA, his dismissal was nonetheless automatically unfair because his dignity had been
egregiously assailed. 163
7.4.4 Religion
Apart from FAWU v Rainbow Chicken Farms, 164 the only cases involving dismissals of employees for alleged religious discrimination
thus far reported are Dlamini v Green Four Security, 165 and POPCRU v DCS. 166 The applicants in the Green Four Security case,
all security guards, were dismissed after refusing to trim their beards. They claimed that their dismissals were automatically unfair
because shaving was against their religious convictions. The court held that as the case raised a constitutional matter the
employer could not rely on its employees’ contractual undertaking to remain neat and clean shaven. However, the evidence of the
guard’s ‘expert witness’, a Nazarene priest, did not prove that the rule against shaving was a central tenet of the church’s
doctrine. It was also apparent to the court that the guards had been ‘somewhat selective’ about the religious rules they chose to
follow; for example, they had no problem with working on the Sabbath. Although the guards were entitled to their religious beliefs,
freedom of religion must be weighed against other interests. The court found that the employer had proved that the rule requiring
guards to be clean-shaven served a clear purpose, which in the context would be seen as an inherent requirement of a security
officer’s job. The employer could not be expected to have taken the further step of accommodating the employees by adapting the
rule or its application, because the employees had testified that they would have refused even to trim their beards. The application
failed.
The courts are prepared to accept beliefs on all manner of subjects as possibly laying the basis for an automatically unfair
dismissal claim – provided that the applicant proves a link between the holding of the belief and the dismissal.
POPCRU v DCS turned initially on the employees’ religious beliefs, rather than their sex or gender. 167 They were all male officers
at Pollsmoor Prison, Cape Town,
4th Ed, 2022, ch 7-p 149
and were dismissed for refusing to obey the new commanding officer’s instruction to cut off their dreadlocks. Three of the five
claimed they wore dreadlocks because they followed the Rastafarian faith; the other two said they did so for ‘cultural’ reasons.
They all claimed that their dismissals were automatically unfair because they had been discriminated against on the basis of their
religion, conscience, belief and/or gender. The Labour Court accepted that the officers had been indirectly discriminated against on
the basis of religion or culture. The union cross-appealed against the finding that the warders had not been dismissed on the
ground of their religion or culture.
The LAC could not fathom why the Labour Court had not found that the warders were discriminated against on the basis of their
religion. 168 The fact of the matter was that they wore dreadlocks because they were either Rastafarians or were required to do
so by their cultural beliefs. It was common cause that the employees all wore dreadlocks to express their religious belief or culture.
Courts are not concerned with the rationality of practices when determining issues of equality and religious freedom, provided the
assertion of the belief is sincere. The cross-appeal was upheld, and the LAC’s judgment was upheld by the SCA. 169
An even stronger affirmation of the religious rights of employees can be found in TFD Network Africa v Faris. 170 Ms Faris, who
was on the employer’s graduate management programme, was required to work overtime as and when required. The company held
monthly stocktakes on a roster basis on Saturdays, which Faris was required to attend. But she happened to be a Seventh-day
Adventist who, like orthodox Jews, regard Saturdays as the Sabbath. Faris declined to attend the stocktakes. After management
made several attempts to persuade her to change her mind, Faris was dismissed for ‘incapacity’. The Labour Court found the
dismissal automatically unfair and awarded Faris 12 months’ remuneration for the unfair dismissal and R60 000 for unfair
discrimination.
TFD contended on appeal that the dominant reason for the dismissal was Faris’ refusal to work on Saturdays, and denied that
the tenets of her religion forbade all work on Saturdays. The LAC noted that the company had only disputed that working on
Saturdays constituted a binding tenet of Seventh-day Adventism and had called on Faris to provide expert evidence to the
contrary. The LAC found this approach wrong because the LRA places an evidentiary burden on a claimant to merely raise a
credible possibility that an automatically unfair dismissal has taken place. The court found the company’s claim that Faris had been
dismissed for refusing to work on Saturdays, rather than because of her religion ‘unsustainable’; but for her religion, she would not
have been dismissed. Her religion was therefore the dominant reason for the dismissal.
In SACTWU v Berg River Textiles – A Division of Seardel Group Trading, 171 one employee was rescued by his religion. The case
concerned the dismissal of a number of employees for engaging in an unprotected strike aimed at resisting the
4th Ed, 2022, ch 7-p 150
introduction of a new shift system. The court found the dismissal of all employees fair – save one. This employee had refused to
work on Sundays according to the new shift schedule for religious reasons. He was a passionate Christian and a lay preacher and
the injunction not to work on Sundays was a central tenet of his beliefs. The court accepted that the company had known of this
employee’s religious convictions for some time. He had in fact lodged a grievance against working on Sundays but was none the
less dismissed together with the other employees. Relying on POPCRU (discussed above), the court summarised the requirements for
a successful workplace-based religious discrimination claim as follows:
• An ostensibly neutral workplace rule or policy which is applied to all employees may be discriminatory if it offends against an
individual employee’s religious convictions.
• The employee must show that the employer interfered with his or her participation in or practice of his or her religion or
culture.
• The principle involved must be a central tenet of that religion.
• The employer must have been aware of the employee’s religious convictions.
• Once the employee makes out a prima facie case of discrimination, the employer must establish either that the rule is an
inherent requirement of the job or that the discrimination was fair under the circumstances.
• The employer must establish that it has taken reasonable steps to accommodate the employee’s religious convictions.
• The employer’s motive and intention are irrelevant.
In the light of these guidelines, the court found that the failure by the company to accommodate the employee by not compelling
him to work on Sundays and dismissing him for his refusal to do so rendered his dismissal automatically unfair. The company was
ordered to reinstate the employee retrospectively, with the proviso that he could not be compelled to work on Sundays.
In Jansen v Minister of Correctional Services of the RSA, 172 the applicant did not pass the second leg of the test framed in
Berg River Textiles. After he gave unflattering evidence about the department at a judicial commission of inquiry into alleged
corruption in the department, Mr Jansen found that the relationship with some of his superiors soured. Two years later he was told
to take ‘sick leave’. Jansen responded by convening a press conference with two colleagues. In full departmental uniform, Jansen
announced that the ‘black majority’ in the department’s Western Cape division was discriminating against employees of Khoisan
origin. Jansen also took the opportunity to announce the formation of the Movement against Domination of African Minorities
(MADAM). He was found guilty of gross insubordination and of flouting the department’s media policy, and dismissed. Jansen claimed
in the Labour Court that his dismissal was automatically unfair because it was on the ground of conscience, belief and/or political
opinion or on the analogous but unlisted grounds of ‘political or cultural affiliation’, and that his constitutional rights to freedom of
association, freedom of expression and to form, join and maintain a cultural organisation had been infringed.
4th Ed, 2022, ch 7-p 151
The court found that the most probable inference from the evidence was that Jansen had been dismissed not because of his
membership of, or association with MADAM, or for the views he expressed in support of the aims and objectives of that
organisation, but because the department genuinely believed he had committed a disciplinary offence by appearing at a press
conference in uniform and expressing inaccurate or unacceptable views regarding the department that could have endangered the
safety of employees and inmates. The court ruled that Jansen’s dismissal was not automatically unfair, stayed the matter and
remitted it for statutory arbitration.
An automatically unfair dismissal claim on the basis of alleged religious discrimination also failed in Lewis v Media 24. 173 Media 24
employed Mr Lewis on a three-month fixed-term contract as a subeditor for a new community newspaper, People’s Post, aimed
primarily at coloured readers. After training, he got down to business. Due presumably to teething problems, the deadline for copy
was extended on the first Friday, and Lewis and his colleagues worked a 14-hour stint the following Saturday. On launch day,
editorial members, including the editor, handed out free copies of the newspaper and small gifts to passing motorists in the small
hours of the morning. Lewis did not apparently take kindly to these additional tasks. The final straw for him was when the editor
rejected articles he had written on, respectively, two black jazz musicians and an Islamic art exhibition. A stormy meeting occurred
a week later. Lewis was escorted off the premises, then paid out for the balance of his contract period.
Lewis immediately commenced proceedings for alleged unfair discrimination. He claimed he was an Orthodox Jew, and that he had
been prevented from observing the Saturday Sabbath. Lewis added that he was also the victim of race discrimination because his
articles had been rejected on racial and/or religious grounds, and that being made to work long hours constituted harassment
against an ‘anti-apartheid activist and struggle journalist’. After much preliminary skirmishing, Lewis’ case came down to this: his
employment was terminated because of his political and religious convictions, and being forced to work on Friday nights and
Saturdays indirectly discriminated against him because he was unable to observe the Jewish Sabbath. Lewis failed on all counts.
The court found him a ‘hyperbolic’ and tendentious witness: he had denied incontrovertible facts (including his race) and made
unfounded and offensive comments about his former colleagues. His grievances were all unjustified. A policy requiring employees to
work on Saturdays can be discriminatory only if the employer does so deliberately to prevent its employees from observing religious
practices, and the employee claims a right to observe them. Lewis had two insurmountable problems on that score: firstly, the
employer was not even aware that he was Jewish; secondly, Lewis did not observe the entire Jewish Sabbath. Instead of attending
synagogue on Friday nights, he frequented night clubs and on one occasion had used a company car to get him there. The
application was dismissed.
4th Ed, 2022, ch 7-p 152
7.4.5 Conscience
Naude v MEC, DOH, Mpumalanga was a case in which the employee was fired for genuine fidelity to his conscience. 174 Dr Naude,
a medical intern, applied to have his post ‘translated’ to junior medical officer when he had completed his compulsory year of
community service. While he was on unpaid leave in the United Kingdom (UK), he was informed that he was no longer employed by
the department. Surprised, he asked why, to be told that he had been employed on a one-year contract, which had expired. When
he pressed for more information, Naude was told that if he wished to be employed full-time, he should have applied for an
advertised post. According to Naude, junior medical officer posts had never been advertised before; it was standard practice to
appoint interns on written application. He claimed that the true reason his application had been refused was that he had openly
supported an organisation called Greater Nelspruit Rape Intervention Project (GRIP), which had opposed the MEC’s instructions that
state doctors desist from supplying anti-retrovirals to rape victims. Naude supported GRIP because he regarded the MEC’s
instruction as a flagrant violation of the Hippocratic Oath. The court brushed aside the department’s claim that Naude’s contract
had expired. It found the story about the advertising of posts a fabrication designed to evade the truth. The truth was that the
MEC had run the department like a tyrant; that when, after approving Naude’s appointment she had learned of his support for GRIP,
she ordered the responsible officials to cancel the letter of appointment and to spread the lie that Naude was required to apply for
a post. The court concluded that Naude’s appointment was terminated for only one reason – that he was not prepared to support a
policy that conflicted with his ethical and professional principles. This constituted a gross abuse of power by the MEC, and an
automatically unfair dismissal. The department was ordered to pay Dr Naude compensation equivalent to 10 months’ salary. 175
7.4.6 Belief
In Zabala v Gold Reef City Casino, 176 the applicant failed to prove a connection between her dismissal and her moral beliefs. Ms
Zabala claimed she had been dismissed because she had expressed negative sentiments about extramarital relations in the
presence of a supervisor who was having an affair. The employer claimed that Zabala was fairly dismissed for stealing a colleague’s
cellphone. The court was prepared to take what it described as a ‘generous’ view of Zabala’s evidence and to accept that being
discriminated against for voicing views on extramarital relations would be discrimination on the basis of belief, a ground listed in the
EEA. However, Zabala was first required to prove that she had been treated differently from other employees and to explain the
basis of the comparison. Since she had done neither, her case failed on the first stage of the test.
4th Ed, 2022, ch 7-p 153

NUPSAW obo Mani v NLB was the first reported case in which employees have claimed to have been unfairly dismissed for exercising
freedom of expression. 177 The 10 employees were dismissed for insubordination. They had written to the respondent’s human
resources (HR) manager complaining about the CEO and objecting to the appointment without union involvement of the chief
operations officer, whom they threatened to ‘isolate and ensure that he or she does not feel welcome’. The HR manager retorted
that the union had no right to interfere with the appointment of the CEO, advised them to file a grievance if they wished, and
warned the union that its members faced the risk of disciplinary action, including dismissal, if they carried out their threat. The
union referred a dispute to the CCMA, demanding disclosure of the CEO’s contract of employment. The parties agreed that the
union would motivate its demand for sight of the contract.
The dispute reached a national newspaper, which described under a headline ‘A whole Lotto nothing going on’. A number of shop
stewards then wrote another letter to the HR manager in which they demanded the CEO’s removal. The board informed the union
that it regarded this letter as an ‘act of insubordination’. The union responded that its members had a constitutional right to
freedom of expression, and denied that the petition was unlawful. The signatories of the petition were summoned to a disciplinary
hearing and found guilty of misconduct and disrespectful behaviour. The external presiding officer recommended that the employees
be given the opportunity to dissociate themselves from the petition and apologise, in which case they would receive final written
warnings. All but the 10 appellant employees did so, and received warnings. The 10 belatedly tendered a qualified apology, which
the presiding officer found ‘too little, too late’. He recommended their dismissal.
The Labour Court dismissed the union’s claim that the dismissals were automatically unfair. The LAC agreed that the employees
had been dismissed for misconduct, which could not be protected by ‘invoking a constitutional banner’. But the union succeeded by
a narrow shave in the Constitutional Court. 178
The highest court’s judgment was significant for a number of reasons. The issue which split the court was to discern the dividing
line between insubordination and the exercise by employees of their rights under the labour laws. A minority of three would have
refused leave to appeal. To them, the employees had far exceeded their right under the LRA and were not protected against
dismissal for insubordination. The majority took a different view.
Everything turned on the meaning of the phrase ‘lawful activities’ in ss 4(2)(a) and 5(2)(c)(iii). The majority held that this phrase
must be widely construed, and that at most it excludes criminal conduct. The phrase ‘lawful activities’ plainly includes all conduct in
furtherance of a union’s core activities, such as taking up its members’ complaints and representing them in grievance proceedings.
Section 200 confirms this by providing that in disputes between members and employees a union may act in its own interests or in
the interests of and on behalf of its members.
4th Ed, 2022, ch 7-p 154
Apart from enjoying a constitutional right to freedom of expression, the union was entitled to decide how best to serve its members’
interests. Dismissal on this ground was accordingly also automatically unfair. The employees were reinstated with effect from the
date of their dismissals.
7.4.8 Language
Mr De Bruyn was retrenched from his position as COO after he was replaced by a Chinese-speaking manager. He claimed in the
Labour Court that his dismissal was automatically unfair because he was not a Chinese national or Chinese-speaking person. The
Labour Court held that De Bruyn had been fairly dismissed because his position had become redundant. On appeal in De Bruyn v
Metorex, 179 the company conceded that the reason for the dismissal was based on language, but claimed that the discrimination
was justified because its China-based holding company had decided to appoint a COO capable of communicating effectively with
Chinese-speaking mine managers in the rest of Africa. The purpose was not to ‘bump out’ De Bruin but to replace him. His
alternative claim that his dismissal was substantively unfair failed for the same reasons.
The first case in which dismissal based on gender – as opposed to sexual orientation – came before the Labour Court was Atkins v
Datacentrix. 180 While still employed by another IT company, Mr Atkins was interviewed for a post as a technician with
Datacentrix, and offered the job. After the contract was concluded, but before Atkins had worked out his notice with his then
employer, he informed Datacentrix that he intended undergoing a sex-change operation. Datacentrix immediately cancelled the
contract, and Atkins claimed that this constituted an automatically unfair dismissal. Datacentrix claimed that Atkins had been
dismissed not because of his impending sex change, but because he had dishonestly withheld this information at his pre-
appointment interview.
The difficulty with the company’s argument was that it assumed that Atkins was obliged to disclose the fact that he intended
undergoing a sex-change operation when he had never been asked about his gender. If Atkins could not have been discriminated
against on that basis for undergoing the operation, there was no point in disclosing it. The Labour Court found that, since
Datacentrix had been impressed with Atkins’ credentials, the only possible reason for its change of mind could have been Atkins’
later disclosure. The company therefore had to prove that terminating the contract for that reason was fair. It could not. The
court noted that trans-sexuality is a well-known condition in which people of a particular gender find themselves entrapped in a
body of the opposite sex. The only way to align the gender with the body is a sex-change operation. The dismissal was accordingly
based on gender, and automatically unfair. However, since Atkins had not yet left his then employer, who approved the operation,
his compensation was limited to the equivalent of four months’ salary.
4th Ed, 2022, ch 7-p 155
In Ehlers v Bohler Uddeholm Africa, 181 the applicant took a step further than Atkins had done. He did not merely indicate an
intention to undergo a sex change, but actually did so. Mr Ehlers was employed as a salesperson by Bohler Uddeholm in January
2008, and began the sex change procedures in April of the same year. Initially, Ehlers’ colleagues were sympathetic. Then their
attitudes changed. Ehlers filed grievances against some, and some filed grievances against her. Nine months later, Ehlers’ new
identity was a fait accompli – by then, her identity documents confirmed that she was female, and she was wearing female clothing
to work. The company claimed that this was unacceptable, and fired her, claiming that Ehlers had been appointed to a ‘male-
dominated’ industry on the understanding that she was male. The company also claimed that when problems arose she had agreed
to accept a severance package. The court discounted the company’s ‘operational’ claims. Discrimination is discrimination, and
discrimination on the basis of gender is prohibited by the Constitution, the EEA and the LRA. Had Ehlers not changed sex, she would
not have been dismissed. To aggravate matters, the company had forbidden her to express her femininity, and she had for some
time reluctantly agreed. In so far as she was able to mask her true sex, her agreement did not legitimise the company’s actions.
Ehlers’ dismissal was ruled automatically unfair. Since the company had failed to prove that reinstatement was not an appropriate
remedy, it was ordered to take her back, with back pay calculated from the date of dismissal.
In POPCRU v DCS, 182 a number of male prison warders were dismissed because they refused to obey an instruction to cut off
their dreadlocks. The Labour Court rejected their claim that they had been discriminated against because of their religious or
cultural beliefs (see above) but accepted that they had been discriminated against on the basis of sex or gender because female
warders were allowed to have dreadlocks. The LAC disagreed with the first finding, but agreed with the second. 183 Discrimination
on the basis of gender was obvious, because the Correctional Services dress code permitted women to wear ‘Rasta style’ hairdos,
but not men. The norm embodied in the dress code was not neutral because it enforced ‘mainstream’ male hairstyles, at the
expense of minority and historically excluded hairstyles, such as hippy, punk or dreadlocks. The code directly discriminated against
the male employees because they were treated less favourably than their female colleagues. The department had led no evidence
to prove that short hair was an essential requirement of the employees’ jobs or that the behaviour of any of the employees was
adversely affected by their hairstyles; on the contrary, the evidence showed that all were exemplary officers. Many submissions
made by the department were based on nothing more than negative stereotyping. The court held that the dismissals were
automatically unfair; the employees had been discriminated against on the basis of religion, culture and sex.
4th Ed, 2022, ch 7-p 156
7.4.10 Nationality
Dismissal on the ground of a person’s nationality has assumed particular significance in the light of strong xenophobic attitudes in
some sections of the South African population. Yet the only case involving an allegation of xenophobia that has reached the Labour
Court failed dismally. It was launched by a Zimbabwean national, Mr Chizunza, who worked for MTN as a legal officer. 184 Chizunza
alleged that he was dismissed for claiming expenses for a business lunch which had never taken place, and that his dismissal was
‘an arbitrary challenge of my execution of my delegated powers, duties and responsibilities as manager’ and that his dismissal was
automatically unfair. The Labour Court found it difficult to discern the basis on which Chizunza claimed he was discriminated
against, or how the alleged ground was linked to any of the prohibited grounds listed in the Constitution or the LRA. The closest he
had come was to claim that he been dismissed because he was a foreign national. If Chizunza had indeed been dismissed because
he was a foreigner, the dismissal would have been automatically unfair. But Chizunza could not raise even a credible possibility that
he was a victim of xenophobia. He had not even mentioned discrimination during his suspension pending his disciplinary inquiry or at
the hearing or subsequent appeal. Indeed, the chairman of the hearing was unaware of Chizunza’s nationality. Whether Chizunza
had correctly been found guilty on that charge was for the CCMA to decide, not the Labour Court. The proceedings were stayed
and referred to the CCMA for arbitration.
7.4.11 Harassment
A constructive dismissal may also be automatically unfair, as has been held where employees have resigned because they were
sexually harassed. 185 Self-evidently in such cases the employee must prove that they were indeed sexually harassed or harassed
on some ground linked to those in s 187(1)(f). 186
To the extent that it protects employees against dismissal on ‘arbitrary’ grounds, s 187(1)(f) extends to employees similar
protection afforded to all citizens by the Constitution, and for the same reasons. Subject to the defence that a dismissal for any
arbitrary reason is linked to ‘the inherent requirements of the job’, 187 a dismissal effected for these reasons is by definition unfair.
But the extent to which a court may recognise other grounds for dismissal as ‘arbitrary’ and thus automatically unfair is
uncertain. If s 187(1)(f) is read with s 188, it seems that any dismissal not related to the employee’s conduct or capacity or based
on the employer’s operational requirements is automatically unfair. This may seem logical. But to construe s 187(1)(f) so broadly
would stretch the notion
4th Ed, 2022, ch 7-p 157
of the ‘automatically unfair’ dismissal beyond the sphere for which it was intended. Apart from the fact that to be ‘automatically
unfair’ a dismissal must be for one of the reasons specified in s 187(1), or for comparable reasons, it is also difficult to accept that
every arbitrary dismissal is necessarily discriminatory. ‘Arbitrary’ means, in its generally accepted sense, an action that is
capricious, or not based on reason. When an employee is dismissed on the basis of a tenuous rumour that he or she is a thief, the
dismissal cannot be said to arise from discrimination, even though it may be described as arbitrary; such a dismissal is simply one in
which the employer has failed to prove a fair reason.
Which reasons additional to those expressly mentioned in s 187(1)(f) will be accepted as rendering a dismissal discriminatory and
hence automatically unfair? Some conditions not expressly mentioned in that provision may well provide a basis for a claim of unfair
discrimination. Nationality and HIV status spring immediately to mind. 188 These two examples belong in the list by virtue of their
similarity to the factors mentioned or even because they may arguably be subsumed by them (nationality may be linked to ethnic
origin or language; HIV status to disability). Nationality and HIV status share the common characteristics of the listed conditions in
that they are to some extent beyond the control of individuals, and are part of their human condition.
These examples indicate that the generic term ‘arbitrary ground’ must be read in the light of the eiusdem generis rule of
statutory interpretation, ie that the general expression must be restricted according to the common characteristics of the specific
words with which it is associated in the statutory provision. If s 187(1)(f) is read in this manner, other ‘arbitrary’ grounds for
dismissal, such as nepotism, ‘cronyism’ or favouritism would appear to be excluded as grounds upon which employees can rely for
claiming that their selection for dismissal for any of these reasons is ‘automatically unfair’, unless these charges can be linked to
one or other
4th Ed, 2022, ch 7-p 158
of the listed grounds. 189 So it has been held that an employee’s claim that she was ‘persecuted’ was insufficient to make out a
prima facie case of discrimination, 190 as was an employee’s claim that his dismissal was motivated by xenophobia because he
happened to be a foreign national. 191
Although not concerning an alleged automatically unfair dismissal, the LAC’s judgment in Naidoo v Parliament of the RSA, 192
rejected nepotism as a ground for a pay discrimination claim because it could not be linked to any of the prohibited grounds and
was not calculated to affect the employees’ dignity. The court accordingly preferred a ‘narrow’ interpretation of the words ‘any
other arbitrary ground’, which will doubtless be applied in automatically unfair dismissal cases. 193
117 Act 55 of 1998. Discussed in Employment Rights C hapters 8 to 10.

118 See, for example, Ntsabo v Real Security (2003) 24 ILJ 2341 (LC ), in which the employee, who resigned after being sexually harassed by a
supervisor, sued both under s 187(1)(f) and in terms of the EEA. However, the EEA expressly states that dismissals involving alleged discrimination must
be referred under the LRA: see s 10. Actions for unfair discrimination under the EEA are discussed in C hapters 8, 9 and 10 of Employment Rights.
119 See the remarks of Willis JA in Woolworths v Whitehead (2000) 21 ILJ 571 (LAC ) at [70].
120 Woolworths v Whitehead supra.
121 Naidoo v Parliament of the RSA (2020) 41 ILJ 1931 (LAC ).
122 See, for example, TGWU v Bayete Security Holdings (1999) 20 ILJ 1117 (LC ).
123 See s 187(2) and below.
124 (2000) 21 ILJ 571 (LAC ).
125 (2000) 21 ILJ 615 (LC ).
126 However, the court proceeded to rule that, although the dismissal of the butchers was not automatically unfair, it was nevertheless unfair
because the conduct of the butchers did not warrant dismissal.
127 (2005) 26 ILJ 1088 (LC ).
128 (2008) 29 ILJ 267 (SC A).
129 The court refused leave to appeal because the LAC had also found that the dismissal was unfair because it was merely inconsistent.
130 Although not a case concerning dismissal, see Leonard Dingler Employee Representative Council v Leonard Dingler (1998) 19 ILJ 285 (LC ),
discussed in Employment Rights C hapter 9.
131 [1997] 9 BLLR 1186 (LC ).
132 Mouton v Boy Burger (2011) 32 ILJ 2703 (LC ); NUM v Civil & General Contractors (2011) 32 ILJ 2709 (LC ).
133 See Kroukam v SA Airlink (2005) 26 ILJ 2153 (LAC ). The test was formulated by Davis JA as follows at [28]: ‘[Section] 187 imposes an
evidential burden upon the employee to produce evidence which is sufficient to raise a credible possibility that an automatically unfair dismissal has
taken place. It then behoves the employer to prove to the contrary, that is to produce evidence to show that the reason for the dismissal did not fall
within the circumstance envisaged in s 187 for constituting an automatically unfair dismissal.’ Zondo JP, on the other hand, warned that a court should be
slow to infer that employers have instituted disciplinary action against employees for illegitimate reasons (see at [86]). This accords with s 11 of the EEA.
134 Wardlaw v Supreme Mouldings (2007) 28 ILJ 1042 (LAC ).
135 See also the discussion of the prohibited grounds of discrimination in Employment Rights C hapter 9.
136 NEHAWU obo Mofokeng v Charlotte Theron Children’s Home (2004) 25 ILJ 2195 (LAC ).
137 Raol Investments t/a Thekwini Toyota v Madala 2008 (1) SA 551 (SC A).
138 This defence to a charge of unfair discrimination under the EEA is discussed in Employment Rights C hapter 9.
139 Robinson v PriceWaterhouseCoopers (2006) 27 ILJ 836 (LC ) at [22]; Thekiso v IBM South Africa (2007) 28 ILJ 177 (LC ) at [49].
140 Brian Joffe t/a J Air v CCMA [2019] 1 BLLR 1 (LAC ).
141 The EEA provides no express defence for claims of discrimination based on age. However, in Khan v MMI Holdings (2021) 42 ILJ 1737 (LC ), the
court pointed out that the EEA and LRA should be harmonised in this regard because it would be odd if the employer had a statutory defence under one
Act and not the other.
142 (2004) 25 ILJ 1671 (LAC ).
143 SA Metal & Machinery Co v Gamaroff [2010] 2 BLLR 136 (LAC ). But the retirement age set by the rules of a retirement scheme will not denote
the ‘agreed’ retirement age of an employee who is not a member of the scheme: see Hibbert v ARB Electrical Wholesalers (2013) 34 ILJ 1190 (LC ).
144 Ivor Karan t/a Karan Beef Feedlot v Randall (2012) 33 ILJ 2579 (LAC ).
145 Botha v Du Toit Vrey & Partners (2005) 26 ILJ 2362 (LC ). See also Johane v Rand Mine Milling & Mining (1995) 16 ILJ 1249 (IC ) and
Badenhorst v GC Baars (1995) 16 ILJ 1596 (IC ). But see Schweitzer v Waco Distributors (a Division of Voltex) (1998) 19 ILJ 1573 (LC ).
146 Datt v Gunnebo Industries (2009) 30 ILJ 2429 (LC ), in which the agreement provided that the employee could continue working ‘until such time
as we mutually agree that you should take retirement’.
147 See, for example, Rockcliffe v Mincom (2008) 29 ILJ 399 (LC ) and SA Metal & Machinery Co v Gamaroff [2010] 2 BLLR 136 (LAC ), in which the
respective employees failed to prove such a contract.
148 Bedderson v Sparrow Schools Education Trust (2010) 31 ILJ 1325 (LC ).
149 SA Metal & Machinery Co v Gamaroff [2010] 2 BLLR 136 (LAC ).
150 (2010) 31 ILJ 2449 (LC ).
151 (1998) 19 ILJ 1573 (LC ).
152 (2009) 30 ILJ 2429 (LC ).
153 (2022) 43 ILJ 1881 (LC ).
154 (2004) 25 ILJ 1671 (LAC ).
155 See at [19]. Rubin Sportswear was confirmed by IMATU obo Hlabisa v Umkhanyakude District Municipality (2022) 43 ILJ 1842 (LC ).
156 Section 1.
157 See C hapter 15.
158 On the possible overlap between dismissals for incapacity and automatically unfair dismissals, see Standard Bank of SA v CCMA (2008) 29 ILJ
1239 (LC ).
159 (2017) 38 ILJ 483 (LC ).
160 (2017) 38 ILJ 2496 (LAC ); the judgment a quo appears at (2016) 37 ILJ 449 (LC ).
161 (2020) 41 ILJ 2580 (LAC ).
162 (2009) 30 ILJ 169 (LC ).
163 New Way Motor & Diesel Engineering v Marsland (2009) 30 ILJ 2875 (LAC ).
164 (2000) 21 ILJ 615 (LC ), discussed above.
165 (2006) 27 ILJ 2098 (LC ).
166 (2010) 31 ILJ 2433 (LC ).
167 (2010) 31 ILJ 2433 (LC ).
168 DCS v POPCRU (2011) 32 ILJ 2629 (LAC ).
169 DCS v POPCRU (2013) 34 ILJ 1375 (SC A). The part of the LAC ’s judgment dealing with sex-gender discrimination is discussed below.
170 (2019) 40 ILJ 326 (LAC ).
171 (2012) 33 ILJ 972 (LC ).
172 (2010) 31 ILJ 650 (LC ).
173 (2010) 31 ILJ 2416 (LC ).
174 (2009) 30 ILJ 910 (LC ).
175 Although not involving a dismissal, Motaung v Department of Education (2013) 34 ILJ 1199 (LC ) is relevant in this regard. The employee in that
case was relieved of some of her duties and denied notch increases because she refused to succumb to pressure from her supervisor to flout
regulations. The court was satisfied that her insistence that proper procedures be followed was a manifestation of ‘conscience’ as contemplated by the
EEA, and that she had been discriminated against.
176 [2009] 1 BLLR 94 (LC ).
177 (2013) 34 ILJ 1931 (SC A).
178 NUPSAW obo Mani v NLB (2014) 35 ILJ 1885 (C C ).
179 [2021] 10 BLLR 979 (LAC ).
180 (2010) 31 ILJ 1130 (LC ).
181 (2010) 31 ILJ 2383 (LC ).
182 (2010) 31 ILJ 2433 (LC ).
183 See DCS v POPCRU (2011) 32 ILJ 2629 (LAC ), discussed above.
184 Chizunza v MTN (2008) 29 ILJ 2919 (LC ).
185 See for example, Ntsabo v Real Security (2003) 24 ILJ 2341 (LC ); Intertech Systems v Sowter (1997) 18 ILJ 689 (LAC ).
186 Which the employee failed to do in Bandat v De Kock (2015) 36 ILJ 979 (LC ). Sexual harassment is discussed in C hapter 9. See McLaughlin v
Independent Loss Consultants [2013] 1 BLLR 41 (LC ).
187 See below.
188 See, for example, Bootes v Eagle Ink Systems KZN (2008) 29 ILJ 139 (LC ), in which the court described the dismissal of an employee with full-
blown Aids as an ‘insidious form of unfair labour practice’ Also Allpass v Mooikloof Estates t/a Mooikloof Equestrian Centre (2011) 32 ILJ 1637 (LC ). Mr
Allpass was dismissed and evicted from his home on the respondent’s estate after disclosing that he was HIV-positive. Mr Allpass sued for compensation
for an automatically unfair dismissal and for unfair discrimination under the EEA. The court found that he had proved both claims. The employer had
discriminated against Allpass by dismissing him for allegedly failing to disclose his medical condition at his pre-employment interview. However, Allpass
was not legally obliged to disclose his HIV status. The mere expectation that he should have done so violated his dignity and privacy, and the employer
had gone further by asking questions relating to his sexual orientation and requesting disclosure of his medical condition. However, the court treated the
claim for damages as essentially for a claim for a solatium for the injuria Allpass had suffered. The incidents surrounding his eviction, and the insults to
which he had been subjected when that occurred, could not be attributed to the employer because the security guard who marched him off the premises
was acting on the instructions of the homeowners’ association. The court could not entertain a claim arising from the eviction because it occurred after
the dismissal. That aspect of the claim would have to be the subject of a civil action, over which the Labour C ourt lacks jurisdiction. The court also found
that the punitive element in the award of damages for Allpass’ automatically unfair dismissal covered his claim under the EEA. He ended up with
compensation equal to a year’s salary. The court has held, however, that to be automatically unfair the employer that dismissed an HIV-infected
employee must be aware of the employee’s condition. See also Choene v Mitsui & Co Southern Africa (2012) 33 ILJ 2872 (LC ); SN v Sky Services [2019]
5 BLLR 504 (LC ).
189 One of the grounds on which the applicant relied in Walters v Transitional Local Council of Port Elizabeth (2000) 21 ILJ 2723 (LC ) for her claim
that she was unfairly overlooked for promotion was ‘favouritism’. The court simply assumed that this claim was linked to discrimination on the basis of
political opinion ‘as no other motive for favouritism was suggested’: see at [33].
190 Aarons v University of Stellenbosch (2003) 24 ILJ 1123 (LC ).
191 Chizunza v MTN (2008) 29 ILJ 2919 (LC ), discussed above.
192 (2020) 41 ILJ 1931 (LAC ).
193 Naidoo is discussed more fully in Employment Rights C hapter 9.
Section 187(1)(g) renders a dismissal automatically unfair if the dismissal is ‘related to a transfer’, or ‘a reason related to a
transfer’ contemplated in s 197 or s 197A. Read with the latter provisions, s 187(1)(g) emphasises that employees may not be
dismissed without their agreement if the employer transfers the whole or part of its business to another. The consequence of
transfers of business is that the contracts of service of the employees of the transferor pass automatically to the transferee.
Section 187(1)(g) deprives sellers of businesses of the option of selling without their workforces or with a reduced workforce. The
purchaser of the business would also breach s 187(1)(g) if it were to retrench transferred employees in circumstances unrelated to
operational needs independent of the transfer. 194
Section 187(1)(g) potentially covers both employer parties to a transfer of business: a dismissal would be automatically unfair if
effected by the transferring employer to promote the sale or if effected by the new employer after the transfer, provided it could
be linked to the transfer. 195
The definition of dismissal has also been amended to include the termination of the contract by a transferred employee if the
new employer substantially alters the employee’s terms and conditions of employment. 196 This form of dismissal could also
conceivably be automatically unfair. In SAMWU v Rand Airport
4th Ed, 2022, ch 7-p 159
Management Co, 197 the LAC held that the aim of that provision was to ‘make it clear that an employer has no right to dismiss an
employee because of a transfer contemplated in s 197 or s 197A or for any reason connected with such transfer’. The court gave
an example of what is intended by s 187(1)(g): where an employer is initially prepared to transfer its employers to the new
employer but then dismisses them because they are in dispute over the terms and conditions they will enjoy with the new
employer, as happened in this case.
Under the current s 197, read in the light of the Constitutional Court’s judgment in NEHAWU v UCT, 198 that scenario cannot
arise; if the proposed transfer constitutes the transfer of a business or part of the business of an employer, the employees
automatically go over with the business on the same, or at least similar, terms and conditions, unless they are members of a
registered union and that union has agreed in writing that the terms and conditions will change. 199 In the absence of such a
collective agreement, employees affected by a transfer of their employer’s business cannot apparently agree to go over on terms or
conditions that are significantly inferior. So, under the current s 197, there can be no question of an employer initially ‘agreeing’
that the employees will be transferred on different terms, and then changing its mind, as Rand Airport Management did.
The above discussion is practically illustrated by Douglas v Gauteng MEC for Health. 200 In that case, the Gauteng DOH ‘offered’
the applicant employees posts at salaries of about a third of those they had earned when the department took over the Gauteng
Anti-Tuberculosis Society. The employees were dismissed when they declined to accept the offer. The department claimed that the
employees had been parties to an agreement that permitted it to offer transferred employees posts on less favourable terms. The
court held that the fact that the employees had been party to the negotiations preceding the transfer did not make them parties
to a subsequent formal agreement between the society and the department. Even if they had been parties to the agreement, they
could not in any event be taken to have agreed to the startling reduction in their remuneration the department had eventually
proposed. Since the agreement on which the department relied did not satisfy the requirements of s 197(6)(a), the employees’
dismissals were ruled automatically unfair.
Cases can be conceived in which the application of s 187(1)(g) is less clear-cut. What if the employer retrenches first, without
considering outsourcing, then outsources later? What if the employer proposes outsourcing as an alternative to a retrenchment
already commenced, and the employees reject that option? What if a subcontractor engages the employees on the same terms,
but subsequently discovers that it cannot afford them? 201 What if the employer retrenches its employees under the bona fide
misapprehension that the outsourcing arrangement contemplated does not constitute a transfer of a business as a going concern,
but it subsequently turns out that it is? Finally, what if the transferring employer insists that the employees accept changes to
their conditions of their service before the transfer, and locks the
4th Ed, 2022, ch 7-p 160
employees out, and finally dismisses them (à la Fry’s Metals v NUMSA), 202 if they refuse?
In the light of Rand Airport, the answers to all these questions will probably depend on the facts of each particular case.
However, whether a particular dismissal is hit by s 187(1)(g) must be objectively determined, ie the intention, perceptions and
beliefs of the employers will not decide the answer.
The Labour Court was alive to these and other problems in Van der Velde v Business & Design Software. 203 Mr Van der Velde
was retrenched just before the merger of the respondent with another entity. He claimed that his dismissal was automatically unfair
because it was linked to the pending transfer of the business. The respondent claimed that it had retrenched Van der Velde for
valid business reasons. After finding in an interlocutory judgment 204 that the employers could not manipulate the date of the
dismissal by agreeing when the transfer would take effect, the court considered whether the dismissal was indeed for a reason
related to the transfer. The phrase ‘or a reason related to a transfer’ indicated to the court that the scope of s 187(1)(g) is
somewhat wider than that of the other provisions of s 187: the reason for the dismissal need not be the transfer itself, but some
reason – including operational requirements – connected with the transfer. The court noted that it would be absurd to suggest that
every dismissal that would not have occurred ‘but for’ a transfer (the test used in other forms of automatically unfair dismissal)
must inevitably be construed as automatically unfair. To balance the interests of employees and employers, therefore, employees
who claim that their dismissals fall within the scope of s 187(1)(g) must prove that the dismissal is causally linked to a transfer as
contemplated by s 197. If the employee discharges that burden, the employer must establish that the true reason for the dismissal
was not related to the transfer. If the transfer was not the main reason, the court must still determine whether the object of the
dismissal was to evade the employer’s obligations with regard to s 197. If that was the intention, the reason for the dismissal is
related to the transfer for the purposes of s 187(1)(g). On the facts, the court found that the only possible conclusion was that
Van der Velde was dismissed because of the pending transfer of the business to its new owners. 205
4th Ed, 2022, ch 7-p 161
This judgment was confirmed on appeal. 206 The LAC added that the circumstances of the dismissal themselves as well as direct
evidence pointed ineluctably to the conclusion that the dismissal fell within the terms of s 187(1)(g) of the LRA, ie it was linked to
the transfer. Both the transferring and receiving companies had argued the appeal on the assumption that employer parties to a
transfer may agree between themselves that the transferor will retrench staff as a condition of sale. The court held that this is not
the case under the current version of s 197.
By contrast, in Buys v Impala Distributors, 207 the applicant failed to persuade the court that his retrenchment fell within the
terms of s 187(1)(g). Mr Buys was employed on a fixed-term contract by Premier Foods when it outsourced some of its
warehousing and distribution functions to the respondent. Impala employed Buys on a fresh fixed-term contract of three months’
duration, and then permanently. Later, when Premier Foods reduced the tonnage allocated to Impala, Buys was retrenched. The
court held that the outsourcing arrangement did not constitute a transfer of part of Premier Foods’ business as a going concern and
that, even if it had been, Buys’ dismissal would not have been the result of the transfer. As Impala had proved that there was a fair
reason for the dismissal and because the company had done what it could to consult Buys, he was not entitled to relief.
So when transferred employees are retrenched by the new employer, the dismissal will not be automatically unfair if they would
have been retrenched by the old employer before the transfer. In one case, employees claimed that they were unfairly transferred
because the old employer had not informed them of an offer of voluntary severance packages. The court found that s 197 does not
require the kind of consultation or information sharing to which the employees claimed they were entitled. 208 Both the old and new
employers must be cited as respondents in a dismissal application since both are jointly liable for payment of compensation; the
court will not simply substitute one employer for another where it turns out that the employees had cited the wrong employer. 209
Dismissals connected to the transfer of an insolvent business may also be automatically unfair, provided that the businesses
remain the same. 210
The right to strike against retrenchments connected with restructuring or any other plan was conferred by the 2002
amendments to the LRA. Now, nothing prevents employees from electing to resist outsourcing proposals by striking, provided the
resultant retrenchment is of a scale contemplated by s 189A. 211 So, too, do employers retain the right to lock out in support of
an outsourcing proposal. But if the particular outsourcing arrangement constitutes a transfer of business for purpose of s 197,
employees may not resort to industrial action under s 189A because their contracts as employees would transfer automatically to
the subcontractor whether they like it or not. If they do not, and refuse to accept positions with the subcontractor, the loss of
their jobs will not constitute a dismissal. 212
194 CEPPWAWU v Herbert Plastics (2002) 23 ILJ 1044 (LC ) anticipated the kind of situation which prompted the inclusion of s 187(1)(g) in 2002.
Sections 197 and 197A are discussed in C hapter 19.
195 See Fernandes v Lezmin 108 t/a Jasmin Café (2008) 29 ILJ 662 (LC ), in which the court found that s 197 applied to the takeover by the
respondent of the business of another café for which the applicant had worked. The question was whether the applicant’s dismissal a week after the
transfer was hit by s 187(1)(g). The court dismissed the respondent’s argument that the ‘old employer’ was to blame for not informing the applicant that
she was not part of the ‘deal’, and found that her dismissal by the respondent was directly related to the transfer.
196 Section 186(1)(f), discussed in C hapter 4.
197 (2005) 26 ILJ 67 (LAC ).
198 (2003) 24 ILJ 95 (C C ). See further C hapter 19.
199 Section 197(5)(b).
200 (2008) 29 ILJ 1499 (LC ).
201 See, for example, Forecourt Express v SATAWU (2006) 27 ILJ 2537 (LAC ).
202 (2003) 24 ILJ 133 (LAC ).
203 (2006) 27 ILJ 1738 (LC ).
204 Van der Velde v Business & Design Software (2006) 27 ILJ 1225 (LC ).
205 The court anticipated some of these issues in NEHAWU v UCT (2000) 21 ILJ 1618 (LC ) at [22]: ‘[T]he vast majority of cases where transfers or
outsourcing of businesses takes place restructuring is always the basis. Employers engage in restructuring exercises to improve productivity, viability
and generally to streamline their businesses. This is no different [from] what trade unions do in their pursuit of improved terms and conditions for their
members. They engage employers in negotiations and sometimes call strikes to achieve these objectives. Thus restructuring and improved terms and
conditions are issues of mutual interest to both business and labour. It must be mentioned that the ability of labour to counter spurious restructuring
processes and sham retrenchments could be viewed as ineffectual as it is dependent on s 189. This situation would look much better had the right to
strike been open even against restructuring processes that inevitably lead to job losses. In my view, the same should be open to employees whose
employer transfers his business and elects to retrench rather than redeploy or transfer their contracts of employment. I see no reason why the
employees concerned should not prevail on their employer to do what in their opinion is in their best interest and where no agreement is achieved to be
allowed to strike to force the employer’s hand.’
206 Business & Design Software v Van der Velde (2009) 30 ILJ 1277 (LAC ).
207 (2008) 29 ILJ 641 (LC ).
208 Maoke v Telkom (2020) 41 ILJ 2414 (GP).
209 Jamie v Ellis Park Stadium (2020) 41 ILJ 2465 (LC ).
210 See Mokhele v Schmidt NO (2016) 37 ILJ 2662 (LC ).
211 Dealt with in C hapter 17.
212 Transfers of business and their effects on employees are discussed in C hapter 19.
9. Whistleblowers
4th Ed, 2022, ch 7-p 162
Section 187(1)(h) renders automatically unfair a dismissal that constitutes a contravention by an employer of the Protected
Disclosures Act 26 of 2000 (PDA). 213 That Act makes provision for ‘mechanisms or procedures in terms of which employees may,
without fear of reprisal, disclose information relating to suspected or alleged criminal or other irregular conduct by their employers
whether in the private or public sector’.
To enjoy protection, the employee who disclosed the information must bona fide have believed that it was true. If this was not
the case, the fairness of the dismissal of a ‘whistleblower’ must be assessed according to the normal principles relating to dismissals
for misconduct. 214
The PDA protects only certain disclosures made in particular circumstances. The disclosure must be made by an employee who
has reason to believe that a wrongful act is being committed. The wrongful act must either be a criminal offence which has been, is
being, or is likely to be committed, or a failure to comply with any legal obligation, or a ‘miscarriage of justice’, the endangering of
the health and safety of any individual, damage to the environment, or unfair discrimination, 215 or the deliberate concealment of
such matters. The disclosure is protected only if made in good faith to a legal agent, a member of the Cabinet or Executive Council
of a province, or an employer. 216
Disclosures the making of which constitute criminal offences are not protected. An employee making a disclosure must also use
the procedure prescribed or authorised by the employer for reporting or remedying the impropriety concerned. The employee must
reasonably believe the information disclosed, and the disclosure must not be made for personal gain or reward.
In most cases concerning the dismissal of whistleblowers which come before the courts, the employer claims that the reason for
the dismissal was misconduct. In such cases, the court must determine the extent to which the protected disclosure influenced the
decision to dismiss. Section 3 of the PDA provides that an employee may not be subjected to any occupational detriment on
account, or partly on account, of having made a protected disclosure. The phrase ‘partly on account of’ means that the protected
disclosure was one of more than one reason for the occupational detriment. The PDA thus casts the net wide: if there is more than
one reason for a dismissal, the PDA will be contravened if any one of the reasons for the dismissal is the employee having made a
protected disclosure. The test is whether the employee would have been dismissed but for the protected disclosure. 217
4th Ed, 2022, ch 7-p 163
In Sekgobela v SITA, 218 in which a whistleblower’s dismissal was ruled automatically unfair, the LAC ruled that to acquire
protection, a whistleblower need not necessarily believe that the disclosure is true. The test is whether the employee reasonably
believed the disclosure to be true and made in good faith. The LAC went further in Radebe v Premier, Free State, 219 in which the
court held that the purpose of the PDA would be frustrated if proof of every aspect of the disclosure were required: ‘Disclosure of
hearsay and opinion would, depending on its reliability, be reasonable. A mistaken belief or one that is factually inaccurate can
nevertheless be reasonable, unless the information is so inaccurate that no one can have any interest in its disclosure.’ 220 But
that the disclosure is protected merely because the employee ‘had reason to believe’ that the statement was true cannot be
stretched too far: an employee’s allegation that her employer was evading labour legislation was found ‘wild and unsubstantiated’
and on that ground not deserving of protection. 221
That the employee reasonably believed that the statement was true is not the only requirement for protection. The employee
must also have made the disclosure in good faith. 222
The LAC adopted a more charitable approach to the requirement that the disclosure must be made in good faith in Baxter v
Minister of Justice & Correctional Services. 223 Mr Baxter disclosed irregularities in the appointment procedures which had resulted
in his wife being denied promotion and his daughter not being considered for a learnership programme. The LAC accepted that the
disclosure was motivated by pique, but that this did not equate to acting in bad faith, which implies dishonest intention or a corrupt
motive.
The protected disclosure procedure is not designed to allow directors to make disclosures to the board of which they are
members – where the director’s ‘disclosures’ are already known to the board and are merely designed to influence other directors to
adopt a particular point of view. 224
Whistleblowers may be protected under s 187(1)(h) even if they blow after they have been dismissed. 225
Employees have also sought to halt disciplinary proceedings against them on the basis that they constituted ‘occupational
detriments’ as defined in the PDA, usually without success. 226 In one case, the court held that disciplinary proceedings do not
constitute ‘occupational detriments’ as contemplated by the PDA. 227
4th Ed, 2022, ch 7-p 164
Section 188(11) of the LRA provides a way out for employers and employees where the former wish to take action against
employees for misconduct or incapacity, and the employees claim that the true reason was whistleblowing. This section provides
that either the employer or the employee may request an arbitrator to conduct an inquiry into the allegations. Such an inquiry
would be immune from an interdict. An urgent application to halt disciplinary proceedings was dismissed because the employee had
not utilised this option. 228
Employees dismissed for whistleblowing may also approach the High Court under the PEPUDA. 229
213 In the terminology of that Act, an ‘occupational detriment’.

215 As contemplated by the PEPUDA.
216 In Parliament of the RSA v Charlton (2010) 31 ILJ 2353 (LAC ), the court held that a disclosure by a parliamentary official of details concerning
the notorious ‘Travelgate’ scam by MPs was not protected because it did not concern the conduct of employees, as defined. The court was unmoved by
the argument that it would make nonsense of the PDA were the legislature not to be bound by the very law it had passed.
217 See TSB Sugar RSA (now RCL Food Sugar) v Dorey (2019) 40 ILJ 1224 (LAC ). This can hardly be the case where the employer was unaware
that the employee had claimed to be a whistleblower: see Magagane v MTN SA (2013) 34 ILJ 3252 (LC ).
218 (2008) 29 ILJ 1995 (LC ).
219 2012 (5) SA 100 (LAC ).
220 At [36]. The court confirmed this approach in John v Afrox Oxygen (2018) 39 ILJ 1278 (LAC ).
221 L-A J v Afrox Oxygen [2015] 12 BLLR 1213 (LC ). See also Ramsammy v Wholesale & Retail SETA (2009) 30 ILJ 1927 (LC ).
222 The employees in SAMWU v Arbuthnot (2014) 35 ILJ 2434 (LAC ) and Beaurain v Martin NO (1) (2014) 35 ILJ 2443 (LC ) both failed this
requirement.
223 (2020) 41 ILJ 2553 (LAC ).
224 Goldgro v McEvoy (2019) 40 ILJ 1202 (LAC ).
225 Potgieter v Tubatse Ferrochrome (2014) 35 ILJ 2419 (LAC ).
226 See, for example, Motingoe v HOD, Northern Cape Department of Roads & Public Works (2014) 35 ILJ 2492 (LC ) and IMATU v City of
Matlosana Local Municipality (2014) 35 ILJ 2459 (LC ).
227 Ngobeni v Minister of Communications (2014) 35 ILJ 2506 (LC ).
228 Letsoalo v Minister of Police (2016) 37 ILJ 1916 (LC ).
229 Chowan v Associated Motor Holdings (2018) 39 ILJ 1523 (GJ). The High court also assumed jurisdiction in a whistleblowing case in Young v
Coega Development Corporation (2) (2009) 30 ILJ 1786 (EC P). The SC A later confirmed that the High C ourt indeed had jurisdiction under the PDA: see
City of Tshwane Metropolitan Municipality v ECSA (2010) 31 ILJ 322 (SC A), confirming ECSA v City of Tshwane Metropolitan Municipality (2008) 29 ILJ
899 (T), in which the employer was also restrained from instituting disciplinary action against an employee who blew the whistle.
10. Defences
Once it is proved that a dismissal was for one of the reasons set out in s 187(1)(a) to (e), the employer has no defence.
Discriminatory dismissals are an exception in that the Act provides two possible defences if an employee claims to have been
dismissed for a reason specified in sub-s (1)(f). The first defence affords the employer the opportunity to plead that the dismissal
was based on ‘an inherent requirement of the particular job’; the second, applicable only to dismissals on the basis of age, relieves
the employer of liability if the employee has reached retirement. A claim that the employer was genuinely unaware that it was
dismissing the employee for a prohibited reason will not exonerate the employer. 230
Section 187(2)(a) provides that ‘despite subsection (1)(f) a dismissal may be fair if the reason for dismissal is based on an inherent
requirement of the particular job’. At first glance, this provision appears to extend the circuitous nature of the inquiry required by s
187(1)(f). As indicated above, discrimination need not necessarily be unfair, but may be so. Section 187(2)(a) seems to create the
puzzling situation in which discrimination that is found unfair must be found fair when it is proved that the characteristic for which
the employee was discriminated against was related to the inherent requirements of the employee’s job. However, the defence
afforded by sub-s (2)(a) is a concession to reality; there may be circumstances in which a person’s sex, political persuasions or
other attributes mentioned in s 187(1)(f) affect a person’s ability to perform certain types of work. In the nature of things, these
circumstances will be extremely rare. 231
4th Ed, 2022, ch 7-p 165
In TFD Network Africa v Faris, 232 a case concerning the dismissal of an employee who declined to attend rostered stocktakes
on Saturdays because of her religious convictions, the LAC rejected the company’s argument that attending stocktakes was an
inherent requirement of her job. An inherent requirement of a job relates to an inescapable way of performing it; a mere commercial
rationale is not enough. To succeed, the defence of an inherent requirement of a job entails proof that it fulfils a legitimate work-
related purpose and must be reasonably necessary to accomplish that purpose and that it is impossible to accommodate the
employee without raising an insuperable operational difficulty. TFD failed that test.
The law offers no clear guidance on the meaning of the phrase ‘inherent requirements of the particular job’. ‘Inherent
requirements’ depend on the nature of the work. A requirement is inherent to a particular job if the work cannot be performed
because the employee cannot satisfy the requirement. Since the phrase occurs in a provision justifying dismissal, the requirement
must relate to the employee’s ability to perform the work. Since s 187(2)(a) is an extension of s 187(1)(f), it follows also that the
disqualification must arise because the employee possesses some attribute linked or akin to the prohibited grounds (after all, a
dismissal for a reason linked to the inherent requirement of a job cannot be ‘arbitrary’).
In Whitehead v Woolworths, 233 the court observed that the ‘inherent requirement’ defence applies only if the job itself has
some indispensable attribute which the employee cannot satisfy. A link between employees’ ability to perform their work will be
more apparent in some cases than in others. A dismissal because of an employee’s age and disability can be shown to be based on
an inherent requirement of the job if, because of age or illness, the employee is incapable of performing the required tasks. 234
However, cases can easily be imagined in which dismissals even for these reasons will not be so linked. More imaginative examples
must be looked at to justify dismissals on the other prohibited grounds. The hypothetical European waitron in a restaurant who
decides to style him or herself genuinely Chinese and the actor in the male role who undergoes a sex change are frequently cited.
In such cases, it would seem, the dismissal is in reality a dismissal for the operational requirements of the employer or related to
the capacity of the employee. This means that the procedures prescribed by s 189 and the Code of Good Practice: Dismissal would
have to be followed.
The way in which the Constitutional Court dealt with the failure to appoint an employee who was found to be HIV-positive is
instructive in this context as well. In Hoffmann v SAA, 235 the court brushed aside the airline’s attempt to argue that the
appointment of Mr Hoffmann posed a risk to passengers and its economic interests with the comment that ignorance and hysteria
about HIV/Aids provided no justification for not appointing cabin crew merely because they were positive.
4th Ed, 2022, ch 7-p 166
The tenor of this suggests that, had Whitehead v Woolworths been decided by the Constitutional Court, that case might well have
had a different outcome.
Woolworths and SAA both involved conditions which rendered or might have rendered the employees concerned objectively
incapable of performing their duties. Dlamini v Green Four Security involved a situation in which the employees, all security guards,
were perfectly capable of working, but rendered themselves unfit for duty by sporting beards in accordance with their religious
belief. 236 The court accepted that looking clean and neat is an inherent requirement of the work of a security guard. Both the LAC
and SCA reached a different conclusion in DCS v POPCRU. 237 Those courts were unimpressed with the department’s argument that
wearing dreadlocks would somehow compromise the dismissed prison officials’ capacity to perform their tasks, or that that hairstyle
would somehow compromise security.
10.2 Retirement
The difference in the wording of paras (a) and (b) of sub-s (2) is important. Paragraph (a) states that a dismissal for one of the
reasons enumerated in s 187(1)(f) may be fair if it is based on an inherent requirement of the employee’s job. Paragraph (b) states
that a dismissal is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity. In
other words, para (a) leaves room for a finding that, even if the dismissal is based on an inherent requirement of the job, it is still
automatically unfair if it is based on a prohibited reason. Paragraph (b) by contrast, leaves no such room: once it is proved that the
dismissed employee has reached the agreed or normal retirement age, the dismissal is deemed fair.
Section 187(2)(b) does not say that employees whose services have been terminated because they had reached retirement age
have not been dismissed. Indeed, by using the expression ‘a dismissal based on age’ the provision confirms the converse. This is an
unusual approach, because the termination of employees’ services when they reach retirement age is ordinarily regarded as
consensual. This means that such terminations are not ‘dismissals’ for purposes of s 186. The courts have fallen into this linguistic
trap. 238
Schweitzer v Waco Distributors (a Division of Voltex) illustrates another possible scenario in which retired employees may find
themselves. 239 Mr Schweitzer had been permitted to work beyond his retirement age. When he reached the age of 67, the
employer insisted that he leave. The court held that because Schweitzer had been dismissed solely because his age exceeded the
normal retirement age, s 187(2)(b) applied. This meant that the dismissal could not be said to be automatically unfair, because the
subsection made it plain that employers are entitled to discriminate
4th Ed, 2022, ch 7-p 167
on the basis of age as soon as employees qualify for compulsory retirement. The court was momentarily tempted by the argument
that s 187(2)(b) did not apply in situations where the employee had indeed reached retirement age, but had been permitted to
work beyond that age. However, the judge noted that because the termination of a contract when an employee reaches retirement
age is not a dismissal, s 187(2)(b) must include dismissals that occur after the employee has reached retirement age. 240
Without reference to Waco Distributors judgment, the court came to the opposite conclusion in Botha v Du Toit Vrey &
Partners. 241 That court held that, although the employer was entitled to terminate the contract of the employee because he had
passed the normal retirement age for persons employed as appraisers – the norm being established with reference to the age of
retirement of appraisers in the municipal sector – Mr Botha was at least entitled to be consulted about the date of his retirement
because he had been permitted to work beyond that age. If correctly decided, this judgment indicates that, despite s 187(2)(b),
employers are obliged at least to follow a fair procedure before terminating the services of an employee who has already worked
beyond retirement age.
It appears, then, that there are only three arguments open to employees who are dismissed after they have reached retirement
age. These are:
• The employer does not have an agreed or normal retirement age.
• The dismissal was not in fact based on age (possibly where employees have worked beyond the normal retirement age).
• They were not consulted about the date of retirement before being told to retire.
The first point could possibly be accepted if it is shown that the employer has permitted other employees to continue working
beyond that age. 242 The employer failed to prove that it had either an agreed or a normal retirement age in SACTWU v Rubin
Sportswear. 243
The Labour Court has also held that the fact that an employer does not have an agreed retirement age or even a formal policy
prescribing the compulsory retirement age does not mean that employees are entitled to work indefinitely. The court was prepared
to accept that the normal retirement age for employees in the capacity concerned (appraisers) was that applied in the profession
by other large employers (65 years). 244
The second point could succeed if it were shown that the reason for the dismissal was not the employee’s age per se, but some
other reason, say misconduct or incapacity. According to the reasoning in Waco Distributors, in such cases the employer bears the
normal onus of proving that the dismissal was for a fair reason and in accordance with a fair procedure.
The third argument succeeded in Botha v Du Toit Vrey & Partners. 245
4th Ed, 2022, ch 7-p 168
A further argument was raised by the employer in ARB Electrical Wholesalers v Hibbert, 246 in which the court accepted that Mr
Hibbert’s dismissal was automatically unfair because the employer had relied on his age alone to compel him to retire. But the
company insisted that even so, Hibbert was not entitled to damages because in fact he had been performing poorly. The court
noted that where dismissals are found to be automatically unfair, compensation is limited to the equivalent of 24 months’
remuneration. ARB Electrical had confused statutory compensation with damages as understood in the laws of contract or delict.
May employers dismiss employees to promote affirmative action? The legislature has not expressly given employers the right to
plead that they selected employees for dismissal on a discriminatory basis in order to promote affirmative action. However, the EEA
provides in the section prohibiting unfair discrimination generally that it is not unfair ‘to take any positive measure consistent with
the purposes of this Act’, 247 one of which is to ‘promote equal opportunity’ and another is to implement ‘affirmative action
measures’. 248
Except in one instance, it is doubtful whether the courts will accept that it will ever be justifiable to dismiss an employee to
make way for a member of a ‘designated group’. 249 The possible exception may occur in the retrenchment context when
application of the LIFO principle might undo the effect of past affirmative action measures. The EEA provides that ‘positive’ action
required by the Act includes measures to retain employees from designated groups.
However, the Labour Court and arbitrators have not read this provision as a licence for dismissing white male employees to make
way for others from ‘designated’ groups. In Biggs v Rand Water, 250 the employer’s defence of promoting affirmative action failed
because Ms Biggs, a white woman, was also a member of a ‘designated group’. And in Thekiso v IBM South Africa, 251 the court
ruled that s 15(2)(d)(i) of the EEA does not oblige employers contemplating retrenchment to retain black employees in preference
to whites because they believe that this might better serve their operational needs. 252 In one case, however, an arbitrator held
that an employer did not act unfairly by refusing to ‘bump’ a white manager to a position occupied by a black manager to avoid the
former’s retrenchment because to do that would have adversely affected the employer’s BEE rating. 253
230 See, for example, SATAWU v Platinum Mile Investments t/a Transition Transport (2008) 29 ILJ 1742 (LC ), in which the employer claimed that it
genuinely believed that the dismissed employees were taking part in an illegal strike. The court still reinstated the workers.
231 The EEA, which prohibits discrimination of any form other than dismissals on the basis of age, does not provide for the defence that the
discrimination is based on an inherent requirement of the job: see Khan v MMI Holdings (2018) 39 ILJ 1772 (LC ).
232 (2019) 40 ILJ 326 (LAC ).
233 (2000) 21 ILJ 571 (LAC ).
234 Age will seldom provide a basis for discrimination, unless the person has reached retirement age. See, for example, Swart and Mr
Video (1998) 19 ILJ 1315 (C C MA) and the discussion on age discrimination above.
235 (2000) 21 ILJ 2357 (C C ), discussed in Employment Rights C hapter 9.
236 (2006) 27 ILJ 2098 (LC ). See above and Employment Rights C hapter 9.
237 (2011) 32 ILJ 2629 (LAC ); (2013) 34 ILJ 1375 (SC A). These judgments are more fully discussed above.
238 In Schmahmann v Concept Communications Natal (1997) 18 ILJ 1333 (LC ), the court dismissed the applicant’s claim that she was discriminated
against on the basis of age by being forced to retire when she reached the age of 65 on the ground that she had not been dismissed. This view was
echoed in Coetzee v Moorreesburg se Koringboere Koöperatief (1997) 18 ILJ 1341 (LC ). See also Rubenstein v Price’s Daelite (2002) 23 ILJ 528 (LC ).
239 (1998) 19 ILJ 1573 (LC ).
240 See also Rubenstein v Price’s Daelite (2002) 23 ILJ 528 (LC ).
241 Botha v Du Toit Vrey & Partners (2005) 26 ILJ 2362 (LC ).
242 See, for example, Gqibitole v Pace Community College (1999) 20 ILJ 1270 (LC ).
243 (2003) 24 ILJ 429 (LC ); see also Rubin Sportswear v SACTWU (2004) 25 ILJ 1671 (LAC ).
244 Botha v Du Toit Vrey & Partners (2005) 26 ILJ 2362 (LC ).
245 Supra.
246 (2015) 36 ILJ 2989 (LAC ).
248 Section 2.
249 See McInnes v Technikon Natal (2000) 21 ILJ 1138 (LC ).
250 (2003) 24 ILJ 1957 (LC ). See also Espack / Telkom SA [2004] 9 BALR 1128 (C C MA) and Van Zyl and DOL (1998) 19 ILJ 951 (C C MA).
251 (2007) 28 ILJ 177 (LC ).
252 The relationship between affirmative action and claims of unfair discrimination is discussed in Employment Rights C hapter 8.
253 Rhode and Amsteele Systems (2012) 33 ILJ 2749 (BC A).
Dismissal / Chapter 8 Dismissal for misconduct
Chapter 8
Dismissal for misconduct
4th Ed, 2022, ch 8-p 169
1. Introduction
4.1 Onus of proof
6. Consistency
7.1 Generally
1. Introduction
‘Misconduct’ is the most common justification for dismissal in South Africa. Yet no comprehensive legal definition of the term is to
be found in statute or case law. Misconduct can take many and varied forms, but the underlying legal basis for
4th Ed, 2022, ch 8-p 170
dismissal for misconduct is the same in all cases: the employees concerned are deemed to have committed a breach of a material
term of their contracts or destroyed the employment relationship, which justifies its termination by the employer.
In labour law, misconduct is said to take place when an employee culpably disregards the rules of the workplace. These rules
may arise from either the express or the implied terms of the employee’s contract, from general standards accepted as applicable to
the workplace or from express provisions of the employer’s disciplinary code. In contemporary South Africa, most larger employers
have disciplinary codes which detail the offences deemed to justify dismissal or some lesser sanction. The legislature has also
approved a general code for those employers who do not have their own codes, and against which the fairness of particular codes
can be assessed. This is to be found in the Code of Good Practice: Dismissal. 1 However, it is generally accepted that even
statutory codes are merely guidelines. 2
The distinguishing characteristic of workplace misconduct is that the employees concerned were responsible for their actions. In
this respect, dismissals for misconduct are distinguishable from dismissals for incapacity or dismissals for the operational
requirements of the employer, in which the employee was not in any sense at fault. However, a clear line cannot always be drawn
between the various types of dismissal. Negligence, for example, may arise either from incapacity or from misconduct, or possibly
from a combination of both. An employer may erroneously regard the exercise by employees of their rights under the Act as
misconduct, or employees may commit misconduct in the erroneous belief that they are exercising their rights.
1 Schedule 8 to the LRA.

2 Moropane v Gilbeys Distillers & Vintners (1998) 19 ILJ 635 (LC ).

Although cases of misconduct must each be decided on their own facts, every case requires the employer or judges and arbitrators
to seek the answers to the following questions when assessing the fairness of a dismissal:
• Was there a contravention of a rule regulating conduct in the workplace, or of relevance to the workplace?
• Is the rule reasonable and valid?
• Was the employee aware of the rule, or could he or she reasonably be expected to have been aware of it?
• Was dismissal the appropriate sanction for the contravention of the rule? 3
Each requirement is considered in turn.
3 See the C ode of Good Practice: Dismissal. The code has now been supplemented by a set of guidelines issued to commissioners conducting
unfair dismissal cases, to which they are also obliged to have regard. This should be mandatory reading for all parties who may have to conduct cases in
the C C MA or bargaining councils.
4th Ed, 2022, ch 8-p 171
The first requirement in every case concerning the fairness of a dismissal for misconduct is that the employer must prove that the
employee contravened a rule applicable to the workplace. This entails proving the existence of the rule and the infraction.
The existence of a rule is a matter of fact and law. Many of the rules upon which employers rely in misconduct cases emanate
from the implied common-law duties of the employee. These include the duty to obey reasonable and lawful instructions, to act in
good faith and to work with due diligence and skill. In cases of breaches of these implied duties by employees, the employer need
not prove the existence of an express provision in a contract or collective agreement; the obligations are implied terms in every
employment contract. 4
Employers are not required to spell out every workplace rule in meticulous detail; it is sufficient that employees are made aware
that certain forms of misconduct are proscribed, and of the consequences of committing that misconduct. 5
Where the conduct complained of is not on the face of it a breach of the employee’s contractual duties, the employer must point
to an implied provision in the employee’s contract, or in a collective agreement, or to some ad hoc instruction with which the
employee culpably failed to comply. For example, in cases of alleged failure to perform contractual overtime, the employer must
prove that a specific instruction was given to the employee to perform overtime. In such cases, the existence of a general rule
that employees work overtime when so requested will not suffice. The Labour Court has held that an interim interdict regulating
picketing is not a workplace rule that may be enforced by the employer through disciplinary action, but can only be enforced by a
court through contempt proceedings. 6
Workplace rules may be either general or specific. General rules are those contained in contracts or collective agreements, and
which are applicable for as long as an employee is in service. Specific rules take the form of ad hoc instructions intended to
regulate an employee’s conduct for a specific period or assignment.
The most common source of legal rules is the employer’s disciplinary code. These documents, which may be negotiated between
employers and trade unions, or may be unilaterally adopted by employers, 7 typically set out the various offences for which
employees may be subjected to discipline, and the sanctions that may be imposed for commission of these offences.
Before an employee may be dismissed for contravening a rule, it must be established that the rule itself was valid, ie lawful and
reasonable. Employees may challenge rules on various grounds. They may argue that they were not bound by the rule because it
was unlawful or unreasonable. A workplace rule is unlawful if
4th Ed, 2022, ch 8-p 172
it enjoins employees to perform actions which they are precluded from performing by law, or which the employer may not lawfully
require an employee to perform, or which enjoin the impossible. Generally, a rule is deemed unreasonable if it is not relevant to the
workplace or to the employee’s work, if the rule requires an employee to perform tasks that are morally repugnant or which
employees cannot reasonably be expected to do given their skill levels or status.
A rule will generally be regarded as legitimate and valid if it is lawful and can be justified with reference to the operational
requirements of the employer. Whether a rule complies with this requirement depends on such considerations as the nature of the
employer’s business, the circumstances in which it operates, the type of work performed by the employee, and the environment in
which the work is performed. The status of the employee may also be relevant. Senior employees may not be bound as strictly by
timekeeping rules as line workers generally are. If the rule is a product of collective bargaining, the courts will generally be more
willing to accept its validity. 8 If employees wish to challenge the reasonableness or necessity of a long-standing rule, they should
not ignore it or wait until they are dismissed before doing so. By then, it might be too late. 9 But unreasonable or unlawful rules will
be treated as pro non scripto and unenforceable.
4 For cases in which employees were fairly dismissed for serious offences not specified in the applicable disciplinary codes see Hoechst v
CWIU (1993) 14 ILJ 1449 (LAC ); Saaiman v De Beers Consolidated Mines (Finsch Mine) (1995) 16 ILJ 1551 (IC ).
5 Motswenyane / Rockface Promotions [1997] 2 BLLR 217 (C C MA).
6 Panorama Park Retirement Village v CCMA (2020) 41 ILJ 1200 (LC ).
7 While unilaterally imposed disciplinary codes are no less authoritative than negotiated codes, the court will apply negotiated codes more strictly
against employees, because they are in fact collective agreements: see Free State Buying Association t/a Alpha Pharm v SACCAWU (1998) 19 ILJ 1481
(LC ).
9 See, for example, Vundla and Ashley Motors (2003) 24 ILJ 272 (BC A). NEHAWU tried to anticipate this problem during the C ovid-19 pandemic by
asking the Labour C ourt to halt any disciplinary action against healthcare workers who refused to work because they were not provided with adequate
protective gear. In NEHAWU obo Members Providing Essential Health Services v Minister of Health (2020) 41 ILJ 1724 (LC ), the court declined to issue
such an order because there was no evidence that any such disciplinary action had commenced or was pending.

The second stage of inquiry in any misconduct case entails determining whether the employee’s conduct actually breached the
rule, as interpreted. This stage of the inquiry is comparable to the inquiry conducted by a criminal court, although the burden of
proof is different. 10 The evidence must be examined to determine the precise nature of the employee’s conduct. The rule must
then be applied to the facts to determine whether the employee’s conduct is covered by the rule.
Like criminal offences, most workplace infractions entail a mental element and a physical act – the mens rea (knowledge of
wrongfulness) and the actus reus (the wrongful act). Although the onus of proof in labour matters is not as strict as it is in criminal
matters (see below), both elements must still be proved before an employee can properly be found guilty of the offence charged.
To avoid ‘technical’ defences, employers often seek to create ‘broader’ offences than those recognised by the criminal courts.
Theft is often subsumed in the wider offence of ‘unlawful possession of company property’, in which proof of the actus reus might
be simpler than proof of the actus reus required for the crime of theft. Employees may be found guilty of the offence of ‘unlawful
possession’ if they
4th Ed, 2022, ch 8-p 173
merely removed company property from their workstations. A criminal court might be reluctant to convict an accused under these
circumstances because the offence of theft may at that stage still have been incomplete. Such actions are generally considered
sufficient to amount to workplace misconduct.
Employers also sometimes create rules calculated to discourage the commission of offences. For example, a rule might require
employees to submit to searches on leaving the employer’s premises. Refusal by employees to subject themselves to searches may
be treated as misconduct, 11 provided that it is proved that the employees were aware that they were required to submit to the
search, and that the employees wilfully and unreasonably refused to be searched.
A detailed discussion of how evidence must be presented and assessed in labour matters is beyond the scope of this volume. 12
In general, the courts and arbitrators require findings to be made on the basis of proven evidence; and that dismissals based purely
on rumour or mere suspicion will not be regarded as fair, although hearsay evidence may be accepted.
The onus and standard of proof in disciplinary matters is central to an understanding of the requirement of substantive fairness.
The onus of proof refers to the duty that rests on one or other of the parties to litigation to satisfy the court that he or she is
entitled to succeed in his or her claim or defence. The standard of proof refers to the quality and quantity of evidence required to
discharge the onus.
The test for determining whether an accused employee breached a rule is the civil test of a ‘balance of probabilities’ – whether
the employer’s version is more reasonably probable than that of the employee. 13
4.1 Onus of proof
The LRA casts the onus of proving that there was a dismissal on the employee, and the onus of proving that the dismissal was fair
on the employer. 14 The effect of this provision is that, if the ‘existence’ of the dismissal is in dispute, the employee bears the
burden of placing facts before the court which warrant the conclusion that the termination of the employment relationship
constituted a dismissal as defined in the LRA. 15 Once the dismissal is proved, the employer is required to prove that the dismissal
was both substantively and procedurally fair.
By placing the onus on the employer to prove that a dismissal was fair, the legislature has reversed the general principle that a
person who claims a legal entitlement should prove the factual basis for that claim. But what is the practical
4th Ed, 2022, ch 8-p 174
effect of the statutory onus? To say, as some inexperienced commissioners appear to think, that in the absence of evidence from
their employers, employees prove their case by simply claiming that the dismissal was unfair is to misrepresent the function played
by the onus. Even in default proceedings, an employee is required to adduce evidence that would, if true, be sufficient to prove
that the dismissal was unfair. This is true also in defended matters, unless it is possible to establish from the employer’s case alone
that the dismissal was unfair. If, however, this conclusion cannot be drawn from the employer’s evidence, employees must adduce
evidence that lays a basis for their claims. Properly speaking, this amounts to a shift of the burden of proof. The onus, properly
speaking, comes into play only after subjecting the evidence to the appropriate test, when an arbitrator or judge cannot choose
between the two versions on the probabilities. 16
Although the LRA does not prescribe the standard of proof to be used in labour matters, it is universally accepted that evidence
must be evaluated according to the test used in civil matters. This test is whether, when there is conflicting evidence on a
particular point, one version is more probable than the other. The civil test is commonly contrasted with the test used in criminal
proceedings to evaluate the evidence in the state’s case, ie whether the evidence excludes every reasonable possibility that the
contrary version of the accused might be true.
The application of the balance of probabilities test in labour matters has caused some confusion. This is probably due to the test
being applied in the context of matters that must, in the final analysis, be decided on the basis of fairness. Fairness to employers,
presumably, led to the choice of the civil test in dismissal matters; it would, it is generally thought, place an unreasonable burden
on employers if they were they required to prove every case of alleged misconduct by employees beyond reasonable doubt.
According to this line of reasoning, employers cannot be compared with the state when it comes to proving crimes and
misdemeanours. Employers cannot reasonably be expected to conduct disciplinary proceedings with the rigour or expertise of courts
of law. Where arbitrators have imposed the criminal standard when evaluating the fairness of dismissals, their awards have been set
aside on review. 17
In English law, these considerations led labour tribunals to establish an evidential standard peculiar to the employment sphere –
the so-called ‘reasonable employer test’ – that the employer had reasonable grounds, at the time of the dismissal, for believing that
the offence was committed.’ 18 This approach significantly reduced the evidentiary burden on employers.
A few members of the industrial court were seduced by the logic of the ‘reasonable employer’ test, but the tide quickly turned in
favour of the requirement of proof of
4th Ed, 2022, ch 8-p 175
the commission of the offence on a balance of probabilities. In Nampak Corrugated Wadeville v Khoza, 19 the LAC seemed to have
revived the ‘reasonable employer test’. But on a proper reading of that judgment, it is apparent that the court was dealing not with
the standard of proof, but with the question whether the sanction of dismissal was appropriate in the circumstances. The
‘reasonable employer test’ was firmly rejected by the highest court in Sidumo v Rustenburg Platinum Mines. 20
The debate over the ‘reasonable employer test’ suggests that the courts and some commentators have lost sight of the fact
that assessing the fairness of a dismissal takes place at a number of different stages: firstly, the employer must decide whether
there is sufficient evidence to justify the conclusion that the employee committed misconduct; secondly, the employer’s decision
may be tested before a court or arbitrator; thirdly, the decision of the court or arbitrator may be assessed by a higher tribunal on
appeal or review. While each tribunal will assess the evidence according to the balance of probabilities test in order to test the
decision taken at the preceding stage, it may be that the evidence available to the employer at the time of dismissal was less
complete than the evidence that was later led before the arbitrator.
This raises the question whether arbitrators should confine themselves to the evidence that was available to the employer at the
time of the dismissal or whether the new evidence may be adduced during the arbitration hearing. A further question is whether
arbitration constitutes a fresh hearing, or whether its purpose is simply to review the employer’s decision. While it is possible for
parties to a private arbitration to confine an arbitrator’s function to that of review, it is accepted that in the absence of such
limitation, arbitration amounts to a hearing de novo. 21 This is certainly the case in the CCMA and bargaining councils; statutory
arbitrators must hear all the evidence relating to the issue, and decide afresh whether the employee committed the misconduct for
which he was dismissed. If not, the arbitrator is bound to find that the dismissal was substantively unfair, even though the
employer may have acted reasonably on the basis of information available to it at the time of the dismissal.
In Nampak, the court invoked the ‘reasonable employer’ test not to establish the facts, but to ascertain whether the sanction of
dismissal was justified on the basis of the facts found proved. These are different issues. How the courts set about evaluating
whether dismissal was an appropriate sanction is dealt with below.
10 The courts have repeatedly stressed that disciplinary hearings are not to be equated with criminal trials, the fact remains that the employee’s
misconduct must still be proved, albeit on a ‘balance of probabilities’ (see below).
11 In SACTWU / Nettex [2002] 3 BALR 245 (AMSSA) it was held that the refusal to undergo a search did not necessarily constitute an admission of
guilt, but was rather a form of insubordination. But see Liddle / Pick ’n Pay [2000] 8 BLLR 898 (C C MA), in which it was held that the employee was
entitled to refuse to undergo a search conducted in a humiliating manner.
12 See Grogan Labour Litigation and Dispute Resolution 3 ed (Juta 2019) C hapter 7 for a discussion of evidence in statutory arbitration
proceedings. The same principles apply to disciplinary hearings.
13 Probably the highest ever in NUM v Mogale Gold, a Division of Mintails (SA) (2015) 36 ILJ 2815 (LAC ), but lower on similar facts in NUM v
CCMA (2015) 36 ILJ 2038 (LAC ). It is doubtful whether the Mintails court would have been as generous to the employee had the matter not been an
appeal against a review judgment.
14 Section 192(2). The onus applies only in post-dismissal adjudication or arbitration.
16 Mondi Timber Products v Tope (1997) 18 ILJ 149 (LAC ).
17 See, for example, Potgietersrus Platinum v CCMA (1999) 20 ILJ 2679 (LC ); Markhams (a Division of Foschini Retail Group) v Matji NO [2003] 11
BLLR 1145 (LC ) (arbitrator erroneously giving employee ‘benefit of the doubt’); and Avril Elizabeth Home for the Mentally Handicapped v CCMA (2006) 27
ILJ 1644 (LC ) (commissioner applying the ‘criminal justice test’).
18 Ferodo v Barnes [1976] IRLR 302.
19 (1999) 20 ILJ 578 (LAC ). The court referred with approval to the test laid down by Lord Denning MR in British UK v Swift [1981] IRLR 91 at 93,
viz ‘Was it reasonable for the employer to dismiss the [employee]? If no reasonable employer would have dismissed him, then the dismissal was unfair.
But if a reasonable employer might have reasonably dismissed him, then the dismissal was fair.’
20 (2007) 28 ILJ 2405 (C C ).
21 Gibb v Nedcor (1998) 19 ILJ 364 (LC ).
Employees may be disciplined for contravening rules only if they knew, or ought to have known, of the existence of the rules. This
follows logically from the requirement that employees cannot be seen to have committed misconduct if they
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did not know, or could not reasonably have known beforehand, that the employee regarded his or her actions as misconduct.
Within limits, employment law does not recognise the principle ‘ignorance of the law is no excuse’. Nor does the law permit an
employee to shelter behind the instruction or consent of a superior if the employee knew that the instruction was unlawful, or the
superior was aware that the employee’s action was wrong. 22
A distinction must be drawn between an employee’s plea that he or she did not know of the existence of the rule and a plea that
the employee was not aware that he or she was actually breaking a rule of which the employee was aware. For example,
employees may claim that, although they were aware of a rule against theft, the item had been unwittingly left in their pockets.
The requirement that employees must have been aware of the rules they are accused of contravening flows from the general
principle that it is incumbent on employers to ensure that the standards of conduct that they set are known to employees.
Publication of rules is a general principle of fairness and good labour relations. A prudent employer will ensure that the rules of the
workplace are set out in a comprehensive code of conduct, which brings the rules and the sanctions that can be expected for non-
compliance to the attention of employees.
The requirement that rules must be published does not mean that they are cast in stone. Conditions in particular workplaces may
change, and conduct that is acceptable today may be frowned upon tomorrow. Employers are permitted to introduce rules to cope
with changing demands and circumstances. But, when they do this, they must ensure that the new rules are brought to their
employees’ attention.
Certain conduct warrants disciplinary action even if it is not proscribed by formal rules and has not been formally communicated
to employees. Employees are expected to know that certain behaviour is simply unacceptable. An employee will not therefore
generally be able to rely on the absence of a disciplinary code, or of an express reference to the offence in a disciplinary code, if
the misconduct for which he or she was dismissed constitutes a common-law crime, such as theft, assault or murder or if the
employee is simply dishonest.
22 Vaal Toyota (Nigel) v MIBCO [2002] 10 BLLR 936 (LAC ).
6. Consistency
The requirement that employees must be aware of the rules of the workplace gives rise to the further principle that employers must
apply their rules consistently – the so-called ‘parity principle’. Generally speaking, it is unfair in itself to treat people who have
committed similar misconduct differently. Inconsistency is also unfair because inconsistent application of rules creates confusion
and possible doubt about whether a rule exists. 23
The courts have distinguished between historical inconsistency and contemporaneous inconsistency. Historical inconsistency
occurs when an employer has in the past, as a matter of practice, not dismissed employees or imposed a
4th Ed, 2022, ch 8-p 177
particular sanction for contravention of a specific disciplinary rule. In such cases, unfairness flows from the employee’s state of
mind: in later cases, the employees concerned were unaware that they would be dismissed for the offence in question.
Contemporaneous inconsistency occurs when two or more employees simultaneously engage in the same or similar conduct but
only one or some of them are disciplined, or where different penalties are imposed. The classic example is where two employees are
both engaged in a fight and neither can claim provocation or that they were acting in self-defence. 24 In such cases, unfairness
flows from the principle that like cases should, in fairness, be treated alike. Both forms of inconsistency may also be evidence of
arbitrary action on the part of the employer.
But the ‘parity principle’ should be applied with caution. It may well be that employees who thoroughly deserved to be dismissed
profit from the fact that other employees happened not to have been dismissed for a similar offence in the past or because another
employee involved in the same misconduct was not dismissed through some oversight by a disciplinary officer, or because different
disciplinary officers had different views on the appropriate penalty.
In SACCAWU v Irvin & Johnson, 25 the majority in a divided LAC stressed that ‘parity’ is simply a general principle of fairness, and
that it should not be applied rigidly. In that case, the employees had been involved in violent demonstrations during an illegal strike.
The industrial court upheld the dismissals of those employees who had been given final warnings for their involvement in an earlier
demonstration, but held that the employees who had not yet been given warnings should only have been given final warnings for
their involvement in the ultimate demonstration. The majority held that consistency is simply an element of disciplinary fairness and
that if one of a group of employees who committed a serious offence is, for improper motives, not dismissed, other miscreants
should not necessarily escape.
Irvin & Johnson should be read in the light of the exceptional facts of the case. However, the point made by the court is that
inconsistency is not per se unfair. The circumstances in which it is perpetrated must also point to the fact that the inconsistency
amounted to arbitrariness or bad faith on the part of the employer.
The requirements of ‘historical’ consistency may place employers in a difficult situation if they have been slack with particular
forms of misconduct in the past and suddenly decide to become stricter. A change of disciplinary policy is generally accepted if the
employer clearly informs all staff of the change. 26 However, employees ignorant of the change may legitimately claim that they
expected to be treated with the same leniency. To escape charges of historical inconsistency the employer must, in short, prove
that it has turned over a new leaf.
A leading case on contemporaneous inconsistency was the case arising out of the dispute between NUMSA and Henred Fruehauf
Trailers. 27 The 44 dismissed employees, all working in one branch, took part in a nationwide go-slow along with some 2 000
colleagues employed in other branches. The LAC held that the
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real reason why the 44 had been selected for dismissal was that production could be monitored in their plant with relative ease,
whereas the effects of the go-slow in other plants was difficult to gauge. This, said the court, was a totally arbitrary reason for
selecting employees for dismissal.
To overcome a consistency challenge, the employer must therefore be able to show that there was a valid reason for
differentiating between groups of employees guilty of the same offence. 28 Self-evidently, the employees who are dismissed must
be proved to have conducted themselves more reprehensibly than those who were not. The employer in CEPPWAWU v Metrofile
failed to discharge this onus. 29 The court found that employees who had blockaded one branch of the company and who were not
dismissed were guilty of worse behaviour than those who had done the same at another branch, who were dismissed. Those
employees were reinstated.
Conversely, a consistency challenge will fail where the employee’s misconduct is different from or takes a less serious form than
that of the dismissed employee. The court has held that storing pornographic material in a company computer and distributing it on
the company intranet were distinct enough to warrant the imposition of final warnings for the former offence and the sanction of
dismissal for the latter. 30
In exceptional circumstances, employers may use criteria other than the similarity of the misconduct to differentiate between
employees when considering sanction. For example, shop stewards may be singled out for exhorting employees to engage in
unprotected strikes, 31 or the seniority of employees may count against them. 32
It goes without saying that an employee may rely on inconsistency only if the employer was aware that the chosen comparator
had perpetrated the same offence. 33 The mere fact that different disciplinary officers impose different sanctions in cases of mass
misconduct does not necessarily render the dismissal of some unfair. Everything depends on the facts of each case. 34
Another instructive example of indefensible contemporaneous inconsistency is furnished by SRV Mills Services v CCMA. 35 The
respondent employees were both absent from work for the same shift. When they reported for duty the next day, they claimed
that the car in which they had been travelling had broken down. One employee was immediately summoned to a hearing and
dismissed when the explanation was found to be untrue. For some reason, not explained by the employer, a disciplinary inquiry was
held much later for the other employee, who was found not guilty. The court linked these facts to the perception of bias.
4th Ed, 2022, ch 8-p 179
When an employer dismissed some employees against whom there was evidence of misconduct, but failed to dismiss others who
might have been involved in the same misconduct but against whom there was no evidence, the parity rule was held not to have
been breached. 36 A manager’s attempt to raise inconsistency for a breach of safety regulations because his subordinates had not
been disciplined was also held not to have breached the parity principle, because the manager had overall responsibility for the
mine’s safety programme. 37
There may also be justifiable pragmatic reasons for an employer to consciously breach the parity principle. One emerged in MEC,
DOH, Eastern Cape v PHSDSBC. 38 The court noted that one comparator had accepted a plea bargain, concluded in an attempt to
acquire evidence against the others. Such a bargain could not possibly be offered to all the accused employees, and did not
amount to inconsistent application of discipline or a plea in mitigation of sanction. The court held that accomplice testimony is an
essential tool in piercing the veil of secrecy often surrounding corruption.
But exceptions to the parity principle cannot be pressed too far, as the employer tried to do in Gemalto SA v CEPPWAWU. 39
Gemalto, which manufactures secure operating devices such as smart cards and SIM cards for the banking industry, was
understandably concerned when it received a complaint from a bank that information removed from Gemalto’s premises had been
used to scam the bank out of R50 000. Gemalto immediately asked all its employees, including senior management, to undergo
polygraph tests. About 190 employees, supported by their union, signed a petition objecting to the tests. Management did not
relent, and insisted that all employees undergo the tests. Twenty-three of the employees who still refused were charged with gross
insubordination and dismissed. The LAC noted that many more than the 23 dismissed employees had also refused to take polygraph
tests. The 23 had been chosen solely because only their employment contracts had annexures requiring them to undergo polygraph
tests on request. Gemalto’s problem was that it had insisted that all its employees’ contacts had similar annexures, but that they
could not be found. There was no other basis for distinguishing the 23 from the others. The court held that Gemalto was trying to
use a contractual obligation to undergo a blanket polygraph test without having any reason to suspect the employees of
wrongdoing. This was impermissible. The appeal was dismissed with costs.
Another situation in which the courts have found dismissals unfair because of inconsistency is where employees who were
involved in the same misconduct were selected for dismissal on the basis of irrelevant prior warnings. In SACTWU v Novel
Spinners, 40 the Labour Court held that, in principle, it was unfair to select employees who had engaged in collective misconduct (a
stay-away) on the basis of prior warnings given earlier for individual misconduct (absenteeism). 41 Selecting
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employees on the basis of earlier warnings will obviously be unfair when they have expired. 42
Consistency challenges should be properly mounted. Little purpose is served by employees simply claiming at the beginning of an
arbitration hearing that the employer has treated other employees more leniently in some earlier case or cases. Where this occurs,
employers’ representatives can justifiably raise the objection that they are unaware of the details of the earlier case(s). The
arbitrator must then either disallow the objection or postpone the matter, which is unlikely. 43
Comparison between cases for this purpose requires consideration not only to the respective employees’ conduct, but also of
such factors as the employee’s remorse and disciplinary record, whether the workforce has been warned that such offences will be
treated more severely in future, and the circumstances surrounding the respective cases. 44 Self-evidently, an employer may only
be required to prove that discipline was applied consistently if the employee raises an inconsistency challenge. 45
In ABSA Bank v Naidu, 46 the court sounded a warning that the parity principle must not be applied ‘willy-nilly’. Ms Naidu, an
executive investment broker, was dismissed for transferring a client’s investment from one fund to another without the client’s
knowledge or consent. A CCMA commissioner ruled the dismissal unfair and ordered ABSA to reinstate Naidu with nearly R1,9 million
in back pay. A review application failed. The Labour Court found Naidu’s dismissal inconsistent because another of the bank official
employees had been given a warning for similar misconduct. That was the main issue on appeal. After finding that the cases were
dissimilar, the LAC pointed out that consistency is only one factor to be considered when assessing the fairness of a dismissal. It is
not in itself decisive. That one employee was let off in the past cannot license others to commit the same offence, particularly if it
involves dishonesty. The parity principle was never intended to create chaos in the workplace. There are varying degrees of
dishonesty, and each must be treated on the basis of its own facts and circumstances. The main facts in Naidu’s case were that
she had shown no real remorse and had destroyed the trust relationship. The commissioner’s award was ruled unreasonable and the
appeal was upheld.
23 Leading cases decided under the 1956 LRA dealing with the so-called parity principle are NUM v Haggie Rand (1991) 12 ILJ 1022 (LAC ) and
NUMSA v Henred Fruehauf Trailers (1994) 15 ILJ 1257 (A).
24 See, for example, Cape Wrappers v Scheepers [2002] 8 BLLR 729 (LC ).
25 (1999) 20 ILJ 2302 (LAC ).
26 See, for example, Consani Engineering v CCMA (2004) 25 ILJ 1707 (LC ).
27 Henred Fruehauf Trailers v NUMSA (1992) 13 ILJ 593 (LAC ); NUMSA v Henred Fruehauf Trailers (1994) 15 ILJ 1257 (A).
28 See, for example, NUMSA v Delta Motor Corporation [2002] 9 BLLR 817 (LAC ).
29 (2004) 25 ILJ 231 (LAC ). Also see Rustenburg Platinum Mines (Bafokeng Rasimone Platinum Mine) v CCMA (2007) 28 ILJ 408 (LC ).
30 Samson v CCMA (2010) 31 ILJ 170 (LC ). See also SSC Infrasek v CCMA (2021) 42 ILJ 2473 (LC ); Nel v Transnet Bargaining Council [2010] 1
BLLR 61 (LC ); Southern Sun Hotel Interests v CCMA (2010) 31 ILJ 452 (LC ).
31 SACCAWU obo Ramontlhe v Sun City (2020) 41 ILJ 160 (LAC ).
32 DOH (North West Province) v Strydom (2020) 41 ILJ 619 (LAC ).
33 Singh v eThekwini Municipality (Treasury Department) (2015) 36 ILJ 769 (LC ); Southern Sun Hotel Interests v CCMA (2010) 31 ILJ 452 (LC ).
34 Comed Health v NBCCI (2012) 33 ILJ 623 (LC ).
35 (2004) 25 ILJ 135 (LC ).
36 CEPPWAWU v NBCCI (2010) 31 ILJ 2836 (LAC ).
37 NUM obo Botsane v Anglo Platinum Mine (Rustenburg Section) (2014) 35 ILJ 2406 (LAC ).
38 (2016) 37 ILJ 1429 (LC ).
39 (2015) 36 ILJ 3002 (LAC ).
40 [1999] 11 BLLR 1157 (LC ). But see NUM v Amcoal Colliery t/a Arnot Colliery (2000) 5 LLD 226 (LAC ).
41 The court followed Novel Spinners in SATAWU v Ikhwezi Bus Service (2009) 30 ILJ 205 (LC ).
42 NUMSA v Atlantis Forge (2005) 26 ILJ 1984 (LC ).
43 See, for example, Rustenburg Platinum Mines (Bafokeng Rasimone Platinum Mine) v CCMA (2007) 28 ILJ 408 (LC ).
44 SSC Infrasek v CCMA (2021) 42 ILJ 2473 (LC ).
45 See Parmalat SA v CCMA [2009] 6 BLLR 558 (LC ), in which an arbitration award was set aside because the commissioner had purported to lay
down an ‘inflexible rule’ that employers must always lead evidence to prove consistency, even if the point was not raised by the employee.
46 (2015) 36 ILJ 602 (LAC ).
7.1 Generally
The Code of Good Practice: Dismissal states that one of the requirements of a fair dismissal for misconduct is that the dismissal
must be an ‘appropriate’ penalty. The
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choice of the word ‘appropriate’ reflects the difficulty the courts have themselves experienced in laying down principles for deciding
whether dismissal or some lesser sanction should be imposed for a proven offence. Presiding officers in internal disciplinary inquiries
are required to exercise their discretion in respect of sanction reasonably, honestly and with due regard to the general principles of
fairness. The courts and arbitrators must ensure that those responsible for decisions to dismiss employees have exercised their
discretion reasonably and fairly.
When will courts or arbitrators interfere with the decision by employers to impose the sanction of dismissal? The answer depends on
whether, at this stage, a court or arbitrator is exercising an independent discretion, or whether the court or arbitrator is
independently assessing whether the employer’s decision is reasonable and fair. In most cases the result may be the same
whichever approach is adopted. But the difference is important. A tribunal exercising an independent discretion on sanction is free
to draw its own conclusion, much like a court of appeal, without regard to the sanction chosen by the employer, and to substitute
a lesser penalty should this be favoured. A tribunal confined to assessing the reasonableness and fairness of the decision to dismiss
may interfere with the employer’s decision only if that decision is found to be unreasonable and unfair when assessed against an
independent standard. On this approach, the employer’s decision to dismiss must stand unless the tribunal is satisfied (and can
demonstrate) that the employer’s decision to dismiss is so unreasonable that no reasonable person would have taken such a
decision in the circumstances.
After much debate, the LAC held that, in matters where the sole issue is whether the sanction of dismissal was appropriate,
arbitrators have the limited function of ensuring that dismissals do not fall outside a ‘band of reasonableness’, the parameters of
which are determined by general principles of fairness. 47 As a starting point, the courts accept that determining a fair sanction
entails a value judgment. The choice of sanction is not a matter of logic or law, in which it is possible to say that the decision-
maker was right or wrong. There are situations in which two reasonable people may reasonably disagree that dismissal was
appropriate, and other situations in which no reasonable person could possibly regard dismissal as appropriate. Arbitrators deciding
on the ‘appropriateness’ of a dismissal must ensure that the choice of dismissal in a particular case did not fall into the latter class.
4th Ed, 2022, ch 8-p 182
The burning question is how one establishes whether a decision to dismiss a particular employee for misconduct was so aberrant
that it can be said that no reasonable person would have taken that decision in those circumstances. Since the decision is
essentially a value judgment, no scientific standard exists. It is therefore understandable that the courts have refrained from
attempting to devise such a test. The best the LAC has been able to do was to say that setting the standard for the standard of
conduct for employees and determining the sanction with which non-compliance will be visited ‘lies in the first place within the
province of the employer’ and that interference is justified only ‘in the case of unreasonableness and unfairness’. 48
This test still begs the question, when can it be said that the sanction of dismissal is unreasonable and unfair? In the same
judgment, another judge, borrowing from the law relating to the review of appeals against sentences handed down by criminal
courts, suggested that a dismissal in the circumstances of the misconduct can be said to be unreasonable when it induces a ‘sense
of shock’ in the reviewing tribunal. In another case, Toyota SA Motors v Radebe, 49 the LAC also suggested that the basis for
interference with a sanction was a ‘yawning chasm between the sanction which the court would have imposed and the sanction
imposed by the commissioner’.
It appears that the judges in County Fair and Toyota were focusing on different issues; their judgments should be read in that
light. In County Fair, two judges asked when a CCMA commissioner acting as arbitrator should interfere with the sanction imposed
by an employer. Like the court in Toyota, the minority judge in County Fair focused on when a reviewing court should interfere
with the decision of a commissioner acting as arbitrator to substitute a lesser penalty for the penalty imposed by the employer.
These two issues must be approached from different perspectives. An arbitrator is concerned with establishing the fairness of the
employer’s decision. A reviewing court is concerned with establishing whether a commissioner committed a reviewable irregularity
under s 145 of the LRA.
One judge appears to have sensed this distinction in De Beers Consolidated Mines v CCMA. 50 In a concurring judgment in that
case, the judge took the view that the commissioner had erred by addressing the incorrect question. The commissioner’s function,
said this judge, was not to impose what she viewed as the correct sanction. It was to decide whether the dismissal was unfair.
The commissioner’s award was reviewable because she had not addressed the latter question.
The Constitutional Court entered this debate in Sidumo v Rustenburg Platinum Mines. 51 Since this judgment now eclipses all
others on the issue, it is worth considering at some length. The case arose from the dismissal of a security guard, who had been
captured on a surveillance camera while conducting routine searches. When the tapes were studied, they showed that the guard
had conducted only one of about two dozen searches in accordance with the company’s new and more rigorous search policy. For
the rest, he had not searched eight employees at all, yet had allowed some to sign the search register, and had conducted the
other
4th Ed, 2022, ch 8-p 183
individual searches superficially and perfunctorily. The presiding officer at the guard’s disciplinary hearing found him guilty of
carrying out his duties negligently and of failing to follow company procedures. In his view, considerations in the guard’s favour
were that nothing went out on his shifts (‘as far as you know’), his long service (15 years) and clean disciplinary record. But the
presiding officer regarded the aggravating factors as weightier. These included the facts that Mr Sidumo’s misconduct ‘created
potential losses/theft’, and that ‘the trustworthy position between him [Sidumo] and the company has been broken, which made
[a] future relationship intolerable’. The guard met with the same reasoning in his internal appeal.
When the matter arrived before the CCMA, the commissioner rejected Sidumo’s excuses for his conduct but found that the
employment relationship had not been destroyed. So, too, did the Labour Court on review, 52 because the case concerned poor
work performance rather than misconduct. Sidumo had not committed a violent crime, or stolen anything, or committed any other
form of misconduct which ‘unequivocally demanded dismissal’, and there was no proof that anything had been stolen during the
guard’s shifts. The LAC was more critical of the commissioner’s approach, but found in the end that the commissioner’s reliance on
the long service of the guard and the absence of any previous misdemeanours tipped the balance in Sidumo’s favour. 53
The SCA found that the LAC had made a fundamental error. 54 Instead of trying to determine whether the commissioner’s
conclusion was rationally connected to the information before him, the LAC had looked for, and found, reasons in the award which,
in spite of several other errors, were nonetheless capable of sustaining the commissioner’s finding. This, said the SCA, was
inconsistent with the requirement of rationality now imposed on commissioners by the Promotion of Administrative Justice Act 3 of
2000 (PAJA), which the court held applied in the review of CCMA awards. In short, the approach advocated by the SCA imposes a
duty on commissioners to reason properly.
There is only one argument against subjecting commissioners to that standard. This is that one of the objects of the labour
dispute resolution system – the speedy sorting out of labour disputes – creates an inherent risk that commissioners might
sometimes go awry. The SCA was not unsympathetic to that consideration. However, the court did not regard the answer as the
fashioning of ‘constrictive’ grounds of review (or, to put it less charitably, in licensing irrationality), but in ‘directing CCMA
commissioners more closely to the proper scope of their powers and duties under the LRA’.
What, then, is the scope of those powers and duties? In dismissal disputes, commissioners play an oversight role. Their central,
indeed only, task is to determine whether the dismissal was for a fair reason and in accordance with a fair procedure. In performing
that task, commissioners must hear matters de novo, then apply the guidelines laid down in the Code of Good Practice: Dismissal. If
the evidence indicates that the employer did not comply with the audi alteram partem
4th Ed, 2022, ch 8-p 184
rule, or that the employee did not contravene a workplace rule, or, if the employee did contravene a workplace rule, that the rule
was invalid or unreasonable, or that the employer applied the rule inconsistently, the dismissal must be ruled unfair.
According to the SCA, Rustenburg Platinum passed all these requirements. The company went wrong, in the commissioner’s eyes,
only by imposing too severe a ‘sanction’. Where the commissioner went wrong, according to the SCA, was to treat the requirement
that a dismissal must be ‘an appropriate sanction’ as a separate consideration, to be applied independently of the other
requirements. Logically, there may be nothing wrong with this approach; it is not inherently irrational to say that, although a person
has broken a rule that is valid, reasonable and consistently applied, the sanction imposed is nevertheless too harsh.
There must therefore be a further reason for criticising the commissioner’s decision to replace the sanction of dismissal with a
final written warning. It may be found by simply viewing the various factors listed in item 7(b) of the code as cumulative, rather
than independent, ie to read the word ‘and’ between subitems (iii) and (iv) in its literal sense as a conjunctive. This would mean
that when commissioners have regard, as they must, to those factors, they must ask themselves why the breach of the valid and
consistently applied rule of which the employee was aware should not justify the decision to dismiss the employee. Unless there are
compelling reasons why the breach of the rule does not, a commissioner should leave the employer’s decision well alone. What
commissioners cannot do is to find that, even though the employer proved that the rule was valid and reasonable, the employee
was aware of the rule, and the rule was consistently applied, dismissal was not an appropriate sanction. To allow commissioners to
take that approach would be to confer on them a discretion wide enough to override the employer in every conceivable kind of
case, no matter how reprehensible the dismissed employee’s misbehaviour.
In Sidumo’s case, 55 the SCA found the reason why commissioners may not interfere with what many would regard as palpably
fair sanctions is ‘the ambit of the commissioner’s duties under the statute’: those duties do not include a power to decide
independently on penalties for workplace delinquency. That is a function of the criminal courts. In employment law, the task of
imposing sanctions vests in the employer. It is a commissioner’s function to assess whether that employer has exercised its
discretion fairly.
The SCA noted that the court’s approach in County Fair had provoked a ‘spirited debate’ among judges of the LAC about
whether the ‘reasonable employer test’ had found its way back into our law. But the SCA found the answer rooted in the LRA itself
and the notion of fairness that permeates the statute. The LRA, said the court, requires commissioners to determine whether there
is a fair reason for the dismissal. This means that commissioners and Labour Court judges are not required (or permitted) to look for
the fair reason. Furthermore, the code locates the discretion to decide on the appropriate sanction for proven misconduct with
employers, not commissioners. The expression ‘appropriate’ also implies a range of possibilities. Finally, the code expressly permits
dismissal when the employment relationship has become ‘intolerable’. ‘Intolerable’, the SCA pointed out, means
4th Ed, 2022, ch 8-p 185
‘unable to be endured’. Only those involved can properly judge whether a situation cannot be endured – in this case, the employer.
But more important than all of this is that the code rests entirely on the notion of fairness, which, like appropriateness and
intolerability, is not an absolute concept.
When the matter came before the Constitutional Court, the 10-member panel of justices all agreed that the critical questions
were whether the SCA was right in concluding that, when determining dismissal disputes, commissioners must accept that it is
enough for the employer to prove that the sanction of dismissal is a fair sanction, rather than the only fair sanction, and whether
the PAJA applies in reviews of CCMA awards. However, the practical issue was whether the SCA was justified in setting aside the
commissioner’s award. The court held that the SCA was wrong on all three counts.
While judgment was still reserved by the Constitutional Court in Sidumo, the LAC unleashed a broadside on that aspect of the
SCA’s judgment. In Engen Petroleum v CCMA, 56 the LAC explored the origins and history of the ‘reasonable employer test’, and
held that it had no place in South African law. To the LAC, what it termed the ‘defer to the employer’ approach was at odds with
the entire purpose of the statutory dispute resolution procedure, which was aimed at providing impartial commissioners for resolving
disputes. The LAC therefore concluded in this judgment that the LRA endorses quite the opposite approach: when deciding on
whether dismissals are fair, commissioners must exercise their own opinions. However, in Engen, the LAC acknowledged that it was
bound by the SCA’s judgment in Rustenburg Platinum, and reluctantly set aside an award in which the driver of a petrol tanker was
reinstated after being dismissed for tampering with the tachometer on his vehicle.
When Sidumo’s appeal came before the highest court, it acknowledged Engen and finally buried the ‘reasonable employer’ test.
Six judges of the panel agreed that commissioners must exercise their own conceptions of fairness when assessing whether the
sanction of dismissal in a particular case is ‘appropriate’. 57
The minority’s view was somewhat more qualified. 58 While the minority acknowledged that expressions such as ‘deference’ and
the ‘reasonable employer’ are calculated to obscure the proper test, they hastened to add that these expressions must be
understood ‘in the context’ of the test commissioners must adopt – that is, fairness to both the employer and the employee. That
balance is to be determined impartially. That commissioners must self-evidently ‘take seriously’ the reason why the employer
established the rule, and prescribed the penalty for the breach of
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it, does not mean that commissioners must kowtow to employers. Commissioners must have regard to all relevant factors, including
the reasons given by the employer, when determining whether the sanction of dismissal was fair. But it remains true, said the
minority, that ‘where an employer has developed and implemented a disciplinary system, it is not for the commissioner to set aside
the system merely because the commissioner prefers different standards’. This, said the judge, is not to revive the discredited
‘reasonable employer’ test. It is to apply the test enjoined by the LRA, which requires commissioners to act fairly to both employers
and employees.
This is precisely what the SCA had said. Both majority and minority judgments in Sidumo suggest that commissioners must
consider all relevant circumstances when considering whether dismissal was the appropriate sanction in particular cases of proven
misconduct, not simply conclude that they are unable to say that the employer’s decision was unfair, even if they believe it to be
so. Beyond that, the guidance to be derived from the Sidumo judgment must be gleaned from the court’s assessment of the
commissioner’s decision itself. As noted, the SCA found the award irrational because the commissioner had elevated two weak
reasons for mercy above several aggravating factors. The entire Constitutional Court bench disagreed. The majority acknowledged
that losses could have been sustained by the guard’s neglect of his duties, but noted that no losses had been proved. Although
Sidumo had not conducted individual searches, which was his main duty, the employer had itself characterised these omissions as
‘mistakes’. The main consideration in the eyes of the majority was that there was no proof that Sidumo had been dishonest
(although he had now owned up and falsely denied that he had been trained), the company had not suffered loss and he had long
service and a clean disciplinary record. The minority reached the same conclusion after an even more charitable evaluation of the
commissioner’s reasoning.
Read together, these judgments suggest that the court’s conclusion that the commissioner’s finding that dismissal was too harsh
a sanction was rational (or fair) rests on the following findings: (1) Sidumo had been dismissed for negligence, not dishonesty; (2)
the employer did not prove that actual losses had resulted from his negligence; (3) he had long service and a clean disciplinary
record; and (4) there was no indication that Sidumo would not reform if subjected to ‘progressive discipline’.
It is difficult to reconcile the weight attached to these factors with the conclusion that the commissioner was wrong when he
found that the trust relationship had survived. Nor is it clear why the court regarded as axiomatic the connection between Sidumo’s
length of service and clean disciplinary record, and the thought it attributed to the commissioner that Sidumo could possibly be
trusted with other functions (which is in turn impossible to reconcile with the commissioner’s order that Sidumo be reinstated to his
post as a security guard). A company witness may have used the word ‘mistake’ when he testified, and one of the charges against
Sidumo may have been for negligence. Charges in disciplinary hearings need not be drafted with the precision of criminal
indictments; Sidumo was also charged with and found ‘guilty’ of failing to follow search procedures simpliciter, which could include a
dishonest failure to do so. Even if Sidumo’s failure to search can be attributed to mere negligence, the same can surely not be said
of permitting
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employees to sign a search register in the full knowledge that they had not been searched. That, when coupled with the unanimous
rejection of Sidumo’s claim that he had not been trained, cannot be ascribed to mere negligence. On the face of it, allowing
employees to sign a register indicating that they had been searched when they had not been searched was deliberate, and
constitutes fraud or, at least, complicity in fraud. Even if the presiding officer at the disciplinary hearing found that Sidumo had
been negligent, the court seems not to have considered that the commissioner was not required to defer to that finding. What
‘indications’ the employer could have supplied to satisfy the commissioner that Sidumo would not react favourably to progressive
discipline, the majority did not say. And notably absent from the analyses of both the majority and the minority is any indication
that they were satisfied that the commissioner had considered the context in which Sidumo’s misconduct occurred, or that the
commissioner had placed on the scales the gravity of that misconduct and the employer’s operational requirements. All that need
be said about the context is that the employer was suffering losses through theft, and had entrusted Sidumo with the duty of
following strict procedures designed to stem those losses. All that need be said about the gravity of the misconduct is that Sidumo
failed without adequate explanation to discharge the duty for which he was employed and had, as the court accepted, breached
the trust relationship.
Where does the Constitutional Court’s judgment in Sidumo take the law relating to unfair dismissal? While the elimination of the
approach advocated in Nampak Corrugated and County Fair certainly frees the hands of commissioners, it must be recalled that
Sidumo really concerned the basis on which reviewing courts may interfere with the decisions of commissioners in cases where
arbitrating commissioners are called on to decide whether the ‘sanction’ of dismissal for proven misconduct is ‘appropriate’. From a
pragmatic viewpoint, Sidumo seems to suggest that, even in cases involving dishonesty, commissioners may impose a lesser
penalty in cases where the employee has long service and a clean disciplinary record.
After Sidumo, reviewing courts have found it as difficult to interfere with the awards of commissioners who adopt a ‘strict’
approach as they have found it to interfere with awards of those who adopt a ‘sympathetic’ approach and ruled dismissals fair. 59
The courts have read Sidumo as subject to the exception that a commissioner cannot interfere with a dismissal if the employee
was dishonest. So, without reference to Sidumo, and contrary to one of its earlier judgments, the LAC set aside a commissioner’s
decision to reinstate a supermarket employee who had been caught stealing food from the company delicatessen. 60
Employers will derive little assistance from these complicated jurisprudential issues; they simply need to know when a decision to
dismiss an employee for misconduct is likely to be interfered with by an arbitrator. After Sidumo, the most that can be said is that,
even if the employer is happy that it can satisfy all the requirements of item 7 of the Code of Good Practice: Dismissal, there will
always be a risk that an arbitrator will still find dismissal an inappropriate sanction. The test
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is now whether a reasonable commissioner (as opposed to employer) will agree that the sanction of dismissal is appropriate. While
this entails some crystal ball gazing on the part of employers, the code nevertheless requires commissioners to take a ‘holistic’ view
of the case.
One element of the test for whether dismissal was ‘appropriate’ which survived Sidumo is the effect of the employee’s misconduct
on the employment relationship. Whether the employment relationship could reasonably be sustained remains an essential part of
the inquiry. If the relationship has been broken, dismissal cannot be said to have been inappropriate.
Must an employer that claims a breakdown in the employment relationship lead evidence to prove that the employment
relationship cannot be sustained, or may be assumed from the nature of the misconduct itself? In some cases, the courts have
been prepared to accept that serious misconduct is in itself sufficient to prove that the trust relationship has been irreparably
harmed and that dismissal is justified. 61 Sidumo suggests that proof of the effect of the misconduct on the employment
relationship is needed, and proof is also needed on whether ‘progressive discipline’ might not have restored the rupture.
The nature of such evidence was suggested in Edcon v Pillemer NO. 62 In that case, the respondent employee was dismissed for
lying about an accident in which her company car was involved while being driven by her son. An immediate manager pleaded for
clemency at her disciplinary hearing, and he and a colleague wrote letters confirming that they still trusted the employee. A
commissioner admitted these letters into evidence, and found on the strength of them that dismissal had been too harsh a penalty
because the employment relationship had not been destroyed. Both the LAC and the SCA agreed with this finding. The SCA noted
that the only witness called by the company did not know the employee personally, and had merely presented evidence about the
inquiry and the company disciplinary code. In the circumstances, this was insufficient to prove that the trust relationship had
broken down irreparably.
Edcon was seen by some commissioners as laying down an inflexible rule that employers must lead direct evidence during
arbitration proceedings proving a breakdown in the employment relationship before a dismissal can be found appropriate. This is a
dubious interpretation of that judgment. The SCA simply held that the commissioner’s finding that the company had failed to prove
the main justification for the dismissal was beyond reproach. This is a far cry from stating that in every dismissal for misconduct,
however gross, the employer must call witnesses to make a rote statement that it has destroyed the employment relationship.
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This misconception of Edcon has been corrected in several later judgments, 63 in which it was accepted that serious
misconduct, especially that involving dishonesty, was axiomatic proof that the employment relationship had been rendered
unsustainable. Nothing is added to proof of the appropriateness of a dismissal, or otherwise, by a statement by an employee,
usually remote from the dismissed employee’s post, that he or she believes that the employment relationship has been destroyed,
which is in any case for the arbitrator to decide. But evidence of the effect of misconduct on the employment relationship may be
prudent in cases of less grave misconduct, especially that not involving dishonesty. In Woolworths v Mabija, 64 the LAC accepted
that it is not necessary in every case for evidence to be led to prove a breakdown of trust – the gravity of the misconduct may
speak for itself. But in less serious cases it is prudent for witnesses with first-hand knowledge to be called to testify about the
impact of misconduct on the trust relationship. 65
But commissioners should not unthinkingly find that misconduct in itself suffices to warrant the inference that the employment
relationship has broken down. In Stander v ELRC, 66 the Labour Court set aside an award in which the commissioner upheld the
dismissal of a teacher for slapping a child some two years after the event because the commissioner had ignored evidence that the
teacher had been severely provoked and had blindly followed a judgment of the erstwhile industrial court in which it was held that
if, after investigation, an employer mistrusts an employee, the employment relationship may be terminated.
Many of the cases concerning whether the employment relationship has broken down involve large corporate employers or
government departments. Strictly speaking, it is hard to imagine a tangible relationship between an individual employee and an
impersonal legal entity; individuals must always be involved. The test of a ‘breakdown of the employment relationship’ in such
contexts is therefore something of a fiction. In Khambule v Impala Platinum, 67 the LAC accepted that the personal relationship
between an employee and his supervisor had survived the employee’s failure to report R450 000 worth of platinum group metals
that had been found hidden in the factory. The court held that the impact of Khambule’s misconduct could not be insulated from
main role players. Even extremely inappropriate behaviour may in an exceptional case not warrant dismissal if there is no proximity
between the employee and the supervisor who he may have offended. In this case the supervisor had not been influenced by
Khambule but had simply called security. It was therefore farfetched to suggest that he could not work with Khambule again.
4th Ed, 2022, ch 8-p 190
The sanction prescribed by a disciplinary code for a specific disciplinary offence is regarded as a significant determinant of the
appropriateness of the sanction. Where a disciplinary code provides for a lesser penalty for a specific infraction, it will generally be
considered unfair to dismiss an employee for the first such offence. 68 Employers are held to the standards they have adopted in
their codes unless employees are adequately warned that a more severe penalty will be imposed in future cases. But this is not an
inflexible rule. Disciplinary codes are regarded as guidelines; a more severe penalty may be justified in the light of other
circumstances, for example, where the misconduct is a particularly aggravated form of the offence concerned. 69
A theme expressed in many judgments and awards, echoed in the Code of Good Practice: Dismissal, is that dismissal is the ‘ultimate
sanction’ in the employment context. It should therefore not be imposed if a lesser penalty would have put the errant employee
back on the right track (so-called progressive discipline). This view equates to the rehabilitative approach to sentencing in criminal
law. 70 According to this view, the ultimate purpose of punishment is to rehabilitate the offender. It is only when the possibility of
rehabilitation can be ruled out that extreme penalties, such as life imprisonment or the death sentence, can possibly be justified.
This view is reinforced by the code, which states that, generally speaking, disciplinary action should be applied ‘progressively’. 71
The analogy between the death penalty and dismissal has not been without its critics. In NUMSA obo Davids / Bosal Africa, 72 a
case involving the dismissal of a crane driver for being under the influence of alcohol while on duty, the arbitrator found the analogy
between the death sentence and dismissal upon which the union had relied ‘emotive and inapposite’. He commented that employers
do not have power to ‘punish’ employees; their power over employees is contractual and modern labour law seeks to ensure that
that power is exercised fairly.
While these observations may be true, there is nevertheless some similarity between sentencing in the criminal courts and the
imposition of sanctions by workplace disciplinary tribunals. In both, ‘punishment should fit the crime’. However, as the arbitrator
pointed out in Bosal Africa there are also significant differences. The most obvious is that the legitimacy of employers’ disciplinary
power rests upon philosophical underpinnings different from those used to justify
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the power of the state to punish offenders. Another difference is that, unlike the state, employers have only a limited range of
penalties that may be lawfully imposed. These are, basically, warnings, demotion, suspension and dismissal. The state, in contrast,
can vary the amount of fines imposed and the length of jail sentences.
The courts have accepted that the ultimate justification for employers’ power to impose discipline flows from their right to
manage their business effectively. In De Beers Consolidated Mines v CCMA, 73 the LAC observed in an oft-quoted passage that
dismissal ‘is not an expression of moral outrage; much less is it an act of vengeance’. It is, or should be, ‘a sensible operational
response to risk management in the particular enterprise’.
An employer has two legitimate reasons for wanting to rid itself of a dishonest employee. One is that the employee can no longer
be trusted. The other, less frequently acknowledged but no less legitimate, is the need to send a signal to other employees that
dishonesty will not be tolerated. This consideration relates to the deterrence theory of punishment, which is more pressing, for
instance, when the employer has suffered massive losses through pilfering and introduces a ‘zero tolerance’ policy to combat
further loss. 74 The question to be asked is whether a repetition of the misconduct, either by the same employee or by others, will
adversely affect the employer’s business, the safety of the workforce, and the employer’s trading reputation. 75
In its Sidumo judgment, 76 the Constitutional Court suggests that, if an employer is to justify its decision not to use ‘progressive’
discipline, it should prove that the employee’s misconduct will have a deleterious effect on the operation of its business. The court
held that the commissioner in that case had justifiably drawn the conclusion that a guard’s failure to subject employees to
prescribed individual searches in a high-security area of a platinum mine would not do so. This finding relates uneasily to the idea
that the consequences of some forms of misconduct speak for themselves.
Another ‘test’ frequently used by courts and arbitrators when they assess the appropriateness of dismissals, related to the above,
is the effect that the employee’s misconduct would have on the employment relationship. 77 This consideration is phrased in
different ways. The courts may say that the ‘trust’ upon which the employment relationship was founded was destroyed. 78 Or
they may say that the
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employment relationship has been rendered ‘intolerable’, 79 or ‘futile’. 80 These tests are simply ways of establishing whether the
employer could reasonably be expected to have continued a relationship with the employee concerned. They do not introduce the
‘reasonable employer’ test by the back door.
An employer relying on irreparable damage to the employment relationship to justify a dismissal should lead evidence in that
regard, unless the conclusion that the trust relationship has been broken is apparent from the nature of the offence or the
circumstances of the dismissal. The court has found the offence of placing herself in a conflict of interest with her employer’s
business so serious that not even a supervisor’s evidence that he still trusted the employee and his plea that she should not be
dismissed was sufficient to displace the inference that the employment relationship had been destroyed. 81
The more serious the offence, the more likely it is that the employer will consider dismissal appropriate. The Code of Good Practice:
Dismissal gives as examples of offences that may justify dismissal at first instance gross dishonesty, wilful damage to the
employer’s property, physical assault on the employer, a colleague or a customer and gross insubordination. 82 This is not intended
to be a complete list of offences for which dismissal may be justified at first instance. As will be seen presently, the courts have
also approved dismissals for a variety of other offences.
Relatively minor infractions may also be viewed in a serious light in particular circumstances. For example, verbal abuse may
justify dismissal if it is committed by a manager and has racial undertones. 83 A single absence from work may be held to have
undermined the relationship of trust between the employer and the employee if the employee wilfully stayed away from work
contrary to the express instructions of the employer, and his or her absence disrupted the employer’s business. So, too, may the
unauthorised removal of even scrap material when the employer has expressly forbidden removing material without permission in an
attempt to combat pilfering. 84
Conversely, it is not always justifiable to dismiss employees for offences that happen to be listed in the code. The courts have
made it clear that an employer should at least allow the employee to plead in mitigation, and that the employer should at least
consider the possibility of a lesser sanction.
In the case of less serious offences, the code requires employers to follow a system of ‘graduated’ discipline. Employers are
encouraged to use other measures before dismissal. 85 Most disciplinary codes provide for verbal warnings, written
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warnings and final written warnings for successive instances of the same offence. Only when all these stages have been followed
will dismissal generally be justified. ‘Progressive’ discipline is not required in cases involving serious offences, such as theft. An
employer is not generally required to suspend or demote employees before terminating their services.
As in criminal cases, an employee’s disciplinary record may be taken into account when considering whether the employee should be
dismissed for a particular offence. This follows from the requirement that discipline should be ‘progressive’. An employee on a final
warning for the same offence will normally be regarded as irredeemable, and dismissal will be justified if the employee commits a
similar offence during the currency of the warning. 86 The LAC has also accepted that an accumulation of past warnings may be
taken into account when establishing the fairness of a dismissal because ‘persistent misconduct could not reasonably be
endured’. 87 Conversely, a ‘clean’ disciplinary record may call for leniency. 88
The general principles relating to the use of past warnings are that the offence for which the employee is dismissed should be
similar to the offences for which the employee received the previous warnings, 89 and that the warnings should be relatively fresh
and valid. 90
Most disciplinary codes state the period for which warnings will remain current. Where a code does so, it is generally accepted
that when that period expires, a warning lapses and the employee is considered to have a ‘clean’ disciplinary record. Where a period
is not stated in a disciplinary code, the courts have used a period of six months to a year as a benchmark. 91 While prior offences
should not be held against employees in perpetuity, there is no magic to a particular period. It would be invidious if an employee
were permitted to commit a relatively serious offence and get off with only a final written warning merely because a previous
warning had lapsed a day or two earlier. In Shoprite Checkers v Ramdaw NO, 92 the Labour Court adopted a different approach.
The judge wrote: ‘The fact that a person no longer has a final warning hanging over their head no more extinguishes prior
misconduct than the lapsing of a suspended prison sentence extinguishes the conviction from
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a person’s criminal record.’ On appeal, the LAC qualified this view by stating that the relevance of prior warnings must be
determined with reference to the contract of employment, the employer’s disciplinary code and any collective agreement that might
apply.
However, the principle that expired warnings cannot be taken into account is not immutable. In one case, Gcwensha v CCMA, 93
the LAC found an employee’s past record so hopeless that his dismissal was fair even though the last of a string of final warnings
for negligence and related misconduct may, strictly speaking, have lapsed.
The requirement of consistency (see above) must also be borne in mind when reliance is placed on prior warnings when assessing
whether they should be held against an employee.
Not relying on prior warnings in a particular case may also carry its own dangers. Doing so may indicate that the employer does
not regard the offence in question as sufficiently serious to warrant dismissal. Ignoring final warnings also undermines the integrity
of the disciplinary regime. 94
To justify dismissal, earlier warnings must also be valid. Employees facing dismissal for later offences because of earlier final
warnings may claim that the final warnings should not have been issued. If this is indeed the case, there will be no basis for a more
serious sanction for the later offence. Such pleas can normally be answered with the retort that the employee did not challenge
the earlier warning, or did so unsuccessfully. The possibility that this point may be taken underscores the importance of ensuring
that warnings should be issued after a proper procedure. 95
It is generally accepted, too, that earlier warnings may be taken into account only when deciding on the appropriate penalty for
a later offence if the misconduct for which the warnings were issued was similar to the latest offence. Some dismissals have been
ruled unfair because the final act of misconduct was dissimilar to the misconduct for which employees received final warnings. 96
This principle is easier to state than to apply. It is not always possible or desirable to categorise offences in terms so clear that
one act of misconduct can be held to be distinguishable from another. A single act of misconduct may entail elements of different
offences. The proper approach in such cases is to extract the
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essence of the particular offences under consideration: late-coming, absenteeism and unauthorised absence from the workplace
are all time-related offences. If, for example, employees lied about the reason for their absences, the offences are also linked by
dishonesty.
The difficulty lies in establishing the degree to which an offence can properly be ‘abstracted’ in this manner. If a broad
characteristic such as ‘unreliable conduct’ is taken to be the common feature, almost all offences can be grouped together. The
most sensible approach is to group offences under the following heads: those related to time, those related to dishonesty, those
related to negligent work performance, and those related to unacceptable conduct in the workplace. Subject to what follows, it
should be acceptable to establish the relevance or otherwise of prior warnings according to these broad distinctions.
On one issue, the courts have adopted a fairly strict approach to the relevance of prior warnings. This is when employers try to
justify the dismissal of employees for taking part in illegal strikes or stay-aways on the basis of earlier warnings for time-related
offences. In these cases, the courts generally regard the differentiation of penalties as unfair and selective.
It is widely accepted that, other things being equal, the longer the period of satisfactory service with the employer, the more
seriously the employer should consider mitigating factors. But while acknowledging that long service may be a relevant
consideration, the LAC has held that it does not in itself provide a basis for rendering a dismissal at first instance unfair.
In De Beers Consolidated Mines v CCMA, 97 two employees were dismissed for fraudulently claiming overtime. A commissioner
found, among other mitigating factors, that the employees both had relatively long service with the employer. The court pointed
out that long service is no more than material from which an inference can be drawn regarding the employee’s probable future
reliability. It does not lessen the gravity of the misconduct or serve to avoid the appropriate sanction for it – ‘a senior employee
cannot, without fear of dismissal, steal more than a junior employee’. Depending on the circumstances, long service may be a
weighty consideration. But, according to the court, the risk factor is paramount.
Long service therefore creates only a prima facie impression of reliability. Its weight will be offset if it is apparent from other
considerations, in particular the employee’s lack of remorse and the nature of the offence, that that impression is unwarranted. In
one case, the Labour Court went so far as to set aside an arbitration award on the basis that the commissioner had misdirected
himself by taking into account the employee’s length of service when the dismissal was for theft. 98
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The converse also applies: in general, the briefer an employee’s period of service, the stronger other mitigating factors will have
to be to justify the conclusion that dismissal is inappropriate. The Code of Good Practice: Dismissal draws a distinction between
probationary employees and ‘tenured’ employees when it comes to dismissal for poor work performance. 99 The LAC has accepted,
at least for the purpose of retrenchment, that employers’ duty to treat employees with ‘kindness, consideration and concern’ does
not operate as strongly with shorter serving employees. 100 There seems to be no logical reason why, if a brief period of service
can be taken into account in ‘no fault’ dismissals, this should not also be taken into account when the employee is guilty of
misconduct.
Mitigating factors should be considered after the employee has been found guilty of the offence; whether there are mitigating (or
aggravating) factors constitutes a separate inquiry.
A variety of considerations may be relevant when considering a plea in mitigation. These include a clean disciplinary record, long
service, remorse, the circumstances of the offence, whether the employee confessed to his misdemeanour and any other factors
that might serve to reduce the moral culpability of the employee. Employers are not required to take mitigating circumstances into
account merely because they evoke sympathy. The test is whether, taken individually or cumulatively, they serve to indicate that
the employee can be trusted not to repeat the offence. 101
Employees accused of misconduct are thus faced with a stark choice: they can either deny the commission of the offence in the
hope that the employer will not be able to prove it, or they can ‘confess’ and apologise in the hope that their remorse will count in
their favour when mitigation is considered. The LAC has made it plain that employees who choose the former option, and fail,
cannot expect sympathy. 102 This extended to an employee who was ‘conditionally’ dismissed subject to making a full apology to
people he had threatened, but declined to do so and appealed unsuccessfully instead. The LAC accepted that this behaviour
amounted to a breach of the condition and upheld the penalty of dismissal imposed after a second disciplinary hearing. 103
In some judgments and awards, courts and arbitrators have ruled that employers should take the ‘personal circumstances’ of the
employee into account when deciding on the appropriate sanction for proven misconduct. However, apart from such considerations
as length of service and mitigating factors, considered
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above, there has been little attempt to explain which personal circumstances may be relevant, and how much weight should be
accorded them, if any. In the nature of things, a dismissal will affect employees in different ways. Employees of more advanced
years may have greater difficulty obtaining other employment, and they may lose their right to their pensions. Dismissal of
employees with dependants affects a greater number of people than the dismissal of young, unattached employees. The loss of
status resulting from dismissal for misconduct may affect professional employees more than menial workers.
Employers may exercise mercy on the basis of such considerations, but they should not do so lightly, for fear of compromising
their disciplinary regime and laying themselves open to charges on inconsistency. It is doubtful whether employees will persuade
judges or arbitrators that a dismissal that is otherwise fair is unfair only because they are sole breadwinners or advanced in years.
47 Nampak Corrugated Wadeville v Khoza (1999) 20 ILJ 578 (LAC ). The court approved the approach adopted in Computicket v Marcus NO (1999)
20 ILJ 342 (LC ), in which it was said: ‘The question of sanction for misconduct is one on which reasonable people can readily differ. One person may
consider that dismissal is the appropriate sanction for an offence, another that something less, such as a warning, would be appropriate. There are
obviously circumstances in which a reasonable person would naturally conclude that dismissal was the appropriate sanction, for example, if there has
been theft of a significant amount of money, fraud or other untrustworthy conduct on the part of the [employee]. . . . There are obviously circumstances
in which dismissal would not be warranted. I take for instance the circumstances of an employee who is five minutes late for work in circumstances in
which such misconduct has no prejudicial consequences for the employe[r]. Between these two poles there is a range of possible circumstances in which
one person might take a view different from another without either of them properly being castigated as unreasonable’ (emphasis added).
48 County Fair Foods v CCMA (1999) 20 ILJ 1701 (LAC ) at [11].
49 (2000) 21 ILJ 340 (LAC ).
50 (2000) 21 ILJ 1051 (LAC ).
51 (2007) 28 ILJ 2405 (C C ).
52 The Labour C ourt judgment is not reported.
53 Rustenburg Platinum Mines v CCMA [2004] 1 BLLR 34 (LAC ).
54 Rustenburg Platinum Mines (Rustenburg Section) v CCMA (2006) 27 ILJ 2076 (SC A).
55 Rustenburg Platinum Mines (Rustenburg Section) v CCMA (2006) 27 ILJ 2076 (SC A).
56 (2007) 28 ILJ 1507 (LAC ).
57 This aspect of the majority judgment rests on the following passage: ‘It is a practical reality that in the first place it is the employer who hires
and fires. The act of dismissal forms the jurisdictional basis for a commissioner, in the event of an unresolved dismissal dispute, to conduct an arbitration
in terms of the LRA. The commissioner determines whether the dismissal is fair. There are therefore no competing ‘discretions’. Employer and
commissioner therefore each play a different part. . . . [T]he decision to dismiss belongs to the employer, but the determination of its fairness does not.
Ultimately, the commissioner’s sense of fairness is what must prevail and not the employer’s view. The court also held that the SC A was wrong in holding
that the PAJA applies to reviews of C C MA awards: see C hapter 5 of Labour Litigation and Dispute Resolution.
58 It was written by Ncgobo J, who wrote the judgments in Nampak Corrugated Wadeville and County Fair during his short tenure as Acting Judge
President of the Labour C ourts.
59 See, for example, Palaborwa Mining Co v Cheetham (2008) 29 ILJ 306 (LAC ).
60 Shoprite Checkers v CCMA (2008) 29 ILJ 2581 (LAC ); Autozone v Dispute Resolution Centre of Motor Industry (2019) 40 ILJ 1501 (LAC ).
61 See, for example, Maepe v CCMA (2008) 29 ILJ 2189 (LAC ) and MEC for Finance, KZN v Dorkin NO (2008) 29 ILJ 1707 (LAC ) (confirmed on
appeal: Ntshangase v MEC for Finance, KZN (2009) 30 ILJ 2653 (SC A)).
62 (2008) 29 ILJ 614 (LAC ); (2009) 30 ILJ 2642 (SC A).
63 See Anglo Platinum (Bafokeng Rasemone Mine) v De Beer (2015) 36 ILJ 1453 (LAC ); DHA v Ndlovu (2014) 35 ILJ 3340 (LAC ); Woolworths v
Mabija (2016) 37 ILJ 1380 (LAC ); Autozone v Dispute Resolution Centre of Motor Industry (2019) 40 ILJ 1501 (LAC ); Easi Access Rental v CCMA (2016)
37 ILJ 1419 (LC ).
64 (2016) 37 ILJ 1380 (LAC ).
65 See also Theewaterskloof Municipality v SALGBC (Western Cape Division) (2010) 31 ILJ 2475 (LC ).
66 (2011) 32 ILJ 972 (LC ).
67 (2019) 40 ILJ 2505 (LAC ).
68 See, for example, Changula v Bell Equipment (1992) 13 ILJ 101 (LAC ); SACTWU v Martin Johnson (1993) 14 ILJ 1033 (LAC ).
69 SA Yster, Staal- en Verwante Nywerhede Unie v ASEA Electric SA (1988) 9 ILJ 463 (IC ). On the principles to be applied in the interpretation of
disciplinary codes, see SACCAWU and Pick ’n Pay Hypermarket (Northgate) (2004) 25 ILJ 1820 (ARB).
70 The notion of ‘progressive’ or corrective discipline is discussed in Lawrence v I Kuper & Co t/a Kupers – A member of Investec (1994) 15 ILJ
1140 (IC ).
71 Item 3(2).
72 [1999] 11 BALR 1327 (IMSSA).
73 (2000) 21 ILJ 1051 (LAC ) at 1058F–G.
74 See Consani Engineering v CCMA (2004) 25 ILJ 1707 (LC ) at [21].
75 See NUMSA obo Davids / Bosal Africa [1999] 11 BALR 1327 (IMSSA) at [13].
76 Discussed above.
77 See, for example, Korsten v Macsteel [1996] 8 BLLR 1015 (IC ). The same question is also asked when a dismissal is ruled unfair and the court
or arbitrator considers whether reinstatement is ‘reasonably practicable’ or ‘intolerable’, as required by s 193(2) of the LRA (discussed in C hapter 24).
78 See, for example, Anglo American Farms t/a Boschendal Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC ).
79 Pitcher assisted by the Western Cape Omnibus & Salaried Staff Union v Golden Arrow Bus Service (1995) 16 ILJ 1201 (IC ).
80 Matheus v Cycsad Engineering (1993) 2 LC D 307 (IC ).
81 De Beers Consolidated Mines (Venetia Mine) v NUM (2020) 41 ILJ 884 (LAC ); DHA v Ndlovu (2014) 35 ILJ 3340 (LAC ).
82 Item 3(3).
83 See C hapter 9.
84 See, for example, Consani Engineering v CCMA (2004) 25 ILJ 1707 (LC ) (employee attempting to remove roll of scrapped tape to seal his shack
against inclement weather).
85 Item 3(3).
86 NUM v Amcoal Colliery t/a Arnot Colliery (2000) 5 LLD 226 (LAC ); Afrisix t/a Afri Services v Wabile NO (2014) 35 ILJ 668 (LC ).
87 NUM obo Selemela v Northam Platinum (2013) 34 ILJ 3118 (LAC ).
88 Great significance was given to the absence of previous disciplinary offences by the employee in Sidumo supra. However, the weight given to
the employee’s disciplinary record must always be weighed up against the gravity of the misconduct. Sidumo suggests that not even a clean record will
assist a dishonest employee.
89 See, for example, Cholota v Trek Engineering (1992) 13 ILJ 219 (IC ) – final warning for fighting irrelevant to later participation in illegal strike;
CCAWUSA v Wooltru t/a Woolworths (Randburg) (1989) 10 ILJ 311 (IC ) – final warning for insolence not relevant to later acts of insubordination; NUM v
Transvaal Navigation Collieries and Estate Co (1986) 7 ILJ 393 (IC ) – warning for participation in illegal strike not relevant to subsequent absenteeism
nor relevant to industrial action.
90 NUM v East Rand Proprietary Mines (1987) 8 ILJ 315 (IC ). In CWIU v AECI Paints (Natal) (1988) 9 ILJ 1046 (IC ) it was held that the period of
currency of warnings should be related to the gravity of the offence, but that they should not generally remain valid for more than a year.
91 NUM v East Rand Proprietary Mines supra.
92 (2000) 21 ILJ 1232 (LC ).
93 Gcwensha v CCMA (2006) 27 ILJ 927 (LAC ).
94 See NUM v Amcoal Colliery t/a Arnot Colliery (2000) 5 LLD 226 (LAC ).
95 The normal practice when warnings are issued is to request the employee to sign an acknowledgement of its receipt, or to request a witness to
sign if the employee refuses to do so. In the light of this point, it might also be wise to record that the employee has been informed of his right to appeal
or to file a grievance in respect of the warning. See in this regard Changula v Bell Equipment (1992) 13 ILJ 101 (LAC ), in which the court found that the
final written warning that had been issued to the employee before his dismissal had been unjustified, and that the dismissal was therefore unfair. See
also Nodlele v Mount Nelson Hotel (1984) 5 ILJ 216 (IC ): ‘The nature and seriousness of the breaches committed by the employee must be investigated
and considered. The investigation of the facts and circumstances surrounding the latest incident may show that it is of so little consequence that it,
together with previous incidents, would not justify a reasonable employer in terminating the services of the applicant.’ See further ACTWUSA v JM
Jacobsohn (1990) 11 ILJ 107 (IC ) and Rampersad v BB Bread (1986) 7 ILJ 367 (IC ), in which the employers dismissed the employees on the strength of
final warnings which were being appealed against at the time.
96 See, for example, CCAWUSA v Wooltru t/a Woolworths (Randburg) (1989) 10 ILJ 311 (IC ); Cholota v Trek Engineering (1992) 13 ILJ 219 (IC ).
97 (2000) 21 ILJ 1051 (LAC ).
98 ABC Powertech Transformers v Centre for Dispute Resolution, MEIBC (2007) 28 ILJ 1232 (LC ). Strangely, the observations in De Beers appear
not to have been considered by the C onstitutional C ourt in its judgment in Sidumo v Rustenburg Platinum Mines (2007) 28 ILJ 2405 (C C ). The employee
in that case, a security guard who had failed to search employees in a high-security area of a platinum mine which had been plagued with theft, had
shown no remorse for his misconduct. Yet the commissioner was found to have justifiably reinstated the guard.
99 Item 8. See C hapter 14.
100 See Alpha Plant & Services v Simmonds (2001) 22 ILJ 359 (LAC ). The court observed: ‘It seems to me that the intention of s 189 is to ensure
that when retrenchment occurs employees are treated with real kindness, consideration and concern. The employment relationship gives rise to a mutual
duty of loyalty. The longer the relationship the greater the duty. And of course, loyalty ought to result in treatment enthused with kindness, consideration
and concern. It seems to me to follow that the shorter the employment relationship the less the bond of loyalty. Thus a relatively short employment
relationship renders a breach of s 189 less serious than it would otherwise have been.’
101 De Beers Consolidated Mines v CCMA (2000) 21 ILJ 1051 (LAC ).
102 See De Beers Consolidated Mines supra at [25]. Although the LAC observed in Palaborwa Mining Co v Cheetham (2008) 29 ILJ 306 (LAC ) that
the award in De Beers could not, in the light of the C onstitutional C ourt’s ruling in Sidumo v Rustenburg Platinum Mines (2007) 28 ILJ 2405 (C C ), have
been interfered with, it does not follow that the guidelines set by the LAC are now irrelevant. De Beers remains a useful guideline for commissioners
when they decide whether a dismissal for proven misconduct is fair.
103 Paarl Coldset v Singh (2022) 43 ILJ 2010 (LAC ).
Dismissal / Chapter 9 Specific forms of misconduct
Chapter 9
Specific forms of misconduct
4th Ed, 2022, ch 9-p 198
1. Introduction
4. Assault
5. Intimidation
9. Dishonesty
11. Drug use
13. Fraud
15.1 Insolence
17. Harassment
19. Theft
1. Introduction
The general principles relating to the assessment of a fair reason for dismissal for misconduct were discussed in the previous
chapter. This chapter deals with specific forms of workplace misconduct, although the forms discussed are not intended to,
4th Ed, 2022, ch 9-p 199
and cannot be exhaustive. Nor is it the intention to suggest that when an employee commits one of the offences described,
dismissal should automatically follow. As emphasised in the previous chapter, each case must be decided on its own facts, and the
general principles for assessing whether dismissal is appropriate should be applied in all cases. However, the various forms of
dismissal discussed below raise specific issues which should be borne in mind in each case according to its class.

Employees have a fundamental duty to render service, and their employers have a commensurate right to expect them to do so. A
basic element of this duty is that employees are expected to be at their workplace during working hours unless they have an
adequate reason to be absent.
Under the common law, an employee is required to render service during agreed hours of work. Wilful absence from work
constitutes a breach of contract and may justify summary termination. Even absence for reasons beyond the employee’s control
may constitute a ground for termination when the period of absence becomes unreasonable. However, an employer is not entitled
to dismiss an employee summarily for a trifling absence which causes little or no prejudice to the employer. 1
In modern labour law, a distinction is usually drawn between absenteeism, ‘abscondment’ and/or desertion. Absenteeism, in turn,
can be divided into late-coming, absences from an employee’s workstation, and absences from the workplace itself for short
periods. ‘Abscondment’ is said to have occurred when employees are absent from work for a time that warrants the inference that
they do not intend to return to work; ‘desertion’ when employees have intimated expressly or by implication that they do not intend
to return to work. 2
Other things being equal, the longer the period of absence, the more justified an employer will be in terminating the contract.
Brief absences from work rarely warrant dismissal at first instance, unless the employee has by absenting him- or herself committed
some other act of misconduct, such as insubordination or participation in an unlawful strike, or where there is no indication that the
employee is suffering from a chronic illness. 3
Disciplinary codes normally treat absenteeism on a graduated scale when it comes to penalties: on the first occasion, the
employee is issued with a verbal warning, or counselled; on the second, the employee is given a written warning; on the third, a
final written warning. Dismissal is normally justified only if employees fail to heed
4th Ed, 2022, ch 9-p 200
final warnings, but even then the employer must still prove that the final absence did in fact amount to absenteeism.
The elements of the offence of absenteeism are that the employee must have been absent from work at a time when the
employee was contractually obliged to render service, and that the employee had no reasonable excuse for his or her absence.
Some disciplinary codes add a further element to the offence: employees must have failed to inform the employer immediately of
the reason for their absence.
While absenteeism usually entails the complete physical absence of employees from the workplace, it can also occur if employees
are at the workplace but not at their actual workstations. Absenteeism is obviously more difficult to prove in the case of
employees, such as sales representatives, who do not have fixed workplaces or working hours. A salesperson’s failure to keep
appointments with clients may in these circumstances be treated as absenteeism.
The duty to render service can also be breached if the employee is physically present but mentally ‘absent’. Sleeping on duty
provides one example of mental absence. 4
Employees cannot be guilty of absenteeism at times when they are not contractually obliged to render service. Those on annual,
sick or maternity leave are entitled to remain away from work for the duration of the leave period, unless it becomes apparent that
an employee is abusing that leave and the employer instructs the employee to return. 5 An employee was held to have abused sick
leave by attending a rugby match while on paid sick leave. 6
Failure to report for overtime is a more difficult issue. Employees cannot be compelled to work overtime without their consent,
unless there is an obligation to work overtime arising from a contract, collective agreement or practice. 7 It follows that employees
cannot be guilty of absenteeism for failing to report for overtime duty unless there is such an obligation. 8
An onus rests on employees to explain their absence. 9 Possible excuses are infinite. It is therefore not possible to lay down a
watertight test for establishing whether a particular excuse is ‘adequate’. Generally, where employees are charged with
absenteeism, an explanation for an absence will be adequate if employees can prove that the reason was beyond their control. 10
Like all offences, absenteeism requires fault on the part of the perpetrator. Employees absent because they are seriously ill or in a
coma, or in jail, or because public transport failed to arrive,
4th Ed, 2022, ch 9-p 201
cannot normally be said to be at fault. 11 But if the employees could have informed the employer of the reason for his absence, he
may still be dismissed. 12 Some disciplinary codes provide that employees may be dismissed after a given number of absences,
irrespective of the reasons. Repeated absences without fault should be treated as cases in incapacity.
Employees who fail to contact their employers during their absence, if they can do so, may find it difficult to persuade their
employers – or arbitrators – that they had good reason to be away. Employees who stay away from work despite an express
instruction to report for duty may find it even more difficult to justify their absence and may also be charged with
insubordination. 13 But there are limits to that rule; employees may have compelling reasons to absent themselves from work even
though they have been told they may not take leave. 14
The dividing line between absenteeism and abscondment or desertion is flexible. Many disciplinary codes prescribe that a number
of days – usually five or seven continuous working days – must elapse before an employee is guilty of absconding. Some codes and
legislation provide that when the prescribed time expires, the employee will be ‘deemed’ to have absconded, or to have ‘dismissed
himself’. 15 This approach is legally incorrect; employees are deemed to have deserted only when it is proved that they have
formed an intention not to resume work. In such circumstances, it is the employer that terminates the employment contract by
accepting the employee’s repudiation. 16 On this approach, abscondment or desertion remains a disciplinary offence, and the
employees concerned retain the procedural right to present their cases if the assumption that the employee intended to abandon
the contract turns out to be incorrect. Employees accused of absconding are therefore entitled to be heard before their contracts
are terminated, provided that the employer is aware of the employees’ whereabouts and the employees wish to present their
cases. 17 However, employees are not entitled to be heard when finally they can be deemed to have deserted in the true sense of
that word, at least until they return. 18
In one case, 19 the Labour Court held that it is permissible to dismiss an absconded employee on the assumption that he does
not intend to return to work, provided that the dismissal is not final and can be reversed if the employee returns and
4th Ed, 2022, ch 9-p 202
provides a satisfactory explanation for the absence. This is allowed after ‘deemed dismissals’ effected under legislation. But whether
such ‘conditional’ dismissals are permissible in the private sector remains debatable.
1 Schneier & London v Bennett 1927 TPD 346; Negro v Continental Spinning & Knitting Mills 1954 (2) SA 203 (W). Under the common law the
employer was once entitled to dismiss an employee on notice for this or any other reason.
2 See Okhahlamba Local Municipality v Mabuya (2022) 43 ILJ 198 (LC ). There is some linguistic confusion here: according to the Oxford English
Dictionary, to abscond is to ‘leave secretly’; to desert is to ‘abandon something one is bound to do’. Literally, then, desertion takes place when an
employee declines to carry out an instruction to do something particular. An inference that the employee intends never to resume work does not
necessarily arise.
3 See Pahlana v PetroSA (2022) 43 ILJ 212 (LC ).
4 See, for example, CWIU v Boardman Brothers (Natal) (1995) 16 ILJ 619 (LAC ); Sibisi v Gelvenor Textiles (1985) 6 ILJ 122 (IC ).
5 See Rand Mutual and NUM (1990) ARB 8.17.8 in which the employee was gadding about while on sick leave. The same applied to 42 employees
who took an extended long weekend and submitted sick certificates to justify their absence. In NUMSA v Kaefer Energy Projects (2022) 43 ILJ 181 (LC ),
the court declined to accept the certificates without affidavits from the doctors attesting to their authenticity and concluded that the coincidental mass
contagion was a cover-up for a strike.
6 Woolworths v CCMA (2022) 43 ILJ 839 (LAC ).
7 BC EA s 10(1).
8 NUMSA v Steloy Stainless Precision Casting [1995] 7 BLLR 87 (IC ).
9 MAWU and Horizon Engineering (1989) 10 ILJ 782 (ARB).
10 Thus, in Ndlovu v Supercare Cleaning (1995) 4 LCD 338 (IC ), the dismissal of a security guard for being absent from his post was ruled unfair
because he was attending to other duties at the time.
11 Mambalu v AECI Explosives (Zomerveld) (1995) 16 ILJ 960 (IC ). In this case, the court held that an employer is entitled in these circumstances
to dismiss the employee for operational reasons, but must consult the employee before doing so. But see NUM v Samancor (Tubatse
Ferrochrome) (2011) 32 ILJ 1618 (SC A).
12 Glencore Operations SA v CCMA (2021) 42 ILJ 2446 (LC ).
13 See, for example, Glencore supra; Mkhele v SAB (1991) 12 ILJ 900 (IC ).
14 See, for example, Kievits Kroon Country Estate v Mmoledi (2012) 33 ILJ 2812 (LAC ); AMCU v Northam Platinum (2018) 39 ILJ 2692 (LC ).
15 See s 17(3)(a)(i) of the Public Service Act; Ntabeni v MEC for Education, Eastern Cape (2001) 22 ILJ 2619 (Tk); MEC, Public Works, Northern
Province v CCMA (2003) 24 ILJ 2155 (LC ); HOSPERSA v MEC for Health (2003) 24 ILJ 2320 (LC ). ‘Deemed dismissals’ are discussed in C hapter 4.
16 Seabolo / Belgravia Hotel [1997] 6 BLLR 829 (C C MA); Naidoo v La Mercy Beach Hotel [1996] 1 BLLR 98 (IC ); SABC v CCMA (2001) 22 ILJ 487
(LC ); SACWU v Dyasi [2001] 7 BLLR 731 (LAC ).
17 SABC v CCMA (2001) 22 ILJ 487 (LC ), SACWU v Dyasi [2001] 7 BLLR 731 (LAC ) and HOSPERSA v MEC for Health (2003) 24 ILJ 2320 (LC ).
18 Tubatse Chrome v MEIBC (2013) 34 ILJ 2333 (LC ).
19 Mpact v NBCWPS (2013) 34 ILJ 2266 (LC ).

While it is accepted that the workplace is not a finishing school, there are limits to the language which employees are permitted to
use to express their views or emotions. Swearing and invective are generally considered misconduct, which may in certain cases
justify dismissal, even on the first occasion. This is especially so when employees use abusive words or phrases that impair the
dignity and reasonable sensibilities of those against whom they are directed, or in whose presence they are uttered. The use by an
employee of abusive language in the workplace impacts on the individual employment relationship and also on the employer’s
business interests.
When such language is addressed to a superior, the employee’s conduct may also amount to insolence or insubordination (see
below). Abusive language directed at colleagues or subordinates may create ill-feeling which impairs labour relations.
Whether language is deemed abusive will depend to a certain extent on the circumstances and practice in the particular
workplace. There is a parallel between the offence of using abusive language, on the one hand, and the delict of injuria and the
offence of crimen injuria, on the other hand. A civil or criminal court considers the nature of the language and its subjective impact
on the person to whom it is addressed; a presiding officer or arbitrator should also consider the circumstances in which the
language was used, the degree to which it is likely to impair labour relations, whether the words were uttered spontaneously or
with malice, and other relevant factors. A record of abusive utterances by the employee concerned may also indicate that the
employee tends to indulge in this conduct. Swearing is less likely to warrant dismissal where bad language is frequently used in the
workplace. 20
When abusive language is racist or sexist, the courts and arbitrators have generally shown little sympathy for the offending
employee. This conduct may overlap with the offence of harassment (see below). Even if a single remark cannot be said to amount
to harassment per se, remarks or conduct with racist or sexist undertones are regarded as particularly serious, not only because
they are offensive in themselves, but also because they may jeopardise harmonious labour relations. 21
What may or may not be offensive is a matter that depends on a range of factors. Calling colleagues ‘baboons’ or referring to
them with the ‘k-word’ is beyond the pale. 22 The same applies to anti-Semitic comments. 23 Employees who have been
4th Ed, 2022, ch 9-p 203
fired for expressing themselves in this manner cannot rely on their right to free speech, 24 even if they are not the authors of the
comments. 25
The use of the word ‘monkey’ to describe a black person is regarded to be as insulting as the ‘k-word’, even if the targets of the
remark are politicians. Ms Cantamessa fell into the trap of using this word when, overcome with rage at former President Zuma’s
swift changes of Finance Minister in 2015, she posted a message on her Facebook page which unambiguously expressed her
feelings. It read: ‘Watching Carte Blanche and listening to these fucking stupid monkeys running our country and how everyone
makes excuses for that stupid man we have to call a president . . . President my fucking ass! #zumamustfall! This makes me crazy
ass mad.’ Nothing might have come of this intemperate post, except for the fact that Cantamessa’s page identified her as an Edcon
fashion buyer. Edcon was oblivious to the message because Cantamessa had sent it from her own computer while on holiday. But
the company was alerted by a complaint which also went viral and was ultimately picked up by a newspaper which published an
article headed ‘Racist monkey slur strikes again’. Cantamessa was dismissed, but reinstated by a CCMA commissioner. 26 Edcon
took the award on review. In Edcon v Cantamessa, 27 the court accepted that Cantamessa having been off duty and outside the
workplace when the post was created, did not preclude Edcon from disciplining her. The main issue was to determine the
connection between the misconduct and the employer’s business, which undoubtedly had been detrimental. Moreover, the use of
the word ‘monkeys’ was offensive to all black people because the government of the day was largely made up of blacks.
Cantamessa’s constitutional right to free speech did not entitle her to resort to racial slurs to vent her anger against the
government. The award was set aside and replaced with an order declaring that the dismissal was substantively fair.
On occasion, however, South Africans may overreact to expressions they perceive as racist, but in other contexts are quite
innocuous. An arbitrator found that an employer did so when he fired a shop steward for informing HR that workers thought the MD
was a racist. Both the Labour Court and the LAC agreed with the arbitrator that this was a knee-jerk reaction and that the
dismissal was substantively unfair. 28
In Carter v CCMA, 29 the applicant employee was dismissed for allegedly calling a colleague a monkey and accusing him of
‘wanting to act lily white’. Mr Carter
4th Ed, 2022, ch 9-p 204
claimed that he had said the colleague was ‘monkeying around’ and that the reference to the expression ‘lily white’ was to his
professed innocence. The respondent employer, Telkom, did not accept Carter’s claim, and dismissed him after 30 years’ service. A
CCMA commissioner refused to condone Carter’s late referral on the ground that there were no prospects of success. On review of
that decision, the court noted that any standard dictionary indicates that the expressions ‘monkey around’ and ‘lily white’ are
devoid of racist connotation. The commissioner appeared to have closed her mind to the possibility that an innocent interpretation
might be placed on Carter’s utterances. The court condoned the late filing of the dispute, but the final outcome has not been
reported.
Whether merely describing a person by colour is necessarily racist was the subject of prolonged litigation after Mr Bester, a
senior trainee officer, complained that somebody was parking a large 4x4 in the bay next to his own, making it difficult for him to
get into his bay. He was dismissed on the grounds of insubordination and making a racist remark by using the word ‘swartman’
(black man) after he had stormed into a meeting and demanded that the officer responsible for allocating parking bays to staff
‘verwyder daardie swartman se voertuig’ (‘remove that black man’s vehicle’). A CCMA commissioner ruled the dismissal unfair, and
reinstated Bester. On review, the Labour Court held that the use of the term ‘swartman’ was ‘imbued with ideological baggage’ and
that there was no conceivable reason why Bester should have used a derogatory and racist expression. The award was set aside.
But the LAC took a different view. 30 It held that to identify people by their race is not in itself pejorative, even if the person
referred to or those present are offended. The test was whether on the probabilities Bester had intended to use the term in a
derogatory and offensive manner. He may have been angry about the parking situation. But his objective was to resolve it. He did
not know the ‘culprit’s’ name. The mere fact that the employee was white and the owner of the offending vehicle happened to be
black was insufficient to warrant the inference that the employee intended to offend. The incident itself had nothing to do with
race.
On further appeal, 31 the highest court found the LAC’s remark that the term ‘swartman’ was presumptively neutral ‘startling’.
Such an approach risked making the dominant racist views of the past the starting point of an objective inquiry into whether a term
is derogatory. The LAC’s approach had sanitised the context in which the words were used. Viewed against the country’s past, the
use of the term ‘swartman’ was racially charged and derogatory. The court accepted that not every reference to race is a product
of racism or warrants legal sanction, but this case was different. The commissioner had correctly ruled the sanction of dismissal
appropriate.
The race of the target of the abusive expression is immaterial; so the dismissal of a black worker for calling a white colleague a
‘dutchman’ was ruled fair. 32 So too was the dismissal of a black employee for uttering the words ‘I hate white people’
4th Ed, 2022, ch 9-p 205
to a white colleague, 33 another for exclaiming ‘we need to get rid of all whites’ at a staff meeting, 34 another for accusing his
(coloured) superior of racism for giving him poor assessments, 35 and yet another (a police officer) for saying that he ‘hated whites’
and would ‘commit a genocide against them’. 36
That the victim subsequently forgave the perpetrator is also not necessarily relevant if the abuse occurred in a location where
customers overheard the remark. 37 However, in exceptional circumstances, the perpetrator’s frame of mind may be relevant –
where, for example, it indicates that the remark was made in jest and was ill-considered. 38
Racist attitudes can also be expressed indirectly. Such was the case in Cannon and Sappi Saicor, 39 in which Mr Cannon, the
company’s training manager, was dismissed for answering in the affirmative the question whether he had ‘a problem’ with the fact
that the newly appointed HR manager was black. The arbitrating commissioner held that the dismissal was fair.
The case law on racist conduct and comments indicates that the courts and arbitrators have followed the cue given by the LAC
in Crown Chickens t/a Rocklands Poultry v Kapp, 40 and adopted a ‘zero tolerance’ approach to any conduct or comments with
racist connotations.
The courts have adopted a more tolerant approach where the circumstances indicate that the employee did not intend to play
the race card. In Madlala v Nampak Sacks, 41 it was held that a shop steward’s comment that a presiding officers’ admonition,
because he had arrived late at a disciplinary hearing, ‘makes me view you as a racist’ could possibly be defended if it was justified,
or if the employee genuinely held that perception. 42 The SCA has also warned against jumping to the conclusion that merely
because employees of different colour are treated differently the employer is guilty of racism. 43
4th Ed, 2022, ch 9-p 206
The courts and arbitrators have held in several cases that accusing somebody of being a racist has been regarded to be as
serious as expressing racist views. 44 But much depends on whether the accusation actually amounts to one of racism.
That issue was subject to intense judicial scrutiny by the highest court in Duncanmec v Gaylard NO. 45 During an unprotected
strike, strikers danced and sang a song with the refrain in isiZulu: ‘Climb on top of the roof and tell them that my mother is rejoicing
when we hit the boer.’ An external presiding officer issued the workers with a final written warning for engaging in the strike but
dismissed eight of them for singing the song or dancing along with it, which he found amounted to racist conduct and hate speech.
A bargaining council arbitrator agreed that the singing of the song was inappropriate, but found that it did not amount to racism.
Moreover, the strike had been peaceful and relatively brief and no evidence had been led to prove that the employment relationship
had broken down. The employees were reinstated on final warning, with back pay limited to three months. The Labour Court
dismissed the company’s review application and refused leave to appeal, and the LAC dismissed a petition for leave to appeal.
The unanimous Constitutional Court noted that the company’s objections to the lyrics of the song centred on the word ‘boer’.
Depending on the context this means either ‘farmer’ or ‘white person’. Duncanmec had conceded that neither of these senses of
the word was racially offensive. But the company argued that the context rendered the words offensive to those who had heard it.
NUMSA had also conceded that the words were inappropriate and offensive in the circumstances. The court therefore approached
the matter on the assumption that the employees were guilty of racially offensive conduct, but was satisfied with the arbitrator’s
finding that the evidence did not support the view that the trust relationship had broken down. Some of the factors the company
accused the arbitrator of overlooking were irrelevant. The company had said the workers were dishonest; but dishonesty had no
bearing on the issue. The disciplinary code did not prohibit the singing of struggle songs. The company could not accuse the
arbitrator of being ‘soft on racism’ because she had merely found the song inappropriate. The court then latched onto the escape
clause in SARS v CCMA, 46 in which the court has accepted that dismissal for racist conduct of even the most egregious kind did
not follow as a matter of course. The context was also important: the song had been sung during a strike which was ‘peaceful and
short-lived’ and the employees all had clean disciplinary records. The appeal failed.
The ‘parity principle’ applies also in cases involving use of racist expressions. 47 In Chetty v Toyota SA, 48 the applicant
employee was dismissed for distributing a racially offensive e-mail on the company intranet. The dismissal was upheld by a CCMA
commissioner. The award was set aside on review because the commissioner had ignored three comparable or even worse cases (in
one a black supervisor had
4th Ed, 2022, ch 9-p 207
called a worker a ‘baboon’) in which the offenders had all been given final written warnings.
20 Lithotech Manufacturing Cape (a Division of Bidpaper Plus) v Statutory Council for the Newspaper, Printing & Packaging Industry (2010) 31 ILJ
1425 (LC ).
21 See in this regard the remarks of Zondo JP in Crown Chickens t/a Rocklands Poultry v Kapp (2002) 23 ILJ 863 (LAC ), in which the court made it
clear that the use of racially derogatory terms would never be tolerated.
22 SARS v CCMA (2017) 38 ILJ 97 (C C ). See also SAB v Hansen (2017) 38 ILJ 1766 (LAC ) and National Commissioner of the SAPS v Nienaber
NO (2017) 38 ILJ 1859 (LC ).
23 Dauth and Brown & Weir’s Cash & Carry (2002) 23 ILJ 1472 (C C MA).
24 SATAWU obo Collins / Spoornet [2002] 8 BALR 825 (AMSSA).
25 The applicant employee in Cronje v CCMA (2002) 23 ILJ 1563 (LC ) was dismissed for circulating a cartoon that depicted the president of
Zimbabwe, Robert Mugabe, as a gorilla. Mr C ronje said he had received the cartoon on the company e-mail. It was attached to a petition to President
Mbeki calling for his intervention in the Zimbabwe crisis. The commissioner rejected C ronje’s claims that he did not regard the cartoon as racist, that he
was being victimised for his position as president of a trade union, and that he thought the cartoon depicted Mugabe merely as the head of a ‘banana
republic’. According to the commissioner, the stereotyping of blacks as primates was deeply offensive to all black people. The company had a strict rule
against the distribution of offensive e-mails and other communications, and C ronje was aware of that rule. An attempt to review the award was
unsuccessful.
26 See Cantamessa and Edcon Group (2017) 38 ILJ 1909 (C C MA).
27 (2020) 41 ILJ 195 (LC ).
28 VSB Construction t/a Techni-Civils v NUM obo Mngqola (2021) 42 ILJ 2407 (LAC ).
29 (2010) 31 ILJ 2876 (LC ).
30 SAEWA obo Bester v Rustenburg Platinum Mine (2017) 38 ILJ 1779 (LAC ).
31 Rustenburg Platinum Mine v SAEWA obo Bester (2018) 39 ILJ 1503 (C C ).
32 Oerlikon Electrodes SA v CCMA (2003) 24 ILJ 2188 (LC ).
33 NUM v CCMA (2010) 31 ILJ 703 (LC ). See also SACCAWU obo Sikhundla and Radisson Blu Hotel Waterfront (2010) 31 ILJ 1500 (C C MA) (black
employee describing hotel as ‘laager of discrimination’).
34 Modikwa Mining Personnel Services v CCMA (2013) 34 ILJ 373 (LC ).
35 Legal Aid SA v Mayisela (2019) 40 ILJ 1526 (LAC ).
36 Dagane v SSSBC (2018) 39 ILJ 1592 (LC ). See also City of Cape Town v Freddie (2016) 37 ILJ 1364 (LAC ).
37 CEPPWAWU obo Evans and Poly Oak (2003) 24 ILJ 2204 (BC A).
38 Myers and SAPS (2003) 24 ILJ 2212 (BC A).
39 (2004) 25 ILJ 597 (C C MA). See also SACWU v NCP Chlorchem (2007) 28 ILJ 1308 (LC ), in which the court found that a false accusation of
racism against a colleague was as serious as direct racism.
40 (2002) 23 ILJ 863 (LAC ). In that case, an employee had been dismissed because he had callously remarked when a black colleague lay injured:
‘Los die kaffer – laat vrek.’ The LAC showed no sympathy with him. However, the same court warned in SARS v CCMA (2016) 37 ILJ 655 (LAC ) against
interpreting Crown Chickens laying down a rule that racist comments may be visited with dismissal without regard to other principles of labour law, such
as compliance with a disciplinary code or the parity principle: see Chetty v Toyota SA [2011] 8 BLLR 735 (LC ). As with any other form of misconduct,
allegations that a person has uttered a racist remark must be proved: see, for example, SAB v Hansen [2016] 5 BLLR 516 (LC ). However, in the SARS
case the C onstitutional C ourt came close in the final appeal to suggesting that racists will have a difficult time justifying their conduct in any
circumstances: see SARS v CCMA (2016) 37 ILJ 655 (LAC ).
41 [2008] 3 BLLR 267 (LC ).
42 For a criticism of the ‘zero tolerance’ approach to racist comments in the workplace, see Thabane & Rycroft ‘Racism in the workplace’ (2008) 29
ILJ 43.
43 In Raol Investments t/a Thekwini Toyota v Madala (2008) 29 ILJ 267 (SC A).
44 See SACWU v NCP Chlorchem (2007) 28 ILJ 1308 (LC ); Vodacom v Gilde (2008) 29 ILJ 1762 (LC ).
45 (2018) 39 ILJ 2633 (C C ).
46 (2017) 38 ILJ 97 (C C ), discussed above.
47 The parity principle is discussed in C hapter 8.
48 [2011] 8 BLLR 735 (LC ).
4. Assault
Assault is generally accepted as a valid ground to dismiss the assailant. As in criminal law, the offence of assault in the workplace
has three elements: the commission of the prohibited conduct itself, knowledge of wrongfulness (or fault), and unlawfulness. Like
verbal abuse, assault can take many forms. The legal requirements for the offence are the intentional and unlawful application of
physical force, however slight, 49 to the body of the complainant, or the threat that such force will be applied.
Assault does not require the actual use of force by the assailant. A store manager who locked workers in a cold room as a
disciplinary measure was held to be guilty of assault, and his dismissal to be justified, even though he had not laid a hand on his
victims. 50
A threat of force will also suffice. In Adcock Ingram Critical Care v CCMA, 51 the employee concerned, a shop steward, informed
management at the outset of a meeting held after a violent strike: ‘You can treat this as a threat – there will be more blood on
your hands.’ Although a CCMA commissioner and the Labour Court both held that these words did not amount to assault or
intimidation, the LAC held otherwise.
That the assault must be unlawful generally means that the assailant was not acting in self-defence or that he or she was
provoked by the other party. Consent by the complainant may in certain circumstances render an ‘assault’ lawful. In addition, the
assailant must have been aware at the time that the act was unlawful. If the employees concerned believe that they were entitled
to make physical contact with the complainants, either because the complainant consented or because the employee believed that
he or she was acting in self-defence or in defence of his or her property, the requisite intention is lacking and the employee is not
guilty of an offence. 52
The pleas of self-defence and provocation will succeed only if the retaliation was proportional to the attack or insult. 53 The
onus of proving a plea of self-defence rests on the employee who seeks to rely on it. 54
Employers frequently distinguish between assault, ‘fighting’ and ‘horseplay’. All these offences involve some form of physical
contact between two or more persons. When an employee exchanges blows with a colleague, both may be guilty of assault, except
if one was acting in self-defence.
4th Ed, 2022, ch 9-p 208
Provocation negates unlawfulness if accused employees were subject to taunts that caused them momentarily to lose control. A
defence of provocation will not succeed if the person provoked brooded over the insult and if the subsequent assault was a
calculated act of revenge or if it was possible to walk away without retaliating. 55 However, depending on the circumstances,
provocation may serve to mitigate the gravity of an assault, even when the assault was unlawful. 56
In the employment context, factors that should be considered before imposing a sanction on an employee for a proven assault
include the circumstances in which the assault took place, the degree of force used or the gravity of the threat, the relationship
between the employee and the complainant, 57 and the effect of the assault on interpersonal relations and the business of the
employer. Genuine remorse by the employee may serve to mitigate the gravity of the offence. 58 Assaults by employees on their
superiors are regarded in a particularly serious light, as an intention to repudiate the employer’s authority may be inferred. 59 On
the other hand, where the employer’s manager had taunted his assailant with racist remarks, dismissal was held inappropriate. 60
If only one of two or more employees involved in a fight is dismissed, the dismissal may be considered unfair if there were
inadequate grounds to distinguish between the two. 61 In cases of mass violence, it may be difficult to identify more than a few of
the actual assailants. In such cases, the courts have resorted to the doctrine of ‘common purpose’ to spread liability to those who
acted in support of the assailants. 62
49 Although the de minimis non curat lex principle clearly applies.

50 Abrahams v Pick ’n Pay Supermarkets (OFS) (1993) 14 ILJ 729 (IC ).
51 (2001) 22 ILJ 1799 (LAC ).
52 For a thorough analysis of the requirements of self-defence, see Clarence v National Commissioner of the SAPS (2011) 32 ILJ 2927 (LAC ). In
that case, the employee was charged with murdering a colleague. See also SAPS v POPCRU obo Mmatli (2021) 42 ILJ 358 (LAC ).
53 Provocation may also serve as a mitigating factor.
54 Teeney v Hullett Aluminium (1995) 4 LCD 121 (IC ).
55 See Horn v Beesnaar NO (2022) 43 ILJ 115 (LAC ).
56 See, for example, NUM v Kloof Gold Mining Co (1986) 7 ILJ 375 (IC ), in which the alleged assailant was reinstated. But in NMBMM v IMATU obo
Tshabalala (2019) 40 ILJ 1021 (LAC ), the appellant failed to persuade the court that he was either provoked or acting in self-defence. His dismissal was
ruled fair.
57 In County Fair Foods v CCMA (1999) 20 ILJ 1701 (LAC ), the court regarded an assault by an employee on his former girlfriend as particularly
serious. The court was not prepared to countenance assault by a teacher of his pupil: see Western Cape Education Department v Baatjes (2022) 43 ILJ
1353 (LAC ).
58 In Harmony Goldmine Co v Raffee NO (2018) 39 ILJ 2017 (LC ) the court accepted as a genuine expression of remorse an offer to compensate
the victim of an assault made in accordance with Mpondomise tradition. The court held that, while employers may not be bound by cultural traditions,
they cannot simply ignore them, especially when the cultural traditions are aimed at achieving peace and are consonant with the C onstitution. Where, as
here, the perpetrator showed true remorse and was willing to promote peace with the victim in accordance with his norms and traditions, the employer
should consider this in a favourable light.
59 ECCAWUSA obo Nkosi & Vilakazi and Wimpy Kempton City (1998) 3 LLD 194 (C C MA).
60 Metrorail / SATAWU [2000] 10 BLLR 1208 (IMSSA).
61 See Cape Wrappers v Scheepers [2002] 8 BLLR 729 (LC ).
62 On the doctrine of common purpose, see C hapter 11.
5. Intimidation
Intimidation occurs when a person threatens to inflict some form of harm on another with the intention of persuading the other
person to comply with the intimidator’s will out of fear. Intimidation is in essence a form of assault (see above) and the
requirements are much the same. The threat need not be directed at a particular person; it may also be directed at members of an
identifiable group or at a person’s
4th Ed, 2022, ch 9-p 209
family or friends. 63 However, the threat must be understood as such by the person to whom it is directed and it must be
calculated to strike fear. 64
Intimidation frequently occurs when strikers threaten non-strikers to join the strike or management to comply with the strikers’
demands. 65 If the threat is carried out, intimidation shades into other forms of unlawful conduct, such as assault, murder or
malicious damage to property, discussed elsewhere. But intimidation is a ‘standalone’ offence, warranting disciplinary action or
dismissal even if not accompanied by some other unlawful act.
Intimidation is usually carried out by oral or written messages, but may take other forms, such as aggressive bodily movements
or even witchcraft. 66 It may also be subtle, such as a threat that other persons may react violently if the intimidated person does
not comply with the intimidator’s will. So, for example, the court found that a union negotiator’s comment ‘you can take this as a
threat – there will be more blood on your hands’ amounted to intimidation when uttered in negotiations during a violent strike. 67
A distinction must be drawn between legitimate demonstrations and intimidation, although the difference may be hard to detect
when demonstrators carry ‘traditional’ weapons and behave aggressively. But intimidation, once proved, is a serious offence
generally warranting dismissal on the first occasion. 68
63 Adcock Ingram Critical Care v CCMA (2001) 22 ILJ 1799 (LAC ).

64 In Solidarity obo of Kruger v Transnet (2021) 42 ILJ 852 (LAC ), the court found that a comment by a manager to an HR officer who had
informed him that he was to be charged with misconduct – that ‘when this is over, I’m coming to get you’ – was too cryptic to amount to a threat.
65 See, for example, Fulcrum Engineering v Chauke (1997) 18 ILJ 679 (LAC ); NDCAWU v Cummins Emission Solutions (2014) 35 ILJ 2222 (LC );
Mabinana v Baldwin’s Steel [1999] 5 BLLR 453 (LAC ).
66 NASARIEU obo Mngomezulu and Tongaat Hulett Sugar (2016) 37 ILJ 2441 (BC A).
67 Adcock Ingram Critical Care v CCMA (2001) 22 ILJ 1799 (LAC ).
68 See, for example, WBHO Construction v Hlatshwayo NO (2020) 41 ILJ 2144 (LAC ), in which the court warned (again) that resorting to mob
power to ventilate grievances is utterly unacceptable.

The prohibition against competition by employees with their employers has its roots in the common-law requirement that employees
must devote their time, energy and skills to furthering the interests of the employer’s business. 69 A contract of employment is
regarded as a contract uberrimae fidei – of the utmost good faith. 70 Employees act in bad faith if they compete with the business
of their employers, or obtain extra work from other employers which might detract from their own employer’s profitability or
encourage disclosure of its trade secrets. 71 The requirement of good faith is so strong that it has been held even to hold between
a labour broker’s employee and a broker’s client. 72
4th Ed, 2022, ch 9-p 210
Employees act in bad faith if they secretly place themselves in positions of conflicting interest, or make secret profits. 73 Such
competition, or even a conflict of interest in which no real competition actually results, 74 has been held on many occasions to
amount to misconduct justifying dismissal, 75 and if employees advance their own financial interests at the expense of the
employer, even if the conduct does not amount to fraud. 76 Good faith requires that the employees inform their employers if and
when potential conflicts of interest arise. 77 If the employer consents, disciplinary action may not be taken unless the employee
goes too far.
Whether there is a conflict of interest is a question of fact, which must be decided in relation to the employee’s contractual
duties and the nature of the employer’s business. Employees who work during the day as operators in factories or secretaries do
not place themselves in a conflict of interest if they work as waiters in restaurants during weekends. This is merely ‘moonlighting’,
which does not in itself give rise to a conflict of interest. For a dismissal based on ‘moonlighting’ to be fair, there must be proof of a
rule against performing outside work and that the employee was aware of that rule. 78 It is doubtful whether an employer can
place an absolute prohibition on ‘moonlighting’, unless the additional work affects the employee’s performance, or places the
employee in a conflict of interest. No conflict of interest arises where an employee has merely made plans to start a competing
business with a view to resigning when his own business is established. 79 Nor is there any conflict of interest (or indeed anything
wrong) when an employee merely makes inquiries about alternative employment during working hours. 80 However, the LAC has held
that the view that there is nothing wrong with moonlighting unless an employee’s outside activity competes with that of the
employer was too generous (to employees). A sales representative for a meat processing firm who ran her own biltong business
after hours was held to have violated her duty of good faith to her employer because biltong was a meat product. 81
If a conflict arises from an employee’s direct interest in an entity with which the employer does business, the seriousness of the
offence depends in the first instance on the degree of prejudice to the employer. If the employer suffers financial loss on account
of the employee’s conduct, the element of dishonesty renders the offence more serious and normally warrants dismissal.
Conflict of interest can arise not only when employees place themselves in positions where they owe conflicting allegiance to
their employers’ business competitors. In IMATU v Rustenburg Transitional Council, 82 the Labour Court pointed out that, although
employees are entitled to participate in the activities of trade unions, it may well be that, because of a particular employee’s
duties, such activities may place them in an untenable position vis-à-vis the employer. The court used as examples the duty of
some senior employees to conduct disciplinary inquiries or to attend bargaining sessions with unions, and warned that, when senior
4th Ed, 2022, ch 9-p 211
employees must choose between their union duties and their duties towards their employers, they must ‘tread carefully’.
A manager need not assume the position of shop steward to place himself in a conflict of interest with his employer. A self-
appointed habitual representative who boasted about outwitting his fellow managers when representing employees in disciplinary
hearings was held to have been fairly dismissed when he impolitely declined to obey his superior’s instruction to refrain from doing
so. 83
Even expressing views that conflict with the employer’s values may be regarded as a conflict of interest. An HR executive who
was dismissed after calling for the dismissal of members of the company’s board and their replacement by ‘ANC-approved’ people,
and who vehemently opposed the sale of the company’s state shares to private entities, was held to have been fairly dismissed on
this basis, as was 84 the dismissal of a manager because she had failed to disclose her close personal relationship with a candidate
while sitting on a selection panel. 85
69 See Premier Medical & Industrial v Winkler 1971 (3) SA 866 (T) at 867.
70 The nature of the fiduciary relationship between employee and employer is discussed in detail in Phillips v Fieldstone Africa (2004) 25 ILJ 1005
(SC A). A breach by employees of this fiduciary relationship also gives rise at common law to an action for damages for breach of contract or in delict.
71 See SACTWU v R Stumpfe t/a Die Lederhandler, George (1992) 13 ILJ 388 (IC ); Maubane v The African Bank (1987) 8 ILJ 517 (IC ).
72 Volvo (Southern Africa) v Yssel (2009) 30 ILJ 2333 (SC A).
73 SALSTAFF obo Van Niekerk / SAA [1999] 2 BALR 218 (IMSSA); Bosman / Pick ’n Pay Retailers [2002] 3 BALR 237 (AMSSA).
74 De Beers Consolidated Mines (Venetia Mine) v NUM (2020) 41 ILJ 884 (LAC ).
75 See, for example, Lubbers v Santech Engineering (a division of Scaw Metals) [1994] 10 BLLR 124 (IC ); FAWU obo Maleke / SAB [1998] 10 BALR
1330 (AMSSA); SALSTAFF obo Van Niekerk / SAA [1999] 2 BALR 218 (IMSSA).
76 See for example, Dell v Seton SA [2011] 9 BLLR 846 (LAC ).
77 Lubbers v Santech Engineering (a division of Scaw Metals) [1994] 10 BLLR 124 (IC ).
78 Metsimaholo Local Municipality v SALGBC [2016] 5 BLLR 435 (LAC ).
79 Steyn / Crown National [2002] 5 BALR 546 (C C MA).
80 Reynolds and Priday (2004) 25 ILJ 629 (C C MA).
81 Bakenrug Meat t/a Joostenberg Meat v CCMA (2022) 43 ILJ 1272 (LAC ).
82 (2000) 21 ILJ 377 (LC ).
83 Msunduzi Municipality v Hoskins (2017) 38 ILJ 582 (LAC ).
84 Ngutshane v Ariviakom t/a Arivia.kom (2009) 30 ILJ 2135 (LC ).
85 Coega Development Corporation v CCMA (2016) 37 ILJ 923 (LC ).
Employees are required to respect not only the authority of their employers, but also their property. If an employee wilfully
damages the property of the employer, dismissal is almost invariably justified. The justification in such cases flows more from the
employee’s malicious intent than from the actual damage caused; where intent is present, dismissal is warranted even if the
employer suffered only minor loss.
Damage to property arising from employees’ negligence has also been held to warrant disciplinary action. The test for negligence
in particular cases depends on the degree of skill that can reasonably be expected of the employees concerned, given their status
and experience. If employees knew that their neglect of duty could result in serious damage to the employer’s property, negligence
can be said to be ‘gross’. 86
Repeated lapses by employees that result in loss to the employer may also justify dismissal. 87 When negligence endangers the
safety of other employees or customers, negligence is viewed in a particularly serious light. 88 Where the employee deliberately
flouts safety regulations, dismissal has been held to be justified even when the employer suffered no loss. 89 But in other cases,
the actual or potential extent of the damage may be considered. 90
86 See, for example, Nampak Corrugated Wadeville v Khoza (1999) 20 ILJ 578 (LAC ).
87 See, for example, Kammies v Golden Arrow Bus Services (1994) 15 ILJ 1113 (IC ) (bus driver repeatedly driving recklessly or negligently).
88 NUM v Doornfontein Gold Mining Co [1994] 9 BLLR 52 (IC ) (underground team leader allowing employee to work in unsafe area).
89 NAAWU v Pretoria Precision Castings (1985) 6 ILJ 369 (IC ).
90 For a discussion of workplace negligence, see C hapter 14.

4th Ed, 2022, ch 9-p 212
The rule against the disclosure by an employee of information confidential to the employer is a variant of conflict of interest (see
above); it also flows from the common-law duty of the employee to further the employer’s business interests. Any information
gained during the course of employment may not be disclosed by employees where to do so would entail a breach of trust.
Disclosure by employees of confidential information to a competitor of the employer clearly is a clear breach of trust. However,
the duty to protect confidential information extends further. Thus, the dismissal of a union official for obtaining and distributing a
list of names of employees who had in defiance of union policy accepted a wage offer was upheld. 91
Acquiring confidential information by deceptive means may also justify dismissal. An employee who secretly left a tape recorder
in a room in which a superior was conducting a meeting concerning an assessment of her department was upheld because
clandestine electronic surveillance of private managerial meetings ‘betrays a less than honest disposition’. 92 Similarly, an employee
who used his mobile phone to take snaps of his employer’s production line with his cellphone and declined to hand the device over
when asked to do so by his supervisor was told by the Labour Court that taking photos of a production line is like copying plans of
a company’s layout and putting them in a briefcase. The other contents might be private and confidential, but the employee could
hardly maintain that his right to privacy could justify retaining the employer’s confidential information along with them. The court
found that the employee’s conduct had seriously breached the trust relationship. 93
Employees who disclose unlawful acts of their employers to authorities cannot be dismissed. 94 Whistleblowers now receive
special protection under the PDA. Dismissal of employees protected by that Act is automatically unfair. 95 But the PDA does not
give employees an open sesame to disseminate information in bad faith. 96
Refusing to disclose information in which the employer has an interest may also constitute a disciplinary offence when the
employee is under a moral obligation to disclose it. This is particularly true of the disclosure of information which might have
affected the employee’s chances of appointment or which amounts to ‘fraudulent non-disclosure’, considered below.
91 Plascon Evans Paints and SACWU (1990) ARB 8.3.3. See also Carter v Value Truck Rental (2005) 26 ILJ 711 (SE) (senior employee divulging
confidential information to liquidator).
92 Geerdts v Multichoice Africa (1998) 3 LLD 446 (LAC ).
93 NUMSA v Rafee NO (2016) 37 ILJ 2122 (LC ).
94 Jacobs v KZN Treasury (2022) 43 ILJ 1286 (LAC ).
95 See C hapter 7.
96 See, for example, Rand Water Staff Association obo Snyman and Rand Water (2001) 22 ILJ 1461 (ARB).
9. Dishonesty
‘Dishonesty’ is a generic term embracing all forms of conduct involving deception on the part of employees. In criminal law, a person
cannot be convicted of dishonest conduct unless that conduct amounts to a recognised offence. In employment law, employees
may also be judged by moral standards – a premium is placed
4th Ed, 2022, ch 9-p 213
on honesty because conduct involving moral turpitude by employees damages the trust relationship on which the contract is
founded. 97 Dishonest conduct need not meet the requirements of a particular criminal offence. 98
‘Dishonesty’ can consist of any act or omission that entails deceit. 99 This may include withholding information from the
employer, making a false statement or misrepresentation with the intention of deceiving the employer, 100 corruption, 101 cheating
in an exam, 102 or claiming for subsidised accommodation for which the employee did not qualify. 103
However, ‘dishonesty’ is not a loose term that can be thrown at employees in any circumstances. 104 Negligence, however
gross, cannot give rise to a charge of dishonesty.
The courts have on occasion been willing to distinguish between dishonesty of an egregious form, warranting dismissal, and
lesser forms of dishonesty, not justifying dismissal. Sleeping on duty, for example, was held not to amount to fraudulent
timekeeping. 105 Telling a ‘white’ lie in panic to avoid getting into trouble has been held not to constitute dishonesty meriting
dismissal. Nor can employees be said to be dishonest if they act with an honest intention, however dubious the wisdom of the act
may be.
A charge of dishonesty requires proof that the person acted with intent to deceive. 106 Such proof was accepted as sufficient
in a case in which an employee responsible for monitoring working hours claimed 81 hours’ overtime for himself,
4th Ed, 2022, ch 9-p 214
maintaining that he had done so merely to recover unpaid leave. 107 But proof of dishonest intent was not found in cases where
the employee had merely breached company procedure, 108 although in one case the LAC found that dishonest intent was not
required to justify the dismissal of a teller for persistent till discrepancies. 109
97 See, for example, Sappi Novaboard v Bolleurs (1998) 19 ILJ 784 (LAC ); Central News Agency v CCAWUSA (1991) 12 ILJ 340 (LAC ); Boschendal
Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC ); Lahee Park Club v Garratt [1997] 9 BLLR 1137 (LAC ); Standard Bank of SA v CCMA (1998) 19 ILJ 903
(LC ) at 630–1; Kalik v Truworths (Gateway) (2007) 28 ILJ 2769 (LC ); Hulett Aluminium v Bargaining Council for the Metal Industry (2008) 29 ILJ 1180
(LC ).
98 See, for example, First National Battery v CCMA (2010) 31 ILJ 1203 (LC ) (employee had ‘lost his moral compass’ by accepting a bribe from a
contractor); City of Johannesburg v Jacobs NO [2021] 6 BLLR 579 (LC ) (traffic officers helping learner drivers to pass their tests).
99 See SASBO v Standard Bank of SA (2022) 43 ILJ 1794 (LAC ): ‘Dishonesty as an aspect of misconduct is a generic term embracing all forms of
conduct involving deception. . . . [Dishonesty has been defined as] a lack of integrity or straightforwardness and, in particular, a willingness to steal,
cheat, lie or act fraudulently. Deceitfulness can manifest itself in various forms, which include providing false information, non-disclosure of information,
pilfering, theft and fraud. The fiduciary duty owed by an employee to the employer generally renders any dishonest conduct a material breach of the
employment relationship, thereby justifying summary dismissal.’ Also see Nedbank v SASBO obo Greenaway (2022) 43 ILJ 2085 (LC ).
100 See, for example, Malaka v GPSSBC (2020) 41 ILJ 2783 (LAC ) – altering a car hire invoice to make it appear that the vehicle had not been
used for private purposes; Pick ’n Pay Retailers v JAMAFO obo Maluleke [2020] 12 BLLR 1229 (LAC ) – exchanging a gift for cash contrary to company
policy; Lahee Park Club v Garratt [1997] 9 BLLR 1137 (LAC ) – social club secretary writing off member’s subscription to repay personal debt; Nedcor
Bank v Jappie [1998] 10 BLLR 1002 (LAC ) – employee having his car repaired at his employer’s expense; Oliver v Foschini Group (1995) 4 LCD 418 –
employee using company telephone without permission and misrepresenting innocence; Minnaar / Wedge Street World [1998] 2 BALR 138 (C C MA) –
salesman making false representations to boost sales commission. Many forms of dishonesty verge on fraud and other forms of criminal conduct, and
are dealt with as such later in this chapter.
101 See, for a striking example, First National Battery v CCMA (2010) 31 ILJ 1203 (LC ) (shop steward encouraging union members to interfere with
operations of employer’s contractor, then accepting bribe from contractor to persuade them to stop). See also Herholdt v Nedbank (2012) 33 ILJ 1789
(LAC ) (bank financial advisor not disclosing he was beneficiary under a client’s will).
102 DENOSA obo Ramaroane v MEC for Health, Gauteng Province (2019) 40 ILJ 2533 (LC ).
103 Mothiba v Exxaro Coal t/a Grootgeluk Coal Mine (2021) 42 ILJ 1910 (LAC ).
104 See Nedcor Bank v Frank (2002) 23 ILJ 1243 (LAC ), in which the court held that one cannot steal negligently. See also Moen v Qube
Systems (2017) 38 ILJ 2712 (LAC ).
105 Marthinussen v MEIBC (2016) 37 ILJ 2292 (LAC ).
106 Sappi Novaboard v Bolleurs (1998) 19 ILJ 784 (LAC ) at 787D; Carter v Value Truck Rental (2005) 26 ILJ 711 (SE).
107 Mutual Construction Company Tvl v Ntombela NO (2010) 31 ILJ 901 (LAC ).
108 See, for example, Massmart Holdings v Reddy (2022) 43 ILJ 1297 (LAC ); First National Bank, a Division of First Rand National Bank v
Language [2012] 5 BLLR 478 (LC ); SAB v CCMA [2012] 8 BLLR 811 (LC ); Austin-Day v Absa Bank [2022] 6 BLLR 514 (LAC ); Toyota SA Motors v Lewis
[2012] 9 BLLR 945 (LC ).
109 Woolworths v SACCAWU (2016) 37 ILJ 2831 (LAC ).

Misrepresentation by employees before the commencement of employment has been held to be sufficient to warrant dismissal, even
if the misrepresentation was discovered some time later and the employee has rendered satisfactory performance. In Auret v
Eskom Pension & Provident Fund, 110 the dismissal of an employee was upheld because he had not disclosed the true extent of
fraud in which he had been involved while working for his previous employer. The court came to the same conclusion in MEC for
Education, Gauteng v Mgijima, 111 in which the employee had failed to disclose that she had resigned from her previous employer
while suspended pending disciplinary action. 112
Faked CVs may lead to dismissal even if the employee has rendered satisfactory service for years. 113 In one case, failure to
disclose a previous criminal record was held to warrant dismissal 14 years after the employee’s appointment. 114 The same applies
even where the misrepresented qualification is not required for the position, 115 and where an employee relies on a false CV by
which appointment was obtained to apply for a promotional position. 116
But dismissing employees for failing to disclose information during their applications for employment will only be justified if the
employee was indeed obliged to disclose the information. In Eskom Holdings v Fipaza, 117 the court held that candidates for
employment are not required to disclose information of which the employer should have been aware, in this case that she had
previously been dismissed by Eskom.
But Fipiza does not lay down an absolute rule that employees must exhaustively check a candidate’s credentials before
appointing them. Where an employee failed to disclose that he was involved in litigation with his previous employer, which he was
meant to cultivate in his new job, the LAC found his dismissal justified
4th Ed, 2022, ch 9-p 215
and remarked that employers are not required to conduct a search of all pending litigation in which a candidate for employment
might be involved. 118 The same applied to a heavy-duty driver who was found to have been involved in two dangerous driving
incidents before she was transferred to a new employer. 119 But by contrast an MEC was ordered by the High Court to allow an
applicant to commence work even though the selection panel had informed him that she had disclosed that she faced 75 charges of
fraud and theft by her previous employer. 120
Like all disciplinary offences, employees who fake their qualifications must be treated consistently. In Westonaria Local
Municipality v SALGBC, 121 the personal assistant to the municipality’s executive mayor was found to have been unfairly dismissed
for misrepresenting her qualifications because the municipality had failed to take disciplinary action against another of its employees
who had done the same.
110 (1995) 16 ILJ 462 (IC ). See also SACCAWU obo Waterson / JDG Trading [1999] 3 BALR 353 (IMSSA), in which a bookkeeper who had failed to
disclose that he had served a prison sentence for armed robbery was held to have been fairly dismissed.
111 (2011) 32 ILJ 640 (LC ).
112 See also Hoch v Mustek Electronics (2000) 21 ILJ 365 (LC ); Boss Logistics v Phopi (2010) 31 ILJ 1644 (LC ).
113 DHA v Ndlovu (2014) 35 ILJ 3340 (LAC ).
114 G4S Secure Solutions (SA) v Ruggiero NO (2017) 38 ILJ 881 (LAC ).
115 LTE Consulting v CCMA (2017) 38 ILJ 2787 (LC ).
116 Rainbow Farms v Dorasamy NO (2014) 35 ILJ 3462 (LC ).
117 (2013) 34 ILJ 549 (LAC ).
118 Galiesitoe v CCMA [2017] 7 BLLR 690 (LC ).
119 DETAWU obo Mqaqambiso v BP Southern Africa (2022) 43 ILJ 157 (LC ).
120 Ndudane v Premier of the Eastern Cape (2022) 43 ILJ 438 (EC B).
121 [2010] 3 BLLR 342 (LC ). See also Intercape Ferreira Mainliner v McWade (2020) 41 ILJ 208 (LC ).
11. Drug use

The use of narcotic drugs in the workplace is frowned upon for obvious reasons. This is why nearly all disciplinary codes prohibit its
possession or use on the employer’s premises. Most disciplinary codes also prohibit being under the influence of drugs during
working hours.
The most common narcotic drug in South Africa is cannabis (‘dagga’). The debate over its legalisation has raged for some time.
Both the use and possession of dagga remain criminal offences at the time of writing, even though the Constitutional Court
approved private consumption in 2018. Whatever the merits of legalisation, the narcotic properties of dagga may adversely affect
an employee’s work performance. Even so, the industrial court took a tolerant view of the offence, which has been followed by the
CCMA. 122
However, there is no reason why drug-induced intoxication should not be treated in the same manner as alcohol-induced
intoxication, discussed in the following section. 123
If there is a clear rule against the use of drugs during working hours, and the employee breaks that rule, the gravity of the
breach must be assessed according to such factors as the employee’s history of drug-use, prior counselling, the circumstances in
which the offence was committed, the nature of the employee’s work, and other relevant considerations. If the employee can
prove that the offence stems from addiction, the employer is required to treat the employee with the same degree of sympathy
afforded employees with alcohol addiction problems, discussed below.
But, as shown by Enever v Barloworld Equipment, A Division of Barloworld SA, 124 there are limits to the courts’ sympathy. Ms
Enever suffered from pain, anxiety and insomnia for which she was prescribed a cocktail of pills. Since they had no effect, she took
to using cannabis oil and smoking zols, which she said relieved her stress. But she ran into another problem: Barloworld required all
employees entering the workplace to be tested for alcohol and drugs. Enever tested positive and was told to go home and undergo
a seven-day cleaning-up process. It did not work – she stuck to dagga and was denied access to the workplace for a month. She
was then fired for breaching the company’s alcohol and substance abuse policy. Enever approached the Labour Court with two
claims: that her dismissal was automatically unfair and that she had been discriminated against on an ‘arbitrary ground’. The court
rejected both claims. The justification that cannabis was used for medicinal and recreational use had only been raised after the
fact and her medical problems had never been brought to the employer’s attention. That the Constitutional Court had decriminalised
private use of cannabis did not excuse a deliberate breach of a company policy. Nor did the fact that she was perfectly capable of
working. Enever’s discrimination claim had to fail because she had failed to prove that she had been treated differently from other
employees. Both her claims were dismissed.
Where employees are accused of being under the influence of a narcotic drug, the charge must be proved. According to one
study on the subject, 125 no scientific test can prove definitively when drug use results in impairment of performance. However,
employers may rely on circumstantial evidence, particularly that which manifests itself in the obvious signs of mental and physical
impairment. Considerations applicable to drugs in the workplace are similar to those involving drinking on duty, discussed in the
following paragraph.
122 Bahl / St Lucia Sands [1998] 3 BALR 249 (C C MA).

123 See, for example, Kleinkopje Colliery / NUM obo Mbenekazi [1998] 9 BALR 1206 (IMSSA).
124 (2022) 43 ILJ 2025 (LC ).
125 See generally McC ann et al Alcohol, Drugs & Employment (Juta 2011).
4th Ed, 2022, ch 9-p 216
Unlike narcotic drugs, the use of alcohol is not prohibited, but employers may nonetheless ban its use in the workplace, or even
outside working hours when its effect has lingered after the employee reports for duty.
Rules designed to discourage or prevent the use or abuse of alcohol during working hours usually assume one or a combination of
four forms: an absolute prohibition on possession of alcoholic beverages in the workplace; a prohibition on being under the influence
of alcohol during working hours; a prohibition on being under the influence of alcohol to the extent that work performance is
impaired; a rule precluding the alcohol content of employees’ bloodstreams from exceeding a certain level. All these rules are
regarded as reasonable.
Whatever the nature of the rule applied in a particular workplace, the employer must prove that the rule it seeks to enforce has
been contravened. Breaches of some rules are more difficult to prove than breaches of others. Breach of a rule prohibiting
possession of alcohol is proved by mere possession. A rule prohibiting being ‘under the influence of alcohol’ requires less stringent
proof than a rule prohibiting being under the influence only to the extent that work performance is impaired. 126 Dismissal has been
sanctioned even when the employer fails to prove the degree of the employee’s intoxication. 127
Proof of a breach of the rule prohibiting the level of alcohol in the bloodstream above a certain percentage is obviously provided
by means of a test proving that there is a higher level of alcohol than the permissible limit. While the use of a breathalyser is not
essential, the results of breathalyser tests can serve as evidence to justify the conclusion that the employee was intoxicated. 128
If breathalyser test results are used, evidence must be led on how the test was administered, and that the breathalyser was in
working order at the time. 129 Where company policy requires regular testing of breathalyser equipment, results will not pass
muster if the equipment is not tested according to the schedule. 130
Apart from possibly being an offence in itself, an employee’s refusal to undergo a breathalyser test has been held to prove,
together with other circumstantial evidence
4th Ed, 2022, ch 9-p 217
on a balance of probabilities, that the employee was incapable of performing his duties. 131 In such cases, mere observations of
the employee’s behaviour, smell and bloodshot eyes may be sufficient to prove that the employee was intoxicated. 132
Much turns on the manner in which the charge against an inebriated employee is formulated. Charging employees with having
unacceptable levels of alcohol in their bloodstream is one thing; charging employees with being ‘drunk’, or so intoxicated that they
are incapable of performing their duties, is another. A charge that an employee has alcohol in his bloodstream that exceeds a
certain level must be proved by scientific means. When the charge is that the employee was drunk, visual testimony relating to
gait, demeanour and other typical physical signs of intoxication may suffice.
If employees are charged with being so drunk that they are unable to perform their duties, evidence of the degree of intoxication
becomes relevant. The case law on the evidence required to prove the latter charges is by no means harmonious. In some cases,
the courts and arbitrators have held that evidence on the employee’s physical condition suffices; 133 in others, proof that the
employee was unable to perform his duties properly has been required. 134 While proof may be provided by properly conducted
breathalyser tests, physical observation is sufficient. 135
Whether dismissal is warranted for reporting for duty under the influence of alcohol depends on a number of considerations. One
is the nature of the work performed by the employee. The court had no sympathy, for example, for a rail official responsible for
marshalling and coupling trains at a busy rail junction who arrived at work tipsy. 136 But the court has found that a general worker
who reported for duty suffering the after-effects of a party was in a different position. 137
A finding that an employee is intoxicated during working hours does not necessarily warrant dismissal. Much depends on the
circumstances. Proof that the employee is regularly intoxicated; or that the employee performs work in which a mishap could
endanger himself or others; 138 or that the employee’s condition embarrassed the employer, all serve as possible aggravating
factors. 139 Apart from a clean disciplinary record, mitigating factors could include the employer’s relative tolerance of similar
offences in the past, the employee’s temporary stress at the
4th Ed, 2022, ch 9-p 218
time due to personal circumstances, or the circumstances in which the alcohol was consumed, or the employee’s status. 140
Where employees found to be under the influence of alcohol or with alcohol in their bloodstreams claim that they consumed the
alcohol before reporting for duty – usually at a late-night party – the excuse will not serve as a defence if the prescribed offence is
being under the influence or having alcohol in the bloodstream after arriving for work. It is arguable in such cases that the
employee knew or should have known that he or she would be suffering the after-effects when he or she reported for duty. But an
employee who reports for duty while under the effects of a late-night party may still have a valid excuse. 141
The degree of intoxication is also relevant – being hopelessly drunk at work is obviously more reprehensible than being slightly
tipsy. 142 The relative seniority and status of the employee will not necessarily be a mitigating factor on a charge of drinking on
duty. 143
The Code of Good Practice: Dismissal endorses the view that disciplinary action is not always the appropriate way to treat
alcohol abuse. In item 10, which deals with dismissal on the ground of incapacity, the code suggests that in the case of ‘certain
kinds of incapacity, for example alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps for the employer
to consider’.
The diffident manner in which these alternatives are phrased suggests that they are not intended to be prescriptive. Counselling
and rehabilitation are clearly options when the employee’s addiction flows from a condition for which the employee cannot be
blamed. It may well on occasion be difficult to distinguish between cases of dependency and cases of casual drinking which
constitute misconduct. Employees who deny that they consumed any alcohol will find it difficult to persuade an arbitrator that they
are dependent. A plea that the employee is addicted to alcohol will generally carry weight only if the employee has previously taken
steps to bring the problem to the attention of the employer, or has sought assistance elsewhere. There is little point to offering
counselling and rehabilitation to an employee who is not dependent. But it is prudent to treat individual cases of alcohol abuse with
some sympathy.
When an employee is found to be under the influence of alcohol, a separate inquiry may be held by appropriately qualified
personnel to establish whether the employee is addicted to alcohol. If this is found to be the case, the employee should be offered
assistance, which need not be provided at the employer’s expense. Sympathy is especially advisable where the employer has a
policy in place for assisting employees with dependency problems. In Black Mountain v CCMA, 144 a driver was dismissed for
causing an accident while driving a heavy vehicle. He
4th Ed, 2022, ch 9-p 219
was under the influence of alcohol at the time. Both a CCMA commissioner and the Labour Court held that the dismissal was unfair
because the company’s alcohol policy provided for a suspension of disciplinary proceedings against employees referred for
counselling in terms of the employee assistance policy. The court rejected the company’s argument that, in the circumstances, the
disciplinary code trumped the policy.
To benefit from the entitlement to counselling, the employee must be an alcoholic. In Transnet Freight Rail v TBC, 145 an
arbitrator ordered Transnet to reinstate an employee dismissed for reporting for duty under the influence of alcohol, and directed
the employee to submit to rehabilitation in terms of the Transnet substance abuse policy. On review, the Labour Court noted the
Code of Good Practice: Dismissal specifically treats alcoholism as a form of incapacity and requires employers to counsel and
rehabilitate offending employees, rather than discipline them. But, said the court, there is a difference between alcoholics and ‘once
off’ tipplers. When employees who are not alcoholics report for duty under the influence of alcohol, they commit misconduct,
because they have control over their actions. In this case there was no proof that the employee was dependent. It followed that
the arbitrator had erred by applying the rules relating to incapacity, rather than those relating to misconduct. 146 An entitlement
to counselling certainly does not apply where the employee vehemently denied that he was an alcoholic. 147
If the employee declines assessment or refuses to undergo counselling or treatment, discipline should be applied in the first
instance by a sanction short of dismissal. If the employee continues to refuse treatment, dismissal may be justified. 148 When it
becomes evident that efforts to correct the employee’s behaviour have failed, dismissal on the basis of incapacity will generally be
justified.
To combat drug and alcohol abuse in the workplace, employers may perform random spot checks on employees. Dismissal of
employees who refuse to undergo such tests or ignore instructions to stay away from work until the test results are confirmed is in
appropriate circumstances permissible. 149
126 See Tanker Services v Magudulela [1997] 12 BLLR 1552 (LAC ) at 1553G–H: ‘The difficulty of proving the charge against the respondent is that
intoxication is a matter of degree. The respondent would only be “under the influence of alcohol” if he was unable to perform the tasks entrusted to him
. . . with the skill expected of a sober person.’ The court observed further that the manner in which that test would be applied would depend on the
nature of the tasks with which the employee was entrusted – a stricter test will be applied in the case of a tractor driver than a labourer who works in the
fields. The court did not indicate how strictly the test should be applied in cases involving managers who entertain clients at business lunches.
127 FAWU obo Klaas / La Farge SA [2000] 12 BLLR 1370 (C C MA).
128 See NUM obo Nkuna / Western Deep Levels Mine [2000] 1 BALR 72 (IMSSA).
129 Arbitrators have not been of one mind when assessing the evidentiary value of breathalyser tests. The use of this instrument was condemned
in the strongest terms in Castle Lead Works (Tvl) and NUMSA (1989) 10 ILJ 776 (ARB). In Cane Carriers and Govender (1989) ARB 8.11.10, the
arbitrator regarded the results of a breathalyser test as insufficient in itself but agreed that it could ‘add weight’ to other evidence. The following general
principles regarding the use of breathalysers are apparent from the cases: the use of a breathalyser is permissible to provide evidence of intoxication,
although its results are not definitive; visual evidence regarding the employee’s gait, manner of speech and other relevant physical characteristics should
be led to support the breathalyser test result.
130 NUM obo Thuke and Palaborwa Mining Co (2010) 31 ILJ 1270 (C C MA).
131 Tanker Services v Magudulela [1997] 12 BLLR 1552 (LAC ); SACCAWU obo Peter / Hessel Cash & Carry [2001] 1 BALR 48 (C C MA).
132 Duncanmec v Itumeleng NO (2020) 41 ILJ 1331 (LAC ).
133 See, for example, Exactics-Pet v Patelia NO (2006) 27 ILJ 1126 (LC ).
134 Astore Africa v CCMA [2008] 1 BLLR 14 (LC ); Mondi Paper v Dlamini [1996] 9 BLLR 1109 (LAC ) (in both of which the employees were charged
with ‘drunkenness’).
135 Tosca Labs v CCMA (2012) 33 ILJ 1738 (LC ).
136 Transnet Freight Rail v TBC (2011) 32 ILJ 1766 (LC ).
137 Taxi-Trucks Parcel Express v NBCRFI (2012) 33 ILJ 2985 (LC ).
138 NUMSA obo Davids / Bosal Africa [1999] 11 BALR 1327 (IMSSA).
139 See Tanker Services v Magudulela [1997] 12 BLLR 1552 (LAC ), in which the court said at 1153: ‘Whether an employee is, by reason of the
consumption of intoxicating liquor, unable to perform a task entrusted to him by an employer must depend on the nature of the task. A farm labourer
may still be able to work in the fields although he is too drunk to operate a tractor. C onsumption of alcohol would make an airline pilot unfit for his job
long before it made him unfit to ride a bicycle. The question which I should ask myself is, therefore, whether the respondent’s faculties were shown in all
probability to have been impaired to the extent that he could no longer properly perform the skilled, technically complex and highly responsible task of
driving an extraordinarily heavy vehicle carrying a hazardous substance.’
140 See Palaborwa Mining Co v Cheetham (2008) 29 ILJ 306 (LAC ).
141 In Goodyear SA v CCMA [2004] 1 BLLR 7 (LAC ), the C C MA, Labour C ourt and LAC all agreed that an employee who had been asked on short
notice to report early while suffering the after-effects of a party was unfairly dismissed.
142 Kleinkopje Colliery / NUM obo Mabane [2001] 12 BALR 1259 (IMSSA), in which the employee had three times the legal limit in his bloodstream.
143 McBain / Afrox [1999] 12 BALR 1386 (C C MA), in which a salesman had left work early to join friends at a pub for social drinks.
144 [2005] 1 BLLR 1 (LC ).
145 (2011) 32 ILJ 1766 (LC ).
146 But see Taxi-Trucks Parcel Express v NBCRFI (2012) 33 ILJ 2985 (LC ), in which the court distinguished Transnet Freight Rail in the case of an
unskilled truck assistant.
147 Builders Trade Depot v CCMA (2012) 33 ILJ 1154 (LC ).
148 See, for example, Portnet (Cape Town) and SATAWU obo Lesch (2002) 23 ILJ 1675 (ARB).
149 See, for example, Mphaphuli v Ramotshela NO (2020) 41 ILJ 242 (LC ); Arangie and Abedare Cables (2007) 28 ILJ 268 (C C MA).
13. Fraud
Fraud is defined as the ‘unlawful making, with intent to defraud, of a misrepresentation which causes actual prejudice or which is
potentially prejudicial to another’. 150
‘Intent’ is a necessary element of fraud, even in the workplace. 151 An employee cannot commit fraud negligently. However, it is
no defence to an allegation of fraud that the person to whom the representation was made could, by the exercise
4th Ed, 2022, ch 9-p 220
of reasonable care, have discovered the truth of the misrepresentation and ought not to have been duped by it. 152
When committed by an employee, fraud not only constitutes a criminal offence, but also invariably justifies dismissal. 153
Workplace fraud takes many forms. Some examples from the case law that have been held to justify dismissal by the LAC are:
• travelling for private purposes on a company account 154
• claiming that a company vehicle had been hijacked to conceal an accident 155
• theft of a company vehicle 156
• repairing a private vehicle at the employer’s expense 157
• persuading an employee of a client to sign a false acknowledgement of debt 158
• retaining commission owing to the employer. 159
The Labour Court, CCMA and private arbitrators have generally been equally unsympathetic to employees dismissed for fraud. 160
The misrepresentation need not be effected by words. Conduct alone may be sufficient.
The dismissal of an employee for misconduct ‘tantamount to fraud’ was upheld because the employee had failed to reply to a
question requiring disclosure of certain statutory benefits already received by him when he was applying for membership of a
benefit fund. 161 This is an example of ‘fraudulent non-disclosure’, which has also been held applicable in cases where employees
have acquired their positions by failing to supply information which, had the employer known of it, would probably have resulted in
the rejection of the application. 162 The information concerned must be such that the employee is indeed under a duty to disclose
it. It was held in one case that an employee was not obliged to disclose the fact that she had been threatened with disciplinary
action before leaving the services of her previous employer. 163
In cases of fraud, the employer is not required to prove actual loss. Potential loss is sufficient. So, if an employee obtained a
company credit card by false pretences,
4th Ed, 2022, ch 9-p 221
dismissal would be justified even if the employee did not use the card to effect an unlawful transaction.
Although employers may regard fraud by senior employees with access to company money and resources in a more serious light
than fraud by menial employees, the courts regard all fraudulent acts in the same light. 164 However, a charge of fraud cannot be
used to cover any form of misconduct. For example, the court drew the line at dismissing an employee charged with absence from
her workplace for ‘time fraud’. 165
Medical certificates are the favourite targets of workplace fraudsters, who may falsify either dates or the entire document.
Where medical certificates are found to have been tampered with by employees, dismissal is invariably warranted. 166 Falsification
of time sheets is another widespread form of deception for which dismissal has generally been upheld. 167 Falsification of any
record or document with a view to obtaining some advantage is a form of fraud, dealt with in the following section.
150 Hunt South African Criminal Law & Procedure Vol II 2 ed by JRL Milton (Juta 1982) 755.
151 Employees who clocked in while on strike were found not guilty of ‘clocking fraud’ because they had clocked in before they were informed of
the strike and forgot to clock out again: see Tzaneng Treated Timbers v NBCWPS (2022) 43 ILJ 1348 (LAC ).
152 Rainbow Farms v Dorasamy NO (2014) 35 ILJ 3462 (LC ), a case of obtaining a job with a false C V.
153 See the comments of the Labour C ourt in Standard Bank of SA v CCMA (1998) 19 ILJ 903 (LC ) at 914 on the conduct of a bank official who
fraudulently claimed overtime pay for which she had not worked.
154 Nasionale Parkeraad v Terblanche (1999) 20 ILJ 1520 (LAC ).
155 Toyota SA Motors v Radebe (2000) 21 ILJ 340 (LAC ).
156 SACWU v Plascon Paints (Tvl) [1997] 12 BLLR 1550 (LAC ).
157 Nedcor Bank v Jappie [1998] 10 BLLR 1002 (LAC ).
158 Workforce Group v McLintock (2017) 38 ILJ 2517 (LAC ).
159 Sappi Novaboard v Bolleurs (1998) 19 ILJ 784 (LAC ).
160 See, for example, SARHWU obo Mthembu / SAA [1999] 2 BALR 227 (IMSSA) – aircraft cabin attendant using passenger’s credit card; Cimi /
TNBS Mutual Bank [2001] 10 BLLR 1068 (C C MA) – bank official drawing money from customer’s account; Zihlangu / Welkom TLC [2000] 10 BALR 1191
(C C MA) – cashier issuing receipt to cover charges owing to customers; Mega Bus & Coach / SATAWU obo Matsane [2001] 10 BALR 1051 (IMSSA) –
driver fraudulently using company petrol card; Stofberg / Dunlop Tyres SA [2000] 5 BALR 930 (C C MA) – generating false sales documents to conceal
fraudulent sales; SACWU obo Le Roux / Midas Paints [2001] 6 BALR 652 (C C MA) – manager colluding with subordinates to sell employer’s profits for
personal gain.
161 Straud v Steel Engineering Co (1993) 2 LCD 259 (IC ).
162 Auret v Eskom Pension & Provident Fund (1995) 16 ILJ 462 (IC ); Hoch v Mustek Electronics (2000) 21 ILJ 365 (LC ); Rainbow Farms v
Dorasamy NO (2014) 35 ILJ 3462 (LC ). See also Eskom Holdings v Fipaza (2013) 34 ILJ 549 (LAC ).
163 Laltoparsat and Webber Wentzel Bowens (2004) 25 ILJ 371 (C C MA).
164 See De Beers Consolidated Mines v CCMA (2000) 21 ILJ 1051 (LAC ).
165 See Hulamin v MEIBC (2014) 35 ILJ 3417 (LC ).
166 See G4S Secure Solutions SA v CCMA (2020) 41 ILJ 1388 (LC ), where the employee’s medical certificates all contained the same mistakes.
167 See, for example, NUMSA obo Mudi / Goodyear SA [2000] 7 BALR 789 (C C MA); Mutual Construction Company Tvl v Ntombela NO (2010) 31 ILJ
901 (LAC ).

‘Improper conduct’ (‘conduct unbecoming’) is a residual offence, which overlaps with other offences considered in this chapter.
However, the offence of ‘bringing the employer’s name into disrepute’ warrants special mention because it is sometimes treated
separately by the courts and arbitrators or is regarded as an aggravating factor if an employee is found guilty of some other
offence which also entails general impropriety.
Employees are duty-bound to uphold their employer’s good name and reputation. Conduct that tends to bring the name of the
employer into disrepute may therefore justify disciplinary action even if, in rare instances, such conduct cannot be classified as
another recognised offence. This may occur, for example, where the employee defames the employer or makes disparaging remarks
about the way it conducts its business. 168 Offensive behaviour towards clients may also be classified under this head. So, too,
may conduct which, by association, is calculated to bring the good name of the employer into disrepute. Examples are legion. They
include using a company’s computer to store racist or pornographic material that
4th Ed, 2022, ch 9-p 222
could have been associated with the company’s brand name, 169 transmission of pornographic and suggestive SMS messages on
cellphones, and excessive intimacy between employees during working hours. 170 The conduct of a diplomat who drank
excessively, harassed the cabin crew of an aircraft on an international flight, and then claimed diplomatic immunity to avoid arrest,
was also regarded as doubly serious because it had embarrassed the government. 171 So, too, was the refusal of an HR manager
to investigate an employee’s complaint of sexual harassment, 172 and falsely posing as the company attorney to glean information
from a firm of attorneys concerning a debt about to be claimed from a colleague. 173
168 See Concorde Plastics v NUMSA [1998] 2 BLLR 107 (LAC ). However, in that case the court held that the dismissal of the employees concerned
was unfair because they had merely agreed to testify against the employer in a defamation action by the employer against a union official. The court
held that the employees had given evidence in good faith. The finding would clearly have been different had the employees perjured themselves.
169 See Bamford / Energiser SA [2001] 12 BALR 1251 (P), in which the employees concerned transmitted and stored thousands of offensive e-
mails. The arbitrator held that the case graphically illustrated how employees may jeopardise a business by using computers irresponsibly. The
employees’ misconduct was also aggravated by their appearance on radio and TV, where they misrepresented the nature of their misconduct and the
offending material.
170 Volkwyn / Truworths [2002] 4 BALR 455 (C C MA). But see Sylvester / Neil Muller Constructions [2002] 1 BALR 113 (C C MA), in which the
commissioner held that the misconduct was not that serious because the employee and the recipient of the message had frequently exchanged ribald
messages.
171 NEHAWU obo Barnes and Department of Foreign Affairs (2001) 22 ILJ 1292 (BC A).
172 Movers / Legend Security [2005] 4 BALR 487 (C C MA).
173 Timothy v Nampak Corrugated Containers (2010) 31 ILJ 1844 (LAC ).

Insubordination occurs when an employee refuses to accept the authority of his or her employer or of a person in a position of
authority. It can take many forms, and is obviously a matter of degree. The Code of Good Practice: Dismissal lists gross
insubordination as a permissible ground for dismissal. Whether insubordination is considered ‘gross’ depends on the circumstances,
including the way it is expressed, the position of the person whose authority is repudiated, the reason for the employee’s defiance
and the number of times it occurs.
A distinction has long been drawn between insolence (repudiation by an employee of the employee’s duty to show respect) and
insubordination (refusal to obey the employer’s instructions). 174 However, nothing turns on the distinction. The test for both forms
of misconduct is whether the employee’s conduct demonstrates an intention to challenge the employer’s authority. 175 Insolence
and insubordination proper are discussed separately below.
15.1 Insolence
Insolence has been held to warrant disciplinary action and, where appropriate, dismissal. 176 Insolence has been equated with
impudence, cheekiness, disrespect or rudeness and distinguished from insubordination. If insolence and insubordination are indeed
separate offences, a prior warning for one will not necessarily justify
4th Ed, 2022, ch 9-p 223
dismissal for the later commission of the other, as was held in one case. 177 This seems an overly technical distinction; both forms
of misconduct give expression to a repudiation of authority, which rests as much on respect as it does on obedience.
Disrespect may straddle the divide between insolence and insubordination. Take the case of Mr Legobate, a call-centre
attendant deployed by a labour broker to a client, MultiChoice. He posted a message on the MultiChoice intranet, accusing that
company of treating call centre staff like ‘meerkats’. MultiChoice responded by testing the water – management circulated a
questionnaire asking staff to comment on what they understood by the term ‘mutual respect’. Legobate responded in kind. He
accused management of treating its staff with disrespect and ended his reply on this rousing note: ‘RESPECT, RESPECT, RESPECT,
U need DECENCY . . . Amen.’ His dismissal was upheld.
The court dealt with the difference between insolence and insubordination in Palluci Home Depot v Herskowitz, 178 and found it
turned on semantics. After a dispute with the MD, Ms Herskowitz accused the MD in the presence of members of staff of acting
‘unprofessionally’. Although the LAC agreed that the dismissal was unfair the court noted that refusing to obey an instruction is not
the only form of insubordination but equally that not every incident of insolence amounts to insubordination. The court also
rejected the company’s argument that a charge of insolence can apply only to ‘cheeky low-level employees’.
As may be expected, judges and arbitrators differ over when insolence may be deemed serious. In one case the court held that
dismissal was justified where the employee had angrily told her employer to do her work himself, and in another an employee who
had torn up the notes of the chairman at a hearing for alleged misconduct was held to have been fairly dismissed because,
although the evidence did not prove that the employee intended to challenge the employer’s authority, his action made ‘a mockery
of the [employer’s] disciplinary procedure’. 179 The refusal by an employee to accept an internal transfer after she had repeatedly
challenged the authority of her superior, to whose position she had aspired, was held to amount to gross insubordination which
warranted dismissal. 180
Where the employer provoked the employee into using an abusive epithet, the employee’s conduct was condoned. 181 Unless
insolence is particularly gross, the proper action in such cases is a written warning in the first instance. The test is whether the
employee intended to challenge the employer’s authority.
In the nature of things, insubordination is a more serious offence than mere rudeness because it presupposes a calculated breach
by the employee of the duty to obey the employer’s instructions. The code requires that to justify dismissal, insubordination
4th Ed, 2022, ch 9-p 224
must be ‘gross’, which means serious, persistent and deliberate. 182 The employer must adduce proof that the employee was in
fact guilty of defying an instruction. 183
It is generally accepted that, to constitute insubordination, an employee’s refusal to obey an instruction must be deliberate, and
the instruction must be reasonable and lawful. The first requirement presupposes that the employee must be aware of the
instruction, understand its import and be aware that the person giving it has the requisite authority. Insubordination must be
deliberate: the employee must intentionally disobey the instruction. The Labour Court rejected an employee’s attempt to claim that
her failure to carry out an instruction – to discipline subordinates for striking illegally – was not insubordination, but merely
amounted to carrying out the instruction incorrectly. 184
Depending on the circumstances, defiance of an instruction when first given may constitute gross insubordination – a single act
of disobedience can suffice. 185
There is one absolute requirement for a ‘conviction’ of insubordination – if the instruction is unlawful or unreasonable, employees
are entitled to disobey it, however bloody-minded or stubborn they may seem. Where packers on a mushroom farm refused to
perform overtime in excess of that permitted by the BCEA the court described as ‘disingenuous’ the employer’s claim that they had
been fairly dismissed for insubordination, even though they would only have been required to work about 15 minutes more overtime,
and even though they had for years done so on request. 186 The same applied to a refusal to heed an instruction to work a new
shift roster to accommodate illegally enforced short time, 187 and to journalists who refused to heed an instruction by the SABC
not to publish scenes of violent public protests. 188
Examples of unreasonable instructions are those requiring employees to work excessive hours, 189 ordering a clerk who was
normally given ad hoc local driving duties to make a 500 km trip to a neighbouring state, 190 and requiring employees to sign a new
employment contract which varied their terms and conditions of employment. 191 An employee’s insubordination in the face of
unjustified disciplinary action, and a refusal to accept a transfer for which there was no good reason, 192 have also been regarded
as excusable. 193
4th Ed, 2022, ch 9-p 225
The balance between insubordination and justifiable refusal to obey an unreasonable instruction came sharply to the fore during
the Covid-19 pandemic, when many workers declined to work for fear of being infected. At the time of writing, the closest the
Labour Court came to dealing with this problem was in NEHAWU obo Members Providing Essential Health Services v Minister of
Health, 194 in which the union sought among other orders one prohibiting disciplinary action against healthcare workers who
refused to work if they had not been issued with adequate protective gear. The court declined to make such an order because the
union failed to prove that any such disciplinary action had been instituted. After that, the CCMA dealt with a number of dismissals
for this reason. It was generally accepted that where the employee’s fear of infection was justified, dismissal was too harsh. The
court was more outspoken in a case involving a flagrant failure by an employee to comply with company instructions by reporting
for work before he knew the result of a Covid-19 test, then walking around a meat processing factory without a mask and hugging
a colleague who had comorbidities. The judge found an arbitrator’s decision to reinstate the employee incomprehensible. 195
Circumstances that prompt employees’ refusals to obey instructions are legion. Defiance may be prompted by dislike of the
person in authority, by disagreement over the instruction, or by sheer stubbornness. However, if the instruction is reasonable and
lawful, employees disobey at their peril. The courts have made it clear that mere frustration with working conditions is not enough
to justify a refusal to obey reasonable and legitimate instructions. In Slagment v BCAWU, 196 two workers who refused to accept
the authority of a newly appointed supervisor were held to have been fairly dismissed. 197 In the light of this judgment, the courts
and arbitrators will be slow to regard ‘insensitivity’ by management when rearranging working structures as an excuse for sustained
and deliberate refusal to comply with them.
Employees also take a grave risk if they seek to pressurise their employers by refusing to obey instructions until some grievance
is remedied. In Johannes v Polyoak Industries, 198 the employee refused to complete certain quality checklists until the employer
attended to her complaints. She admitted that this amounted to an offence, but claimed that the employer acted unfairly when it
dismissed her because she had merely asked for a ‘small indulgence’. The court was unimpressed, saying that it must have been
clear to the employee that her ‘lone crusade’ would end in disaster. The employer could not reasonably be expected to endure such
defiance.
4th Ed, 2022, ch 9-p 226
Although the courts may take a more relaxed approach to insubordination in the collective bargaining context, 199 a persistent
display of belligerence and obduracy on the part of a shop steward may justify dismissal. 200
How difficult it may be to discern the difference between conduct that is downright insubordinate and the exercise of the
employee’s rights under labour legislation is demonstrated by NUPSAW obo Mani v NLB. 201 The board had found several employees
guilty of insubordination, ‘disrespectful behaviour’ and of bringing the names of the board and CEO into disrepute by signing a
petition calling for the CEO’s resignation and circulating it to the media. The Labour Court upheld the dismissals, and the LAC
refused leave to appeal. The SCA granted leave to appeal but dismissed the appeal with costs. 202 A split Constitutional Court held
that the employees had done nothing more than exercise their rights as union members and to freedom of expression. 203
Insubordination remains insubordination if the employees’ refusal to obey an instruction takes the form of an unlawful strike, 204
but not if the strike is protected. 205
The employee’s duty to obey generally applies only to work-related orders and during working hours. 206 However, when an
employer instructs employees to do or desist from doing something in their private time that impacts on the employment
relationship, the employee’s refusal to obey may warrant disciplinary action. 207
The more rigorously the employee’s job is defined, the greater the scope the employee has to plead that a particular instruction
falls outside the job description. However, a refusal to work two shifts instead of one was held to amount to insubordination in A
Mauchle t/a Precision Tools v NUMSA. 208 The same applied to a refusal to accept a transfer from one plant to another, 209 or
work ancillary to the employee’s core functions. 210 But in these cases the courts also warned that before taking disciplinary
action against employees who refuse to accept changed working conditions, the employer should at least to try to persuade them
to do so.
174 CCAWUSA v Wooltru t/a Woolworths (Randburg) (1989) 10 ILJ 311 (IC ).
175 In Wasteman Group v SAMWU (2012) 33 ILJ 2054 (LAC ), the court held that the true distinction is between mere insubordination, which does
not usually warrant dismissal, and gross insubordination, which does.
176 Rostoll v Leeupoort Minerale Bron (1987) 8 ILJ 366 (IC ); TGWU v Interstate Bus Lines (1988) 9 ILJ 877 (IC ).
177 See CCAWUSA v Wooltru t/a Woolworths (Randburg) (1989) 10 ILJ 311 (IC ).
178 (2015) 36 ILJ 1511 (LAC ).
179 See Rostoll v Leeupoort Minerale Bron (1987) 8 ILJ 366 (IC ).
180 Malamlela v SALGBC (2018) 39 ILJ 2454 (LAC ).
181 See, for example, Evans v CHT Manufacturing (1992) 13 ILJ 1585 (IC ).
182 CWIU v AECI Paints Natal (1988) 9 ILJ 1046 (IC ); Humphries & Jewell v FEDCRAW (1991) 12 ILJ 1032 (IC ); Armitage Shanks SA v Mnisi (1995)
16 ILJ 61 (IC ).
183 See MAWU v Transvaal Pressed Nuts, Bolts and Rivets (1988) 9 ILJ 129 (IC ) (refusal to clean a work area normally cleaned by a colleague);
Zono v Gruss NO [2011] 9 BLLR 873 (LAC ) (sending a ‘puerile’ letter of protest to a superior).
184 Cadbury SA v CCMA [2013] 8 BLLR 761 (LC ).
185 TMT Services & Supplies v CCMA (2019) 40 ILJ 150 (LAC ).
186 Maneche v CCMA (2007) 28 ILJ 2594 (LC ).
187 ICHAWU v CCMA (2015) 36 ILJ 3086 (LC ). See also TFD Network Africa v Singh NO (2017) 38 ILJ 1119 (LAC ) (refusal to work unlawful
overtime) and Maripane v Glencore Operations (Lion Ferrochrome) (2019) 40 ILJ 1999 (LAC ) (disobeying an instruction which breached a collective
agreement).
188 Solidarity v SABC (2016) 37 ILJ 2888 (LC ).
189 Chetty v Raydee t/a St James Accommodation (1988) 9 ILJ 318 (IC ).
190 Ntsibande v Union Carriage & Wagon Co (1993) 14 ILJ 1566 (IC ).
191 SACCAWU v Mahawane Country Club (2002) 23 ILJ 902 (LAC ).
192 City of Johannesburg v Swanepoel NO (2016) 37 ILJ 1400 (LC ).
193 Haywood and Combotrade 13 t/a Powerman (2004) 25 ILJ 2247 (BC A).
194 (2020) 41 ILJ 1724 (LC ).
195 See Eskort v Mogotsi (2021) 42 ILJ 1201 (LC ).
196 (1994) 15 ILJ 979 (A).
197 Overruling the contrary finding by the LAC : see BCAWU v Slagment (1992) 13 ILJ 1168 (LAC ).
198 [1998] 1 BLLR 18 (LAC ).
199 See FAWU v Harvestime Corporation (1989) 10 ILJ 497 (IC ). This issue discussed in C hapter 13.
200 SACTWU v Ninian & Lester (1995) 16 ILJ 1041 (LAC ); Acrylic Products v CWIU [1997] 4 BLLR 370 (LAC ); Adcock Ingram Critical Care v
CCMA (2001) 22 ILJ 1799 (LAC ); SAMWU v Ethekwini Municipality (2017) 38 ILJ 158 (LAC ). Disciplining of shop stewards is discussed in C hapter 13.
201 (2014) 35 ILJ 1885 (C C ).
202 NUPSAW obo Mani v NLB (2013) 34 ILJ 1931 (SC A).
203 NUPSAW obo Mani v NLB (2014) 35 ILJ 1885 (C C ).
204 Mndebele v Xstrata SA t/a Xstrata Alloys (2016) 37 ILJ 2610 (LAC ).
205 CSAAWU obo Dube v Robertson Abattoir (2017) 38 ILJ 121 (LAC ).
206 Kahn v Rainbow Chicken Farms (1985) 6 ILJ 60 (IC ).
207 Nyembezi v NEHAWU [1997] 1 BLLR 94 (IC ).
208 (1995) 16 ILJ 349 (LAC ).
209 Air Products v CWIU (1998) 3 LLD 54 (LAC ).
210 MISA v Silverton Spraypainters & Panelbeaters (2013) 34 ILJ 1440 (LAC ).

Negligence is a failure to comply with the standard of care that would be exercised in the circumstances by a reasonable person. In
the employment context, there is an obvious overlap between negligence and poor work performance, and perhaps,
4th Ed, 2022, ch 9-p 227
in some cases, between negligence and incapacity. 211 In ZA One t/a Naartjie Clothing v Goldman NO, 212 the court formulated a
useful test for whether poor work performance constitutes misconduct or incapacity. The respondent employee, a manager of one
of the applicant’s clothing stores, was dismissed after being found guilty on several charges of misconduct, including dishonesty,
gross negligence and failing to properly discharge her duties and responsibilities. A CCMA arbitrator dealt with the matter as a
dispute concerning a dismissal for incapacity and ruled the dismissal both substantively and procedurally unfair. After pointing out
that the commissioner had ambushed the employer by making a finding on procedural unfairness when that had never been an
issue, the court explained the difference between misconduct and poor work performance. This could be determined by asking two
questions: ‘Did the employee try but could not?’ and ‘could the employee do it, but did not?’ If the answer to the first question is
yes, the matter concerns poor performance; if the second question is answered in the affirmative, then the substandard
performance constitutes misconduct. The award was set aside. So, too, was an award in which the arbitrator had applied the test
for a dismissal for poor work performance in a case concerning what the court considered unadulterated misconduct. 213
Where negligence or poor work performance results from circumstances beyond employees’ control, such as physical or mental
incapacity, it should be treated as such. But as the law makes it clear, it is permissible in appropriate circumstances to treat
negligence and poor work performance as forms of misconduct.
Negligence can manifest itself in either acts or omissions. The test for negligence is whether a reasonable person in the position
of the employees concerned would have foreseen the harm resulting from the acts or omissions, or that harm might result, and
would have taken steps to guard against that harm. While disciplinary action is normally taken against employees for negligence
only if their conduct caused damage or loss, the basis for the employee’s culpability is not the act or omission itself, but rather the
lack of care and/or diligence that accompanied it. Wilfulness or intent is not a requirement for disciplinary action against employees
for negligence. But if either was present, the offence is aggravated.
Disciplinary action may be taken against employees for negligence because they owe a duty of care to their employers and their
colleagues. The basis of the offence is therefore a breach of that duty. The requirements for dismissal for negligence are:
• The employee failed to exercise the standard of care and skill that can reasonably be expected of an employee with his or her
degree of skill and experience.
• The lack of care and skill manifested itself in an act or omission that did or could have caused loss to the employer.
• The loss or potential loss to the employer resulted or could have resulted from the employee’s negligent act or omission.
• The negligence was gross.
4th Ed, 2022, ch 9-p 228
The test in negligence cases is ‘objective’: the employee’s conduct is compared with the standard of skill and care that would have
been expected of a hypothetical ‘reasonable’ employee in the same circumstances. However, the test also entails a ‘subjective’
element in that the hypothetical reasonable employee with whom the errant employee is compared must have experience and skill
comparable with that of the employee charged.
One difference between the test for negligence applied in labour law and the test applied in civil law is that the labour courts
defer to some extent to the performance standards set by the employer, unless those standards are unreasonable. The test for
negligence is therefore applied not in vacuo or against the standard of reasonable people generally, but in the context of the
particular workplace or industry.
The acts or omissions from which negligence can be inferred are legion. The courts or arbitrators have upheld the dismissal of a
bus driver for causing a collision by driving recklessly; 214 of a truck assistant for failing to pack bricks properly; 215 of an
administrative clerk for failing to file important documents; and of a nurse for failing to take proper care of patients. 216
The common characteristic of all negligence cases is a failure by the employee to take steps necessary to ensure that work is
properly performed. 217 Negligence is usually established with reference to workplace rules or procedures.
It is normally not enough to prove merely that loss occurred or could have occurred as a result of the employee’s negligence; a
causal connection must be established between the employee’s act or omission and the occurrence or potential occurrence of the
loss.
To warrant dismissal at first instance, negligence by an employee must be ‘gross’. Gross negligence may be said to have
occurred if the employee is persistently negligent, or if the act or omission under consideration is particularly serious in itself. 218
While in civil law the term ‘gross negligence’ has a technical meaning, in employment law it can be taken to mean negligence that is
particularly inexcusable.
In less serious cases, employees should be warned for a single negligent act. This applies also to managerial employees, unless it
is held that they should have been aware of the performance standards required of them. 219 Where the consequences
4th Ed, 2022, ch 9-p 229
of a single act or omission are particularly serious, or when the employee holds a position in which negligence on a single occasion
can have disastrous consequences, dismissal may be justifiable on the first occasion – employers are not required to carry the risk
of employing managers who commit gross mistakes. The courts are also less tolerant of employees who possess or claim to possess
special skills and who because of their position and experience can be expected to be aware of the performance standard set by
the employer. 220 They are also intolerant of managerial employees who try to blame subordinates for negligence because
managers are responsible for overseeing subordinates. 221
211 Kammies v Golden Arrow Bus Services (1994) 15 ILJ 1113 (IC ). Dismissals for poor work performance and incapacity are discussed in
C hapters 14 and 15, respectively.
212 (2013) 34 ILJ 2347 (LC ).
213 Gold Fields Mining SA (Kloof Gold Mine) v CCMA (2014) 35 ILJ 943 (LAC ).
214 Dywili v Brick & Clay [1995] 7 BLLR 42 (IC ).
215 MWU obo Heydenrych / Turbine Versions t/a Wonderair [2001] 11 BALR 1187 (C C MA).
216 Mahlangu / St Josephs Home for the Aged [2000] 8 BALR 902 (C C MA).
217 See, for example, Nampak Corrugated Wadeville v Khoza (1999) 20 ILJ 578 (LAC ) – failure by a manager to take proper care of equipment;
SACCAWU v Checkers Shoprite (1996) 17 ILJ 753 (IC ) – failure to comply with company procedures; Metro Cash & Carry v Tshehla (1996) 17 ILJ 1126
(LAC ) – failure to follow cash deposit rules.
218 Unilong Freight Distributors v Muller (1998) 19 ILJ 229 (SC A).
219 See Somyo v Ross Poultry Breeders [1997] 7 BLLR 862 (LAC ) at 866C –F: ‘An employer who is concerned about the poor performance of an
employee is normally required to appraise the employee’s work performance; to warn the employee that if his work performance does not improve, he
might be dismissed; and to allow the employee a reasonable opportunity to improve his performance. . . . Those requirements might not apply in two
cases which are relevant to this matter. The first is the manager or senior employee whose knowledge and experience qualify him to judge for himself
whether he is meeting the standards set by the employer. . . . The second is where “. . . the degree of professional skill which must be required is so
high, and the potential consequences of the smallest departure from that high standard are so serious, that one failure to perform in accordance with
those high standards is enough to justify dismissal”.’ See also Maneche v CCMA (2007) 28 ILJ 2594 (LC ).
221 Mtshwene v Glencore Operations SA (Lion Ferrochrome) (2019) 40 ILJ 507 (LAC ).
17. Harassment
The EEA lists ‘harassment’ as a form of discrimination. 222 Initially, the legislature focused on one form of harassment, sexual
harassment, 223 but in 2022 expanded the reach of the prohibition to harassment in all its forms, including bullying. The new code,
renamed the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace, 224 also deals with sexual
harassment but treats it as a subcategory of harassment in general.
Neither the Act nor the code defines ‘harassment’ or ‘bullying’, except to provide examples of conduct that may be classed as
such. Harassment is described as what it ‘is generally understood to be’: unwanted conduct which impairs dignity and creates a
hostile or intimidating environment calculated to induce submission by actual or threatened adverse consequences and which is
related to one of the prohibited grounds of discrimination set out in the EEA (item 4.1). It may include violence or physical,
psychological, emotional, sexual, gender-based or racial abuse, and itself constitutes an abuse of power (items 4.2 and 4.3).
There are only five specific references to bullying in the code. Verbal bullying is said to include ‘threats, shaming, hostile teasing,
insults, constant negative judgment, and criticism, or racist, sexist, or LGBTQIA+ phobic language’ (item 4.7.3). Bullying is said to
include all forms of harassment involving ‘the abuse of coercive power by an individual or group of individuals in the workplace’ (item
4.7.7). Such group conduct is also called ‘mobbing’ (item 4.7.10). When harassment takes place on social media or by e-mail, it is
referred to as ‘cyber-bullying’ (item 4.7.11). Harassment, particularly in the form of bullying, may be ‘an escalating process in the
course of employment in which the complainant ends up in an inferior position and becomes the target of systematic negative social
acts’ (item 4.5.2).
4th Ed, 2022, ch 9-p 230
Otherwise, examples of bullying morph into the general list of behaviours which are regarded as harassment. In terms of item
4.7.5, these inter alia include (but are not limited to):
• slandering or maligning employees or spreading rumours maliciously
• humiliating, insulting or otherwise demeaning them
• withholding work-related information or giving them false information
• sabotaging or impeding their performance of work
• surveillance of employees without their knowledge and with harmful intent
• use of disciplinary sanctions ‘without objective cause, explanation, or efforts to problem solving’
• demotion without justification
• pressuring an employee to resign.
Such conduct contributes to a ‘hostile work environment’, which is one where the dignity of an employee is undermined by
colleagues or managers, members of the public, customers or clients, including where the employer should have anticipated it or
where harassment may occur indirectly with the effect of impacting dignity or threatening safety (item 4.6).
Various grounds of harassment are elaborated on separately in the code. Harassment on two grounds is specifically targeted.
Sexual harassment is first on the list and embraces not only harassment of the opposite sex but also ‘same-sex harassment’ on the
grounds of gender or sexual orientation (item 5.1). As provided in the EEA, a victim of sexual harassment must indicate by some
means (even by walking away) that the conduct is unwanted and victims must report any incident as soon as possible. Sexual
harassment may be found to have occurred even if a complainant had not indicated that the conduct was unwanted.
Sexual harassment may take many forms, from obvious examples such as touching, kissing, sexual assault and rape, to more
insidious forms like following or watching, indecent exposure or the display by electronic means of sexually explicit pictures or
objects (item 5.2). A single incident may be enough to constitute sexual harassment (item 5.2.7). It may also take the more subtle
forms of victimisation for failing to submit to advances or offering favours to influence an employee to surrender to sexual advances
or, the opposite, favouring employees for the same purpose (item 5.2.6). But the test for whether sexual harassment has occurred
requires that the conduct must be sexual in nature and must be unwanted or unacceptable. All forms of harassment must somehow
be linked to the prohibited grounds listed in s 6(1) of the EEA.
‘Racial harassment’, to which is added ‘ethnic or social origin harassment’, also receives specific attention. In some respects this
is wider than sexual harassment. Racial harassment includes ‘direct or indirect behaviour’ involving ‘racist verbal and non-verbal
conduct, remarks, abusive language, racist name calling, offensive behaviour gestures and racist cartoons, memes, or innuendos’
(item 6.3) – in short, any kind of racial stereotyping. Its forms include, apart from the obvious such as racist name calling and hate
speech, ‘subtle or blatant exclusion from workplace interaction and activities and other forms of marginalisation’ (item 6.6.5).
Unlike sexual harassment, such conduct is presumed to amount to harassment even if the particular person to whom it is aimed
is not offended or indeed is unaware of it
4th Ed, 2022, ch 9-p 231
(item 6.5). The test is ‘objective’ – racial harassment must be assessed ‘objectively with reference to the reaction of a normal or
reasonable person in keeping with the values underlying the constitutional order’ (item 6.8.1) while taking into account ‘South
Africa’s history of institutionalised discrimination’ (item 6.5).
The reach of the code extends beyond the workplace but seems to be limited to situations related to work. These include public
and private spaces where work is performed, places where employees take their meal breaks, work-related trips or social events,
accommodation or transport provided by employers, homes in which domestic workers or caregivers work, and the dwellings of
employees working remotely from home (item 2.3). ‘Employers’ are also broadly categorised. Perpetrators and victims of harassment
may include, apart from employers proper, owners of businesses, managers, job-seekers, trainees, volunteers, clients and
customers, contractors and others dealing with a business (item 2.2).
The code also reminds everyone that the EEA is not the only statute which protects against harassment. First, there is the
general constitutional right to fair labour practice enshrined in s 23(1) of the Constitution, which includes the right of employees to
be protected from harassment at work by persons who are not co-employees. Then there is the PEPUDA, which covers harassment
by an employer’s clients, customers and independent contractors as well as by employees of other businesses or any other member
of the public.
The protection afforded by the LRA is more limited, although it protects employees (and applicants for employment) against
victimisation. Unfair labour practices defined in the LRA may also protect against unfair conduct relating to promotion, demotion,
training, the provision of benefits or disciplinary action short of dismissal. Harassment may render an employee’s working life
intolerable, perhaps justifying a claim of constructive dismissal, or the dismissal of an employee for a reason related to a prohibited
ground may be automatically unfair. The LRA is also relevant to action which can be taken against offenders, because, as the code
and several judgments make clear, harassment is a dismissible offence. The code expressly enjoins a ‘zero tolerance’ approach in
cases of serious or repeated harassment. Finally, the PDA seeks to protect whistleblowers against harassment, and the Protection
from Harassment Act 17 of 2011 allows victims of harassment (which includes communications that may cause mental,
psychological or economic harm) to obtain protection orders against harassers.
Harassment is also covered in its various forms, though less directly, by the Occupational Health and Safety Act 85 of 1993
(OHSA). This requires employers to provide and maintain – ‘as far as is reasonably practicable’ – a safe and healthy workplace by
mitigating hazards. Item 7.5.2 of the code advises in this regard:
A wide range of employees work in situations which bring them into contact with clients or the
public where there is significant risk of harassment, including violence. In these
circumstances, the employer must institute measures consistent with the OHSA to ensure
protection for employees against harassment and violence. This would be particularly
significant in sectors such as hospitality, security, policing or criminal justice operations,
frontline and first responder emergency services, or in situations where money or
prescription drugs are handled.
4th Ed, 2022, ch 9-p 232

The object of the code, as read with this web of legislation, is to create a workplace in which all employees are treated with
dignity. The code enjoins employers to ensure that those who raise complaints ‘will not feel that their grievances are ignored or
trivialised’ or fear reprisals (item 8.2). The obligation to refrain from harassment rests not only on employers but also on trade
unions, employees and third parties like clients, customers and suppliers. But only employers must provide a clear statement of their
positions on harassment (item 8.2.5), adopt and communicate harassment policies and take ‘appropriate action’ when harassment
occurs (item 8.2.7).
These harassment policies must ‘take cognisance of and be guided by the provisions of this Code’ (item 9.1). Failure to do so
may be a factor in determining whether the employer has complied with its obligations under the EEA (item 9.3). Harassment
policies must include at least a statement that harassment will not be tolerated and that grievances will be investigated and
confidentially handled. Policies must outline the procedure that will be followed in such cases and indicate where counselling,
treatment, care and support for victims can be obtained (items 9.4 to 9.6).
The code also refers to a form of harassment peculiar to the workplace – ‘quid pro quo’ harassment occurs when a superior
‘influences or attempts to influence an employee’s employment circumstances (for example engagement, promotion, training,
discipline, dismissal, salary increments or other benefits) by coercing or attempting to coerce an employee to surrender to sexual
advances’ (item 5.2.6.2). Quid pro quo harassment does not necessarily entail an explicit promise of favours. An indirect suggestion
that employees might be prejudiced if they deny sexual favours is sufficient. A senior employee’s remark that he was the ‘final
authority’ and that the complainant could complain to ‘no one else’ about his conduct, was found to carry a sufficiently clear
innuendo to amount to quid pro quo harassment. 225
The code largely reflects earlier case law in cases involving harassment. Except in some cases of racial harassment, employees
who allege that they have been harassed must prove that they subjectively felt at the time that the conduct in question was
offensive. The complainant’s subjective feelings must also be assessed against an objective standard. 226
If disciplinary action is taken against an employee for sexual harassment, the employer must prove that the employee was guilty
of that offence and hold a proper disciplinary inquiry (see below). A mere complaint from another employee is insufficient to prove
the offence. Thus where the evidence indicated that the parties had merely engaged in ‘sex talk’ and the employer failed to prove
who had begun the conversation, the dismissal of the alleged offender was found to be unfair. 227
4th Ed, 2022, ch 9-p 233
Although, literally, harassment suggests conduct of a continuing nature, the line between a spontaneous incident and persistent
conduct may be difficult to draw. A single incident that continues for some time may constitute harassment; 228 spontaneous
physical contact need not. The accused employee’s intention and the effect which he or she knew, or ought reasonably to have
known, would follow the act is therefore relevant to an assessment of whether a sexual act constitutes harassment. A single
suggestion by a superior that he or she will grant or deprive the employee of some benefit if sexual favours are granted or withheld
will amount to sexual harassment, because the employee’s future conduct could be affected by the suggestion. So, too, could the
occurrence of a particularly gross form of sexual assault warrant dismissal if the assailant shows no remorse and the victim is forced
to continue to work in the company of the offender. 229
Whether a spurned romantic proposal or even a hopeful suggestion of a sexual romp amounts to sexual harassment is left for the
courts and arbitrators to decide. A classic case was that of Mr Simmers who asked a much younger female business associate after
dinner at a rural lodge in Botswana: ‘Do you want a lover tonight?’ A CCMA commissioner ruled his dismissal fair, but the Labour
Court proved sympathetic. 230 The judge found that the incident had not crossed the line between sexual attention and sexual
harassment. But that judgment did not survive appeal – the LAC held that Simmers’ conduct was unwelcome, unwanted, of a sexual
nature, crude, inappropriate and made to a young woman nearly 25 years his junior. This was enough to satisfy the definition of
sexual harassment. 231
The LAC and the Constitutional Court took much the same approach in McGregor v DOH, Western Cape, 232 in which a medical
specialist had made unwanted advances on a female intern with whom he had travelled on a business trip. The court found that,
although some of the incidents to which the complainant had been subjected were not in themselves particularly serious, Dr
McGregor’s conduct had to be viewed in context, including the difference in age between him and the intern. The court found that,
taken together, the incidents had destroyed the employment relationship between McGregor and the department. In Ekurhuleni
Metropolitan Municipality v SALGBC, 233 the LAC regarded a flirtatious approach by a driving centre official towards an applicant for
a learner’s licence as entirely beyond the pale and upheld the official’s dismissal.
The requirement that the complainant’s reaction must be reasonable creates the problem of determining the degree of tolerance
that can be expected of individuals who are subjected to conduct that they perceive as harassment. Some women may regard a
‘wolf whistle’ as a compliment; such attention may gravely offend others. But the law requires an ‘objective’ test: would a
reasonable person in the position of the complainant have viewed the conduct as offensive? Care must be taken when answering
this question because it is in reality subjective. Employees guilty of sexual harassment should not be allowed to benefit from the
fact that their victims
4th Ed, 2022, ch 9-p 234
may have ‘overreacted’ to the misconduct; to an extent, the harasser must ‘take his victim as he finds her’ (or him). 234
The offence of sexual harassment requires fault on the part of the accused employee. However, the mental requirement can fall
short of actual intent. Employees can properly be found guilty of sexual harassment if they ought reasonably to have known that
their conduct was offensive and unwelcome to the complainant.
Because of the sensitive nature of harassment, the code requires employers to develop clear procedures to deal with it in a
‘gender-sensitive, confidential, efficient, and effective manner’ (item 10). The policy itself begins with the reporting stage and the
trigger is pulled by the complainant. As required by the EEA (s 60(1)), harassment must be brought to the employer’s attention
immediately – although the code adds that what amounts to ‘immediately’ depends on the facts (item 10.1.2), taking into account
fear of reprisals and the victim’s position relative to the alleged perpetrator’s (item 10.1.3). The lodging of a complaint must be
followed by an investigation and appropriate steps to prevent a recurrence. This will begin with the employer consulting all relevant
parties and then taking the necessary steps to eliminate the harassment, which may include disciplinary action against the culprit
(item 10.2). Failure to do so may result in the employer being held vicariously liable for the conduct of the employee (item 10.3).
Complainants may need counselling, advice and assistance. A person from outside line management – who may be a union
representative, co-employee or professional – must be designated for that purpose and given resources to do so (item 10.5). The
complainant must be advised that the problem may be dealt with informally or formally and the employee may choose which, except
that in certain cases the employer may decide on formal procedures even if the complainant has decided otherwise (item 10.6.1).
The informal procedure is just that: the complainant or another ‘appropriate person’ (with or without the complainant) must
explain to the alleged perpetrator the wrongfulness of the behaviour that they are accused of and that it makes the complainant(s)
feel uncomfortable. Presumably depending on the alleged culprit’s response, either the complainant or the employer may choose a
formal process, which effectively means disciplinary action.
The employer would in such cases follow the procedure set out in its disciplinary code, except that the prior investigation and
the proceedings must be kept confidential (item 11) with attendance limited to management, the complainant, the alleged
perpetrator, the parties’ representatives, and an interpreter, if required, to whom all relevant information may be supplied.
Even then, depending on the severity of the harassment and the culprit’s past record, his or her fate is not entirely sealed. The
harassment policy must specify the range of sanctions that may be imposed for harassment, ranging from warnings for minor cases
to dismissal for repeat offenders or in serious cases (item 10.9).
4th Ed, 2022, ch 9-p 235
The complainant retains the right to institute civil or criminal action against the perpetrator. In CS v Swanepoel, 235 the High Court
took the department to task for not dismissing a teacher who raped a 12-year-old girl in the staff toilet and ordered that the child
be paid damages.
After that, the law must take its course. The perpetrator retains the right to challenge any sanction that may have been
imposed via the procedures provided by the LRA. This may include challenging the veracity of the compliant or the severity of the
sanction. CCMA commissioners, bargaining council panellists and even Labour Court judges must receive specialised training on how
to deal with harassment cases (item 13.3).
Whether an employer must follow the informal process stipulated in the code depends on the nature of the case and, it seems,
the wishes of the complainant. In Motsamai v Everite Building Products, 236 the court rejected the appellant’s argument that his
dismissal for sexual harassment was procedurally unfair because the company should have held an ‘informal’ mediation meeting
between him and the complainants before taking the disciplinary route. The court observed that sexual harassment goes to the
root of the victim’s integrity as a human being. To force mediation on reluctant victims would compound the wrong. The
complainants had requested that Motsamai be disciplined. They could not be forced into mediation. The court found the
commissioner’s ruling that the dismissal was procedurally fair unimpeachable.
Not every case of sexual harassment necessarily warrants dismissal. Arbitrators should exercise great care not to be influenced
by the inherently sensitive and emotive nature of such matters. Serious as all cases may be, like all offences, harassment is a
matter of degree, ranging from behaviour calculated merely to irritate to cases of criminal assault. Arbitrators should also be alive
to the fact that some individuals are far more sensitive than others to unwanted attention, and that the perpetrator may not
realise that he or she is dealing with a hypersensitive or even dishonest complainant. 237 Regrettably, claims of sexual harassment
may also on occasion be made for ulterior reasons. 238
222 Section 6(3).
223 This was done by the Amended C ode of Good Practice on the Handling of Sexual Harassment C ases in the Workplace (GN 1357 in GG 27865 of
4 August 2005), which replaced the C ode of Good Practice on the Handling of Sexual Harassment C ases (GN R1367 in GG 19049 of 17 July 1998). See
Grogan Employment Rights 3 ed (Juta 2019) C hapter 10.
224 GN R1890 in GG 46056 of 18 March 2022.
225 Sookunan and SAPO (2000) 21 ILJ 1923 (C C MA). See also Taljaard and Securicor (2003) 24 ILJ 1167 (C C MA).
226 Gregory and Russells (1999) 20 ILJ 2145 (C C MA); Reddy v University of Natal (1998) 19 ILJ 49 (LAC ). A leading case on quid pro quo sexual
harassment is Gaga v Anglo Platinum (2012) 33 ILJ 329 (LAC ). An example of a case in which employees failed to prove that they were sexually
harassed is provided by Mokoena v Garden Art (2008) 29 ILJ 1196 (LC ).
227 Sadulla v Jules Katz & Co (1997) 18 ILJ 1482 (C C MA).
228 Reddy v University of Natal (1998) 19 ILJ 49 (LAC ).
229 In Ngantwini / Daimler Chrysler [2000] 9 BALR 1061 (C C MA), the commissioner remarked (at 1066G–I) that a case in which a male employee
had grabbed a female colleague’s breast ‘is not really a case about sexual harassment’. He continued: ‘It is a case about a man who, apparently
overcome by an irresistible urge, grabbed a woman who was a stranger to him in a public place for purposes of sexual gratification perhaps in the hope
that she would not take exception to his advances.’
230 Simmers v Campbell Scientific Africa (2014) 35 ILJ 2866 (LC ).
231 See Campbell Scientific Africa v Simmers (2016) 37 ILJ 116 (LAC ).
232 (2021) 42 ILJ 514 (LAC ); McGregor v PHSDSBC (2021) 42 ILJ 1643 (C C ).
233 (2022) 43 ILJ 825 (LAC ).
234 As the arbitrator noted in Ngantwini / Daimler Chrysler [2000] 9 BALR 1061 (C C MA): ‘Even if [the complainant’s] mental stress and subsequent
nervous breakdown are indicative of an extremely sensitive disposition, it was not so extreme as to be unnatural. In any event, the perpetrator of a
blatant act of sexual molestation in a public place cannot complain if he happens to choose a sensitive victim.’
235 [2022] 7 BLLR 660 (WC C ).
236 Motsamai v Everite Building Products [2011] 2 BLLR 144 (LAC ).
237 A claim that a commissioner exhibited ‘latent gender bias’ in favour of a female complainant failed in Adcock Ingram Healthcare v GIWUSA obo
Khumalo [2020] 2 BLLR 162 (LC ), but succeeded in Old Mutual Life Assurance SA v Makanda (2020) 41 ILJ 444 (LC ).
238 See, for example, SABC v Grogan NO (2006) 27 ILJ 1519 (LC ) – employee lodging grievance a long time after the incident, and only after the
perpetrator had instituted disciplinary action against the complainant; Simpson / Forklift Rental and Technical Services t/a Forktech [2005] 10 BALR 1098
(C C MA) – employee jokingly touching colleague’s breast at social party; Sylvester / Neil Muller Constructions [2002] 1 BALR 113 (C C MA) – employee
sending single risqué SMS to colleague; X / Y [2006] 10 BALR 1057 (C C MA) – doctor conducting thorough examination of female employee’s chest; Nel /
PEC Group [2004] 6 BALR 727 (C C MA) – employee unaware that complainant would take offence; Westmeyer / Wynne-Clarke [2006] 8 BALR 842
(C C MA) – employee claiming sexual harassment in defence to justified disciplinary action; Ebrahim / Telkom SA [2006] 2 BALR 176 (C C MA) –
complainant not wanting matter pursued.

4th Ed, 2022, ch 9-p 236
Sleeping on duty should more properly be termed ‘failing to do one’s job’. Whatever the cause of the employee’s slumber, sleeping
on duty is recognised as an offence in itself.
Employees may be disciplined for sleeping on duty only if:
• They are asleep at a time when they should be attending to their duties.
• The employee’s sleeping state was not caused by something beyond their control.
• The employee was or should have been aware at the time that sleeping constituted a disciplinary offence.
Whether the employee was indeed asleep at the time is a question of fact, to be determined from the evidence. The onus rests on
the employer to prove that the employee was asleep or, at the very least, was relaxing to the extent that he or she could not
possibly have been concentrating on his or her duties. 239 Arbitrators have been ready to accept circumstantial evidence in such
cases, such as snoring, the posture of the employee at the time he was spotted, failure to clock, and so on.
If employees fall asleep as a result of work-related exhaustion, 240 or because they are on sleep-inducing medication, they will
not generally be guilty of misconduct, unless they could and should have brought their condition to the attention of the employer.
However, where exhaustion or a drugged state is self-induced, employees may be disciplined.
Napping on duty will rarely be regarded as an offence justifying dismissal at first instance, except if the employee is a security
guard or is in a position where a momentary lapse in concentration could have serious consequences for the employee or other
workers. 241 The employer’s disciplinary code is also relevant. 242 If employees are genuinely unaware that a quick nap is regarded
as a disciplinary offence, they generally do not deserve any more than a verbal warning. 243 But if employees sleep after having
been previously warned not to do so, dismissal may be warranted. 244
239 FOCSWU obo Dyaloyi / Qulani Security [2000] 8 BALR 879 (C C MA).
240 In CWIU v Boardman Brothers (Natal) (1995) 16 ILJ 619 (LAC ), a divided court held that employees who were working illegal overtime at their
request, but persistently slept on duty contrary to the employer’s instructions because, so they said, ‘their bodies would not allow them to work
anymore’, had been unfairly dismissed.
241 Mostert and Dorbyl Automotive (1999) 4 LLD 68 (C C MA).
242 If employees are clearly warned that sleeping on duty would result in dismissal at first instance, dismissal is more likely to be upheld. On the
other hand, arbitrators may interfere if the disciplinary code provides for graduated warnings in such cases: see, for example, Chamber of Mines and
NUM (1988) ARB 7.11.1.
243 See Metal Box SA and MAWU (1987) ARB 8.10.1.
244 Labuschagne / WP Construction [1997] 9 BLLR 1251 (C C MA).
19. Theft
At common law, theft by employees of the property of their employers is regarded as the gravest form of breach of the duty of
fidelity, justifying instant dismissal.
4th Ed, 2022, ch 9-p 237
Theft by employees of property belonging to their colleagues is regarded in the same light.
Employees are guilty of theft if they appropriate goods belonging to another with the intention of permanently depriving the
owner of the use and possession of those goods. Theft therefore requires proof of intention to deprive the owner of use and
possession and knowledge that the act was unlawful. It must also be proved that the employee committed an act by which the
owner is actually deprived of possession. A charge of theft embraces an unsuccessful attempt to steal. 245
Unauthorised possession does not require as stringent a test; it is an offence even if it is not proved that the employee actually
intended to steal the goods, but in most cases this can be inferred. The LAC was unable to discern the difference between theft
and unauthorised possession in Aquarius Platinum v CCMA unless the employee has proved that they intended to return the
property. 246 As the court put it in another case, the inquiry into a charge of unauthorised possession is determined by the fact of
possession and the plausibility of the explanation. 247
The necessary mental element is present if accused employees knew that the goods did not belong to them and they intended
to remove the property permanently from the owner, knowing that they were not entitled to do so. If employees genuinely believe
that they are authorised to consume the goods, they are not guilty of theft. 248 The physical element of theft is proved if the
employee’s act gives rise to the conclusion that the employee intended to deprive the owner of possession of the goods.
Both elements need to be proved on a balance of probabilities. In most cases it will be clear that an employee who removed
goods from the workplace without authority intended to steal the goods; mere unauthorised removal of the goods is enough to
constitute theft. 249
Employees sometimes offer novel excuses, the most common of which are that they merely intended borrowing the goods for a
brief period to use at home, that they did not intend removing the goods from the employer’s property, 250 or that they were under
the impression at the time that they were permitted to remove the goods. In such cases, the onus rests on the employer to prove
that the necessary intent was present.
In Transnet Rail Engineering v TBC, 251 the respondent employee was dismissed for unauthorised possession of goods belonging
to Transnet. He raised a novel defence, claiming that he suffered from kleptomania and could not remember how he came to be in
possession of copper items. After considering reports by psychologists, an arbitrator took the view that, since kleptomania was a
disease, it had to be treated like alcoholism. He held that the employee’s conduct should have been treated as a
4th Ed, 2022, ch 9-p 238
case of incapacity, not of misconduct, and ruled the dismissal substantively unfair. The court found on review that the kleptomania
claim was a mere afterthought. The employee had initially claimed that he had been framed by an identified person, and had
pleaded guilty to theft and had received a sentence of community service. The arbitrator had weighed against these facts the
reports of ‘experts’ who had not been called to testify and had simply accepted the reports as binding without making any attempt
to evaluate them. The court found that the reports provided no factual basis on which a reasonable conclusion could be reached
that the employee suffered from kleptomania. The court did not say what the outcome would have been had the employee indeed
been suffering from kleptomania.
Employers are not required to prove charges of theft with the rigour expected of the state in criminal prosecutions – proof on a
balance of probability suffices. 252 But some proof is required; mere suspicion that an employee is a thief cannot justify
dismissal. 253 Apart from applying a less onerous standard of proof, the courts also accept broader formulations of the charge,
such as ‘unauthorised possession of company property’ or ‘unauthorised till procedures’.
The proper test for distinguishing between completed and uncompleted acts of appropriation is whether the owner has lost
possession and the appropriator acquired possession. 254 In such cases, sufficient evidence against the employee is required to
warrant the inference that the employee acted dishonestly. The employee must obviously be aware of a rule prohibiting removal of
the goods in question. 255
The Labour Court has also found that the difference between theft and ‘unauthorised possession of company property’ may be
relevant to sanction. In NUMSA obo Ngele v Delta Motor Corporation, 256 a commissioner’s award was set aside because he had
found that an employee who had been charged with possession of company property (a toilet roll) should also have known that
theft was not permitted. The court found that the company’s policies on misappropriation of company property provided for a
sanction less severe than dismissal for ‘less serious instances’. The commissioner should have found that the employee should have
benefited from that provision. The LAC held later that nothing turns on the distinction between theft and unauthorised possession:
both are dishonest. 257
A controversial exception that has been accepted in some cases relates to dismissals under rules designed to combat ‘shrinkage’
(stock losses that occur due to theft and/or poor stock control procedures). The first case of its kind decided by a labour tribunal
was SACCAWU v Cashbuild, 258 in which the entire staff of a branch of the company, from the manageress down, was dismissed
after shrinkage at their store exceeded the level acceptable to management. Although individual
4th Ed, 2022, ch 9-p 239
employees could not be linked to the losses, the industrial court ruled that the company had acted fairly because it had clear rules
regarding stock control, which had been negotiated with the employees. The employees concerned had been counselled and then
placed on final warnings that if the store experienced further losses, they would be dismissed.
In subsequent cases of a similar nature, the view has been expressed that such cases breach the rule against ‘collective guilt’.
However, in FEDCRAW and Snip Trading, 259 a private arbitrator took a different approach. He was called upon to decide whether
the company’s policy of holding all employees accountable for stock losses beyond a certain level was inherently unfair. The
arbitrator pointed out that the concept of ‘collective guilt’ was different from that of ‘collective responsibility’ or, as he termed it,
‘team misconduct’, in which employees are dismissed because as individual components of the group each employee has failed to
comply with performance standards, such as guarding against stock losses. 260
Under the 1956 LRA, the industrial court distinguished in some judgments between theft and ‘petty pilfering’ and required that, to
warrant dismissal, the offence should disclose a ‘thieving propensity’ on the part of the employee. 261 In some judgments, the
value of the stolen goods was regarded as relevant. These distinctions were rejected by the LAC in Anglo American Farms t/a
Boschendal Restaurant v Komjwayo, 262 and Central News Agency v CCAWUSA. 263
Although under the current LRA some commissioners and arbitrators have sought to revive the distinction between ‘pilfering’ and
theft, 264 or have ruled that because of the negligible value of the stolen property dismissal was too harsh a sanction for proven
theft, 265 the Labour Court and the LAC have consistently upheld a stern approach to theft, although cautioning that disciplinary
action should in appropriate cases be dealt with progressively. 266 In several cases, awards in which CCMA commissioners
reinstated employees who were found guilty of theft subject to final warnings have been set aside on the basis that the
commissioners’ awards were ‘unjustifiable’ or ‘grossly irregular’. 267
When an employee is party to theft or to the unauthorised possession of company property, judges and arbitrators do not
normally concern themselves with the distinction drawn in criminal law between the perpetrators of the offence and accomplices or
accessories. Employees who knowingly assist a colleague to steal
4th Ed, 2022, ch 9-p 240
are equally liable. So, too, are those who are aware that theft has been committed but fail to report it to the employer. 268 The
issue in such cases is not the degree of participation, but the breach of trust inherent in the employees’ complicity. 269
245 Sol Plaatje Municipality v SALGBC (2022) 43 ILJ 145 (LAC ).
246 (2020) 41 ILJ 2059 (LAC ).
247 Qalinga v CCMA [2019] 1 BLLR 40 (LAC ).
248 See Matsekoleng v Shoprite Checkers [2013] 2 BLLR 130 (LAC ), in which the employee was under the impression that the bottle of milk he had
taken had been donated for use by a store tea club.
249 See Aquarius Platinum v CCMA (2020) 41 ILJ 2059 (LAC ).
250 See, for example, Rand Water Board / NETU obo Weber [1998] 5 BALR 650 (IMSSA), in which the employer failed to prove that the employee
intended to steal discarded wheelbarrow wheels.
251 (2012) 33 ILJ 1481 (LC ).
252 See, for example, Leonard Dingler v Ngwenya (1999) 20 ILJ 1171 (LAC ); Early Bird Farms v Mlambo [1997] 5 BLLR 541 (LAC ); Administrative
& Technical Association of SA v Free State Consolidated Gold Mines (Operations) [1987] 11 BLLR 1397 (LAC ).
253 Dion Discount Centres v Rantlo [1996] 1 LLD 9 (LAC ); Louw / Delta Motor Corporation [1996] 2 BLLR 673 (C C MA).
254 Rainbow Farms v CCMA [2011] 5 BLLR 451 (LAC ).
255 New Denmark Colliery / NUM obo Mahlabane [2000] 12 BALR 1460 (IMSSA).
256 (2002) 23 ILJ 1876 (LC ).
257 Aquarius Platinum v CCMA (2020) 41 ILJ 2059 (LAC ).
258 [1996] 4 BLLR 457 (IC ).
259 (2001) 22 ILJ 1945 (ARB).
260 ‘Team liability’ and ‘collective guilt’ are discussed in C hapter 11.
261 See, for example, Nkomo v Pick ’n Pay Retailers (1989) 10 ILJ 937 (IC ).
262 (1992) 13 ILJ 573 (LAC ).
263 (1991) 12 ILJ 340 (LAC ).
264 See, for example, Strydom / Usko [1997] 3 BLLR 343 (C C MA); Durban City Police / SAMWU [1998] 7 BALR 929 (IMSSA); SACCAWU obo Sandi
/ Solly Kramer [1999] 10 BALR 1207 (C C MA).
265 Metrorail (Wits) / SAFWU [1998] 1 BALR 88 (IMSSA).
266 See, for example, Orange Toyota (Kimberley) v Van der Walt (2000) 21 ILJ 2294 (LC ).
267 See, for example, Metcash Trading t/a Metro Cash & Carry v Fobb (1998) 19 ILJ 1516 (LC ); Standard Bank of SA v CCMA (1998) 19 ILJ 903
(LC ); Shoprite Checkers v CCMA (1998) 19 ILJ 892 (LC ); Consani Engineering v CCMA (2004) 25 ILJ 1707 (LC ). The LAC affirmed this approach in
Shoprite Checkers v CCMA (2008) 29 ILJ 2581 (LAC ) and again in Miyambo v CCMA (2010) 31 ILJ 2031 (LAC ), in which the employees were dismissed,
respectively, for eating ‘pap’ and taking scrap metal belonging to their employers. But see the conflicting judgment in Shoprite Checkers v CCMA [2008]
12 BLLR 1211 (LAC ).
268 This is known as ‘derivative misconduct’: see C hapter 11.
269 Olckers v Monviso Knitwear (1988) 9 ILJ 875 (IC ); SACWU v Agrihold (1992) 1 LCD 246 (IC ); Williams v Gilbeys Distillers & Vintners (1993) 2
LCD 327 (IC ).

The unauthorised use or possession of company property, though falling short of theft, is generally regarded as sufficient to
warrant dismissal, particularly where there is a clear rule that has been consistently applied. In such cases, employers must prove
that accused employees were indeed in possession of the goods in question and that they did not have permission to take the
goods. Employers must also prove that the employees knew that the goods were in fact in their possession. 270
Rules pertaining to the use of motor vehicles are most commonly breached in this way. 271 The gravity of this offence will
depend on the usual considerations, such as the employee’s past disciplinary record and the seriousness of the infraction. However,
where the employee’s work involves driving the employer’s vehicles, ‘frolics’ for private reasons are frowned upon. This is
understandable, because, apart from the cost of unauthorised trips, employers may be vicariously liable for accidents caused by
employees, unless they can prove that the employee was using the vehicle outside the scope of his or her duties. If an employee
has an accident while using a vehicle without permission, the offence will also be regarded in a more serious light; so, too, if
employees use company vehicles for their own gain.
Other pieces of equipment that lend themselves to abuse are company electronic devices. The advent of the internet, e-mail
and mobile phones has given employees ample opportunity to waste company time on accessing sites and making calls that have
nothing to do with business. This may include transmitting or storing personal and undesirable material. The courts and arbitrators
have generally shown little sympathy with employees who indulge themselves in this way. 272 Abuse of computer facilities may also
be viewed as a form of dishonesty.
270 Pick ’n Pay Supermarket v Boshomane [1995] 8 BLLR 8 (LAC ).

271 See, for example, Toyota SA Motors v Radebe (2000) 21 ILJ 340 (LAC ); Ndala v Value Truck Rental [1995] 9 BLLR 138 (IC ); Eskom / NUM
[2000] 8 BALR 947 (IMSSA); SAMWU obo Peni and City of Tygerberg (1998) 3 LLD 429 (C C MA).
272 See Cronjé v CCMA (2002) 23 ILJ 1563 (LC ); Bamford / Energiser (SA) [2001] 12 BALR 1251 (P); Dauth and Brown & Weir’s Cash &
Carry (2002) 23 ILJ 1472 (C C MA); Van Wyk v Independent Newspapers Gauteng (2005) 26 ILJ 2433 (LC ).

‘Failure to comply with company rules’ is something of a catch-all offence often found in disciplinary codes. Whether this infraction
justifies dismissal depends on the nature of the rule or policy, its purpose, and, of course, whether the employees were aware of
the rule. Some company rules embrace other offences, such as
4th Ed, 2022, ch 9-p 241
absenteeism. Deliberate failure to follow a rule may also indicate insubordination. Breaches of rules of which the courts tend to be
least tolerant are those relating to safety in the workplace. 273
The approach to be adopted when dealing with a failure to comply with workplace safety rules is no different to that adopted
when dealing with any other form of misconduct – the employer must establish that the rule contravened by the employee was
known to the employee; that the rule was reasonable; and that the contravention was sufficiently serious to warrant dismissal. 274
All these requirements were proved in respect of a driver of a petrol tanker who broke the company-imposed speed limit in an urban
area and had to brake violently, apparently to avoid an accident. 275
The following factors must be considered when assessing this kind of misconduct: the importance of the rule; the flagrancy of
the breach; the circumstances in which the offence was committed; mitigating factors in favour of the employee, including his
disciplinary record and length of service; whether progressive discipline would have been appropriate; the actual or potential injury
to the employee or others; the level of risk where actual harm has not occurred; the extent of the employee’s understanding of the
safety rules and the provision of training in relation to the rules; remorse shown by the employee for non-compliance with the
rules. 276
273 For example, Harmony Gold Mining Co v CCMA (2013) 34 ILJ 912 (LC ).
274 See Sasol Mining v CCMA (2015) 36 ILJ 2359 (LC ); NUM v Sibanye Gold (Kloof Division) (2018) 39 ILJ 2476 (LAC ).
275 DETAWU obo Mqaqambiso v BP Southern Africa (2022) 43 ILJ 157 (LC ).
276 See also Samancor Chrome (Eastern Chrome Mines) v NUM obo Mahlangu [2019] 1 BLLR 82 (LC ) and Mahlangu v Samancor Chrome (Eastern
Chrome Mines) (2020) 41 ILJ 1910 (LAC ); Samancor (Eastern Chrome Mines) v CCMA (2020) 41 ILJ 2135 (LAC ), upheld on further appeal (NUMSA obo
Masha v Samancor (Eastern Chrome Mines) (2021) 42 ILJ 1881 (C C )).

The attempt in this chapter to classify various forms of misconduct should not be understood to suggest that the offences listed
are the only infractions for which employees may be fairly dismissed. Many other forms of misconduct have been accepted by
courts and arbitrators as warranting dismissal, even though they are not expressly mentioned in the Code of Good Practice:
Dismissal or in applicable disciplinary codes. 277
Apart from those already discussed, and merely to serve as additional examples, the following forms of misconduct have been
accepted as warranting dismissal:
• sustained and systematic bullying of staff by a manager 278
• bugging a management meeting 279
• possession of catapults in the workplace 280
4th Ed, 2022, ch 9-p 242
• refusal by a security guard to undergo a polygraph test at the request of the employer’s client 281
• possession of firearms 282
• making unauthorised statements to the media 283
• receiving a travel allowance to which the employee knew he was not entitled and then offering under protest to repay the
money received in derisory instalments 284
• failing to disclose information relating to misconduct by colleagues 285
• refusing to testify in arbitration proceedings concerning the dismissal of a colleague. 286
There are too many other examples to list.
277 Nyembezi v NEHAWU [1997] 1 BLLR 94 (IC ) – disruptive and drunken behaviour at a union congress; Kammies v Golden Arrow Bus
Services (1994) 15 ILJ 1113 (IC ) – repeated negligent and reckless driving. In neither case were the offences concerned classified as dismissible
offences in the respective employer’s disciplinary codes. See also Verwey v VWSA [1996] 9 BLLR 1198 (IC ).
278 Van Rooy v Nedcor Bank (1998) 19 ILJ 1258 (LC ).
279 Geerdts v Multichoice Africa (1998) 3 LLD 446 (LAC ).
280 Phiri v Impala Platinum (1995) 16 ILJ 500 (IC ) – because the catapults could be used for launching precious metals over the perimeter wall of
the workplace.
281 SATAWU obo Zimu and Group 4 Securicor Security Services (2009) 30 ILJ 1674 (C C MA).
282 Kaye / SAA [2001] 11 BLLR 1170 (C C MA).
283 National Commissioner of the SAPS v Myers (2012) 33 ILJ 1417 (LAC ). But see Ikwezi Municipality v SALGBC (2012) 33 ILJ 1447 (LC ).
284 Theewaterskloof Municipality v SALGBC (Western Cape Division) (2010) 31 ILJ 2475 (LC ).
285 This is so-called ‘derivative misconduct’: see NUMSA obo Nganezi v Dunlop Mixing & Technical Services (2019) 40 ILJ 1957 (C C ), discussed in
C hapter 11.
286 Kaefer Energy Projects v CCMA (2022) 43 ILJ 125 (LAC ).
Dismissal / Chapter 10 Procedural fairness in misconduct cases
Chapter 10
Procedural fairness in misconduct cases
4th Ed, 2022, ch 10-p 243
1. Introduction
2. The common law
5. General requirements of a fair procedure
6.1 General
6.2 Entrapment
6.4 Lie detectors
7. Fair hearing
7.1 Generally
7.2 Overview
7.5 Adequate notice
7.6 Charges
7.7 The plea
7.8 Delay
7.11 Representation
7.15 The decision
4th Ed, 2022, ch 10-p 244
11.2 Deserters
1. Introduction
To be fair, a dismissal for misconduct must not only be for a fair reason, 1 the employer must also follow a fair procedure before
taking the decision to dismiss. Procedural fairness is the yardstick by which employers’ pre-dismissal actions are measured. The two
requirements of fairness are generally regarded as distinct: a substantively fair dismissal may be unfair because the employer failed
to follow a fair procedure. The LRA confirms that procedural and substantive fairness are independent requirements for a fair
dismissal. 2 The Act also provides that an employee whose dismissal is only procedurally unfair cannot be reinstated; 3 the
compensation to which such employees were entitled was also dealt with in a separate provision before the 2002 amendments to
the Act 4 but has now been excised. This means that an employee whose dismissal was only procedurally unfair may possibly
receive the maximum compensation provided by the LRA. 5
1 See C hapter 8.
2 Section 188(1).
4 Section 194(1).
5 See C hapter 24.
2. The common law

The right to a fair hearing before dismissal does not exist under the common law, which confers on employers an unfettered right to
terminate the employment on the requisite notice. However, the parties may reserve for themselves the right to and obligation to
comply with a fair hearing by contract. If the employment contract confers such a right, the employer must comply with it. If the
employer does not do so, the dismissal itself will constitute a breach of contract, giving the employee the right to accept the
termination and sue for damages, or to seek reinstatement. 6
4th Ed, 2022, ch 10-p 245
Both the Labour and High Courts have jurisdiction to entertain such claims. 7 There were for a time signs that both courts were
having second thoughts about allowing dismissed employees to avoid the dispute resolution procedures created by the LRA by
bringing breach of contract claims, either on the ordinary role or urgently, 8 at least where the claim clearly falls under the LRA.
However, where the dismissed employee disavows reliance on that Act, both courts have jurisdiction. 9
6 See Ngubeni v National Youth Development Agency (2014) 35 ILJ 1356 (LC ).
7 In terms of s 77(3) of the BC EA.
8 Zungu v Premier of the Province of KZN (2018) 39 ILJ 523 (C C ). See also SARS v CCMA (2017) 38 ILJ 97 (C C ); James v Eskom Holdings (2017)
38 ILJ 2269 (LAC ); Steenkamp v Edcon (2016) 37 ILJ 564 (C C ). The overlapping jurisdiction of the Labour and High C ourts in breach of contract claims is
discussed in Grogan Labour Litigation and Dispute Resolution 3 ed (Juta 2019) C hapters 4 and 5.
9 Baloyi v Public Protector (2021) 42 ILJ 961 (C C ).

In matters dealt with under the LRA, the courts appreciate that it is not possible in all cases to draw a rigid line between the
requirements of procedural and substantive fairness. In some cases, a failure of natural justice may be sufficiently gross to render
the dismissal substantively unfair. But as a rule of thumb, it can be said that substantive fairness relates to the reason for the
dismissal and the appropriateness of the sanction; procedural fairness relates to the manner in which the employer arrived at the
decision to impose the sanction.
The requirements of procedural fairness were developed by the labour courts from the rules of natural justice of the common
law, adapted to suit the employment arena. In developing the requirements of procedural fairness, the labour courts were
influenced by the relevant provisions of the instruments of the ILO and the relevant principles of English law.
However relaxed they may be, the rules of procedural fairness require employers to act in a semi-judicial manner before imposing
a disciplinary penalty on an employee. This discourages rash and arbitrary action. However, the principles of procedural fairness
should not be interpreted or applied in a technical manner; employers are not expected to handle disciplinary proceedings according
to the rigorous standards applied in courts of law. 10 Nor does the employer’s obligation to adhere to the principles of procedural
fairness mean that employees can be compelled against their will to attend disciplinary hearings. 11 The rules of natural justice
require no more than that employers should act according to the common-sense precepts of fairness.
10 Mondi Timber Products v Tope (1997) 18 ILJ 149 (LAC ); Whitfield v Inyati Game Lodge (1995) 4 LCD 178 (IC ).
11 NUM v Zinc Corporation of South Africa (LAC case no. 11/2/11462, undated and unreported); Sibiya v NUM (1996) 1 LLD 128 (IC ). But an
employee declines to attend a properly constituted hearing at his or her peril.

Employers’ authority to discipline employees flows from their inherent power as parties to the employment relationship. Once that
relationship terminates, the employer loses its right to discipline.
4th Ed, 2022, ch 10-p 246
A problem arises if the accused employee resigns to evade disciplinary proceedings without giving notice. This has happened in a
number of cases, which have given rise to conflicting judgments. The first was Mtati v KPMG Services, 12 in which the court held
that once an employee resigns ‘summarily’, the employer loses authority to subject the employee to disciplinary action. Later, in
Coetzee v Zeitz Mocaa Foundation Trust, 13 the court held that employees remain subject to the employer’s disciplinary authority
until the period of notice they should have given expires. In Naidoo v Standard Bank of SA, 14 the court accepted that if an
employee resigns on notice, the employer may hold a disciplinary hearing during the notice period, but agreed with KPMG that if an
employee resigns without notice, the employer’s disciplinary authority ends immediately. However, in Naidoo the court held that if
the employer wishes to retain its right to discipline, it must approach the Labour Court for orders declaring that the employee is in
breach of contract and ordering the employee to abide by the contract. The two employees in Naidoo had resigned without notice.
The bank was found to have no authority to discipline the applicants after their resignations and was restrained from proceeding
with disciplinary action against them. The court did an about-turn in Mthimkhulu v Standard Bank of SA, 15 in which the Labour
Court declined to follow Naidoo, and held that to preserve the right to discipline an employee who had resigned without notice, the
employer need merely inform the employee that it did not accept that the resignation applied until the expiry of the notice period,
and that during that period the employer was entitled to take disciplinary action.
The LAC put an end to this debate in Standard Bank of SA v Chiloane, 16 in which it was held that a ‘resignation with immediate
effect’ does not detract from the employer’s right to proceed with disciplinary action until the end of the notice period provided for
in the contract or the BCEA.
12 (2017) 38 ILJ 1362 (LC ).

13 (2018) 39 ILJ 2529 (LC ).
14 (2019) 40 ILJ 2589 (LC ).
15 (2021) 42 ILJ 158 (LC ).
16 (2021) 42 ILJ 863 (LAC ).
5. General requirements of fair procedure

The Code of Good Practice: Dismissal sets out the requirements of a fair pre-dismissal procedure in cases of alleged misconduct as
follows: 17
Normally, the employer should conduct an investigation to determine whether there

are grounds for dismissal. This does not need to be a formal enquiry. The employer
should notify the employee of the allegations using a form and language that the
employee can reasonably understand. The employee should be allowed the
opportunity to state a case in response to the allegations. The employee should be
entitled to a reasonable time to prepare the response and to the assistance of a
trade union representative or fellow employee. After the enquiry, the employer
should communicate the decision taken, and preferably furnish the employee with
written notification of that decision.
4th Ed, 2022, ch 10-p 247

This provision is intended to rid pre-dismissal procedures of the complex technicalities the labour courts had evolved when
developing their dismissal jurisprudence under the 1956 LRA. The code makes no mention, for example, of the right to call or cross-
examine witnesses, or to appeal; in fact, it gives almost no guidance on how disciplinary inquiries should be conducted, or on the
standards of fairness to be applied during such proceedings. This accords with the intention of the drafters of the LRA. The labour
courts have repeatedly stated that pre-dismissal disciplinary procedures should not be assessed too rigorously. 18
The most influential contribution to the debate on the requirements of the notion of procedural fairness is to be found in Avril
Elizabeth Home for the Mentally Handicapped v CCMA. 19 In that case, a CCMA commissioner had ruled the dismissal procedurally
unfair because the presiding officer at the disciplinary hearing was junior to the ‘initiator’. The court held on review that the
commissioner had confused his role with that of a magistrate presiding over a criminal trial. The court noted that disciplinary
procedure is now governed by the code, which spells out what is now required of employers. The judge summarised the
requirements of the code in these simple terms: after investigating cases of alleged misconduct, the employer must give the
accused employees opportunities to respond to the allegation(s) after a reasonable period with the assistance of a representative.
This, said the court, marked a decisive break from the way the requirement of procedural fairness had been treated in the past.
The erstwhile industrial court had ‘likened a workplace disciplinary enquiry to a criminal trial, and developed rules and procedures,
including rules relating to bias and any apprehension of bias, that were appropriate in that context’. Now, ‘true justice lies in a right
to an expeditious and independent review of the employer’s decision to dismiss, with reinstatement as the primary remedy when the
substance of employer decisions is found wanting’. A more formal process will take place in arbitration after the dismissal if it is
challenged.
The Avril Elizabeth Home court identified several practical reasons for this change. Protracted and legalistic disciplinary hearings
are not only beyond the grasp of the average manager or supervisor; they also distract them from the task of managing the
business and getting on with the jobs for which they have been employed. ‘Onerous workplace disciplinary procedures’, said the
court, are also inconsistent with ‘a right to expeditious arbitration on [the] merits’. Since commissioners are obliged to arbitrate
dismissal disputes on the basis of the evidence presented at the arbitration proceedings, ‘procedural requirements in the form that
they developed under the criminal justice model are applied ultimately only for the sake of procedure’. It was obvious to the court
that ‘the continued application of the criminal justice model of workplace procedure . . . results in a duplication of process, with no
tangible benefit to either employer or employee’. 20
4th Ed, 2022, ch 10-p 248
These sentiments have not stopped many employers from using the ‘criminal justice’ mode by holding elaborate and invariably
protracted hearings, complete with representation by counsel, which encourages technical point-taking. 21
The remarks about hearings being duplicated in internal disciplinary proceedings and post-dismissal arbitrations raise the
question: why should employers be compelled to hold a pre-dismissal hearing if the employees are entitled to a further hearing by
an impartial arbitrator afterwards, and if the employee will find ‘true justice’ in the CCMA or a bargaining council? The answer is that
employers must follow a fair procedure because the LRA sets procedural fairness as an independent requirement of a fair dismissal.
Since the issue before an arbitrator appointed in terms of the Act is whether the dismissal is fair, it follows that the commissioner
must consider both substantive and procedural issues, if both are raised. The fact that arbitrations are hearings de novo does not
relieve arbitrators of the duty to consider procedural fairness – it merely casts arbitrators in the dual and rather ambiguous role of
trial and reviewing courts rolled into one. The LRA casts the duty to dismiss employees fairly on employers, not on commissioners.
Without radical surgery to the Act and the Code of Good Practice, the requirement of procedural fairness remains. Avril Elizabeth
Home is merely a reminder to commissioners that workplace disciplinary hearings should not be assessed as if they are criminal trials
and that procedural irregularities which do not cause demonstrable or material prejudice to the employee are not in themselves
sufficient to render a dismissal procedurally unfair. In that sense, Avril Elizabeth Home states the obvious. But despite these
authorities, courts and arbitrators continue to apply most of the guidelines developed under the 1956 LRA when evaluating the
procedural fairness of dismissals.
Stricter standards are applied to large employers than are expected of smaller employers. The code itself expressly states that
‘the form and content of disciplinary rules will obviously vary according to the size and nature of the employer’s business’ and that
larger enterprises should follow a ‘more formal approach to discipline’. 22 The standard applied also depends on the circumstances
of the offence; an arbitrator condoned exceedingly summary proceedings where the employee had been caught red-handed fondling
his employer’s wife. 23 The overriding consideration is whether the rules of natural justice have been sufficiently complied with, and
whether the employee has been prejudiced by any procedural irregularity.
17 LRA Schedule 8, item 4(1).

18 In Moropane v Gilbeys Distillers & Vintners (1998) 19 ILJ 635 (LC ) the Labour C ourt observed that the current LRA ‘demands less stringent and
formalised compliance than was the case under the unfair labour practice jurisdiction of the Industrial C ourt’. See also Cornelius and Howden Africa t/a M
& B Pumps (1998) 19 ILJ 921 (C C MA).
19 (2006) 27 ILJ 1644 (LC ).
20 See also Tshongweni v Ekhuruleni Metropolitan Municipality (2010) 31 ILJ 3027 (LC ) and Semenya SC v CCMA (2006) 27 ILJ 1627 (LAC ),
discussed further below.
21 Of which a good example was The Trustees for the time being of the National Bioinformatics Network Trust v Jacobsen (2009) 30 ILJ 2513 (LC ).
See also Road Accident Fund v CCMA (2011) 32 ILJ 707 (LC ).
22 Item 3(1).
23 Mjaji / Creative Signs [1997] 3 BLLR 321 (C C MA).

6.1 General
The Code of Good Practice requires employers to investigate reported cases of misconduct to determine whether there may be
grounds for dismissal. Disciplinary action may itself be prejudicial to employees. It is only fair, therefore, that an
4th Ed, 2022, ch 10-p 249
employee should not be subjected to a charge of misconduct unless there are at least prima facie grounds for suspecting that the
employee actually committed the misconduct alleged.
But a pre-hearing investigation is not an inflexible requirement. If the employee is found guilty after a properly constituted and
conducted hearing, it is unlikely that a dismissal will be ruled unfair merely because there was no prior investigation, unless the
employee was somehow prejudiced in his or her defence by the absence of an investigation or by the way the investigation was
conducted.
A pre-hearing investigation is precisely what its name suggests. During this phase, the employer investigates the matter to
decide whether formal disciplinary action may be justified. This will normally entail interviewing witnesses, including, possibly, the
suspect(s), and inspecting relevant documents. If suspects are interviewed, they should be informed of the reason for the
interview and advised of their right to be accompanied by a union representative or fellow employee, but not necessarily to remain
silent. It is advisable to record the contents of pre-hearing interviews, either in writing or electronically. If a tape recorder or
videotape is used, the interviewee should be informed. Statements may play an important role during the disciplinary inquiry. If they
are not used for purposes of cross-examination or in evidence, the employer is not obliged to disclose them to the accused
employee. It may also be a sensible precaution to require witnesses to depose their statements in affidavit form.
Employees interviewed during workplace investigations are required to assist the investigators. They cannot rely on the ‘right to
silence’, even if they are implicated. 24
6.2 Entrapment
When employers uncover misconduct but cannot, after proper investigation, identify the culprits, they may be tempted to resort to
‘trapping’. This entails appointing people, often outside ‘agents’, whose job is to try to conclude ‘deals’ with employees, usually as
purported receivers of stolen goods. This practice, known as ‘entrapment’, is not unique to the workplace. The police sometimes
resort to it when conventional detective work fails. 25
In South Africa, entrapment for the purposes of criminal proceedings is regulated by s 252A of the Criminal Procedure Act 51 of
1977. This allows traps and ‘undercover operations’ to ‘detect, investigate or uncover the commission of an offence’. Evidence so
obtained is admissible, provided the conduct of the trapper or undercover agent ‘does not go beyond providing an opportunity to
commit an offence’. Even when the police do provide such an opportunity, evidence so obtained may be admitted in a criminal trial
unless the evidence was obtained in an improper and unfair manner and if the admission of such evidence would render the trial
unfair.
Much the same applies to trapping in the workplace: trapping is permissible when its object is to identify a thief, not to create
one. A successful trap should not
4th Ed, 2022, ch 10-p 250
form the sole evidence against the trapped employee, but should be supported, even if circumstantially, by other evidence linking
the employees concerned to dishonest practices other than their dealings with the trapper. 26
Traps have been ruled fair in a number of other workplace cases. In one, the arbitrator held that the employees had not been
tempted to sell the company’s goods to an agent; 27 in another, the arbitrator accepted the validity of a random ‘honesty test’
using marked coins. 28
The ‘tapping’ of office telephones has also been sanctioned in appropriate circumstances. 29 But employers must still act fairly
when monitoring employees’ calls. The following considerations should apply: the recording should not be aimed at enticing the
employee to commit an offence; once the offence has been committed, there should be no other methods of securing evidence
against the employee; the recording should not be part of an ongoing monitoring of all the employee’s calls and should be made
during working hours.
6.4 Lie detectors
Another controversial investigative technique is the use of ‘lie detector’ tests. In Mahlangu v CIM Deltak, 30 the industrial court
concluded that voice analysis tests conducted by persons not registered as psychologists were unscientific, unethical, invalid and
illegal. Since that case was decided, a number of arbitrators have dealt with the admissibility of the results of ‘polygraph’ tests. The
divergent approaches to these tests are summarised in Sosibo and Ceramic Tile Market. 31 Some arbitrators have adopted the view
that polygraph tests are unreliable and inadmissible; no adverse inference is therefore drawn against employees for refusing to
undergo these tests. 32 In other cases, polygraph evidence was rejected in the absence of evidence on the qualifications of the
polygraphist, or if the polygraphist was not called to testify. 33 In still other cases, it has been held that polygraph tests alone
cannot prove a person’s guilt without corroborative evidence to support the inference of guilt. 34
These awards were confirmed in FAWU obo Kapesi v Premier Foods t/a Blue Ribbon Salt River, 35 in which the Labour Court
embarked on a detailed assessment of the reliability of polygraph tests. The case concerned the ‘retrenchment’ of some 30
employees who were suspected of having participated in violence during a protected strike. When potential witnesses declined to
testify against the
4th Ed, 2022, ch 10-p 251
suspects, the company invited FAWU to consult with a view to retrenching them. The company proposed that the suspects be
subjected to polygraph tests, and that only those who failed would be retrenched. When that proposal was rejected by the union,
the company dismissed all the suspects. Lengthy expert evidence was led by both parties on the reliability of polygraph tests to
determine whether such tests were sufficiently ‘objective’ to serve as an acceptable criterion for selection.
The court found that polygraph test results do not in themselves measure deception; it is the analysis of the test results that
yields the conclusion. The method used to analyse the physical responses recorded by polygraph instruments is controversial. The
main problem is that there is no absolute correlation between physical responses and the veracity of a person’s answers. To the
extent that they can be relied upon, polygraph tests can identify guilty persons more effectively than they can clear innocent
persons. Racial stigmatisation might also affect responses. The court accepted that polygraph tests can do no more than prove the
existence or absence of deception; they cannot prove that a person is guilty of a crime. In view of the controversial nature of
polygraph tests, the court declined to accept that they were a fair and objective means of selecting employees for retrenchment.
This judgment confirms that polygraph tests cannot be relied on exclusively to prove employees guilty of misconduct. 36
The LAC was also sceptical of using polygraph tests to establish the employee’s guilt in DHL Supply Chain v De Beer NO. 37 After
establishing large-scale theft of cigarettes, the company asked all employees who had had access to the store at the time to
undergo polygraph tests. Two failed, and were dismissed. A bargaining council arbitrator ruled the dismissals unfair because the
company had failed to prove that the employees were implicated in the theft, and reinstated them, and the Labour Court dismissed
a review application. DHL argued on appeal that the evidence, properly construed, led to the conclusion that the employees were
guilty, alternatively, that reinstatement was not the appropriate remedy. The LAC rejected the company’s argument that the
commissioner had acted unreasonably by ignoring the polygraph tests. The commissioner had merely asked: what was polygraph
evidence worth in the context of all the facts? He had correctly concluded that it was worth nothing. So, too, was the remaining
‘evidence’. The mere fact that the employees had an opportunity to steal was in itself neutral, as was the fact that losses
diminished after the employees’ dismissal. In the end, all DHL had to rely on was the polygraph evidence, which was insufficient in
itself to prove guilt.
The DHL court also offered some advice on the value of polygraph evidence. In this case, the employees had been fired after
failing these tests, but the employer had not produced any other cogent evidence to prove that the employees were involved in
thefts. No expert evidence had been given on the concept of polygraph testing or on the technical integrity of that process. The
court held that the mere say-so of the operator is unlikely to qualify as expert evidence, and it would be a mistake to treat it as
such. Polygraph tests are, at best, merely means of establishing whether an investigation should be conducted; they cannot in
themselves establish
4th Ed, 2022, ch 10-p 252
guilt. Statements that polygraph tests can be used only as corroborative evidence beg the question what a failed test can produce
by way of useful information. In the absence of expert evidence to explain why an inference should be drawn from it, nothing
remains to contribute to the probabilities. The court observed that the weight to be given to polygraph tests remains an open
question, but any litigant who wishes to rely on them must adduce expert evidence of their conceptual cogency and the accuracy
of their application.
According to DHL, then, merely presenting the results of polygraph tests is of no evidential value, even if the operator testifies
that the test was conducted properly. Expert evidence must be led in each case on the validity of such tests in general. Given this
judgment and Kapesi Foods, it seems unlikely that expert evidence will help until there are demonstrable developments in the
technology of lie detectors.
However, an employee’s refusal to undergo a polygraph test may, in appropriate circumstances, be of some evidential value, as
was found to be the case in Fairway at Randpark Operations v CCMA. 38 The activities of the six respondent employees, five
barmen and a waiter employed by the applicant hotel and spa, were investigated after colleagues spilled the beans on them. The
food and beverage manager discovered that the hotel had lost about R28 000 in liquor over two months. He then generated a
computer report for each of the six employees. This indicated that they had utilised access codes to gain unauthorised access to
the food and beverage computer system. The employees either removed cash from the account or instructed the system not to
record cash deposits. The hotel requested all employees who had access to this system to undergo polygraph tests, as provided
for in their contracts of employment. The six employees refused. All employees who agreed to be tested were cleared. The six who
did not were dismissed for gross negligence. During the subsequent arbitration the manager gave detailed evidence of the computer
system and the reports she had generated. The commissioner found that the computer reports showed no nexus between the loss
suffered by the hotel and the employees’ conduct, ruled their dismissal unfair and ordered the hotel to reinstate them
retrospectively. The court set the award on the basis that, read with the rest of the evidence, the commissioner had failed to take
into account the effect of the employees’ refusal to undergo a test on the trust relationship.
As noted above, employers may access what might otherwise be regarded as employees’ private and personal activities, such as
telephone conversations, if they are conducted or composed with the employer’s equipment during working hours. But employers do
not have carte blanche to do so. In Smith and Partners in Sexual Health, 39 a CCMA commissioner ruled that the contents of a
private e-mail account are private, and that information obtained from it without the holder’s permission is inadmissible. The
commissioner found that, by accessing the applicant’s Gmail account in her absence, the employer had infringed the Regulation of
Interception of Communications and Provision of Communication-related Information Act 70 of
4th Ed, 2022, ch 10-p 253
2002 (RICA) and also the employee’s right to privacy. Since charges of divulging confidential business information could not be
sustained on the remaining evidence, the employee’s dismissal was ruled unfair.
But employees may not rely on their right to privacy in circumstances where the employer has a clear right to information
possessed by them. In such cases, the rights of both employee and employer must be balanced. Such a balance was struck in
favour of the employer in NUMSA v Rafee NO. 40 The introduction of the Protection of Personal Information Act 4 of 2013 (POPIA)
may also complicate information acquired by these means.
24 Hillside Aluminium v Mathuse (2016) 37 ILJ 2082 (LC ).

25 The use of traps in the workplace was carefully analysed in Cape Town City Council v SAMWU (2000) 21 ILJ 2409 (LC ).
26 See, for example, Mbuli and Spartan Wiremakers (2004) 25 ILJ 1128 (BC A).
27 PPWAWU obo Mtshishela / Farmex Components [2001] 8 BALR 820 (C C MA).
28 SATAWU obo Radebe and Metrorail Wits (2001) 22 ILJ 2372 (ARB).
29 Sugreen and Standard Bank of SA (2002) 23 ILJ 1319 (C C MA).
30 (1986) 7 ILJ 346 (IC ).
31 (2001) 22 ILJ 811 (C C MA) at 522–3.
32 Kroutz / Distillers Corporation [1999] 8 BLLR 912 (C C MA).
33 Kleynhans / Tremac Industries [2001] 5 BALR 469 (C C MA).
34 Metrorail / SATAWU obo Makhubela [2000] 5 BALR 599 (IMSSA); NUMSA obo Masuku / Marthinusen & Coutts [1998] 9 BALR 1170 (C C MA);
Ndlovu / Chapelat Industries [1999] 8 BALR 996 (IMSSA); CWIU obo Frank / Druggist Distributors t/a Heynes Mathew [1998] 12 BALR 1573 (C C MA).
35 (2010) 31 ILJ 1654 (LC ).
36 See also Mustek v Tsabadi NO [2013] 8 BLLR 798 (LC ), in which the court confirmed that properly conducted polygraph tests may be used to
corroborate other evidence. But no more than that.
37 (2014) 35 ILJ 2379 (LAC ).
38 (2016) 37 ILJ 675 (LC ).
39 (2011) 32 ILJ 1470 (C C MA).
40 (2016) 37 ILJ 2122 (LC ).
7. Fair hearing
7.1 Generally
Of the so-called rules of natural justice, the most important is enshrined in the maxim audi alteram partem, literally, ‘hear the other
side’. This rule applies in many areas of law. In the employment context, this means that employers cannot dismiss employees
without hearing their version.
While the audi rule applies in all forms of dismissal, it takes different forms, depending on the reasons for the dismissal. So, for
example, in cases of incapacity the employer must counsel and consult the employee concerned, while in retrenchments, employees
are afforded an opportunity to influence the decision during the process of consultation. 41
Employers are generally expected to follow the procedure applicable to the reason for the dismissal. It does not make much
sense to ‘charge’ employees with misconduct if they are incapacitated by illness. In some cases employers have been taken to task
for incorrect procedure. 42
It is difficult, if not impossible, to set out a complete list of the requirements of a fair procedure, and it may be dangerous to
assume that fairness can be attained simply by following a prescribed checklist. Procedural fairness is a subtle concept; an
employer who assiduously follows a prescribed procedure may nevertheless overlook some small but important step, which omission
may prejudice the employee. Similarly, mechanical application of the requirements of a fair hearing may indicate that the employer
is merely ‘going through the motions’.
A minor procedural lapse at the start of the process may infect subsequent stages of the procedure. On the other hand, courts
and arbitrators may condone minor procedural lapses on the basis that the accused employee was not prejudiced. 43 Nevertheless,
the generally accepted minimum requirements of a fair hearing can be identified. Those set out below are not arranged in
chronological order. It may therefore be useful to begin by summarising in step-by-step form how a
4th Ed, 2022, ch 10-p 254
disciplinary procedure normally unfolds, bearing in mind the sentiments expressed in Avril Elizabeth Home.
7.2 Overview
After the charge is investigated, the employee is served with a notice of a hearing, setting out the allegation(s) the employee must
answer, informing the employee of the time and place of the hearing, and of his or her right to be accompanied by a representative.
At the hearing itself, the presiding officer must explain the nature of the proceedings and the procedure to be followed, and, if this
was not done in the notice, advise the employee of his or her right to call witnesses and other matters that might require
explanation. The presiding officer should at the outset determine whether the accused employee understands the language in which
the proceedings are to be conducted.
The charge is then read to the employee, who is asked to plead. If the employee enters a plea of guilty, the presiding officer
must ensure that the employee understands the implications of the plea; a guilty plea can be accepted only if the employee has in
fact admitted all the elements of the charge. For example, if the employee pleads guilty to a charge of assault but claims in the
next breath that the complainant was actually the assailant, the plea of guilty is defective because the employee may unknowingly
be raising self-defence or provocation as a defence.
Presiding officers may not of their own accord enter a plea of guilty on behalf of an accused employee; either the employee or
his or her representative must do so. Where a plea of guilty was entered on behalf of an accused who failed to appear at a hearing,
the dismissal was held to be procedurally unfair. 44
If a plea of guilty is accepted, evidence need not be led to prove the commission of the offence. But the employee is still
entitled to lead evidence that might serve to indicate that the offence was not as serious as it appeared, or to lead evidence in
mitigation, just as the employer may lead evidence in aggravation.
If the employee pleads not guilty, the employee or his or her representative should be asked briefly to outline the nature of the
defence, and to indicate the evidence that will be led in support of that defence. The employer is then given an opportunity to
reply. These statements, which neither party can be compelled to make, are commonly referred to as ‘opening statements’. They
must not be confused with evidence, even if they are presented by the accused employee.
After the opening statements are completed, the parties are given the opportunity to lead evidence. This may take the form of
oral or documentary evidence, or both. If documents are presented, the presiding officer should ensure that the opposing party
agrees that the documents are what they purport to be, in other words, that they are authentic. The other side must be given the
opportunity to cross-examine each witness.
When each party has closed its case (completed its evidence), the employer and the employee should be given the opportunity
to address submissions (‘closing arguments’) to the presiding officer. These submissions are aimed at persuading the presiding
officer to find the employee guilty or not guilty. Closing arguments
4th Ed, 2022, ch 10-p 255
consist of factual and, to the extent relevant, legal submissions. They may be delivered either orally or in writing.
When the presiding officer has considered the closing arguments of the employee and the employer respectively, the ‘verdict’ is
pronounced. This is the finding on whether the employee is guilty or not guilty of the misconduct charged. A finding of not guilty
ends the matter. If the finding is guilty, the parties should be invited to lead evidence or to make representations on the
appropriate penalty. Once these submissions are made, the presiding officer decides on the penalty.
The employee or his or her representative should be furnished with brief reasons, and be advised of his or her right to appeal, if
any. Once this process has been completed, the presiding officer may not generally revise the decision, although the functus officio
rule does not apply inflexibly to internal disciplinary proceedings. Management may also in limited circumstances change the
sanction or it may be altered on appeal (see below). If a disciplinary penalty is imposed, the employee may refer the matter to the
appropriate forum for conciliation and, if necessary, arbitration. 45
In most cases the starting point of the inquiry concerning the procedural fairness of a dismissal is the employer’s disciplinary code.
Where there is no code, arbitrators and judges are enjoined by the Act to have regard to the Code of Good Practice: Dismissal.
Where the employer has accepted certain procedural standards to be followed, it will generally be held to its self-imposed
standards, even if those standards are stricter than those required by the courts or the Code of Good Practice. 46 However, the
LAC has made it clear that compliance with a disciplinary code is not an independent test for the fairness of a dismissal.
In Highveld District Council v CCMA, 47 the Labour Court held that the dismissal at issue was unfair because the employee had
not been ‘accused’ in writing by his head of department and because a ‘prosecutor’ had not been appointed for the appeal hearing,
both requirements of the applicable disciplinary code, which was also a collective agreement. The LAC noted that the employee
was seeking to ‘vindicate’ his right not to be unfairly dismissed. This, said the court, was a right separate and distinct from his
contractual rights or his rights in terms of a collective agreement. The court observed: ‘The mere fact that a procedure is an
agreed one does not, however, make it fair. By the same token, the fact that an agreed procedure was not followed does not in
itself mean that the procedure actually followed was unfair.’
This dictum leaves open two possibilities: it may be that if an employer follows a disciplinary code, even an agreed one, the
dismissal may nevertheless be unfair when measured against the requirements of the LRA; conversely, it may be that if an employer
departs from an agreed procedure, it may nevertheless still comply with the requirements of the LRA. Highveld District Council
requires the tribunal judging the fairness of a dismissal to scrutinise the procedure actually followed. This
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is merely another way of saying that an employer’s failure to follow a disciplinary code is not per se unfair. The departure from the
employer’s code must still be measured against general standards of fairness, as enshrined in the law and the Code of Good
Practice. The departures from the code in Highveld District Council were so technical and arcane that they did not constitute
departures from those general standards. 48
However, the idea that disciplinary codes are ‘merely guidelines’ cannot be used as a defence to wholesale flouting of the
requirements of a code. 49 The courts entertaining breach of contract claims in which the employees claim procedural rights have
been infringed also tend to hold employers more strictly to their codes. In Denel v Vorster, 50 the applicable disciplinary code
required the presence on the disciplinary panel of a senior manager who was required to make its recommendation to a general
manager. The disciplinary inquiry was conducted by a general manager. The SCA found that this two-stage process had been
collapsed into one, and that this constituted a breach of the code. The court also rejected Denel’s argument (which would probably
have been accepted by the LAC on the basis of its approach in Highveld District Council) that the process followed, while not
complying with the code, was nevertheless fair. In Denel, the court regarded as critical the fact that the disciplinary code had been
expressly incorporated in the employee’s contract. This was also the case in Highveld District Council. Ironically, therefore, the
common law proved more favourable to the employee in Denel than the equity-based approach adopted by Highveld District
Council.
Arbitrators generally hold that disciplinary codes should not be interpreted strictly, but in accordance with equity and fairness
and to lend business efficacy to their content. 51 In exceptional circumstances, a summary procedure will be permitted. For
example, where a company executive publicly opposed a decision by the board to dispose of state-held shares and called for the
replacement of board members by people who had the ‘blessing’ of the ANC, the court held that inviting her to make written
representations to a board committee as to why she should not be dismissed (which invitation the employee rejected) satisfied the
employee’s right to procedural fairness. 52
There is another consideration: courts and arbitrators are also not bound by disciplinary codes; they may decide, and have
decided, that disciplinary codes and procedures themselves fail to comply with the requirements of fairness. 53 In such cases, the
employer cannot rely on its compliance with its code.
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The following paragraphs deal sequentially with the various requirements of a fair hearing.
Some disciplinary codes specify how disciplinary tribunals must be constituted, for example by requiring presiding officers to be of a
certain rank. Such requirements must generally be complied with. 54 Where possible, the presiding officer should also not have been
directly involved in the alleged misconduct, and another person should play the role of ‘initiator’, or prosecutor. The person who
decides whether disciplinary proceedings should be initiated may also be important. If, for example, a code, policy or statute
requires a certain person to decide whether disciplinary proceedings should commence, the proceedings may be nullified if another
person takes the decision. 55 The court has also interdicted disciplinary proceedings ordered by a municipal council which was not
properly constituted. 56
7.5 Adequate notice
The Code of Good Practice: Dismissal requires an employer to notify employees accused of misconduct of the allegations ‘using a
form and language the employee can reasonably understand’. The notice must not only be comprehensible: employees must also be
given sufficient time to prepare for the hearing and be informed of the charges they are required to meet.
The period that should be allowed between the time employees are notified of hearings and the commencement of those
hearings depends on various considerations, including the requirements of the applicable disciplinary code, the complexity of the
charge, the employee’s knowledge of the circumstances giving rise to the offence and the time the employee reasonably requires to
obtain proper representation. Requests for postponement should be properly considered and both parties should be permitted to
make representations in that regard. However, a presiding officer is not obliged to grant poorly motivated requests for
postponements. 57 If employees decide not to attend hearings after their application for a postponement is refused, the hearing
may continue in their absence.
7.6 Charges
Charges must be specified with sufficient clarity to enable accused employees to answer them; 58 employees cannot be expected
to prepare their defences if they are
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unaware of the charges. 59 This does not mean that charges need be drawn up with the precision of indictments in criminal trials;
it is enough that accused employees should be able to prepare their defences. 60 Where an employer failed to detail each and
every one of the employee’s fraudulent claims for hours he had not worked, the court held that the employee was aware of the
substance of the case he was required to answer, and observed that, in any case, the employee was shown the fraudulent entries
during the hearing. 61 If employees are given sufficient information to enable them to ascertain the misconduct alleged, the fact
that the employer characterises the misconduct incorrectly does not necessarily constitute a fatal irregularity. 62
The charge must be in a form which the employee is capable of answering. Charges of ‘destroying the employment relationship’
or ‘bringing the company into disrepute’ are not proper charges against employees, because they indicate the consequence of
misconduct, not the misconduct itself. 63
Whether charges provide sufficient information to enable the employee to respond will depend on the circumstances. There must
at least be some relationship between the allegation an employee is required to respond to and the charge on which the employee
is found guilty. 64
Charges should not be duplicated in a manner which gives the appearance that a single incident of misconduct is more serious
than it is. This is known as ‘splitting’ (more properly duplication) of charges. An example would be charging an employee who arrived
late for work (not normally an offence warranting dismissal) with ‘bringing the employer’s name into disrepute’ (cited in a disciplinary
code as a dismissible offence), because customers were inconvenienced. 65
Where employees are charged with a specific offence (for example theft) they may be dismissed for an unsuccessful attempt to
commit it. 66 But employees may be charged with several different offences simultaneously if the offences are indeed different.
Duplication of charges arises only if various individual charges relate to the same misconduct and overlap. While it is permissible to
take into account the cumulative effects of a finding of guilty on several different charges, each charge must individually amount to
something to accumulate. Where they are all trivial, the number of charges does not render the employee’s conduct more
serious. 67
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In some cases the courts have been prepared to condone the employer’s failure to give employees a written charge sheet,
because the employees knew the nature of the charges against them before the disciplinary inquiry. 68 But where the employee is
not in a position to assess in advance the nature of the allegations, it will almost certainly be too late to inform the employee of
the charge during the course of the hearing. 69
The employer cannot generally change the nature of the charge, or add new charges, after the hearing begins. 70 But nothing
prevents the employer from amending the charges, if the employee is not prejudiced, as sometimes happens in criminal
proceedings. 71 If it becomes apparent during a hearing that the employee has committed other offences, or a more serious
offence, the hearing should be adjourned to enable the employer to draft fresh charges and the employee to prepare to meet them.
This also applies when an ‘old’ charge is added to a list of new ones. 72 If an employee facing charges says something offensive
about the employer during the hearing, this should not be held against the employee unless they are specifically charged with that
further offence. 73
These principles do not apply when an employee is charged with a specific offence and is found to have committed a less serious
offence which would give rise to a competent ‘verdict’ in a case involving the more serious offence – for example, a person charged
with murder can competently be convicted of culpable homicide even if they were not charged in the alternative with the lesser
offence. 74 The same goes for a workplace offence like theft when the employer is able to prove only unlawful possession. In EOH
Abantu v CCMA, 75 the respondent employee was charged with fraud but dismissed for negligence. The LAC held that competent
alternative verdicts need not be recorded in disciplinary charge sheets. Provided the employee is not prejudiced, all that is required
is that the accused employees are told of the workplace rule they are alleged to have breached, and how.
7.7 The plea
The purpose of a charge is to enable the employee to plead ‘guilty’ or ‘not guilty’. As in criminal charges, employees should be asked
at the commencement of disciplinary inquires how they plead. A plea of ‘not guilty’ means that the hearing must proceed in the
normal manner. If the employee pleads ‘guilty’ the presiding officer may dispense with hearing evidence and proceed immediately to
consider representations in respect of sanction, if any.
The LAC has made a cautionary observation when it comes to consideration of a plea of ‘guilty’. 76 The accused employee had
pleaded guilty to a charge that
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essentially amounted to fraud. A CCMA commissioner found that, at worst for the employee, he had not complied with company
policy and that no dishonesty had been proved. The LAC rejected the employer’s argument that the commissioner had acted
unreasonably by ignoring the employee’s plea of ‘guilty’ to one of the charges at his disciplinary hearing. All the employee had
meant by this was that what he had done was ‘wrong’. This did not amount to plea of guilty, properly construed.
While disciplinary hearings are not criminal trials, it is logical to subject alleged pleas of guilty to the test used by criminal courts.
This entails ensuring, by asking the employee or his or her representative, that the plea entails an admission to all elements of the
charge.
7.8 Delay
Just as employees should be afforded sufficient time to prepare for hearings, employers should not allow excessive periods to pass
between the time the commission of the offence came to their attention and the time disciplinary action is commenced – it may be
that justice delayed is considered to be justice denied. If employers are tardy about instituting disciplinary action, the courts may
find that the employer has waived its right to do so, or that the employer has reconciled itself to the continuation of the
employment relationship, 77 or that the lapse of a long period of time since the commission of the offence was in itself enough to
render a dismissal unfair. 78 In most cases, the period of delay must be measured from the date on which the employer becomes
aware of the alleged misconduct. 79
Some codes set time limits within which disciplinary actions must be instituted. Delays beyond those periods have been ruled
fatal, but in most cases the courts treat timelines in disciplinary codes as guidelines, rather than mandatory, 80 and are prepared
to overlook delays if the employer is able to provide a reasonable explanation. Even when a code provides that disciplinary action
must be constituted within ‘a reasonable time’, or if the code makes no reference to time, excessive delay has been held to
constitute an irregularity sufficient to render dismissals procedurally unfair. 81
Where specific periods for pressing and pursuing disciplinary charges are laid down in a collective agreement, the courts may be
less likely to countenance undue delay. In Van Eyk v Minister of Correctional Services, 82 the High Court reviewed and set aside
the department’s decision to institute disciplinary action against an employee for offences committed more than a year earlier. But
Van Eyk was a review action. Under the LRA, the Labour Court may take a more relaxed view of time limits even if they are
contained in collective agreements. In Jonker v Okhahlamba
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Municipality, 83 the Labour Court refused to grant an urgent application restraining the employer from proceeding with disciplinary
action against a municipal manager merely because the time limit imposed by the disciplinary code had lapsed. There was, however,
a significant difference between the extent of the delays in Van Eyk and Jonker. In Department of Public Works, Roads & Transport
v Motshoso, 84 the Labour Court ruled disciplinary action three years after the commission of the alleged offence was so
unconscionable that it vitiated the dismissal. 85 But a delay of eight months was held reasonable in another case. 86
The principle that disciplinary hearings should be held without undue delay is linked, albeit not in all cases explicitly, to the
doctrine of implied waiver; an employer that unreasonably delays instituting disciplinary action against an employee may be said to
have waived its right to do so. 87 To succeed, a claim that another party has waived a right requires proof of three sets of facts:
(1) the party alleged to have waived the right must be shown to have done so with full knowledge of the right it is alleged to have
waived; (2) the conduct of the party alleged to have waived the right must be inconsistent with an intention to exercise that right;
(3) in labour law, parties may change their minds when fairness to do so permits and where the other party is not prejudiced.
Where the right waived entails the exercise of a statutory obligation, waiver will not be enforced on grounds of public policy.
The rule that disciplinary action should be instituted within a reasonable time cuts both ways: it means not only that disciplinary
action should not be unreasonably delayed; but also that they should not start so soon that the accused employees have not had
a proper opportunity to prepare a defence. An employer will not have waived its right to pursue disciplinary action if the action was
delayed at the request of the employee or if the employer needed time to prepare the case.
The requirement that disciplinary proceedings should be instituted without unreasonable delay also applies to their completion. 88
Disciplinary hearings that are prolonged unnecessarily may also in principle give rise to the assumption that the employer has lost
interest in the matter and, if the employee is permitted to remain in employment, that the employment relationship has not been
broken. This applies also to long delayed appeals. 89 If the employee has been suspended, the delay may render the suspension
unfair. However, whether a disciplinary hearing has become unduly protracted depends on the circumstances. Delay caused by the
employee cannot be held against the employer.
Employees facing criminal charges arising from misconduct sometimes request a postponement of the disciplinary hearing on the
ground that it might compromise their constitutional right to silence. This right does not in itself impose an obligation
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on employers to postpone disciplinary inquiries until the conclusion of criminal proceedings, during which they would have to be
paid. 90
It may seem scarcely worth mentioning that, ordinarily, a hearing should precede the decision to dismiss an employee – the very
purpose of a hearing is to establish whether the employee is guilty of misconduct and, if so, the penalty that should be imposed.
However, the courts recognise that in some circumstances a hearing after the event may be sufficient. One exception to the
general rule arises when the employer effects a mass dismissal but later permits individual employees to make representations as to
why they should not have been dismissed with their colleagues. That situation usually arises in unprotected strikes when employees
have been dismissed for not complying with an ultimatum. 91
Hearings after dismissals were approved in respect of other contexts in Semenya SC v CCMA, 92 in which the court accepted
that the principle that disciplinary hearings must be held before the employer takes the decision to dismiss is not immutable. The
court thought it inadvisable to attempt an exhaustive listing of such situations, but summed them up as those ‘where it can be said
that the opportunity to be heard that is given after the decision has been taken is no less fair than the opportunity that should
have been given before the decision could be taken’, provided that the employee was not by then faced with a foregone
conclusion. This judgment suggests that a hearing after the decision is acceptable where the person charged with the responsibility
of taking the final decision is (1) different from the person who took the initial decision; (2) independent of the first decision-maker
and his organisation; (3) demonstrably impartial. Semenya may seem an odd judgment. It suggests that employers retain
‘jurisdiction’ to subject employees to disciplinary hearings even after the termination of the employment relationship. This is not
strictly speaking possible, because employers’ power to discipline employees arises essentially from the contractual relationship;
dismissal is merely a substitute for terminating the contract because of the employee’s breach.
There are occasions when an employer may wish to decide whether an employee was guilty of some offence, even though the
employee has pre-empted the outcome by resigning. This situation is discussed above.
A disciplinary hearing held in the absence of the accused employee is generally unfair. 93 If employers know of the whereabouts of
absconded employees, those employees should be informed that a disciplinary hearing is to be held. 94 But an employer is entitled
to proceed without the employee if that
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employee unreasonably refuses to attend or participate in the hearing without good cause, or has absconded and cannot be
traced.
What should an employer do if the employee’s whereabouts is known, but it is obvious that he will not be in a position to attend
a disciplinary hearing for an indeterminate period – say, for example, where the employee is in prison or police custody? That
situation arose in Samancor Tubatse Ferrochrome v MEIBC. 95 The respondent employee had been held for six months on suspicion
of having participated in an armed robbery. At that point, the employer lost patience. The HR manager sent the employee a letter,
c/o the police cell, informing the employee that he had been dismissed. When the employee reappeared at the workplace several
months after that, the company granted him a ‘post-dismissal hearing’, after which the dismissal was confirmed. The LAC held that
dismissal was in the circumstances substantively fair, but that procedurally the employer was still obliged to give the employee
some sort of opportunity to make representations, which it had not done. The LAC’s judgment did not survive a further appeal to
the SCA, 96 which found that the employee should have been given a chance to make representations before his dismissal.
If employees appear at their hearings only to ask that the proceedings be postponed because they have difficulties in attending,
or to prepare their cases properly, prudence may call for a postponement unless it is obvious that the employee is simply playing for
time. An example of a desperate attempt by an employee to play for time is afforded by Old Mutual Life Assurance v Gumbi. 97 In
that case, the employee presented an unconvincing medical certificate to explain his absence, and his representative raised what
the court described as ‘spurious and contemptuous, objections designed to halt the inquiry’. The SCA held that employers are
required to do no more than afford accused employees an opportunity to state their case; if they do not avail themselves of that
opportunity, employees cannot claim that the employer has infringed the audi principle. The LAC had also accepted refusals to
grant postponements where employees raise meritless technical points and seek adjournment on that basis alone. 98
Employees also frequently seek postponement because a particular representative is not available. While employees do not have
a right to their preferred representatives if others are available, the presence of a particular representative may be important,
particularly if employees allege that their preferred representative is familiar with the case.
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Accused employees cannot be compelled to attend disciplinary inquiries if they decide not to, although the choice may be at
their peril. 99 But they will not be able to cry procedural unfairness if the employer proceeds without them and dismisses them.
The mere physical presence of the employee may not be sufficient; it is essential also that the employee comprehend and be
permitted to participate fully in the proceedings. If necessary, an interpreter should be provided by the employer. 100 Presiding
officers should ensure that technical points are fully explained to the employee and, above all, that accused employees fully
understand the charge. Evidence adverse to the employee should be disclosed so that the employee is able to deal with it. 101
Presiding officers should exercise caution when deciding whether an employee should be permitted to lead evidence that may, on
the face of it, appear irrelevant.
The courts have been prepared to accept that in exceptional circumstances it is necessary, and therefore not unfair, for
witnesses to give evidence in the absence of the accused employees. Since this is prima facie a breach of the audi rule, the
employer must satisfy a court or arbitrator that there was an overwhelming need to do so. Where employers relied on undisclosed
affidavits as proof of charges of intimidation against employees, the industrial court held that the procedure had been unfair. 102
The Labour Court has also held that it was unfair of an employer to rely solely on a letter of complaint from an irate customer as
evidence against an accused employee; there was no apparent reason for the company’s failure to call the customer so that the
employee could question him. 103 Where two employees were charged with the same misconduct, it was also ruled unfair to take
into account the evidence led at the hearing of one employee against the other employee without giving the other an opportunity
to respond to it. 104 However, the court accepted that anonymous written statements were rightly admitted because the accused
employees knew the details of the allegations and were able to respond to them. 105 The onus rests on the employer to prove that
it was necessary to hear evidence in camera.
In the absence of some pressing need to protect witnesses, the only other circumstance in which it may be accepted that the
admission of evidence in the absence of a witness may be excused is when the witness concerned cannot for some reason be
produced. In such cases, evidence on affidavit may be acceptable, and some arbitrators have been prepared to accept hearsay
evidence from other witnesses. Otherwise, a refusal to allow accused employees or their representatives to cross-examine available
witnesses will invariably render a dismissal procedurally
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unfair, whether or not it would have made a difference to the outcome. For example, an employee who had dropped his trousers
and exposed his bottom to colleagues during an argument was not afforded an opportunity to question them about the incident. An
arbitrator ruled that this rendered the dismissal procedurally unfair. On review, the court noted that the employee had been
provoked, and that mitigating or aggravating factors might have emerged during cross-examination. Even if the result might have
been adverse to the employee, the employer’s refusal to call the complainants was a fatal procedural irregularity. The arbitrator’s
decision to reinstate the employee was upheld. 106
Both parties are entitled to lead evidence but cannot be forced to do so. Failure to lead evidence may, however, be prejudicial
to a party’s case. While an employee is free to decline to lead evidence in rebuttal of that presented by the employer, presiding
officers cannot grant them ‘absolution from the instance’. 107
When separate disciplinary inquiries are held for two or more employees in respect of a ‘collective’ misdemeanour, it is unfair to
take evidence gleaned from one inquiry into account when deciding the other(s) if the employee(s) concerned are not given an
opportunity to deal directly with the evidence. 108
In some rare instances, courts have held that written representations alone are sufficient to satisfy the requirements of a fair
hearing. In one case, 109 an invitation to a senior employee to make written submissions to a subcommittee of the employer’s
board as to why she should not be dismissed for misconduct was accepted as sufficient. In another, 110 the employer had decided
to take disciplinary action against about 100 employees involved in a medical aid scam. The employer was understandably reluctant
to hold 100 separate hearings, so it came up with a swifter method. The accused employees were handed identical charges, and
invited to respond in writing. The evidence collected by the investigators and the employees’ representations would then be placed
before an independent chairperson. Representations on sanction were to be conducted in the same manner. Some of these
employees launched an urgent application for an order stopping the truncated proceedings. The court was satisfied that the
proceedings were ‘in accordance with the principles of natural justice’ and that holding 100 disciplinary hearings, each along the
lines of the criminal justice model, would impede workplace efficiency.
In another case, 111 the court held that a disciplinary hearing based on written representations sufficed where the employee
had sought a postponement of the hearing because she had been diagnosed with chronic depression with a poor prognosis. Where
collective conduct is alleged, it is permissible for employers to
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convene collective hearings and, depending on the number of employees involved, to request written representations. 112
It goes without saying that accused employees must understand what is being said during the hearing. Where proceedings are
conducted in a language other than that in which the employee is proficient, the employer should provide an interpreter. Failure to
do so may render the dismissal procedurally unfair. 113
7.11 Representation
Employees accused of misconduct are entitled to be assisted, or at least supported, by representatives at disciplinary inquiries.
Normally, shop stewards act as representatives for employees who belong to unions. However, the right to be represented by a
shop steward of the employee’s choice or by a union official may be excluded by collective agreement if the shop steward or official
belongs to an unrecognised union. 114
Employees who are not union members may be represented by colleagues. It has been held in many cases that, unless the
applicable disciplinary code provides otherwise (see below), legal practitioners are not entitled to appear in internal disciplinary
proceedings without the consent of the employer. 115
The Code of Good Practice: Dismissal affords employees a right to be assisted by a trade union representative (shop
steward), 116 or a fellow employee, and gives the choice of representative to accused employees. The LRA also gives shop
stewards a right to assist employees in disciplinary hearings, if the employees so request. 117 When the accused employee is a
shop steward, a union official or an office-bearer, the employer is required by the code to inform and consult the employee’s union
before taking disciplinary action. But failure to inform a union before the dismissal of a shop steward does not necessarily render the
dismissal unfair.
Although attorneys and advocates are generally barred from internal disciplinary proceedings, whether an employee is entitled to
be represented by a legal practitioner in disciplinary proceedings depends on the terms of the applicable code and the complexity of
the matter. Most disciplinary codes provide for representation by shop stewards or employees and are silent on legal
representation. Others expressly exclude lawyers from disciplinary proceedings. The SCA has held that there is no general and
unrestricted constitutional right to legal representation in all disciplinary proceedings, 118 but a serious application for legal
representation must at least be considered. Any rule requiring a disciplinary tribunal to reject requests for legal representation in all
circumstances cannot be accepted.
The court suggested that the factors that should be taken into account when exercising this discretion are the nature of the
charges against the employee, the
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factual or legal complexity raised by the charges, the potential seriousness of a possible finding against the accused and the
prejudice the accused might suffer as a result of not being permitted legal representation. Other relevant considerations may be
the expertise of the person presenting the employer’s case, the availability of other representatives, the status of the employee
and the fact that witnesses testifying for the employer might intimidate non-professional representatives. 119
The Labour Court adopts much the same approach as that of the High Court to legal representation in disciplinary hearings. 120
But in one case, 121 the court held that where legal representation is excluded by a collective agreement, presiding officers have
no discretion to allow it. There seems no reason to restrict the law laid down in these judgments to disciplinary proceedings held by
statutory bodies.
Employers should generally inform employees of their right to be represented. 122 Representation, even by lay persons, serves
two main purposes: it gives accused employees moral support and ensures that the scales are not unfairly tipped, or seen to be
unfairly tipped, against the employees. The presence of a representative also ensures that justice is seen to be done because
disciplinary hearings are not normally open to the public.
The role played by employees’ representatives in disciplinary inquiries may extend from mere observation to active participation.
If representatives wish to participate, they must be permitted to do so fully and freely. Employers are not permitted to prescribe to
employees who may represent them. 123 If employees decline to bring representatives to hearings, employers are not obliged to
provide them.
Presiding officers should not hinder employees’ representatives in performing their functions. But representatives are expected to
act properly and honestly. Obstructive and insolent behaviour may warrant the expulsion of a representative. While representatives
at disciplinary inquiries should be given latitude commensurate with the nature of their duties, they nevertheless remain employees
if they are colleagues of the accused employee. Bad behaviour by a representative may constitute a reason for disciplinary action,
even dismissal, in appropriate cases. 124
Although not expressly provided for in the Code of Good Practice, it is generally accepted that compliance with the audi alteram
partem principle requires both
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parties to call the witnesses they deem necessary and cross-examine witnesses of the other side. These requirements may be
departed from in rare instances, for example, where the matter is decided on the basis of written representations in cases of
collective misconduct involving large numbers of employees (see above). But where the right to cross-examine is provided for in a
disciplinary code, it must generally be allowed. The rule applies to both employers and employees. 125
Although internal disciplinary inquiries are not proceedings of record, presiding officers should keep comprehensive and legible notes,
or ensure that the proceedings are mechanically or electronically recorded. Some kind of record is of particular importance if the
disciplinary procedure allows for a right of appeal. A complete record may also be useful for purposes of cross-examination in
subsequent arbitration proceedings or on review if accused employees change their versions. 126
Like any judicial or quasi-judicial proceedings, the purpose of disciplinary inquiries is to enable presiding officers to weigh up the
evidence for and against accused employees and to make informed and considered decisions regarding the employee’s guilt and, if
necessary, on the appropriate sanction. This presupposes that presiding officers should keep open minds until the conclusion of the
proceedings. They must, in short, refrain from showing bias or even giving the impression of bias, until they have given their final
decision. 127
The principle that a presiding officer must be even-handed does not give employees a right to have a hand in the choice of
presiding officer; that remains the employer’s prerogative. 128 If a presiding officer at a disciplinary inquiry exhibits bias, or gives
the accused employee the impression of being biased, the proceedings are regarded as unfair even if the ultimate decision reached
is factually and legally impeccable. On the other hand, an incorrect decision is not necessarily an indication that the presiding
officer was biased.
Presiding officers who feel that they may be influenced by extraneous considerations, such as prior knowledge of the accused or
incident, should recuse themselves from the proceedings the moment the impression arises. But they need not recuse themselves
merely because an accused employee or a representative alleges bias; some foundation must be laid for the claim. 129
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Presiding officers must keep in mind that they are performing a duty, and should consciously seek to clear their minds of
prejudice and disregard extraneous considerations. If an allegation of bias is raised, a request for the presiding officer’s recusal
should not be rejected out of hand; where a presiding officer summarily expelled an accused employee and his representative from
a hearing after they asked him to recuse himself, the employee’s dismissal was ruled procedurally unfair. 130 On the other hand,
presiding officers need not recuse themselves when the allegation of bias is spurious or unfounded. An adverse ruling on an
interlocutory issue such as a request for legal representation, and some ‘verbal sparring’ between the presiding officer and the
employee’s representative, are not themselves indications of disqualifying bias. 131
If employees fail to challenge the impartiality of presiding officers during hearings on the basis of facts known to the employees
at the time, they may have difficulty persuading an arbitrator later that the presiding officer was biased. 132 However, if facts
indicating bias come to light after the hearing, these may be raised in subsequent proceedings to challenge the fairness of the
initial hearing.
If presiding officers reject applications for their recusal because the reasons for the applications are manifestly inadequate, the
hearing should continue as if the application had not been made. Should employees then withdraw, they may be deemed to have
waived their right to be heard. On the other hand, if a demonstrably biased presiding officer rejects a recusal application and the
employee withdraws, this does not amount to a waiver and the dismissal may be held to have been unfair. 133
The rule against bias may appear to place an impossible burden on employers. Presiding officers are usually chosen from the
ranks of management. They may even be the owners of the businesses concerned. With practical considerations in mind, the labour
courts have generally qualified the test for bias by accepting a measure of ‘institutional bias’ – the perception of bias that may flow
from a presiding officer’s position in or relationship with the institution that is pressing charges against the accused employee. The
courts will also not assume that neutral factors, such as the race, religious affiliation or social contacts of a presiding officer will in
themselves justify the inference or reasonable perception that he or she was biased. The approach generally followed by the labour
courts is well summarised in this passage: 134 ‘The importance of appearances in this area must not be left out of account and . . .
where an employee has reasonable suspicion for believing that something more than merely the traces unavoidably left by prior
contact in the employment relationship is present and this precludes a fair hearing, a complaint on the grounds of bias should be
upheld.’
The labour courts have generally adopted the test for bias applied by the civil courts in administrative law cases or applications
for orders directing presiding
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officers to recuse themselves. This is whether the facts alleged by the person seeking to rely on disqualifying bias justify a
‘reasonable apprehension’ that the presiding officer will not act in an impartial manner. This test requires not actual proof of bias,
but proof of facts which give rise to a reasonable perception of bias. 135
A number of considerations may prove disqualifying bias. Presiding officers may have been involved in the incidents out of which
the charges arose; for example, they may themselves have been the subject of the alleged insolence or insubordination, or the
victim of the alleged assault. Involvement need not be personal; it is sufficient that prior involvement is likely, or could reasonably
be perceived to be likely, to colour the presiding officer’s perception of the employee’s conduct or character. This might occur, for
example, if the presiding officer’s relatives or friends are involved in the case. In short, a presiding officer should not have a
personal interest in the outcome of the case. 136
Other situations which might indicate actual bias are involvement in the investigation of the case; prior instances of hostility
between the employee and the presiding officer; 137 remarks made by presiding officers which indicate that they might have
prejudged the case; discussions between a presiding officer and management concerning the case in the absence of the employee
or the employee’s representative; proof of a direct interest in the outcome of the case; the adoption by the presiding officer of an
incompatible role, such as ‘prosecutor’ 138 or investigating officer; 139 abdicating to others the responsibility for taking the final
decision; 140 proof that the presiding officer has been improperly influenced by superiors; 141 a chairperson uttered an obscenity
when discussing representation with an accused employee. 142 But a presiding officer’s active intervention in the matter to get at
the truth is not necessarily indicative of bias. 143
These considerations apply as much to the chairpersons of disciplinary inquiries as they do to chairpersons of appeal hearings. In
addition, appeals should never be heard by the same persons whose decisions are appealed against; nor should the chairman of an
appeal hearing consult with the presiding officer whose decision is under appeal. 144
Presiding officers are expected to apply their own minds to the evidence led at the inquiry and to take decisions based on those
facts. Should a presiding officer
4th Ed, 2022, ch 10-p 271
abdicate the responsibility of taking the decision to another, this would amount to a disqualifying bias because the decision itself
would be affected by extraneous considerations. Taking advice from others is not necessarily an indication of disqualifying bias,
provided that the presiding officer retains independence. An instruction from superiors to decide the matter in a particular way
would make the outcome manifestly unfair. 145
Notwithstanding all of the above, the test for disqualifying bias must be applied with some caution in the employment sphere.
The smaller the concern, the less likely it is that the employer will be able to find among the ranks of management a person who is
‘unbiased’ in the true judicial sense. Larger concerns usually arrange for disciplinary matters to be heard by managers highly placed
in the organisational hierarchy, and from outside the branch concerned, or by specially trained HR practitioners. Even large
organisations may have difficulty finding truly impartial individuals to act as presiding officers if accused employees themselves
occupy senior positions; there is a natural and proper reluctance on the part of employers to depute subordinates to ‘try’
superiors. 146
Some large employers try to ensure that discipline is imposed by persons actually involved on the shop floor. Line managers or
supervisors are often given this task; they may be assisted by HR practitioners on issues of procedure, and to ensure consistency
of penalties. This practice is acceptable, provided that persons appointed to act as presiding officers were not personally involved
in the alleged infraction and are allowed to take independent decisions and do not feel overawed or otherwise influenced by the
presence or possible reaction of superiors that might lead them to take decisions they would not personally have taken. 147
The courts and arbitrators generally support the view that management is responsible for laying down and enforcing disciplinary
standards. Management therefore has a right and a duty to provide guidelines in this regard. If disciplinary officers cannot be
advised on company policy, employers may have difficulty ensuring that discipline is applied fairly and consistently. A strict
approach in this regard would also deprive management of the opportunity of properly training managers in the difficult art of
chairing disciplinary inquiries and appeals. In this context, those judgments which adopt a technical approach to the test for bias
have a ring of artificiality.
Some employers, though not required by law to do so, instruct outsiders to hear disciplinary matters. Although this may be wise
in controversial cases an outsider will not necessarily be found free of bias. An attorney whose practice serves the employer in
other spheres may have as much, if not more, interest in the outcome of the case than an employee of the company. However, an
association between
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an external presiding officer and the employer is not in itself enough to prove disqualifying bias. 148
Employees who request the recusal of an outsider or subsequently seek to attack their dismissal on the basis of bias must prove
facts, such as those set out above, which prove that the outsider should have recused himself. 149 The Labour Court has
confirmed that, even if the applicable disciplinary code expressly requires a managerial employee to preside at disciplinary hearings,
the employer may in appropriate circumstances appoint an outsider for this purpose. 150 Appropriate circumstances, in this
context, include the position of the accused employee and whether other senior employees were involved in the incident.
The legislature has endorsed the practice of using qualified practitioners to hear internal disciplinary inquiries by enacting s 188A
of the LRA, which enables employers to request the CCMA, bargaining councils or accredited agencies to provide commissioners or
arbitrators to chair disciplinary inquiries. 151 This may be done only with the consent of the employee, 152 except in cases where
the employee has alleged in good faith that he is being targeted for whistleblowing, in which case either the employer or the
employee may request a s 188 inquiry. 153 Such hearings have the status of any arbitration award, and may be taken on review by
an agreed party. Once embarked upon, parties may not unilaterally abandon s 188A proceedings and commence internal disciplinary
proceedings, even if for a different offence. 154
7.15 The decision
The decision by the presiding officer should be made in two stages. The first entails determining the guilt or otherwise of the
accused; the second entails choosing the ‘sanction’. Ideally, the first stage should be completed without reference to the
employee’s disciplinary record. 155 This may be impossible in some situations, especially in smaller enterprises. Even so, presiding
officers should try as far as possible to purge their minds of such knowledge when considering the verdict;
4th Ed, 2022, ch 10-p 273
if an employee has committed offences in the past, it does not follow that he has committed the offence now charged. At most,
prior offences can demonstrate a tendency to commit offences. Only in rare cases will courts permit evidence of past offences, or
‘character evidence’, to be led as proof of a charge. 156 Otherwise, the employee’s disciplinary record is relevant only to the
sanction.
Separation of the inquiry into guilt and sanction is not an absolute requirement, provided that the overall result is fair. The
Labour Court set aside a commissioner’s award in which a dismissal was held to be procedurally unfair because the employer had
not observed this two-stage procedure. 157 Although the court held that separation of the two elements of the inquiry is desirable,
the judge noted that not even arbitrators are required to follow this procedure. It was accordingly invidious to expect the employer
to observe standards by which not even the commissioner himself was bound. The LAC also held that a separate hearing for
representations in mitigation and aggravation was not required where the essence of the case was whether the employment
relationship had been destroyed by the employees’ lies, to which he had admitted. 158
Decisions on verdict and sanction should, but need not, be given in the presence of the accused employee. While there is no
formal requirement that decisions on guilt and sanction should not be made until the parties have made representations, it is
advisable to do so. These submissions need not necessarily be made orally. 159
Once decided, the verdict and sanction should be motivated. This does not mean that presiding officers must write a detailed
judgment; brief reasons suffice, provided those reasons indicate to the employee why the conclusions were reached. But carefully
crafted reasons may serve a purpose. Convincing reasons may well deter the employee’s union from pursuing the case on the
employee’s behalf, and may persuade an arbitrator or court that the presiding officer applied his or her mind carefully before taking
the decision to dismiss the employee. Furthermore, a carefully reasoned decision lends credibility, and hence legitimacy, to the
employer’s decision. Reasons and minutes are necessary if the employee has a right to appeal.
The decision on sanction must also be taken by the person who presided over the disciplinary inquiry or appeal hearing. In
principle, the presiding officer may seek advice before taking the final decision, but presiding officers may not allow themselves to
be prescribed to by the person from whom they take advice; this would constitute an abdication of the presiding officer’s role. The
extent to which second parties may interfere with the decision after it is taken is discussed below.
4th Ed, 2022, ch 10-p 274

Under the 1956 LRA, the courts were divided on whether the right to appeal was a necessary part of a fair procedure, 160 unless
an appeal was provided for by the employer’s disciplinary code. Neither the LRA nor the Code of Good Practice: Dismissal states
that employers must grant employees a right to appeal against the finding of a disciplinary inquiry. In the light of the approach
taken in the code, and the remedies available to employees under the Act, that an employer’s failure to offer an employee an
opportunity to appeal will not in itself justify a finding of procedural unfairness, unless the employer’s disciplinary procedure provides
to the contrary.
But if an appeal is granted, it must be conducted fairly, otherwise the entire procedure may be rendered unfair. An appeal is a
separate facet of the disciplinary procedure. A dismissal may be rendered procedurally unfair if the same presiding officer chaired
both the disciplinary inquiry and the appeal hearing, 161 or if the chairperson of the appeal hearing commits a fatal irregularity. 162
The reason appeals are independently scrutinised flows from the principle that a person who is entitled to both a hearing and an
appeal is entitled to a fair hearing as well as a fair appeal.
There is no fixed rule as to the form an appeal should take. Some judges and arbitrators have held that it is sufficient for an
appeal tribunal merely to review the procedures of the disciplinary inquiry and the appropriateness of the penalty imposed by the
presiding officer. 163 Others require a ‘full appeal’, ie a complete reconsideration on the merits of the verdict and sanction. The
provisions of the employer’s disciplinary procedure may be relevant in this regard, but seldom provide guidance. Most disciplinary
codes simply provide for an ‘appeal’, without specifying the nature of that process.
The civil courts have drawn fine distinctions between ‘review’, ‘appeal in the narrow sense’ and ‘appeal in the wide sense’. In a
review the subject of the inquiry is generally restricted to the way the lower tribunal reached its decision. A reviewing tribunal will
not generally interfere with the decision of the lower tribunal unless it has committed some grave procedural error or where there
was a manifest error in the reasoning by which it reached its conclusion. An appeal in the narrow sense is confined to the record of
the proceedings a quo, but the appeal tribunal is free to substitute its own conclusion on the merits for that of the lower tribunal.
An appeal in the wide sense occurs when the matter is reconsidered de novo, on evidence led before the appeal tribunal. 164 To
require an appeal in the latter sense when an employee appeals internally would impose an unnecessary burden on employers;
4th Ed, 2022, ch 10-p 275
it would also effectively give employees the right to three full hearings if the employee’s appeal fails and the dispute is referred to
arbitration. 165
The form of the appeal may also be determined by the ground or grounds upon which the employee relies. If factual findings
made during the original hearing are challenged, the employee is generally entitled to canvass all the relevant evidence relating to
those findings on appeal, as well as new evidence that may have come to light after the disciplinary hearing. However, if the
employee challenges only the sanction or the procedure, a review or ‘narrow’ appeal will suffice.
If an employer decides to allow an appeal ‘in the wide sense’, the general standards of a fair hearing apply (see above). An
appeal hearing from which the employee was excluded has been ruled unfair. 166 It has also been held that accused employees or
their representatives are entitled to a copy of the record of the disciplinary proceedings, if any. 167 If the employer refuses to
supply a record of the disciplinary inquiry, the employee is entitled to refuse to appear until it is made available. 168
What are the legal consequences of a decision by an appeal tribunal? The answer depends on whether the appeal outcome
upholds the finding of the presiding officer of a disciplinary inquiry, whether the finding of the presiding officer is overturned in
whole or in part and the employee is either acquitted on the charge or a less serious penalty is imposed, and where a more serious
penalty is imposed.
On the other hand, if a properly constituted appeal tribunal overturns the earlier ruling in respect of a verdict, or reduces the
sanction, higher levels of management are precluded from implementing the decision of the disciplinary tribunal, no matter how
uncongenial they may find the decision of the appeal tribunal, unless such second-guessing is permitted by the employer’s
disciplinary code. 169
Whether an appeal tribunal may impose a more severe sanction than that decided by the presiding officer of the disciplinary
hearing is debatable. Unless the contrary is indicated by the applicable disciplinary code, there seems no reason why the presiding
officer in an appeal hearing should not impose a more severe penalty. Appellate courts are permitted to impose harsher penalties on
convicted persons who decide to exercise their right of appeal. This is based on the principle that an appellate court is required to
reconsider the merits. There is no reason why the same principle should not apply in the employment sphere, 170 provided that an
increase – or even a decrease – of penalty at the appeal stage is not prohibited by the applicable disciplinary code. 171
4th Ed, 2022, ch 10-p 276
Situations arise when disciplinary officers have acquitted guilty employees, or imposed light penalties, for improper reasons. The
courses open to an employer in these circumstances are considered in the following section.
A further issue raised by appeal hearings is whether a proper appeal cures any defect in the initial disciplinary inquiry. What is
the situation, for example, where the employee appeals on the basis of a demonstrable procedural irregularity during the disciplinary
inquiry, and the appeal tribunal holds that the dismissal was procedurally unfair, but substantively fair? In some judgments the
industrial court held that a serious procedural error during the disciplinary inquiry vitiates the entire proceedings; in other words, a
fair appeal cannot cure an unfair hearing. 172 However, the LAC and the Appellate Division of the former Supreme Court have
supported arbitrators and courts that have taken a more relaxed view on this issue.
This issue was revisited by the LAC in Nasionale Parkeraad v Terblanche, 173 in which the presiding officer consulted the
employer’s representatives during a disciplinary inquiry in the employee’s absence. The court held that, in the labour context, an
appeal often amounts to a complete rehearing. It therefore did not follow that an earlier irregularity in the process could not be
cured by a proper appeal on the merits. The court also pointed out that under the LRA employees have a right after their appeals
to refer the matter to the Labour Court or an arbitrator, giving them yet another chance to canvass procedural and substantive
issues. All deficiencies are then corrected because the findings of the court or arbitrator replace the earlier proceedings in their
entirety. In such cases, it would be wise to approach every case on its own facts.
In Nasionale Parkeraad, the court stressed that fairness was paramount. The court may have been influenced, as well, by the
fact that the employee was guilty of serious misconduct tantamount to fraud, as it was in Slagment v BCAWU, 174 in which the
employees had been guilty of sustained and serious insubordination. Had the employees been guilty of less serious transgressions,
both cases might have been decided differently. The Labour Court has held, however, that a fair appeal cannot cure a material
irregularity in a disciplinary hearing (in that case bias by the presiding officer) if the appeal is confined to procedural issues or the
sanction. 175
An offer to convene an appeal hearing to stave off an unfair dismissal action will not avail the employer if its intention was
merely to correct the patent procedural defects of the dismissal, and dismiss the employee again. 176 Dismissed employees will not
be denied access to the CCMA or a bargaining council if they have not appealed internally because s 191(1)(b)(i) sets the time limit
for referrals running only after the conclusion of an employee’s appeal.
Failure to hold an appeal will not render a dismissal unfair if the employee declined an invitation to exercise that right. 177
4th Ed, 2022, ch 10-p 277
Unlike the filing of an appeal in the criminal or civil courts, the lodging of an appeal does not stay the operation of the finding or
sanction of an internal disciplinary tribunal. Unless a code provides to the contrary, employees, once dismissed, are not entitled to
their salaries, even if the dismissal should subsequently be overturned on appeal. 178
Despite what has been said above about the curing of procedural irregularities on appeal, an appeal should not be confused with
a situation in which employers decide to retry cases because management is unhappy with the verdict or sanction handed down in
disciplinary proceedings. This involves a possible infringement of the ‘double jeopardy’ rule, discussed below.
41 See C hapters 15 and 16, respectively.

42 See, for example, Black Mountain v CCMA [2005] 1 BLLR 1 (LC ), in which the court held that the requirement in the code requiring employees
found under the influence of alcohol to be sent for counselling bound the employer to take that route rather than simply dismissing them for misconduct.
43 See, in particular, Avril Elizabeth Home for the Mentally Handicapped v CCMA, discussed above.
44 TGWU obo Joseph / Gray Security Services (Western Cape) [1999] 20 BALR 698 (C C MA).
45 See C hapter 23.
47 (2003) 24 ILJ 517 (LAC ).
48 See also SA Tourism Board v CCMA [2004] 3 BLLR 272 (LC ).
49 SAMWU obo Abrahams v City of Cape Town (2008) 29 ILJ 1978 (LC ); Riekert v CCMA (2006) 27 ILJ 1706 (LC ). In Department of Education
(Province of the Northern Cape) v Kearns (2019) 40 ILJ 1764 (LAC ), the disciplinary hearing was set aside because the presiding officer had not given
the department an opportunity to explain a delay in instituting disciplinary action. In Mushi v Exxaro Coal Grootegeluk Coal Mine [2019] 10 BLLR 1134
(LAC ), the court accepted that disciplinary codes are guidelines, but held that they are meant to create a degree of certainty; departures should
therefore be justified.
50 (2004) 25 ILJ 659 (SC A).
51 See, for example, SACCAWU and Pick ’n Pay Hypermarket (Northgate) (2004) 25 ILJ 1820 (ARB).
53 FAWU obo Tambala / Allied Amusement [2000] 12 BALR 1398 (C C MA).
54 See, for example, Mathabela v Dr J S Moroka Local Municipality (2011) 32 ILJ 2000 (LC ) and SAMWU obo Matola v Mbombela Municipality (2011)
32 ILJ 2748 (LC ), in which the court interdicted a disciplinary hearing because the presiding officer was an external advocate, not an employee as
required by the applicable disciplinary code.
55 See, for example, Dyasi v Onderstepoort Biological Products (2011) 32 ILJ 1085 (LC ), which dealt with whether disciplinary proceedings in a
parastatal should have been initiated by the minister, or by the statutory board of directors.
56 Lebu v Maquassi Hills Local Municipality (2) (2012) 33 ILJ 653 (LC ).
57 TAWU obo Mabele / Autonet [1999] 9 BALR 1164 (C C MA).
58 Korsten v MacSteel [1996] 8 BLLR 1015 (IC ).
59 See, for example, Samtor Tankers v Kule (1993) 14 ILJ 1038 (LAC ).
60 POPCRU v Minister of Correctional Services (1999) 20 ILJ 2416 (LC ); NUM obo Matela / New Vaal Colliery [1999] 3 BLLR 332 (IMSSA); NUM v
CCMA (2011) 32 ILJ 956 (LC ).
61 Mutual Construction Company Tvl v Ntombela NO (2010) 31 ILJ 901 (LAC ).
62 See, for example, Durban Confectionery Works t/a Beacon Sweets v Majangaza (1993) 14 ILJ 663 (LAC ); Williams v Gilbeys Distillers and
Vintners (1993) 2 LCD 327 (IC ).
63 The employer made this mistake in Motale v The Citizen 1978 [2017] 5 BLLR 511 (LC ). But see Old Mutual v Motale (2020) 41 ILJ 1085 (GJ).
64 Edcon v Pillemer NO (2008) 29 ILJ 614 (LAC ); Hulamin v MEIBC (2014) 35 ILJ 3417 (LC ); SAMWU v Ngaka Modiri Molema District
Municipality (2016) 37 ILJ 2430 (LC ); Phuthi v CCMA (2016) 37 ILJ 2417 (LC ).
65 Specialised Belting & Hose v Sello NO [2009] 7 BLLR 704 (LC ) (employee charged with intimidation, insubordination and racism for uttering
racist remark); Ntshangane v Speciality Metals (1998) 19 ILJ 584 (LC ) (employee charged with being AWOL and ‘breach of good faith towards the
company’).
66 Sol Plaatje Municipality v SALGBC (2022) 43 ILJ 145 (LAC ).
67 Sasol Nitro v NBCCI (2017) 38 ILJ 2322 (LAC ).
68 Nitrophoska v CCMA (2011) 32 ILJ 1981 (LC ).
69 Sanny v Van der Westhuizen [2005] 10 BLLR 1017 (LC ).
70 TGWU v Interstate Bus Lines (1988) 9 ILJ 877 (IC ); NUM v Kloof Gold Mining Co (1986) 7 ILJ 375 (IC ); Abeldas v Woolworths [1995] 12 BLLR 20
(IC ).
71 Munnik Basson Da Gama Attorneys v CCMA (2011) 32 ILJ 1169 (LC ).
72 Munsamy and Quality Products (2013) 34 ILJ 2386 (C C MA).
73 SABC v Phasha (2021) 42 ILJ 816 (LAC ).
74 SAPS v Magwaxaza (2020) 41 ILJ 408 (LAC ).
75 (2019) 40 ILJ 2477 (LAC ).
76 Monare v SA Tourism (2016) 37 ILJ 394 (LAC ).
77 Union of Pretoria Municipal Workers v Stadsraad van Pretoria (1992) 13 ILJ 1563 (IC ). See also Van Eyk v Minister of Correctional
Services (2005) 26 ILJ 1039 (E).
78 Nemadzivhanani v University of Venda (2020) 41 ILJ 1343 (LAC ).
79 Although there may be some case in which it might be unfair to proceed against an employee for misconduct committed a long time before its
discovery. This will obviously depend on the gravity of the misconduct.
80 Lekabe v Minister: Department of Justice & Constitutional Development (2009) 30 ILJ 2444 (LC ).
81 See Riekert v CCMA (2006) 27 ILJ 1706 (LC ).
82 (2005) 26 ILJ 1039 (E).
83 (2005) 26 ILJ 782 (LC ).
84 [2005] 10 BLLR 957 (LC ).
85 See also Mokoetle v Madau NO (2009) 30 ILJ 2755 (LC ); Lekabe v Minister: Department of Justice & Constitutional Development (2009) 30 ILJ
2444 (LC ).
86 See, for example, Zono v Gruss NO [2011] 9 BLLR 873 (LAC ).
87 See Van der Grijp v City of Johannesburg (2007) 28 ILJ 2079 (LC ).
88 Stokwe v MEC: Department of Education, Eastern Cape (2019) 40 ILJ 773 (C C ).
89 PSA obo Molosiwa v Department of Education and Sports Development – North West [2020] 1 BLLR 67 (LC ).
90 Davis v Tip NO 1996 (1) SA 1152 (W); Department of Public Works, Roads & Transport v Motshoso [2005] 10 BLLR 957 (LC ).
91 See NUM v Billard Contractors (2006) 27 ILJ 1686 (LC ). See also C hapter 22 and Grogan Collective Labour Law 3 ed (Juta 2019) C hapter 15.
92 (2006) 27 ILJ 1627 (LAC ).
93 See Mosikili v SA Board of Sheriffs (2022) 43 ILJ 946 (WC C ), in which the High C ourt found that an appeal tribunal had unfairly rejected a
medical certificate proffered by the applicant to explain his absence.
94 See Mulaudzi v City of Tshwane Metropolitan Municipality (2022) 43 ILJ 398 (LC ); SABC v CCMA (2001) 22 ILJ 487 (LC ); SACWU v Dyasi [2001]
7 BLLR 731 (LAC ); Trident Steel v CCMA (2005) 26 ILJ 1519 (LC ); Seema v GPSSBC (2005) 26 ILJ 2037 (LC ); MEC for Education & Culture v
Mabika (2005) 26 ILJ 2368 (LC ); DHL Supply Chain SA v De Beer NO (2013) 34 ILJ 1530 (LC ); GIWUSA obo Nyangaza and Germiston Powder
Coates (2005) 26 ILJ 200 (BC A).
95 (2010) 31 ILJ 1838 (LAC ).
96 In NUM v Samancor (Tubatse Ferrochrome) (2011) 32 ILJ 1618 (SC A).
97 (2007) 28 ILJ 1499 (SC A).
98 See, for example, Foschini Group v Maidi (2010) 31 ILJ 1787 (LAC ).
99 See Fidelity Cash Management Service v CCMA (2008) 29 ILJ 964 (LAC ) at [40] and [41]. In that case, the employer had charged the employee
with arriving late for his disciplinary hearing.
100 See, for example, Ntsibande v Union Carriage & Wagon Co (1993) 14 ILJ 1566 (IC ).
101 Yichiho Plastics v Muller (1994) 15 ILJ 593 (LAC ).
102 NUM v Transvaal Navigation Collieries & Estate Co (1986) 7 ILJ 393 (IC ); Malapile v Germiston Ceramics & Potteries (1988) 9 ILJ 855 (IC ).
103 Magic Company v CCMA (2005) 26 ILJ 271 (LC ).
104 Masoka and Consolidated Wire Industries (2005) 26 ILJ 965 (BC A); NUM v CCMA (2011) 32 ILJ 956 (LC ).
105 FAWU v CG Smith Sugar (1989) 10 ILJ 907 (IC ).
106 Afrox v NBCCI (2006) 27 ILJ 1111 (LC ).
107 Mkasi v Department of Health: KZN (2019) 40 ILJ 2576 (LC ). A party in civil or Labour C ourt proceedings may be granted absolution if the
plaintiff or applicant has failed to make out a case. Its consequence is that the matter is removed from the roll, leaving the plaintiff or applicant free to
re-enrol the matter on the basis of fresh evidence.
108 Masoka and Consolidated Wire Industries (2005) 26 ILJ 965 (BC A).
110 BEMAWU v SABC (2016) 37 ILJ 1394 (LC ).
111 Mathabathe v NMBMM (2017) 38 ILJ 391 (LC ).
112 NUMSA v Transnet National Ports Authority (2019) 40 ILJ 516 (LAC ).
113 Mmola v CCMA (2018) 39 ILJ 1793 (LC ).
114 Solidarity v SAPS (2019) 40 ILJ 448 (LC ).
115 FAWU and ABI (2002) 23 ILJ 774 (C C MA).
116 Shop stewards are to be distinguished from union officials. However, a shop steward may also be a union official.
117 Section 14(4)(a).
118 Hamata v Chairperson, Peninsula Technikon Internal Disciplinary Committee (2002) 23 ILJ 1531 (SC A).
119 MEC: Department of Finance, Economic Affairs & Tourism, Northern Province v Mahumani (2004) 25 ILJ 2311 (SC A).
120 Majola v MEC, Department of Public Works, Northern Province (2004) 25 ILJ 131 (LC ).
121 Zondo v Uthukela District Municipality (2015) 36 ILJ 502 (LC ).
122 SAAWU v Steiner Services (1988) 9 ILJ 895 (IC ). But see NUM v Western Areas Gold Mining Co (1985) 6 ILJ 380 (IC ).
123 See NUM v Blinkpan Collieries (1986) 7 ILJ 579 (IC ), in which the court criticised the quality of representation the applicant employee had
received. However, this judgment should not be seen as laying down a principle that an employer is in all circumstances obliged to find a proper
representative for the employee or to ensure that an employee’s chosen representative does his or her job properly. See also SACCAWU / Diskom
Discount Stores [1997] 6 BLLR 819 (C C MA).
125 In Minister of Police v Kgopa [2019] 1 BLLR 16 (LAC ) the court noted that a presiding officer decided the matter on the probabilities after
hearing only the employer’s evidence and the employee’s version as put to the employer’s witnesses in cross-examination. This was held to be entirely
unreasonable.
126 However, to be relevant in arbitration proceedings, the parties must consent to its use: see Hillside Aluminium v Mathuse (2016) 37 ILJ 2082
(LC ).
127 For judgments setting out the common-law test for bias see inter alia: Slade v The Pretoria Rent Board 1943 TPD 246; Jacobsen v Tugela and
Maumulo Rural Licensing Board 1964 (1) SA 45 (D); Mönnig v Council of Review 1989 (4) SA 866 (C ).
128 See Moodley v Knysna Municipality (2007) 28 ILJ 1715 (C ), in which the court dismissed an application for an interdict restraining proceedings
launched on the basis that the employee had a ‘legitimate expectation’ to be heard on the appointment of the presiding officer.
129 SACCAWU obo Mabunza / Standard Bank SA [1998] 9 BALR 1185 (C C MA).
130 Madondo / SAB [2001] 8 BALR 875 (C C MA). The principles applicable in applications for recusal are discussed in Labour Litigation and Dispute
Resolution C hapter 7.
131 Mashiya v Sirkhot NO (2012) 33 ILJ 420 (LC ).
132 CAWU v Sabrix (1996) 1 LLD 25 (IC ).
133 Gimini Indent Agencies t/a S & A Marketing v CCMA (1999) 20 ILJ 2872 (LC ).
134 Anglo American Farms t/a Boschendal Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC ) at 212. See also NUM v Unisel Gold Mines (1986) 7 ILJ
398 (IC ).
135 On the test for bias, see SACCAWU v Irvin & Johnson (Sea Foods Division Fish Processing) (2000) 21 ILJ 330 (LAC ) at [25]; upheld on appeal:
SACCAWU v Irvin & Johnson (Sea Foods Division Fish Processing) (2000) 21 ILJ 1583 (C C ).
136 For perhaps the most extreme example of disqualifying bias yet recorded, see Sibiya v SAPS (2021) 42 ILJ 577 (LC ).
137 Gird v Holt Leisure Parks (1995) 4 LCD 37 (IC ).
138 Townsend v Roche Products (1994) 15 ILJ 886 (IC ).
139 FEDCRAW obo 23 Members and Librapac (1997) 2 LLD 197 (C C MA). See also Beck / Gavid Investments t/a Bulton Corporation [2001] 6 BALR
569 (C C MA) (disciplinary officer involved in incident giving rise to the charge against the employee); CAWU / Mezi Foods [2001] 2 BALR 112 (C C MA)
(disciplinary officer preparing charges and involved in prior identification of accused employee).
140 See, for example, Swartbooi / Department of Transport [2002] 8 BALR 812 (BC ).
141 See, for example, Cronje and Toyota Manufacturing (2001) 22 ILJ 735 (C C MA).
142 Coin Security Group v TGWU [1997] 10 BLLR 1261 (LAC ).
143 Kelly Group v Khanyile (2013) 34 ILJ 2035 (LC ).
144 FAWU v BB Bread (1987) 8 ILJ 704 (IC ).
145 SAB v FAWU (1992) 1 LCD 16 (LAC ).
146 This practice, while salutary, may not be able to be followed in some cases. The fact that a presiding officer is lower in rank or status to the
accused employee will not necessarily nullify the proceedings, provided that the accused employee does not have a reasonable apprehension that the
presiding officer’s junior status will influence his or her decision. See Avril Elizabeth Home for the Mentally Handicapped v CCMA (2006) 27 ILJ 1644 (LC ).
147 In Cronje and Toyota Manufacturing (2001) 22 ILJ 735 (C C MA), for example, the company’s HR director was found to have influenced the
presiding officer before the hearing. The employee’s dismissal was ruled procedurally unfair on this ground.
148 NULAW v Crown Footware [2000] 6 BLLR 739 (LC ); Latha / Glenashley Spar [2001] 5 BALR 474 (C C MA); Khula Enterprise Finance v
Madinane (2004) 25 ILJ 535 (LC ). In some cases, the courts have accepted that the appointment of an outside presiding officer is something of a
guarantee against bias: see, for example, Ngobeni v PRASA Corporate Real Estate Solutions (2016) 37 ILJ 1704 (LC ) and Mathabathe v NMBMM (2017)
38 ILJ 391 (LC ).
149 Bamford / Energiser (SA) [2001] 12 BALR 1251 (P).
150 Khula Enterprise Finance v Madinane (2004) 25 ILJ 535 (LC ).
151 Now named ‘inquiry by arbitrator’ rather than the unfortunate term ‘pre-dismissal arbitration’. This procedure is discussed in Labour Litigation
and Dispute Resolution C hapter 9.
152 Only employees earning above an amount prescribed by the minister may consent to pre-dismissal arbitration in their contracts of
employment; employees earning below that amount must consent on respect of each specific case, and then only after receiving the charges (s
188A(4)). Where the remuneration of an employee who has agreed contractually to pre-dismissal falls below the threshold, the employer may no longer
rely on that provision, but must acquire the employee’s specific consent. See further Labour Litigation and Dispute Resolution C hapter 9.
153 Section 188(11). See Letsoalo v Minister of Police (2016) 37 ILJ 1916 (LC ), in which the court held that the availability of s 188(11) provided
the employee with adequate alternative relief to an urgent application.
154 As occurred in Kubheka v MEC: Human Settlements (Gauteng Provincial Government) (2021) 42 ILJ 1497 (LC ).
155 NAAWU v Pretoria Precision Castings (1985) 6 ILJ 369 (IC ).
156 This is known as ‘similar fact’ evidence.
157 Eddels (SA) v Sewcharau (2000) 21 ILJ 1344 (LC ).
158 UKZN v Pillay (2019) 40 ILJ 158 (LAC ).
159 Philander v La Maison (2014) 35 ILJ 3222 (LC ).
160 In ACTWUSA v JM Jacobsohn (1990) 11 ILJ 107 (IC ) and MAWU v Transvaal Pressed Nuts, Bolts & Rivets (1988) 9 ILJ 129 (IC ), the court held
that employees are entitled to appeal. But see Olivier v AECI Plofstowwe & Chemikalieë, Bethal (1988) 9 ILJ 1052 (LC ), in which the existence of a
general right of appeal was questioned.
161 NUM v Rand Mines Milling Co (1986) 7 ILJ 765 (IC ); Rossouw v SA Mediese Navorsingsraad (1987) 8 ILJ 660 (IC ). This rule is applicable even
when the appeal constitutes a hearing de novo.
162 See, for example, FAWU v BB Bread (1987) 8 ILJ 704 (IC ); Olivier v AECI Plofstowwe & Chemikalieë, Bethal (1988) 9 ILJ 1052 (LC ); Yichiho
Plastics and SACTWU (1991) 12 ILJ 1395 (ARB).
163 Robbertze v Matthew Rustenburg Refineries (Wadeville) (1986) 7 ILJ 64 (IC ).
164 For a discussion on the differences between review and appeal see Toyota SA Motors v Radebe (2000) 21 ILJ 340 (LAC ). See further Labour
Litigation and Dispute Resolution C hapters 14 and 16.
165 A statutory arbitration is a hearing de novo: see Labour Litigation and Dispute Resolution C hapter 7 and below.
166 Mekgoe and Standard Bank of SA (1997) 2 LLD 96 (C C MA). The commissioner added, however, that such exclusion would have been
permissible had the disciplinary code so provided.
167 Basset v Servistar (1987) 8 ILJ 503 (IC ); Robbertze v Matthew Rustenburg Refineries (Wadeville) (1986) 7 ILJ 64 (IC ).
168 Mkhwanazi v Plasser Railway Machinery (SA) (1993) 14 ILJ 237 (IC ).
169 SARS v CCMA (2017) 38 ILJ 97 (C C ); Dlamini v CCMA (2004) 25 ILJ 1060 (LC ); PSA obo Venter v Laka NO (2005) 26 ILJ 2390 (LC ).
170 See Wium v Zondi [2002] 11 BLLR 1117 (LC ) at [20] and [21].
171 UNISA v Solidarity obo Marshall (2009) 30 ILJ 2146 (LC ).
172 See the thorough analysis of this issue in AUSA obo Melville and SAA Technical (2002) 23 ILJ 1094 (ARB).
173 (1999) 20 ILJ 1520 (LAC ).
174 (1994) 15 ILJ 979 (A), which was endorsed in Semenya SC v CCMA (2006) 27 ILJ 1627 (LAC ). Discussed above.
175 Eskom Holdings v Ferreira (2007) 28 ILJ 2588 (LC ) at [5].
176 Ocean Basket Airport v BCRCAT (2013) 34 ILJ 1569 (LC ).
177 Khumalo v Otto Hoffmann Handweaving Co (1988) 9 ILJ 883 (IC ).
178 SAMWU obo Cindi v SALGBC (2017) 38 ILJ 472 (LC ).
Employers may be dissatisfied with findings or penalties handed down by presiding officers. May managers then set aside decisions
of disciplinary tribunals and order re-hearings? It is a general principle of fairness that a person should not be tried twice for the
same offence. This principle is applied strictly by the criminal courts, where it is expressed in the principle autrefois acquit. In civil
law, it is expressed in the principle that a litigant may not sue in respect of a matter that has already been decided by a competent
court; the issue is then said to be res judicata. Subject only to the state’s right to appeal, once accused persons have been
acquitted, they walk free and may not be prosecuted again for the same offence; nor may the state charge a person a second
time for the same offence with a view to securing a heavier sentence. 179
How far the ‘double jeopardy’ principle applies in labour law split the LAC in BMW (South Africa) v Van der Walt. 180 Mr Van der
Walt was charged with fraudulently undervaluing scrapped equipment so that he could take possession of it at a reduced price. The
equipment had mistakenly been given a ‘nil’ valuation. Van der Walt subsequently discovered that the ‘scrapped’ equipment was
worth about R15 000, and arranged to have it removed from the factory for repairs. When he had done so, the repair company said
it was willing to purchase the equipment for R50 000. Van der Walt then arranged for the equipment to be purchased by a bogus
‘company’, owned by himself. Van der Walt was originally charged with fraud for arranging to have the equipment scrapped and
removed for repair. He was found guilty of ‘misrepresentation’, but no sanction was imposed. At that stage, the company was
unaware of Van der Walt’s dealings with the repair company. When these dealings came to management’s attention, Van der Walt
was charged again with ‘misrepresentation’. The true motivation for retrying Van der Walt arose from the company’s realisation that
the equipment was worth far more than originally thought. This gave the impression that Van der Walt had ‘smuggled’ the
equipment out of the factory with the intention of selling it for his own gain.
The majority held: ‘Whether or not a second disciplinary inquiry may be opened against an employee would . . . depend upon
whether it is, in all the circumstances,
4th Ed, 2022, ch 10-p 278
fair to do so . . . In labour law fairness and fairness alone is the yardstick.’ The court accepted, however, that general principles of
fairness might be overridden when a second hearing is precluded by a disciplinary code, and that a second hearing is permissible
only in ‘rather exceptional circumstances’. 181
The LAC split again over the double jeopardy issue in Branford v Metrorail Service (Durban). 182 Mr Branford was dismissed for
making eight fraudulent petty-cash claims amounting to just over R800, in some cases forging the responsible manager’s signature
on the petty-cash claims. On learning of the offence, Branford’s line manager called Branford in, gave him a thorough ‘dressing
down’ and placed a formal warning in Branford’s file. It appears that the line manager was influenced by the fact that Branford had
been responsible for several cost-cutting measures the previous year. On learning of the offence and the sanction, the Metrorail
regional manager ordered Transnet’s internal auditors to investigate Branford’s petty-cash transactions. On the strength of the
auditors’ report, the regional manager ordered a further disciplinary inquiry, which resulted in Branford’s dismissal. In arbitration,
Branford relied simply on the allegation that he had been disciplined twice for the same offence, and that this alone rendered his
dismissal unfair. The arbitrator agreed and ordered Metrorail to reinstate Branford, but without retrospective effect. On review, the
Labour Court avoided being drawn into this debate by finding that Metrorail had not infringed the double jeopardy rule because
Branford had not in fact been subjected to two disciplinary inquiries; the ‘second’ hearing was in fact the first.
The majority of the LAC bench was prepared to accept, for purposes of its judgment, that Branford had been subjected to two
hearings as well as two ‘punishments’. But these judges found that the arbitrator had failed to consider the essential question: was
the denial of the right to hold a second hearing unfair to the employer? In the process, the arbitrator had also ignored a second
principle – that arbitrators must approach employers’ decisions to dismiss employees with ‘some measure of caution’. 183 The award
was therefore set aside because it was both unjustifiable and irrational.
These judgments left some questions in their wake. According to the majority in Metrorail, the true legal position is that a
second inquiry is justified when it is fair to do so. However, the difference between these ‘tests’ is not explained in the judgment.
Nor does it appear from the judgment in the Toyota case. The BMW majority merely added the caveat in that judgment that ‘it
would probably not be considered to be fair to hold more than one disciplinary inquiry save in rather exceptional circumstances’.
The ‘exceptionality’ of the circumstances is therefore a measure of fairness, not a test in itself.
4th Ed, 2022, ch 10-p 279
There is probably no test more precise than fairness with which a particular breach of the double jeopardy rule can be assessed.
But apart from ‘exceptional circumstances’, a number of considerations may be suggested. These include:
• whether the first hearing was conducted in good faith by the presiding officer
• whether the presiding officer had the power to make a final decision or only give a recommendation 184
• whether the decision-maker who countermanded the original decision was in fact conducting a second disciplinary inquiry 185
• whether the first inquiry was conducted in accordance with the employer’s disciplinary code 186
• whether the employer was acting in good faith when it decided to hold the second inquiry
• whether provision was made in the disciplinary code for a second inquiry 187
• whether the second inquiry itself conformed with the principles of natural justice 188
• whether factors were taken into account in the second inquiry which the employee did not have an opportunity to
answer 189
• whether and in what circumstances new and relevant information came to light after the first hearing 190
• the time between the first hearing and the second
• the gravity of the employee’s offence 191
• the extent to which the penalty imposed by the first presiding officer was out of kilter with the sanction prescribed by the
disciplinary code and those actually imposed in practice for the particular offence (ie whether the leniency of the penalty
induced a ‘sense of shock’)
• whether, in cases where the employee was found not guilty by the first presiding officer, the finding is supported by the
evidence.
There have been a number of cases in which presiding officers have acted in bad faith. Except to the extent that the majority
judgment endorses fairness as the main consideration in such cases, BMW does not provide express guidance for dealing with them.
A number of arbitrators have taken the view that, while the double jeopardy rule should be applied in appropriate cases, there is no
inflexible rule to prevent an employer from holding a second hearing if fairness and operational considerations so require. The case
law indicates that departures from the double jeopardy rule are permissible if the first inquiry does not comply with the provisions of
the disciplinary code or if new and substantially different evidence
4th Ed, 2022, ch 10-p 280
emerges after the first inquiry which casts the employee’s offence in a more serious light. Otherwise, an employee cannot be
disciplined twice for the same offence. The principle is regarded as important enough to warrant the setting aside of an award
where the arbitrator failed even to consider whether it was fair to convene a second disciplinary inquiry. 192 The dismissal of an
employee who had been found not guilty of fraud and issued with a final written warning three years earlier was ruled fair because
the employer had discovered that letters she had presented to the initial hearing were fraudulent. 193 This was clearly not a case
of double jeopardy.
179 The principle is known in criminal law as ‘autrefois convict’ or ‘autrefois acquit’.
180 (2000) 21 ILJ 113 (LAC ). See also Bhengu v Union Co-operative (1990) 11 ILJ 117 (IC ).
181 The minority judge would have preferred to decide the matter on principle: to him, the double jeopardy rule was absolute.
182 (2003) 24 ILJ 2269 (LAC ).
183 A principle later overruled by the C onstitutional C ourt (see Sidumo v Rustenburg Platinum Mines (2007) 28 ILJ 2405 (C C ), which is discussed in
C hapter 8). If that principle had not been applied, the majority in Metrorail would probably still have arrived at the same conclusion.
184 Wium v Zondi [2002] 11 BLLR 1117 (LC ).
185 See, in this regard, PSA obo Venter v Laka NO (2005) 26 ILJ 2390 (LC ). The court held that the review by a departmental head in terms of s
17(1) of the Public Service Act did not constitute a second hearing.
186 Frost and Telkom SA (2001) 22 ILJ 1253 (C C MA).
187 Telkom SA v CCMA (2002) 23 ILJ 536 (LC ).
188 Strydom / Usko [1997] 3 BLLR 343 (C C MA).
189 Kakaza and Department of Communications (2003) 24 ILJ 908 (BC A).
190 BMW (South Africa) v Van der Walt (2000) 21 ILJ 113 (LAC ).
191 SALSTAFF obo Brink and Portnet (2002) 23 ILJ 628 (BC A); Solidarity/MWU obo Van Staden v Highveld Steel & Venadium (2005) 26 ILJ 2045
(LC ).
192 NUM v CCMA (2007) 28 ILJ 1614 (LC ).
193 Mahlakoane v SARS (2018) 39 ILJ 1034 (LAC ).
Strictly speaking, the double jeopardy rule applies in situations where the accused is subjected to more than one disciplinary
hearing on charges arising from the same set of facts. Situations in which the decisions of presiding officers are overruled and
heavier penalties are imposed by higher authorities are not true examples of the double jeopardy rule. Such reviews by higher
authorities are in principle unfair for a number of reasons: the higher authority may not have been appraised of the evidence; the
employee has already been ‘punished’; failure by the final decision-maker to afford the employee an opportunity of making fresh
representations would constitute a breach of the audi principle. However, and perhaps questionably, the same principles are
generally applied to reviews by higher management as are applied in cases involving the double jeopardy rule proper.
The LAC set its face firmly against such reviews in County Fair Foods v CCMA, 194 and that case was followed in a series of
judgments in which the management of the South African Revenue Service (SARS) overruled lesser sanctions imposed by
disciplinary tribunals and dismissed employees. 195 The highpoint of these judgments was reached by the LAC when it held that
dismissals in these circumstances were not only unfair, but unlawful. 196
These cases were revisited by the Labour Court in Moloantoa v CCMA, 197 in which management had altered a sanction of
suspension without pay to summary dismissal. The court noted that both parties in this case had approached the issue on the basis
of the double jeopardy rule (see above). But the true issue was whether employers may revoke sanctions already imposed. Both
parties had referred to BMW, in which the LAC had held that the question whether to convene a second disciplinary hearing
depends on whether it was fair to do so and justified by the circumstances. The Moloantoa court noted that the qualifications did
not form part of the ratio of that judgment; properly analysed, the BMW court was referring to a second hearing based on a fresh
charge. The issue of fairness in that case related to the holding of a second hearing, not to the substitution of a sanction.
Metrorail had confirmed this view by holding that a second hearing would be unfair if the
4th Ed, 2022, ch 10-p 281
employee was not given an opportunity to be heard. Subsequent case law confirmed that where the imposition of a more severe
sanction is not expressly permitted by a disciplinary code, the dismissal will be at least procedurally unfair.
But in its Kruger judgment, 198 the LAC had found that a dismissal in these circumstances was not only unfair, but unlawful. The
Moloantoa court regarded this as binding precedent: the current rule was accordingly that the substitution of a sanction by
management renders the dismissal both substantively unfair and invalid. Ms Moloantoa was awarded compensation of 10 months’
salary.
It would be hazardous to draw hard and fast rules on when management may safely overrule the outcome of disciplinary hearings
from this case law. But one probably can safely say that the LAC’s finding in Kruger that dismissals resulting from this process are
unlawful, has been overtaken by events, at least when the employee challenges the dismissal under the LRA. The Constitutional
Court’s judgment in Kruger strongly suggests that if a dismissal is successfully challenged on that ground alone, it will at worst for
the employer be ruled only procedurally unfair, as has since been found in most similar cases.
In Anglo American Platinum (Rustenburg Platinum Mines) v Beyers, 199 the LAC revived the ‘exceptional circumstances’ approach
and agreed with the lower court’s ruling that the dismissal of a mine electrician for failing to follow safety procedures was
substantively unfair. Management altered the sanction of a period of unpaid suspension to summary dismissal after a union had
objected to the presiding officer’s leniency. The court found this an inadequate reason for intervention because the mine failed to
prove the union’s claim that dismissal was inconsistent.
Whether these cases will bind courts where the dismissal is challenged as a breach of contract remains to be seen. The above
cases notwithstanding, the High Court was prepared to accept that a university could convene a ‘review committee’ to reconsider
a finding by an external presiding officer that a lecturer was not guilty of sexual harassment. The court held that even though the
university’s disciplinary code did not expressly provide for internal reviews, they were not expressly prohibited and reviews were
generally permitted by labour law. 200
194 (2003) 24 ILJ 355 (LAC ).

195 SARS v CCMA (2010) 31 ILJ 1238 (LC ), upheld in SARS v CCMA (2016) 37 ILJ 655 (LAC ).
196 SARS v CCMA (2016) 37 ILJ 655 (LAC ) (the Kruger judgment), which was overruled by the highest court in SARS v CCMA (2017) 38 ILJ 97
(C C ), but on a different ground.
197 (2021) 42 ILJ 2259 (LC ).
198 SARS v CCMA (2016) 37 ILJ 655 (LAC ), which is referred to as the Kruger judgment (overruled by the C onstitutional C ourt in SARS v
CCMA (2017) 38 ILJ 97 (C C )).
199 (2021) 42 ILJ 2149 (LAC ).
200 Mzolo v Rhodes University (2021) 42 ILJ 1308 (EC G). But see Viedge v Rhodes University (2019) 3 BLLR 316 (EC G).

This third method of undoing the outcome of disciplinary hearings was first accepted in MEC for Finance, KZN v Dorkin NO. 201
That is to take the decision of the presiding officer on review to the Labour Court. In Dorkin, the LAC ruled that the option of
reviewing decisions of disciplinary tribunals was a logical extension of the views expressed by it in BMW. Having found that the only
reasonable sanction for the commission of the serious offences for which the employee had been found guilty was summary
dismissal, the LAC altered it in this case to ‘instant dismissal’.
4th Ed, 2022, ch 10-p 282
The issue came before the SCA in further appeal against Dorkin. 202 That court reasoned that, because the Labour Court is
empowered by s 158(1)(h) of the LRA to review any action by the state in its capacity as employer ‘on any ground permissible in
law’ statutory employers are entitled to take disciplinary sanctions on review because such decisions entail the exercise of public
power and are conducted in terms of bargaining councils’ agreements having the force of law. The SCA agreed that the final
written warning issued in that case was irrational and fell to be set aside. 203
Desirable as it may be to give employers (or at least statutory employers) the option of taking aberrant decisions of disciplinary
tribunals on review to the Labour Court, rather than simply ignoring them, Dorkin may have been an example of how hard cases
make bad law. It is difficult to conceive how the courts could have found in the face of the majority judgment in Chirwa that pre-
dismissal proceedings constitute administrative action. 204
Apart from this, neither the LAC nor SCA had any regard for the fact that, by the time the LAC effectively dismissed Mr
Ngatshane, he had continued in the government’s service for about five years. Since the dismissal was effectively implemented by
the court, Ngatshane was deprived of his right to appeal, as well as his statutory right to refer the matter for compulsory
arbitration, where the matter would have been heard de novo. It seems eminently arguable that the denial by the court of these
fundamental rights is unconstitutional.
The Labour Court expressed some misgivings about the logic of this situation in Overstrand Municipality v Magerman NO. 205
This case concerned the dismissal of Mr Hendricks, the chief of Law Enforcement and Security of the Overstrand Municipality,
Hendricks did not apply the law to himself. Along with several general counts of misconduct, he was charged with withdrawing or
reducing personal speeding fines on the false ground that they were incurred in the course of duty. The presiding officer found
Hendricks guilty on that charge, but tempered justice with mercy – he imposed a penalty of suspension without pay for 10 days
and a final written warning. The municipality launched an application for the review and setting aside of the ruling on sanction in
terms of s 158(1)(h) of the LRA. The Labour Court set aside the sanction and substituted the sanction of dismissal.
On appeal by Hendricks, 206 the court accepted that the Constitutional Court’s judgments in Chirwa and Gcaba supported the
general proposition that public-sector employees aggrieved by dismissals or unfair labour practices should ordinarily pursue remedies
under the LRA, but did not accept that these judgments were relevant. The starting point for the court was to examine the
meaning and scope of s 158(1)(h). In Chirwa and Gcaba the court held that disciplinary action did not constitute administrative
action for purposes of the PAJA. However, the Constitutional Court had also recognised that distinguishing between what is and
4th Ed, 2022, ch 10-p 283
is not administrative action may be a difficult task and must be done on a case-by-case basis. When an organ of state such as a
municipality disciplines a senior employee who holds an office responsible for law enforcement, it can be seen to be exercising a
public power or a public function. The power of the disciplinary tribunal also flowed in this instance from the provisions of a
collective agreement, which is a quasi-legislative instrument. The collective agreement also stipulated that decisions of disciplinary
tribunals are not appealable by employers, but also states that they are ‘subject to any remedies permitted by law’. This suggested
that employers had reserved the right to review disciplinary sanctions.
The LAC was also moved by the need to ensure probity in the public service. The municipality had a duty to root out corruption
within its ranks. With all this in mind, the LAC held that the presiding officer’s decision amounted to administrative action within the
meaning of that term in the PAJA. It was unnecessary to classify the decision as falling under the PAJA because s 158(1)(h) of the
LRA also allows for review ‘on any ground permissible in law’. Apart from PAJA, the exercise of public power is also reviewable on
constitutional grounds of legality and rationality, or under the common law. Besides, neither Chirwa nor Gcaba held any more than
that it is preferable to use the LRA to resolve labour disputes. This ratio of those judgments did not deprive employers of a remedy
against unreasonable, irrational or procedurally unfair conduct by presiding officers exercising delegated authority. The LRA provides
no remedies for employers saddled with bad decisions; their only remedy is accordingly to attack such decisions by way of review,
and the collective agreement appeared to provide for that remedy. Concern that the situation arising from Ntshangase might create
an anomaly was misplaced. The same facts often give rise to different causes of action, as was the case here. Moreover, the
municipality was not ‘reviewing itself’ because it had delegated authority to the disciplinary tribunal. Hendricks also lost on the
facts. The LAC noted that Hendrick’s offences involved gross dishonesty and abuse of authority. These traits invariably detract
from the probity of an organisation itself. There was no need to add to or criticise the reasons given by the trial judge for his
conclusion that dismissal was unquestionably warranted. 207
The Labour Court expressed its misgivings about applications to review disciplinary hearings more strongly in Department of
Defence v Thamaga NO. 208 An accounting clerk was dismissed for gross negligence after the department discovered that an
account for which she was responsible was short by about R40 000. She pleaded guilty to the charge at a disciplinary hearing. The
presiding officer issued her with a final written warning and ordered her to repay the money. The department launched an
application under s 158(1)(h), seeking to have the sanction set aside and replaced with dismissal. The court lamented the
frequency with which public sector employers approach it to effectively act as a disciplinary appeal body and raised a number of
concerns about the practice. Firstly, the LRA generally does not distinguish between public and private employers, and private
employers do not enjoy the right to challenge disciplinary outcomes on review. Secondly, to remit the matter for rehearing would
entail a fresh hearing. 209 If the employee was dismissed after a second hearing and referred a dispute for arbitration, the
arbitrator would be confronted with a judgment in which the lesser sanction had been ruled irrational. The same intolerable situation
would arise if the employee were to take an arbitrator’s ruling on review if the dismissal were upheld. The court endorsed the
suggestion of a writer that both public and private sector employers should rather prove in ordinary review proceedings that there
are exceptional circumstances which warrant the imposition of a more severe sanction. Furthermore, the Constitutional Court had
held that, generally, employment decisions do not amount to administrative action. But the court was of course bound to accept
that the department was entitled to bring the review. Turning to the merits of the claim, the court noted that all the judgments in
which decisions of presiding officers had been set aside had involved grave misconduct by the employees concerned. In this case
the employee was guilty of negligence, not dishonesty. The department could not seriously argue that the trust relationship had
been destroyed. There was accordingly no ‘yawning chasm’ between what the court would have imposed as a sanction and what
the presiding officer imposed. The sanction of dismissal was not a ‘foregone conclusion’, as had been found in other cases. The
question was rather whether the sanction imposed by the presiding officer met the purpose which disciplinary action is meant to
achieve. In terms of the public service disciplinary code, discipline is meant to be corrective rather than punitive. The presiding
officer did not act unlawfully when he decided on a sanction. The mere fact that he had chosen a lesser sanction than that
preferred by the department did not make his choice irrational. All the employee had done was to incorrectly balance an account.
The application was dismissed.
The LAC had no such scruples in Stellenbosch Municipality v SALGBC. 210 The respondent employee was dismissed when the
municipality discovered that she had submitted a fake matric certificate when she applied for her post. An appeal officer ruled that
she be given a final written warning instead. After inviting further representations from the employee, the municipality decided to
uphold the dismissal. An arbitrator found that the municipality had contravened the disciplinary procedure of the South African
Local Government Bargaining Council (SALGBC), which provided that the decision of an appeal tribunal was final and could not be
altered, and reinstated the employee. On review the court followed SARS v CCMA, 211 and Moodley v Knysna Municipality, 212
where it was held that arbitrators are obliged to apply s 193(2) of the LRA, which this arbitrator had not done. Instead, he had
taken the erroneous view that he could not make a finding on the substantive unfairness of the dismissal. Falsifying a matric
certificate was an extremely serious offence and led to a breach of trust. The award was set aside but the employee received 10
months’ compensation for the municipality’s breach of the collective agreement.
Public sector employers may also take decisions of disciplinary appeal tribunals on review. 213 However, employees must be
afforded an opportunity to make representations before sanctions are altered. 214 The right to review disciplinary proceedings does
not extend to private sector employees, 215 or to state-owned enterprises, 216 even though the considerations mentioned by the
LAC in Overstrand Municipality apply equally to them.
201 (2008) 29 ILJ 1707 (LAC ).
202 Ntshangase v MEC: Finance, KZN (2009) 30 ILJ 2653 (SC A).
203 See also Overstrand Municipality v Magerman NO (2014) 35 ILJ 1366 (LC ).
204 As was pointed out in Ekhuruleni Metropolitan Municipality v Mashazi NO (2010) 31 ILJ 614 (LC ). See also Gcaba v Minister of Safety &
Security (2009) 30 ILJ 2623 (C C ), which confirms Chirwa in this regard (this issue is discussed in Labour Litigation and Dispute Resolution C hapters 5 and
12).
205 (2014) 35 ILJ 1366 (LC ).
206 Hendricks v Overstrand Municipality (2015) 36 ILJ 163 (LAC ).
207 In Minister of Police v Kgopa [2019] 1 BLLR 16 (LAC ), the court overruled a Labour C ourt judgment which had ruled, in spite of the authorities
cited above, that the SAPS lacked locus standi to review the decision of the presiding officer.
208 [2022] 8 BLLR 723 (LC ).
209 As happened in DOH, Western Cape v Twalo [2022] 8 BLLR 741 (LC ).
210 (2022) 43 ILJ 2100 (LC ).
211 (2017) 38 ILJ 97 (C C ).
212 (2007) 28 ILJ 1715 (C ).
213 National Commissioner of the SAPS v Mphalele NO (2019) 40 ILJ 806 (LAC ); Mzolo v Rhodes University (2021) 42 ILJ 1308 (EC G).
214 PSA obo Molosiwa v Department of Education and Sports Development – North West [2020] 1 BLLR 67 (LC ).
215 Gxolo v Harmony Gold Mine [2018] 8 BLLR 794 (LC ).
216 See SABC v Keevy [2020] 6 BLLR 607 (LC ), in which the court also rejected the idea that it could effectively dismiss employees who had
allegedly been unlawfully appointed.

4th Ed, 2022, ch 10-p 284
While a full and proper hearing that conforms with the various requirements set out above must normally be held if a dismissal is to
be deemed fair, a hearing is not an indispensable requirement for a fair dismissal.
Under the 1956 LRA the courts accepted that, in exceptional circumstances, employees could be fairly dismissed without
hearings. This is confirmed by the Code of Good Practice: Dismissal, which states that, if employers cannot reasonably be expected
to comply with its guidelines, they may ‘dispense with pre-dismissal procedures’. 217 Although the code does not state what these
exceptional circumstances may be, the drafter clearly had in mind those situations in which the courts condoned employers’ failure
to hold disciplinary hearings under the 1956 LRA.
Situations may arise, though rarely, in which it may be physically impossible to convene disciplinary hearings. These situations fall
into two categories. The first is when the circumstances are such that, objectively speaking, the employer could not reasonably
have been expected to hold a hearing for the employees concerned; second, where the employees disrupt the proceedings.
It may be that the employer is compelled to act instantly to protect lives and property: 218 the so-called ‘crisis zone’ cases. In
these situations, it may be considered necessary to dismiss certain employees to cool the situation down. Protracted disciplinary
proceedings would clearly defeat the object of such action. It was probably with situations like these in mind that the drafters of
the code provided that disciplinary hearings need not be held in exceptional cases. 219 In such cases, a post-dismissal hearing may
suffice.
When employees refuse to attend the inquiry or threaten to disrupt it, the employer may probably dispense with a hearing, as
the employees will be deemed to have waived the right to be heard.
11.2 Deserters
Another situation in which failure to hold a disciplinary inquiry may be excused arises when the employee concerned cannot be
traced. The courts accept that a disciplinary hearing is unnecessary if employees have deserted and their whereabouts are
unknown. Initially, the view that employees who have deserted or absconded are not entitled to hearings flowed from the idea that
such employees had themselves terminated the contract. 220 However, in SABC v CCMA, 221 and in
4th Ed, 2022, ch 10-p 285
SACWU v Dyasi, 222 the Labour Court and the LAC respectively held that dismissal of a deserting employee occurs when the
employer accepts the employee’s repudiation of the contract.
In SABC the court acknowledged that it would be ‘silly’ to require an employer to hold a hearing for an employee who had
deserted and indicated an unequivocal intention not to return. The problem arises in cases of ‘unexplained’ desertion, ie when
employees give no indication of whether they intend to resume work. But, as the court pointed out, mere absence is not in itself
conclusive evidence of desertion. Up to the point when the intention not to return is established, the absent employee is simply
absent without leave. This was found to have been the case in the appeal against the SABC judgment. 223
Establishing the existence or otherwise of that intention is therefore critical. If the intention to leave is established, there is no
need to hold a hearing. But how does one establish this intention, or the lack of it, in cases where the employee has simply
disappeared? The LAC held that the employer should inform the employee, if it can, that it intends holding a disciplinary inquiry and
invite him or her to attend. If the employee does not, the employer may make a decision. If the employee does pitch up, the case
should be treated as a case of absence without leave.
The principle that, where possible, an employer should hold an inquiry before terminating the contract of a deserter makes sense
when applied to the facts of cases such as SABC. In that case, for reasons which do not appear from the judgment, the employee,
rightly or wrongly, was of the view that he had not been properly instructed to return to work, and for that reason he was entitled
to refuse to attend the disciplinary hearing. Aberrant as that view may appear, it is clear that he had some explanation to offer,
and that he had not conceded that he had no intention of returning. The SABC knew where he was at all times. It could, and
should, have asked the employee to come and give his explanation.
Consistent with the principles enunciated in SABC and Dyasi, but without reference to those cases, the Labour Court found a
dismissal without a hearing unfair when the employer had convened an inquiry in the absence of an employee who was in jail at the
time and dismissed for being absent without leave. 224 On his return to work, the employer convened a second hearing and
‘dismissed’ him again for the same reason, as well as for failing to inform management of his whereabouts. On review, the court
upheld an arbitrator’s finding that the initial decision to dismiss the employee in absentia was unfair because the employer had
known the employee was in prison. This judgment may well have been overtaken by NUM v Samancor (Tubatse Ferrochrome), 225
in which the Supreme Court of Appeal held that a similar finding by a commissioner on similar facts was reasonable.
On the other hand, the court has held that when an employee has deserted (as opposed to absconded), the contract terminates
automatically and there is consequently no need to afford the employee a hearing. 226
4th Ed, 2022, ch 10-p 286
The period that must elapse before an absence can give rise to a presumption that the employee does not intend to return (ie
has deserted) must, according to the courts, be established according to the employer’s ‘operational requirements’. But there is no
failsafe test in this regard. One criterion might be the period in which the employer could reasonably be expected to endure the
absence of the incumbent of the post without seeking a permanent replacement. Another might be whether the employee had
formed the fixed intention not to return to work. 227
But even if those tests were applied, other problems might arise in the wake of such dismissals. For example, absent employees
may turn up after the employer has decided to terminate their contracts with some convincing reason for their absence, and
demand a hearing. Is the employer required in these circumstances to reconsider its assumption, proved with hindsight to be
incorrect, that the employee had no intention of returning? If the employer does accept that the employee had a convincing reason
for being absent, and decides to reinstate the employee, what is to be done with the employee who has in the meantime been
appointed to the post vacated by the absent employee? And if employers decide not to reinstate employees who have compelling
reasons for their absence, there may be a danger that a CCMA arbitrator will find the dismissal to be substantively unfair.
The most the case law suggests is that if it is possible for an employer to invite an absconder to a disciplinary hearing before
terminating the contract, it would be prudent to do so.
Initially, some courts and arbitrators flirted with another possible exception to the rule that an employee is entitled to a hearing
before being dismissed – where the employee was caught red-handed or admitted guilt. In such cases, so it was held, a disciplinary
hearing would have made no difference to the ultimate result. However, the courts have rejected the so-called ‘no difference
principle’ as a basis for excusing an employer’s failure to hold a disciplinary inquiry. 228 Many cases appear at first glance to be
‘open and shut’, but turn out to the contrary after the facts are examined. The ‘no difference’ principle would therefore seriously
undermine the independent value of procedural fairness. Furthermore, an employee who has admitted guilt, or cannot deny guilt,
may well wish to plead in mitigation.
Employers may also be tempted to dispense with disciplinary hearings if the employees concerned hold senior positions;
managers, after all, ‘should have been aware that they were not allowed to do what they did’. Similarly, probationers are sometimes
dismissed without hearings because it is erroneously thought that their contracts can simply be terminated at will. However, the
right to be treated in a procedurally fair manner extends, in principle, to all employees, irrespective
4th Ed, 2022, ch 10-p 287
of their status or seniority. 229 Only in the most exceptional cases failure to hold a formal disciplinary hearing for a senior employee
may be condoned. 230
Employees who decline to be heard – either by failing or refusing to attend a disciplinary hearing or challenging the employer’s right
to discipline – can hardly complain if they are dismissed without being heard.
Employees may also be excluded from disciplinary hearings if they deliberately disrupt the proceedings. In Ekurhuleni Metropolitan
Municipality v SAMWU, 231 a disciplinary hearing involving seven employees which had dragged on for several months ended
abruptly when the accused employees assaulted the presiding officer, turned off his recorder and hurled his cellphone against a wall
when he tried to videotape the scene. The hearing was understandably abandoned but the municipality decided not to hold a
further hearing into the employees’ latest misconduct. Instead, they were summarily dismissed and criminal charges were laid
against them. Only one of these employees challenged her dismissal. An arbitrator ruled her dismissal substantively fair but
procedurally unfair because no hearing had been conducted in respect of the incident but declined to award the employee
compensation because of her egregious misconduct. The LAC found the commissioner’s finding that the employee was guilty of
joining in the fracas unassailable. But without a cross-review, the arbitrator’s further finding on procedural unfairness had to stand.
The appeal was upheld on these grounds, and the LAC’s judgment confirms at least that the employees were entitled to a fresh
hearing on the events at the first hearing, although the finding was academic because the arbitrator’s decision not to award
compensation was upheld.
Under the 1956 LRA, some courts took the view that strikers had waived their right to be heard. 232 The LAC has now overruled
these decisions, and has held that strikers are entitled to be heard before – or possibly after – an ultimatum is issued that could
lead to their dismissal. In such circumstances a collective hearing will suffice. 233 Strike dismissals are discussed in detail in
Chapter 22.
217 Item 4(4).

218 See, for example, Lefu v Western Areas Gold Mining Co (1985) 6 ILJ 307 (IC ).
219 LRA Schedule 8, item 4(4).
220 See, for example, Maila v Hungry Eye Restaurant (1990) 11 ILJ 400 (IC ); Seven Abel t/a The Crest Hotel v HRWU (1990) 11 ILJ 504 (LAC ).
221 (2001) 22 ILJ 487 (LC ) (followed and applied by the High C ourt in Phenithi v Minister of Education (2005) 26 ILJ 1231 (O)).
222 [2001] 7 BLLR 731 (LAC ).
223 SABC v CCMA [2002] 8 BLLR 693 (LAC ).
224 Trident Steel v CCMA (2005) 26 ILJ 1519 (LC ).
225 (2011) 32 ILJ 1618 (SC A).
226 SATAWU obo Langa v Zebediela Bricks (2011) 32 ILJ 428 (LC ).
227 This is the basis on which the court distinguished between desertion and absenteeism in SATAWU obo Langa v Zebediela Bricks supra.
228 Fijen v CSIR (1994) 15 ILJ 759 (LAC ); CAWU v Sabrix (1996) 1 LLD 25 (IC ); JDG Trading t/a Price ’n Pride v Brunsdon (2000) 21 ILJ 501
(LAC ); Carr v Fisons Pharmaceuticals (1995) 16 ILJ 179 (IC ); Kotze v Rebel Discount Liquor Group (2000) 21 ILJ 129 (LAC ); Reckitt & Colman (SA) v
Bales (1994) 15 ILJ 782 (LAC ).
229 Regarding managerial employees, see Evans v CHT Manufacturing (1992) 13 ILJ 1585 (IC ); Hart v Camdon Realty (1992) 13 ILJ 1600 (IC );
and, generally, Olivier ‘The dismissal of executive employees’ (1988) 9 ILJ 519. On probationary employees, see inter alia Schuster v Capab
Orchestra (1992) 13 ILJ 1607 (IC ) and C hapter 3.
230 See, for example, Nitrophoska v CCMA (2011) 32 ILJ 1981 (LC ), where the employee had admitted that the employment relationship was
unsustainable after his wife and a colleague had stolen a large amount of money from the employer due in part to the employee’s failure to supervise
the branch properly.
231 (2018) 39 ILJ 546 (LAC ).
232 See NUMSA v Elm Street Plastics (1989) 10 ILJ 328 (IC ); Lefu v Western Areas Gold Mining Co (1985) 6 ILJ 307 (IC ); PPWAWU v
Convertacor (1990) 11 ILJ 763 (IC ); Plascon Ink & Packaging Coating v Ngcobo (1997) 18 ILJ 327 (LAC ).
233 Modise v Steve’s Spar Blackheath (2000) 21 ILJ 519 (LAC ). See Collective Labour Law C hapter 15.

4th Ed, 2022, ch 10-p 288
Mass dismissals raise special procedural problems. An employer may reasonably be expected to hold disciplinary hearings for one or
even several employees before deciding whether to dismiss them. But what if hundreds, perhaps thousands of employees were all
involved in the same misconduct? Must the employer hold separate hearings for each of them? Or will a single collective hearing
suffice? Or is the employer permitted to dispense with a hearing altogether?
On the face of it, the number of employees involved in the misconduct is irrelevant to the principles of procedural unfairness.
The employer is still required to give each employee an opportunity to state his or her case. The practical difficulty of so doing may
be such as to permit the employer to hold a collective hearing. However, these difficulties may not be enough to excuse wholesale
departures from an applicable disciplinary code.
An example that illustrates the limits of this justification for dispensing with individual hearings is provided by SAMWU obo
Abrahams v City of Cape Town. 234 A large number of municipal police officers were summoned to a ‘collective’ disciplinary inquiry
to face charges arising out of their alleged participation in a freeway blockade. The municipality proposed an ‘abridged’ procedure in
terms of which the matter would be decided on documents only, without any witnesses being called. The union made the point at
the commencement of the hearing that the employer was bound by the SALGBC disciplinary code, which did not provide for an
abridged procedure. When the presiding officer dismissed that objection, the union launched an urgent application to interdict the
proceedings. The court held that the municipality was bound by the disciplinary code, and that that the employees were entitled to
insist that it be followed. The municipality was ordered not to proceed with the disciplinary action unless it followed the code.
Another instance occurred when the employer was confronted with the prospect of holding about 100 separate hearings in
fraudulent medical aid claims. 235
Mass dismissals usually occur after collective stay-aways. When the employees’ absence takes the form of an unprotected
strike, special considerations apply. 236 The employer is required to issue an ultimatum and to give the employees an opportunity
to state why, if they do not comply with the ultimatum, they should not be dismissed. 237 However, in situations where strikers
have also committed misconduct, the employer may wish to discipline them on their return to work. In such situations, the
employees should be given the opportunity to defend themselves at properly constituted disciplinary inquiries.
When large numbers of workers have been absent from work in circumstances other than strike action, the courts require the
employer to follow fair procedures before dismissing some or all of them. In such cases, collective hearings may be held. 238 A
collective hearing is generally regarded as appropriate when the
4th Ed, 2022, ch 10-p 289
misconduct is collective in nature. 239 But such hearings must still be fair to the individuals concerned. For example, in NTM v
PRASA, 240 the employer invited the strikers to make representations as to why they should not be dismissed for criminal acts
which had occurred during the strike. The company rejected representations made by the attorney of the strikers’ union on the
ground that they were ‘collective’. The court held that the process in which the individual and collective representations had been
considered was irrational. Individual representations had been accepted even though they did not satisfy the criteria the panel had
declared would render them acceptable. The panel had also unreasonably taken the NTM to task for submitting collective
representations, rather than separate representations on behalf of particular members. It could hardly be expected of a fledgling
union to do so in the short time available, in which PRASA itself was unable to distribute its letter to all the strikers.
Group misconduct is discussed in the following chapter.
234 (2008) 29 ILJ 1978 (LC ).

235 BEMAWU v SABC (2016) 37 ILJ 1394 (LC ).
237 Modise v Steve’s Spar Blackheath (2000) 21 ILJ 519 (LAC ).
238 See Modise v Steve’s Spar supra. See also NUMSA v Vetsak Co-operative (1996) 17 ILJ 455 (A) at 468E–F.
239 See Chauke v Lee Service Centre t/a Leeson Motors (1998) 19 ILJ 1441 (LAC ). The court held at 1450F–G that the employer could not be
faulted for treating continuing industrial sabotage as a collective issue and for ‘responding to it collectively’.
240 (2018) 39 ILJ 560 (LAC ).

The labour courts have placed so high a premium on procedural fairness that in many cases employees have been granted
compensation or have even been reinstated (that is, where the procedural defect is of a nature that renders the dismissal
substantively unfair) because of deficiencies in pre-dismissal procedures, even though the court was satisfied that there were valid
reasons to dismiss the employees. However, the courts have overlooked minor procedural irregularities where the employees
committed serious misconduct.
Under the current LRA, an employee may not be reinstated if the dismissal was substantively fair, but procedurally unfair. 241
The only relief to which such employees are entitled is compensation. However, the court may still deny awarding compensation in
view of the flagrancy of the employee’s transgression. 242
In some cases, non-compliance with a fair procedure can have more drastic consequences for the employer. Where, for example,
a mandatory procedure is prescribed by a collective agreement, the courts have held that non-compliance renders the dismissal not
merely unfair, but null and void. So, in SAMWU obo Jacobs v City of Cape Town, 243 the court held that failure to commence
disciplinary proceedings against the employee within the three month deadline set by the SALGBC disciplinary code, a collective
agreement, because it was cast in peremptory terms and formed part of the employee’s conditions of service, rendered the hearing
invalid. This judgment proved controversial. The Labour court expressly disagreed with Jacobs soon afterwards, in Tsengwa v
Knysna Municipality. 244 In the later judgment, the court found that Jacobs presupposed that
4th Ed, 2022, ch 10-p 290
the bargaining council arbitrator had jurisdiction to overrule the ruling of a duly appointed presiding officer, another statutory
officer, which supposition the court found wrong. The finding in Jacobs that the dismissal was a nullity may have been overtaken by
the LAC’s judgment in Edcon Group v Steenkamp, 245 in which the court found that employees who refer unfair dismissal claims
under the LRA cannot contend that their dismissals are null and void, as opposed to unfair.
In principle, the Labour Court may interdict disciplinary proceedings that are procedurally irregular, but it will do so only where
substantial injustice might otherwise result. That issue is discussed in Chapter 24.
A procedurally unfair disciplinary hearing may have consequences outside the realms of labour law proper. The High Court held in
one case that the SA Police Service was potentially liable to an officer who had been dragged before a disciplinary inquiry, only to
be ultimately told that there was no case against him. 246 The court expressly left open the question whether malicious
prosecution would also apply to private sector employers. There is no reason why any employer should not be liable be for
defamation if they accuse employees of wrongdoing and do not satisfy the defence of qualified privilege. 247
241 Mzeku v VWSA (2001) 22 ILJ 1575 (LAC ).

242 The principles of compensation are dealt with in C hapter 24.
243 (2015) 36 ILJ 484 (LC ).
244 (2015) 36 ILJ 2392 (LC ).
245 (2015) 36 ILJ 1469 (LAC ), more fully discussed in C hapter 17.
246 Mahlangu v Minister of Police (2017) 38 ILJ 1749 (GP). But see Kutu v Minister, Department of Justice & Correctional Services (2021) 42 ILJ
2489 (MM).
247 See, for example, Clover SA v Sintwa (2017) 38 ILJ 350 (EC G); Gwe v De Lange (2020) 41 ILJ 341 (EC P).
Dismissal / Chapter 11 Group misconduct
Chapter 11
Group misconduct
4th Ed, 2022, ch 11-p 291
1. Introduction
5. Common purpose
8. Sanction
1. Introduction
In principle, the courts require the same standards to be applied in cases of so-called group misconduct as they do in cases of
individual misconduct. But specific problems arise when a number of employees who were involved in the same act of misconduct
are subjected to disciplinary action. These problems relate to the selection of employees to be disciplined, the situation that arises
when there is no direct evidence against any or all of the individual employees, and the consistency or otherwise of the sanction
imposed.

When employees engage in mass action which constitutes misconduct, it may be difficult or impossible to identify all those who
actually participated. Is it permissible in these circumstances to select for disciplinary action only those who were actually
identified as participants, even though the employer is aware that other unidentified employees were also involved?
The first case in which this issue was pertinently addressed arose from the dispute between Reckitt & Colman and members of
the Chemical Workers Industrial Union (CWIU). Large numbers of workers embarked on a series of protest actions, commencing each
day with a rowdy march around the factory. When they completed a circuit of the factory, the marchers started work – usually
about 10 minutes late. After a few days, the workers continued their disruptive activities for an entire day. Management decided to
take disciplinary action. Supervisors were instructed to
4th Ed, 2022, ch 11-p 292
record the names of those employees who engaged in disruptive acts. Eventually, the names of eight employees were listed. All
were conspicuous because they had been seen blowing vuvuzelas.
These eight workers declined to attend a disciplinary inquiry and were dismissed. Four more workers were fired later. In the
industrial court, the union argued that the dismissal of these employees was unfair because many other employees had engaged in
the same misbehaviour and were neither dismissed nor disciplined. The industrial court agreed. However, the LAC held that there is
a difference between cases in which employees are arbitrarily selected for discipline and cases in which an employer selects for
discipline from a mass of workers only those against whom it has evidence. 1
Similar reasoning has informed later judgments of the Labour Court and current LAC. A few hundred Cape Town traffic officers
deliberately blocked the N2 highway into Cape Town while travelling in a cavalcade in official vehicles to present a petition to the
mayor. Before that, they had been reminded several times that they were essential service employees and that industrial action by
them would be taken seriously. The municipality instituted disciplinary action against them all, proposing that it should present its
case only by showing video images identifying officers at the gathering. The union argued that this ‘truncated’ form of hearing
would breach the SALGB disciplinary procedure, and obtained an interdict halting the hearing. 2 A four-month hearing ensued.
During this period a number of officers concluded a ‘plea bargain’ in terms of which they accepted final written warnings. Ninety-one
South African Municipal Workers Union (SAMWU) members stuck to their guns and were dismissed. A bargaining council arbitrator
upheld the dismissals of all the officers, save two who were reinstated without back pay. On review in SAMWU obo Abrahams v City
of Cape Town, 3 the court accepted that the Code of Good Practice: Dismissal requires employers to prove on a balance of
probabilities that dismissed employees were guilty of misconduct. In cases of collective misconduct, the employer must prove that
each employee was actually involved. But the judge accepted that there are exceptions. Among these are that employees may be
guilty of derivative misconduct (failing to assist the employer to detect the actual culprits), or on the basis of common purpose. 4
The court found that SAMWU had encouraged its members to move in a convoy along the N2 in official vehicles. The officers
concerned had been identified when they congregated at the city’s civic centre. The court agreed with the arbitrator’s finding that
there was a close enough connection between the gathering and the blockade to give rise to a prima facie inference that an
officer’s presence at the gathering meant that he or she was involved in the blockade.
The court rejected the union’s argument that the disciplinary code required the municipality to prove the guilt of each and every
employee. That code merely requires the municipality to respect the principles of natural justice. The officers
4th Ed, 2022, ch 11-p 293
had all been given a fair opportunity to prove that they were not involved in the blockade, and those who had chosen to do so
were not dismissed. The review application was dismissed with costs.
In Mabinana v Baldwin’s Steel, 5 only a handful of the 40 to 50 employees engaged in a hostage-taking incident during a strike
were dismissed on the basis that only they had been positively identified as perpetrators or as closely associating with the
perpetrators. The court rejected the employees’ contention that the dismissals were unfair because the employer should have made
greater efforts to identify the other perpetrators. 6
In SACCAWU v Irvin & Johnson, 7 the LAC upheld the dismissals of employees who had taken part in a violent demonstration,
even though other workers who had participated in the same offence had been acquitted by a different presiding officer because
there was insufficient evidence of their involvement. The court reiterated that the so-called parity principle does not apply when
different presiding officers in good faith arrive at different conclusions when they entertain separate hearings on the same facts:
‘Some inconsistency is the price to be paid for flexibility, which requires the exercise of a discretion in each individual case’. 8
These judgments suggest that employees guilty of misconduct cannot rely on the ‘parity principle’ to escape the consequences
of their misconduct simply because their employer was unable to gather evidence against other employees who were also involved
in the same misconduct. The situation would have been different if the employees could prove that the employer was wilfully remiss
in obtaining evidence against other guilty employees for ulterior reasons. 9
1 See CWIU v Reckitt & Colman (1990) 11 ILJ 1319 (IC ); Reckitt & Colman (SA) v CWIU (1991) 12 ILJ 806 (LAC ).
2 See SAMWU obo Abrahams v City of Cape Town (2008) 29 ILJ 1978 (LC ).
3 (2011) 32 ILJ 3018 (LC ).
4 See below.
5 [1999] 5 BLLR 453 (LAC ).
6 See at [7]. See also NUM v Council for Mineral Technology (1998) 3 LLD 448 (LAC ).
7 (1999) 20 ILJ 2302 (LAC ), in which the court followed Henred Fruehauf Trailers v NUMSA (1992) 13 ILJ 593 (LAC ) at 599H–601B; NUMSA v
Henred Fruehauf Trailers (1994) 15 ILJ 1257 (A).
8 C onsistency in the application of discipline is discussed more fully in C hapter 8.
9 NTM v PRASA (2018) 39 ILJ 560 (LAC ).
When a large or unknown number of employees have engaged in collective misconduct, and the actual perpetrators cannot be
identified, the employer may be tempted either to select some employees for dismissal as an example to others or to dismiss all
employees who could conceivably have been involved, whether innocent or otherwise, in the hope that the guilty employees will be
caught in the net.
The first option is plainly unacceptable; the dismissal of the selected employees is unfair unless there is evidence to link them to
the commission of the offence. Such dismissals will be stigmatised as arbitrary. On the face of it, the second option is equally
unacceptable, as it appears to offend against the principle, endorsed by all civilised legal systems, that it is preferable for a guilty
party to go free than to convict an innocent person. The labour courts have frequently condemned the notion of ‘collective
guilt’. 10
4th Ed, 2022, ch 11-p 294
A gross example of the application of the doctrine of collective guilt is provided by NUM v Buffelsfontein Gold Mining (Beatrix
Mines Division). 11 After Xhosa and Pondo employees had clashed violently, the company fired all the Xhosa-speaking workers.
Apart from violating the rule against unfair selection, the employer had no way of knowing whether all the employees who had been
dismissed were actually involved in the fighting. 12
The prohibition of collective punishment does not mean that employers are powerless in situations when misconduct occurs, but
the actual perpetrators cannot be identified. In certain cases, courts and arbitrators have accepted that employers may act
against employees even in the absence of proof linking them directly to the commission of misconduct. These cases, and the
principles underlying the exceptions, are now discussed.
10 NUM v Durban Roodepoort Deep (1987) 8 ILJ 156 (IC ) at 162H–I.

11 (1988) 9 ILJ 341 (IC ).
12 ‘Team liability’, discussed below, is a variant of this theme.
In most of the cases cited in the previous section, the employees were ‘selectively’ treated because of the absence of evidence
against other guilty employees. Situations sometimes arise in cases of mass misconduct in which there is no evidence against any
specific employees. One way out of this problem is for the employer to rely on the notion of ‘derivative misconduct’.
The idea of ‘derivative misconduct’ first surfaced in FAWU v ABI. 13 A large group of workers assaulted a ‘scab’ worker during a
strike. The actual perpetrators could not be identified. All workers who had clocked in and were therefore known to have been in
the vicinity when the attack occurred were charged with assault. None came forward during the disciplinary hearings or in the
subsequent industrial court proceedings to claim their innocence or to identify the perpetrators. The LAC accepted that ‘it may be
that policy considerations require more of an employee than that he merely remain passive in circumstances like the present, and
that his failure to assist in an investigation of this sort may itself justify disciplinary action’. But the court decided the matter on a
different basis. It held that the employees’ silence justified the inference that they had either participated in the assault or
supported it. Their dismissal was therefore justified on the basis of common purpose (see below).
Later, in Chauke v Lee Service Centre t/a Leeson Motors, 14 a case involving industrial sabotage, the court also referred with
approval to what it now termed the concept of ‘derivative misconduct’, which it said involved a ‘derived justification, stemming from
an employee’s failure to offer reasonable assistance in the detection of those actually responsible for the misconduct’. While the
dismissal is designed to target the perpetrators of the original misconduct, ‘the justification is wide enough to encompass those
innocent of it, but who through their silence make themselves guilty of a derivative violation of trust and confidence’.
As in ABI, the result in Leeson Motors was not based on a finding of derivative misconduct, but on the inference that the
workers’ silence indicated that they
4th Ed, 2022, ch 11-p 295
‘shared responsibility for the primary misconduct’. The courts’ observations in both cases were therefore obiter. But the judgments
lay down the principle that, in appropriate circumstances, dismissals will be accepted as fair if the employees were aware of the
identity of the perpetrators of serious misconduct, but declined to disclose this information to their employer after being requested
to do so. In Leeson Motors, the court said that such silence was inconsistent with the relationship of confidence and trust upon
which an employment relationship should be founded. 15
The concept of ‘derivative misconduct’ was considered by the arbitrator in NUM and RSA Geological Services (A Division of De
Beers Consolidated Mines), 16 which involved the dismissal of virtually the entire staff of a mineral laboratory after a large quantity
of mineral sample was discovered down a borehole in the laboratory grounds after a tip-off from an anonymous informer. Given the
passage of time between the dumping and the discovery, it was impossible to identify the actual perpetrators. The company then
interviewed the laboratory staff, most of whom denied knowledge. All agreed to undergo polygraph tests, but with one exception
later changed their minds on their union’s advice. The exception took a test and named two others.
The arbitrator held that there are two requirements for derivative misconduct: first, the employee must have known or acquired
knowledge of the wrongdoing; secondly, the employee must have failed without justification to disclose that knowledge to the
employer, or taken reasonable steps to help the employer acquire that knowledge. The burden of proving facts to satisfy these
requirements rested on the employer. The arbitrator held that the employees’ refusal to undergo polygraph tests was insufficient to
prove that they knew of the identity of the perpetrators. He accordingly found that the company had failed to discharge the onus
of proving their dismissal was for a fair reason.
On review, 17 the Labour Court held that the arbitrator had miscalculated the period in which the dumping had occurred.
Although the court agreed with the test adopted by the arbitrator for establishing derivative misconduct and that the onus remains
on the employer to prove this form of misconduct, the court found that, if the remaining employees had in fact worked during the
period in which the dumping had occurred, the prima facie case against them was strong enough to place on them a duty to rebut
it. Since none had testified, the prima facie case remained. The court ruled the dismissal of all the employees fair. It was
accordingly unnecessary for the arbitrator to have applied derivative misconduct.
A question raised but not decided in RSA Geological Services was whether the employees must have known of the primary
misconduct at the time, or whether it is sufficient if they acquired it later. Since the essence of derivative misconduct lies in the
employee’s failure to disclose information that could lead to the detection of wrongdoers, it seems that information acquired any
time before the employee is actually charged with derivative misconduct must be disclosed. Whenever such information is acquired,
it remains a breach of the employee’s duty of fidelity to the employer to disclose it.
4th Ed, 2022, ch 11-p 296
The LAC returned to the notion of derivative misconduct in Leeson Motors in Western Platinum Refinery v Hlebela. 18 Mr Hlebela
was dismissed for allegedly failing to disclose his knowledge of ‘enormous losses’ of precious metals over a number of years from the
refinery in which he worked. A CCMA commissioner upheld the dismissal, but the award was set aside on review and replaced with
an order declaring the dismissal substantively unfair and granting the employee compensation equal to 12 months’ salary. Western
Platinum contended on appeal that the commissioner had unreasonably found the dismissal unfair, and Hlebela cross-appealed
against the award of compensation, claiming that he should have been reinstated.
The court noted that Hlebela had been dismissed for ‘derivative misconduct’, a phrase traceable back to Leeson Motors and used
in several subsequent awards and judgments. The Leeson court had accepted that employees may be obliged to assist
management in bringing perpetrators of misconduct to book and that their failure to come forward may amount to misconduct. This
was termed a ‘derived justification’ based on a violation of trust and confidence. The Western Platinum court held that this did not
amount to a new species of misconduct created by ‘judicial fiat’. Leeson Motors had merely confirmed that non-disclosure of
knowledge relevant to misconduct may be a form of breach of the duty of good faith. In such cases, the dismissal is derivatively
justified in relation to the primary misconduct committed by unknown persons. The court laid down the following elements of
derivative misconduct:
• The employees must have actual knowledge of the wrongdoing, otherwise blameworthiness cannot be attributed to them.
• The non-disclosure must be deliberate.
• The gravity of the non-disclosure must be proportionate to the gravity of the primary misconduct.
• The rank of the employee may affect the gravity of the non-disclosure.
• The gravity of the non-disclosure may also be affected by whether the employee was specifically asked for information.
• The employee need not have made common cause with the perpetrator.
• An employee cannot be guilty of ‘derivative misconduct’ on the basis of negligently failing to take steps to acquire knowledge
of the primary wrongdoing.
The court gave this advice on how to discipline employees who possess actual knowledge of the wrongdoing of others – charge
them with a material breach of the duty of good faith, particularising the knowledge allegedly possessed and alleging non-
disclosure. In the present case, knowledge of these considerations was lacking.
Where did Western Platinum go wrong? The police had informed management that Hlebela possessed assets – including four
motor cars and an expensive house – which seemed to be beyond his means. Further investigation by management indicated that
Hlebela had at times walked about sections of the premises where he had no business to be. On the basis of this evidence, Hlebela
was accordingly
4th Ed, 2022, ch 11-p 297
charged with theft and non-disclosure of information. The first charge did not stick. So he was found guilty only of not disclosing
information. That was where the company’s problems began. The information Hlebela was accused of not disclosing related to his
personal financial affairs. On top of that, he had been asked for that information only after he had been charged. The court found
that this was not the kind of information that could form the substance of a charge of culpable non-disclosure founded on a breach
of the duty of good faith, because it was not logically linked to a conclusion that he had actual knowledge of the wrongdoing of
others. It could at most have been relevant to tracing the perpetrators. But no attempt had been made to establish that link.
Hlebela denied knowledge of the thefts at his disciplinary hearing, and it was not put to him that he had actual knowledge. Nor had
his claim that members of his family had helped purchase the assets been followed up. The allegation that his movements around
the mine were to ‘network’ with the thieves was complete speculation. Hlebela was reinstated. This case indicates that ‘derivative
misconduct’ is not a magic wand to trap employees unless it can be proved that they had actual knowledge of misconduct, and
deliberately failed to disclose it.
The employees in NUM v CCMA can count themselves lucky that they were not charged with derivative misconduct. 19 The
employer invoked derivative misconduct in a different context but with the same result in NTM v PRASA. 20 This case involved the
dismissal of dozens of employees after a lengthy strike in which several trains were torched. PRASA suspected the members of the
NTM, a breakaway union, which embarked on a protected strike in support of a claim for organisational rights. In the weeks that
followed, several trains were torched. PRASA maintained that NTM’s leaders had exhorted workers to bring Metrorail’s services to a
halt ‘by all ways, even if it means burning the trains’, which the union denied. PRASA still suspected that the trains had been
burned by the strikers and issued a letter to them, inviting them to make representations why they should not be dismissed for
‘acts of sabotage’ for which they were ‘jointly and severally responsible’. NTM denied any involvement in the incidents. PRASA
rejected this ‘collective response’ out of hand. All striking workers who had not responded individually to its letter were dismissed.
NTM referred the matter to the Labour Court, claiming that the dismissals were automatically unfair. That court found the dismissals
fair on the basis of ‘derivative misconduct’.
On appeal, the LAC accepted that derivative misconduct may be relied on by employers where there is no direct evidence that
the dismissed employees committed the primary misconduct of which the employer complains. But there are limitations to this
justification. The onus still rests on the employer to prove that the employees committed misconduct by proving the main elements
of derivative misconduct. These are that the employees knew or must have known about the primary misconduct but elected not
to disclose what they knew. It is not enough to show that the employees might have known about the primary misconduct; each
and every one of them must be proved on a balance of probabilities to have known who the culprits were. The test also
presupposes that the employees must have
4th Ed, 2022, ch 11-p 298
been called on to supply the information. PRASA failed lamentably to discharge that onus. An investigation commissioned by PRASA
had concluded that the train burnings were ‘probably as a result of riot, strike and/or public disorder’ and did not even mention the
strikers. Trains are often torched by frustrated commuters. ‘Derivative misconduct’ had been used as a cover for dismissing the
strikers for what it believed was their involvement in the train torchings. PRASA was ordered to reinstate the dismissed employees
with retrospective effect.
But in Dunlop Mixing & Technical Services v NUMSA obo Khanyile, 21 the employer succeeded in defending a dismissal of strikers
who had failed to come forward to identify the perpetrators of violent misconduct during a strike. After the strike, the company
convened disciplinary hearings. Twenty-nine employees were found guilty of specific offences, and 78 more for failing to name
those involved in ‘acts of violence, intimidation and harassment’. A CCMA commissioner upheld the dismissals of those found guilty
of specific offences and some of those who had been dismissed for derivative misconduct, but held that the dismissals of the
remaining 65 were unfair and reinstated them. The company argued on review that the essence of these employees’ misconduct
was that they had breached the trust relationship by remaining silent in circumstances where it could be inferred from the evidence
that they were present during the direct misconduct.
The Labour Court had to make two findings: whether all 65 were present during the strike and, if so, whether this obliged them
to explain why their remaining silent did not strike at the heart of the employment relationship. Having found on the probabilities
that these employees were present when misconduct occurred, the court held, without reference to Western Platinum, 22 that an
evidentiary burden rested on the workers to either identify the perpetrators or explain why they could not. The employees’ main
(and improbable) claim during the arbitration was that the acts of violence had never occurred. Furthermore, the commissioner had
applied too strict a version of ‘derivative misconduct’, holding that this merely required proof that ‘the [employees] knew who the
perpetrators of the principal misconduct were and that they failed to disclose such information’. By applying that test, the
commissioner had lost sight of that aspect of derivative misconduct for which the employees were dismissed – namely, failing to
provide either the names of the principal perpetrators or an explanation for not doing so. The court drew a distinction between
proving that the employees knew who the perpetrators were and their decision not to come forward with an explanation. The
employees had an opportunity before they were dismissed and during the arbitration hearing to come forward with the names of the
perpetrators or an exculpatory explanation for not divulging them. They were not entitled to simply rely on the right to remain
silent, which applies only to pending criminal trials. Those employees who had been proved to be present had correctly been found
guilty of derivative misconduct. The court added that employers are entitled to rely on the good faith of strikers, which the court
declared the dismissal of the 65 substantively and procedurally fair.
4th Ed, 2022, ch 11-p 299
The appeal against this judgment split the LAC. 23 One judge noted that the case was not about the right to strike, but about a
strike that had gone beyond the point where it could be said to be an extension of collective bargaining. Since this was an appeal
against a review judgment, the question was whether the commissioner had reached a reasonable decision. Underlying cases of
‘derivative misconduct’ is a breach of the duty of good faith. Cases of alleged derivative misconduct require a factual inquiry aimed
at establishing whether the members of a group can reasonably be suspected of knowing of material information relevant to harm
caused to the employer, which will identify the actual culprits. Such knowledge must be proved on a balance of probabilities.
The majority held that once it could be inferred from the evidence that employees were probably present during the violence,
the employer’s onus was satisfied, and the burden passed to the employees to rebut the inference. In this case, the commissioner
had reasoned that since the employers had not proved that the employees were present during the violence, the employees had no
reason to respond because there was no proof that the employees must have known of the perpetrators. The Labour Court had
found this approach incorrect because the arbitrator had not applied his mind to the indirect evidence that showed that the
employees were probably present. The majority agreed that the indirect evidence the commissioner was found to have overlooked
showed that the employees were probably present when the violence occurred, that they were all on a strike in which they were
collectively involved and that they had flatly denied that any violence had occurred, which was a collective lie from which an
adverse inference could be drawn. The majority added that employers were entitled to expect protected industrial action to be
conducted in an orderly manner.
Although agreeing with the conclusion reached by the author of the main judgment, another judge added in a separate judgment
that derivative misconduct requires proof of actual (not merely putative) knowledge of the misconduct, which triggers a duty to
speak. He cautioned that the notion of derivative misconduct should not be expanded to the point employees who are totally
ignorant of the primary misconduct can be caught in the net. That would place the onus on employees to prove their innocence
and could open the way to abuse by employers. The right to silence and protection against self-incrimination is guaranteed in both
criminal and civil law. This judge could see no reason why this protection should not be extended to employees, and advised
employers to clarify this form of misconduct in their disciplinary codes. But this judge was also satisfied that Dunlop Mixing had
proved on the probabilities that the employees who had been dismissed for keeping mum were indeed guilty of derivative
misconduct.
The dissenting judge held, firstly, that the term ‘derivative misconduct’ should be scrapped and that a failure to disclose
information should be treated as a breach of the duty of good faith. She also warned that asking people engaged in a violent strike
to identify perpetrators was unreasonable because to do so could endanger them. And she disagreed with the finding that the
circumstantial evidence on which
4th Ed, 2022, ch 11-p 300
the majority had relied proved that the employees probably could have identified the perpetrators of the criminal acts.
The dissenting judgment was upheld on further appeal to the Constitutional Court, 24 if for a somewhat different reason. That
unanimous court accepted that assessing the reasonableness of the award depended on the meaning to be given to the nature and
scope of the idea of derivative misconduct. The court accepted that dismissing employees for misconduct committed by members
of a group when the perpetrators cannot be identified is sometimes complicated by the requirement that the employer must
generally prove that each employee actually committed misconduct. The term ‘derivative misconduct’ had been hatched to deal
with this problem. The court saw Hlebela as an attempt to address a perceived but understandable need to deal with the practical
difficulties confronted by employers when trying to identify the perpetrators of misconduct in situations involving collective
violence. In these circumstances, derivative misconduct should not be resorted to until other avenues for identifying the
perpetrators are excluded.
The court noted that there are many ways to link employees to primary misconduct without the need to invoke derivative
misconduct, among which are the concepts of common purpose (see below) and linking employees to the primary misconduct as
accessories.
That said, the unanimous court expressed its doubts about whether derivative misconduct could even be applied during violent
strikes. Derivative misconduct is founded on the employee’s duty of good faith and the trust relationship between employee and
employer. However, the proper relationship between these concepts had not been explored, as it had been in an article published
some years earlier. 25 There, the writer had distinguished the duties of all employees in their capacity as such and those that
attach to persons in their capacity as fiduciaries. Unlike fiduciaries such as agents and trustees, employees are entitled to act in
their own interest and in conflict with that of the employer. By so doing they do not necessarily breach the contractual duty of
good faith. Fiduciary duties are not implied by law into all employment relationships. The contractual duty of good faith does not as
a matter of law imply that there is a fiduciary duty on employees to disclose known information about misconduct to their
employers. Unilaterally imposing a fiduciary relationship on employees alone could be seen as favouring only the employer, especially
in the context of collective bargaining and strikes. A duty to disclose may have an impact on the right to strike, and dismissals for
not disclosing the misconduct of some strikers may fall foul of s 187(1)(a) of the LRA, which renders automatically unfair a dismissal
for engaging in a protected strike. 26 This could harm their collective bargaining power without imposing any reciprocal obligation on
the employer.
The court held that imposing a unilateral obligation on employees to disclose information about the conduct of strikers amounted
to imposing a fiduciary obligation on employees without any concomitant obligation on the employer to guarantee the employees’
safety. A proper balance between the reciprocal duty of good faith
4th Ed, 2022, ch 11-p 301
means that derivative misconduct cannot be used as an easy means of dismissal when there are other ways of linking employees to
the primary misconduct. Since the employer in this case had not guaranteed the employees’ safety if they made disclosure, the
appeal had to succeed. The court added that, in any case, Dunlop had failed to prove that members of the third group were
present when unlawful acts were committed or, if some were present, who they were. The orders of the Labour Court and the LAC
were set aside.
It seems that the final Dunlop judgment has not entirely put paid to the principle that in certain circumstances employees may
be disciplined and even dismissed for failing to assist their employers to apprehend perpetrators of serious misconduct. In the first
place, Dunlop involved the application of derivative misconduct during a protected strike. Secondly, Hlebela was not entirely
overruled. The principles enunciated in that judgment will probably still apply in cases in which the primary misconduct consists of
theft and other forms of malfeasance.
13 (1994) 15 ILJ 1057 (LAC ).

14 (1998) 19 ILJ 1441 (LAC ).
15 At 1147D.
16 (2004) 25 ILJ 410 (ARB).
17 RSA Geological Services (a Division of De Beers Consolidated Mines) v Grogan (2008) 29 ILJ 406 (LC ).
18 (2015) 36 ILJ 2280 (LAC ).
19 (2015) 36 ILJ 2038 (LAC ).
20 (2018) 39 ILJ 560 (LAC ).
21 (2016) 37 ILJ 2065 (LC ).
22 Western Platinum Refinery v Hlebela (2015) 36 ILJ 2280 (LAC ) (discussed above).
23 NUMSA obo Khanyile v Dunlop Mixing & Technical Services (2018) 39 ILJ 2226 (LAC ).
24 NUMSA obo Nganezi v Dunlop Mixing & Technical Services (2019) 40 ILJ 1957 (C C ).
25 Idensohn ‘The nature and scope of employees’ fiduciary duties’ (2012) 33 ILJ 1539.
26 See C hapter 7.
5. Common purpose
The doctrine of common purpose applies when two or more people associate themselves in a course of conduct that results in a
criminal act by one or more of them ‘but where, by chance or design, the others do not physically perform the actions which
brought about the criminal result’. Where those others are found to have actively associated themselves with the result and shared
the perpetrator’s mens rea (guilty state of mind), the guilt of the actual perpetrator extends to them by virtue of the doctrine of
common purpose. It is not necessary to show that each party performed a specific act towards the attainment of the joint object
or contributed causally to the outcome: association in the common design renders the act of the principal offenders the act of
all. 27
In FAWU v ABI, 28 and Chauke v Lee Service Centre t/a Leeson Motors, 29 in which the doctrine of ‘derivative misconduct’ was
raised but not applied (see previous section), both courts based their findings on the doctrine of common purpose. Thus in ABI the
court found the evidence consistent with the inference that ‘all those present either participated in the assault or lent it their
support’. In Lee Service Centre the court concluded its analysis of evidence relating to acts of industrial sabotage by workers in a
panel beaters paint shop with a finding that it must ‘be inferred, as a matter of probability, that each worker culpably participated
in the campaign of sabotage’. It is therefore clear that the court applied the doctrine of common purpose to cast the net of liability
over all workers who were present during the assault in ABI and who worked in the paint shop in Lee Service Centre. In Dunlop
Mixing, 30 the highest court also accepted that the doctrine of common purpose may be invoked in these circumstances.
4th Ed, 2022, ch 11-p 302
Common purpose has been used to link strikers to misconduct in subsequent cases. In NUMSA obo Dhludhlu v Marley Pipe
Systems SA, 31 the strikers had downed tools and marched on the company’s admin offices, demanding that the HR director ‘must
go’. When he came out to parley with them, the director was pushed through a glass window and kicked as he lay on the ground.
He sustained severe injuries which required hospitalisation. More than 100 workers were charged with taking part in the unlawful
strike and for assaulting the director. Relying on the doctrine of common purpose, the presiding officer dismissed them all. The
Labour Court not only agreed that the employees had acted with common purpose but granted Marley Pipe damages of nearly
R1 million it had sought in a cross-application. 32 The LAC noted that the doctrine of common purpose had been approved in Dunlop
Mixing and other cases: common purpose is proved if direct participation or association is consistent with all the proven facts. This
was the case here. Dismissal was ruled appropriate. 33
27 See S v Safatsa 1988 (1) SA 868 (A); S v Singo 1993 (1) SAC R 226 (A).
28 (1994) 15 ILJ 1057 (LAC ).
29 (1998) 19 ILJ 1441 (LAC ).
30 NUMSA obo Nganezi v Dunlop Mixing & Technical Services (2019) 40 ILJ 1957 (C C ), discussed above.
31 (2021) 42 ILJ 1924 (LAC ).
32 See (2020) 41 ILJ 2175 (LC ).
33 See also Thobela v Apollo Bricks (2021) 42 ILJ 1940 (LAC ).
There are other scenarios in which employers have been tempted to resort to mass dismissal even where the perpetrators have not
been individually identified. The first reported case of what later became known as ‘team liability’ was SACCAWU v Cashbuild. 34
This occurs when an entire staff is held accountable for continued stock losses (‘shrinkage’) that cannot be linked to misconduct by
a particular employee.
The justification in such cases has generally been accepted as being operational. Employees are given clear instructions to
control stock. It is their responsibility to implement controls. If they fail to do so, the employer cannot afford to retain them. It was
held in Cashbuild, that employers may hold the employees liable as a group without being accused of applying ‘collective guilt’: this
reason for dismissal is based on the team’s obligation to control shrinkage. Cashbuild had introduced a philosophy of collective
liability for shrinkage at the request of the team itself. Although they had the option of individual hearings the employees had
chosen a group hearing and a group appeal and wished to be judged as a group.
The dismissals in Cashbuild appear to have passed muster because the procedures followed had been agreed between the
employer and the employee’s union. In other cases, the justification for dismissals in these circumstances was found elsewhere. In
SACCAWU and Pep Stores, 35 the commissioner held that the employees had breached their common-law duty to perform their
duties reasonably and efficiently. A jump, despite repeated warnings, in shrinkage levels from 20% to 81% of total sales in a branch
(when the ‘accepted industry norm’ was 1%) proved that the
4th Ed, 2022, ch 11-p 303
employees had been anything but efficient. The dismissal of the entire staff of the branch was ruled fair. 36
In FEDCRAW and Snip Trading, 37 a private arbitrator found yet another justification for dismissing employees in a ‘shrinkage’
context. With a sporting analogy in mind, he termed it ‘team misconduct’. In terms of Snip’s procedures, employees were held
collectively liable if stock losses exceeded 1%. The union declared a dispute over that policy and threatened industrial action. This
was averted when the company and the union agreed that individual employees below the level of store manager could not be held
collectively responsible for stock loss; they would henceforward be accountable only on an individual basis. Managers (some of
whom were union members) claimed that they were dependent on their subordinates for restricting stock losses. A further
collective agreement was concluded. Under that agreement, stock loss was deemed ‘misconduct’. All employees were again held
accountable and could be disciplined if stock losses at their stores exceeded 1% of gross turnover. Once that occurred, all
employees at the store concerned were required individually to explain the stock loss. If they could not furnish a satisfactory
explanation, they were dismissed. A number of employees suffered this fate. FEDCRAW objected again. After protracted
negotiations and further threats of strikes and litigation, the fairness of the agreement was referred to private arbitration.
The arbitrator was required to decide three issues, formulated as follows in the arbitration agreement: (1) ‘whether stock loss
constitutes misconduct’; (2) ‘whether employees other than managers should be held accountable for a general stock loss at a
store’; and (3) ‘whether a general stock loss at a store can be said to be collective misconduct for all store employees doing
specific duties in terms of their job descriptions’. The arbitrator’s ultimate conclusion was that ‘acts or omissions contributing to
stock loss can constitute misconduct for which all employees from store manager down whose job functions are related to stock
control can be held liable on a collective basis, unless the employees can prove that they did not personally contribute to, or could
not have done anything in the circumstances to avoid, the loss’. The arbitrator then coined the term ‘team misconduct’, which
occurs when an employer dismisses a group of workers because responsibility for the collective conduct of the group is indivisible.
It is accordingly unnecessary in cases of ‘team misconduct’ to prove individual culpability, derivative misconduct or common
purpose – the three other grounds upon which dismissal for collective misconduct can otherwise be justified (see above). The
arbitrator then used a sporting analogy: ‘As in many sports, productive and commercial activities often depend for their success,
not on the uncoordinated actions of individuals, but on team effort’ – a single loss cannot be blamed solely on the captain or
coach.
4th Ed, 2022, ch 11-p 304
The notion of ‘team liability’ finally received the imprimatur of the LAC in Foschini Group v Maidi. 38 The respondent employees in
this case, constituting the entire staff of a Foschini store, were charged with gross negligence and a ‘total lack of commitment to
the company’ after a stock audit established that during the preceding six months the store’s stock had shrunk by 28%, or 1 553
items of clothing, valued at R207 000. After findings by CCMA commissioners were set aside and remitted twice, a commissioner
finally upheld the dismissals but the award was again set aside by the Labour Court. The LAC held that the only issue was whether
the commissioner’s reliance on the notion of ‘team liability’ was reasonable. Applying much the same reasoning as the arbitrator had
done in Snip Trading, the court found it acceptable for employers to introduce workplace rules as terms of employment contracts
which, if breached, carry the sanction of dismissal for shrinkage beyond accepted limits. In this case, the employees had made
matters worse for themselves by colluding to mislead the employer into believing that there were in fact no significant stock losses,
and attributing those that had occurred to theft. This conduct destroyed the trust relationship. Foschini’s appeal was upheld. 39
But to avoid the application of ‘team liability’ shading into collective guilt the employees must be given an opportunity to explain
their team’s failure to attain the required performance standard and it must be established that each member of the team is equally
culpable. 40
34 [1996] 4 BLLR 457 (IC ).

35 (1998) 19 ILJ 939 (C C MA).
36 For further cases in which the dismissal of groups of employees for shrinkage have been upheld, see inter alia SACCAWU and Pep Stores (1998)
19 ILJ 939 (C C MA); Jacklens / Pep Stores [1999] 6 BALR 673 (C C MA); Sondiyazi / Pep Stores [1999] 11 BALR 1315 (C C MA); and SACTWU obo Baatjies
and Pep Stores (2004) 25 ILJ 632 (C C MA).
37 (2001) 22 ILJ 1945 (ARB). See Landman ‘Team misconduct: The final solution to shrinkage?’ (2001) 17(5) Employment Law 3–8, upon which the
following paragraphs are based.
38 (2010) 31 ILJ 1787 (LAC ).
39 See also True Blue Foods t/a Kentucky Fried Chicken v CCMA (2015) 36 ILJ 1375 (LC ), in which the facts were found indistinguishable from
those in Foschini.
40 TAWUSA obo Tau v Barplats Mine (Crocodile River Mine) (2009) 30 ILJ 2791 (LC ).

At their root, all dismissals are for operational requirements. 41 However, as explained in previous chapters, the legislature has
chosen to distinguish between dismissals for misconduct and incapacity, and dismissals for the operational requirements of the
employer. May an employer retrench workers in circumstances where unidentified members of its workforce are committing serious
misconduct?
The first case in which this possibility arose was Tiger Brands t/a Albany Bakeries v Levy NO. 42 After the company appointed a
‘trouble shooting’ manager to address serious losses being suffered at two of its bakeries, trouble broke out. This took particularly
violent form at one of the bakeries, where death threats were directed at management and shots were fired. Unable to continue its
attempts to rescue the bakery, the company decided to close the operation down and retrench its staff. The court held that the
situation fell within the definition of ‘operational requirements’ – the company’s inability to manage endangered the economic
viability of the enterprise. Although the company could have proceeded with disciplinary action on the basis of ‘collective discipline’,
the employees were better off if the company retrenched them because they would receive severance benefits.
4th Ed, 2022, ch 11-p 305
The court added, however, that it was not laying down a general principle that employers may use the retrenchment option in any
cases of misconduct.
The general principle seems to point the other way. In FAWU obo Kapesi v Premier Foods t/a Blue Ribbon Salt River, 43 the court
ruled that the employer was not entitled to ‘retrench’ employees suspected of gross misconduct during a strike simply because it
lacked sufficient evidence to secure a guilty finding. This case suggests that the retrenchment route may never be taken where it
is possible to hold disciplinary proceedings.
41 See C hapter 6.
42 (2007) 28 ILJ 1827 (LC ).
43 (2010) 31 ILJ 1654 (LC ), discussed more fully in C hapter 10.
8. Sanction
The requirement of consistency also raises its head in cases of dismissals for group misconduct. Should all employees receive the
same punishment simply because they were all involved in the same act of misconduct? One argument is that consistency demands
that employees who commit the same offence should be treated equally; the same sanction ought therefore to be imposed on all.
This is especially true where the employees were acting in concert in pursuit of a common goal. The converse argument is that
fairness requires consideration of the circumstances of each individual and that different sanctions may be imposed on the basis of
such factors as the length of service and the employees’ disciplinary records.
While there are suggestions in early judgments that employers are required in cases of group misconduct to consider the
appropriate sanction applicable to each employee, and to differentiate where this is justified, the Labour Court has drawn a rigid
distinction between ‘collective’ and ‘individual’ cases when it comes to the consideration of past disciplinary infractions. 44 An
employer that decides to dismiss some employees and to impose lesser sanctions, or no sanctions, on others, runs the risk of
breaching the ‘parity principle’. 45 A clear distinction has now been drawn between collective and individual misconduct. 46 Where
employees engage in collective action in pursuit of common goals, it is generally accepted that the employer can respond
collectively. To require employers to ‘respond collectively’ but, thereafter, to impose different penalties on the basis of individual
considerations, such as length of service, would place them in an impossible situation and undermine worker solidarity. 47
The Labour Court has also ruled out taking into account prior warnings for individual misconduct when determining the
appropriate sanction for collective misconduct. 48 That being the case, it is difficult to conceive of individual considerations that
might favour employees guilty in equal degree of participating in collective misconduct. Once it has been decided that misconduct is
collective, and all the accused employees were part of the group, the more prudent policy
4th Ed, 2022, ch 11-p 306
is probably to treat all individuals as an undifferentiated group when sanction is considered.
44 See SACTWU v Novel Spinners [1999] 11 BLLR 1157 (LC ).

45 See C hapter 8.
46 See SACTWU v Novel Spinners supra.
47 Modise v Steve’s Spar Blackheath (2000) 21 ILJ 519 (LAC ), discussed in C hapter 22.
48 SACTWU v Novel Spinners supra.
In cases of group misconduct, the employers may charge the employees in a single hearing and, depending on the number of
employees, even decide the matter on the basis of written representations. 49
Dismissal / Chapter 12 Misconduct outside the workplace and criminal conduct
Chapter 12
Misconduct outside the workplace and criminal conduct
4th Ed, 2022, ch 12-p 307
1. Introduction
3. Criminal conduct
1. Introduction
The disciplinary power of employers over their employees flows from their contract of employment. Employers may take action
against their employees only if their misconduct amounts to a breach of an express or implied term of their contracts of
employment. 1 The ultimate ‘sanction’ that can be imposed by an employer is the termination of the contract of employment. 2
Once the contract ends, the employer’s disciplinary authority terminates. 3 But even while the contract endures, employers have
the right to discipline employees for their conduct as employees, within the limits discussed in this chapter; the private lives of
employees are no concern of their employers. Employers therefore have no right to dictate the conduct of employees outside of
working hours except in the circumstances outlined below.
1 On the difference between express and implied terms, see Grogan Employment Rights 3 ed (Juta 2019) C hapter 3.
2 On the criteria to be considered when evaluating the fairness of the sanction of dismissal, see C hapter 8.
3 See C hapter 3.

But a rigid division between the private and working lives of employees is not always possible to draw; employers may have an
interest in how their employees behave outside working hours if their private conduct affects their work performance, the good
name and reputation of the employer or its business dealings, or interpersonal relations in the workplace. Actions performed outside
the workplace and working
4th Ed, 2022, ch 12-p 308
hours are generally considered not work-related and accordingly beyond the reach of the employer’s disciplinary authority.
To justify disciplinary action for an employee’s extramural conduct, the onus rests on the employer to establish that it has
sufficient and legitimate interest in an employee’s conduct outside working hours and the workplace, and that the conduct in
question affects the employment relationship. This onus will be discharged only if there is some connection (‘nexus’) between the
employee’s conduct and the employer’s legitimate interests. But a nexus is not enough in itself; the employer is still required to
prove that the employee committed the offence and that dismissal was the appropriate sanction. 4 Where misconduct is committed
outside the workplace and after working hours, the employer therefore carries an additional onus. Whether that onus will be
discharged depends on the circumstances. 5
As no hard-and-fast principle can be established regarding when an employee may be fairly disciplined for non-work-related
conduct, a few decided cases must serve to illustrate where the line has been drawn. In NUM v East Rand Gold & Uranium, 6 an
employee was dismissed for assaulting a fellow-employee on a company bus transporting employees to a local township. The
industrial court held that dismissal was justified even though the assault occurred after hours and off the employer’s premises. The
court held that all the employees on the bus, including the assailant, were at the time still discharging their duties as employees,
and that the employer’s disciplinary arm was accordingly long enough to reach into the bus. Furthermore, the employer had a duty
to ensure the safety of employees in transit. The same applied to a manager who pushed an employee to the ground while he was
remonstrating with a company driver who he thought was driving dangerously. 7
In Van Zyl v Duva Opencast Services, 8 the court refused to reinstate an employee who was dismissed for assaulting his
supervisor in a mine village outside working hours. In response to the union’s argument that the company had no right to take
disciplinary action, the court held that the test to be applied is whether the offence was work-related in the sense that it affected
the work situation. The assault was relevant because the victim was the assailant’s immediate supervisor, the assault took place in
the presence of their colleagues, and the relationship between the workers and the residents of the mining town had been
adversely affected.
In NEHAWU obo Barnes and Department of Foreign Affairs, 9 an assistant director of the foreign service was dismissed after
harassing two flight attendants while travelling to assume a post at the South African embassy in London. An arbitrator held that
the department had proved that Barnes’ misconduct had affected its interests. He had sought to invoke diplomatic immunity to
avoid arrest at Heathrow Airport, thereby embarrassing the High Commissioner. The British government had lodged a complaint. All
this cast doubt on whether Barnes was fit for diplomatic office. His dismissal was upheld.
4th Ed, 2022, ch 12-p 309
Ms Dolo, a casino table supervisor, provided yet another example. She went on a fraud spree with her boyfriend, a married man,
and later agreed to give evidence in criminal proceedings against him in exchange for indemnity from prosecution. When Dolo’s
employer learned of this, she was dismissed. A CCMA commissioner ordered the employer to reinstate her in a post that did not
involve working with cash, even if the position was inferior to that of a table supervisor. Although she was offered a post as a
receptionist, Dolo preferred to take the matter on review. 10 The court noted that the Code of Good Practice: Dismissal provides
that employees may be disciplined if they break rules regulating conduct ‘in, or of relevance to the workplace’. Whether misconduct
committed outside the workplace is relevant to the workplace involves a number of considerations, but the central issue is its
impact on the employment relationship. In this case, the employer’s concern about the employee’s trustworthiness was fully
justified. The award was set aside. 11
A further example is provided by Edcon v Cantamessa, 12 in which the court held that the posting of a racist rant on Facebook
by a senior employee, whose Facebook page identified her as an employee of the employer, justified disciplinary action even though
she had used her personal computer while on leave. A worker who posted a message on Facebook saying that whites should be
killed suffered the same fate. 13
The test for whether the conduct at issue is work-related is whether that conduct affects the employment relationship, not
whether the conduct at issue was covered by the employment contract. This point arose in Malan v Bulbring NO, 14 in which the
respondent employee was dismissed for breaking rules relating to accommodation on the employer’s premises. A commissioner held
that the dismissal was unfair because the employee had not breached a term of his employment contract. The court found that not
only was this finding incorrect, as the lease agreement had been incorporated by reference into the contract but also, and in any
case that the commissioner had been manifestly wrong in treating the matter only as a contractual issue. The test is whether the
employee’s conduct adversely affected the employment relationship.
The same test was applied in Visser and Woolworths, 15 but with the opposite result. A Woolworths manager was arrested for
theft from a branch of one of the company’s competitors. Before she was tried, Ms Visser was charged by Woolworths for being
arrested. The commissioner acknowledged that an employer need not await the outcome of criminal proceedings against
employees, but found the dismissal unfair because no attempt had been made at the disciplinary hearing to establish whether Ms
Visser was indeed guilty of theft. The mere fact of being arrested could not in itself constitute an offence, nor had the employment
relationship been adversely affected.
4th Ed, 2022, ch 12-p 310
Even dishonest acts perpetrated before employment commenced may warrant dismissal afterwards if there is a link between the
act and the trust relationship. In City of Cape Town v SALGBC (2), 16 the respondent employee presented a fake Namibian driver’s
licence to the South African licensing authorities for conversion to a South African licence. The erstwhile Scorpions uncovered the
scam nine years later, when she was working in a senior position in the Cape Town municipality. When the municipality learned of
the bust, the employee was dismissed. A bargaining council arbitrator accepted that the employee had indeed obtained her driver’s
licence by fraud and that the municipality was entitled to discipline her. However, he ruled dismissal too harsh a penalty because
the fraud was not committed in the workplace and did not relate to the employee’s duties, and because the offence had been
committed nine years earlier. The Labour Court held on review that the employee had been grossly dishonest, and had committed a
criminal offence. She had deceived the state, and had persisted with her false claims during the investigation, the disciplinary
hearing and, under oath, during the arbitration. As an organ of state, the municipality was entitled to place implicit trust in its
employees, especially one entrusted with public funds, as the employee had been. She had shown no remorse. The fact that the
fraud had been perpetrated a long period before did not serve as a mitigating factor because the employee had continued to
benefit from her fraud. The award was set aside and the employee’s dismissal ruled fair.
In SAPO v CCMA, 17 the LAC also upheld the dismissal of an employee for claiming in her pre-employment application that she
had a driver’s licence, whereas she in fact had only a learner’s licence at the time.
A number of common-sense principles emerge from these and similar cases. The reason or motive for the misconduct is clearly
relevant; if, for example, the employee was seeking revenge for an incident in the workplace, an assault is work-related; an assault
outside the workplace by a striker on ‘scab’ labourers justifies disciplinary action. 18 The status of the victim is also relevant: the
aftermath of an assault by an employee on a superior may adversely affect the employment relationship. 19 Assaulting clients or
customers of the client could also impact negatively on the employer’s business. Whether other employees or members of the public
witnessed the misconduct is a further consideration. The consequences of an assault by an employee on a colleague could also
adversely affect the employer’s business, even to the limited extent of depriving it of the services of the victim as a result of
injuries. 20 The fact that the employee was identifiable as an employee of the employer because he or she was wearing the
employer’s uniform at the time, could establish a sufficient nexus.
Similar considerations apply in other forms of misconduct committed outside the workplace. In a case involving the dismissal of
an employee for sexually harassing an agent of a supplier of the employer, the arbitrator held that the employee had
4th Ed, 2022, ch 12-p 311
abused the power he had as an employee of the employer over the supplier’s agent, to the detriment of the employer’s business. 21
But sometimes employers’ attempts to regulate the private lives of their employees are pushed too far. Lombard and KGA Lewens
provides a dramatic example. 22 After serving the employer for about two years in the post of financial manager, Mr Lombard’s
marriage ran into trouble. The MD granted Lombard two weeks’ leave and arranged a holiday for him and his wife at company
expense in the hope that this might effect a reconciliation. It did not. A few months later, Lombard was summoned to a disciplinary
inquiry to account for his domestic affairs and the alleged effects of his matrimonial problems on his work performance and his
relationship with his colleagues. Lombard resigned and claimed he had been constructively dismissed. The commissioner noted that
Lombard’s inability to reconcile with his wife was not a valid ground for his dismissal. Nor was there sufficient proof that his marital
problems had affected his work performance to the degree claimed by the company.
4 In other words, the general principles discussed in C hapter 8 still apply.

5 Horn v Beesnaar NO (2022) 43 ILJ 115 (LAC ). The court pointed out that the C ode of Good Practice: Dismissal provided a guideline for the
treatment of misconduct in, or of relevance to, the workplace.
6 (1986) 7 ILJ 739 (IC ).
7 Horn v Beesnaar NO (2022) 43 ILJ 115 (LAC ).
8 (1988) 9 ILJ 905 (IC ).
9 (2001) 22 ILJ 1292 (BC A).
10 In Dolo v CCMA (2011) 32 ILJ 905 (LC ).
11 Whether Dolo was left without a job does not appear in the judgment.
12 (2020) 41 ILJ 195 (LC ).
13 Makhoba v CCMA (2022) 43 ILJ 166 (LC ).
14 (2004) 25 ILJ 1737 (LC ).
15 (2005) 26 ILJ 2250 (C C MA).
16 (2011) 32 ILJ 1333 (LC ).
17 (2011) 32 ILJ 2442 (LAC ).
18 See, for example, SACCAWU v Irvin & Johnson (1999) 20 ILJ 2302 (LAC ).
19 See Mavumengwana v Samancor (Metalloys) (1992) 1 LCD 200 (IC ).
20 De Beers Consolidated Mines and NUM (1990) ARB 8.3.7.
21 P and B (unreported IMSSA award dated 15 September 1993).
22 (2004) 25 ILJ 1770 (C C MA).
3. Criminal conduct
A criminal conviction for conduct that is not work-related and does not involve another employee also justifies disciplinary action
only if a connection can be established between the offence or crime and the employer’s business. Much depends on the status of
the employee, the nature of the offence, and the relevance of the offence to the employer’s business. Where the employee
occupies a position of special trust, and the conviction undermines that trust relationship, dismissal may be justified. This is
especially true if the employee handles money and is convicted for an offence involving fraud, or if the employee has a position in
which a high standard of morality applies, and the employee is convicted of an offence involving conduct which is immoral as well
as illegal, even if those offences were not perpetrated in the workplace. The test in such cases is again whether the trust
relationship has been broken, and whether the employee’s conduct adversely affects the employer’s reputation or business.
When an employer feels that a criminal conviction for conduct that is not work-related may warrant dismissal, a disciplinary
inquiry must be held. The purpose of the inquiry is not to establish the facts that gave rise to the conviction, but rather the extent
to which the conviction impacts on the employment relationship, and to consider mitigating or aggravating circumstances that
might be relevant to the continuation of the employment relationship. This might include the possibility that the employee might
repeat the conduct that gave rise to the conviction.
An arrest or conviction for criminal conduct is not a prerequisite for disciplinary action against an employee. Nothing prevents the
employer from instituting disciplinary action even if no criminal trial is pending. The test for whether dismissal
4th Ed, 2022, ch 12-p 312
is warranted remains the same: whether the offence sullies the employment relationship and the employer’s good name. 23
23 For a dramatic example, see SAPS v Magwaxaza (2020) 41 ILJ 408 (LAC ), in which the dismissal of a police officer for shooting a member of the
public during an argument over spilled beer was upheld.

Most cases involve criminal offences committed while employees are in the service of the employer. When employers discover that
their employees were convicted of a criminal offence before they commenced employment, further considerations arise. In such
cases, the employee can shelter behind the absence of a general legal duty to disclose prejudicial information to another, unless
special circumstances apply. The courts have upheld dismissal for prior criminal convictions only in exceptional circumstances, and
only when the employee was deemed to have been obliged to disclose past convictions, either because good faith demanded
disclosure, 24 or because the employer had specifically asked the employees whether they had criminal records. 25 But even then,
past misconduct may justify dismissal. 26
This was found to be the case in Auret v Eskom Pension & Provident Fund, 27 even though the employer in that case knew that
the employee was facing fraud charges for dishonest stock exchange dealings when he was appointed. The employer in that case
ultimately resisted Mr Auret’s unfair dismissal action because it had added a provision to the contract providing that the employee
could be dismissed if he was convicted on those charges. That Auret saved himself from conviction by paying an admission of guilt
fine made no difference to the industrial court; it accepted that a pension fund cannot reasonably be expected to have a self-
confessed fraudster as an investment manager.
Employers who discovered that prospective employees had been convicted of a crime before they began work derived additional
protection from the ruling in Whitehead v Woolworths that people could not be ‘dismissed’ by their future employers until they
actually began work. 28 A commissioner relied on that ruling in Legolie / Sentrasure. 29 The parties had concluded a contract in
terms of which Mr Legolie would commence duties when his notice to his then employer had expired. Before that date, Sentrasure
learned that Legolie’s then employer had told him to leave immediately because he was under investigation for alleged fraud.
Sentrasure cancelled the contract. The commissioner was spared determining whether this was fair by finding that Legolie had not
been dismissed. However, since the Woolworths decision was overruled by the LAC in Wyeth SA v Manqele, 30 this ‘defence’ will no
longer hold.
24 SACCAWU obo Waterson / JDG Trading [1999] 3 BALR 353 (IMSSA).
25 Wium v Zondi [2002] 11 BLLR 1117 (LC ); Booysen / DCS [2006] 8 BALR 757 (GPSSBC ); Du Plessis / DCS [2006] 7 BALR 653 (GPSSBC ).
26 See, for example, Dercksen and Amaintit Pipe Systems SA (2003) 24 ILJ 1182 (BC A).
27 (1995) 16 ILJ 462 (IC ).
28 Whitehead v Woolworths (1999) 20 ILJ 2133 (LC ), discussed in C hapter 3.
29 [2001] 7 BALR 769 (C C MA).
30 (2005) 26 ILJ 749 (LAC ). See further C hapter 3.

4th Ed, 2022, ch 12-p 313
As indicated in earlier chapters, an employer’s disciplinary powers extend only to acts which constitute breaches of contract by the
employee. An employer has no criminal jurisdiction over its employees. But an employee’s misconduct may amount to both a breach
of the employment contract and a criminal offence. In such cases the employee may face the wrath of both the employer and the
state. 31
An employee cannot plead either in disciplinary proceedings or in a criminal trial that prosecution breaches the ‘double jeopardy’
principle because action has already been instituted in another tribunal: disciplinary proceedings against employees in their capacity
as employees, and criminal proceedings against employees in their capacity as subjects of the state are different and separate
proceedings. 32 An employee can therefore be ‘punished’ separately by both a criminal court and their employer, even if both
proceedings arise out of the same criminal act. Conversely, employees may not rely on an earlier acquittal by a criminal court in
disciplinary hearings arising from the same facts. 33
Nevertheless, there is a degree of overlap between criminal and disciplinary proceedings, and each may impinge on the other in
ways that create difficult issues for presiding officers in disciplinary proceedings. The main issues raised by concurrent disciplinary
procedures are:
• whether employers are obliged to stay disciplinary inquiries if accused employees so request on the basis that evidence in the
disciplinary proceedings will prejudice them in the criminal proceedings
• whether acquittals by criminal courts bar employers from instituting disciplinary action for the conduct out of which the
criminal charge arose
• whether employers are relieved of the obligation to hold a disciplinary inquiry in respect of misconduct if employees are
convicted of an offence arising out of that misconduct
• whether employers may rely on the findings of criminal courts when determining the guilt or innocence of employees in respect
of related misconduct
• whether a court or arbitrator can take into account the findings of criminal courts when the fairness of an employee’s
dismissal for misconduct is considered.
These questions arise when employers are considering instituting disciplinary action while proceedings against an employee are
pending in a criminal court and where disciplinary proceedings are contemplated or instituted after the judgment of a criminal court.
When a criminal offence is committed in the employment context, for example, if an employee steals the employer’s property, and
the matter is reported to the police for investigation, the suspected employee has a ‘right to silence’. Whatever the accused
employee might say in disciplinary proceedings, either in evidence
4th Ed, 2022, ch 12-p 314
or during cross-examination of other witnesses, might constitute a confession or admission that could be used against the
employee in subsequent criminal proceedings. Disciplinary proceedings are not privileged occasions. Accused employees might
therefore refuse to participate in an internal hearing on the basis that their right to silence would be infringed.
But this does not mean that the employer must postpone the disciplinary hearing until completion of the criminal trial. Several
employees have raised their ‘right to silence’ in attempts to postpone internal disciplinary action until the conclusion of criminal
proceedings arising from the same misconduct. They have generally not succeeded. Foreign courts have gone so far as to suggest
that, because of the potential clash between enforced participation in disciplinary proceedings and accused persons’ rights in
pending criminal proceedings, employers may dismiss employees in such circumstances without hearings. 34 This approach conflicts
with two fundamental principles of South African labour law: first, employers cannot dismiss employees on the basis of unproven
allegations; and, secondly, employers are required to follow a fair procedure before dismissing employees. The only options for
employers in these circumstances are therefore either to delay disciplinary proceedings until the conclusion of the criminal trial
(which leads to lengthy periods of suspension without pay) or to proceed with the disciplinary hearing and allow the employee to
decide whether to participate.
South African courts and labour tribunals have supported the latter alternative. Initially, their approach was somewhat
ambivalent. In Nyalunga v PP Webb Construction, 35 the employee was arrested on a charge of theft of cement from his employer
and was subsequently released on bail. The company dismissed him. In an urgent application to the industrial court, Mr Nyalunga
contended that his dismissal was procedurally unfair. Before ordering the company to reinstate him on full pay pending the outcome
of a disciplinary inquiry, the court stated that whether or not to proceed with disciplinary action ‘would depend on the facts of
each case’.
This approach begs a number of questions. Which circumstances oblige an employer to delay a disciplinary inquiry until a criminal
court has made its finding? What kind of inquiry is required if the employee is convicted by the criminal court? And, finally, can the
employer proceed with disciplinary action if the employee is acquitted of the criminal charge?
A situation that may give employers pause is that in which the employee seeks to rely on the sub judice principle, which prohibits
actions that may reasonably anticipate or affect the outcome of judicial proceedings. Findings by employers that employees have
committed the misconduct with which they have been charged clearly anticipate the very issue criminal courts are required to
decide. Evidence gathered for purposes of the disciplinary inquiry, and the testimony of witnesses, may also be used in criminal
proceedings against the employee.
The possibility of such conflict was raised in the civil case of Davis v Tip NO, 36 in which Mr Davis sought an interdict restraining
his employer from proceeding
4th Ed, 2022, ch 12-p 315
with a disciplinary hearing against him on charges of bribery, corruption and theft on the ground that, if the hearing proceeded, his
right to remain silent at his criminal trial would be compromised. The chair of the disciplinary inquiry dismissed the employee’s
request to postpone the hearing. So, too, did the court; the judge accepted that the presumption of innocence until guilt is proved
and the right to remain silent precluded an accused person from being compelled to participate in civil or internal disciplinary
proceedings. The court concluded that, by inviting Davis to give evidence in his defence at the disciplinary hearing, his employer
was not forcing him to give evidence. On the contrary, said the court – the ‘preservation of the applicant’s rights lies entirely in his
own hands, and there is no such element of compulsion’. Davis merely sought to protect himself against the consequence of the
choices he was called upon to make. 37
There are a number of other reasons why employers should not be required to postpone disciplinary hearings in cases when
employees seek to rely on their right to remain silent. Firstly, the purposes of criminal and disciplinary proceedings are different: A
criminal court seeks to protect society against wrongdoers; but in the case of an employment relationship, the employer aims to
protect his business interests. 38 Second, the considerations underlying sentencing differ. A criminal court may consider a
suspended sentence or a fine sufficient; an employer may reasonably conclude that the ultimate penalty of dismissal is the only
option. Thirdly, criminal courts require a standard of proof far more rigorous than that expected of employers. Failure by the state
to prove that a person is guilty of, say theft, beyond reasonable doubt does not mean that the same person cannot be found guilty
according to the civil test, ie the balance of probabilities. Most criminal offences must be committed intentionally; workplace
misconduct can be committed negligently. For example, a security guard who slips out for a smoke and thus unknowingly affords
another employee an opportunity to steal goods will not be guilty of theft; he will certainly be responsible for causing the employer
loss.
Perhaps the most pertinent difference is that, were employers to be forced to postpone disciplinary hearings until the conclusion
of related criminal proceedings, they would be faced with the invidious choice of either keeping the employee in service or
suspending the employee indefinitely on full pay, which employers are not permitted to do. The result of such a practice, which is
rife in the public sector, leads to unnecessary costs.
When employees do not request postponement of disciplinary proceedings, the courts have made it plain that employers have no
right to do so unilaterally. In Minister van Landbou v Venter, 39 the Appellate Division of the then Supreme Court set aside the
suspension of an employee who had been kept away from work for two years. The court held that the employer could have
instituted disciplinary action long before then because it had a copy of the police report.
Labour tribunals have followed this approach. In Union of Pretoria Municipal Workers v Stadsraad van Pretoria, 40 the
municipality laid criminal charges against
4th Ed, 2022, ch 12-p 316
an employee who had been involved in an accident in a council vehicle while driving outside municipal boundaries. When he was
convicted about a year later, a disciplinary hearing was convened and the employee was dismissed after refusing to resign. The
industrial court rejected the council’s ‘patronising’ attempt to rely on the concurrent criminal proceedings to justify the delay. If, as
the council contended, the disciplinary inquiry had been postponed to avoid prejudicing the employee in his defence of the criminal
charge, the council had no right to make that decision on the employee’s behalf. In other words, if disciplinary inquiries are to be
postponed for this reason, the postponement must be at the employee’s request.
The police ran into the same problem in PSA obo Van Rooyen / SAPS. 41 In that case, the employee had been temporarily
transferred pending a departmental investigation into alleged irregularities in the unit of which she was in command. About 14
months later, the Director of Public Prosecutions (DPP) requested the SAPS not to commence disciplinary proceedings against Ms
Van Rooyen because, so it said, investigations by the Anti-Corruption Unit against her and another officer were likely to be
hampered. After Van Rooyen was dismissed, she referred a dispute for arbitration. The SAPS argued that its hands were tied. The
arbitrator held that, quite apart from the fact that two years had passed since the DPP had made its request, the department
could not rely on Van Rooyen’s constitutional right to silence because she had never raised it.
In short, in cases in which accused employees do not request postponement of disciplinary hearings, employers have no right to
delay taking disciplinary action merely because a criminal action is pending in relation to the same misconduct.
The position is no different where criminal charges against an employee are withdrawn before the employer institutes disciplinary
action. This is clear from Olckers v Monviso Knitwear. 42 In that case, two of the employee’s colleagues were convicted of theft
and dismissed. The state decided not to proceed against Mr Olckers, but the employer charged him with ‘gross dereliction of duty’
for failing to report the theft, and dismissed him. During the trial in the industrial court, the employer led evidence to prove that
Olckers was a co-perpetrator or an accomplice. The court concluded that it was not concerned with criminal law distinctions
between perpetrators and accomplices and theft but whether, on a balance of probabilities, the employee assisted his colleagues
by allowing them to use his car to hide the goods and remove them from the workplace. Olcker’s dismissal was upheld.
The Labour Court came to the same conclusion in SAPS v Van der Merwe NO. 43 In that case, a police officer was dismissed for
allegedly assaulting a colleague and defrauding another by using the second colleague’s credit card without permission to buy goods
for himself, even though criminal charges arising from both incidents had been withdrawn.
4th Ed, 2022, ch 12-p 317
As indicated above, the onus of proof required in criminal trials differs from that required in disciplinary hearings. It is also
accepted that a conviction by a criminal court is not admissible in subsequent civil proceedings arising from the same incident, and
vice versa. It must follow, therefore, that an employee cannot rely on a previous acquittal by a criminal court either to restrain the
employer from instituting disciplinary action or to impugn an earlier disciplinary inquiry that resulted in a finding of guilty.
What about the opposite scenario – when the employee is convicted of the criminal charge? The answer emerges from DIMES v
Durban City Council. 44 In that case, the employees had pleaded guilty in a magistrate’s court to using dagga. After they returned
to work, they were dismissed without a hearing. The council conceded that there were only two provisions in the council’s
disciplinary code on which it could rely to justify the dismissal: first, being ‘under the influence of liquor or stupefying drugs while on
duty’; and, secondly, ‘disgraceful, improper or unbecoming conduct’. The council’s first problem was that it had not relied on the
second, broader ‘offence’ when dismissing the employees. The council’s second problem was that the employees’ plea did not
amount to proof that they were under the influence of the dagga. The employees were reinstated.
The DIMES case does not provide authority for the proposition that an employer cannot in any circumstances rely on the
contents of relevant criminal proceedings when action is taken against employees for the same offence. Where a trial has run its
full course and resulted in conviction, there is no reason why an employer cannot rely on the court’s verdict in subsequent
disciplinary proceedings, at least as prima facie proof that the employee committed the offence. This was accepted in Hassim v
Incorporated Law Society of Natal. 45 In Randburg Town Council v NUPSW, 46 the LAC pointed out that the Hassim judgment was
based on the court’s finding that there was no reasonable possibility that viva voce evidence by the witnesses whom the employee
wished to call at his disciplinary hearing would have altered the finding that he was guilty of the offences with which he had been
charged and convicted. The LAC made it clear that an employer cannot rely on the mere fact of conviction by a criminal court to
justify a finding that the employee is guilty of infringing its disciplinary code. One of the reasons for disallowing such summary
proceedings, said the court, was that magistrates are sometimes wrong. The employer should, therefore, have produced the record
of the criminal trial before the disciplinary hearing. The presiding officer could then have read the record, given the employee an
opportunity to state his case, and then decided on the basis of what he had heard and read whether the employee was guilty of
theft. Whether further evidence should be led was a question for the presiding officer to decide.
In Randburg Town Council the court did not have to consider a further issue that might arise in cases where employees have
been convicted by criminal courts. This is that the employee has a right to plead in relation to the penalty which the employer
might impose. It does not follow that conviction by a criminal court for
4th Ed, 2022, ch 12-p 318
an offence leads automatically to the conclusion that dismissal is appropriate or fair. The employee should at least be afforded the
opportunity of arguing that it is not. This assumes that the employee is free to attend the disciplinary hearing after conviction. If
convicted employees have been imprisoned, their employers cannot reasonably be expected to provide them with that opportunity.
But even then, the employer should at least consider whether dismissal is called for.
Randburg Town Council dealt with theft, which is generally a offence for which dismissal is warranted. It must not be assumed
that all offences amounting to ‘crimes’ – even theft – automatically warrant dismissal. The LAC issued this reminder in Toyota SA
Motors v Radebe. 47 It was not the nature of Mr Radebe’s misconduct (falsely reporting that his company car had been hijacked)
but its deviousness that was deemed to have irreparably destroyed the confidence which the company was entitled to have in him
as an employee.
Another issue that may arise in this context is whether, irrespective of the outcome of criminal proceedings, a disciplinary
tribunal may take into account evidence led in the criminal court. The general rule is that evidence led in criminal proceedings
cannot be relied upon in civil proceedings arising from the same incident, and vice versa; whichever matter is tried first, the other
court must hear evidence afresh. Disciplinary proceedings are neither criminal nor civil proceedings, so there is no reason why that
rule should apply inflexibly to them. However, even if criminal proceedings have preceded a disciplinary hearing, it would generally
be prudent for the presiding officers to hear evidence themselves, rather than simply relying on the record of the criminal trial.
There is no reason why such records should not be used for purposes of cross-examination or why, if the criminal trial has not
yet been concluded, statements taken from witnesses should not be admitted if the deponents appear as witnesses. The Labour
Court has accepted that a statement made by an accused who agreed to testify for the state in criminal proceedings could be
used by the employer in disciplinary proceedings. 48
31 See, for example, Martins v Roopa NO (2011) 32 ILJ 353 (LC ).

32 See, for example, Zondi and SAPS (2011) 32 ILJ 1796 (BC A).
33 Moshela v CCMA (2011) 32 ILJ 2692 (LC ).
34 See Carr v Alexander Russell [1976] IRLR 220; Conway v Matthew Right and Nephew [1977] IRLR 89.
35 (1990) 11 ILJ 819 (IC ).
36 1996 (1) SA 1152 (W).
37 The Labour C ourt followed this approach in Mohlola v Citibank (2003) 24 ILJ 417 (LC ).
38 Mhoalodi v East Rand Gold & Uranium Co (1988) 9 ILJ 597 (IC ).
39 1973 (3) SA 59 (A).
40 (1992) 13 ILJ 1563 (IC ).
41 [2000] 6 BALR 733 (IMSSA).
42 (1988) 9 ILJ 875 (IC ).
43 (2013) 34 ILJ 1579 (LC ).
44 (1988) 9 ILJ 1085 (IC ).
45 1979 (3) SA 298 (A).
46 (1994) 15 ILJ 129 (LAC ).
47 (2000) 21 ILJ 340 (LAC ).
48 Dolo v CCMA (2011) 32 ILJ 905 (LC ).
Dismissal / Chapter 13 Discipline and shop stewards
Chapter 13
Discipline and shop stewards
4th Ed, 2022, ch 13-p 319
1. Introduction
4. Victimisation
9. Consistency
1. Introduction
Shop stewards occupy an ambiguous position in the workplace: as employees, they are subject to the employer’s disciplinary
authority; as union representatives, they play a key role in union structures, act on behalf of employees and as intermediaries
between employers and union members. Shop stewards are the representatives of union members in the workplace, negotiate on
their behalf, represent union members in grievance and disciplinary proceedings and serve on committees concerned with diverse
matters such as health and safety and employee benefits; they also often hold senior positions within union structures. 1 These
multifarious functions, as well as conflicting perceptions about the nature of shop stewards’ duties and the way those duties should
be performed, can spark controversy if their employers take disciplinary action against them.
4th Ed, 2022, ch 13-p 320
The common law does not cater for the difficulties shop stewards may encounter in their attempts to serve two ‘masters’. Shop
stewards are first and foremost employees; like all employees, they are obliged to serve their employers honestly and faithfully
during ordinary working hours, and to some degree also after hours. 2 This position remains the same under labour legislation, but it
tends to give them rather more latitude. Given the duty of employees to promote the interests of their employers, to act
respectfully and to obey their employers’ reasonable and lawful instructions, the law renders shop stewards vulnerable to
accusations of breaching their obligations as employees if they discharge their union duties too zealously at the expense of their
employers’ interests.
The tensions between the role of shop steward and employee were aptly summarised in IMATU v Rustenburg Transitional
Council: 3
By joining a union, an employee commits himself to a body that stands in opposition

to his employer. In a real sense he ‘goes over’ to the opposition. . . . [T]he employee
can commit a breach of the duty [of fidelity to the employer] by moonlighting for a
competitor, and does so when he discloses confidential information, touts for
business on another’s behalf or encourages fellow employees to leave the employer
and tap work elsewhere. . . . Aligning oneself with a body specifically established as
a counterweight to the employer is arguably a greater infringement of the duty of
fidelity than taking up a part-time position with a competitor; it certainly seems to
be no less.
1 The role of shop stewards is generally set out in recognition agreements. These agreements usually contain clauses stating that shop stewards
remain employees of the company and are subject to the normal disciplinary rules in force within the company. This remains true even when the
employee is recognised by the employer as a ‘full-time shop steward’, ie an employee who is entirely released from his or her normal duties in order to
attend to union matters and issues concerning the union’s members in the plant. Although full-time shop stewards’ duties may differ from those of
ordinary employees, they are paid by the employer, normally report to a manager, and are subject to a degree of control regarding discipline, hours and
place of work, leave and sick leave. The duties of shop stewards of representative unions are given statutory recognition: see s 14 of the LRA. They are
fully described in Grogan Collective Labour Law 3 ed (Juta 2019) C hapter 5.
2 Shop stewards are therefore bound by the ordinary disciplinary rules of their employers: see C hapter 8 and Collective Labour Law C hapter 4.
3 (2000) 21 ILJ 377 (LC ).
Although shop stewards are not singled out for special protection by legislation, they are shielded to some extent against
victimisation by their employers by the various statutory provisions which preclude employers from taking action to the detriment of
employees generally for the exercise of their rights in terms of legislation and collective agreements. 4
All employees are protected against disciplinary action if they take part in the lawful activities of unions outside working hours
or, with the consent of the employer, during working hours. In addition, the Code of Good Practice: Dismissal specifically provides
that if disciplinary action is contemplated against shop stewards or union officials, their unions must be informed and consulted. 5
4 See Grogan Employment Rights 3 ed (Juta 2019) C hapter 4, as well as C hapter 7 of this volume.
5 Item 4(2).
The labour courts and arbitrators have always been sensitive to the dual role of shop stewards. The relevant case law suggests
that the following principles apply in cases involving disciplinary action against shop stewards:
4th Ed, 2022, ch 13-p 321
• Shop stewards cannot claim special privileges when it comes to disciplinary action arising out of their role as employees; they
are as such subject to the same rules and standards as any other employee. 6
• When exercising their functions as shop stewards, employees are entitled to a measure of protection and, when it comes to
discipline arising out of their activities as shop stewards, should be treated differently from ordinary employees.
• The performance by shop stewards of their duties as such cannot in itself constitute a disciplinary offence; to be fairly
disciplined for activities carried out as shop stewards, they must have committed an act normally categorised as misconduct
in the workplace concerned.
6 See, for example, SAMWU v eThekwini Municipality (2017) 38 ILJ 158 (LAC ); Khumalo v Otto Hoffmann Handweaving Co (1988) 9 ILJ 883 (IC );
NUMSA v BTR Dunlop (2) (1989) 10 ILJ 727 (IC ); PPWAWU v Uniply (1985) 6 ILJ 255 (IC ); Xaba v Everite (1985) 6 ILJ 255 (IC ). Indeed, it has been held
that the fact that a person is a shop steward is an aggravating factor in cases of ordinary workplace misconduct because the shop steward ‘ought to have
known better’, or should have been aware of the standard concerned, or ought to have served as an example to other employees.
4. Victimisation
Victimisation of shop stewards for lawfully performing their duties in accordance with the LRA or collective agreements is
prohibited. 7 On the other hand, dismissals of shop stewards who commit gross misconduct in the performance of their functions is
justified.
There is one possible exception to the rule against dismissing stewards for performing their duties as such. This arises when
employees of managerial status occupy that role. That issue was dealt with in IMATU v Rustenburg Transitional Council, 8 which
concerned the validity of a rule in terms of which senior executive employees above certain levels of management were prohibited
from serving in executive positions on trade unions. The court held that, although the right to hold union office was absolute, this
did not mean that employees in managerial positions could act for trade unions if this entailed placing their union duties above their
duties to their employers.
There are no reported cases in which senior employees have been dismissed for exceeding the bounds set by this passage. But
the judgment in Rustenburg Transitional Council indicates that managerial shop stewards may be dismissed if they discharge their
union functions so zealously that they betray their employers’ interests.
At first glance, it may seem curious that the court said, in one breath, that managerial employees’ right to hold union office is
absolute, and in the next breath that managers may be dismissed if they effectively discharge the functions of union office.
However, the apparent contradiction disappears when it is realised
4th Ed, 2022, ch 13-p 322
that a right may be absolute, but that there are nevertheless limits to the manner in which it is exercised. Just as protected
strikers may be dismissed if they commit misconduct during the strike, 9 so managers may be dismissed if they exceed the limits of
their rights. In the case of managers, the limit of their right to take part in union activities ends when their obligation to give
primacy to their employers’ interest is compromised.
If a manager were to be dismissed for participating in union activities, would the dismissal be for misconduct, or for incapacity, or
for operational requirements? In Rustenburg Transitional Council, the court suggests that the basis for such a dismissal is the
employee’s incapacity. If, because of an insoluble conflict of interest, employees who try to double as managers and union leaders
cannot reasonably be entrusted with their duties, those employees are by any standard ‘incapacitated’. An employer cannot
reasonably be expected to retain in service a manager who cannot be entrusted with such tasks as impartially conducting
disciplinary hearings or dealing objectively with staff grievances, with confidential information to which the employer has decided
that unions should not be privy, or to render impartial legal or other advice. Ironically, in such cases, the employee is
‘incapacitated’ for purposes of employment by the decision to exercise his or her constitutional rights.
However, it may be somewhat artificial to treat managers who wilfully choose sides in a dispute between their union and their
employer, and in the process choose to betray the employer by, for example, disclosing confidential information, as a case of
‘incapacity’. In such cases, the sounder view is that such a manager commits misconduct, just as any employee who exceeds the
bounds of his role as shop steward commits misconduct. That issue is dealt with in the following section.
When shop stewards are dismissed for alleged misconduct committed while performing their duties as shop stewards, it must be
established whether they were in fact committing misconduct or whether the alleged misconduct was merely an action ancillary to
the duties of shop steward. In such cases, the limits of the immunity from disciplinary action that should be extended to shop
stewards must be determined. Where the courts have set those limits differs from judgment to judgment. But some general
guidelines can be discerned from the case law. These suggest that when an employee acts as a shop steward, disciplinary rules
should be relaxed, but need not be ignored. 10
7 See C hapter 7 and Employment Rights C hapter 13. While ‘automatically unfair dismissals’ were not recognised as such under the 1956 LRA, the
industrial court held that dismissals that amounted to victimisation constituted unfair labour practices: see, for example, BASODWU v Homegas (1986) 7
ILJ 411 (IC ); UAMAWU v Fodens (SA) (1983) 4 ILJ 212 (IC ).
8 (2000) 21 ILJ 377 (LC ).
9 See C hapter 7.
10 See, for example, FAWU v Harvestime Corporation (1989) 10 ILJ 497 (IC ) and Enterprise Foods and FAWU (1990) ARB 6.3.5.

The problem is especially acute when shop stewards act as employee representatives in the collective bargaining context. The LAC
took a relatively strict approach in Adcock Ingram Critical Care v CCMA, 11 in which a shop steward blurted out the words ‘You can
treat this as a threat – there will be more blood on your hands’ at the start of a meeting called to end a long and violent strike,
distinguished by what the LAC described as ‘inflammatory statements, the murder of one worker, shots
4th Ed, 2022, ch 13-p 323
fired at others and at buses, thirteen petrol bombings of houses of non-strikers and ongoing assaults and intimidation’. The
management team took grave exception and immediately walked out of the meeting. The shop steward who had uttered the remark
was later charged with intimidation and dismissed. The shop steward claimed at his disciplinary hearing that he had merely been
trying to explain to management that, if the dispute over the temporary workers was not resolved, ‘shop stewards and permanent
staff might get hurt and management will get blamed for that’. This explanation did not impress the presiding officer. The shop
steward was fired.
A CCMA commissioner focused exclusively on the context in which the words were uttered. He asked: ‘Does this imply that the
next time a vociferous and determined spokesperson acting on behalf of his/her worker constituency uses a threat as part of his
negotiation tactic to put pressure on the management team to accede to his demands, that he too will run the risk of disciplinary
action?’ In any case, said the commissioner, the words were no more than an empty threat. The shop steward was reinstated, and
the commissioner’s approach was endorsed on review.
The LAC was in no doubt that the words amounted to a threat. But the second issue was whether, if shop stewards do abuse
their positions, their employers may exercise their disciplinary authority as employers? The LAC accepted that employers should be
discouraged from treating any perceived intransigence by employee representatives as insubordination or insolence. But if the
reasoning of the commissioner and the Labour Court were taken at face value, employers could not, under any circumstances,
exercise their authority as employers over their employees while those employees act in the capacity of union representatives in
the context of collective bargaining. All employers could do would be to terminate the negotiations, or call the police. The LAC
rejected the premise that the roles of the parties in collective bargaining and their roles in the employment context are separate
and subject to different standards, which it called the ‘anything goes’ approach. According to this judgment the same principle
applies to negotiations as applies in the workplace generally: employers and employees should treat each other with mutual
respect. Adcock Ingram does not specify in exact terms how much leeway shop stewards should be given when they act in that
capacity; it is impossible to lay down a precise threshold between acceptable and unacceptable conduct in the collective
bargaining context.
There are a number of reported cases in which employers gauged the threshold incorrectly, and in which the courts came to the
assistance of dismissed shop stewards. FAWU v Mnandi Meat Products & Wholesalers provides a classic example. 12 In that case, a
union representative had been manhandled and verbally abused in sight of union members. The industrial court commented that
there could be no surer way of causing industrial unrest than by engaging in such actions ‘and thereafter abdicating to the police
the responsibility of negotiating a way out of the consequences’.
Shop stewards have also been targeted for dismissal in other contexts, with varying consequences. A few examples must
suffice.
4th Ed, 2022, ch 13-p 324
In FAWU v Harvestime Corporation, 13 a shop steward approached a supervisor because workers had not received their pay
packets at the normal time. When the supervisor gave what the court found to be an untruthful answer, the shop steward asked:
‘Do you think you are the fucking paymaster?’ The court found that dismissal for this ‘rudeness’ was an overreaction.
Later, in Robertson & Caine v CCMA, 14 both a commissioner and subsequently the Labour Court held that a shop steward had
been unfairly dismissed for leaving his workstation without authority to intervene in a body search being conducted on workers, and
for refusing to undergo such a search himself. The dismissal of a shop steward was also found to be an overreaction in Wasteman
Group v SAMWU. 15 The shop steward in that case was dismissed for insubordination after he refused to report to his supervisor’s
office to discuss his earlier failure to work rather than attend a union meeting. An arbitrator found that the employee had indeed
been guilty of insubordination, as charged, when he refused to report to his supervisor’s office, and that the sanction of dismissal
was appropriate. But the Labour Court set aside the award on review, having ruled that the commissioner’s finding indicated an
undue preference for the employer’s decision, and reinstated the employee. The LAC found that the charge that the employee was
‘wearing his union hat’ was merely an attempt to portray the employee’s conduct in a more serious light. His conduct had been
influenced by unhappiness over having been refused permission to attend the union meeting. The employee was guilty of
insubordination but it did not warrant dismissal.
On the other hand, there have been cases in which the fact that dismissed employees also occupied the position of shop
stewards was considered an aggravating factor for the purposes of assessing the fairness of their dismissals. In BIFAWU v Mutual &
Federal Insurance, 16 a shop steward was dismissed because he had misled a CCMA commissioner during an arbitration hearing into
finding that the presiding officer at the disciplinary hearing of an employee he was representing had unreasonably refused the
employee’s request for a postponement. The arbitrator ruled for this and other reasons that the employee’s dismissal was
procedurally unfair, and awarded him compensation. It transpired on review that the presiding officer had actually granted a
postponement, and that the shop steward had deliberately lied to him. The court observed that, although some latitude must be
accorded shop stewards when they act as representatives, they are not entitled to act deviously, as the shop steward had done in
this case. The company’s main complaint that he had lied to the commissioner was justified, and was the main reason for his
dismissal.
In SACTWU v Ninian & Lester, 17 the LAC rejected a shop steward’s plea that she had been unfairly selected for dismissal after
she led a walk-out of the workstation. The court held not only that the shop steward’s conduct was not ‘collective’, as she
claimed, but also that her employment record demonstrated ‘an attitude of militancy, open defiance and unco-operation’.
4th Ed, 2022, ch 13-p 325
The present LAC holds the same view as the old. The appellant employees in SAMWU v Ethekwini Municipality, 18 both SAMWU
shop stewards, were dismissed for gross insubordination after they had locked the gate at the depot at which they worked and
refused to heed an instruction to open them. This conduct left the court in no doubt that shop stewards had been under the
misapprehension that being shop stewards allowed them to bulldoze management as they pleased. Their conduct amounted to
gross insubordination, for which dismissal was justified.
The test, it seems, is to ask whether a shop steward’s conduct can be said to fall within the realms of fair and acceptable
bargaining tactics and whether it can be said to be reasonably related to the performance by shop stewards of their functions as
such. 19 If the behaviour of shop stewards does not satisfy that test, and the employer takes disciplinary action, they cannot rely
on the privileges that otherwise attach to their position. The LAC has held that protection of shop stewards against victimisation is
not a licence to resort to defiance and needless confrontation, especially assault. 20
Conversely, shop stewards cannot be disciplined for failing to discharge their duties as such once they have stepped down from
that position. This obvious point was overlooked by Volkswagen South Africa (VWSA) when it dismissed a shop steward, who had
been suspended by his union, for failing to persuade unprotected strikers to resume work and to attend a meeting called by the
company. The arbitrator ruled the dismissal unfair because after his suspension the employee was no longer required to perform
shop steward functions, and he was accordingly under no obligation to obey the order to do so. 21 And the Labour Court similarly
overturned the dismissal of a shop steward (in this case an airline pilot) after finding that the main or dominant reason for the
employer’s decision to dismiss him was their irritation at the fact that the shop steward had deposed to an affidavit for purposes of
his union’s application to commit the CEO for contempt of court. 22
11 (2001) 22 ILJ 1799 (LAC ).

12 (1995) 16 ILJ 151 (IC ).
13 (1989) 10 ILJ 497 (IC ).
14 (2001) 22 ILJ 2488 (LC ).
15 (2012) 33 ILJ 2054 (LAC ).
16 (2006) 27 ILJ 600 (LAC ).
17 (1995) 16 ILJ 1041 (LAC ).
18 (2017) 38 ILJ 158 (LAC ).
19 See also NUM v Black Mountain Mining (2010) 31 ILJ 387 (LC ), in which a shop steward was held to have crossed the line by declaring at a well-
attended staff meeting that ‘we must get rid of all the whites’.
20 NUMSA obo Motloba v Johnson Controls Automotive SA (2017) 38 ILJ 1626 (LAC ).
21 See NUMSA and VWSA (2002) 23 ILJ 792 (ARB).
22 Kroukam v SA Airlink (2005) 26 ILJ 2153 (LAC ), discussed in C hapter 7.
Two situations in which shop stewards’ duties to their unions and members, on the one hand, and to their employers, on the other
hand, frequently collide arise when they are required to leave the workplace to attend to union matters or when they convene
union meetings to discuss workplace issues.
Shop stewards may be required to attend union meetings or training courses during working hours. Usually, the period of time off
or leave granted for union activities is regulated by collective agreement. Under the LRA, shop stewards are entitled, ‘subject to
reasonable conditions’ to take ‘reasonable’ time off with pay during working hours to perform their functions and to be trained in any
subject relevant to the performance of their functions. 23 Employees who are office-bearers
4th Ed, 2022, ch 13-p 326
of ‘representative’ trade unions, or of trade union federations to which their unions are affiliated, are similarly entitled to reasonable
time off on full pay. 24
Shop stewards may not be disciplined for taking leave to which they are entitled. But disputes can and often do arise over
whether shop stewards may take their leave at particular times. The general rule is that an employer may not ‘unreasonably’ refuse
a shop steward’s request for leave. When a refusal is reasonable depends on the facts of each case. 25 When shop stewards
blatantly defy express instructions not to leave work at particular times, the courts have not been sympathetic. 26 Such conduct
is deemed to constitute insubordination. 27 In these cases, it appears that the relevant questions are, for example, whether the
shop steward sought permission to be absent or simply left the workplace; whether there was an element of insubordination or
dishonesty in the shop steward’s conduct; whether the employer had a compelling reason for refusing permission and, conversely,
whether the shop steward had a good reason to be absent.
A further source of conflict between shop stewards and employers arises from the holding of union meetings, which shop
stewards are required to organise and attend. From a management perspective, these meetings may be viewed as disruptive and
should therefore be held during rest periods or after hours. The courts have generally supported the view that union meetings
should normally be held during times prescribed by the applicable collective agreement or at times agreed to by management.
Where shop stewards defy collective agreements and management instructions, they are guilty of insubordination. 28 But the
courts may be prepared to condone unauthorised meetings, and shop stewards’ roles in organising them, if the meetings are in
response to provocative conduct by the employer, or where there is some other real emergency.
The courts have generally taken a more sympathetic attitude to union meetings held outside working hours, even if they are held
without the permission of the employer. Where shop stewards were dismissed for organising and addressing an unauthorised
meeting after working hours on the property of a mine where employees lived and worked, the industrial court held that the
dismissals were unfair. 29 The main basis for this decision was that unions cannot discharge their functions without proper contact
with their members. General restrictions on meetings are, in principle, unfair. 30
23 Section 14(5).
24 Section 15. In the event of a dispute arising over the amount of leave that is reasonable, the union or the employer can request arbitration by
the C C MA.
25 For a case involving a dispute over whether shop stewards can leave their workstations without written permission, see NACTWUSA and
Waverley Blankets (2000) 5 LLD 487 (C C MA).
26 See, for example, CCAWUSA v Checkers SA NH 11/2/894; NUMSA v BTR Dunlop (2) (1989) 10 ILJ 727 (IC ).
27 But see Ngubo v Hermes Laundry Works (1990) 11 ILJ 591 (IC ). In that case, the dismissal of five shop stewards for attending a union meeting
at an industrial council was overturned because one of them had actually been given permission to attend the meeting.
28 See NUMSA v Benoni Engineering Works & Steel Foundry NH 11/2/1624 (IC ).
29 NUM v Buffelsfontein Gold Mining Co (1991) 12 ILJ 346 (IC ). See also NUMSA v Nalva (1992) 13 ILJ 1207 (IC ).
30 Doornfontein Gold Mining Co v NUM (1994) 15 ILJ 527 (LAC ).

4th Ed, 2022, ch 13-p 327
One of a shop steward’s statutory functions is to represent employees at disciplinary inquiries or arbitrations, if requested. 31 When
so doing, they perform functions akin to those of legal representatives – their task is to present the employees’ cases and seek to
persuade the presiding officer to make a finding favourable to the employee.
When shop stewards act in this role, they must refrain from dishonest practices and disruptive or offensive behaviour. In BIAWU
v Mutual & Federal Insurance Co, 32 a shop steward representing a dismissed employee at a CCMA arbitration hearing falsely
claimed that the company had unreasonably refused to postpone the disciplinary hearing. The commissioner held that the
company’s conduct had been procedurally unfair, and awarded the employee compensation. On review, the Labour Court found that
the shop steward had not requested a postponement. The court noted the difference between a point made on instructions and
making one up, and rejected the union’s submission that the shop steward’s dismissal was automatically unfair. So, too, did the
LAC. 33
32 (2002) 23 ILJ 1037 (LC ).
33 See BIFAWU v Mutual & Federal Insurance (2006) 27 ILJ 600 (LAC ), also discussed in C hapter 7.

When employees become shop stewards, they assume duties over and above those expected of them as employees. Can employers
take disciplinary action against shop stewards if they fail to discharge their duties as shop stewards, or perform them poorly? The
answer is certainly in the negative in all but the most exceptional cases. Shop stewards, employees fall under the disciplinary
authority of their unions. If they fail to comply with the requirements of the union’s constitution, they can be suspended or expelled
from membership. The union’s members can also signify their disapproval of the conduct of shop stewards by voting them out of
office. If that occurs, former shop stewards must resume their duties as an ‘ordinary’ employee, failing which the employer may
dismiss them. 34
Failure by shop stewards to discharge their duties as such may therefore constitute a disciplinary offence against both the union
and the employer. Where the shop steward’s conduct does not affect the employer’s interests, the sanction ought not to be
directed at the employee as such, but should rather be related to the office of shop steward. The only action open to employers in
cases like these is to refuse to recognise the employee concerned as a shop steward.
The employer’s right to take disciplinary action against full-time shop stewards for neglecting their duties may be more extensive,
because full-time shop stewards are paid by their employers to perform their functions. 35
An extraordinary situation between shop stewards and their employer arose as a result of a dispute between NUMSA and some of
its shop stewards at VWSA. After suspending 13 shop stewards for allegedly failing to comply with
4th Ed, 2022, ch 13-p 328
union policy, NUMSA obtained a court order in which the shop stewards were required to relinquish their positions. The entire hourly
paid workforce downed tools in consequence. VWSA claimed that it was powerless to intervene in the dispute between the shop
stewards and their union, and ultimately dismissed about 1 300 employees – including 12 shop stewards – for failing to comply with
an ultimatum to return to work. The remaining shop steward, who had complied with the ultimatum, was also subsequently
dismissed. Although nearly all the workers were ultimately found by the LAC to have been fairly dismissed, 36 an arbitrator ruled in a
subsequent hearing arising from the strike that the dismissal of the shop steward who had complied with the ultimatum was unfair
because he had resigned as a shop steward before the strike and the company had failed to prove that he had committed any
misconduct during the work stoppage. It was accordingly unfair to single him out for dismissal merely because he had been one of
the ‘dissident’ shop stewards. 37
34 Glencore Operations SA (Lion Ferrochrome) v NUM obo Maripane (2017) 38 ILJ 181 (LC ). See also Mhlekude v SAA (2017) 38 ILJ 577 (LAC ).
35 Matla Coal and NUM (1993) 14 ILJ 766 (ARB).
36 Mzeku v VWSA (2001) 22 ILJ 1575 (LAC ), also discussed in C hapter 22.
37 NUMSA and VWSA (2002) 23 ILJ 792 (ARB).
9. Consistency
Some of the cases referred to above illustrate another problem that may be encountered while disciplining shop stewards for
misconduct: their position may expose them to a greater risk of breaking workplace rules than the risk faced by ordinary employees.
This risk is most acute during industrial action, when shop stewards are expected to, and often do, assume leadership roles.
Furthermore, shop stewards often act, or purport to act, in terms of ‘mandates’ given to them by their members. 38 In such cases,
shop stewards selected for dismissal by virtue of their leadership role in mass action also frequently claim that they were selectively
disciplined. Where the misconduct of shop stewards was serious in itself and was distinguishable from that of the other workers,
the courts have rejected this argument. 39
A contrary argument in this context is that shop stewards, by virtue of their leadership roles, ‘should have known better’ or
should have set an example. 40 But where shop stewards are no more blameworthy than other strikers, it is unfair to single them
out for discipline merely because they are shop stewards. 41
38 This defence was considered and rejected in Keagrams and SACWU (1985) ARB 8.18.1 and Transvaal Mattress and Furniture Co and NUMSA &
PPWAWU (1990) ARB 8.18.17.
39 See MAWU v Samancor NH 11/2/1359 (IC ); NUMSA v Benoni Engineering Works & Steel Foundry NH 11/2/1624 (IC ); NUM v Western Holding
Gold Mine (1993) 2 LCD 243 (IC ); SACWU obo Reeding and Plastamid (1999) 4 LLD 394 (C C MA). On the general requirements of consistency, see
C hapter 8.
40 SACCAWU obo Ramontlhe v Sun City (2020) 41 ILJ 160 (LAC ).
41 See, for example, SATAWU v Ikhwezi Bus Service (2009) 30 ILJ 205 (LC ).

In most decisions under the 1956 LRA, it was accepted that shop stewards had the same procedural rights as ordinary employees.
The Code of Good Practice: Dismissal provides that disciplinary action should not be taken against shop
4th Ed, 2022, ch 13-p 329
stewards or employees who are also union office-bearers or officials ‘without first informing and consulting the trade union’. 42
This provision is intended to discourage victimisation of employees for their union activities. Some arbitrators have regarded it as
mandatory, and dismissals of shop stewards have been ruled procedurally unfair merely because the employer failed to inform the
employees’ unions. 43 However, the Labour Court and most arbitrators have held that this provision is merely a guideline, and that
failure by the employer to comply will not necessarily render the dismissal unfair. 44 An unrecognised minority union need not be
informed before disciplinary action is taken against one of its shop stewards. 45 The Labour Court has also held that an employer’s
failure to comply with item 4(2) before a disciplinary hearing may be ‘cured’ by informing the shop steward’s union before the appeal
hearing. 46 The relevance of non-compliance with this provision of the code depends on the facts of each case. Particularly
relevant is the gravity of the employee’s misconduct.
Precisely what the code envisages as ‘consultation’ is not explained. It seems that the term should be given its normal meaning,
ie to ‘take counsel’ from the union, consider its representations, and to bona fide consider them. ‘Consultation’ in this context
probably involves simply informing the union of the allegation against the shop steward and hearing the union’s response.
The ultimate decision on whether to take action against the shop steward remains in the hands of the employer. The code does
not provide that a shop steward is entitled to be represented by a union official at the disciplinary hearing. However, in view of the
possible sensitivity of disciplinary action against shop stewards, it would generally be prudent to allow such representation.
42 Item 4(2).
43 See, for example, Silicone Smelters / NUMSA obo Makhobotloane [2000] 4 BALR 468 (IMSSA); Mega Bus & Coach / SATAWU obo Matsane
[2001] 10 BALR 1051 (IMSSA).
44 See NACBAWU v Masinga (2000) 21 ILJ 411 (LC ); Mogorosi / Northern Cape Bus Service [2000] 5 BALR 604 (IMSSA); Spoornet and SATAWU
obo Mampetlane (2002) 23 ILJ 1090 (BC A); SALSTAFF obo Janse Van Vuuren and Transnet t/a Transwerk (2002) 23 ILJ 2153 (BC A).
45 BIAWU v Mutual & Federal Insurance Co (2002) 23 ILJ 1037 (LC ).
46 Jerry’s Security Services v CCMA [2001] 7 BLLR 751 (LC ).
Dismissal / Chapter 14 Dismissal for poor work performance
Chapter 14
Dismissal for poor work performance
4th Ed, 2022, ch 14-p 330
1. Introduction
2.1 Generally
3.1 Generally
3.2 Fair appraisal
3.3 Initial warning
3.6 Final warning
1. Introduction
When employees accept jobs, they impliedly undertake to work according to reasonable standards set by their employers. The
standard of work is both quantitative and qualitative: the employer has the right to set reasonable requirements in terms of output
and the standard of work required. If the employee fails to attain or maintain
4th Ed, 2022, ch 14-p 331
the standards set by the employer, the employer is entitled at both common law and under labour legislation to terminate the
contract. 1
In modern labour law, termination for this reason is generally known as dismissal for incapacity, one of the three grounds of
dismissal recognised by the LRA. 2 Incapacity is distinguished from misconduct by the fact that, in the former case, the employee is
not to blame for failing to attain the employer’s performance standards; the employees concerned have simply proved incapable of
doing so for reasons beyond their control. Incapacity is manifested by conduct which is neither intentional nor negligent in the legal
sense. Negligence may be treated as a form of misconduct. 3 Poor work performance straddles the divide between culpable
negligence and incapacity. 4
Dismissals for incapacity, properly speaking, are therefore said to belong, with retrenchment, to the category of ‘no fault’
dismissals. But dismissals for incapacity are distinguishable from retrenchment in that the dismissal is not, strictly speaking, related
to any need on the part of the employer to restructure the business or to reorganise patterns of work in response to fluctuating
market conditions. Dismissals for operational requirements are normally effected for reasons relating to some external factor relating
to the employer’s business, which requires a reduction of staff; dismissals for incapacity relate, rather, to the inherent inability on
the part of employees to do the job for which they were hired. 5
Dismissals for incapacity may, in turn, be divided into two classes. Into the first class fall those dismissals effected because the
employee lacks the skill, knowledge or efficiency to meet the employer’s standards. These dismissals are classified as dismissals for
poor work performance. Into the second class of incapacity dismissals fall those in which employees are unable to do their work
because of illness or injury. 6 Dismissal for poor work performance is discussed in this chapter; dismissal for incapacity in the next.
The distinction between dismissals for poor work performance and dismissals due to ill health or injury are reflected in the Code
of Good Practice: Dismissal.
4th Ed, 2022, ch 14-p 332
The code sets different standards, and requires different procedures to be followed, in these forms of dismissal. 7
Neither the courts nor the legislature has sought to deprive employers of the right to set and enforce reasonable performance
standards. The object of the law relating to this form of dismissal is to ensure that, before terminating the service of employees
who are unable to perform the duties for which they are paid, the employer acts fairly. As in dismissals for misconduct, the law
seeks to ensure that employers do not abuse the right to dismiss employees for incapacity by compelling employers to prove that
the employee is indeed incapable, and to follow fair procedures before deciding that they are incapable.
1 Friedlander v Hodes 1944 C PD 169; Ndamase v Fyfe-King 1939 EDL 259; Cowie v Ellard & Co (1994) 9 EDC 132; Negro v Continental Spinning &
Knitting Mills 1954 (2) SA 203 (W) at 211.
4 See Pahlana v PetroSA (2022) 43 ILJ 212 (LC ).
5 The distinction between incapacity dismissals and dismissals for operational requirements is in a sense artificial, because the latter subsume the
former. When an employee is unable to perform properly, the ultimate reason for dismissal is that the employer cannot afford to retain the employee.
Thus a dismissal after the prolonged absence of an employee was classified by the industrial court as a dismissal for operational reasons: see NUM v
Rustenburg Base Metals Refiners (1993) 14 ILJ 1094 (IC ). Incapacity should also be distinguished from a lack of the necessary qualifications. It may be
that an employee who is quite capable of performing particular work becomes unable to do so because the employee lacks or loses a particular
academic, technical or professional qualification, for example, where drivers lose their licences. It has been suggested that the dismissal of employees in
this predicament is a form of retrenchment. Dismissal for incapacity is discussed in C hapter 15.
6 Again, it may be impossible in some cases to draw a clear line between these two forms of dismissal: poor performance may result from lack of
training or experience, for example, or it may result from mental or physical deficiency associated with advancing years. In the latter case, it is arguable
that the dismissal is a mixture of the two classes of incapacity dismissal.
7 See LRA Schedule 8, items 8, 9, 10 and 11, respectively. But see the observation by the LAC in AECI Explosives (Zomerveld) v Mambalu (1995)
16 ILJ 1505 (LAC ) at 1510B–C .
2.1 Generally
As in the case of dismissals for misconduct, dismissals for poor work performance must be for a fair reason and effected in
accordance with a fair procedure, ie such dismissals must be procedurally and substantively fair. In cases of dismissal for poor work
performance, the requirement of substantive fairness is satisfied by proof that the employee actually failed to meet the
performance standard set by the employer. But this is not the end of the matter. It may be that the employee’s failure to meet
that standard is not causally attributable to any deficiency on the employee’s part, for example, it may be due to poor work
arrangements or to a lack of technical support.
The code therefore requires that in addition to proof of substandard performance, the employer must prove that:
• The employee should have been aware, or could reasonably have been expected to be aware, of the required performance
standard.
• The employee was given a reasonable opportunity to meet the required standard.
• Dismissal was an appropriate sanction for not meeting the required standard. 8
The elements of the requirement of substantive fairness in these forms of dismissals flow logically from these requirements.
Proof of poor work performance is best offered in the form of an objective assessment or appraisal of the employee’s work. Why the
assessment must be ‘objective’ is obvious: if the decision were to be left entirely to the subjective judgement of employers, their
word would be beyond judicial scrutiny. As in many other areas of law, the test for whether an employee has failed to meet a
performance standard cannot always be shorn entirely of subjective considerations. It may not be difficult to prove a failure to
achieve required output levels. Where work entails the exercise of some discretion by the employee, it may be more difficult to
prove
4th Ed, 2022, ch 14-p 333
such deficiencies as ‘poor judgement’ on empirical grounds. The industrial court indicated at an early stage that it was not prepared
to accept an employer’s opinion alone as sufficient proof that the employee’s work performance was so poor as to justify
dismissal. 9
How, then, does an employer prove that the employee’s work is deficient enough to justify dismissal? As indicated by the code,
the first requirement is to prove that the standard exists, and that it is reasonable. The existence of the standard may be proved
by a contractual provision, by practice, or by reference to industry norms. The reasonableness of a standard can also be proved by
reference to workplace practices, the relative performance of other employees, by express or implied warranties given by
employees on their levels of skill and experience, by the implications of the deficient performance for the business, or by the
position and status of the employee.
The next requirement is proof that the performance of the employee actually fell below the required standard. ‘Objective’ proof
of failure to meet a standard may take the form of complaints by customers, employees or supervisors, a demonstrable fall-off in
output, or evidence relating to the employee’s actions on particular occasions. The nature of the evidence required depends on the
facts of each case. The employee’s poor work performance may manifest itself either in a gradual drop below the employee’s
standard of work or in a single act or omission, which justifies the conclusion that the employee is incapable.
An example of the latter form is provided in Somyo v Ross Poultry Breeders, 10 in which the manager of a chicken hatchery was
dismissed for failing to vaccinate chickens against disease. The court held that, although the employer had not adequately complied
with the requirements of counselling and warnings which would generally be applicable in the case of ‘ordinary’ employees, Mr
Somyo was not an ordinary employee. He was a manager; he was aware of the potential consequences for the company of failing
to vaccinate the chickens; and he had failed to provide an acceptable explanation for his omission. His dismissal was therefore ruled
fair. 11
The greater the degree of personal judgment required for the employee’s work, the more difficult it may be to prove either the
existence of a clear performance
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standard or the assertion that the employee had failed to meet it. Consider how theatre or sports critics may disagree over the
quality of a player’s performance.
The difficulty of proving poor performance is illustrated by the case of the underperforming salesperson, considered in White /
Medpro Pharmaceuticals, 12 and in Robinson and Sun Couriers. 13 Both cases involved dismissals of salespersons for failing to meet
sales targets. The awards indicate that the employer’s right to set performance standards for its employees generally, and for
salespersons in particular, is not unlimited.
Although they operated in different sectors, both Medpro and Sun Couriers raised essentially the same defence. Medpro claimed
that the setting of sales targets was an industry norm, that its sales representatives were trained to attain these targets, and that
with reasonable effort they could be reached. Sun Couriers claimed that the targets set for its sales staff took into account the
history and performance of each branch, and that if salespersons could not be dismissed for failing to reach those targets, there
was no point in having targets. Ms White was dismissed by Medpro for falling short by about 50% of monthly sales targets for eight
of nine consecutive months, and for not making the required number of calls on customers or potential customers in the same
period. Mr Robinson fell short during a particular year by 8% of the minimum of 80% of the annual sales target the company’s sales
executives were required to attain. Both companies also relied on the fact that other sales personnel had managed to attain their
targets. Both employees claimed that their poor performance was attributable to factors other than lack of commitment or poor
performance, such as market downturns, other duties which took time but did not generate sales directly, and – in Ms White’s case
– to a period of illness.
In Sun Couriers, the commissioner accepted that mere failure to reach a target is not in itself conclusive; there may be a number
of perfectly acceptable explanations for failing to reach a target. But, said the commissioner, ‘the employer is required to show not
only that the employee failed to reach a target, but also that the failure to reach that target is due to poor work performance’.
This ‘test’ may seem somewhat circular. In Medpro the commissioner added that the performance standards set by employers
must be reasonable and consistently applied, and that the employer must, before resorting to dismissal, endeavour to ascertain the
reason for the underperformance, and to assist the employee to maintain the required performance standard. Both Sun Couriers and
Medpro were unable to persuade the commissioners that the mere failure of the employees concerned to reach their targets
justified their dismissals.
On review of the Sun Couriers award, 14 the Labour Court adopted a different approach. The court held that the commissioner
had confused the issue before him: the award was premised on tests which would have been applicable to misconduct but which
bore no relevance to Robinson’s undisputed failure to have achieved a targeted level of performance set for him and others in
similar capacities within the company. By so finding, the court accepted Sun Couriers’ argument that the commissioner had
misdirected himself by inquiring into whether Robinson was
4th Ed, 2022, ch 14-p 335
‘at fault’ – Robinson had merely been dismissed because ‘he did not possess the physical, mental or attitudinal wherewithal, through
no fault of his own, to perform his duties properly’. The court found further that Sun Couriers had ‘more than adequately’ observed
the guidelines for dismissal for poor work performance.
On the face of it, then, the Sun Couriers judgment seems to endorse the proposition that, in cases of incapacity or poor work
performance, the sole question is whether the employee has failed to meet the standard set by the employer. Whether he could
reasonably have done so had it not been for factors beyond his control were neither here nor there. The award was set aside and
remitted to the CCMA to be heard by another commissioner. 15
The commissioner who reheard the matter did not interpret the judgment that way but found that it still left room for an inquiry
into whether the standard set by the employer was reasonable, whether that standard had been consistently applied and whether
the employee’s services were terminated ‘after a reasonable opportunity to meet the targets, without identifying what on a balance
of probabilities was the cause of such failure’. This commissioner drew a distinction between employees and independent
contractors. Independent contractors are left to their own devices in their attempts to satisfy the requirements of their principals.
The employment relationship is co-operative: both the employer and the employee must strive to achieve targets set by the
employer, but ultimately the responsibility to manage the business and ensure its economic viability rests with the employer. That
responsibility is important for distinguishing between poor work performance arising from misconduct and that arising from
incapacity. It also explained why employers are required to counsel employees in the latter type of case: the purpose of counselling
is in part to identify the reasons for the employee’s shortcomings. Only when that is done can the employer decide whether it is
dealing with a case of misconduct or incapacity. And, even if it is a case of incapacity, the employer must assist the employee,
which cannot be done if the reasons for the incapacity are not identified. Robinson was reinstated. And so, too, in the absence of
a further review, was the principle that where an employee was dismissed for failing to maintain a performance standard, the
employer must prove that the employee’s poor performance was not attributable to factors beyond the employee’s control.
The point that managers may not be dismissed for poor work performance if they are set unreasonable targets and not provided
with the means of attaining them, is underscored by Damelin v Solidarity obo Parkinson. 16
It may in certain circumstances be advisable to appoint an outsider with expertise in the field to appraise a poorly performing
employee’s work and working environment. Except in the case of senior managerial employees (see below), and not always in their
case, an isolated error of judgment will not ordinarily justify dismissal for poor work performance, unless the employee can be
proved to have been reckless or grossly negligent.
Where a gradual decline in an employee’s work performance is alleged, the employer should ensure that there is evidence of a
consistent decline. It may be
4th Ed, 2022, ch 14-p 336
embarrassing, for instance, if an employee dismissed for poor work performance produces recent commendations by the
employer. 17
A dismissal for poor work performance cannot be ‘disguised’ as a retrenchment to avoid proving that the employee was
incompetent. This ruse was exposed in SA Mutual Life Assurance Society v IBSA. 18 The company decided to restructure its
employment services department after other divisions lost confidence in its employment officers. Those officers were invited to
apply for positions in the restructured department. Some refused to do so and were dismissed. The court held that the
restructuring exercise was a method of dismissing the employment officers for reasons relating to incapacity or poor work
performance. The company was unable to prove that the employees concerned would have been unable to perform adequately in
the restructured department. The court held that the evidence did not provide a ‘rational justification’ for the decision to dismiss
the employees. 19
Seniority and experience are among factors to be considered when assessing whether an employee’s standard of performance is
lacking. The more senior, highly paid and specialised the employee, the higher the standard of work that can reasonably be
expected of him of her. In Somyo v Ross Poultry Breeders, 20 the LAC held that the normal requirements for a dismissal for poor
work performance may not apply in the case of a manager or senior employee ‘whose knowledge and experience qualify him to
judge for himself whether he is meeting the standards set by the employer’ or where ‘the degree of professional skill required is so
high, and the potential consequences of the smallest departure from that high standard are so serious, that one failure to perform
in accordance with those high standards is enough to justify dismissal’.
The employer relied on the exceptions mentioned in the Somyo judgment in the arbitration under review in New Forest Farming v
Cachalia. 21 The arbitrator found that there was no evidence to indicate that the respondent employee possessed the necessary
skill required for his position as farm manager, and that the employer was aware of this. The dismissal was accordingly unfair
because, although the employee was aware of the employer’s standards, he had not been warned and given a reasonable
opportunity to meet them. The court held that the arbitrator misconstrued the Somyo judgment by conflating the two distinct
exceptions contemplated there. What the arbitrator should have done, said the court, was to ask
4th Ed, 2022, ch 14-p 337
whether the employee, holding the position he did, ought to have been able to judge for himself whether he was meeting the
standard set by the employer. Instead, the arbitrator had asked whether the employee possessed the skill required for his post.
The result of this error, said the court, was that the arbitrator ignored the inquiry required by Somyo, namely, whether the
employee should have been able to judge whether he was meeting the required performance standard. If that were so, the
judgment implies, the employer would have been relieved of the obligation to warn the employee and give him a reasonable
opportunity to improve.
The court interpreted Somyo strictly. It held that only if it is found that a manager has knowledge and experience such that he
was aware of the employer’s standards, and fails to satisfy them, can he be dismissed without being given an opportunity to
improve. In New Forest Farming the court did not find that the employee in question in fact fell within the first exception
mentioned in Somyo; the judge merely found that the award was defective because the commissioner had not made the necessary
inquiry. In such cases, the employer must still prove as a fact (albeit on a balance of probabilities) that the employee had the
requisite knowledge and experience (which the arbitrator had found not to be the case).
Although the Somyo judgment suggests that the employer need not counsel senior managerial employees and give them an
opportunity to improve if the employee falls into either of the exceptions mentioned in the judgment, the Cachalia court found that
both exceptions applied to Mr Somyo. It would accordingly be dangerous to assume that, with the possible exception of managers
who were engaged on the strength of false claims about their qualifications and experience, 22 employers are at liberty to dismiss
senior employees for unsatisfactory work performance without any warning at all. These employees are also entitled to be treated
fairly. 23
The case of Mr Ngobo provides another example to counter Somyo. He was employed by Palace Engineering as chief operations
engineer subject to a six-month probationary period, which in turn provided that if the employee did not perform to the company’s
satisfaction, the appointment could be ‘reviewed’ after two months. The employment contract also set a performance target of
R100 million per year for the sourcing of new infrastructure projects. When Ngcobo failed to submit a business plan, he was told not
to report for duty. However, when he submitted a plan, the company relented. After three performance evaluations, it was
established that Ngcobo had failed to reach his monthly targets, and an inquiry was convened. Ngcobo was set a fresh target,
which he failed to meet. He was dismissed. A CCMA commissioner ruled the dismissal substantively and procedurally unfair, and
awarded Ngcobo compensation equal to six months’ salary. On review, the Labour Court found the dismissal only substantively
unfair, and halved the compensation awarded. Palace Engineering contended on appeal that the arbitrator had given insufficient
weight to the employee’s seniority, and that the employee had not even reached the targets he set for himself.
4th Ed, 2022, ch 14-p 338
In Palace Engineering v Ngcobo, 24 the LAC noted that, while Ngcobo had set targets for himself, these had been overtaken by
fresh targets set by the company, which its MD had conceded were unrealistic. Ngcobo had been penalised mainly for failing to
attract work from municipalities. However, he was unable to do so because the company did not conform to general tender
requirements. It was also apparent that Ngcobo’s performance had been hampered by poor administration and lack of support. The
evidence justified the finding that Palace Engineering’s business depended on a variety of factors, many of which weighed against
Ngcobo. The company’s argument that the commissioner had given excessive weight to a poor human resources environment and
lack of a marketing budget was accordingly unfounded.
Football and other sports coaches provide a classic example of employees who are expected to live up to their word when they
undertake to take their teams to new heights. Mr Leal, a Brazilian, was engaged at a generous salary to do just that for the ailing
Moroka Swallows, but the team had a disastrous season, registering five successive league defeats. The club decided to give the
coach the boot a year into his three-year contract, and Leal claimed it had repudiated his contract. In Leal and Moroka Swallows
Football Club, 25 an arbitration panel held that, whether the dispute was characterised as a breach of contract or as an unfair
dismissal, Leal had failed to perform his side of the bargain, and could not claim a further period in which to improve.
Former Proteas star Lance Klusener suffered the same fate after he was appointed caretaker coach for the KZN Dolphins in 2012
after its then head coach resigned to take up an overseas appointment. The team fared reasonably well that season, and Klusener
was confirmed as head coach for two years. Two further contracts were concluded for the 2014 and 2015 seasons, respectively.
But by that point it had become increasingly apparent that Klusener had not managed to transmit his skills to the Dolphins. The
team went into a losing spiral and during 2015 Klusener was told that his services were no longer required. He was paid out for the
rest of that season. Klusener claimed that he had been promised that his contract would be ‘rolled over’ for a further 12 months,
and that the Dolphins’ failure to do so constituted an unfair dismissal. The team’s management retorted that it was entitled to
release the coach because the team was not winning games. In Klusener and KZN Cricket, 26 the commissioner accepted that the
CEO had promised that Klusener’s contract would be renewed. However, the CEO lacked authority to make such a commitment
without board approval, as Klusener was fully aware. Still less could Klusener reasonably have believed that he was entitled to an
extension irrespective of the team’s performance. Rightly or wrongly, winning is everything in professional sport and everything else
is peripheral. The coach’s performance did not matter; the team’s did. Irrespective of past glories as a player, a professional sports
coach cannot reasonably expect to remain in employment when he has lost the confidence of shareholders and fans. That Klusener
had selected a team for the following season was irrelevant, because that was part of his current duties.
4th Ed, 2022, ch 14-p 339
The commissioner accordingly held that Klusener had not proved that he was dismissed.
At the other end of the spectrum, it has generally been accepted that employees on probation may be dismissed for reasons less
compelling than those required in the case of ‘tenured’ employees. 27 Apart from confirming the legitimacy of probationary clauses
in employment contracts, the Code of Good Practice: Dismissal confirms that the purpose of such provisions is to give the employer
the opportunity to evaluate the employee’s performance before the appointment is ‘confirmed’. 28
The code expressly provides that ‘any person making a decision about the fairness of a dismissal of an employee for poor work
performance during or on expiry of the probationary period ought to accept reasons that may be less compelling than would be the
case in dismissals effected after the completion of the probationary period’. However, the code still requires employers to give
probationary employees ‘reasonable evaluation, instruction, training, guidance or counselling in order to allow the employee to
render a satisfactory service’. The employer is also required to prove that probationers failed to satisfy a performance standard of
which they were aware. 29 If the employer decides that the employee’s performance is not up to scratch, the probationary period
can either be extended, 30 or the employee can be dismissed, provided that the employer has advised the employee ‘of any
aspects in which the employer considers the employee to be failing to meet the required performance standards’ and the respects
in which the employee is incompetent. Furthermore, if dismissal is being considered, the employee must be afforded an opportunity
to make representations. 31
Employees who have warranted their competence before being employed need not receive counselling if no point would be
served by extending probation. 32
Once the probationary period has been extended, the same considerations apply. Probation may be extended expressly or by
implication. 33 After probation has been extended, management may engage in an ongoing review and evaluation process.
Probationers will not be treated sympathetically where they unreasonably refuse an extension of their probation, and are
dismissed in consequence. 34
Whether employees were actually aware of a performance standard is a question of fact. But the Code of Good Practice indicates
that dismissal for poor work performance may be justified if the employees should reasonably have been aware
4th Ed, 2022, ch 14-p 340
of the required performance standard. A finding in this regard must also depend on the facts of each case. Relevant considerations
include the manner in which the performance standard was conveyed to employees, the nature of the employee’s work and
position, and any specific warranties made by the employee regarding his or her experience, skill and qualifications.
A performance standard can be conveyed to employees either by means of general directives or by ad hoc measures such as
warnings and counselling if the employee’s performance becomes deficient. The more warnings an employee has had, and the more
guidance that has been given, the less likely it will be that the employee will be able to deny the existence of the standard.
If employees display shortcomings in performing their duties, fairness requires that those employees should not only be informed
that their performance is deficient, and in what respects, but also that the employees should be given an opportunity to
improve. 35 This is where the substantive and procedural aspects of dismissals for poor work performance begin to merge. As is
explained below, the procedure for dismissals for poor work performance requires that the employee should be counselled, monitored
and offered assistance before the contract is terminated. This self-evidently implies that the employee must be given an
opportunity to improve. Generally, an employer cannot justifiably conclude that dismissal is necessary if the employee could
conceivably have met the required standard within a reasonable period.
The length of time an employee should be given to improve depends on the circumstances, including, but not limited to, the
complexity of the job, the volume and nature of the work, the nature of the employer’s business, and the qualifications and
experience of the employee. In the first instance, the employer is the judge of how much time an employee needs to improve. In
the absence of indications of bad faith, arbitrators should not second-guess an employer in this regard. This was the message of
Boss Logistics v Phopi. 36 Mr Phopi had given the impression in his pre-appointment interview that he was an expert in logistics and
sales, but in a short while he failed to live up to the expectations raised by these representations. Phopi had clearly overstated his
level of expertise. That being the case, the employer was under no obligation to counsel or assist him; since he had dishonestly
misrepresented his qualifications, further training and assistance would merely be a reward for dishonesty.
To speak of a ‘sanction’ in the case of a dismissal for poor work performance is something of a misnomer; being a form of ‘no fault’
dismissal, employees are not being ‘punished’ if their services are terminated. What is meant by the reference in the Code of Good
Practice to a ‘sanction’ in this context is that, in the case of dismissals for poor work performance, as with dismissals for any other
reason,
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dismissal must be an action of last resort. Dismissal is unnecessary if, given a reasonable opportunity and reasonable assistance,
the employee can meet the required standard. Nor will dismissal be necessary if the employee could have been moved to another
position, even if this entailed demotion.
Given that in these cases dismissal is not attributable to the fault of the employee, the need to consider whether dismissal is
‘appropriate’ is more pressing than in cases of misconduct. However, in cases of dismissal for poor work performance the ultimate
test is the same as that for misconduct, ie whether the decision to dismiss falls within the ‘band’ in which two reasonable persons
can reasonably agree that dismissal is appropriate. 37
In the case of dismissals for poor work performance employers must prove that dismissal is necessary because employees are
unable to perform their particular duties. It is clearly unfair to dismiss a sweeper for being unable to perform the duties of the
company bookkeeper. A less unlikely, though unusual illustration is provided by JDG Trading t/a Price ’n Pride v Brunsdon. 38 Mr
Brunsdon had served the company for about 10 years in various managerial positions. He was ultimately appointed general manager.
When the company became dissatisfied with his performance in that position, Brunsdon was offered the position of General
Manager: Credit and Administration, which he reluctantly accepted. He took leave for a while, but soon after his return he was
informed that his services were to be terminated. The court dismissed the company’s claim that it had retrenched Brunsdon and
found that the true reason for the dismissal was Brunsdon’s poor interpersonal skills – the very reason he had been given for the
decision to remove him from the post of general manager. During his fleeting service as General Manager: Credit and Administration
Brunsdon had done nothing to indicate that he lacked the skills required for that position. Furthermore, the company had failed to
prove how interpersonal skills were relevant to that position. The company had lost the opportunity of dismissing Brunsdon for his
poor interpersonal skills when it demoted him.
8 LRA Schedule 8, item 9.

9 Gostelow v Datakor Holdings t/a Corporate Copilith (1993) 14 ILJ 171 (IC ). The court stated in that case that the purpose of an assessment was
to establish the reasons for the employee’s shortcomings and to apply a value judgement which is both ‘objective and reasonable’.
10 [1997] 7 BLLR 862 (LAC ).
11 The court commented: ‘An employer who is concerned about the poor performance of an employee is normally required to appraise the
employee’s work performance; to warn the employee that if his work performance does not improve, he might be dismissed; and to allow the employee
a reasonable opportunity to improve his performance’: Craig v Rubdec t/a Guys and Girls (1992) 1 LCD 29 (IC ); James v Waltham Holy Cross UDC
[1973] IRLR 202. Those requirements may not apply in two cases which are relevant to this matter. The first is the manager or senior employee whose
knowledge and experience qualify him to judge for himself whether he is meeting the standards set by the employer: Stevenson v Sterns
Jewellers (1986) 7 ILJ 318 (IC ); Blue Circle Materials v Haskins (1992) 1 LCD 6 (LAC ). The second is where ‘the degree of professional skill which must
be required is so high, and the potential consequences of the smallest departure from that high standard are so serious, that one failure to perform in
accordance with those standards is enough to justify dismissal’: Taylor v Alidair [1978] IRLR 82. Senior employees are discussed below.
12 [2000] 10 BALR 1182 (C C MA).
13 (2003) 24 ILJ 655 (C C MA).
14 Sun Couriers v CCMA (2002) 23 ILJ 189 (LC ).
15 See also the judgment by the same judge in Danzas AEI (SA) v Wanza NO [2003] 11 BLLR 1133 (LC ).
16 (2017) 38 ILJ 872 (LAC ).
17 Thus in Larcombe v Natal Nylon Industries, Pietermaritzburg (1986) 7 ILJ 326 (IC ), a financial manager had been assured less than a month
before his dismissal that the company was satisfied with his performance. In Van As v Colin Katz & Associates (1992) 1 LCD 103 (IC ), the employer had
told military authorities that the services of the employee were ‘indispensable’.
18 [2001] 9 BLLR 1045 (LAC ).
19 See also Hedley v Papergraphics (2001) 22 ILJ 935 (LC ); NEHAWU v Medicor t/a Vergelegen Medi-Clinic (2005) 26 ILJ 501 (LC ).
20 [1997] 7 BLLR 862 (LAC ) (see above).
21 (2003) 24 ILJ 1995 (LC ). For cases in which courts have also adopted an unsympathetic approach to dismissals of managerial employees for
incompetence, see Stevenson v Sterns Jewellers (1986) 7 ILJ 318 (IC ) at 324F–G; Blue Circle Materials v Haskins (1992) 1 LCD 6 (LAC ); Van Aarde v
Suid-Afrikaanse Nasionale Lewensassuransie Maatskappy (1994) 3 LCD 375 (IC ).
22 Boss Logistics v Phopi (2010) 31 ILJ 1644 (LC ).
23 See Unilong Freight Distributors v Muller (1998) 19 ILJ 229 (SC A) at 238A. See also Nationwide Airlines v Madau [2003] 3 BLLR 279 (LC ) and
Wentworth and WH Saffer (2002) 23 ILJ 959 (C C MA).
24 (2014) 35 ILJ 1971 (LAC ).
25 (2010) 31 ILJ 1029 (ARB).
26 (2016) 37 ILJ 2916 (C C MA).
27 See Arbeter / Skipper International [1998] 8 BALR 977 (C C MA).
28 LRA Schedule 8, item 8.
29 Majoro / Friendly Grocer (Orkney) [2001] 4 BALR 355 (C C MA).
30 Keppler / Birkhart International Forwarding SA [2000] 12 BALR 1405 (C C MA) at 1409D–E.
31 Afrox Healthcare v CCMA (2012) 33 ILJ 1381 (LAC ); Mahlangu / St Josephs Home for the Aged [2000] 8 BALR 902 (C C MA); FOCSWU obo
Ralawe / Anglican Church [1999] 9 BALR 1022 (C C MA).
32 See Rheinmetall v NBCCI (2015) 36 ILJ 2117 (LC ); Rheinmetall v NBCCI (2016) 37 ILJ 2099 (LC ).
33 Ubuntu Education Fund v Paulsen (2019) 40 ILJ 2524 (LAC ).
34 SA Library for the Blind v CCMA (2019) 40 ILJ 422 (LC ).
35 Unilong Freight Distributors v Muller (1998) 19 ILJ 229 (SC A).
36 (2010) 31 ILJ 1644 (LC ).
37 For an explanation of this phrase, see C hapter 8.
38 (2000) 21 ILJ 501 (LAC ). See also Hendricks v Mercantile & General Reinsurance Co of SA (1994) 15 ILJ 304 (LAC ) at 313A–D.
3.1 Generally
It may be somewhat confusing to deal separately with procedural fairness in the case of dismissals for poor work performance
because the objective of the procedure that must be followed in these cases is to improve the employee’s performance – if it can
be improved. The procedure to be followed in cases of poor work performance is designed to inform poor performers of their
deficiencies and to give them an opportunity to improve with proper assistance and guidance. In these cases, the purpose of a fair
procedure is thus inextricably enmeshed with the fairness of the decision to dismiss; the process of assessment, advice,
counselling, guidance and
4th Ed, 2022, ch 14-p 342
ultimately warning are all integral parts of the fairness of the dismissal. 39 But it is at least conceptually useful to draw a distinction
between substantive and procedural fairness in this form of dismissal, because procedural unfairness may render a dismissal unfair
even if the employee was truly incompetent, and if the dismissal is only procedurally unfair the employee cannot claim
reinstatement.
The procedural requirements for dismissal for poor work performance are spelt out briefly in the Code of Good Practice. Although
a distinction is drawn between probationary employees and others (see above), the procedure required in respect of all employees
is similar. Item 8 provides that, after probation, an employee may not be dismissed for poor work performance unless:
• The employer has given the employee appropriate evaluation, instruction, training, guidance or counselling.
• After a reasonable period of time for improvement, the employee continues to perform unsatisfactorily.
Item 8 further provides:
(3) The procedure leading to dismissal should include an investigation to establish the
reasons for the unsatisfactory performance and the employer should consider other ways,
short of dismissal, to remedy the matter.
(4) In the process, the employee should have the right to be heard and to be assisted by
a trade union representative or fellow employee.
The code therefore ends the debate over whether it is necessary to grant a hearing to employees before they are dismissed for
poor work performance; 40 they, too, must be given the opportunity to ‘state a case’.
Before an employee is dismissed for poor work performance, the employer must also take reasonable steps to correct the
employee’s performance. This process should involve the active participation of the employee. In short, a fair procedure requires
the employer to:
• carefully appraise the employee’s work performance
• counsel and assist the employee before taking further action
• monitor the employee’s performance after counselling
• warn the employee that he or she might possibly be dismissed if the employee’s performance does not improve
• grant the employee a reasonable opportunity to rectify his or her deficiencies
• give the employee an opportunity to state his or her case before taking the final decision.
Each of these requirements is considered below.
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3.2 Fair appraisal

A proper appraisal of the employee’s work performance is essential for purposes of proving that the employee failed to attain the
required performance standard (see above). An appraisal also serves a further function: it gives the employer the chance not only
to assess the employee’s performance, but also to discuss the problems that may have been identified with the employee. At this
stage, explanations other than the employee’s poor performance may come to light. 41
The employee’s capability must be objectively assessed in relation to such factors as changes in production techniques, new
technology and other factors that might be retarding the employee’s performance. Irrespective of how employees might react to
allegations of incompetence, an onus rests on them to co-operate with the employer during the assessment phase. 42
3.3 Initial warning
Employees must be warned before action is taken against them for poor work performance. 43 Such a warning should contain a
clear indication that the employee’s performance does not meet the standard required by the employer and notice that henceforth
the employee’s performance will be monitored. The notice should indicate the respects in which the employee’s performance is
wanting. At this stage, the warning is provisional; it is aimed at correction and does not amount to a disciplinary penalty.
The courts recognise that warnings – or, for that matter, counselling and other preliminaries – for defective performance are
unnecessary in certain circumstances. Where the act or omission has serious consequences, the employer cannot reasonably be
expected to risk the possibility of repetition. Unwillingness on the part of employees to co-operate with the employer indicates that
the employment relationship has been damaged or even destroyed, and that no purpose would be served by giving employees
further opportunities to reform. Seniority of status indicates that the employees concerned ought to have been capable of judging
the employer’s standards for themselves. 44
Counselling entails discussing the matter with poorly performing employees with a view to alerting them to their deficiencies,
hearing the employees’ explanations, and seeking mutually acceptable solutions to the problems that may have been identified. The
purpose of counselling is to motivate the employee to improve and to alert the employer to remedial steps that may be necessary.
As the term implies, counselling is not a one-way process; the employee should also participate and, if possible, suggest ways in
which the problem can be resolved.
4th Ed, 2022, ch 14-p 344
The extent of assistance – in the form of additional tools or support, training or guidance – that might be necessary should emerge
from the counselling session.
The Code of Good Practice requires ‘appropriate’ assistance and support. The choice of this word is intended to convey that the
extent of assistance that must be provided by the employer need only be reasonable in the circumstances. For example, an
employer is not obliged to send a qualified accountant back to university to acquire a fresh degree or to provide an employee with
basic training. 45 Such instruction, guidance and training as may reasonably be required need be aimed only at overcoming
shortcomings employees have experienced as a result of changes to their working environment, such as retraining in the use of new
technologies or operating techniques, or guidance in the use of new products or operating manuals. An employer who knowingly
appoints employees to positions for which they are not qualified is bound to take more extensive remedial action if the employee
cannot cope. 46
How much time employees should be given to overcome shortcomings depends on the circumstances. Relevant factors include the
nature of the job, the employee’s length of service and past performance, and the employer’s practice in this regard. The test for
whether an employee has been given a reasonable opportunity to improve is objective; it is not fair to saddle an employer with a
truly hopeless employee for longer than it need tolerate an employee with fewer shortcomings who fails to improve.
3.6 Final warning
A final warning in this context bears the same meaning and serves the same purpose as any final warning – to alert the employee
to the prospect that one further lapse will result in dismissal. 47 In the poor work performance context, the final warning should
indicate to employees that, according to the latest assessment, their performance is still lacking; it should also indicate in which
respect performance is deficient, and inform the employee that a hearing will follow a further slip, and that dismissal might follow if
there is no improvement. 48
The hearing that forms the final stage of the poor work performance procedure should take the same form as a hearing for a case
of misconduct, even though it is, strictly speaking, not ‘disciplinary’ in nature. To signify the special nature of these proceedings,
they are often termed ‘incapacity inquiries’. The purpose of these inquiries is to establish whether the employee is capable of
attaining an acceptable
4th Ed, 2022, ch 14-p 345
standard of work. 49 Although employees are not ‘charged’ with failing to comply with a performance standard, they are still
entitled to know the standard they were required to meet.
An employee attending a performance inquiry is also entitled to other procedural rights, such as the right to be represented, to
cross-examine, to present argument, and to be heard impartially. 50 If employees have been properly counselled and are aware of
their alleged shortcomings, a detailed notice setting out the alleged shortcomings is not required. 51
It may also be advisable in some cases of alleged poor work performance for the presiding officer to be assisted by an
independent specialist who is familiar with the nature of the employee’s work and capable of understanding any special problems
connected with it. The onus still rests on the employer to prove that the employee’s work performance was lacking and that
dismissal is the only appropriate solution.
In cases involving poor work performance, the extent of attempts made by the employer to assist the employee is critical to
evaluating whether dismissal is the appropriate solution. If the employer has attempted all reasonable possible alternatives,
dismissal will be accepted as the only remaining option. The only further issue might then be whether the employer should retain
the employee in service in a different position. The courts and arbitrators have responded with varying degrees of sympathy to the
argument that dismissals of employees for poor work performance were unfair because the employers could – or should – rather
have found alternative positions for them.
Another purpose served by a hearing before dismissal for poor work performance is to enable the employee to suggest solutions
other than dismissal. The onus rests on the employee to make such suggestions. However, it remains for the employer to
demonstrate that the possibility of alternatives was at least considered and that there were no suitable positions available.
There is no reported judgment in which it has been held that employers are obliged to consider re-employment if a suitable
alternative position becomes available later. However, where employees have been recently transferred or promoted to new
positions from other posts in which they had performed adequately, the obligation to seek out and offer suitable lower positions
may be more pressing.
The Code of Good Practice does not expressly provide, as it does in the case of dismissals for misconduct, that employers may in
cases of dismissal for poor work performance dispense with pre-dismissal procedures ‘in exceptional
4th Ed, 2022, ch 14-p 346
circumstances’. 52 However, there are a number of judgments and awards in which the courts and arbitrators have condoned the
employer’s failure to comply with the requirements of counselling, assistance and the audi alteram partem rule before dismissing
incompetent employees. 53 Depending on how poor the work demonstrated by the employee’s acts or omissions, or of the
employee’s willingness to co-operate, an attenuation of pre-dismissal procedures may also be accepted in cases of poor work
performance.
39 See Carr v Fisons Pharmaceuticals (1995) 16 ILJ 179 (IC ).

40 C ameron ‘The right to a hearing before dismissal – problems and puzzles’ (1988) 9 ILJ 147 at 172–3.
41 See, for example, Gostelow v Datakor Holdings t/a Corporate Copilith (1993) 14 ILJ 171 (IC ).
42 If employees refuse to co-operate, their dismissals may be upheld: BCAWU v West Rand Brickworks (1984) 5 ILJ 69 (IC ).
43 Visser v Safair Freighters (1989) 10 ILJ 529 (IC ).
44 Stevenson v Sterns Jewellers (1986) 7 ILJ 318 (IC ); Blue Circle Materials v Haskins (1992) 1 LCD 6 (LAC ); Somyo v Ross Poultry Breeders
[1997] 7 BLLR 862 (LAC ).
45 TEUSA obo Hibbert / Chalmers Engineering [1999] 3 BALR 369 (IMSSA).
46 Buthelezi v ABI (1999) 20 ILJ 2316 (LC ).
47 The purpose of warnings is discussed in C hapter 8.
48 Naicker / Lever Ponds [1998] 10 BALR 1355 (IMSSA). See C hapter 8 of this volume as well as Grogan Employment Rights 3 ed (Juta 2019)
C hapter 6.
49 Camhee / Parkmore Travel [1997] 2 BLLR 180 (C C MA).
50 For an example of how such an inquiry should not be conducted, see White / Medpro Pharmaceuticals [2000] 10 BALR 1182 (C C MA). The
‘hearing’ was conducted in a coffee shop, within earshot of waiters, and the ‘accused’ employee was made to sit in the aisle, a foot below the level of her
interrogators.
51 Van Aarde v Suid-Afrikaanse Nasionale Lewensassuransie Maatskappy (1994) 3 LCD 375 (IC ).
53 See, for example, Somyo v Ross Poultry Breeders [1997] 7 BLLR 862 (LAC ); Abeldas v Woolworths [1995] 12 BLLR 20 (IC ).
Dismissal / Chapter 15 Dismissal for incapacity
Chapter 15
Dismissal for incapacity
4th Ed, 2022, ch 15-p 347
1. Introduction
2.2 Incompatibility
2.3 Addiction
1. Introduction
In an early case in which the industrial court dealt with a dismissal arising from an employee’s absence from work because of illness,
it was held that it was more appropriate to deal with the matter on the basis of ‘reasonableness’, rather than by applying the
contractual principle of impossibility of performance. 1 The court concluded that dismissals in these circumstances were in truth for
operational requirements, as the employee had been dismissed because he was unable to fulfil his contractual obligations. In later
cases the court dealt with dismissals arising from illness or injury as cases of ‘incapacity’, whether the employee was prevented
from actually coming to work or the employee was capable of attending work but incapable of performing his or her normal duties.
The drafters of the LRA and the Code of Good Practice: Dismissal have adopted this approach.
The following general guidelines for dealing with employees who are unable to perform their work due to illness or injury are set
out in item 10 of the code:
4th Ed, 2022, ch 15-p 348
(1) 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 the 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. When alternatives are considered, relevant
factors might include the nature of the job, the period of absence, the seriousness of the
illness or injury and the possibility of securing a temporary replacement for the ill or injured
employee. In cases of permanent incapacity, the employer should ascertain the possibility of
securing alternative employment, or adapting the duties or work circumstances of the
employee to accommodate the employee’s disability.
(2) In the process of the investigation referred to in subsection (1) the employee should
be allowed the opportunity to state a case in response and to be assisted by a trade union
representative or fellow employee.
(3) The degree of incapacity is relevant to the fairness of any dismissal. The cause of the
incapacity may also be relevant. In the case of certain kinds of incapacity, for example
alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps for an
employer to consider.
(4) Particular consideration should be given to employees who are injured at work or who
are incapacitated by work-related illness. The courts have indicated that the duty on the
employer to accommodate the incapacity of the employee is more onerous in these
circumstances. 2
Item 10 encapsulates several principles which have emerged from South African case law involving dismissals for incapacity arising
out of illness or injury: 2
• The employer must ascertain whether the employee is capable of performing the work for which he or she was employed.
• If employees are unable to perform their normal duties fully, the extent of their incapacity, and its likely duration, must be
established.
• The employer is then obliged to investigate whether the employee’s duties can be adapted to accommodate the disability.
• If employees cannot be placed in their former positions, their employers must ascertain whether alternative work can be found
for them, even if at reduced remuneration.
Only once these steps have been taken will dismissal of an injured or sick employee be deemed substantively fair. Although in cases
of dismissal for reasons related to the illness or injury of the employee it makes little sense to speak of procedural fairness as an
independent requirement, the code indicates the steps an employer should take before dismissing an employee for this reason. The
guidelines are set out in item 11:
4th Ed, 2022, ch 15-p 349
Any person determining whether a dismissal arising from ill health or injury is unfair should
consider—
(a) whether or not the employee is capable of performing the work; and
(b) if the employee is not capable—
(i) the extent to which the employee is able to perform the work;
(ii) the extent to which the employee’s work circumstances might be adapted
to accommodate disability, or, where this is not possible, the extent to
which the employee’s duties might be adapted; and
(iii) the availability of any suitable alternative work.
Failure to comply with the requirements of the code may render a dismissal for incapacity both procedurally and substantively
unfair. 3
1 NUM v Rustenburg Base Metals Refiners (1993) 14 ILJ 1094 (IC ).

2 The drafters of the code and the courts have taken as their point of departure the sentiments expressed by the English Employment Appeal
Tribunal in Lynoch v Cereal Packaging [1988] IRLR 510 at 512.
3 IMATU obo Strydom v Witzenberg Municipality (2012) 33 ILJ 1081 (LAC ); Parexel International v Chakane NO (2018) 39 ILJ 644 (LC ).

The code provides that the incapacity must arise from ill health or injury. Any physical or mental incapacity falls under this head,
however occasioned. But a distinction must be drawn in this context between incapacity and disability. The EEA defines ‘people
with disabilities’ as ‘people who have a long-term or recurring physical or mental impairment which substantially limits their
prospects of entry into, or advancement in, employment’. 4 Guidelines for the treatment of people with disabilities are set out in a
special code, 5 which also expands on the definition. 6 An incapacitated employee may also be ‘disabled’ in the statutory sense
(see below).
The onus rests on the employee to provide evidence that he or she was indeed incapacitated. Where an employee failed to do
so, the court upheld his dismissal for misconduct. 7
While it remains permissible to terminate the services of disabled employees, 8 the employer’s duty to accommodate a disabled
employee is more onerous than in the case of an incapacitated employee. The Labour Court has suggested that the only defence in
the case of dismissals of disabled employees is to prove that retaining the employee will impose undue hardship on the employer. 9
Arbitrators and judges have been prepared to treat as ‘incapacitated’ employees unable to work for reasons unrelated to ill health
or injury. The enactment of legislation
4th Ed, 2022, ch 15-p 350
disqualifying an employee from performing work has also been accepted as creating a form of incapacity. 10 So, too, has the
removal of a permit to perform the work concerned. 11 In such cases, it has been held that the employer is required to assist the
employee to regain the permit. 12
ARMSCOR v CCMA provides an example of ‘statutory’ incapacity. 13 The respondent employee was employed as a security
manager at ARMSCOR. As such, he was subject to periodical security checks by the Intelligence Division of the SANDF, and it was
a condition of his employment that his certification be renewed each time. After 30 years, the SANDF declined to renew the
employee’s security certificate. His appeals to the Intelligence Division went unanswered. Although neither ARMSCOR nor the
employee had the faintest idea why he had suddenly become a security threat, his services were terminated. A CCMA commissioner
rejected ARMSCOR’s argument that the employee had not been dismissed, and another ruled the dismissal unfair and ordered
ARMSCOR to reinstate the employee. On review, ARMSCOR conceded that the dismissal was procedurally unfair and sought only to
have the ruling that the dismissal was substantively unfair set aside.
The Labour Court accepted that incapacity can arise from any condition or circumstance that renders an employee incapable of
performing his work. Given the nature of the employee’s work, a requirement that he should not constitute a security risk was
eminently reasonable. For as long as the employee did not have a security clearance, ARMSCOR could not lawfully employ him. In
the light of ARMSCOR’s concession that the dismissal was procedurally unfair, the employee was awarded compensation of eight
months’ salary.
The LAC found ARMSCOR’s defence had always been based on supervening impossibility of performance, which amounted to a
form of incapacity. 14 But this did not make his dismissal fair. Since the employee’s appeal against the refusal to renew his security
clearance had never been completed, it was impossible to determine the substantive fairness of the dismissal while the grounds for
refusing the security clearance remained unknown. As it could not be established whether the employee’s incapacity was
permanent, the conclusion that the dismissal was substantively unfair was irresistible. Moreover, ARMSCOR had retained some
employees in service without security clearances. However, the LAC agreed that an order of reinstatement was neither legally
competent nor reasonably practicable. The employee’s compensation was increased to 12 months’ salary.
The difference between dismissal for incapacity and for the employer’s operational requirements surfaced again in First National
Bank, a Division of First Rand Bank v CCMA. 15 This case involved the dismissal of a financial advisor who, despite 15 attempts,
could not manage to pass a mandatory examination which
4th Ed, 2022, ch 15-p 351
all financial advisors are required to pass by the Financial Advisory Intermediary Services Act in order to dispense financial advice. A
CCMA commissioner ruled that the employee was dismissed for operational reasons, not for incapacity and from that finding jumped
to the conclusion that the dismissal was unfair. Relying on Tubatse Ferrochrome and ARMSCOR, the Labour Court held that the
employee had been dismissed for incapacity, and that the bank had done everything that could reasonably be expected of it to
pass the examination. The dismissal was ruled both substantively and procedurally fair. Another form of ‘legal’ incapacity arises
when employees brush with the law and land up a police cell or jail. This was the situation which ended up in the LAC in Samancor
Tubatse Ferrochrome v MEIBC. 16 The respondent employee was held by the police on suspicion of having participated in an armed
robbery. After six months, the employer sent him a letter advising him that he had been dismissed for ‘operational incapacity’. An
arbitrator and the Labour Court, on review, were unimpressed by this cumbrous term. Both the arbitrator and the judge held that
the only forms of incapacity that can justify dismissal are those arising from ill health, injury or poor work performance. Since the
employee’s ‘incapacity’ was not caused by any of these factors, they concluded that the employee had not been dismissed for a
fair reason. However, the LAC found that the dismissal was merely procedurally unfair, because employers are not expected to put
up with an employee’s absence, for whatever reason, indefinitely. 17
The Labour Court has since upheld the dismissal of an employee after he was released from prison because the offence for which
he was convicted resulted from abuse of his office. 18
The Covid-19 pandemic saw the emergence of a new form on ‘incapacity’: the refusal by employees to be vaccinated against
the disease. The first case in which the dismissal of an anti-vaxxer came before the CCMA was classified as such and ruled fair. 19
2.2 Incompatibility
Although incompatibility is not specifically mentioned as a possible ground of dismissal in the LRA, it has been held that employees’
inability to relate to their employer or colleagues must be treated as a form of incapacity. 20 This is not an absolute rule, however.
Where the incompatibility arises from conduct the employee is able to control, it may well constitute misconduct. 21
2.3 Addiction
Particular mention is made in item 10 of the Code of Good Practice: Dismissal of employees who are addicted to alcohol or narcotic
drugs, in which case
4th Ed, 2022, ch 15-p 352
employers are advised to consider counselling and rehabilitation. 22 Rehabilitative steps need not be taken at the employer’s
expense unless provision is made for them in a medical aid scheme. 23
4 Section 1.
5 See the C ode of Good Practice on Employment of Persons with Disabilities (GN 1085 in GG 39383 of 9 November 2015).
6 Item 5 of the C ode of Good Practice on Employment of Persons with Disabilities.
7 Pahlana v PetroSA (2022) 43 ILJ 212 (LC ).
8 Item 12 of the C ode of Good Practice on Employment of Persons with Disabilities. The guidelines for pre-termination steps are set out in item 11.
9 See Standard Bank of SA v CCMA (2008) 29 ILJ 1239 (LC ).
10 Mhlungu and Gremick Integrated Security Specialists (a division of Servest) (2001) 22 ILJ 1030 (C C MA).
11 UASA obo Fortuin and Golden Arrow Bus Services (2004) 25 ILJ 1142 (BC A) (diesel manager unable to work because deprived of his
professional driving permit); Samancor v MEIBC (2009) 30 ILJ 389 (LC ) (employee held in police custody).
12 Golden Arrow Bus Services supra.
13 (2016) 37 ILJ 1127 (LC ).
14 Solidarity v ARMSCOR (2019) 40 ILJ 535 (LAC ).
15 (2017) 38 ILJ 2545 (LC ).
16 (2010) 31 ILJ 1838 (LAC ).
17 Samancor Tubatse Ferrochrome v MEIBC (2010) 31 ILJ 1838 (LAC ). This judgment was overturned on appeal on a technical ground (see NUM v
Samancor (Tubatse Ferrochrome) (2011) 32 ILJ 1618 (SC A)), but the LAC ’s judgment on the merits stands. See now Glencore Operations SA v
CCMA (2021) 42 ILJ 2446 (LC ).
18 Molehe v PHSDSBC (2019) 40 ILJ 2584 (LC ).
19 Dreyden and Duncan Korabie Attorneys (2022) 43 ILJ 1405 (C C MA); Mulderij and Goldrush Group (2022) 43 ILJ 671 (C C MA).
20 Subrumuny and ABI (2000) 21 ILJ 2780 (ARB); Jardine and Tongaat Hulett Sugar (2002) 23 ILJ 547 (C C MA). Incompatibility is further discussed
in C hapters 16 and 21.
21 As was found to be the case in SARU v Watson (2019) 40 ILJ 1052 (LAC ).
22 For a detailed discussion of the treatment of alcoholism in the workplace, see McC ann et al Alcohol, Drugs & Employment 2 ed (Juta 2011).
23 See, for example, Bennett and Mondipak (2004) 25 ILJ 583 (C C MA) (employee suffering nervous breakdown arising from job-related stress).

The employer is required to determine the nature and severity of the employee’s incapacity and the employee’s prognosis.
Management’s duty to acquaint itself properly with the employee’s medical condition is partly a substantive and partly a procedural
issue.
Whatever the cause of the incapacity, the onus rests on the employer to prove that the employee is in fact incapacitated. How
difficult it may be to do so appears from Hoffmann v SAA. 24 In that case, SAA had refused to appoint Mr Hoffmann as a cabin
attendant because he was HIV-positive. However, the court’s observations on the employer’s reasons are equally applicable to
dismissals. The court made it clear that mere assumptions about an employee’s abilities to perform work if they have a particular
disease will not pass muster when it comes to proving incapacity. Hoffmann argued that his constitutional rights to dignity and
equality had been breached by SAA. The airline argued in the High Court that the limitation of Hoffmann’s rights was justified
because, so it said, HIV-positive people could not be vaccinated against yellow fever, which was a requirement for all airline
personnel flying on certain routes. There was accordingly an unacceptably high risk that HIV-positive crew would contract yellow
fever, and endanger themselves, passengers and other crew members. The Constitutional Court pointed out that, on SAA’s own
evidence, only persons who have advanced to a certain stage of HIV infection cannot be inoculated against yellow fever. The
court concluded that Hoffmann had been excluded from employment because of nothing more than the ‘deep anxiety and
considerable hysteria’ caused by the HIV/Aids pandemic. 25 This reasoning would also have applied had Hoffmann been dismissed
because of his HIV status. It may also apply to those dismissed for refusing to be vaccinated for Covid-19.
The Hoffmann judgment did not deal with the rights of employers to exclude candidates for employment, or to dismiss HIV-
infected employees who have reached a stage where they are unable to work efficiently or to continue working. Although the court
suggested that an employer’s obligation to protect persons already in employment is greater than its obligation to job applicants,
nothing said in the judgment precludes employers from dismissing employees who are incapacitated by HIV/Aids, or any other
illness. Nor does the EEA do so, although it prohibits discrimination against employees who are infected with that illness.
4th Ed, 2022, ch 15-p 353
The LRA provides that the prohibition on discrimination does not apply if an action against an employee is justified by the
‘inherent requirements of the job’. 26 Presumably, the arguments advanced by SAA in Hoffmann would have been accepted had
Hoffmann been in employment as a cabin attendant and reached a stage of the disease which precluded him from having yellow
fever injections and performing his job properly. The applicable legislation does not at present afford greater protection against
dismissal to employees infected by HIV/Aids than employees suffering from any other form of chronic illness. An example is an
employee who unsuccessfully alleged HIV discrimination, when in fact the employer was unaware of his positive status. The reason
for dismissal was excessive absenteeism. 27
Employees who commit what would normally be regarded as misconduct because of a psychological condition, such as bipolar
syndrome, yield hybrid cases. Employers are not expected to be psychiatrists, but where employees produce expert evidence linking
their conduct to a mental problem, they should take it seriously. In one case, 28 a psychiatrist was able to satify the Labour Court
that his patient’s erratic behaviour was the result of bipolar disorder, but that it could be corrected with medication.
Whatever the nature of the illness or injury, the employer must attempt to assess the severity and nature of the incapacity and
the employee’s prognosis. Where an apprentice was dismissed after being diagnosed with epilepsy, the dismissal was ruled unfair
because the employer had not attempted to establish the severity of his condition. 29 The arbitrator went further in another case
involving an epileptic employee, holding that the employer’s failure to obtain advice from an occupational physician rendered the
employee’s dismissal unfair. 30 This implies that in the process the employer must consult the employee.
Counselling or consultation in this context is not to be confused with disciplinary action. The purpose of counselling is not to
devise a ‘punishment’ for the employee, but rather to mutually consider how the employee might avoid or overcome the incapacity
with the aid, if necessary, of medical assistance, or to find a possible cure. In the course of discussion, the parties may also devise
methods by which the adverse effects of the employee’s incapacity on the employer’s business might be reduced. If, ultimately, the
employees concerned are warned that further absences due to illness might imperil their jobs, consultation might still urge the
employee to do whatever possible to remedy the problem.
Where an applicable collective agreement or code so provides, an incapacitated employee’s union representative should be
invited to counselling sessions. 31 Consultation with medical advisers may be advisable in some cases. Employers are entitled to
request employees to undergo medical examinations, but cannot compel them to do so. Testing for HIV/Aids, for example, is
expressly forbidden except with the consent of the Labour Court. 32 If employees refuse to undergo a medical examination, their
employers must take their decision on the available evidence.
4th Ed, 2022, ch 15-p 354
Employees are also obliged to co-operate in the counselling process; if they do not, the employer may decide for itself. 33
A hearing called to decide the fate of an incapacitated employee is not, from a procedural point of view, treated as strictly as a
disciplinary inquiry. Even where an employee was able to prove that the decision to dismiss him was taken before the hearing, an
arbitrator ruled that the dismissal was nevertheless fair because the employee had been given a fair opportunity to state his case
in earlier counselling sessions. 34
Where the employer has an employee assistance programme, the dismissal of an employee who had been referred for treatment
before the programme was completed was ruled unfair. 35
24 (2000) 21 ILJ 2357 (C C ).

25 Spoornet / TWU obo Du Plessis [1998] 7 BALR 973 (IMSSA).
26 See C hapter 7.
27 Choene v Mitsui & Co Southern Africa (2012) 33 ILJ 2872 (LC ). It may be, however, that the dismissal of a physically fit person because he or
she is HIV-positive is automatically unfair. See C hapter 7.
28 Western Cape Nature Conservation t/a Cape Nature v CCMA (2022) 43 ILJ 1394 (LC ).
29 NUMSA obo Dlavana / Xstrata SA Wonderkop [2001] 4 BALR 385 (C C MA).
30 NUMSA obo White and Lear Automotive Interiors (2005) 26 ILJ 1816 (BC A).
31 NUMSA obo Dlavana / Xstrata SA Wonderkop [2001] 4 BALR 385 (C C MA). Medical testing is prohibited by s 7 of the EEA unless it is permitted by
legislation or justifiable ‘in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent
requirements of a job’.
32 Section 7(2) of the EEA. For an analysis of the circumstances in which the court will grant permission, see Joy Mining Machinery a division of
Harnischfeger (SA) v NUMSA (2002) 23 ILJ 391 (LC ).
33 In NUM v Vryheid (Natal) Railway Coal & Iron Company (1986) 7 ILJ 587 (IC ) the court took into account the unreasonable attitude of an
employee who had become partially deaf due to an ear infection but had rejected treatment offered by the employer and had made no attempt to
arrange treatment himself. And in Du Plessis / Eskom [2001] 5 BALR 427 (P) an arbitrator held that the employer could not be blamed for failing to
consult an employee who refused to resume work after failing to persuade the pension fund to allow her to retire on a disability pension.
34 Thabane / Thales Geosolutions [2002] 3 BALR 331 (C C MA).
35 Atlantis Foundries v NUMSA obo Brown (2020) 41 ILJ 2813 (LC ).

How serious must employees’ illnesses or injuries be before their employers can justifiably dismiss them? The Code of Good Practice:
Dismissal distinguishes between temporary absences due to illness or injury and those that endure for a time that is ‘unreasonably
long in the circumstances’. Generally, dismissal is not warranted for an illness or injury that results in relatively brief absences,
except if the absences occur frequently. This is why employers are expected to make serious efforts to establish whether the
employee’s incapacity is temporary or permanent. 36
Many companies have absence policies that provide for dismissal for repeated brief absences, even if they are occasioned by
different illnesses or injuries. 37 The courts have held that dismissal is in principle permissible in cases of repeated absences, even if
they are for medical reasons covered by medical certificates. In such cases employees must still be counselled and consulted. 38
When an employee’s absence can be deemed ‘unreasonably long’ depends on the circumstances. These include the importance
of the employee’s job, the length of the employee’s service, the ease with which the employee can be temporarily replaced, the
financial capacity of the employer to make arrangements to replace
4th Ed, 2022, ch 15-p 355
the absent employee, the prospects of recovery, and the effect of the employee’s absence on other employees. 39
An employer should not seize on employees’ incapacity to dismiss them for other reasons. An employee who was dismissed for
becoming ‘aggressive’ during an incapacity inquiry was held to have been unfairly dismissed because the reason for the dismissal
had nothing to do with the inquiry. 40
The provisions of the BCEA or any sectoral determination, collective agreement or contract of employment must also be taken
into account when deciding to take action for absenteeism arising from incapacity. While it has been held that employees may be
dismissed for incapacity even though their sick leave entitlement has not been exhausted, 41 dismissal should generally be reserved
for cases in which sick leave is abused or when the employee’s illness is expected to exceed the statutory or contractual leave
period. Otherwise, the BCEA gives all employees a right to 36 days’ paid sick leave in each three-year cycle. Like employees on
maternity leave, sick or injured employees should be protected against dismissal before that period is exceeded, provided that they
are genuinely incapacitated during periods of absence. 42
Sick leave is not a right. It may be taken only when employees are incapacitated by illness to an extent that they are unable to
work. The legislature has made some attempt to prevent abuse of sick leave. In terms of s 23 of the BCEA, employers may insist on
proof that the employee is unable to work. Should employers do so, and employees fail to produce an acceptable medical
certificate, they are not entitled to paid sick leave if they have been absent from work for more than two consecutive days, or for
more than two days in an eight-week period. The certificate must be issued by a registered medical practitioner or any person
certified to diagnose and treat people. Employees who live on the employer’s premises are entitled to assistance to visit a medical
practitioner to obtain a certificate. However, a medical certificate is not irrefutable proof that the employee had adequate reason
to stay away from work. 43 Employers are generally entitled to insist that an employee consult a medical practitioner of their
choice. 44 An employee on unpaid leave is not required to produce a medical certificate. 45
36 Exarro Coal t/a Grootgeluk Coal Mine v Maduma (2017) 38 ILJ 2531 (LC ).
37 Such a policy was held fair in NUMSA obo Walton / Goodyear [2000] 12 BALR 1416 (C C MA). It will obviously be fair if, as in many cases,
absence policy is agreed to by employees’ unions.
38 AECI Explosives (Zomerveld) v Mambalu (1995) 16 ILJ 1505 (LAC ). The following test is suggested in Hendricks v Mercantile & General
Reinsurance Co of SA (1994) 15 ILJ 304 (LAC ) at 314B: ‘[W]hether because of the employee’s absences and incapacity, having regard to the frequency
and duration of such absences and the effect they have on his co-workers’ morale, the employer would in fairness not have been expected to wait any
further before considering dismissal.’ The court found that the test might be applied even before the employee has exhausted his or her contractual or
statutory leave.
39 In NUM v Samancor (Tubatse Ferrochrome) (2011) 32 ILJ 1618 (SC A) the employee was incarcerated for 150 days. His dismissal was ruled
unfair because he was dismissed after being held for only 10 days. The SC A was unimpressed with the company’s argument that at that stage there was
no way to establish how long the employee would be absent.
40 Leadbeter / O’Hagan’s Franchise Marketing [1999] 9 BALR 1034 (C C MA).
41 AECI Explosives (Zomerveld) v Mambalu (1995) 16 ILJ 1505 (LAC ).
42 See further Grogan Employment Rights 3 ed (Juta 2019) C hapter 4.
43 See, for example, Jacobs / JDG Trading [2004] 9 BALR 1045 (P). Albeit in another context, see also the remarks on the veracity of cryptic and
unconfirmed medical certificates in Old Mutual Life Assurance Co SA v Gumbi (2007) 28 ILJ 1499 (SC A). However, a medical certificate need not
necessarily be confirmed by the medical practitioner where it merely corroborates direct evidence: see Le Monde Luggage t/a Pakwells Petje v Dunn
NO (2007) 28 ILJ 2238 (LAC ).
44 There have been cases in which it has been held that employees cannot be forced to undergo a medical examination: see, for example,
Makhale v Vitro Building Products [1996] 4 BLLR 506 (IC ). Where the purpose is simply to confirm a claim of illness, the employee declines at his own
risk.
45 Kievits Kroon Country Estate v Mmoledi (2012) 33 ILJ 2812 (LAC ).
4th Ed, 2022, ch 15-p 356
Possible alternatives to dismissal include adapting employees’ current duties so that they are able to perform them despite their
disabilities, providing employees with reasonable assistance and equipment to help them cope with those duties, or finding
employees alternative work with which they can cope notwithstanding the disability. If the latter course is adopted, it is
acceptable to reduce the employee’s remuneration to that normally attached to the alternative position.
How important it is to make a genuine attempt to find alternative employment for an incapacitated employee emerged from
General Motors v NUMSA obo Ruiters. 46 Mr Ruiters, a team leader on the production line, injured his wrist during a rugby game.
The injury prevented him from working on the line, as he had to do when standing in for absent workers. Ruiters was moved to
another team less afflicted with absenteeism. But then both his wrists became painful, and he could not perform any physical work.
After looking for alternative positions, General Motors convened an incapacity inquiry, pronounced the employee permanently
incapacitated and dismissed him. A CCMA commissioner ruled the dismissal fair, but the award was set aside on review by the
Labour Court and remitted to the commission to be heard by another commissioner. General Motors appealed against that order.
The LAC accepted that General Motors’ ‘sick absence policy’ was designed to comply with the requirements of items 10 and 11 of
the Code of Good Practice. The company therefore recognised that non-compliance with its policy or the code would render a
dismissal for incapacity unfair. Ruiters’ sick leave had exceeded that allowed by the policy, and he had not sought help.
But the main issue was whether sufficient effort had been made to find him an alternative post. The LAC held that General
Motors had not tried hard enough to find an alternative position, and that its claims to the contrary indicated bad faith. General
Motors’ own doctor had expressed the view that Ruiters could have been accommodated as a driver. The Labour Court had
therefore correctly concluded that the commissioner had failed to note the lack of evidence regarding attempts to find alternative
work. By ignoring that material issue, the commissioner had acted unreasonably.
The obligation to consider alternative employment for an incapacitated employee was pushed to the extreme in Parmalat SA v
CCMA. 47 After being diagnosed with a psychiatric illness, Mr Scharneck, a junior laboratory assistant (JLA) at Parmalat, took sick
leave for more than two years. When he reported for work, Parmalat considered him unfit to work as a JLA, and gave him a position
as a general worker and reduced his pay accordingly. Scharneck referred a dispute regarding demotion to the CCMA, but withdrew
that referral after the parties concluded a settlement agreement in terms of which the company would determine whether the
employee was fit to resume work as a JLA, failing which, if an alternative position could not be identified, Parmalat would be entitled
to terminate the contract. A hearing was duly convened, and Parmalat dismissed Scharneck. A CCMA commissioner held that
Scharneck was not fit to work as a JLA, and found that Parmalat had complied
4th Ed, 2022, ch 15-p 357
with all procedures required for an incapacity dismissal, with one exception – the company had failed to consider whether there was
any alternative work available, in particular as a general worker. The commissioner reinstated Scharneck as a general worker. On
review, Parmalat argued that the commissioner had erred by finding that, given the history of the matter, it was obliged even to
consider an alternative, let alone retaining Scharneck as a general worker.
The court agreed that the primary focus of the internal inquiry was on whether Scharneck was fit to resume work as a JLA. It
was clear that he did not want to resume work as a general worker – after all, he had referred a dispute about being relegated to
that position to the CCMA. The commissioner’s conclusion that the employee should have been offered a post of general worker
was also at odds with the general test for what constitutes ‘suitable alternative work’. However, the settlement agreement had
affirmed that the incapacity hearing would be conducted in accordance with the code. Alternatives had not been discussed with
Scharneck during the hearing. The alternative of general work should at least have been discussed with Scharneck, and failure to
do so rendered the dismissal procedurally unfair. But the court could not understand why the commissioner could have confidently
reinstated Scharneck as a general worker when there was no clear indication by him during the arbitration of his willingness to
accept that alternative. It was one thing for the commissioner to conclude that Parmalat acted unfairly by not discussing
alternatives at the inquiry; it was quite another thing for the commissioner to have concluded that Scharneck was willing to accept
the alternative of general work. That conclusion could only have been justified if Scharneck had emphatically stated that he was
prepared to accept that alternative. He had not done so. Parmalat was ordered to pay Scharneck six months’ salary.
Employers are not required to go to unreasonable lengths to help incapacitated employees to cure their ailments. A commissioner
was held to have overreached herself by finding that an employer should have taken steps to ensure that the employee lost
weight, see a biokineticist and adapt her pain medication. The commissioner had also erred by finding that the company should
have bought the employee a new chair, which would not have helped. 48
The obligation to give counselling and assistance applies also to labour brokers. For example, in NUMSA obo Swanepoel and Oxyon
Services, 49 the arbitrator held that the labour broker was obliged to attempt to persuade its client to be more patient with an
employee incapacitated by a back injury.
46 (2015) 36 ILJ 1493 (LAC ).

47 (2017) 38 ILJ 2586 (LC ).
48 Legalwise Insurance SA v Kleinot NO (2020) 41 ILJ 2862 (LC ).
49 (2004) 25 ILJ 1136 (BC A).

In summary, then, it will be fair to dismiss employees for incapacity if:
• The employees have been counselled and their medical conditions and the problems arising from them have been discussed
with the employees.
• The employees’ medical conditions make it impossible for the employees to perform their normal duties.
4th Ed, 2022, ch 15-p 358
• The employees’ prognoses are poor.
• The employees have had a fair opportunity to contest the employer’s conclusions about their medical conditions and
prognoses.
• The employees’ working conditions cannot be adapted or alternative work is not available.
The foundational consideration is whether, despite the employer’s attempts to comply with the above requirements, the employer
can reasonably be expected to put up with the employee’s continuing absence. 50
50 Parexel International v Chakane NO (2019) 40 ILJ 2334 (LAC ); Adcock Ingram Healthcare v Zinyana (2020) 41 ILJ 2165 (LC ).

As in any form of dismissal, incapacitated employees should be given an opportunity to be heard before being dismissed. The
procedure begins with counselling, in which the nature of the problem is discussed with the employee and remedial measures
suggested. Counselling should not be a one-off event; depending on the nature of the employee’s problem, it may well have to
continue for as long as measures short of dismissal are attempted. However exhaustive the counselling process may have been,
incapacitated employees are still entitled to make representations as to why they should not be dismissed, and to make final
suggestions on alternatives. The final hearing – normally termed an ‘incapacity inquiry’ – is convened for this purpose. While not a
disciplinary inquiry, an incapacity hearing should accord with the basic tenets of natural justice, and the presiding officer must
approach the matter with an open mind. 51
The obligation to comply with this procedure applies also to labour brokers, even where their clients threaten to cancel their
contracts if they do not remove incapacitated employees. 52
Incapacity is not a disciplinary offence, and may not be treated as such. Procedurally, to do so would permit the employer to
evade the requirements set by the code for dealing with incapacitated employees. 53
51 In Pahlana v PetroSA (2022) 43 ILJ 212 (LC ), the court held that there is no need to investigate whether there are possible alternatives to
dismissal if the employee fails to prove that his absence was due to incapacity. In such cases the employees may be dismissed for misconduct.
52 See Abels and Dialogue Group (2009) 30 ILJ 2167 (C C MA).
53 L S v CCMA (2014) 35 ILJ 2205 (LC ).

Incapacitated employees frequently apply for medical boarding in terms of the rules of the applicable pension fund. Although
applications for boarding usually have nothing to do with the employer, the employer must decide what do with the employee if the
fund rejects the application. This may create a problem for the employee, who will inevitably have made out a case that he is
incapable of
4th Ed, 2022, ch 15-p 359
continuing with meaningful work. The only option then will be for the employer to try to find alternative employment for the
employee.
The conundrum confronting employees who have already applied for medical boarding is illustrated by IMATU obo Strydom v
Witzenburg Municipality. 54 The case arose after Mr Strydom had plunged into depression as a result of being reduced in rank from
the post of town clerk to senior administrative officer after the merger of several municipalities. So severe was his depression that
he absented himself from work for nearly a year in total, then applied to be medically boarded. When that application was refused,
Strydom was called before an ‘incapacity inquiry’ and dismissed. A bargaining council arbitrator upheld the dismissal. On review of
the award, the court noted that employees in Strydom’s situation are caught in a classic catch-22 situation: when his application
for medical boarding failed, he had to claim that he could perform some work to avoid being dismissed for incapacity. As the court
noted, ‘[t]he more persuasive the application for medical boarding, the weaker the prospects of accommodating him in a way that
he would remain employed and earn a salary’. Strydom had sealed his own fate. According to medical opinions prepared by his own
doctors for the boarding application, his condition was inextricably linked to his work situation and would deteriorate. His
melancholia was aggravated by circumstances related to his job. The inescapable inference was that Strydom wished to escape
from work permanently, and had changed his tune only when that option was closed to him by the medical board. His dismissal was
confirmed.
A dispute concerning whether an employee is entitled to be boarded is actually between the employee and the pension fund
concerned, rather than between the employee and the employer. Such disputes fall outside the purview of labour law, and may be
referred to the Pension Funds Adjudicator. 55
54 (2008) 29 ILJ 2947 (LC ).

55 See C hapter VA of the Pension Funds Act 24 of 1956.
Dismissal / Chapter 16 Dismissal for operational requirements: Fair reason
Chapter 16
Dismissal for operational requirements: Fair reason
4th Ed, 2022, ch 16-p 360
1. Introduction
1. Introduction
Operational requirements have always been accepted as a ground for dismissal in South African law. Under the common law, the
employer had merely to give redundant employees notice. Under the 1956 LRA, the courts followed Part II of ILO Convention 158 as
a guideline. 1 That instrument recognises the right of employers to terminate the services of employees when operational
requirements so require, subject to certain provisos. Under the present Constitution, South Africa is obliged to give effect to this
and other ILO conventions.
Convention 158 deals with termination of employment for economic, structural or similar reasons – a ‘definition’ now incorporated
into the current LRA. 2 The definition is not watertight; it contemplates a range of circumstances related to the employer’s
operational needs. ‘Technological reasons’ refers to the introduction of new machinery or technological innovations that affect
working relationships by rendering jobs redundant or by requiring employees to adapt working methods to new technologies, even
when this alters their existing conditions of employment in the wide sense of that term. ‘Structural reasons’ include circumstances
in which an enterprise transforms itself into new working groups, or combines with others, a process commonly known as
‘restructuring’. ‘Economic reasons’ relate to the financial state of the enterprise. These are normally external factors such as the
state of the market and the economy, which impact on business profitability. A drop
4th Ed, 2022, ch 16-p 361
in demand for a company’s products may require budget cuts and the reduction of working hours. This can lead to job redundancy.
Common to the circumstances in which the law permits employers to dismiss for operational requirements – or, to use the
commonly used expression, to retrench – is that they all justify, in economic terms, a reduction in the workforce.
The tension between the drive for profit and the obligation to honour contractual commitments to employees may create conflict
in the workplace. Changes that are viewed by management as necessary for business efficiency, or even for the survival of the
enterprise, may be unacceptable to affected employees and their representatives, who may view proposed changes as attempts to
increase the company’s profitability at their expense. As will be seen in the following chapter, the legislature has now permitted
employees involved in large-scale retrenchments the right to strike to persuade the employer not to dismiss. 3
The courts must enter the debate over when retrenchment is allowed with great care. The number of employees required by an
employer to maintain production at the desired rate is an issue falling within the peculiar knowledge of management. Employees
naturally resent steps that threaten their job security, even if they are demonstrably for the good of the business and
shareholders. Retrenchment also has a significant social impact. The task of the courts is to balance the interests of employers and
employees in a manner that encourages employers not to resort to retrenchment lightly, and yet allows them sufficient latitude to
restructure, adjust production, and determine staffing levels according to the vagaries of the market and the economic
environment. How that balance is struck is determined by the degree to which lawmakers are prepared to regulate the job market
by protecting employees against retrenchment.
Retrenchments may be controlled by legislation, judicial intervention, or a combination of both. In South Africa the legislature
initially sought to ensure that part of the costs of retrenchment should be borne by the employers and the fiscus, in the form of
unemployment insurance alone. 4 This proved insufficient. Under the 1956 LRA, the industrial court used its unfair labour practice
jurisdiction to compel employers to bear a comparatively larger share of the costs of retrenchments, obliging them to pay
severance packages to retrenched employees and to make it more difficult for employers to retrench. 5
Ironically, these attempts to shift a greater share of the social costs of retrenchment onto the shoulders of employers may
increase unemployment in society as a whole. An increase in the cost of labour, and barriers to the dismissal of employees, may
dampen employers’ desire to expand their workforces, or may render some employers uncompetitive. Foreign investors may be wary
of investing in a country in which the labour-cost component of retrenchment is unacceptably high.
Under the 1956 LRA, judicial interference was limited to ensuring that retrenchment was used only for genuine operational
reasons, and that dismissals
4th Ed, 2022, ch 16-p 362
were resorted to only after the employer had consulted with the workforce with a view to mutually considering how dismissals could
be avoided or reduced, ways of ensuring that employees were fairly selected for retrenchment, and ways of alleviating the hardship
of those who were dismissed. In some cases, the courts required employers to pay severance pay to employees who had been
retrenched. But under the 1956 LRA the courts stopped short of passing judgment on the ‘merits’ of the decision to retrench,
except to the extent that they were prepared to intervene if it was proved that retrenchment was a smokescreen for dismissing
employees for reasons unrelated to the economic needs of the employer, as normally understood (see below).
The courts also generally accepted that, while their function was to ensure that the right to retrench had not been abused,
employers remained free to retrench even if this was the result of unwise business decisions, or even if wise business decisions
could still be implemented that would enable the employer to retain workers, or even if the only goal of retrenchment was to
increase profits. The courts considered that preventing employers from retrenching, or compelling them to grant more favourable
termination benefits, were matters to be resolved between employers and employees by consultation or, failing agreement,
industrial action. Beyond that, the only function of adjudication was to ensure that retrenchments were effected only for bona fide
operational reasons and in accordance with a fair procedure.
As will be seen in the following pages, the legislature did not make any fundamental changes to legal controls on employers’ right
to retrench when it devised s 189 of the current LRA. The drafters essentially codified the retrenchment guidelines that had been
developed by the courts under the 1956 Act. One important change was that employees were initially forbidden to strike over
proposed or completed retrenchments. 6 Another was that a statutory obligation was imposed on employers to pay severance
pay. 7 In amendments to the LRA, the prohibition on striking over retrenchments has been partially removed and certain additional
procedural requirements added. These are explained in the following chapter. Otherwise, many of the principles developed by the
courts under the 1956 LRA and under the original s 189 remain relevant.
1 ILO: Termination of Employment C onvention 158 of 1982.

2 Section 213.
3 Section 189A(8). Prior to the adoption of this provision, strikes against retrenchments were prohibited by s 65(1)(c).
4 On which, see Grogan Employment Rights 3 ed (Juta 2019) C hapter 15.
5 To require an employer to retain employees who are redundant for longer periods than the employer might otherwise have done clearly imposes
a cost on employers, albeit one which is less easy to quantify.
6 This prohibition was effected by s 65(1)(c) of the LRA, which generally prohibits strike action if the issue in dispute is one that the parties may
refer to arbitration or adjudication under the Act. Dismissal for operational requirements is one such issue: see s 191(5)(b)(ii). However, contrary to
popular belief, there is nothing to prevent employees from striking to prevent an employer from implementing a decision to retrench or to compel an
employer to grant improved benefits prior to taking the decision.
7 Section 196(1). See further below and Employment Rights C hapter 4.
The LRA uses the term ‘dismissal for operational requirements of the employer’ rather than the more colloquial word ‘retrenchment’.
It does so because the expression ‘operational requirements’ has a specific statutory meaning – namely, ‘requirements based on the
economic, technical, structural or similar needs of an employer’. 8
4th Ed, 2022, ch 16-p 363
Under the 1956 LRA, the courts used the word ‘retrenchment’ somewhat loosely. In one case, a distinction was drawn between
‘retrenchment’ and ‘redundancy’, the former being the termination of employment on the ground of superfluity of workers due to
economic downturn, the latter the termination of employment on account of the introduction of new technology or the
restructuring of the business. 9 According to that decision, in cases of redundancy, employers have a more onerous duty to assist
employees, because the employer has greater control over the process.
In another case, the Appellate Division of the former Supreme Court used a definition that covered both ‘retrenchment’ (in the
narrow sense) and ‘redundancy’. The court defined retrenchment as ‘to cut down, to reduce, the number of employees because of
redundancy, a superfluity of employees in relation to the work to be performed’. 10
In yet another case, the industrial court noted that at least three categories of dismissal may arise from employers’ operational
requirements, each with its own sets of rules. These were ‘retrenchment’ (termination because the employees are superfluous to
the employer’s needs), ‘redundancy’ (termination because the employee no longer has the required skills) and ‘transfers’
(termination because of the transfer of the whole or part of the employer’s business). Retrenchment occurs when employees can
do the work, but there is no work for them to do. 11
The debate over the definition of retrenchment in the judgments of the labour courts is inevitable in the light of the murkiness of
the classification of dismissals in terms of their reasons. As has been pointed out, 12 dismissals for any reasons can ultimately be
linked to the operational requirements of the employer. Other criteria for the differentiation between retrenchment and other forms
of dismissal also leave grey areas. One is that in retrenchments employees are dismissed due to circumstances beyond their control
– they are not ‘at fault’. As was seen in the previous chapter, when employees are dismissed for incapacity, they are also dismissed
due to circumstances beyond their control and for reasons for which they cannot be blamed.
Zeda Car Leasing t/a Avis Fleet v Van Dyk illustrates that the reasons for dismissal cannot always be neatly pigeonholed. 13
When tension between two senior managers disrupted its sales division, Avis decided to merge the posts occupied by the two
warring managers and invited them to apply for the new position. The LAC noted that, while Avis had categorised the problem as
operational, it was actually a case of incompatibility, which is a form of incapacity. The correct categorisation of the dismissal was
important because each required a different procedure. Avis had started the process as an incapacity case but had then adopted
an operational solution by restructuring the division and declaring one post redundant. That was fine, but the company should have
consulted from that moment, which would have been pointless because by that time Van Dyk’s dismissal was a fait accompli.
4th Ed, 2022, ch 16-p 364
To fall within the scope of a dismissal for operational requirements, an employee must be dismissed in the sense of that term as
defined in s 186(1). 14 An employee who accepts a VSP and agrees to leave cannot claim to have been retrenched. Nor does an
employer’s decision not to replace employees as they leave, generally known as ‘job reduction by attrition’, amount to a
retrenchment exercise. 15
8 Section 213.
9 Hlongwane v Plastix (1990) 11 ILJ 171 (IC ).
10 Consolidated Frame Cotton Corporation v The President, Industrial Court (1986) 7 ILJ 489 (A) at 494A.
11 DIMES v Tongaat Town Board (1993) 2 LCD 54 (IC ).
12 In C hapter 2.
13 (2020) 41 ILJ 1360 (LAC ).
14 See C hapter 4.
15 NUMSA obo Members v SAA (In Business Rescue) (2020) 41 ILJ 1402 (LC ).

The procedure laid down by s 189 applies only to dismissals for reasons based on the employer’s operational requirements.
Employees who are dismissed for other reasons, for example, incapacity, are neither entitled to be consulted in terms of s 189, 16
nor to severance pay. 17
The LRA provides no guidance on when ‘operational requirements’ are so pressing that they will justify the dismissal of
employees. The courts are not generally inclined to second guess employers’ decisions to reduce their wage bills by retrenching
staff. But they are prepared to establish whether employers could have attained savings by measures short of dismissal.
Employers may decide to reduce staff for various reasons. They may find it necessary to do so because a drop in demand for
their products requires less output and, accordingly, fewer workers; they may establish that current levels of production can be
attained with fewer workers, or seek to reduce their wage bills to increase profits. Employers may also find that some members of
the present workforce are, for one reason or another, not as efficient as they might be, and the employer may wish to replace
those workers with others more able and willing to work more efficiently. But employers are not allowed to use retrenchment to rid
themselves of employees for ulterior reasons, such as membership of a particular trade union, 18 or to avoid having to deal with
employees who they would otherwise have to deal with as cases of poor work performance. 19
The courts have not gone so far as to absolutely proscribe using performance as a criterion for selection in retrenchment. In
Ntshanga v SAB, 20 the Labour Court held that the dismissal of an employee who had been selected on this basis was unfair, not
because he should not have been selected, but because he was not given the opportunity to respond to his alleged shortcomings,
and because the employer had not consulted him on possible alternative positions. In FAWU v SAB, 21 the court dismissed the
argument that the retrenchment of employees who had failed an entry-level test for posts in a revamped company structure was in
fact a dismissal for
4th Ed, 2022, ch 16-p 365
incapacity. The court reasoned that to be fairly dismissed for incapacity employees must be evaluated against a performance
standard fixed in respect of their past performance. Use of an ‘entry-level’ test to evaluate an employee’s capacity to perform
duties attached to posts in a reorganised structure is an attempt to evaluate the employee’s ability to perform in future. The test
used must therefore be capable of objectively determining the employee’s capacity to cope in future. 22 The Labour Court has also
held that it was permissible for a municipality to retrench employees (including a former grave digger who had been appointed
internal auditor as a reward for giving evidence in the former mayor’s rape trial) who had been irregularly appointed. 23
Retrenching employees for misconduct is even more controversial. In one case, 24 the Labour Court held that dismissal to
protect a business and its managerial staff against threatened violence (including threats of death and gunshots) by unidentified
members of the workforce was a valid operational response, falling within the scope of the phrase ‘or similar needs’ in the statutory
definition of ‘operational requirements’. Although the employer could possibly have proceeded by way of collective disciplinary
action, this would have proved difficult in the circumstances and inflamed the situation further. The court stressed, however, that
its judgment should not be considered as a licence to employers to bypass the disciplinary process and use retrenchment in any
circumstances; the facts of the case were peculiar and the employer was engaged in a rationalisation exercise when the trouble
brewed.
The facts in FAWU obo Kapesi v Premier Foods t/a Blue Ribbon Salt River, 25 though very similar, turned out to be different
enough to lead to a different outcome. Premier Foods decided to resort to retrenchment procedures because it was unable to prove
that 32 employees (the individual applicants) had participated in acts of extreme violence against non-strikers during a protected
strike, including petrol bombing and murder. After the strikers resumed work, some were suspended and summoned to disciplinary
hearings. A number of employees, including one who had agreed to turn ‘state’s evidence’, had made written statements. None was
prepared to testify, and the turncoat disappeared. The company then served the employees with retrenchment notices. After the
CCMA tried to facilitate the consultation process, the employees were dismissed. The company’s case was that it had no
alternative but to follow a retrenchment procedure because it was impossible to hold disciplinary hearings. Also, there was reason
to suspect that the employees had engaged in criminal behaviour, because many workers were fearful of working with them, and
because their conduct and presence had had a ‘profound impact’ on the company’s business.
The Labour Court accepted that it is permissible for employers to retrench employees because of misconduct, but only when it is
indeed impossible to follow the normal disciplinary route and when dismissal serves an operational
4th Ed, 2022, ch 16-p 366
requirement. The dismissals in this case satisfied neither requirement. First, the court was not satisfied that it would have been too
dangerous to hold disciplinary hearings, even of an attenuated form. The court also found that the dismissals did not serve a
genuine operational requirement. This case was distinguishable from cases arising from shrinkage, where the actual perpetrators of
theft cannot be identified, or where mass misconduct has prevented an employer from managing its business effectively. Where
misconduct is the true reason for dismissal, recourse to retrenchment is not allowed. Furthermore, the company’s case had failed to
select the employees according to fair and objective criteria. During consultations, the company had suggested subjecting the
suspect employees to polygraph testing, and to retrench only those who failed. The purpose of polygraph testing would be to
exclude suspects from those already identified, not to identify prospective retrenchees from the entire workforce. The court
concluded that such tests were too subjective to pass muster as a fair or objective method of selecting employees for
retrenchment. The employees’ dismissals were ruled unfair, and they were each awarded compensation equivalent to 12 months’
wages. 26
The LAC was prepared to accept that the selection of strikers who had committed acts of violence and intimidation may
constitute a fair selection criterion under s 189. 27 However, Premier Foods had proved nothing more than that the employees had
been subjectively selected by a manager who had read witness statements, viewed video footage and discussed the matter with
colleagues. The employees had therefore been unfairly selected. The appeal was dismissed.
On the other hand, retrenching employees for refusing to undergo polygraph tests was held to be in order where the employees
were contractually obliged to undergo polygraph tests on request. 28
The ‘licence’ to retrench for misconduct was found to have been abused in NUMSA v Genlux Lighting, 29 After suffering losses
occasioned by poor productivity, absenteeism and theft, the company decided to retrench its entire production staff and to
appoint a labour broker to supply its labour needs. The labour broker employed 63 of the Genlux’s retrenched workers, who
continued to perform the same tasks. The remaining 40 workers claimed that they had been unfairly retrenched. The Labour Court
agreed. The court accepted that the company had suffered severe losses through theft. But the judge found the solution the
company had chosen was not a proper dismissal for operational requirements. All the company had done was to hand over to a
labour broker the responsibility of administering its staff. The court ordered Genlux Lighting to re-employ those applicant workers
whose re-employment was still practicable.
The courts have not always been prepared to lump any form of ‘no-fault’ dismissal into the basket of dismissals for operational
requirements. In Samancor
4th Ed, 2022, ch 16-p 367
v MEIBC, 30 the employer purported to dismiss the respondent employee for ‘operational incapacity’ after he was detained in police
custody. Both the arbitrating commissioner and the Labour Court on review held that there is no such thing as a ‘dismissal for
operational incapacity’. Having chosen to dismiss the employee for incapacity, the employer should have complied with the
requirements for that form of dismissal. The employee was not at fault because he was not to blame for his absence. It could not
therefore be said that he was absent from work without permission. There was accordingly no valid basis for the dismissal.
It may be difficult on occasion to distinguish dismissals for incapacity from dismissals for operational requirements. What is the
position, for example, when an employer abolishes old posts, requires existing employees to apply for posts in a restructured
system, then turns the candidates down on the basis of past performance? There are two possible ways of approaching this
question. One is to accept that such employees have been retrenched but to find that they have been retrenched for an ulterior
reason or, possibly, that the dismissal is unfair because the employer followed the incorrect procedure. The other is to accept that
they have been dismissed for valid operational requirements, and to decide whether the method of selection is fair or unfair.
The LAC followed the former approach in SA Mutual Life Assurance Society v IBSA. 31 In that case, the employer abolished all
posts in its employment services department, created a new department, and invited employees in the old department to apply for
the newly created posts. The court held that the reorganisation had merely been a device for culling underperforming employees
and that the exercise had not been a true retrenchment because the employees’ posts had never really become redundant. The
Labour Court reached the same conclusion in Ntshanga v SAB, 32 in which the applicant’s post was declared redundant in a head
office restructuring exercise and he was found unfit for a restructured post because of unsatisfactory performance in the past. In
NEHAWU v Medicor t/a Vergelegen Medi-Clinic, 33 the Labour Court was more adamant, holding that an employer may under no
circumstances retrench employees because of their perceived poor work performance.
In other cases, the courts have adopted the approach of accepting that the employees were retrenched and examining the
method of selection. In Naicker v Q Data Consulting, 34 the employer restructured its client services division and invited
applications from employees for posts in the pared-down structure. Naicker’s application was rejected because, unlike the other
employees, he had not kept sufficiently abreast of developments in the information technology (IT) industry. The employer’s
approach was judged rational, at least in the context of an industry which required employees with knowledge of the latest
technological developments. In Wolfaardt v IDC, 35 a dismissal in similar circumstances was ruled
4th Ed, 2022, ch 16-p 368
unfair because the employer had used subjective standards in selecting employees for the new posts. In FAWU v SAB, 36 the court
acknowledged that rationalisation coupled with a requirement that existing employees must apply for their posts is not per se
unfair. The only proviso is that the selection criteria are defensible and that the process is conducted fairly. In NUM v Anglo
American Research Laboratories, 37 the court also accepted performance-based criteria for selection, which it found to be fair and
objective.
It is also debatable whether a dismissal for incompatibility should be classified as a dismissal for incapacity or a dismissal for a
reason related to the operational requirements of the employer. The prevailing view is now that incompatibility should be treated as
a form of incapacity, when the employee is not at fault, or as misconduct, if the conduct which raises the employer’s ire is
deliberate. 38
What emerges from these cases is that a retrenchment is a dismissal that is based on the factors mentioned in the definition.
There must therefore be an objective link between the dismissal and some economic, technological or similar need of the employer;
the employer’s mere ipse dixit that a dismissal was effected for these needs will not be sufficient to classify the dismissal as a
retrenchment. 39
The LAC has sought to establish the link by means of the concept of ‘legal causation’, in a case concerning the dismissal of
protected strikers, which is permissible under the LRA, provided that the employees are dismissed for operational requirements and
not for the act of striking. In SACWU v Afrox, 40 the issue was to establish whether the employees had been dismissed for striking
or for the operational requirements of the employer. 41 The court split the inquiry into two: the first step is to determine factual
causation – ‘was participation in the protected strike a sine qua non (or prerequisite) for the dismissal; if the answer is no, the next
issue is one of legal causation, namely, whether such participation or conduct was the ‘main’, ‘dominant’, ‘proximate’ or ‘most likely’
cause of the dismissal. Applying this test, the court found that the economic reasons for the dismissal of the strikers outweighed
the fact that they were on strike. The dismissal amounted to a dismissal for operational requirements.
Causation may yield a test for distinguishing retrenchment from other forms of dismissal when there are only two clear choices to
be made. In Afrox, the only issue was whether the employees were dismissed for striking or whether they were retrenched. But
establishing causation cannot clarify a conceptual problem. To establish whether a dismissal effected for a particular reason can be
defined as a dismissal for operational requirements, serves no purpose in an inquiry as to whether there was a causal link between
that motive and the dismissal. That would lead to circularity. For example, if it is common cause that employees were dismissed
because they could not get on with their colleagues, establishing whether
4th Ed, 2022, ch 16-p 369
such a dismissal was a dismissal for operational requirements or some other class of dismissal, is a question of semantics, not of
causation. 42
A dismissal for incompatibility, for example, has nothing to do with economics, technology or structure. 43 The only question is
whether it can be classed among the catch-all residue of needs that are ‘similar’. In terms of the eiusdem generis rule of statutory
interpretation, the ambit of the general phrase (in this case ‘operational requirements’) must be limited to species that fall within
the same genus as economic, technological or structural needs. It appears that read in the context of the definition as a whole,
the legislature is referring to needs of production and business planning. So read, dismissals that arise from an ad hoc problem, such
as theft by employees, or the illness of employees, fall outside the scope of the definition. So, too, does dealing with incompatible
employees fall outside the meaning of the term ‘operational requirements’. However, should an employee’s incompatibility or
misconduct give rise to threats by other employees that they will refuse to work with the problem employee, the need for the
employer to rid itself of the incompatible employee may be sufficiently production-related to be classified as operational. 44 Even
so, such a dismissal does not constitute a retrenchment in the strict sense if another employee is placed in the position hitherto
occupied by the dismissed employee.
The porous nature of the dividing line between dismissal for operational reasons and dismissals for other reasons was recognised
in Gouws v Mpumalanga Provincial Government, 45 in which the dismissal of an employee because he did not meet new legislative
requirements for his position was described by the court as not amounting to a retrenchment ‘in the ordinary and accepted meaning
of that concept’. 46
The dividing line proved clear-cut in NUM v DB Contracting North. 47 After the company lost a contract with Eskom and only
managed to secure a less profitable contract with a municipality, its employees’ union demanded that members be paid the minimum
wage prescribed by the local government bargaining council. The employer responded with a notice in terms of s 189(1), then
informed the union official that it proposed to retrench the employees and re-employ them through a labour broker after their
retrenchment. The official undertook to ask the employees whether they would prefer to continue working at the rate then paid by
DB Contracting, but before the union organiser could respond, the employees were notified of their retrenchment. The court found
that the real reason for dismissal was not ‘operational requirements’, but the employees’ demand for an increase in the hourly rate
and the employer’s inability to afford that rate, plus the desire to
4th Ed, 2022, ch 16-p 370
get rid of the workforce and use employees of labour brokers instead. To dismiss workers with the sole objective of using those
same employees as employees of a labour broker was held to fall outside the realm of operational requirements. This rendered the
dismissals substantively unfair. They were also procedurally unfair because the company had reneged on its agreement with the
union official that it would not issue retrenchment letters until the official had communicated the employees’ response. DB
Contracting was ordered to reinstate the employees.
16 The procedure for incapacity dismissals is explained in C hapter 15.

17 See C hapter 18.
18 See, for example, Kebeni v Cementile Products (Ciskei) (1987) 8 ILJ 442 (IC ), in which the court found that the true reason for the decision to
relocate the business, which in turn resulted in the retrenchment, was to rid the workforce of a union presence.
19 On which, see C hapter 14. For an example, see SA Mutual Life Assurance Society v IBSA [2001] 9 BLLR 1045 (LAC ). See also Makumalo and
eLearning Systems t/a eDegree (2007) 28 ILJ 2330 (C C MA).
20 (2003) 24 ILJ 1404 (LC ).
21 (2004) 25 ILJ 1979 (LC ).
22 See also Wolfaardt v IDC (2002) 23 ILJ 1610 (LC ), where the court likened the selection test to the procedure in terms of which schoolboys pick
a rugby team by calling out names until the less desirable players are either discarded or accepted with reluctance.
23 SAMWU v Kannaland Municipality (2010) 31 ILJ 1819 (LAC ).
24 Tiger Brands t/a Albany Bakeries v Levy NO (2007) 28 ILJ 1827 (LC ).
25 (2010) 31 ILJ 1654 (LC ).
26 See also Metshe v PAWUSA (2011) 32 ILJ 2984 (LC ), in which the court found that the purported retrenchment of the applicant employee was a
means of getting rid of him for suspected misconduct. The court held that this was impermissible, and that the dismissal was also procedurally unfair
because the employer had not consulted the employee.
27 FAWU obo Kapesi v Premier Foods t/a Blue Ribbon Salt River (2012) 33 ILJ 1779 (LAC ).
28 SATAWU v Khulani Fidelity Security Services (2011) 32 ILJ 130 (LAC ); NUM v Coin Security Group t/a Protea Coin Group (2011) 32 ILJ 137 (LC ).
29 (2009) 30 ILJ 654 (LC ).
30 (2009) 30 ILJ 389 (LC ).
31 [2001] 9 BLLR 1045 (LAC ).
32 (2003) 24 ILJ 1404 (LC ).
33 (2005) 26 ILJ 501 (LC ).
34 (2002) 23 ILJ 730 (LC ).
35 (2002) 23 ILJ 1610 (LC ).
36 (2004) 25 ILJ 1979 (LC ).
37 [2005] 2 BLLR 148 (LC ).
39 See SA Mutual Life Assurance Society v IBSA [2001] 9 BLLR 1045 (LAC ).
40 (1999) 20 ILJ 1718 (LAC ).
41 The need for this inquiry was created by s 67(5) of the LRA, which permits employers to dismiss protected strikers for reasons related to the
employer’s operational requirements. The Afrox case is discussed in C hapter 7.
42 This was the view taken by the minority in NUMSA v Aveng Trident Steel (2021) 42 ILJ 67 (C C ).
43 See Jardine and Tongaat Hulett Sugar (2002) 23 ILJ 547 (C C MA) and Subrumuny and ABI (2000) 21 ILJ 2780 (ARB), in which the arbitrators
held that a dismissal for incompatibility was a species of dismissal for incapacity rather than for operational requirements. On incompatibility, see
C hapters 15 and 21.
44 See East Rand Proprietary Mines v UPUSA (1996) 17 ILJ 1134 (LAC ) and Lebowa Platinum Mines v Hill (1998) 19 ILJ 1112 (LAC ). See also
‘Dismissal at the behest of third parties’ in C hapter 21.
45 (2001) 22 ILJ 1822 (LC ).
46 At 1061G and 1822J.
47 (2013) 34 ILJ 971 (LC ).

Under the 1956 LRA, the labour courts developed the basic principles of fair retrenchment under their general unfair labour practice
jurisdiction. There was accordingly room for debate over such issues as the time at which notice of retrenchment should be given,
the issues over which the parties were required to consult and the obligation to pay severance pay. The drafters of the current
LRA attempted to regulate these issues in s 189. As amended, that provision now reads:
(1) When an employer contemplates dismissing one or more employees for reasons
based on the employer’s operational requirements, the employer must consult—
(a) any person whom the employer is required to consult in terms of a collective
agreement;
(b) if there is no collective agreement that requires consultation—
(i) a workplace forum, if the employees likely to be affected by the proposed
dismissals are employed in a workplace in respect of which there is a
workplace forum; and
(ii) any registered trade union whose members are likely to be affected by
the proposed dismissals;
(c) if there is no workplace forum in the workplace in which the employees likely to
be affected by the proposed dismissals are employed, any registered trade union
whose members are likely to be affected by the proposed dismissals; or
(d) if there is no such trade union, the employees likely to be affected by the
proposed dismissals or their representatives nominated for that purpose.
(2) The employer and the other consulting parties must in the consultation envisaged by
subsections (1) and (3) engage in a meaningful joint consensus-seeking process and attempt
to reach consensus on—
(a) appropriate measures—
(i) to avoid the dismissals;
(ii) to minimise the number of dismissals;
(iii) to change the timing of the dismissals; and
(iv) to mitigate the adverse effects of the dismissals;
(b) the method for selecting the employees to be dismissed; and
(c) the severance pay for dismissed employees.
(3) The employer must issue a written notice inviting the other consulting party to consult
with it and disclose in writing all relevant information, including, but not limited to—
(a) the reasons for the proposed dismissals;
(b) the alternatives that the employer considered before proposing the dismissals,
and the reasons for rejecting each of those alternatives;
(c) the number of employees likely to be affected and the job categories in which
they are employed;
(d) the proposed method for selecting which employees to dismiss;
(e) the time when, or the period during which, the dismissals are likely to take
effect;
(f) the severance pay proposed;
4th Ed, 2022, ch 16-p 371
(g) any assistance that the employer proposes to offer to the employees likely to be
dismissed;
(h) the possibility of the future re-employment of the employees who are dismissed;
(i) the number of employees employed by the employer; and
(j) the number of employees that the employer has dismissed for reasons based on
its operational requirements in the preceding 12 months.
(4) (a) The provisions of section 16 apply, read with the changes required by the context,
to the disclosure of information in terms of subsection (3);
(b) In any dispute in which an arbitrator or the Labour C ourt is required to decide
whether or not any information is relevant, the onus is on the employer to prove that any
information that it has refused to disclose is not relevant for the purposes for which it is
sought.
(5) The employer must allow the other consulting party an opportunity during consultation
to make representations about any matter dealt with in subsections (2), (3) and (4) as well
as any other matter relating to the proposed dismissals.
(6) (a) The employer must consider and respond to the representations made by the
other consulting party and, if the employer does not agree with them, the employer must
state the reasons for disagreeing;
(b) If any representation is made in writing the employer must respond in writing.
(7) The employer must select the employees to be dismissed according to selection
criteria—
(a) that have been agreed to by the consulting parties; or
(b) if no criteria have been agreed, criteria that are fair and objective.

These provisions are applicable to all employers, irrespective of their size or the number of employees to be retrenched, although
additional requirements now apply to larger employers who propose retrenching given numbers of employees. These additional
requirements are considered later in this chapter.
As far as employees are concerned, s 189 renders all employees subject to dismissal if the operational requirements of their
employer so decide. Only one category of employee may not be retrenched. These are employees on fixed-term contracts whose
contracts have not yet expired. The authority for this statement is Buthelezi v MDB. 48 Mr Buthelezi was appointed as the board’s
financial manager on a five-year fixed-term contract. After the board restructured, he was invited to apply for a post in the new
structure, but another employee was appointed and Buthelezi was retrenched. The Labour Court ruled his dismissal substantively
unfair because Buthelezi’s fixed-term contract had not run its course, but that otherwise the board had valid operational reasons
for retrenching him. On appeal, a unanimous court held that the dismissal was totally unfair. The court based this decision solely on
the fact that Buthelezi was on a fixed-term contract which did not provide for termination. The court held that at common law a
party to a fixed-term contract has no right to prematurely terminate such contract unless the employee had repudiated or
breached the contract (ie committed misconduct). When parties conclude fixed-term contracts, they are each ‘entitled to expect
that the other has carefully looked into the future and has satisfied itself that it can meet its obligations for the entire term in the
absence of any material breach’. Relying heavily on the Supreme Court
4th Ed, 2022, ch 16-p 372
of Appeal’s judgment in Fedlife Assurance v Wolfaardt, 49 the court dismissed as ‘without merit’ the board’s argument that the
common law should be developed in the light of the Constitution and to align it with the provisions of the LRA. Since the Municipal
Demarcation Board (MDB) had no right in law to terminate Buthelezi’s contract, the termination of such contract before the end of
its term was unfair ‘in the fullest possible sense’.
In other words, the board’s conduct was unfair because it was unlawful; operational requirements cannot render lawful or fair
the dismissal of an employee on a fixed-term contract before its termination date. The principle laid down by the Buthelezi
judgment, therefore, is that employers may not under any circumstances retrench employees on fixed-term contracts without
repudiating their contracts and exposing the employer to possible contractual claims equivalent to the remuneration the employees
would have earned had the contract run its course, as well as to claims for compensation under the LRA. The employer may not
raise operational requirements, however compelling, in support of a claim that the premature termination of a contract of
employment, even though unlawful, is nonetheless fair.
This ruling still stands but is open to debate. Fedlife concerned the question whether the High Court had jurisdiction to entertain
contractual claims by employees dismissed before their fixed-term contracts had run their course. In Fedlife, the majority did not
hold that unlawful dismissals were necessarily unfair, or that it was necessarily unfair to prematurely dismiss an employee for
operational reasons. 50
The fairness of the dismissal was at issue in Buthelezi’s case because the employee chose to approach the Labour Court. Both
the Labour Court and the LAC were accordingly obliged to decide whether the dismissal was fair. That a dismissal is unlawful may,
but need not necessarily, mean that it is also unfair. The legislature has expressly conferred on all employers the right to retrench
employees if their operational needs dictate. In return, it has set out elaborate procedures and principles to ensure that that right
is not abused. In Buthelezi, the court did not explain why employees on fixed-term contracts should be afforded absolute protection
against retrenchment, while their colleagues on indefinite-period contracts enjoy only the protection afforded by the Act.
Employees on indefinite-period contracts are also entitled to expect that their contracts will last until retirement date unless they
materially breach their contracts. The only difference between them and employees on fixed-term contracts under the common law
was that the employer could terminate indefinite-period contracts on the agreed, or reasonable, notice, for any reason (including
the worst of reasons), or indeed for no reason. Otherwise, the right to dismiss for operational requirements is not recognised by the
common law. Now, the legislature requires that the employer’s power to terminate on notice may be exercised only in
circumstances recognised by the LRA. It seems unlikely
4th Ed, 2022, ch 16-p 373
that the legislature decided to effectively override the contract in respect of some categories of employees, but not in respect of
others.
In Buthelezi and Fedlife, the courts relied heavily on the presumption that where the legislature intends altering the common law,
it does so in express words or by necessary implication. It is true that the LRA does not expressly state that employers may
retrench employees before termination of their fixed-term contracts. But the Act does not limit the general power it confers on
employers to dismiss for valid operational requirements, provided they comply with the procedures prescribed by the Act. Nor does
the LRA expressly state that it is impermissible to retrench employees on fixed-term contracts. Had it intended to create such an
exception to the general right to retrench, the legislature could have simply stated so in express terms. That it did not is perhaps
an indication that the lawmakers thought it obvious that ss 189 and 189A applied to all employees, irrespective of the duration of
their contracts.
The anomalies that could arise as a result of the Buthelezi judgment are a further indication that those provisions could not have
been intended to exclude employees on fixed-term contracts. How, for example, is the preservation of the common-law rule that
fixed-term contracts may not be prematurely terminated by an employer who retrenches to be reconciled with the statutory
requirement that such employers must select employees on the basis of criteria that are agreed upon or fair? If Buthelezi is correct,
an employee on a five-year fixed-term contract who has served the employer for only one month must be retained in service in
preference to a colleague on an indefinite-period contract who has served the employer for 20 years. Otherwise, to avoid this
patent unfairness, the employer must be prepared to pay the fixed-term contract employee 59 months’ salary in damages for
repudiation of the contract. That would be patently unfair to the employer and make a mockery of the statutory requirement that
employees are entitled to severance pay only if they have served their employers for more than 12 months.
While Buthelezi remains the law, employers are well advised to ensure that all fixed-term contracts contain express provisions
that they may be terminated on notice or that they can be terminated for valid operational requirements, as prescribed by the LRA.
Such escape clauses must be regarded as binding on the employee.
Apart from employees on fixed-term contracts, s 189 rights extend to all employees except possibly those in temporary
employment.
48 (2004) 25 ILJ 2317 (LAC ).

49 (2001) 22 ILJ 2407 (SC A).
50 The single dissenting judge observed that ‘in ordinary terms, untrammelled by legal interpretation, it seems unfair (italics added) that one party
to a bargain should be allowed to go back on his word by dismissing someone before the promised time for the termination of his contract of
employment arrives’. That is a far cry from saying that it is necessarily unfair to do so. In any event, the fairness of the dismissal, or the type of
dismissal, was not at issue in Fedlife.

Initially, the courts were reluctant to interfere in employers’ decisions regarding the need for retrenchment, provided they were
satisfied that the reason was in fact related to the employer’s operational requirements. As long as it was proved that the
dismissals were linked to genuine economic considerations, the courts generally adopted the view that it was not their task to
correct unwise business decisions. 51
4th Ed, 2022, ch 16-p 374
A retrenchment that resulted from a poor management decision would not therefore be unfair for that reason alone. Furthermore,
the courts have held that a desire to increase profits and business efficiency constitutes a fair reason to retrench; in other words,
employers are not required to prove that retrenchment would actually reduce costs. 52
This abstentionist approach began to change when the LAC handed down its landmark decision under the 1956 LRA in NUMSA v
Atlantis Diesel Engines. 53 The court ‘respectfully’ differed from the suggestion that a retrenchment could be fair ‘simply because it
is bona fide and made in a business-like manner’. The court said that at stake is not the correctness of the decision to retrench,
but its fairness.
Fairness gives rise to the question whether termination is the only reasonable option in the circumstances. This requirement
imports an objective element into the test for whether the reason for a retrenchment is fair. It will not necessarily be sufficient for
the employer to state that it considered retrenchment in general, or the termination of the services of particular employees, to be
for the good of the business. If a court finds that dismissal could have been avoided by adopting some reasonable alternative,
dismissal would be deemed unfair.
A further question raised by Atlantis Diesel Engines was whether the legislature intended the courts to scrutinise merely the bona
fides of the employer and the fairness of pre-dismissal procedures or to determine as well whether the dismissal was substantively
fair. The courts’ answer to this question has not been unanimous.
In SACTWU v Discreto (a division of Trump & Springbok Holdings), 54 the LAC, deciding an appeal under the 1956 Act, said it
was not the role of the courts ‘to second guess the commercial or business efficacy of the employer’s ultimate decision (an issue
on which it is, generally, not qualified to pronounce upon), but to pass judgment on whether the ultimate decision arrived at was
genuine and not merely a sham (the kind of issue which courts are called upon to do, in a different setting, every day)’. The courts’
function is to ensure that the requirements for a proper consultation process had been followed and, if so, whether the ultimate
decision arrived at by the employer is operationally and commercially justifiable on rational grounds, having regard to what emerged
from the consultation process. But it is not the court’s role to decide whether it was the best decision under the circumstances.
This approach casts the court in a role similar to that of a reviewing court assessing the rationality of an administrative decision.
In BMD Knitting Mills v SACTWU, 55 the LAC expressed reservations about the ‘deferential approach’ adopted in Discreto. This court
held that the starting point is whether there is a commercial rationale for the decision. But, rather than take the decision at face
value, a court is entitled to examine whether the particular decision is also fair to the employees. The courts are therefore entitled
‘to inquire as to whether a reasonable basis exists
4th Ed, 2022, ch 16-p 375
on which the decision, including the proposed manner, to dismiss for operational requirements is predicated’.
By contrast, in Johnson & Johnson v CWIU, 56 the LAC suggested that the obligations placed on employers by s 189 are primarily
procedural. The court said that the formal steps required by the Act are ‘geared to a specific purpose, namely to attempt to reach
consensus on the subjects listed in s 189(2)’. The ultimate purpose of s 189 is ‘to achieve a joint consensus-seeking process’.
The Labour Court has found several retrenchments unfair because the employer failed to prove that it could not have placed the
employees in alternative positions. 57 Although the LAC has held that a ‘mechanical check-list approach’ – by which it apparently
meant a meticulous examination of whether the employer complied with every procedural step set out by s 189(2) – must be
avoided; the issue is whether the totality of the employer’s efforts was aimed at avoiding retrenchment, if possible.
The link between the procedural and substantive aspects of a fair retrenchment are clarified in SACWU v Afrox, 58 in which the
LAC remarked that, apart from consulting, the retrenching employer should take appropriate measures to avoid dismissals, to
mitigate the adverse effects of the dismissals, change the timing of the dismissals, adopt a fair and objective method for the
dismissals and provide appropriate severance pay for dismissed employees – all requirements now set out in the LRA. The court
added that judicial scrutiny of the pre-retrenchment consultation process was no longer ‘merely to determine the good faith of the
employer’ but involved ensuring that the employer has proved: 59
• the cause or reason for the dismissal
• the defined ‘operational requirement(s)’ on which the decision was based
• that the employer had complied with the procedure prescribed in s 189
• the facts for a finding that the dismissals were substantively fair.
This and other judgments make it clear that the question whether an employer has complied with s 189 has both a procedural and a
substantive dimension. Subsection (1) imposes the obligation to consult, while sub-s (2) sets out the subject matter of that
consultation. The inquiry is not simply about whether the employer acted in good faith, ie whether it had a bona fide reason to
retrench. Section 189 requires a further inquiry – whether the cause of, or reason for, the dismissals was based on operational
requirements, as defined, that a fair procedure was followed and that the dismissal was for a fair reason. 60 Furthermore, the
courts have accepted that gross procedural unfairness can render a retrenchment substantively unfair. 61
The legislature intervened in this debate with an amendment to s 189A of the LRA which expressly directed the Labour Court to
ascertain, in the case of ‘large-scale’
4th Ed, 2022, ch 16-p 376
retrenchments, 62 not only whether the dismissal was indeed for operational requirements but also whether the dismissal was
‘operationally justifiable on rational grounds’. 63 This provision clearly recognised that the test for the fairness of a retrenchment
entailed showing that the dismissal had to be not only linked to the employer’s perceived operational requirements, but also linked in
a manner that is justifiable and rational. The use of the phrase ‘justifiable on rational grounds’ suggests that an approach was
envisaged akin to that initially adopted by the Labour Court in reviewing arbitration awards by the CCMA. 64
Section 189A(19) gave express guidance on the factors to be evaluated when deciding on the substantive fairness of
retrenchments. These were that:
• The dismissal was to ‘give effect to a requirement based on the employer’s economic, technological, structural or similar
needs’.
• The dismissal was ‘operationally justifiable on rational grounds’. 65
• There was a ‘proper consideration’ of alternatives.
• The selection criteria were ‘fair and objective’.
However, this provision was excised from the Act in 2014. It remains to be seen whether this will have any effect on the test
applied by the courts. Since the provisions of s 189A(19) merely replicated principles established by the courts, its removal will
probably have little practical effect.
The critical question remains whether, in order to prove that a dismissal was ‘justifiable on rational grounds’, the employer must
satisfy the court that dismissal was the only option under the circumstances. In Afrox, 66 the court stated that the requirement
that a dismissal for operational reasons must be ‘substantively fair’ does not mean that retrenchment can be used only as a ‘means
of last resort’. Although the court did not elaborate on this comment, it apparently had in mind the debate over the test for the
dismissal of legal strikers under the 1956 LRA. 67 If that is so, the court appears to have been saying that employers need neither
wait for their business to collapse nor prove that they were on the verge of collapse before resorting to retrenchment. The test
remains whether the decision to retrench was part of a bona fide attempt to improve the business, whether through restructuring,
outsourcing, reducing production costs, or simply cutting the payroll. The courts will not rule a retrenchment unfair simply because
they regard the decision as unwise. However, where a court is satisfied that the employer has not considered alternatives that
may have reduced the number of dismissals, or perhaps have avoided them altogether, the retrenchment will be held to be unfair on
substantive grounds.
Notwithstanding Afrox and other similar judgments, the Labour Court has at times adopted a more cautious stance when the
merits of the policy decision that caused the need to retrench came under scrutiny. Two typical comments illustrate the point.
4th Ed, 2022, ch 16-p 377
The first is to be found in Van Rensburg v Austen Safe Co: 68 ‘A court should be mindful not to interfere with the legitimate
business decision taken by employers who are entitled to profits and even better profits if this can be achieved.’ In Hendry v
Adcock Ingram, 69 the court observed that the right to fair labour practices ‘does not mean that an employee has a right to
indefinite and permanent employment by a particular employer or that the employer may only retrench if it can show financial ruin’.
If the employer ‘can show that a good profit is to be made in accordance with a sound economic rationale and it follows a fair
process . . . it is entitled to retrench’.
Even after BMD Knitting, the LAC continued to endorse the principle that courts are not there to second-guess the policies on
which employers’ decisions to retrench are based. In Forecourt Express v SATAWU, 70 the employer took over the business of
another motor transport company as a going concern and management informed the majority union that it intended to restructure
its operations. This resulted in the retrenchment of 55 workers. The majority of a divided court noted that the union had not
suggested any alternative other than postponing retrenchment and found itself in no position to judge whether the business should
have been run differently for that period. The company had accordingly proved that there was a valid and fair operational reason
for the dismissal.
A critical question in many retrenchment cases is whether the employer proved that dismissal was necessary in cases where the
reason for the retrenchment was not to stem losses, but to increase profits. ‘Necessity’ must, in this context, be a relative term.
At the one extreme, dismissal can never be said to be necessary if the employer has sufficient funds to tide itself over for a period
without resorting to dismissal. At the other extreme, necessity could be viewed in the business context; a dismissal is ‘necessary’ if
it is a means of increasing profit or efficiency, or both. The Labour Court appears to favour the latter view. However, this seems
difficult to square with the view, expressed in Algorax, 71 that retrenchment must be a ‘measure of last resort’. 72 It seems that
the approach adopted by the court is that intervention is warranted when common sense indicates that the employer could have
realised its operational goal (whether this was to stem losses or to increase profits) by choosing an option that would have avoided
retrenchment or reduced the number of dismissals. So, in Algorax, the court found that the employer could have realised the
savings it sought to effect by retrenching employees who refused to accept a change of shift arrangements without resorting to
dismissal. The court held that its role in assessing the reason for a retrenchment was based on whether the court finds that the
reason was fair, not whether the employer thought it was fair, especially where spotting the obvious solution required no special
expertise – in this case the company merely required ‘common sense’.
This means that where there are two rational options available, one which would preserve jobs and the other which would not,
fairness requires that the employer
4th Ed, 2022, ch 16-p 378
should adopt the former. 73 In County Fair Foods v OCGAWU, 74 the LAC went so far as to state that to justify the retrenchment
of a particular employee, the employer ‘must show that the dismissal of the employee could not be avoided’.
Algorax does not mean, however, that employers may not resort to retrenchment where employees refuse to accept changes to
terms and conditions of employment introduced to enhance efficiency. The court accepted unambiguously that retrenchment may
be used for this purpose in Fry’s Metals v NUMSA, 75 and in Freshmark v CCMA. 76
An employer need not consult indefinitely on the need to retrench merely because the employees or their union insist on doing
so. Once that subject is exhausted, the employer is entitled to table proposals relating to other issues. 77
51 Môrester Bande v NUMSA (1990) 11 ILJ 687 (LAC ); TGWU v City Council of Durban (1991) 12 ILJ 156 (IC ) at 159C ; NUMSA v Atlantis Diesel
Engines (1992) 13 ILJ 405 (IC ); NUTW v Braitex (1987) 8 ILJ 794 (IC ) at 799I; De Vries v Lanzerac Hotel (1993) 14 ILJ 432 (IC ) at 435–6.
52 FAWU v Kellogg SA (1993) 14 ILJ 406 (IC ) at 413A; Fry’s Metals v NUMSA (2003) 24 ILJ 133 (LAC ) at [33]; General Food Industries v
FAWU (2004) 25 ILJ 1260 (LAC ) at [62].
53 (1993) 14 ILJ 642 (LAC ).
54 (1998) 19 ILJ 1451 (LAC ) at [8].
55 (2001) 22 ILJ 2264 (LAC ).
56 (1999) 20 ILJ 89 (LAC ).
57 See, for example, Heigers v UPC Retail Services [1998] 1 BLLR 45 (LC ).
58 (1999) 20 ILJ 1718 (LAC ).
59 At [38].
60 As far as the substantive fairness of dismissals is concerned, no distinction is made in the LRA between various forms of dismissal; all must be
‘for a fair reason’.
61 Wheeler v Pretoria Propshaft Centre (1999) 20 ILJ 2982 (IC ).
62 See C hapter 17.
63 Section 189A(19)(b) (now deleted).
64 See Carephone v Marcus NO (1998) 19 ILJ 1425 (LAC ). That approach is explained in Grogan Labour Litigation and Dispute Resolution 3 ed (Juta
2019) C hapter 14.
65 Section 189A(19)(b) (now deleted).
66 SACWU v Afrox (1999) 20 ILJ 1718 (LAC ).
67 See C hapter 22 and Grogan Collective Labour Law 3 ed (Juta 2019) C hapter 14.
68 (1998) 19 ILJ 158 (LC ).
69 (1998) 19 ILJ 85 (LC ).
70 (2006) 27 ILJ 2537 (LAC ).
71 (2003) 24 ILJ 1917 (LAC ).
72 This apparent contradiction is pointed out in NUMSA v Dorbyl (2004) 25 ILJ 1300 (LC ).
73 This approach was endorsed in Enterprise Foods v Allen (2004) 25 ILJ 1251 (LAC ) at [17].
74 [2003] 7 BLLR 647 (LAC ).
75 (2003) 24 ILJ 133 (LAC ).
76 (2003) 24 ILJ 373 (LAC ).
77 NUMSA v Tiger Wheels Limited Group [2001] 12 BLLR 1353 (LC ).
Dismissal / Chapter 17 Dismissal for operational requirements: Fair procedure
Chapter 17
Dismissal for operational requirements: Fair procedure
4th Ed, 2022, ch 17-p 379
1. Introduction
6. Prior notice
10.3.8 Redeployment or transfer
10.7 Severance pay
4th Ed, 2022, ch 17-p 380
1. Introduction
The dividing line between substantive and procedural fairness in retrenchment cases may be difficult to detect. When determining
substantive fairness, the question is in essence whether the employee would have been dismissed but for the unfair conduct. In
cases of ‘pure’ procedural unfairness, the dismissal may be ruled unfair even if the employee thoroughly deserved to be dismissed.
In retrenchments, a failure to consult over a particular issue may have substantive implications; if proper consultation could have
led to the identification of an alternative position, retrenchment could well have been avoided. In such cases, the dismissal would
be both substantively and procedurally unfair.
In Broll Property Group v Du Pont, 1 the court held that consultation was so ‘woefully inadequate’ that it could have rendered
the dismissals substantively unfair had the employer not proved that there were in fact no alternative positions for the employees
concerned. This case resonates with at least a faint echo of the ‘no difference’ principle. 2 The discussion of substantive and
procedural fairness in retrenchment cases is divided in this work purely for ease of reference. This chapter deals with pre-
termination consultation.
Section 189 requires employers to consult with affected employees or their representatives before embarking on retrenchment
programmes but does not prescribe the form consultation may take. The process normally unfolds during face-to-face meetings
between representatives of the employer and employee parties but may be supplemented by exchanges of documents and written
communications. 3 If pre-retrenchment consultations are regulated by collective agreement, the parties are required to follow the
steps the agreement prescribes. To the extent that a binding collective agreement is silent on aspects of the obligation to consult,
the provisions of the LRA will be read into the collective agreement. 4
1 (2006) 27 ILJ 269 (LAC ).

2 See C hapter 10.
3 See FAWU v SAB (2020) 41 ILJ 2652 (LC ), in which the court approved of consultations via Zoom during the C ovid-19 pandemic.
4 FAWU v Pietersburg Milling Co (A division of Tiger Milling & Feeds) (1995) 16 ILJ 1497 (LAC ).
Under the 1956 LRA, the courts distinguished in this context between consultation and negotiation. Consultation requires the
employer to do no more than bona fide
4th Ed, 2022, ch 17-p 381
consider suggestions from the employees or their representatives; negotiation entails a willingness on the part of the parties to
compromise in order to reach agreement. 5 This distinction was drawn to emphasise that, in the retrenchment context, employers
are required only to consult. They are not bound to make concessions to the other negotiating party if they do not wish to do so;
employers are merely required to consider their employees’ proposals and, if they are not regarded as practical, to give reasons for
rejecting them. 6 The Constitutional Court confirmed this approach in Solidarity obo Members v Barloworld Equipment Southern
Africa. 7 The court pointed out that the union had erred by insisting at the commencement of consultation that its demand was
‘non-negotiable’ and then claiming that the employer had not consulted properly because it had called off the process before
agreement had been reached.
Even before the promulgation of the current LRA, the courts had allowed the line between consultation and negotiation to blur.
The LAC required consulting parties to ‘attempt to reach consensus’, 8 which goes beyond the meaning of ‘consultation’ in the
sense of merely ‘taking counsel’. The original s 189(2) of the LRA used the same phrase. Courts regarded, and still regard, pre-
retrenchment consultations as ‘an exhaustive joint problem-solving or consensus-seeking process between the employer and the
consulted parties’, entailing the provision of all relevant information. 9 The amended s 189 echoes this approach by requiring the
consulting parties to ‘engage in a meaningful joint consensus-seeking process and attempt to reach consensus’. 10
The object of consultation is described in the Code of Good Practice on Dismissal Based on Operational Requirements. 11 This
states that, unless urgency dictates otherwise, the employee’s representatives should be given an opportunity to meet the
employers, to receive and digest information, and to meet management as often as is required for thorough exploration of possible
solutions to problems affecting the job security of employees. 12 Consultation must therefore be exhaustive and not merely
sporadic, superficial or a sham. 13 The courts act as monitors of the process by which the decision to retrench was ultimately
reached.
The purpose of the consultation process is primarily to ensure that the employer considers the situation from all possible
perspectives before finally resorting to dismissal. Only when all possible options have been considered and rationally rejected is the
moment ripe for the ultimate decision.
5 MAWU v Hart (1985) 6 ILJ 478 (IC ): ‘[T]here is a distinct and substantial difference between consultation and bargaining. To consult means to
take counsel or seek information or advice from someone and does not imply any kind of agreement, whereas to bargain means to haggle or wrangle so
as to arrive at some agreement in terms of give and take. The term negotiate is akin to bargaining and means to confer with a view to compromise and
agreement.’
6 AMCU v Tanker Services (2018) 39 ILJ 2265 (LC ), in which the court held that an ‘adversarial’ approach to retrenchment consultations is
inappropriate.
7 (2022) 43 ILJ 1757 (C C ).
8 Atlantis Diesel Engines v NUMSA (1994) 15 ILJ 1247 (A); Industrial Union of SA v Lennon (1994) 15 ILJ 1037 (LAC ).
9 Johnson & Johnson v CWIU (1999) 20 ILJ 89 (LAC ) at [27]. See also SACWU v Afrox (1999) 20 ILJ 1718 (LAC ).
10 The amendment echoes the words used in Johnson & Johnson v CWIU (1999) 20 ILJ 89 (LAC ); foreshadowed by the Labour C ourt in NUMSA v
Comark Holdings (1997) 18 ILJ 516 (LC ). See also Visser v SAIMR (1998) 19 ILJ 1616 (LC ) at [1]–[8].
11 GenN 1517 in GG 20254 of 16 July 1999.
12 Item 5. See also Unilever SA v Salence [1996] 5 BLLR 547 (LAC ).
13 Hadebe v Romatex Industrials (1986) 7 ILJ 726 (IC ).

4th Ed, 2022, ch 17-p 382
In the retrenchment context, the distinction between adequate and inadequate consultation may be difficult to discern. In
practice, consultation often develops into full-blown negotiation over specific issues. The case law suggests that the test for
whether there has been adequate consultation prior to retrenchment is whether the employees or their representatives were given
a fair opportunity to suggest ways in which job losses might be avoided or reduced, or the effects of retrenchment on the
workforce as a whole ameliorated, and whether the suggestions were genuinely considered. Apart from serving the purpose of
bringing the employees’ views to the attention of the employer, consultation also accords with the principles of natural justice, 14
and helps eliminate industrial unrest. 15
Consultation is a two-way process: both parties must try to kick-start the process. 16 An employer cannot reasonably be
expected to consult with a union that evades the process or which seeks to drag out consultation for no good reason. When a
union frustrates the consultation process or withdraws without good reason, the employer is entitled to consult without it. 17 The
Labour Court refused to interdict a retrenchment because the union had insisted that consultation should begin only after a
protracted wrangle over who should chair consultation meetings was resolved. 18 A managerial employee was also held to be
stalling by insisting on information relating to alleged past business errors. 19 The common ploy of belatedly challenging the reason
for the retrenchment, 20 or requesting irrelevant information at the eleventh hour and then claiming the employer has failed to
consult, also receives no sympathy from the courts. 21 Nor did a senior employee who throughout the consultation process
‘stubbornly resisted’ all suggestions from the employer. 22
The principle that unions must consult in good faith had an unusual twist in DB Contracting North v NUM. 23 After being
confronted with having to pay a wage increase that had been granted in a bargaining council, the company proposed as an
alternative to retrenchment that the wage rate be kept at its current level. The union did not respond to that proposal by the
deadline, and 106 employees were retrenched. A divided LAC found that the union had failed to explain why it had not responded to
the company’s proposal before the deadline. The union official had not even protested about the pending dismissals and no
discussion had
4th Ed, 2022, ch 17-p 383
taken place about the acceptance or rejection of the offer. The union could not rely on the general onus resting on the company.
Since the company’s reasonable offer that would have avoided the retrenchment was not accepted, the dismissals were fair.
A union’s obligation to consult properly also applies in retrenchments conducted under s 189A. The union was read this lesson in
CWU v Telkom SA. 24 CWU sought an order restraining Telkom from dismissing its members and to compel it to comply with a fair
procedure in terms of ss 189 and 189A. After examining the consultation process, the court found CWU’s approach confrontational
and obstructive. The union had demanded from the outset that the process be abandoned and that the company first negotiate
wage increases; it demanded the recusal of a very experienced conciliator appointed by the CCMA; it never permitted the company
to make its presentations; and its shop stewards either walked out of or failed to attend facilitated meetings even though they
were paid by the company to be there. This was all done in the vain hope that Telkom would abandon the process. It was patently
unacceptable for CWU to approach the court under s 189A(13).
Conversely, a union cannot be blamed for failing to consult if, from the outset, it was confronted by a fait accompli. 25
But employers should not lightly break off consultation because of the alleged obduracy of a union or employees; employees and
their unions can hardly be expected to approach pre-retrenchment consultations with the same enthusiasm or urgency as
employers usually do. While a union was under the impression that the employer was still prepared to consult over selection criteria,
and that a further meeting would be held, the employer’s decision to retrench before the meeting was ruled premature and
unfair. 26 Indeed, the Labour Court has gone so far as to hold that an employer is obliged to at least attempt to comply with the
provisions of the LRA even if it appears that the union is seeking to delay the process. 27
The rejection of the ‘mechanical checklist approach’ (see Chapter 16) means that the courts may overlook minor departures from
s 189 if these can be satisfactorily explained by the employer. Some truncation of the consultation procedure may be permitted in
cases of extreme urgency or, if the court should find that a minor procedural lapse renders the dismissal unfair, it may deny the
employees compensation. 28
But whether non-compliance by an employer with one or more of the provisions of s 189 must inevitably lead to a finding that
the dismissal of an employee for operational requirements was procedurally unfair, remains uncertain. The Labour Court addressed
this question in an obiter dictum in Sikhosana v Sasol Synthetic Fuels. 29 The court noted that s 189 merely sets out a number of
duties with which employers must comply when they contemplate retrenchment. Compliance with these duties does not necessarily
make the retrenchment fair; conversely non-compliance
4th Ed, 2022, ch 17-p 384
does not necessarily make it unfair. Section 189 says nothing about fairness.
Albeit on facts different from those pertaining in Sikhosana and without reference to that judgment, in Moodley v Fidelity
Cleaning Services, 30 the court refused to condone the employer’s failure to comply with the notice requirements set by s 189. In
that judgment, the court held that statements to the effect that s 189 need not necessarily be applied literally, did not ‘amount to
a licence to employers to negate what is after all a statutory right to information and due process in the form of meaningful
consultation’.
The requirement of proper consultation may cut both ways. The Labour Court dismissed a union’s argument that it was unable to
obtain a mandate from its members because they had dispersed during a lengthy strike. The court held that the union had no need
to consult individual members at an early stage of the consultation process and that the employer could hardly be blamed for the
union’s inability to obtain a mandate from its members. 31
14 Administrator, Natal v Sibiya 1992 (4) SA 532 (A).

15 CWIU of SA v Lennon (1994) 15 ILJ 1037 (LAC ).
16 SATAWU v IKAPA Coaches (A Division of Cullinan Holdings) (2021) 42 ILJ 894 (LC ).
17 Kimberley Ekapa Mining Joint Venture v NUM (2021) 42 ILJ 761 (LAC ).
18 NEHAWU v University of Fort Hare (1998) 19 ILJ 122 (LC ).
19 Van Rensburg v Austen Safe Co (1998) 19 ILJ 158 (LC ). See also NEWU v Mintroad Saw Mills (1998) 19 ILJ 95 (LC ), in which the union had
refused to consult until the employer physically handed over all its books and financial records. For other examples, see Johnson & Johnson v
CWIU (1999) 20 ILJ 89 (LAC ); FGWU v Fidelity Guards Holdings t/a Pritchard Cleaning (1999) 20 ILJ 2052 (LC ); NEHAWU v Agricultural Research Council
(2000) 5 LLD 403 (LC ); Visser v Sanlam [2000] 8 BLLR 969 (LC ); confirmed on appeal: Visser v Sanlam (2001) 22 ILJ 666 (LAC ).
20 Wanda v Toyota SA Marketing, a Division of Toyota SA Motors [2003] 2 BLLR 224 (LAC ).
21 See also Smith v Courier Freight (2008) 29 ILJ 420 (LC ); NUMSA v Kaefer Thermal Contracting Services [2002] 6 BLLR 570 (LC ); Chester
Wholesale Meats v NIWUSA (2006) 27 ILJ 915 (LAC ).
22 MWU/Solidarity obo Macgregor v SANParks (2006) 27 ILJ 818 (LC ).
23 (2015) 36 ILJ 2773 (LAC ).
24 (2017) 38 ILJ 360 (LC ).
25 NUM v Alexcor (2004) 25 ILJ 2034 (LC ).
26 CWIU v Johnson & Johnson [1997] 9 BLLR 1186 (LC ).
27 NUM v Ascoreg (1999) 20 ILJ 2649 (LC ).
28 See, for example, Whall v Brandadd Marketing (1999) 20 ILJ 1314 (LC ); Alpha Plant & Services v Simmonds (2001) 22 ILJ 359 (LAC ).
29 (2000) 21 ILJ 649 (LC ).
30 (2005) 26 ILJ 889 (LC ).
31 AMCU v Sibanye Gold t/a Sibanye Stillwater (1) (2019) 40 ILJ 1597 (LC ).

Section 189A imposes further procedural obligations on larger employers ‘contemplating’ retrenching certain numbers of employees.
These obligations apply if an employer with between 50 and 200 employees contemplates dismissing more than 10 employees, or 20
or more employees in the case of employers with a total workforce of between 200 and 300, 30 or more employees in the case of
an employer with a workforce of between 300 and 400, 40 or more employees in the case of an employer with a workforce of
between 400 and 500, or 50 or more employees in the case of an employer with a workforce of more than 500. The additional
obligations also apply when the total number of employees retrenched in a period of 12 months equals or exceeds these respective
numbers. 32
When these employers contemplate retrenching employees, the provisions of s 189A(2) to (5) apply. They read:
(2) In respect of any dismissal covered by this section—

(a) an employer must give notice of termination of employment in accordance with
the provisions of this section;
(b) despite section 65(1)(c), an employee may participate in a strike and an
employer may lock out in accordance with the provisions of this section;
(c) the consulting parties may agree to vary the time periods for facilitation or
consultation;
(d) a consulting party may not unreasonably refuse to extend the period for
consultation if such an extension is required to ensure meaningful consultation.
4th Ed, 2022, ch 17-p 385
(3) The C ommission must appoint a facilitator in terms of any regulations made under
subsection (6) to assist the parties engaged in consultations if—
(a) the employer has in its notice in terms of section 189(3) requested facilitation; or
(b) consulting parties representing the majority of employees whom the employer
contemplates dismissing have requested facilitation and have notified the
C ommission within 15 days of the notice.
(4) This section does not prevent an agreement to appoint a facilitator in circumstances
not contemplated in subsection (3).
(5) If a facilitator is appointed in terms of subsection (3) or (4) the facilitation must be
conducted in terms of any regulations made by the Minister under subsection (6) for the
conduct of such facilitations.
Section 189A requires employers falling within its terms to give notice to the relevant parties in the ordinary way. 33 The issuing of
the notice triggers the time limits discussed below. 34 Once notice has been given, the employer or the employees may request the
appointment of a facilitator, who may be, but need not necessarily be, a CCMA commissioner. 35 A CCMA commissioner may accept
such a request only if the employer is contemplating retrenching the number of employees specified in s 189A. 36
Once appointed, commissioners may only advise the parties; they cannot make binding rulings, such as determining the scope of
the workplace in which consultations were required. 37
The appointed facilitator must attempt to ‘facilitate’ the process in accordance with regulations promulgated by the minister.
These regulations may stipulate a time required for the facilitation exercise. Whatever that time may be, the employer will be
entitled to terminate the services on notice only 60 days after notice was given of the proposed retrenchment if facilitation is
chosen. 38 The employees or the union may then either embark on a protected strike or refer a dispute to the Labour Court.
The 60-day period referred to in s 189A(7) begins to run from the date on which the employer gave notice of the request for
facilitation. When it ends is uncertain. In NUM v De Beers Consolidated Mines, 39 the court held that the employer cannot give
notice of retrenchment earlier. In Leoni Wiring Systems (East London) v
4th Ed, 2022, ch 17-p 386
NUM, 40 however, the court held that, where there is no remaining issue in dispute, notice may be given earlier. The position was
clarified by the LAC in the appeal against De Beers. 41 De Beers gave four employees notice that their retrenchment was being
‘contemplated’. Consultations followed, but six weeks later the company told the employees that a month’s notice of termination of
their employment would start running the following week. Before their notice expired, the union referred an unfair dismissal dispute
to the CCMA. When the notice period expired, the employees were dismissed. The LAC held that, while the employees may not
have formally declared a dispute during the consultations, they had specifically challenged the dismissals when they referred the
matter to the CCMA. That this occurred long after the termination notices had been issued did not mean that a dispute did not
exist before then, as the company argued.
The purpose of both ss 189 and 189A must be considered when deciding the meaning of the word ‘dispute’ in s 189A. Section
189 obliges employers to consult over a range of issues when contemplating dismissals for operational requirements. This procedure
envisages a dispute over whether the mooted dismissals should be effected, and the consultation process is designed to facilitate
consensus. In De Beers, consensus had not been reached on how to deal with the affected employees when the termination
notices were issued. This situation constituted a dispute within the meaning of that term in s 189, and the dispute remained
unresolved. The Labour Court had therefore correctly declared the notices of termination invalid.
Where a facilitator is not appointed, a further prerequisite for the giving of notice of termination is that the dispute must have
been referred for conciliation to the CCMA. 42
During consultation the employees and/or their union may apply to the Labour Court for an order compelling the employer to
comply with a fair procedure before retrenching, and interdicting the employer from retrenching before a fair procedure has been
followed. What amounts to a fair procedure is determined with reference to s 189, and includes consultation on selection
criteria. 43 The court may order the employer to compensate the employees if an interdict is deemed appropriate. But unconditional
permanent reinstatement is not permissible in actions under s 189A(13). 44
If a facilitator is not appointed, either party may refer a dispute to the CCMA 30 days after the notice of proposed retrenchment
was issued. The employer may not give the affected employees notice of termination of their contracts of employment until 30
days after the referral. The employees or their union may then give notice of a strike, or refer the dispute to the Labour Court in
terms of sub-s (13)
4th Ed, 2022, ch 17-p 387
on notice of a motion supported by affidavit(s). 45 In that event, the Labour Court may order the employer to comply with a fair
procedure, restrain the employer from dismissing any employee before complying with a fair procedure, direct the employer to
reinstate employees until it has complied with a fair procedure, or award compensation if no other order is appropriate.
Applications under s 189A(13) must be brought within 30 days of the date on which the employer gave notice of the proposed
retrenchments or, if no notice is given, within 30 days of the date of the dismissal. 46 The court will not lightly condone a late
application, especially one filed long after the retrenchment has been completed. 47 Such applications should be launched with
caution; the Labour Court has held that s 189A(13) is not intended to halt consultation while the employer is genuinely trying to
remedy an earlier defect in the process. 48 The court has also held that s 189A(13) should not be used to attempt to secure relief
after the retrenchment process has been completed.
In IBSA v Old Mutual Services & Technology Administration, 49 the court noted that, although the timing of such applications is
not linked to the date when the alleged procedural unfairness occurred, that date is relevant when deciding whether relief should
be granted. If orders of reinstatement were to be granted after the retrenchment process had been completed, they could have a
disruptive effect on the employer and the remaining employees.
The same applies to orders of compensation. The court held that in such cases the employee’s remedy is an action under s
191(5)(b)(ii). To hold otherwise could result in a duplication of actions and possible conflicting awards by different judges.
The primary purpose of actions under s 189A(13) is therefore to enable the Labour Court to compel retrenching employers to
comply with a fair procedure before dismissals have been effected. Action proceedings should not be used as a substitute for
applications under s 191(5)(b)(ii) except in the most exceptional of circumstances. Compensation envisaged by s 189A(13)(d) will
be awarded only in those situations where orders under sub-s (13)(a) and (b) are indeed inappropriate. This cannot be so when, as
in Old Mutual Services & Technology Administration, the retrenchment has been completed.
The LAC finally confirmed these judgments in Revan Civil Engineering Contractors v NUM. 50 The court reasoned that that
provision ‘cannot be read so as to preclude a party from alleging that the very foundation for a claim based on substantive
unfairness of a dismissal does not exist in law’. If that were the case, ‘it would lead to the absurd result that employees could be
reinstated or compensated although the law did not recognise that they had lost their jobs’. But
4th Ed, 2022, ch 17-p 388
the LAC did an about turn in Edcon Group v Steenkamp. 51 Ms Steenkamp and about 3 000 employees retrenched by Edcon relied
squarely on De Beers Group Services and Revan Civil Engineering when they applied for orders reinstating them because the
company had neither referred a dispute for conciliation before issuing them with dismissal notices, nor given them the required
notice. The company asked the LAC to sit as a court of first instance to rule on whether De Beers and Revan Civil Engineering were
wrong. The Edgars court noted that De Beers was based on two central findings: first, that a dispute must be referred to the
CCMA for conciliation 30 days after the s 189(3) notice was issued. In Edcon, the court found reading this requirement into s
189A(8) justifiable. Otherwise, the exemption from the requirement of conciliation where facilitation is chosen would make little
sense. There was accordingly a casus omissus in the legislation which the courts were obliged to fill. But in Edcon, the focus was
on the second key finding in the De Beers judgment – that a dismissal which does not comply with the requirements of s 189A(8) is
invalid. The Edcon court thought otherwise. The court held that s 189A(8), while using imperative language, does not expressly
state the consequences of non-compliance. Whether the legislature intended to visit non-compliance with s 189A(13) with nullity is
a question of interpretation. That a statute provides specific remedies for breach is a significant factor counting against the
inference of invalidity. So, too, is whether a declaration of invalidity would have disproportionate consequences.
The LAC had not considered these principles in De Beers. The Edcon court did so. If De Beers were followed, a dismissal under s
189A is removed entirely from the scope of Chapter VIII of the LRA, and can never be assessed on the basis of fairness. The court
saw the idea of a dismissal being a ‘nullity’ as incompatible with the provisions of s 189 in general, which is also cast in peremptory
terms. The idea of dismissal being a nullity was also seen to conflict with the scheme of s 189A itself, which provides discreet
remedies for correcting flaws of a procedural nature. The LAC therefore found that the legislature could not have intended
breaches of s 189A to visit dismissals with nullity. The court accordingly upheld the application and ruled that non-compliance with
the provisions of s 189A does not visit dismissals with nullity. The LAC’s judgment was upheld by a divided Constitutional Court, 52
and for much the same reasons. 53 But one of the justices in Edcon remarked that the court’s finding was not necessarily the end
of the road for the employees as nothing prevented them from referring a dispute against under s 189A(13), obviously together
with an application or condonation. They did so, and the Labour Court granted condonation, mainly ‘in the interests of justice’. The
matter went back to the LAC. A unanimous bench dismissed the appeal, confirming that applications under s 189A(13) are
inherently urgent. 54
4th Ed, 2022, ch 17-p 389
The court may also decline relief under s 189A(13) if consultations are still ongoing and the employer has not yet finally decided
to retrench, 55 where the union has already referred a dispute in terms of 191(5)(b)(ii), 56 and where the application is merely
being used to delay a fair consultation process. 57
It has been held that an individual lacks locus standi to bring an application under s 189A(13) because they are not included
among ‘consulting parties’ if the employer consulted with registered unions. 58
Employees may not refer the matter to the Labour Court once they have elected to strike. Employees may also engage in
secondary strikes in support of fellow workers who are about to be retrenched, provided that the CCMA is given 30 days to attempt
to conciliate the dispute between the secondary strikers and their employers. The retrenching employer may also engage in a lock-
out, but only if the employees have given notice of their intention to strike.
If, after launching an application in terms of s 189A(13), the employees wish to refer the matter for trial under s 191(5)(b)(ii)
(the normal route for dismissal matters), the dispute must first be referred for conciliation. 59
Applications under s 189A(13) are designed only for challenges to the procedural fairness of retrenchments; substantive
challenges must be referred for trial under s 191(5)(b)(ii). Section 189A(18) states that the Labour Court ‘may not adjudicate a
dispute about the procedural fairness of a dismissal based on operational requirements in any dispute referred to in terms of s
191(5)(b)(ii)’. In NUMSA v SA Five Engineering, 60 the court pointed out that this section is drafted in terms so wide that, read
literally, it precludes the court from adjudicating the procedural fairness of any retrenchment referred to s 191(5)(b)(ii). However, it
seems clear that that section is intended to apply only to the adjudication of disputes which are referred for trial if the parties have
already brought an application under s 189A(13).
Nothing prevents a court hearing an application in terms of s 189A(13) from referring disputes of fact on the papers to the trial
roll for the hearing of oral evidence and to postpone the trial on the substantive issue until the applicants had referred the dispute
to the CCMA for conciliation. 61
A further issue concerning the relationship between ss 189 and 189A was raised in Continental Tyre SA v NUMSA: 62 if an
employer commences a retrenchment exercise under s 189 of the LRA and then expands the target of possible retrenchees to
beyond the threshold set by s 189A, must the employer scrap the earlier procedure and start afresh? The question arose because s
189A involves a procedure and
4th Ed, 2022, ch 17-p 390
consequences different from those of small-scale retrenchments. Continental had commenced a retrenchment exercise in two
departments after employees refused to accept a proposed change to the shift system. Before that exercise was completed, a
sudden fall in the international tyre market forced the company to consider reducing the workforce across the factory. Because the
numbers of employees possibly affected now exceeded the threshold in s 189A, the company issued notices in terms of that
section. The Labour Court granted an interdict halting the retrenchment consultations already in progress, and directing the
company to include all affected employees in the s 189A process.
The LAC held that that decision was wrong for two reasons: firstly that, when the company issued s 189A notices, it had not
yet reached the stage of ‘contemplating’ retrenchments; and secondly that, when those notices were issued, the s 189
consultations were all but complete. This meant that, in the circumstances, the two processes could be treated as distinct and
independent. But the court added that in normal circumstances, an employer may run s 189 and s 189A processes in tandem.
If the employer manages to conclude a collective agreement resolving the retrenchment exercise with a majority union, the
minority union cannot bring an application under s 198A(13). 63
32 A union that brings an application under s 189A must set out in the founding affidavit facts which bring the employer within the scope of the
section, ie the size of the total workforce and the number of employees involved in the retrenchment consultation: NUMSA v Greenfields Labour
Hire (2004) 25 ILJ 558 (LC ) at 559H.
33 See below.
34 SASBO obo Fourie v Nedbank (2020) 41 ILJ 500 (LC ).
35 In Northern Cape Allied Workers Union obo Sethlego v CCMA (2009) 30 ILJ 1299 (LC ) the court dismissed the union’s argument that the
retrenchment was unfair because the employer had failed to apply for the appointment of a facilitator. As the court said, nothing prevented the union
from arranging for a facilitator itself.
36 ICHAWU obo Members and Leilani Restaurants (2010) 31 ILJ 1967 (C C MA).
37 NUM v CCMA (2011) 32 ILJ 1975 (LC ).
38 Section 189A(7).
39 (2006) 27 ILJ 1909 (LC ). This was confirmed in NUM v De Beers Group Services (2009) 30 ILJ 1880 (LC ).
40 (2007) 28 ILJ 642 (LC ).
41 De Beers Group Services v NUM (2011) 32 ILJ 1293 (LAC ).
42 FAWU v Cold Chain (2015) 36 ILJ 226 (LC ).
43 Gijima AST v Hopley (2014) 35 ILJ 2115 (LAC ).
44 Woolworths v SACCAWU (2018) 39 ILJ 222 (LAC ).
45 The mere fact that the C C MA is involved in the conciliation process does not give the commission jurisdiction to conciliate the dispute if the
parties fall within the registered scope of a bargaining council; if the parties do not reach agreement during the facilitation process, the dispute must be
referred to the council for conciliation: see Zero Appliances v CCMA (2007) 28 ILJ 1836 (LC ).
47 Edcon v Steenkamp (2018) 39 ILJ 531 (LAC ); Zero Appliances v CCMA (2007) 28 ILJ 1836 (LC ) at [24]–[26].
48 RAWUSA v Schuurman Metal Pressing (2004) 25 ILJ 2376 (LC ).
49 (2006) 27 ILJ 1026 (LC ).
50 (2012) 33 ILJ 1846 (LAC ).
51 (2015) 36 ILJ 1469 (LAC ).
52 Steenkamp v Edcon (NUMSA intervening) (2016) 37 ILJ 564 (C C ).
53 Edcon was followed and applied in Cold Chain v FAWU (2020) 41 ILJ 2067 (LAC ).
54 See Steenkamp v Edcon (NUMSA intervening) (2016) 37 ILJ 564 (C C ).
55 SASBO – Finance Union v Absa Bank [2011] 12 BLLR 1232 (LC ); NUMSA v Shakespear Shopfitters (2008) 29 ILJ 1960 (LC ).
56 NUMSA obo Members v Bell Equipment Co SA (2011) 32 ILJ 382 (LC ); SACCAWU v Southern Sun Hotel Interests (2017) 38 ILJ 463 (LC ).
57 See, for example, NEHAWU v Minister of Trade, Industry & Competition (2021) 42 ILJ 1992 (LC ).
58 Ketse v Telkom SA (2015) 36 ILJ 1592 (LC ).
59 NUMSA v SA Five Engineering (2004) 25 ILJ 2358 (LC ); Catering Pleasure & Food Workers Union v National Brands (2007) 28 ILJ 1064 (LC ).
60 (2004) 25 ILJ 2358 (LC ). See also Catering Pleasure & Food Workers Union v National Brands (2007) 28 ILJ 1064 (LC ).
61 See also Thomas v Fidelity Corporate Services (2007) 28 ILJ 424 (LC ), in which the court followed SA Five and adopted the same expedient.
62 (2008) 29 ILJ 2561 (LAC ).
63 AUSA v SAA (2015) 36 ILJ 3030 (LC ).

Under the 1956 LRA, there was much debate over when consultation should commence – ie after the decision to retrench is taken
in principle, or immediately when a policy decision is taken that might result in job losses. 64 The current Act dispels some of the
uncertainty surrounding this issue by stating that consultation must commence when an employer contemplates dismissing one or
more employees for operational reasons. This provision indicates that the decision to retrench must not have been taken before the
consultation process begins; consultation over such issues as seeking alternatives to retrenchment will serve no purpose if the end
result is a fait accompli. 65
The word ‘contemplates’ is one of degree. Normally, a decision to retrench follows a process of soul-searching by management,
in which various restructuring proposals may be considered. It may be difficult to establish at what point in this process the
employer may be said to begin ‘contemplating staff reductions. The LRA seeks to ensure that affected employees or their union
should be notified when management decides in principle on a policy (be it rationalisation, restructuring, the sale of part of the
business, the closure of lines, or whatever) that could conceivably result in retrenchment. The earlier the employees or unions are
engaged in consultation, the more meaningful their role is likely to be.
4th Ed, 2022, ch 17-p 391
The test for determining when an employer contemplates retrenchment is objective. A court will not simply accept the
employer’s claim in this regard. In Manyaka v Van de Wetering Engineering, 66 the court declared a retrenchment unfair because
the employer had kept the employee ‘in the dark’ for some time after it took the decision that resulted in his retrenchment.
After Atlantis Diesel Engines v NUMSA, 67 case law suggests that employers are entitled to reserve discussion for management
until retrenchment arises as a possible option. Only then must the employer inform the employees or their union. 68 This does not
mean that management may not take a prima facie view that retrenchment is necessary. A board resolution that referred to the
need to reduce of the number of stores and stated that staff numbers ‘must’ be reduced was held not to imply that the company
had made up its mind before consulting. 69 So, too, was a decision by an airline to reduce routes, even though management had
decided at the same time to reduce staff in the longer term by a process of attrition. 70
Where employers engage in restructuring which they perceive might result in job losses, consultations should commence before
the decision to restructure is finalised. 71 Companies under business rescue may not commence retrenchment proceedings until the
rescue practitioners has produced a business rescue plan. 72
Subject to what is said in the following section, the prudent employer will therefore set the process of consultation in process as
soon as possible.
64 Earlier cases tended to support the view that the obligation to consult arose only after the decision to retrench was taken. See BCAWU v Murray
& Roberts Building (Tvl) (1991) 12 ILJ 112 (LAC ) at 121G and Môrester Bande v NUMSA (1990) 11 ILJ 687 (LAC ).
65 See, for example, Gold Fields Trust v Stander [2002] 9 BLLR 797 (LAC ); Chetty v Scotts Select a Shoe (1998) 19 ILJ 1465 (LC ).
66 [1997] 11 BLLR 1458 (LC ).
67 (1994) 15 ILJ 1247 (A). See also Fletcher v Elna Sewing Machine Centres (2000) 21 ILJ 603 (LC ); CWIU v Latex Surgical Products (2002) 23 ILJ
1386 (LC ).
68 See also Imperial Transport Services v Stirling (1999) 4 LLD 164 (LAC ), in which it was held that employers must begin consultations as soon as
structural changes are envisaged which might lead to retrenchment.
69 SACCAWU v JDG Trading (2019) 40 ILJ 140 (LAC ).
70 NUMSA obo Members v SAA (In Business Rescue) (2020) 41 ILJ 1402 (LC ).
71 De Almeida v Reeflords Property Development (2020) 41 ILJ 637 (LC ).
72 SAA (in Business Rescue) v NUMSA obo Members (2020) 41 ILJ 2113 (LAC ).
6. Prior notice
The LRA requires an employer contemplating retrenchment to issue a written notice inviting the other party to consult and to
disclose in writing ‘all relevant information’. 73 If a notice is not issued, the subsequent procedure will be rendered unfair from the
outset. 74
Notice must be given sufficiently in advance of the proposed retrenchment to enable the employees to prepare for
consultations. 75 The structure of s 189 suggests that the notice and the information should be contained in the same document,
ie the notice of retrenchment should contain the required information. This information should include:
• the reasons for the proposed dismissals, the alternatives considered before the dismissals were proposed and the reasons why
these alternatives were rejected
4th Ed, 2022, ch 17-p 392
• the number of employees likely to be affected and the job categories in which they are employed
• the proposed methods of selecting the employees for dismissal
• the time the dismissals are likely to take effect
• the severance pay proposed
• the assistance that will be offered the employees likely to be dismissed
• the possibility of future re-employment of employees who are ultimately dismissed
• the number of employees employed by the employer
• the number of employees retrenched in the previous 12 months. 76
The detail the employer is required to provide in the retrenchment notice indicates that employers must fully consider the manner in
which a retrenchment is to be effected before informing the other consulting parties. This suggests that the time at which notice
must be given need not be quite as early as some cases decided under the 1956 LRA have suggested. An employer cannot be
expected to have thought through such issues as the number of employees likely to be affected and the timing of proposed
dismissals when it has only decided to adopt a policy which might result in job losses.
The LAC has confirmed that employers need not regurgitate the entire contents of s 189(3) when compiling retrenchment
notices. 77 As the court pointed out, premature commitment to all the details of the proposed retrenchment might inhibit rather
than promote worthwhile consultation. The overriding question remains: has the employer genuinely given employees potentially
affected by a decision that might lead to job losses an opportunity to suggest alternatives to retrenchment? This process need not
necessarily begin with a statement by the employer at the outset of consultation that it has committed itself to the various issues
set out in s 189(3). These issues may be dealt with incrementally, as consultations progress.
In terms of s 189A (see above), the date on which the notice of retrenchment is issued is critical because dismissals cannot be
effected until 60 days after that date. In the case of retrenchments not covered by s 189A, the period between the date that the
notice of retrenchment is given and the date of the decision to dismiss can never itself provide a ground for holding a retrenchment
unfair. The purpose of the notice is to give the other consulting parties time to prepare themselves for consultation and to furnish
them with sufficient information to participate effectively in those consultations. The timing and content of the notice are therefore
relevant only for determining whether the consultations themselves were properly conducted. This must depend on the facts of
each case. However, the fact that the employer is in extremis will not necessarily excuse it from complying to the extent possible
with the obligation to consult; 78 urgency may merely excuse some truncation of the consultation period.
4th Ed, 2022, ch 17-p 393
The retrenchment notice defines the parameters of the subsequent consultations, as well as their duration. Employers may not
rely on an earlier notice once having retrenched employees after a first round of negotiations; if further retrenchments are
contemplated, a new notice must be issued. 79
73 Section 189(3).
74 SASBO obo Fourie v Nedbank (2020) 41 ILJ 500 (LC ).
75 Louw v Micor Shipping (2000) 5 LLD 401 (LC ).
76 Section 189(3). These issues suggest that before issuing the notice, management must have considered the need for retrenchment in some
detail (see above).
77 Chester Wholesale Meats v NIWUSA (2006) 27 ILJ 915 (LAC ).
78 Whall v Brandadd Marketing (1999) 20 ILJ 1314 (LC ).
79 NUMSA v General Motors SA (2009) 30 ILJ 1861 (LC ).

As with a tango, it takes at least two to consult. However, the onus of initiating pre-retrenchment consultations rests on the
employer. The employer must invite affected parties or their representatives (see below) to consult and to supply them with the
required information. Clearly, only the employer of affected parties need participate in these consultations, although employers are
free to invite representatives, such as labour consultants or lawyers, to conduct consultations on their behalf. In consultations
arising from the possible retrenchment of employees during a transfer of business, it may be necessary for the old and the new
employees to consult together. 80
Special considerations also apply in the mining sector, where obligations rest on both mining rights holders and employers. 81
80 See C hapter 19.

81 See AMCU v Buffalo Coal Dundee (2016) 37 ILJ 2035 (LAC ); NUM v Ezulweni Mining Company (2017) 38 ILJ 448 (LC ).

Under the 1956 LRA, there was no specific statutory direction concerning the parties with whom an employer was required to
consult during a retrenchment exercise. The general principle accepted by the industrial court was that the employer was required
to consult the affected employees or their representatives. Where there was an established collective bargaining relationship with a
majority union, the employer was required to consult with that union; there was no duty to consult separately with the affected
employees or with a minority union. 82
Now, s 189(1) of the LRA provides that, before retrenching, an employer must consult:
(a) any person whom the employer is required to consult in terms of a collective
agreement;
(b) if there is no collective agreement that requires consultation—
(i) a workplace forum, if the employees likely to be affected by the proposed
dismissals are employed in a workplace in respect of which there is a
workplace forum; and
(ii) any registered trade union whose members are likely to be affected by
the proposed dismissals;
4th Ed, 2022, ch 17-p 394
(c) if there is no workplace forum in the workplace in which the employees likely to
be affected by the proposed dismissals are employed, any registered trade union
whose members are likely to be affected by the proposed dismissals; or
(d) if there is no such trade union, the employees likely to be affected by the
proposed dismissals or their representatives nominated for that purpose.
Section 189(1) contemplates a hierarchy of consulting parties; each level excluding those below it. So, if a workplace forum is in
place, the employer is required to consult the forum and any registered union whose members may be affected. In Sikhosana v
Sasol Synthetic Fuels, 83 and NUMSA v Anglo Gold Ashanti, 84 the Labour Court applied s 189(1) literally. 85 The ‘hierarchical
principle’ applies also to retrenchments conducted under s 189A. 86
Section 189(1), so interpreted, has been ruled constitutionally compliant by the LAC, 87 and, by the narrowest of majorities, the
Constitutional Court. 88
The collective agreement referred to in s 189(1)(a) means an agreement in terms of which the parties must consult over
proposed retrenchments. The mere fact that an employer recognises a particular union as a collective bargaining agent for
purposes of negotiating terms and conditions of employment does not relieve it of its obligation to consult other unions. 89
It has been held in a number of judgments that employers need not consult individual employees while consulting or after
consultation with their union. 90 However, in exceptional circumstances an employer may be required to consult a minority union
before retrenching its members. So, for example, where the minority union was initially included in consultations and later excluded
for no apparent reason, the retrenchment of its members was ruled procedurally unfair. 91 And in one case the Labour Court held
that, because the employer had undertaken to consult separately with non-union employees, its failure to consult them rendered
their retrenchment unfair, even though the employer had fully consulted the recognised union. 92
In accordance with the strict approach adopted in the application of s 189(1), the Labour Court has ruled against employers who
attempt to bypass unions and
4th Ed, 2022, ch 17-p 395
consult directly with their members. 93 The court has held that an employer acted unfairly by consulting shop stewards rather than
full-time union officials, as had been agreed. 94 But in the absence of agreement, consultation with a union’s shop stewards may be
deemed to constitute consultation with their union. 95 An employer is not obliged to consult affected employees themselves over
issues already covered in consultation with their union, 96 even if those employees have since resigned from the union. Where an
employer engaged the services of a labour consultant to conduct retrenchment consultations, it was held to have acted unfairly
when it refused a request by non-unionised employees to appoint a consultant of their own. 97
Unions are entitled to be consulted in respect of threatened members even if they fall outside the bargaining unit for which the
employees are recognised. 98
It has been held that employers must appoint representatives for purposes of consultation when for some reason non-unionised
employees themselves have failed to do so. 99 However, should an employer set up a committee to negotiate on behalf of its
employees, it must ensure that the committee is properly representative. In one case, 100 management appointed as chairman of
the employee’s consulting committee a manager who had played a key role in formulating the policy that led to the retrenchment.
The employee’s retrenchment was ruled procedurally unfair.
Once an employer has exhaustively consulted all relevant stakeholders before initiating retrenchment consultations, it need not
traverse all the ground covered in the earlier consultations all over again. 101
Even when it is obvious that a particular employee will be selected because, say, he is the shortest-serving employee, the
employer must still consult with all employees in the affected area. It may well be that one of the employee’s colleagues might, for
example, accept a severance package or early retirement. 102 Senior employees are also entitled to be consulted if they are
selected for retrenchment.
An employer is obliged to consult only if the workers affected are its employees, properly so construed, 103 and if the dismissal
is indeed a dismissal for operational reasons. 104 The termination of the contract of an independent contractor does not, therefore,
attract an obligation to consult affected employees, unless the contractor
4th Ed, 2022, ch 17-p 396
is a temporary service provider. Nor is an employer required to consult if the dismissal is related to the conduct or capacity of the
employee. 105
Self-evidently, the obligation to consult arises only if the proposed termination of the employment contract will constitute a
dismissal. Where, for example, a fixed-term contract is not renewed for operational reasons, the employer need not consult unless
the employees can prove that they had a reasonable expectation that the contract would be renewed. 106
When it comes to the obligation to consult, the status of affected employees is, generally speaking, irrelevant. An employer is
obliged to consult over the retrenchment of probationary employees (or even temporary employees), 107 on the one hand, and
senior managerial employees, on the other. 108 Although the Labour Court accepts that the obligation to consult may be somewhat
relaxed in the case of senior managerial employees, 109 they are still entitled to be consulted. 110 The LAC has also held,
somewhat controversially, that an employer’s obligation to consult employees with short service may be less onerous than its duty
to consult long-serving employees. 111
Must an employer consult all employees, or their representatives, as an undifferentiated mass, or may an employer divide
employees into groups and consult them separately? In Highveld Steel & Vanadium Corporation v NUMSA, 112 the Labour Court had
held that because consultations had been prematurely called off in some divisions of the company, the retrenchment of employees
in all divisions was unfair. On appeal, the LAC held that an employer may, ‘for convenience or some other adequate reason, group
several categories of employee within the s 189 consultation process’. This meant in turn that ‘no reason of logic or fairness
suggests itself why the employer should not in principle, and on appropriate facts, be entitled to treat the consultations as closed
in respect of one category but as remaining open in respect of another category’.
82 Ngiba v Van Dyck Carpets (1988) 9 ILJ 453 (IC ); BAISEMWU v Iscor (1990) 11 ILJ 156 (IC ); Mbobo v Randfontein Estates Gold Mining
Co (1992) 13 ILJ 1485 (IC ); Ntsangani v Golden Lay Farms (1992) 13 ILJ 1199 (IC ); SA Polymer Holdings t/a Mega-Pipe v Llale (1994) 15 ILJ 277 (LAC ).
83 (2000) 21 ILJ 649 (LC ).
84 [2018] 11 BLLR 1128 (LC ).
85 See also De Laan v Van Dyk Carpet Company [2003] 3 BLLR 257 (LC ) and Baloyi v M & P Manufacturing (2001) 22 ILJ 391 (LAC ) (employer not
required to consult with individuals after consulting union). This approach may have unfair results where a minority union represents the interests of a
specialised or special-interest group among employees: see, for example, SA Polymer Holdings t/a Mega-Pipe v Llale (1994) 15 ILJ 277 (LAC ).
86 Ketse v Telkom SA (2015) 36 ILJ 1592 (LC ).
87 AMCU v Royal Bafokeng Platinum (2018) 39 ILJ 2205 (LAC ).
88 AMCU v Royal Bafokeng Platinum (2020) 41 ILJ 555 (C C ).
89 NUMSA v Aunde SA (2010) 31 ILJ 133 (LC ), upheld on appeal: Aunde SA v NUMSA (2011) 32 ILJ 2617 (LAC ).
90 Oosthuizen v Telkom SA (2007) 28 ILJ 2531 (LAC ) at [31]; Long v Reumech Gear Ratio (a division of Reunert Mechanical Systems) (2002) 23
ILJ 724 (LC ); Mbombo v Rennies Bulk Terminals (2002) 23 ILJ 1587 (LC ).
91 Mahlinza v Zulu Nyala Game Ranch [2004] 3 BLLR 245 (LC ).
92 SACCAWU v Amalgamated Retailers (2002) 23 ILJ 165 (LC ).
93 See, for example, FAWU v National Sorghum Breweries (1998) 19 ILJ 613 (LC ) and Van der Merwe v McDuling Motors [1998] 3 BLLR 332 (LC ).
94 Pretorius v Blyvooruitzicht Gold Mining Co (1999) 20 ILJ 2917 (LC ).
95 Singh v Mondi Paper (2000) 21 ILJ 966 (LC ).
96 Baloyi v M & P Manufacturing (2001) 22 ILJ 391 (LAC ).
97 Workers Labour Consultants obo Petrus Khoza v Zero Appliances (1999) 4 LLD 733 (LC ).
98 United National Breweries (SA) v Khanyeza (2006) 27 ILJ 150 (LAC ).
99 Gonya v Besterecta (1986) 7 ILJ 39 (LC ).
100 Chothia v Hall Longmore & Co (1997) 18 ILJ 1090 (LC ).
101 NEHAWU v University of Pretoria (2006) 27 ILJ 117 (LAC ).
102 Delport v Parts Incorporated Africa of Genuine Parts [2002] 8 BLLR 755 (LC ).
103 See Grogan Employment Rights 3 ed (Juta 2019) C hapters 2 and 3.
105 This is why the correct designation of a dismissal can be of great importance. As indicated elsewhere, dismissals for incompatibility and those
effected at the instance of third parties fall in the grey area between dismissals related to conduct and capacity and those related to operational
requirements. The true reason for the dismissal must be carefully assessed in these circumstances.
106 See, for example, Auf der Heyde v UCT (2000) 21 ILJ 1758 (LC ) and UCT v Auf der Heyde (2001) 22 ILJ 2647 (LAC ). In that case, the
university was held by the Labour C ourt to have dismissed the employee unfairly because it had not consulted with him before the decision was taken
not to renew his contract. On appeal, however, the non-renewal of the fixed-term contract was held not to have constituted a dismissal.
107 Lanzerac Manor v De Vries (1996) 17 ILJ 11 (A).
108 Lanzerac Manor supra.
109 Van Rensburg v Austen Safe Co (1998) 19 ILJ 158 (LC ).
110 Kotze v Rebel Discount Liquor Group (2000) 21 ILJ 129 (LAC ).
111 Alpha Plant & Services v Simmonds (2001) 22 ILJ 359 (LAC ).
112 (2004) 25 ILJ 71 (LAC ).

Whether employers are obliged to consult over the policy decision that may lead to the redundancy or retrenchment of employees
depends on when the employer is expected to initiate consultation (see above). The conflicting approaches to this question
adopted by the courts under the 1956 LRA reflect differences of opinion
4th Ed, 2022, ch 17-p 397
over the purpose of consultation. 113 Those who regard business decisions as the prerogative of management incline to the view
that no consultation is required over the decision that necessitates staff reductions; the purpose of consultation is merely to
ensure that business decisions, once taken, have as little impact as possible on the job security of employees. Those who regard
consultation as a means of ensuring that employees play a role in business decisions that impact on their job security view
consultation on the business decision itself as essential to that end.
It would be artificial to lay down an inflexible rule in this regard. As the industrial court recognised, 114 the ‘decision to retrench’
is not a simple two-stage process, divisible into a first phase in which the employer takes a business decision which may impact on
staff numbers, and a second phase in which the employer consults over the impact of that decision. The retrenchment process is
infinitely more complex. It may begin with a decision to achieve a particular business objective, followed by a series of further
decisions (perhaps by a series of companies within a group) on how to achieve that objective. In most cases, management is faced
with several choices on how the desired final result can be achieved. The function of a court is to determine, in the event of one or
more employees losing their jobs, whether the employer departed from standards which, in current industrial relations practice,
would be followed by a fair and reasonable employer and, if so, whether that departure was so unreasonable and unfair that it
tainted the process to the extent that the ultimate result was unfair to the employees.
The industrial court identified three main stages in attempts by employers to achieve economic, technological, structural or
similar objectives. These are:
• a policy decision by management to achieve a particular result
• a decision on the best way of achieving the desired result
• the implementation of the methods chosen to achieve the desired result.
On this view, the obligation to consult arises only in the third stage – if the implementation of the decision would entail terminating
the services of employees. 115
The LAC set the law on a different course in two important judgments. In Mohamedy’s v CCAWUSA, 116 the court held that,
after the employer had decided that losses in its building materials department were unacceptable, it should have given notice to
the union and commenced consultations before taking the final decision to close the department. In NUMSA v Atlantis Diesel
Engines, 117 the court accepted that the ‘two stage process’, suggested by the industrial court (above), is a useful way to
describe ‘the way in which a retrenchment exercise unfolds in practice’, but declined to uphold a decision of that court which had
been made on that basis. The LAC held that the aim of consultation is to seek to avoid or avert the termination of employment or,
where that proves impossible, to find ways of alleviating the hardship caused by the decision to dismiss. That being so, it is not
4th Ed, 2022, ch 17-p 398
open to management to decide unilaterally to terminate employment for operational reasons.
The LAC attempted to reconcile these conflicting views in CWIU v Sopelog. 118 The court held in that case that ‘at some stage’
before retrenching the employer is obliged to consult and that, while so doing, it must keep an open mind and seriously consider
bona fide proposals made by the employees or their representatives. While the employer may form the prima facie conclusion that
retrenchment appears necessary, it should not take a ‘final immutable’ decision to retrench before giving the employees an
opportunity to propose alternatives. In at least one case decided under the current LRA, the Labour Court has held that a
retrenchment was unfair because the employer failed to consult the affected employees on the decision to retrench. 119
The drafters of the LRA have given statutory expression to the latter approach. The adjudication of the substantive element of a
retrenchment involves a complex assessment of social, economic and business issues. The law seeks to encourage employers,
employees and their representatives to consider and exhaust all reasonable alternatives to ensure, as far as possible, two
objectives: the economic survival of the business and the livelihood of its employees. To confine the obligation to consult to the
implementation of the decision to dismiss would be to deny affected employees this opportunity.
113 See BCAWU v Murray & Roberts Building (Tvl) (1991) 12 ILJ 112 (LAC ); CSFWU v Aircondi Refrigeration (1990) 11 ILJ 532 (IC ); Môrester
Bande v NUMSA (1990) 11 ILJ 687 (LAC ); TGWU v City Council of the City of Durban (1991) 12 ILJ 156 (IC ).
114 In DIMES v Tongaat Town Board (1993) 2 LCD 54 (IC ).
115 See DIMES supra.
116 (1992) 13 ILJ 1174 (LAC ).
117 (1993) 14 ILJ 642 (LAC ).
118 (1994) 15 ILJ 90 (LAC ).
119 Vickers v Aquahydro Projects (1999) 20 ILJ 1308 (LC ).

Section 189(2) of the LRA requires an employer contemplating retrenchment to engage in a ‘meaningful joint consensus-seeking-
process’ and ‘attempt to reach consensus’ on various issues. That these issues are listed in the Act does not mean that the
employer may merely go through the motions of consulting on each; the courts have made it clear that consultation must not only
be ‘meaningful’ – in some circumstances employers must actually attempt to implement alternatives and, if they do not, to justify
why they have not.
The LRA reinforces this approach by requiring the parties to consult on ‘appropriate measures’ to avoid dismissals, to minimise the
number of dismissals and to change the timing of dismissals. Failure to consult on any of these issues will render the retrenchment
at least procedurally unfair. 120 The employer must give serious attention to employees’ proposals, even if in the end they prove
impracticable. 121 Woolworths learned this point the hard way when it declined even to consider the union’s suggestion that the
salaries of employees facing retrenchment should be reduced. 122
Once these measures have proved ineffective, consultation must commence on measures to minimise the adverse effects of
dismissals, the methods by which the employees will be selected for retrenchment, and the severance pay for
4th Ed, 2022, ch 17-p 399
dismissed employees. These topics need not be covered sequentially in the order set out in the Act. 123 They are discussed below.
Where only some positions in the workforce have become redundant, criteria for selecting the employees to be retrenched must be
discussed. In CEPPWAWU obo Gumede v Republican Press, 124 the court declared a retrenchment unfair because the subjective
criteria chosen for selection were not disclosed to the union. Selection criteria are discussed in Chapter 18.
Steps that can be taken to avoid retrenchment or reduce the number of dismissals depend on the exigencies of each case. The
reason for retrenchment, the employer’s conditions of employment, the nature of the employer’s operation, the levels of skill
required to keep the operation going after retrenchment, and the age profile of the workforce are among factors that determine the
appropriateness or otherwise of available alternatives. Some alternatives commonly proposed in retrenchment exercises are
indicated below. However, employers are not required to implement every conceivable alternative; retrenchment of a particular
employee is not necessarily unfair if the employer cannot prove that it was literally an action of last resort. 125 Nor need an
employer seek to convince an employee to accept a reasonable offer of alternative employment. 126
While employees are required during consultations to suggest possible alternatives to retrenchment, that debate must be
reciprocal. This is graphically illustrated by the facts in Johnson v Anglo Operations t/a Boart Longyear Operations, 127 in which Ms
Johnson was told that she was redundant and then given 21 days’ leave to think up ways to save her position. The court found
this a far cry from a situation in which an employee is given an ‘in principle’ decision and asked to indicate possible alternatives.
Possible ways of avoiding retrenchment include:
4th Ed, 2022, ch 17-p 400

A moratorium on recruitment, coupled with the reduction of the number of existing employees by natural attrition (through death,
retirement, disability, resignation or dismissal) is probably the least painful method of avoiding large-scale retrenchment. This
alternative is obviously slow, and the employer has no control over the levels of employees who are lost in the process.
Unions frequently call for the termination of the services of ‘contract’ or ‘casual’ workers before the retrenchment of full-time
employees. While this expedient may create positions for redundant employees, shedding casual workers will not necessarily have
this effect. It may well be that permanent employees are not prepared to accept tenuous employment as an alternative to
dismissal or that the employer needs ‘contract’ workers for special jobs. The alternative of shedding contract workers has been
complicated by ss 198A and 198B, which deems employees in ‘temporary service’ permanently employed by the employer after three
months. 128
The elimination or reduction of overtime is an obvious alternative to reducing the number of employees. The viability of this
alternative depends on the nature of the business; an employer who regularly resorts to overtime work may still need to retrench –
paying fewer workers to perform overtime may be less costly than retaining a large number of workers and abolishing overtime.
Employees who wish to be ‘retrenched’ voluntarily may be permitted to leave with severance benefits. This alternative may require
the employer to offer inducements to employees, such as relatively high severance pay. Such offers are normally made before the
employer engages in consultation over ‘compulsory’ retrenchment. However, if compulsory retrenchment is seen as a possibility, the
employer should consult the unions before offering voluntary retrenchment, as the terms on which voluntary retrenchment is
offered may affect its success. An employer’s offer of VSPs during consultation on other outstanding issues was held not to have
been unfair because this is a legitimate means of avoiding retrenchment. 129 To avoid the depletion of personnel with special skills
or experience employers usually reserve the right to accept or reject applications for voluntary retrenchment. 130 Employers should
ensure that they do not reject applications for voluntary retrenchment on an indefensible or discriminatory basis.
4th Ed, 2022, ch 17-p 401

To avoid retrenchment, employees may be willing to agree to take unpaid leave or accept layoffs. In such cases, the consent of
employees or their representatives must be obtained, unless the conditions of employment provide for such eventualities. Workers
who were dismissed instead of being laid off, as their union had suggested, when a hotel closed down for a lengthy period for
renovations, were held to have been unfairly dismissed. 131
Employees who have attained, or who will have attained normal retirement age at the date of the proposed retrenchment may be
retired in terms of the rules of the employer’s retirement fund. If employees have already reached compulsory retirement age, they
can be forced to take retirement. 132 Those who are still younger than that age cannot be compelled to do so, as this could
amount to a dismissal based on age discrimination. 133
Short time, or a reduction of normal working hours, is a recognised and generally accepted practice in the industrial sector. Short
time is usually regulated in bargaining council agreements, which define the circumstances in which it can be implemented, the
periods for which it can be worked, and the manner in which wages are calculated for the period concerned. The implementation of
short time is an acceptable alternative to retrenchment even if there is no agreement to that effect.
10.3.8 Redeployment or transfer 134
Transferring redundant employees to other jobs is another way of keeping them on the payroll, even if this is at lower rates of
pay. 135 In principle, employees may be transferred as a means of avoiding retrenchment even if the alternatives are in other cities
or provinces. 136 If there are suitable vacancies, redeployment usually presents no particular problems. If no suitable vacancies
exist, the possibility of ‘bumping’ may be considered, ie placing longer-serving employees in positions held by shorter-serving
employees, and retrenching the latter. The practice of bumping is considered in Chapter 18.
4th Ed, 2022, ch 17-p 402

The courts have recognised that, to save jobs, an employer may lawfully vary its employees’ conditions of service. In ECCAWUSA v
Shoprite Checkers t/a OK Krugersdorp, 137 the employer was faced with imminent financial collapse before its sale as a going
concern to the Shoprite group. The company and the union agreed that both parties would ‘take all reasonable measures’ to avoid
job losses, and that ‘flexible work practices’ would be introduced when necessary. When OK introduced new and more economical
shift patterns, the employees refused to accept them. The workers were then retrenched. The court found that ‘where the
amendment to terms and conditions of employment is proffered by an employer as an alternative to dismissal during a bona fide
retrenchment exercise and it is a reasonable alternative based upon the employer’s operational requirements, the employer will be
justified in dismissing employees who refuse to accept the alternative on offer’. 138
The LAC upheld this approach in the appeal against Fry’s Metals. 139 The court held that a final and irrevocable dismissal cannot
be used for the purpose of compelling employees to comply with a demand, and that it is permissible to retrench employees who
refuse to comply with a change of conditions of employment (in that case a change of shifts) if the change is implemented for valid
operational requirements. In CWIU v Algorax, 140 the court held that it was unnecessary to dismiss employees who refused to
accept the change proposed by the employer in that case (also a change in shifts) because the company could have achieved its
purposes without retrenching the employees. The court held that dismissing employees for refusing to accept changed shift
arrangements did not amount to an automatically unfair dismissal because this was a bona fide means of avoiding
retrenchment. 141
The LRA requires employers considering retrenchment to indicate when they propose terminating the services of redundant
employees. The proposed timetable may not give the employees or their representatives sufficient time to absorb the information
given to them or to formulate alternatives.
If any alternatives are effected by the employer, time may be needed to evaluate their effects. Although employees can use the
process of consultation to delay the moment of dismissal, the courts are not sympathetic to wilful dallying by unions. However, if
more time is needed for consultation, the prudent employer would grant it.
Retrenchment is an exercise in which employers who act with excessive haste will almost certainly repent at leisure. In one case
an employer was held to have
4th Ed, 2022, ch 17-p 403
acted fairly by advancing the agreed termination dates of employees selected for retrenchment. 142
Once retrenchment becomes inevitable, the employee parties should be afforded an opportunity to make representations on behalf
of individuals who may be particularly hard hit by retrenchment, or to suggest ways in which employees may be assisted in
obtaining alternative employment. Failure to consult selected employees on this issue may render a retrenchment procedurally
unfair, even if the employer has consulted adequately with the employee’s union over other issues. 143
Employers are not obliged to seek alternative work actively for retrenched employees with other employers. However, it is
possible that a court might hold that fairness requires a company in a group to seek positions among its corporate affiliates. 144
The LRA requires employers to select employees for retrenchment on the basis of criteria that are either agreed or, if not agreed,
which are ‘fair and objective’. 145 Selection must therefore be included in the subjects for consultation. 146 Criteria will only be
accepted as ‘agreed’ if all consulting unions have consented. 147
10.7 Severance pay
This is the last matter on which the LRA requires the parties to consult. Severance pay is the ultimate method of ‘softening the
blow’ of retrenchment. While the BCEA prescribes the minimum amount of severance pay to which employees are entitled, 148 the
LRA requires that the amount must still form the subject of consultation. Logically, the issue of severance pay should be discussed
at the end of the process when the other topics have been exhausted. 149 The extent of the statutory entitlement to severance
pay is discussed in Chapter 18.
120 SATAWU v Forecourt Express [2003] 8 BLLR 823 (LC ).

121 Vermeulen v Investgold [2015] 4 BLLR 447 (LC ).
122 SACCAWU v Woolworths (2019) 40 ILJ 87 (C C ).
123 AMCU v Shanduka Coal (2013) 34 ILJ 1519 (LC ) at [27]: ‘Ideally, the logical progression of discussions would follow the sequence of issues set
out in s 189(2). However, discussion on these issues often proceed in tandem, so that selection criteria might be discussed even though parties have not
yet agreed on the need or extent of any retrenchments. Nothing prevents this happening but to avoid misunderstandings parties would be well advised at
each round of consultations to review what has been agreed, what is still unresolved but requiring further consultation, and what is unresolved but where
neither party has anything new to suggest which might break the impasse on an issue.’
124 (2006) 27 ILJ 335 (LC ).
125 SACWU v Afrox (1999) 20 ILJ 1718 (LAC ) at 1728.
126 L & C Steinmuller (Africa) v Shepherd (2005) 26 ILJ 2359 (LAC ).
127 (2005) 26 ILJ 2216 (LC ).
128 These provisions are discussed in Employment Rights.
129 SACU v Telkom SA (2020) 41 ILJ 1425 (LC ).
130 For a case dealing with whether an employer may revoke an offer of voluntary retrenchment once it has been made see University of the
North v Franks (2002) 23 ILJ 1252 (LAC ) (followed on similar facts in Wiltshire v University of the North (2005) 26 ILJ 2440 (LC )).
131 SACCAWU obo Mvuyana v Oyster Box Hotel (2018) 39 ILJ 2337 (LC ).
132 On the basis that the termination of their employment does not constitute a dismissal.
134 Not to be confused with ‘bumping’, explained in C hapter 18. Bumping is a method of avoiding retrenchment after employees have been
selected for retrenchment. Redeployment or transfer in this context is a method of avoiding retrenchment altogether. It may be, however, that if an
employer does not consider these options, employees may have a claim to have been unfairly selected if they subsequently challenge their dismissals.
Failure to ‘bump’ might then arise.
135 Masilela v Leonard Dingler (2004) 25 ILJ 544 (LC ).
136 See SACCAWU v Gallo Africa (2005) 26 ILJ 2397 (LC ).
137 (2000) 21 ILJ 1347 (LC ).
138 See also MWASA v Independent Newspapers (2002) 23 ILJ 918 (LC ).
139 (2003) 24 ILJ 133 (LAC ).
140 (2003) 24 ILJ 1917 (LAC ).
141 See NUMSA v Aveng Trident Steel (A Division of Aveng Africa) (2019) 40 ILJ 2024 (LAC ). See further C hapter 7. The implications of unilateral
changes to terms and conditions of employment are discussed in C hapter 20.
142 Van Vuuren v Mondelez SA (2019) 40 ILJ 1106 (LC ).
143 Steyn v Driefontein Consolidated t/a West Driefontein (2001) 22 ILJ 231 (LC ).
144 Sikhosana v Sasol Synthetic Fuels (2000) 21 ILJ 649 (LC ).
145 See s 189(7). Selection is more fully discussed in C hapter 18.
146 Supergroup Supply Chain Partners v Dlamini (2013) 34 ILJ 108 (LAC ).
147 Screenex Wire Weaving Manufacturing v Ngema (2010) 31 ILJ 361 (LAC ).
148 One week’s salary per year of continuous service with the retrenching employer.

The LRA lists each of the subjects for consultation conjunctively. This gives the impression that an employer is obliged to consult
sequentially on each and every issue listed before the decision to retrench can finally be taken. However, the courts have stressed
that a simple checklist approach to assessing the fairness of a retrenchment should be avoided. Failure by an employer to consult
adequately or
4th Ed, 2022, ch 17-p 404
at all over a particular issue will not therefore necessarily result in dismissals being declared unfair. 150
Whether consultation was sufficient depends on the facts of each case. The ultimate test is whether the employees were given
a reasonable opportunity to make representations on the issues over which they are entitled to consult. Consultation will seldom be
deemed sufficient when it is rushed and perfunctory. In one case, 151 the court found the employer’s insistence that the
consultations should be concluded on Freedom Day ‘insensitive’. The employer had not explained why it could not have extended
the consultations by a few days to enable the workers and union representatives to celebrate what to them was a ‘sacred’ day.
When assessing the adequacy of consultation, the court may take into account the position held by the employee. 152
Consultation is self-evidently a two-way process. Employers are not expected to consult indefinitely with unions or employees
who unreasonably decline to participate in the process, and may proceed unilaterally if it appears that employee parties are simply
seeking to delay. 153
Employees may waive the right to be consulted generally or about particular topics. But waiver of one or more subjects for
consultation does not relieve the employer of the obligation to consult over others. 154 Nor does an employee’s agreement to
resign due to operational reasons relieve the employer of the obligation to consult the employee before making the proposal. 155
However, if employees accept before their dismissal that they have been sufficiently consulted, they cannot subsequently claim
that their dismissals were procedurally unfair. 156
150 Langa v Active Packaging (2001) 22 ILJ 397 (LAC ). Severance pay is discussed in C hapter 18.
151 Kukard v Molapo Technology [2006] 4 BLLR 334 (LC ).
152 See Kruger v Jigsaw Holdings (2006) 27 ILJ 1161 (LC ), where a failure to consult over severance pay was held to have rendered the
retrenchment of an MD procedurally unfair.
153 See, for example, Taylor v ILC Independent Loss C onsultants (2011) 32 ILJ 2006 (LC ).
154 Keller v Transnet (1998) 19 ILJ 136 (LC ).
155 Bekker v Nationwide Airlines [1998] 2 BLLR 139 (LC ).
156 Botha v BBR Security (Pretoria) (2001) 22 ILJ 1367 (LC ).

Adequate consultation is impossible if one of the parties is kept in the dark about the facts that have led the employer to conclude
that retrenchment is necessary. Neither employees nor their representatives can make sensible suggestions about the matters over
which the LRA enjoins consultation unless they have sufficient information to appraise or challenge the employer’s proposals or to
formulate alternatives. This is why s 189(3) requires employers to disclose in writing to the employee parties ‘all relevant
information’, including, but not limited to a range of issues.
It is impossible to lay down any precise test for determining which information is relevant in a particular retrenchment, or for
determining the adequacy of such information that is provided. Both relevance and adequacy must be measured against the
intended purposes for which the information is requested. Information
4th Ed, 2022, ch 17-p 405
regarding the financial state of the company, for example, may not be relevant if the employer does not claim to be retrenching
because it is financially straitened. 157
Section 189(3) obliges the employer to disclose the specified information. The employer must therefore supply information it
deems relevant on its own initiative. If the employer resists disclosing information requested by the employee party, the employer
must prove that the information is irrelevant. 158 The employer will discharge the onus of proving this if the information requested
by the employees would not assist in the consultation process. 159
Where an employer had not pleaded poverty to justify its retrenchment of a managerial employee, the court held that it was not
obliged to provide the employee with a detailed explanation of past business errors. 160 By contrast, it has been held that
employees are entitled to disclosure of an agreement of sale when a proposal by the employer to sell part of its business
jeopardises their job security. 161 A company’s refusal to disclose financial statements has been upheld where the employer was
not retrenching for financial reasons. 162
Section 189(4), read with s 16, exempts employers from disclosing information that is either legally privileged or which cannot be
disclosed contrary to the law, or which is ‘confidential and, if disclosed, may cause substantial harm to an employee or the
employer, or which is private in relation to an employee who has not given consent to disclosure’. The CCMA may arbitrate on
whether requested information must be disclosed. Commissioners must balance the harm disclosure might cause the employer
against the effects which non-disclosure may have on the employee party’s ability to consult effectively. The onus of proving
relevance in such proceedings rests on the employee or union; the onus of proving that the information falls into one of the
protected categories rests on the employer.
157 See, for example, UPUSA v Grinaker Duraset (1998) 19 ILJ 107 (LC ), in which it was held that the employer was not obliged to disclose its
financial statements because the employer was retrenching not as a result of a downturn in profits, but because of the closure of a particular line which
produced a product no longer in demand. The suggestion in NUMSA v Comark Holdings (1997) 18 ILJ 516 (LC ) that the employer is obliged to disclose
any information the employees request seems too widely stated. See also Atlantis Diesel Engines v NUMSA (1994) 15 ILJ 1247 (A) and Baloyi v M & P
Manufacturing (2001) 22 ILJ 391 (LAC ).
158 Such application may be brought under s 16.
159 See De Klerk v Project Freight Group (2015) 36 ILJ 716 (LC ).
160 Simelane v Letamo Estate (2007) 28 ILJ 2053 (LC ); Van Rensburg v Austen Safe Co (1998) 19 ILJ 158 (LC ).
161 Kgethe v LMK Manufacturing (1998) 19 ILJ 524 (LAC ).
162 Langa v Active Packaging (2001) 22 ILJ 397 (LAC ).

Despite disagreement on the scope of consultation, the courts accept that, once consultation is completed, the final decision to
proceed with dismissals rests with the employer. Consultation is clearly completed when the parties reach agreement on the terms
of the retrenchment. 163 The trickier question is the point at which the employer may take the final decision when agreement is
not reached.
4th Ed, 2022, ch 17-p 406
The consultation process is not regarded as exhausted while the consulting union is still seeking a mandate from its
members, 164 while the union is awaiting relevant information, or before consultation has been completed on the matters specified
in s 189(2). 165
In cases falling under s 189A, the Labour Court was initially expressly required by s 189A(19) to determine whether the dismissal
was ‘operationally justified on rational grounds’ and whether there was ‘proper consideration’ of alternatives to retrenchment.
Before that provision was revoked in 2015, the courts were required to assess the merits of the decision. 166 But even without it,
the courts are still prepared to consider whether the decision to retrench was rational (see above). In that sense, the final decision
rests with the courts rather than with the employer.
163 NASA v Unilever SA (2020) 41 ILJ 1399 (LC ); Nkosi v SSG Security Solutions (2020) 41 ILJ 1408 (LC ).
164 NUMSA v Comark Holdings (1997) 18 ILJ 516 (LC ).
165 CWIU v Johnson & Johnson [1997] 9 BLLR 1186 (LC ); confirmed in this respect on appeal: Johnson & Johnson v CWIU (1999) 20 ILJ 89 (LAC ).
If the employer agrees on a timetable for consultation, it may not unilaterally abbreviate that period – BMD Knitting Mills v SACTWU (2001) 22 ILJ 2264
(LAC ).

May an employer that has somehow botched the retrenchment process correct the matter by resuming consultations afresh? This
question arises in a number of situations. The employer may have retrenched prematurely and then, realising that it has consulted
insufficiently, offer to reinstate the employees and start consulting again. Or the employer may withdraw a premature notice of
retrenchment, and invite the employees to continue consultation. Conversely, where an employee was mistakenly informed that he
had been selected for retrenchment and the employer ultimately decided not to retrench him, the employee was held not to be
entitled to severance pay. 167 Where the employees have not yet been dismissed, there can be no objection in principle to the
withdrawal of a retrenchment notice and a continuation of consultations, provided the employer is bona fide. 168
167 Perumal v Clover SA (2022) 43 ILJ 226 (LC ).

168 As was found to be the case in NUMSA v John Thompson Africa (2002) 23 ILJ 1839 (LC ).

A further question is whether procedural defects will be overlooked if a retrenchment is operationally justified. Why should an
employer go to the trouble of consulting its employees when, in any event, the end result is a foregone conclusion? This question
first surfaced in the industrial court in Meyi v Ovcon. 169 In that case, the court required the retrenched employees to prove that
the application of the retrenchment guidelines would have made a difference; because they could not, their dismissal was ruled fair.
This approach was followed in a number of judgments. 170
The ‘no difference’ approach had its origins in decisions by English tribunals, in which it was held that, for an employer to prove
that it acted reasonably despite
4th Ed, 2022, ch 17-p 407
a procedural defect, it was required to prove on a balance of probabilities that it would reasonably have decided to dismiss had the
procedural steps been followed. 171 The higher British courts later rejected that approach.
The ‘no difference’ principle has been criticised on the basis that it is both contrary to public policy underlying the retrenchment
guidelines and that it effectively negates the purpose of the procedural requirements. The courts’ reluctance to consider the merits
of the decision to retrench makes the situation impossible for the employee. If the ‘no difference principle’ were to be applied in
cases of misconduct (which it is not), 172 it is possible that, on inquiry into the substantive merits of the case, a court could
conclude that procedural compliance would have resulted in a different decision. That possibility is remote if a court will not inquire
into the substantive fairness of a retrenchment – the application of the ‘no difference’ principle becomes a self-fulfilling
prophecy. 173
The courts and the legislature have now accepted these criticisms. 174 The ‘no-difference’ principle has no place in a statute
which requires dismissals to be both procedurally and substantively fair. The LRA reflects the view, adopted by the LAC under the
1956 LRA, that procedural fairness serves an independent purpose in that it contributes to the maintenance of industrial peace and
advances fairness in the workplace. The ‘no difference principle’ accordingly has no place under the current LRA. It is akin to the
‘reasonable employer’ test, which has also been rejected. 175
169 (1988) 9 ILJ 672 (IC ).

170 CSFWU v Aircondi Refrigeration (1990) 11 ILJ 532 (IC ); TGWU v Keeley Forwarding & Stevedoring (1990) 11 ILJ 554 (IC ); Young v Lifegro
Assurance (1991) 12 ILJ 1256 (LAC ).
171 See, for example, British Labour Pump Co v Byrne [1979] IRLR 94.
173 Benjamin ‘C ondoning the unprocedural retrenchment: The rise of the “no difference” principle’ (1992) 13 ILJ 279.
174 Mohamedy’s v CCAWUSA (1992) 13 ILJ 1174 (LAC ); NUMSA v Atlantis Diesel Engines (1993) 14 ILJ 642 (LAC ); Kotze v Rebel Discount Liquor
Group (2000) 21 ILJ 129 (LAC ) at 138J–139B.
175 Sidumo v Rustenburg Platinum Mines (2007) 28 ILJ 2405 (C C ).
Dismissal / Chapter 18 Dismissal for operational requirements: Selection and severance

pay
Chapter 18
Dismissal for operational requirements: Selection and severance
pay
4th Ed, 2022, ch 18-p 408
1. Introduction
3. ‘Bumping’
4. Severance pay
4.2 Quantification
4.3 When payable
1. Introduction
The previous two chapters dealt with issues relating to the fairness of dismissals for operational requirements. When proper
consultation on the matters discussed in Chapter 17 have been completed, two further issues must be decided before employees
may be dismissed: who is to be selected for dismissal and the quantum of the severance package.

Section 189(7) provides that employers must select employees to be dismissed according to criteria that have been agreed by the
consulting parties or, if no criteria have been agreed, according to criteria that are ‘fair and objective’.
While agreed criteria rank above unilaterally imposed criteria, the former need not necessarily be accepted as fair. A selection
criterion that infringes a fundamental right (for example, union membership or sex) is not acceptable. 1 But where an
4th Ed, 2022, ch 18-p 409
employer’s union has agreed to unexceptionable selection criteria, members cannot later challenge their selection in terms of those
criteria. 2
The LRA does not provide express guidance on criteria that are fair and objective. The courts will normally uphold selection
criteria that are the subject matter of a collective agreement. In Mbombo v Rennies Bulk Terminals, 3 the court upheld an
agreement in terms of which LIFO was ‘subject to a convention’ that the company would give preference to the sons employed in
the place of fathers who had retired or died in service.
The rationale for LIFO is that it is the most objective and fair selection criterion available. Other things being equal, it is more
equitable to choose shorter-serving workers for retrenchment than their longer-serving colleagues because the latter deserve some
recognition for their past loyalty, and they generally have more experience. But it may well be that retrenching longer-serving
employees is financially attractive because they generally earn higher salaries and must be paid more generous severance
packages. The Labour Court has refused to accept that financial consideration was sufficient to justify selection according to ‘FIFO’
(first in, first out). 4
The debate over selection criteria is linked to the broader issue of balancing work security with business efficiency. Generally,
unions favour absolutely objective criteria such as LIFO because they eliminate the subjective judgment of the employer.
Conversely, employers will try to keep employees whom they think are best able to contribute to the business, whether in terms of
performance, skill or potential, all of which are inherently more subjective concepts than length of service. 5
Otherwise, employers have a relatively free hand when it comes to selecting employees for retrenchment; the courts’ task is
merely to ensure that the criteria applied do not allow employers to use retrenchment as an opportunity to discard employees for
reasons not related to operational requirements or according to criteria that are unfair. Selecting employees suspected of
misconduct for retrenchment because they refused to undergo polygraph tests was ruled unfair in the absence of independent
proof that they had done anything wrong. 6
LIFO commends itself for the purpose of selecting employees for retrenchment because employers cannot take unrelated criteria
into account if the only basis for selection is length of service. However, other criteria – such as the employee’s qualifications,
attendance record and production output – are also objectively
4th Ed, 2022, ch 18-p 410
verifiable. Provided that these are applied equally, they have generally been accepted as valid criteria for selection. 7
While LIFO may be qualified by the need to retain special skills, the qualifications may not be arbitrary or subjective. 8 The court
has observed that skills cannot be a relevant criterion in unskilled or low-skilled jobs. 9
The LAC has noted, but refrained from advising on, how employees are meant to apply LIFO in a situation where the entire
workforce was simultaneously employed. 10 Some other objective basis for selection would have to be chosen in such cases. But
whether a court would be prepared to accept the drawing of lots seem unlikely, because that would be doubtless be ruled arbitrary.
Two difficulties arise from using selection criteria other than LIFO. The first is that the failure by employees to measure up to the
other criteria may be linked to incapacity or misconduct. It is generally considered unfair if an employer relies on past deficiencies
or misdemeanours when selecting employees for retrenchment. 11 The second difficulty is that the procedures required for
retrenchment are not adequately designed to give individual employees an opportunity to answer charges relating to past poor work
performance or misconduct. 12 So the courts have endorsed the proposition that the vaguer and more subjective the criterion
adopted for selection, the more pressing the need for individual employees to be given an opportunity to be personally consulted
before they are judged by the standard adopted. 13
Problems that may also arise when selecting employees assume acute form in retrenchments arising out of restructuring
exercises, when employees’ posts are abolished and they are required to apply for fewer posts in the revamped operation. If
selection is done on the basis of LIFO or some similar objective criterion, no problems arise. However, most restructuring exercises
are undertaken to ensure that the operation becomes more efficient. This requires that the best employees be retained for the new
posts. In FAWU v SAB, 14 the Labour Court accepted that, in this context, selection criteria for new posts are nothing other than a
means of choosing employees for retrenchment. In that case, the employer required employees who could not produce proof of
formal educational qualifications to attain a particular level of the alternative Adult Basic Education and Training (ABET) evaluation
system. However, the court held that in the circumstances the use of ABET was inappropriate and unfair because it was a ‘generic’
(as opposed to a workplace-specific)
4th Ed, 2022, ch 18-p 411
standard that did not measure what it was meant to measure, ie the employees’ capacity to perform work in the new structure. 15
The SAB judgment does not rule that the process of refining a business operation and requiring employees to apply for posts in
the new structure is inherently unfair. On the contrary, the judgment endorses an article in which the following requirements are
suggested for this form of retrenchment: 16
• There must be a valid and reasonable rationale for the restructuring.
• The decision must be taken in a manner fair to the retrenched employees.
• Retrenchment must be essential to achieve the purpose of the restructuring.
• Criteria for appointment to the new jobs must be clear, justifiable and linked to the new job description.
• Guidance must be given to the employees in respect of which jobs they might be eligible for.
• Employees must be given an opportunity to deal with any allegations of past performance.
• The ultimate selections must be objectively justifiable.
The LAC has since found that retrenchment of employees who were all invited to apply for the same post was fair because they
had agreed that appointment would be made on the basis of qualifications and experience, and that this agreement necessarily
implied that the employer was not required to consider the unsuccessful applicants for other available posts. 17
The court approved the strategy of inviting employees in a restructured organisation to apply for new posts and retrenching
unsuccessful applicants even more emphatically in SAB v Louw. 18 Mr Louw’s position of sales manager was abolished and replaced
with a new area manager at higher management level. Louw applied for the job but was found unsuitable. He was retrenched. The
Labour Court found that Louw had been unfairly dismissed and ordered SAB to reinstate him. The LAC noted that retrenchment
typically serves one of two objectives: the need to cut costs or the achievement of greater efficiency. In the latter cases, the aim
is not necessarily to cut staff. In restructuring, the performance of the incumbents of redundant positions is irrelevant. Louw had
been selected on the basis of performance. But the fact remained that only one post had been rendered redundant – ie that of
area sales manager in George. No selection criteria were accordingly needed to choose between Louw and other sales managers,
because Louw had never proposed cross-area ‘bumping’. All SAB was required to do was to invite Louw to apply for the new
position, which he had done. This was an acceptable
4th Ed, 2022, ch 18-p 412
way of seeking to avoid his dismissal. Only then did past performance become relevant as a means of deciding whether Louw was
suitable for the new post. Louw had not objected to the selection process, and could not do so after his dismissal. SAB’s appeal
was upheld with costs. 19
On the other hand, when an employee who is obviously qualified for a new post is excluded without good reason, the
retrenchment will be unfair. 20 So, too, is a retrenchment likely to be judged unfair if the retrenched workers are immediately
replaced. 21
In short, the case law indicates that the strategy of requiring employees to apply for jobs in a restructured department, or even
elsewhere in the employer’s organisation, does not exempt the employer from treating its employees fairly. 22
An employer may in fairness be required to appoint redundant employees to new posts in restructured organisations even if they
have declined to apply for them. 23
The expense of retaining some employees rather than others is not necessarily a fair criterion for selecting higher paid employees
who would have been retained on other grounds. 24 The court has held that selecting employees for retrenchment on the basis of
polygraph test results does not constitute a fair criterion. 25
A distinction should be drawn in this regard between the evaluation of the selection criteria themselves and their application.
Selection criteria that appear vague and subjective may be accepted if the employer has consulted adequately over the proposal
and permitted the employees or their representatives to make representations over their contents and application. 26 Conversely,
fair and objective selection criteria may be applied unfairly: where an employer transferred employees internally just before the
retrenchment date and then applied LIFO in divisions, the dismissal of employees who had served longer than some of those not
retrenched was ruled unfair. 27
Furthermore, the application of LIFO may impact unfairly on particular individuals or groups of individuals. British labour tribunals
have accepted that the adoption of LIFO impacted unfairly on female employees in cases where the employers concerned had
recently taken steps to increase the number of women on their staffs. 28
4th Ed, 2022, ch 18-p 413
This problem is particularly relevant in South Africa, where affirmative action has received statutory endorsement. The EEA
specifically provides, for example, that employers may take appropriate measures to ensure the retention of members of designated
groups. 29 This provision may possibly serve as a defence were an employer to adopt LIFO to ensure that efforts to maintain a
demographically ‘balanced’ staff are not wiped out by a rationalisation exercise. A selection criterion could conceivably be ruled
unfair if it impacts mainly on employees who have been disadvantaged by unfair discrimination in the past.
The SAB judgment also serves as an example in this context. 30 The court noted that the use of a particular basic adult
education level as a criterion for selecting employees for posts in a trimmed workplace structure resulted in the exclusion of a group
of employees who had mainly been educated in ‘Bantu education’ schools under the apartheid government. The court found that it
was not unfair to decline to ‘bump’ a white managerial position to a post in another town, the incumbent of which was a black
person. An arbitrator found that the adverse effect this would have on the employer’s BEE status was a good enough reason to
select the white manager for retrenchment. 31
In summary, criteria for selection can be divided into those that are potentially fair and those that are unacceptable in principle.
Potentially fair criteria include length of service, balanced by the need to maintain necessary skills. In addition, criteria such as
performance (whether individual or group performance), conduct, experience, skill, adaptability, attitude, potential and the like – or
a ‘mix’ of such criteria – are acceptable. When these criteria are adopted, however, the employer is required to ensure that a
‘rating’ system is used which can be applied fairly, consistently and objectively. When standard or quality of work is used as a
criterion, the rating is best done by supervisors outside the selection process, and workers should be given an opportunity to
participate meaningfully in the assessment process.
Criteria that will almost invariably be unacceptable in principle are those that fall within the ambit of automatically unfair
dismissals. 32 The fact that a dismissal is conducted in a retrenchment context does not necessarily mean that an employer is
exempted from the forms of dismissals proscribed by s 187 of the LRA. 33 The selection of women has been found to be potentially
unfair because the remaining jobs were considered suitable only for males. 34
The LAC has also held, debatably, that it is unfair per se to retrench an employee on a fixed-term contract before its expiry. In
Buthelezi v MDB, 35 the appellant employee was retrenched four years before the expiry of his five-year contract.
4th Ed, 2022, ch 18-p 414
The LAC rejected the employer’s argument that the LRA permitted employers to retrench employees on fixed-term contracts, or
that the common law should be adapted to permit such retrenchments. But the court did not indicate how an employer should deal
with situations in which an employer is forced to choose between longer-serving employees on indefinite-period contracts and
shorter-serving employees on fixed-term contracts. Nor did the court consider the irony of a situation in which employees employed
for a limited duration or for a specific purpose enjoy greater protection than those employed for their full working lives. 36
A concession by employees that the dismissal was operationally justified does not preclude them from claiming that they were
unfairly selected for retrenchment. 37
An employee who unreasonably refuses an offer of suitable alternative employment is not entitled to severance pay (see below).
However, such refusals may also warrant the inference that the employee was fairly retrenched. 38
1 See item 8 of the C ode of Good Practice on Dismissal Based on Operational Requirements (GenN 1517 in GG 20254 of 16 July 1999).
2 Govender v Independent Newspapers, KZN [2009] 6 BLLR 522 (LC ); Airey v GE Security Africa (2009) 30 ILJ 1068 (LC ).
3 (2002) 23 ILJ 1587 (LC ).
4 Screenex Wire Weaving Manufacturing v Ngema (2010) 31 ILJ 361 (LAC ).
5 In some countries, legislation protects certain categories of employee, such as the disabled. Employers are also encouraged to retain employees
with greater numbers of dependants. In some countries, employee representatives or trade union officials enjoy priority for retention, or are absolutely
protected.
6 FAWU obo Kapesi v Premier Foods t/a Blue Ribbon Salt River (2012) 33 ILJ 1779 (LAC ). But the court accepted that, in principle, the selection of
strikers who had committed acts of violence and intimidation may constitute a fair selection criterion.
7 See, for example, NUM v Anglo American Research Laboratories [2005] 2 BLLR 148 (LC ).
8 As was found in CEPPWAWU obo Gumede v Republican Press (2006) 27 ILJ 335 (LC ).
9 CEPPWAWU obo Gumede supra.
10 Supergroup Supply Chain Partners v Dlamini (2013) 34 ILJ 108 (LAC ); NUMSA obo Members v Timken SA (2009) 30 ILJ 2124 (LC ).
11 See C hapter 16.
12 SA Mutual Life Assurance Society v IBSA [2001] 9 BLLR 1045 (LAC ); JDG Trading t/a Price ’n Pride v Brunsdon (2000) 21 ILJ 501 (LAC ).
13 See, for example, MWASA v SABC (1986) 7 ILJ 754 (IC ) at 782G–H. In that case, the employee’s ‘attitude to work’ was used as a criterion. See
also EIMWU v Starpak (1992) 13 ILJ 655 (IC ).
14 (2004) 25 ILJ 1979 (LC ).
15 The court relied in this regard on a decision of the US Supreme C ourt in Albemarle Paper Co v Moody 422 US 405 (1975), in which it was held
that pre-employment tests should not be used ‘without meaningful study of their relationship to performance ability’, that such tests should measure ‘the
person for the job and not the person in the abstract’ and that discriminatory tests are permissible only if they are ‘predictive of or significantly
correlated with important elements of work behaviour which compromise or are relevant to the job or jobs for which candidates are being evaluated’.
16 FAWU v SAB (2004) 25 ILJ 1979 (LC ) at [58], referring to Rycroft ‘C orporate restructuring and “applying for your own job”’ (2002) 23 ILJ 678.
17 GE Security (Africa) v Airey (2011) 32 ILJ 2078 (LAC ).
18 (2018) 39 ILJ 189 (LAC ).
19 This judgment was followed and applied in Pratten v Afrizun KZN (2020) 41 ILJ 2899 (LC ). See also Telkom SA v Van Staden (2021) 42 ILJ 869
(LC ) and MTN Group Management Services v Mweli (2021) 42 ILJ 775 (LAC ).
20 Mabaso v Universal Product Network (2003) 24 ILJ 1532 (LC ). This judgment was overturned (see Universal Product Network v Mabaso (2006)
27 ILJ 991 (LAC )), but the point stands.
21 CWIU v Latex Surgical Products (2006) 27 ILJ 935 (LAC ).
22 Oosthuizen v Telkom SA (2007) 28 ILJ 2531 (LAC ).
23 SAA v Bagopa (2007) 28 ILJ 2718 (LAC ); Van Rooyen v Blue Financial Services (SA) (2010) 31 ILJ 2735 (LC ); Lakomski v TTS Tool Technic
Systems (2007) 28 ILJ 2775 (LC ).
24 Robinson v PriceWaterhouseCoopers (2006) 27 ILJ 836 (LC ).
25 FAWU obo Kapesi v Premier Foods t/a Blue Ribbon Salt River (2010) 31 ILJ 1654 (LC ), discussed more fully in C hapter 10.
26 Raad van Mynvakbonde v Harmony Goudmynmaatskappy (1993) 14 ILJ 183 (LC ).
27 UAMAWU v Fodens SA (1983) 4 ILJ 212 (IC ).
28 See, for example, Clarke v Eley (IMI) Kynoch [1982] IRLR 482; but see Brook v Mayor & Burgesses of the London Borough of Haringey [1992]
IRLR 478.
29 Section 12(2)(e). See generally Grogan Employment Rights 3 ed (Juta 2019) C hapter 12.
30 SAB v Louw (2018) 39 ILJ 189 (LAC ).
31 Rhode and Amsteele Systems (2012) 33 ILJ 2749 (BC A).
32 This is subject to the proviso that, where the court finds that the true reason for the dismissal is an operational requirement of the employer, it
may not allow the employee to plead an automatically unfair dismissal: see FAWU v Rainbow Chicken Farms (2000) 21 ILJ 615 (LC ). See C hapter 7.
34 CWIU v Johnson & Johnson [1997] 9 BLLR 1186 (LC ). See also Thekiso v IBM South Africa (2007) 28 ILJ 177 (LC ), in which the court held that
employers may not use affirmative action as a pretext for selecting white employees.
35 (2004) 25 ILJ 2317 (LAC ).
36 This judgment, relying heavily as it does on contract law, is difficult to reconcile with judgments such as Highveld District Council v CCMA (2003)
24 ILJ 517 (LAC ) in which the court has placed fairness above contractual principles when evaluating whether dismissals comply with the LRA.
37 General Food Industries t/a Blue Ribbon Bakeries v FAWU (2004) 25 ILJ 1655 (LAC ).
38 See, for example, Vemisani Security Services v Mmusi: In re Mmusi v Vemisani Security Services (2013) 34 ILJ 440 (LC ).
3. ‘Bumping’
The outcome of LIFO depends on the unit within which it is applied. If employees are selected within a particular division, shorter-
serving employees within that unit may have longer periods of service with the employer than employees in other divisions. This
raises the question whether the employees with longer service should be transferred to positions held by employees with shorter
service in other divisions – a practice known as ‘bumping’. The rationale for bumping is that the employees selected for dismissal
have become redundant because other employees filled their positions.
There are two forms of bumping: ‘vertical’ and ‘horizontal’. Vertical bumping occurs when the transferred employee replaces an
incumbent in a post lower than the post from which the employee is transferred or perhaps rarely, in a higher post; horizontal
bumping occurs when the transferred employee displaces an incumbent employee from a post at the same or similar level in the
same or another section of the business.
Horizontal bumping results in the displacement of employees within a particular category of workers across the operation;
vertical bumping results in the displacement of employees with shorter service to make way for those with longer service in more
senior positions. Vertical bumping usually entails the demotion of the transferred employees, and is accepted as a means of
avoiding the retrenchment of the employees concerned.
If an employer considers an alternative position to avoid retrenching an employee, the employer must disclose this to the
employee. 39 On the other hand, employees must also participate in the consideration of alternatives. 40 If employees refuse a
4th Ed, 2022, ch 18-p 415
suitable alternative position with the retrenching employer or another employer, they are neither entitled to claim that they were
unfairly selected for retrenchment, 41 nor that they are entitled to severance pay. 42
Employees who are qualified to be bumped to a lower position should be consulted on whether they are prepared to accept what
would effectively be a demotion. 43
In Porter Motor Group v Karachi, 44 the LAC suggested that the following general principles are applicable to all bumping
exercises:
• Horizontal bumping should take place before vertical bumping is resorted to.
• Where large-scale bumping, sometimes referred to as ‘domino bumping’, would create ‘vast dislocation, inconvenience and
disruption’, the employees should be consulted with a view to minimising the disruption to the employer.
• Geographical limits may be placed on bumping; however, if the employees are willing to relocate, bumping should occur no
matter how distant the alternative positions may be.
• A pool of possible candidates for bumping should be established through consultation. The size of the pool depends on the
mobility and status of the employees involved. The career paths of employees indicate the extent of their mobility.
• While the independence of departments may be a relevant consideration, the employer’s claim that departments are
separately managed should be carefully scrutinised; the employer must consider inter-departmental bumping unless it is
‘injurious to itself and other employees’.
• Bumping need not take place across grades if longer-serving employees cannot do the work of employees with shorter service
in the other grades. However, the possibility of retraining redundant employees placed in lower grades should be considered
unless it places an unreasonable burden on the employer.
• The employer’s prerogative of choosing persons for managerial and supervisory positions should be respected. Conversely, an
employee’s reluctance to assume a lower position may justify not bumping; the employer’s concern that vertical bumping may
be demoralising to the staff generally will not serve as a reason for not doing so.
The case law also suggests that bumping should be applied in two stages. 45 The first entails grouping jobs considered similar with
reference to skill and the nature of work performed. If, for example, a number of drivers’ posts have become redundant and all the
company’s drivers are employed in a single department, that department is the logical unit for selection.
Where the affected skills and job categories are spread through the organisation, the second stage is required. This entails
determining the employment ‘universe’
4th Ed, 2022, ch 18-p 416
of the category of employees identified in the first phase. In lower-skilled job categories, this universe is likely to be small. More
highly skilled employees, on the other hand, have career paths that could lead them from factory to region to division, and perhaps
even from one entity to another within the corporate structure. Employees in senior managerial capacities may expect to move
through divisional structure to national or even international corporate structures. The identification of the ‘universe’ through which
an employee is likely to move will obviously depend on the facts of each case. Even in the case of senior managers the obligation
to bump must be weighed against the employer’s particular requirements; their skills may be more specialised and less
interchangeable. Factors such as compatibility and client contacts may also be relevant. 46
That an employer runs its branches as financially independent cost units does not mean that it should not consider bumping
longer-serving employees into posts in other branches. 47 However, where employees refuse offers of posts in other areas, the
company may decline to bump, especially where the company offers reasonable relocation expenses. 48

40 Fletcher v Elna Sewing Machine Centres (2000) 21 ILJ 603 (LC ).
41 NETU v Henred Fruehauf Trailers [2000] 7 BLLR 804 (LC ).
42 Section 41(4) of the BC EA.
43 Reckitt & Colman v Bales (1994) 15 ILJ 782 (LAC ).
44 (2002) 23 ILJ 348 (LAC ).
45 Apart from the cases cited, see also Amalgamated Workers Union of SA v Fedics Food Services (1999) 20 ILJ 602 (LC ); SACCAWU v Wimpy
Aquarium [1998] 9 BLLR 965 (LC ) at 969E–F; Unilever SA v Salence [1996] 5 BLLR 547 (LAC ) at 557; generally, Rycroft ‘“Bumping” as an alternative to
retrenchment’ (1999) 20 ILJ 1489.
46 Amalgamated Workers Union of SA v Fedics Food Services (1999) 20 ILJ 602 (LC ).
47 General Food Industries t/a Blue Ribbon Bakeries v FAWU (2004) 25 ILJ 1655 (LAC ).
48 SACCAWU v Gallo Africa (2005) 26 ILJ 2397 (LC ).
4. Severance pay
Section 41 of the BCEA, which revoked and replaced the similarly worded s 196 of the LRA, deals with severance pay in the
following terms:
(1) For the purposes of this section, ‘operational requirements’ means requirements based
on the economic, technological, structural or similar needs of an employer.
(2) An employer must pay an employee who is dismissed for reasons based on the
employer’s operational requirements or whose contract of employment terminates or is
terminated in terms of section 38 of the Insolvency Act, 1936 (Act 24 of 1936), severance
pay equal to at least one week’s remuneration for each completed year of continuous service
with that employer, calculated in accordance with section 35.
(3) The Minister may vary the amount of severance pay in terms of subsection (2) by
notice in the Gazette. This variation may only be done after consulting NEDLAC and the Public
Service C o-ordinating Bargaining C ouncil established under Schedule 1 of the Labour
Relations Act, 1995.
(4) An employee who unreasonably refuses to accept the employer’s offer of alternative
employment with that employer or any other employer, is not entitled to severance pay in
terms of subsection (2).
(5) The payment of severance pay in compliance with this section does not affect an
employee’s right to any other amount payable according to law.
(6) If there is a dispute only about the entitlement to severance pay in terms of this
section, the employee may refer the dispute in writing to—
(a) a council, if the parties to the dispute fall within the registered scope of that
council; or
(b) the C C MA, if no council has jurisdiction.
4th Ed, 2022, ch 18-p 417
(7) The employee who refers the dispute to the council or the C C MA must satisfy it that a
copy of the referral has been served on all the other parties to the dispute.
(8) The council or the C C MA must attempt to resolve the dispute through conciliation.
(9) If the dispute remains unresolved, the employee may refer it to arbitration.
(10) If the Labour C ourt is adjudicating a dispute about a dismissal based on the
employer’s operational requirements, the C ourt may inquire into and determine the amount
of any severance pay to which the dismissed employee may be entitled and the C ourt may
make an order directing the employer to pay that amount.
Unlike the revoked provision of the LRA, the BCEA does not empower the minister to exempt employers from the obligation to pay
severance pay. The BCEA further provides that a dispute about entitlement to severance pay may be referred by the employee to
a bargaining council or the CCMA. This means that the CCMA is confined to arbitrating disputes concerning claims to severance pay
that fall within the ambit of the statute and is not empowered to arbitrate disputes over severance pay in excess of the statutory
amount. 49 Such disputes would be treated either as contractual claims or, perhaps, as disputes concerning the interpretation or
application of collective agreements. 50
Section 41 of the BCEA concluded the debate over whether retrenched employees are entitled to severance pay and, if so, to
how much. 51 Employees dismissed for operational requirements are entitled to ‘severance pay equal to at least one week’s
remuneration for each completed year of continuous service with that employer’. Breaks in employment of less than one year are
not taken into account in the computation of an employee’s length of service. 52 In the absence of agreement, additional
payments, such as shift, acting or other allowances, are not included in the calculation of severance pay. 53 Where the employer
and the employees have agreed to a higher sum, the agreed sum prevails over the statutory minimum. 54 If a dispute over the
entitlement to severance pay is referred to the CCMA or a bargaining council, the arbitrator can decide only whether the employee
is entitled to the statutory amount, not the amount of severance pay that should in fairness be awarded. 55
4.2 Quantification
It is not clear whether the Labour Court, in deciding on severance pay in terms of s 41(10) of the BCEA, may in the absence of an
agreement providing for a higher amount award an amount in excess of the statutory minimum. In one case,
4th Ed, 2022, ch 18-p 418
the court held that it could; 56 in another, the court expressed doubt whether such an order was competent. 57 Although s 41(10)
does not expressly limit the court’s discretion to award severance pay in accordance with the statutory formula, the legislature
probably intended to give the court greater discretion in this regard than that conferred on arbitrators, who may not deal with
severance pay disputes outside the parameters of s 41(10).
The quantification of severance pay is linked to the employee’s length of service. Severance pay is calculated in multiples of the
employee’s weekly remuneration at the time the employment contract terminated. Remuneration is calculated for this purpose as
the employee’s normal income, including contractual benefits, but excluding an acting allowance that the employee may happen to
be receiving at the time of the dismissal. 58
However, the length of the employee’s service is calculated according to the employee’s continuous service. This suggests that
if there was a break in employment, the employee is entitled only to severance pay for the period after the break. The BCEA now
provides that for purposes of calculating an employee’s length of service, previous service with the employer must be taken into
account if any break was less than one year. 59 However, the Labour Court has held that an employee who had retired and been
re-employed on a fixed-term contract after his retirement, was entitled when he was retrenched to severance pay calculated only
from the date of his re-employment, which made him eligible for severance pay of one rather than 29 months. The court based this
finding on the fact that the employee had not been dismissed when he retired. 60 But this judgment was overruled on appeal on
the ground that the employee had continued working seamlessly for the employer after his retirement. 61
An employee on a habitually renewed fixed-term contract will certainly be deemed to have been in continuous employment. If
there was a break of a month between contracts, the position might differ.
Employees of higher status are not entitled to severance pay calculated on a more generous formula. 62 The Labour Court has
held that severance packages calculated on different bases may be discriminatory and may in principle render a dismissal unfair. 63
But in one case the court accepted that there was nothing wrong with giving lower paid workers severance pay of four weeks’
wages per year of service
4th Ed, 2022, ch 18-p 419
to alleviate the hardship they would suffer by being put of work and limiting senior employees’ severance packages to the statutory
amount. 64
The obligation to pay severance pay (which is additional to and distinct from contractual notice pay and other entitlements) is
meant not only to cushion the blow of unemployment; it is also calculated to make employers think more seriously before
retrenching. The LRA makes severance pay a subject for mandatory consultation. 65 This means that employers and employees are
free to decide on more generous packages. Where a higher amount is agreed, the employer is obliged to pay that amount. 66
Where this has been done (whether in ad hoc or standing retrenchment agreements), the agreed amounts supersede the statutory
minimum. It is arguable that employees may challenge the fairness of a retrenchment on the basis that the employer has
unreasonably refused to agree to severance pay higher than the statutory minimum. 67
4.3 When payable
There are a number of limitations to the right to severance pay. The first is that the employee must have been dismissed for
operational reasons. Unless the contract provides otherwise, 68 employees who cannot prove that they were dismissed at all or, if
they were, for operational reasons are not entitled to severance pay. Such would be the case where the employees’ fixed-term
contracts terminated automatically for an acceptable reason. 69 Where an employee was mistakenly informed that he had been
selected for retrenchment and the employer ultimately decided not to retrench him, the employee was held not to be entitled to
severance pay. 70
The second limitation is that the employee must not have been offered a reasonable alternative position. An employee who
refused an offer of a reasonable alternative post after a merger and claimed that he was entitled to be retrenched and to receive
severance pay received short shrift from the LAC. 71
An employee who is compelled to retire on reaching the agreed or normal retirement age is not entitled to severance pay. 72
Employees are entitled to severance pay only if they are dismissed for operational requirements; an employee who failed
4th Ed, 2022, ch 18-p 420
to prove that the non-renewal of his fixed-term contact amounted to a dismissal was not entitled to compensation and severance
pay. 73 Likewise employees dismissed for misconduct, incapacity or any reason not falling within the definition of ‘operational
requirements’, but where the reason for the dismissal is in dispute, the true reason must be identified. 74
The dismissal of an employee whose services were terminated because new legislation disqualified him from holding his position
was held not to amount to a retrenchment ‘in the true sense’ which attracted the provisions of s 189, 75 and also, presumably,
those of s 41 of the BCEA. An employee who was transferred from one division to another because his original position became
redundant was entitled only to be ‘treated sympathetically’, not consulted, 76 and would by parity of reasoning not have been
entitled to claim severance pay. An employee who took early retirement rather than accept amended terms and conditions of
employment imposed for operational requirements was also not entitled to severance pay. 77 Employees dismissed because they
are unable to adapt to new work procedures do not qualify for severance pay unless they are able to persuade the court that their
dismissals were for operational requirements. This means that the employee must have been dismissed for a reason related to the
‘economic, technical, structural or similar needs of the employer’. Employees dismissed for reasons related to conduct or capacity
are not therefore entitled to severance pay. However, if criteria in terms of which the employee was selected for retrenchment
relate to conduct or capacity, this will not disentitle the employee to severance pay.
Furthermore, an employee who unreasonably refuses an offer of alternative employment with the retrenching employer or with
any other employer is not entitled to severance pay. 78 Nor is an employee who accepts an alternative position and subsequently
abandons it. 79 However, if employees accept a position with another employer, they remain entitled to severance pay from their
previous employer if the alternative was not arranged by the retrenching employer. 80
Moreover, the employment, not the position, must be ‘alternative’: ‘Where the employer offers to continue to employ the
employee – whether in the same position but on different terms or on the same terms but in a different position or in the same
position and on the same terms but in a different place, that is still alternative employment. It is an offer of an alternative contract
of employment.’ 81 Employees will sacrifice severance pay if they refuse offers of reasonable employment with either the
retrenching employer or another to whom they have been transferred.
4th Ed, 2022, ch 18-p 421
The fourth factor disentitling employees to severance pay is that the employee must have rejected offers of employment by
either the retrenching employer or the employer to which they have been lawfully transferred, either by outsourcing or by a s 197
transfer. But employees who secure alternative employment on the same or better terms immediately after the retrenchment by
their own efforts, without any assistance from the retrenching employer are entitled to severance pay.
Whether the jobs employees refused must be identical to those they had before the retrenchment is not expressly stated in s
41(4) of the BCEA. Section 197 of the LRA, which regulates transfers of businesses from one employer to another, obliges the ‘new’
employer to employ the transferred employees on terms and conditions ‘on the whole not less favourable’ than those enjoyed with
the ‘old’ employer. 82 Since severance pay has been likened to compensation for ‘no fault’ dismissals, 83 there seems no reason
why the same should not apply to severance pay, which is effectively a payment for the loss of a job. Like compensation for an
unfair dismissal, the employee need not quantify the loss. The BCEA provides a statutory formula for severance pay.
Whether an employee’s refusal of an offer of alternative employment is reasonable depends on the nature of the alternative
position, its location, its status, and other factors. 84 The mere fact that acceptance of the alternative position would entail a
variation of the employee’s terms and conditions of employment will not necessarily justify a refusal by the employee to accept the
post; a change of shift arrangements was held to be an insufficient reason to reject a different post. 85 An offer of a position
entailing work on alternative Saturdays to an employee who had not previously been required to work on Saturdays likewise did not
amount to an offer of an alternative position but was merely an amendment to the employee’s conditions of employment, which did
not entitle her to severance pay. 86
Acceptance by employees of severance pay does not necessarily amount to a waiver of their right to pursue an unfair dismissal
action, 87 especially if the employees were pressurised into accepting packages. 88 If not, acceptance by an employee of
severance pay will generally indicate that the dismissal was consensual, and will then deprive the employee of the right to
challenge a retrenchment. However, where the employee was duped into agreeing to retrenchment, a dismissal may still be held to
have occurred, 89 though the severance monies paid out will generally be taken into account in quantifying compensation or back
pay. 90
4th Ed, 2022, ch 18-p 422
Once an employer offers employees a VSP, that offer cannot be revoked if it is expressly or impliedly made irrevocable for a given
period. Acceptance is not required for this period to render the offer irrevocable. 91
Transferred employees are entitled to the retrenchment packages promised by their former employer, if the amount was fixed in
either their contracts or in a collective agreement. If the old employer had a policy or practice of paying a particular amount, the
court may enforce it. 92 Employees who accept VSPs are not entitled to severance pay because they have not been dismissed. 93
In terms of an amendment to the Insolvency Act 24 of 1936, employees who lose their jobs as a result of the insolvency of their
employer are entitled to severance pay.
After a company is placed under business rescue the prohibition against the business rescue practitioners varying the employer’s
obligations to employees is confined to contractual obligations only, not debts arising from statutory obligations, such as payment
of severance pay. A claim for severance pay from business rescue practitioners was rejected by the Labour Court on this basis as
well as for want of jurisdiction. 94
49 PPWAWU and Plett Timbers (1997) 2 LLD 35 (C C MA).

50 See further Employment Rights C hapter 4.
51 Under the 1956 LRA, the courts generally accepted that the norm for severance pay granted in equity is between one and two weeks per year
of service: see CCAWUSA v Status Hotel (1990) 11 ILJ 167 (IC ); Ximba v LTA Earthworks (North) (1992) 13 ILJ 1513 (IC ); Imperial Cold Storage &
Supply Co v Field (1993) 14 ILJ 1221 (LAC ) at 1230H.
52 Section 84(1) of the BC EA; Solomons and Usabco (2002) 23 ILJ 786 (C C MA).
53 SATU obo Van As v Kohler Flexible Packaging Cape (2002) 23 ILJ 1248 (LAC ).
54 SACTWU / Dermar Fashions [1997] 2 BLLR 235 (C C MA).
55 PPWAWU and Plett Timbers (1997) 2 LLD 35 (C C MA).
56 Whall v Brandadd Marketing (1999) 20 ILJ 1314 (LC ).
57 Mamabolo v Manchu Consulting (1999) 20 ILJ 1826 (LC ).
58 Sibanye Gold v CCMA (2021) 42 ILJ 2467 (LC ).
59 Section 84(1).
60 Paramount Advanced Technologies v Barrier (2020) 41 ILJ 1414 (LC ).
61 Barrier v Paramount Advanced Technologies (2021) 42 ILJ 1177 (LAC ).
62 See Imperial Cold Storage v Field (1993) 14 ILJ 1221 (LAC ), in which it was observed that there is no reason why the retrenchment benefits of
managerial employees should be quantified by a more generous formula than those of ordinary workers, since higher paid employees benefit from the
larger amounts multiplied.
63 Matthews v GlaxoSmithKline SA (2006) 27 ILJ 1876 (LC ). However, the court held that on the facts the applicant employee had failed to prove
that there was no reason for the less favourable treatment he had been accorded.
64 De Bruyn v Metorex [2021] 10 BLLR 979 (LAC ).
65 See C hapter 17.
66 Barry and African Defence Systems (2004) 25 ILJ 1102 (C C MA).
67 See s 193(3) of the LRA, which permits the Labour C ourt to make, in addition to an order of reinstatement or compensation, ‘any other order
that it considers appropriate in the circumstances’ when adjudicating disputes concerning dismissals for operational requirements.
68 As it did in World Luxury Hotels Awards v De Wet (2018) 39 ILJ 808 (LAC ). In that case, the court agreed that the employee was entitled to
severance pay even though she had resigned because the contract provided for payment of a ‘severance package’ if the employee’s services were
terminated for any reasons save dismissal for dishonesty.
69 See, for example, Bidvest Prestige Services v Lebea NO (2021) 42 ILJ 377 (LC ).
70 Perumal v Clover SA (2022) 43 ILJ 226 (LC ).
71 Pretorius v Rustenburg Local Municipality (2008) 29 ILJ 1113 (LAC ). So, too, in Lemley v CCMA (2020) 41 ILJ 1339 (LAC ).
72 Smith and Broll Property Group (2003) 24 ILJ 1427 (C C MA). However, the employee was held to be entitled to severance pay for the period he
had worked between the date of retirement and his retrenchment. That entitlement would obviously only apply if the employee’s post-retirement period
of service exceeded one year: see Rogers v Exactocraft (2015) 36 ILJ 277 (LC ).
73 UCT v Auf der Heyde (2001) 22 ILJ 2647 (LAC ).
74 Department of Education, North West v Van Eck NO (2011) 32 ILJ 1346 (LC ).
75 Gouws v Mpumalanga Provincial Government (2001) 22 ILJ 1822 (LC ).
76 See Mashaba / Van der Merwe [1997] 12 BLLR 1644 (C C MA); Mdlolose v Coin Security Group [2001] 7 BLLR 777 (LC ).
77 Jones v Retail Apparel [2000] 6 BLLR 676 (LC ).
78 In this regard the BC EA confirms the view adopted by the courts under the 1956 LRA: see NEHAWU v SAIMR [1997] 2 BLLR 146 (IC ); Burger v
Alert Engine Parts (1999) 4 LLD 90 (LC ).
79 Sayles v Tartan Steel [2000] 2 BLLR 161 (LAC ).
80 Irvin & Johnson v CCMA (2002) 23 ILJ 2058 (LC ).
81 Freshmark v CCMA (2003) 24 ILJ 373 (LAC ) at [24].
82 Section 197(3)(a).
83 See Freshmark v CCMA (2003) 24 ILJ 373 (LAC ).
84 See, for example, Sayles v Tartan Steel [2000] 2 BLLR 161 (LAC ), in which the court cited as factors which may justify an employee’s refusal of
an offer of alternative employment new responsibilities that are beyond the employee’s capabilities, drastically reduced income and status and personal
inconvenience to the employee, such as relocation far from his family.
85 ECCAWUSA v Shoprite Checkers t/a OK Krugersdorp (2000) 21 ILJ 1347 (LC ).
86 Freshmark v SAWU obo De Klerk (2000) 21 ILJ 356 (LC ). See also Sayles v Tartan Steel supra.
87 Roberts v WC Water Comfort (1999) 4 LLD 117 (LC ); Decision Surveys International v Dlamini (1999) 4 LLD 300 (LAC ). But unconditional and
voluntary acceptance of a package will preclude an employee from later challenging his retrenchment: Ferguson v Basil Read (2013) 34 ILJ 1163 (LC ).
88 Decision Surveys International v Dlamini (1999) 4 LLD 300 (LAC ).
89 NASAWU v Pearwood Investments t/a Wolf Security (2009) 30 ILJ 1852 (LC ).
90 See, for example, Maritz v Calibre Clinical Consultants (2010) 31 ILJ 1436 (LC ).
91 University of the North v Franks (2002) 23 ILJ 1252 (LAC ).
92 See MISA/SAMWU obo Members v Madikor Drie (2005) 26 ILJ 2374 (LC ).
93 NUM obo Members v Sibanye Stillwater (2021) 42 ILJ 174 (LC ).
94 Marques v Group Five Construction (Under Supervision) (2020) 41 ILJ 677 (LC ).
Before a retrenchment, the employee parties are entitled to be consulted on, and the employer is obliged to provide information
concerning, the possibility of the future re-employment of those employees to be dismissed. The LRA does not expressly impose on
employers an obligation to make such offers, or to honour them, should vacancies arise after the retrenchment. However, s
186(1)(d) deems a refusal by an employer to re-employ an employee a dismissal if the employer has previously dismissed that
employee and other employees for the same or similar reasons and the employer re-employs some of them. 95 This means that
retrenched employees may challenge their non-re-employment as an unfair dismissal. 96
The employer retains the choice of deciding whether the retrenched employees are suitable for any vacancies that may arise. 97
An employer is not obliged to offer retrenched employees special training to enable them to become capable of fulfilling the tasks of
new vacancies. 98
The definition of ‘unfair labour practice’ also includes a failure or refusal by an employer to reinstate or re-employ an employee in
terms of any agreement. 99 If an employer has agreed to re-employ retrenched employees, it is obliged to do so.
4th Ed, 2022, ch 18-p 423
The Act does not state how long an employer should keep such an offer open or the basis on which employees should be selected
for re-employment. In the absence of an agreed period, the concept of ‘reasonableness’ should be applied.
Logic suggests that employees should be selected for re-employment according to the same principles as they must be selected
for retrenchment, ie LIFO in reverse, coupled with the suitability of the employee for the available position.
A retrenched employee may be denied relief if, after an unfair retrenchment, the employer unconditionally offers to reinstate the
employee, subject to the proviso that consultations will commence afresh. 100
A refusal to re-employ retrenched employees may also indicate that the retrenchment itself was unfair. 101
95 See C hapter 4.
96 This provision gives effect to the judgment in NAAWU (now known as NUMSA) v Borg-Warner SA (1994) 15 ILJ 509 (A), in which the court held
that a refusal to re-employ in these circumstances constituted an unfair labour practice.
97 SACCAWU v Wimpy Aquarium [1998] 9 BLLR 965 (LC ); Pritchard Cleaning Services v Grogan NO (1999) 20 ILJ 922 (LC ) at 163A; OCGAWU and
First Pro Engineering (2004) 25 ILJ 772 (BC A) at 778G–I.
98 Bosal (Afrika) / NUMSA obo Botha [2000] 3 BALR 325 (IMSSA).
99 Section 186(2)(c). See Employment Rights C hapter 6.
100 Maloba v Minaco Stone Germiston (2000) 21 ILJ 1795 (LC ); Mamabolo v Manchu Consulting (1999) 20 ILJ 1826 (LC ).
101 CEPPWAWU obo Hlophe v Bayfibre Central Co-operative (2017) 38 ILJ 627 (LC ).
Dismissal / Chapter 19 Closures, mergers, transfers and sales of businesses
Chapter 19
Closures, mergers, transfers and sales of businesses
4th Ed, 2022, ch 19-p 424
1. Introduction
2. Section 197
4. Date of transfer
1. Introduction
Under common law, the demise of a corporate employer whether by closure, sale, merger, takeover or in any other way, results in
the termination of the contracts of employment between the corporation and its employees. An employer contemplating closure
cannot compel its employees to work for another. In those circumstances the employer must terminate the services of its
employees on notice. This amounts to a dismissal. Under the 1956 LRA, an employer that dismissed its employees pending the sale
or closure of its business was deemed to have done so for operational requirements, and was therefore obliged to consult them and
grant them severance pay.
This situation no longer applies. Apparently as a compromise to employers for the statutory obligation to follow the mandatory
retrenchment procedures and pay severance packages in these circumstances, the drafters of the current LRA created s 197. The
original version of that section was unhappily drafted, and was replaced in its entirety in 2002.
2. Section 197
4th Ed, 2022, ch 19-p 425
The essence of the current s 197 is to be found in sub-s (2). This reads:
If a transfer of a business takes place, unless otherwise agreed in terms of subsection (6)—
(a) the new employer is automatically substituted in the place of the old employer in
respect of all contracts of employment in existence immediately before the date
of transfer;
(b) all the rights and obligations between the old employer and an employee at the
time of the transfer continue in force as if they had been rights and obligations
between the new employer and the employee;
(c) anything done before the transfer by or in relation to the old employer, including
the dismissal of an employee or the commission of an unfair labour practice or
act of unfair discrimination, is considered to have been done by or in relation to
the new employer; and
(d) the transfer does not interrupt an employee’s continuity of employment, and an
employee’s contract of employment continues with the new employer as if with
the old employer.

The main consequence of a transfer of business envisaged in s 197(2) – namely, the automatic transfer of the employees from the
transferor of the business to the transferee – takes effect only if a business or service is transferred from one employer to another
as a going concern. In this respect, the current s 197 is, with one small but significant difference, identical to its predecessor.
‘Business’ is still not defined, but now includes ‘the whole or a part of any business, trade, undertaking or service’. 1 The term
‘business’ therefore includes every conceivable form of activity in which employers engage, whether for profit or otherwise, and
whether in the private or the public sector, including its ‘non-core’ activities.
The meaning of the term ‘transferred as a going concern’ has been considered in a number of cases, most arising from disputes
between the ‘old’ and ‘new’ employers when the former claim that the latter must employ the transferred employees. The first was
Schutte v Powerplus Performance. 2 In that case, the Labour Court held that determining whether the whole or part of a business
has been transferred is a matter of substance, not form, and that the court must ‘weigh the factors that are indicative of a
transfer [against] those that are not’. No single fact is conclusive in itself. 3 The test is whether the business of part thereof
remains the same, but in different hands.
The sale of the majority of the shares of a business does not amount to a transfer in terms of s 197. 4 Nor does a bond holder’s
temporary takeover of the indebted
4th Ed, 2022, ch 19-p 426
business, 5 or the closure of one company in a group and the transfer of its business to another. 6
Section 197 applies not only to transfers of the entire business of one entity to another. It also comes into operation if part of
the business is transferred. A part of a business is a specific identifiable component of the enterprise, whether performing a ‘core’
or a ‘non-core function’.
The most popular way employers divest themselves of ‘non-core’ activities is to contract them out to service providers, usually
labour brokers. Under the original s 197, the Labour Court held that outsourcing work to a contractor did not constitute a transfer
of part of an employer’s business as a going concern, 7 because, according to the court, outsourcing is a temporary arrangement,
usually terminated at an agreed date and put out for tender again when that date arrives. However, that judgment was overruled.
In SAMWU v Rand Airport Management Co, 8 the LAC held that the word ‘service’, in ordinary usage, means an entity that performs
a service for somebody. Provided that a service within a company forms an integral unit, and the contractor takes over that unit,
its transfer constitutes the transfer of part of a business, covered by s 197. This means that ‘outsourcing’ arrangements are no
longer excluded from the effects of that provision – ie workers in the services concerned transfer automatically to the contractor,
provided that the entity concerned is one capable of being transferred as a going concern. 9
Rand Airport Management dealt with an initial outsourcing arrangement. In COSAWU v Zikhethele Trade, 10 the Labour Court
held that even so-called ‘second-generation outsourcing’, which occurs when a second contractor takes over the contract from
the first, may also attract the provisions of s 197. When an outsourcing contract is cancelled by the principal, and the principal
engages another contractor, the contracting company cannot be said to have effected the transfer. The court found that a wide
interpretation allowed for the view that, in such cases, the transfer occurs in two phases: in the first, the business is ‘handed back’
to the outsourcer and, in the second, it is transferred to the new contractor. If this is correct, s 197 will apply to most if not all
second-generation outsourcing arrangements, as well as to all subsequent changes of service provider. 11
Whether second-generation outsourcing can attract s 197 was finally resolved by the Constitutional Court in an appeal from the
SCA. 12 The highest court held that when a business is transferred successively between entities, each transferring party becomes
the old employer, and each acquiring party the new employer. Each transaction must be examined independently. When determining
whether
4th Ed, 2022, ch 19-p 427
contracting out amounts to the transfer of a business as a going concern, the substance of the initial transaction – especially
whether what is outsourced is a business as a going concern rather than the provision of an outsourced service – is crucial for
determining whether a business is transferred in subsequent transfers. If the outsourcing entity did not offer the service from the
outset, that service cannot be said to be part of the business of the transferor. What then occurs is simply a contracting out of
the service, not the transfer of the business as a going concern. The ‘outsourcee’ is contracted to provide the service, and is
obliged to do so.
According to the AUSA judgment, two questions must be asked when determining whether a particular transaction contemplates
a transfer of business by an old employer to a new employer: (1) Did the transaction concerned create rights and obligations which
require one entity to transfer something in favour of or for the benefit of another or to another? (2) If so, did the transaction oblige
the transferor to transfer and the transferee to receive the transfer? Provided that this transfer is that of a business as a going
concern, the transferee is the new employer and the transferor the old. The transaction then attracts s 197 and the workers will
enjoy its protection.
The answer to the question posed in the succession of AUSA judgments is therefore that second-generation outsourcing
arrangements may or may not trigger s 197(2). Everything depends on the facts. The main fact, it seems, is whether the principal
employed the contractor’s employees before the initial contracting out, and whether the contractor acquired part of the business
of the principal as a going concern. Where, however, the principal never performed the outsourced service, and where the first
contractor performed it with its own employees and equipment, the appointment of a second contractor in place of the first will
probably not attract s 197. 13
After the Constitutional Court’s judgment in AUSA, the Labour Court held that not all second-generation outsourcing
arrangements are hit by s 197. In Franmann Services v Simba, 14 the Labour Court held that the cancellation of Simba’s contract
with one labour broker and the conclusion of a fresh contract with another did not constitute a transfer of business as a going
concern. The service provided by Franmann could not be transferred because it was being wound up. That same service would
henceforth be provided by a third party. But where a new contractor merely picks up the previous contractor’s duties and carries
on where the old contractor left off, s 197 was held to apply. 15
The same applies to ‘insourcing’. One of the demands of the Fees Must Fall movement was that universities should ‘insource’ a
host of functions then supplied by contractors, including security services. UNISA was one of the many universities that
succumbed, and agreed to insource 910 of a total of 1 413 outsourced workers and to cancel the contracts of service providers.
Two security companies that had contracts with UNISA claimed that all their employees were transferred to UNISA in terms of s
197. The Labour Court ruled that the new arrangement did not amount to a transfer of the respondents’ business to UNISA as a
going concern. 16 The LAC noted although the case involved ‘insourcing’ rather than outsourcing, what
4th Ed, 2022, ch 19-p 428
mattered was the substance of the transaction rather than its form. To constitute a transfer of a business as a going concern, all
the assets of employees of the business need not be transferred, but only those essential to the business of the transferor. This
matter did not involve the cancellation of a contract with a business which had provided security services and the provision of the
same service by another entity which refused to employ the guards who had been employed by the previous service provider. That
could amount to a second-generation transfer. UNISA had been forced by intense political pressure to directly employ a group of
guards who had previously been employed by outside service providers. Both appellant contractors had done more than merely
supply guards. All UNISA had done was to employ a significant number of them. A new service provider would provide these
functions and possibly additional guards. This could not be said to amount to a transfer of a business as a going concern.
A divided LAC has held that the cancellation of a franchise arrangement does not result in a transfer of the business from the
former franchisee to the newly appointed franchisee, because this is merely a commercial transaction. 17 So, too, was the
cancellation of an agent’s contract and the appointment of a new agent. 18 The takeover of a service agreement by one service
provider from another and the transfer of marketing and distribution services from one distributer to another have been held not to
amount to transfers of a business as a going concern. 19
Notwithstanding these judgments, s 197 has been found to apply to interim arrangements in which an employer cancels the
contract of a service provider and takes over the service temporarily, pending the appointment of another contractor. 20 This will
not occur, however, where the business of the contractor is a genuine service contract. 21
Perhaps controversially, the Labour Court has held that, even if the transfer of a business has all the appearance of a second-
generation transfer, it did not amount to a transfer as contemplated by s 197 because at the time none of the parties was aware
that there had been a transfer. An order declaring that the employees had transferred to the new employer was refused. 22
Section 197 applies equally to statutory organs, even though this might hurt the public purse. 23
2 (1999) 20 ILJ 655 (LC ).
3 See AUSA v SAA (2011) 32 ILJ 2861 (C C ); RTMC v Tasima (2020) 41 ILJ 2349 (C C ); SAMWU v Rand Airport Management Co (2005) 26 ILJ 67
(LAC ); Kgethe v LMK Manufacturing (1998) 19 ILJ 524 (LAC ).
4 Ndima v Waverley Blankets; Sithukuza v Waverley Blankets (1999) 20 ILJ 1563 (LC ). See also Long v Prism Holdings (2010) 31 ILJ 2110 (LC ).
5 Spar Group v Sea Spirit Trading 162 t/a Paledi (2018) 39 ILJ 1990 (LAC ).
6 Maloba v Minaco Stone Germiston (2000) 21 ILJ 1795 (LC ).
7 NEHAWU v UCT (2000) 21 ILJ 1618 (LC ).
8 (2005) 26 ILJ 67 (LAC ).
9 The applicant in Schatz v Elliott International (2008) 29 ILJ 2286 (LC ) failed to prove that the transfer of the company’s sales function constituted
a transfer as a going concern. See also CEPPWAWU v Print Tech (2010) 31 ILJ 1850 (LC ).
10 (2005) 26 ILJ 1056 (LC ).
11 The Zikhethele judgment was set aside by the LAC on the basis that the ‘primary’ employer had not been joined as a respondent: see
Zikhethele Trade v COSAWU (2007) 28 ILJ 2742 (LAC ).
12 AUSA v SAA (2011) 32 ILJ 2861 (C C ).
13 See also Harsco Metals SA v Arcellor Mittal SA (2012) 33 ILJ 901 (LC ), in which AUSA was followed and applied.
14 (2013) 34 ILJ 897 (LC ).
15 Dimension Data v GWB Technologies (2022) 43 ILJ 1824 (LC ).
16 Imvula Quality Protection v UNISA (2017) 38 ILJ 2763 (LC ).
17 PE Rack 4100 v Sanders (2013) 34 ILJ 1477 (LAC ), overruling Sanders v Cell C Provider Company (2010) 31 ILJ 2722 (LC ).
18 Swanepoel v Leica Geosystems AG (2014) 35 ILJ 2877 (LC ).
19 Enviroserv Waste Management v Interwaste t/a Interwaste Environmental Solutions (2016) 37 ILJ 959 (LC ).
20 City Power v Grinpal Energy Management Services (2015) 36 ILJ 1423 (C C ). But see Rosond v Western Platinum (2017) 38 ILJ 454 (LC ).
21 As was found to be the case in Dimension Data v Omega Digital Services (2020) 41 ILJ 2453 (LC ) and WSSA v King Cetshwayo District
Municipality (2020) 41 ILJ 2493 (LC ).
22 Kruger v Aciel Geomatics (2016) 37 ILJ 2567 (LAC ).
23 RTMC v Tasima; Tasima v RTMC (2020) 41 ILJ 2349 (C C ).
4. Date of transfer
4th Ed, 2022, ch 19-p 429
The actual date on which the transfer of a business occurred may be important where the new employer denies that the transfer
had been effected before employees who would otherwise have been automatically transferred were dismissed. This situation arose
in Van der Velde v Business & Design Software. 24 Part of the business of the respondent in that case was taken over by another
concern, NGN. The two entities concluded a written agreement on 3 April 2003, but agreed that the ‘effective date’ of the transfer
would be 1 January of that year. Van der Velde was retrenched on 28 March 2003. Business & Design Software claimed that he was
employed by NGN at the time of his dismissal. The court held that the date on which the business is transferred as a going concern
is a matter of fact, which cannot be artificially altered by contract. The date of transfer, said the court, was the date on which
the new employer assumed ‘final and unconditional control and responsibility for the transferred business’. Van der Velde was upheld
on appeal. 25 The LAC approved of this approach in AST Holdings v Roos, 26 but, without saying why, expressed doubt about the
expression ‘final and unconditional control’.
In RTMC v Tasima; Tasima v RTMC, 27 the highest court was faced with the task of identifying the date of transfer in a matter
in which that court had earlier confirmed that a transfer of business had occurred. Some of the justices held that the transfer of
business occurred when the service agreement between Tasima and the Road Traffic Management Corporation (RTMC) expired, but
the majority held that the legal causa and date of the transfer was the date on which the court had ordered Tasima to hand over
its business to the RTMC.
24 (2006) 27 ILJ 1225 (LC ). For the sequel to this case, see C hapter 7.
25 Business & Design Software v Van der Velde (2009) 30 ILJ 1277 (LAC ).
26 (2007) 28 ILJ 1988 (LAC ).
27 (2020) 41 ILJ 2349 (C C ).
According to s 197, the transfer of the whole or part of an employer’s business results in the ‘automatic’ substitution of the ‘new
employer’ (ie the transferee) for the ‘old employer’ (ie the transferor). This substitution has four practical consequences for the
employers and employees concerned: 28
• All the rights and obligations between the old employer and an employee at the time of the transfer continue in force as if
they had been rights and obligations between the new employer and the employee.
• Anything done before the transfer by or in relation to the old employer, including the dismissal of an employee or the
commission of an unfair labour practice or act of unfair discrimination, is considered to have been done by or in relation to the
new employer.
• Continuity of employment is not interrupted.
• The transferred employee’s contract of employment continues with the new employer as if with the old employer.
4th Ed, 2022, ch 19-p 430
All the consequences spelt out by the Act are necessary corollaries of the automatic substitution of the new employer for the old.
That phrase simply means that the new employer steps into the transferor’s shoes, and after the transfer is effected employs the
transferred employees as if they had always been on its payroll. The current s 197 confirms in express terms what the courts had
read into the initial version.
The stipulation that anything done by the old employer is assumed to have been done by the new employer means that the new
employer does not start with a clean slate; if the employees had actions against the old employer for, say, an unfair labour practice
or a breach of contract, the new employer is liable for the consequences. Even an employee dismissed by the old employer will
have an action for reinstatement against the new employer. 29
The further stipulation that the continuity of the transferred employees’ service is not interrupted means that any benefits the
employees might derive from length of service – in particular, severance pay if the employee is later retrenched by the new
employer – are not affected by the transfer. The effect of s 197(2)(d) is that, for purposes of calculating the employee’s length of
service, the years served with the old employer are added to those served with the new employer, even if the employee agreed to
waive the years accrued with the old employer. 30
This does not mean that the new employer may not alter some of the terms and conditions of employment by agreement with
the transferred employees. The Labour Court has upheld an agreement varying severance benefits the employees would receive
upon future retrenchment. 31 The court has also held that the transfer by the new employer of an employee to a different post
long after a transfer of business does not infringe s 197. 32 The High Court has held that the new employer is entitled to conclude
a restraint of trade agreement with employers after the transfer. 33
Transferred employees are further protected by ss 186(1)(f) and 187(1)(f), which respectively define as a dismissal the
termination of a contract of employment by an employee ‘because the new employer, after a transfer in terms of s 197 or s 197A,
provided the employee with conditions or circumstances at work that are substantially less favourable to the employee than those
provided by the old employer’ and render automatically unfair the dismissal of an employee for a reason related to a transfer in
terms of s 197. These provisions are discussed in Chapters 4 and 7, respectively. However, if all the conditions of a s 197 transfer
are satisfied, the transfer does not constitute a dismissal by the old employer. 34
The only way in which employers contemplating a transfer of business can escape the consequences spelt out in s 197(2) is to
conclude an agreement which complies with the provisions of s 197(6). The latter provision sets the requirements for these
agreements; they must be concluded between ‘either the old employer, the new employer, or the old and new employers acting
jointly, on the one hand’;
4th Ed, 2022, ch 19-p 431
and ‘the appropriate person or body referred to in s 189(1), on the other’. 35 An agreement concluded with majority unions in terms
of s 197(6) that was extended to non-parties was held to be binding on members of a minority union. 36
The ‘appropriate person or body referred to in s 189(1)’ is the person or body with which the employer would have to consult
were it to engage in pre-retrenchment consultation. 37 Section 197(6)(a), which provides that when proposing such an agreement
the employer(s) must ‘disclose to the person or body contemplated in subparagraph (ii), all relevant information that will allow it to
engage effectively in the negotiations’, also makes it clear that employers proposing such agreements must negotiate with, and not
merely consult, the employee parties. There is no limitation on the matters to which the parties may agree. The Labour Court has
upheld an agreement varying severance benefits the employees would receive upon future retrenchment. 38
The fact that a recognised union must be part of the agreement contemplated by s 197(6) does not give the union a right to be
consulted before a transfer is effected under sub-s (2). 39
Orders and awards obtained by employees against the old employer are executable against the new employer after the transfer
of the business, 40 even if the order is made after the transfer has occurred, provided that the cause of action arose before. 41
28 Section 197(2)(b)–(d).
29 Anglo Office Supplies v Lotz (2008) 29 ILJ 953 (LAC ). This confirms the judgment in NUMSA v Success Panelbeaters & Service Centre t/a Score
Panelbeaters & Service Centre (1999) 20 ILJ 1851 (LC ). The original s 197 did not spell out this consequence in express terms.
30 Foodgro, a Division of Leisurenet v Keil (1999) 20 ILJ 2521 (LAC ).
31 SACWU v Engen Petroleum (1998) 19 ILJ 1568 (LC ).
32 Sibiya v Arivia.kom (2008) 29 ILJ 1556 (LC ).
33 Experian SA v Haynes (2013) 34 ILJ 529 (GSJ).
34 Krishna v UKZN (2012) 33 ILJ 1688 (LC ).
35 Section 197(6) is aimed at clarifying the confusion created for a period by the LAC judgment in NEHAWU v UCT (2002) 23 ILJ 306 (LAC ). In that
case, a divided court held that the term ‘agreement’ contemplated in the original version of s 197 rendered the consequences of the transfer for the
affected employees conditional on agreement between the employers concerned. That judgment was overruled by the C onstitutional C ourt in NEHAWU v
UCT (2003) 24 ILJ 95 (C C ), which held that the consequences of a transfer followed automatically from the transfer of a business, irrespective of whether
or not the employers agreed to the contrary. The current s 197(6) makes it clear that the consequences of transfer spelt out in s 197(2) follow
automatically, unless an agreement is concluded to the contrary between either the old employer or the new employer, or both acting jointly.
36 NUM v Anglo Gold Ashanti (2019) 40 ILJ 407 (LC ).
37 On which, see C hapter 17. In IMATU v Department of Health, Eastern Cape Province [2011] 4 BLLR 366 (LC ), the applicant unions sought to
obtain an interdict prohibiting a transfer of healthcare services from municipalities to the department on the ground that they had not been consulted.
The court held in this case that the unions could apply to have the transfer set aside after the transfer took place if the employees’ conditions of service
were indeed altered.
38 SACWU v Engen Petroleum (1998) 19 ILJ 1568 (LC ).
39 SACCAWU v Western Province Sports Club t/a Kelvin Grove Club (2008) 29 ILJ 3038 (LC ).
40 Sheriff of the High Court, Rustenburg v High Rustenburg Hydro (2011) 32 ILJ 1249 (LC ).
41 NEHAWU obo Cornelius v High Rustenburg Estate (2016) 37 ILJ 1183 (LC ).

Section 197(3)(a) provides that the new employer is deemed to have complied with its obligations in terms of sub-s (2) if the
transferred employees are transferred ‘on terms and conditions that are on the whole not less favourable to the employees than
those on which they were employed by the old employer’. This provision does not apply where the transferred employees’
conditions of employment are governed by collective agreement, 42 in which case the conditions must remain the same.
4th Ed, 2022, ch 19-p 432
A test has not yet been formulated to determine the extent to which an employer may amend the terms and conditions of
transferred employees and still comply with its obligation to employees transferred in terms of their contracts with the old employer.
Section 197(3)(a) must be read with s 197(2)(d), which provides that the contracts of employment continue with the new
employer ‘as if with the old employer’. That being the case, the changes contemplated in s 197(3)(a) must fall short of variations of
fundamental terms of the employee’s contracts. The difference between variations of fundamental terms of contracts and changes
in ‘work practices’ is discussed in Chapter 20. It appears that the legislature had this distinction in mind when it used the term ‘on
the whole not less favourable’ in s 197. Changes in shift arrangements and working hours spring to mind as examples. But the court
has held that an employer is not permitted to vary conditions that affect important benefits, such as pension rights or an
employee’s retirement age. 43
However, employers may vary the conditions of transferred employees if their trade unions have formally concluded a collective
agreement to that effect. 44 While the Act does not say so expressly, it must follow that individual employees or those not
represented by a union may agree to variations of their conditions of employment as well. The Act also expressly permits new
employers to place transferred employees on different pension, provident or ‘similar’ funds, provided the relevant provisions of the
Pension Funds Act 24 of 1956 are followed. 45
Whether a restraint of trade agreement transfers from the old to new employer depends on whether it imposes conditions more
favourable than those of the BCEA. 46
Where employees’ terms and conditions of employment are set by a plant level collective agreement before their transfer, and
the new employer is governed by a bargaining council agreement, their conditions of employment after the transfer will be governed
by the council agreement, even if they are less favourable. 47
42 Section 197(3)(b).
43 Rubin Sportswear v SACTWU (2004) 25 ILJ 1671 (LAC ).
44 Section 197(3)(b).
45 Section 197(4). The phrase ‘or similar’ seems wide enough to cover medical aid schemes.
46 Laser Junction v Fick (2017) 38 ILJ 2675 (KZD).
47 SAMWU v City of Johannesburg (2018) 39 ILJ 894 (LC ).

The new employer is also bound by any arbitration award or collective agreement that was binding on the old employer immediately
before the transfer. This confirms the earlier findings by the Labour and Labour Appeal Courts that reinstatement orders against the
old employer are enforceable against the new employer. 48 Transport Fleet Maintenance v NUMSA had an additional twist: the
award was in that case non-retrospective, and the transfer of business from the old employer to Transport Fleet Maintenance took
place before the award was issued. 49 The court held that the award was nonetheless binding on the new employer.
4th Ed, 2022, ch 19-p 433
The court considered the relevance of the word ‘immediately’ in Edgars Consolidated Stores v SACCAWU. 50 After the respondent
employee was dismissed by her then employer, CNA, a CCMA commissioner reinstated her with retrospective effect. CNA launched a
review application, but before the matter was heard, that company was placed in provisional liquidation. Three months after that,
Edgars Consolidated Stores acquired the business of CNA, and sought leave to intervene in the review application. That application
was dismissed. SACCAWU then launched an application to join Edgars and obtained a writ of execution. Edgars applied to have the
writ set aside, contending that it was not bound by the award. The court accepted that the phrase ‘immediately’ contemplates two
contemporaneous circumstances: the first being the issuing of an arbitration award; the second being the transfer of the business.
But the provision is not concerned with when the award was issued. It is concerned with whether the old employer was bound by
the award immediately before the transfer. The date on which the award was issued is therefore relevant only to whether the
award is transferred. The court ruled that the award was binding on Edgars and allowed the writ to stand.
The award is binding on the new employer even if it was set aside on review after the transfer of business. A writ issued against
the old employer therefore remains binding on the new employer. 51
48 See NUMSA v Success Panel Beaters & Service Centre t/a Score Panelbeaters & Service Centre (1999) 20 ILJ 1851 (LC ) and Transport Fleet
Maintenance v NUMSA (2004) 25 ILJ 104 (LAC ).
49 (2004) 25 ILJ 104 (LAC ).
50 (2010) 31 ILJ 2578 (LC ).
51 High Rustenburg Estate v NEHAWU obo Cornelius (2017) 38 ILJ 1758 (LAC ).

The obligations of the old employer prior to the transfer are spelt out in s 197(7). The old employer is required to agree with the
new employer on a valuation as at the date of transfer of the leave pay accrued to the transferred employees of the old employer,
the severance pay that would have been payable to the transferred employees of the old employer in the event of a dismissal by
reason of the employer’s operational requirements, and any other payments that have accrued to the transferred employees but
have not been paid to employees of the old employer. The agreement must be in writing and must specify which employer is liable
for paying the amount due to the employees and, in the case of the apportionment of liability between them, the terms of that
apportionment. This agreement must be disclosed to the affected employees.
Furthermore, the old employer is obliged to take ‘any other measure that may be reasonable in the circumstances to ensure that
adequate provision is made’ for the discharge of any obligation that passes to the new employer to satisfy any claims by employees
that might have arisen between the old employer and its employees but for the transfer. The latter provision appears to place
responsibility for ensuring that the new employer is capable of meeting such obligations on the old employer. The new employer may
presumably waive this requirement.

4th Ed, 2022, ch 19-p 434
For 12 months after the transfer, the old employer is jointly and severally liable with the new employer to any employee who
becomes entitled to receive a payment as a result of the employee’s dismissal for a reason relating to the employer’s operational
requirements or the employer’s liquidation or sequestration, unless the old employer can show that it has complied with the
provisions of s 197. Employees retrenched by the new employer are entitled to severance pay calculated from the date of their
employment by the old employer(s), irrespective of how long after the transfer the retrenchment occurs, or of how many transfers
have taken place after that. 52 Furthermore, the old and new employer are jointly and severally liable for any claim concerning a
term or condition of employment that arose prior to the transfer, except for criminal offences. 53 However, in the event of a claim
against the new employer for unfair retrenchment, joint and several liability does not mean that the old employer should be joined in
the proceedings. 54
If the new employer dismisses the transferred employees after the transfer, the old employer is not jointly and severally liable for
payment of their severance pay if the old employer has complied with its obligations in terms of s 197. The retirement age set by
the old employer remains the same. If the new employer subsequently wishes to change that age, it must do so by agreement or
industrial action. 55
52 Jenkin v Khumbula Media Connexion [2010] 12 BLLR 1295 (LC ).

53 Section 197(10).
54 Strydom v T-Systems SA (2012) 33 ILJ 2978 (LC ).
55 Rubin Sportswear v SACTWU (2004) 25 ILJ 1671 (LAC ).

As matters stood before the promulgation of the current s 197A, liquidation of an employer meant that the contracts of
employment between the insolvent employer and its employees lapsed. Where another employer took the insolvent business over as
a going concern, the contracts automatically transferred, where the new employer so desired, but all claims that the employees
may have had against the old employer (such as claims for accrued leave and severance pay) had to be lodged against the
liquidators of the old employer under the Insolvency Act 24 of 1936. In other words, the contracts between the new employer and
the transferred employees commenced afresh, except that continuity of service was not interrupted, even if the parties agreed
otherwise. 56
Transfers of insolvent business are now regulated by s 197A. In these circumstances, the employees of the old employer are also
transferred automatically to the new employer. 57 The only difference between transfers between solvent employers and transfers
in circumstances of insolvency is that anything done before the transfer by the insolvent employer in respect of each employee is
considered to have been done by that employer, and the new and old employer are not jointly
4th Ed, 2022, ch 19-p 435
and severally liable for an employee’s claims against the old employer that arose before the transfer.
Although an entity that has taken over the business of an insolvent employer is not liable for unfair dismissals affected by the
insolvent employer, a reinstatement order obtained against the old employer before the insolvency is binding on the new
employer. 58
An employer facing winding-up or sequestration must inform its employees or their union of that fact.
56 See Foodgro (A Division of Leisurenet) v Keil (1999) 20 ILJ 2521 (LAC ), especially the judgment of C onradie J at [35].
57 See, for example, CEPPWAWU v Cordero (2008) 29 ILJ 1157 (LC ).
58 Hydro Colour Inks v CEPPWAWU (2011) 32 ILJ 1625 (LAC ). If the new employer is to escape liability for dismissals effected by the old
employer, it must prove that the takeover was in terms of a scheme of arrangement or compromise under the C ompanies Act 71 of 2008: Palierakis v
Atlas Carton & Litho (in liquidation) (2014) 35 ILJ 2839 (LC ). Otherwise, the new employer remains liable.
Dismissal / Chapter 20 Unilateral change to terms and conditions of employment
Chapter 20
Unilateral change to terms and conditions of employment
4th Ed, 2022, ch 20-p 436
1. Introduction
1. Introduction
Employers may find it necessary to alter terms and conditions of employment to make more efficient or economical use of their
labour. If the employees accept the variation, no problem arises; the change is consensual. If the employees refuse to accept the
new conditions of employment, the question arises whether the employer can unilaterally implement the new conditions; if so, under
what circumstances, and how.
Strictly speaking, a significant variation of the terms and conditions of an employee’s contract constitutes a dismissal as defined
in s 186(1)(a) of the LRA; 1 the contract is effectively terminated, and a new contract is concluded. However, the courts generally
do not consider unilateral amendments of terms and conditions of contracts per se as dismissals; the affected employees are rather
deemed to continue in the employment relationship, but on different terms. Whether this is fair is a different question. If not, the
change may amount to an unfair dismissal if affected employees refuse to accept the change.
The LRA mentions unilateral amendments to terms and conditions of employment only once. Section 64(4) provides that
employees who engage in a strike over an alleged unilateral variation of their terms and conditions of employment may ‘request’ the
employer to restore the original terms and conditions of employment, or to refrain from implementing the new conditions, for a
period of 30 days. If the employer ignores the request, the Labour Court may enforce it by means of a declaratory order and a
mandatory interdict.
4th Ed, 2022, ch 20-p 437
Section 64(4) suggests that any dispute over a unilateral variation of terms and conditions of employment is a ‘matter of mutual
interest’, and that the only remedy available to employees is to engage in strike action. However, a unilateral variation of a
contract of employment is a breach of contract. The employees therefore retain their common-law right to accept the repudiation
and sue for damages or specific performance (which means that a court may direct the employer to restore the old terms), or to
hold the employer to the contract. If the change involves a reduction of salary, affected employees may sue for the recovery of
lost wages under the BCEA. 2
The choice of holding the employer to the contract necessarily entails a refusal by the employees to comply with the new terms
and conditions of employment. The question addressed in this chapter is whether an employer may dismiss employees who refuse to
comply with changes to terms and conditions of employment proposed by the employer.
The courts operating under the 1956 LRA adopted three approaches to dismissals of employees who refused to comply with
amended terms and conditions of employment. The first was to treat the dismissals as retrenchments; the second was to regard
them as ‘termination lock-outs’; the third was to regard the employees’ refusal to accept the terms and conditions of employment
proposed by the employer as a form of misconduct. Each of these approaches is considered below.
1 See C hapter 4.
2 Section 34 of the BC EA.

The idea that an employee dismissed for refusing to accept altered terms and conditions of employment is retrenched was
accepted by the former Supreme Court in TAWU v Natal Co-operative Timber. 3 The company had decided to introduce a new shift
system for its drivers. The drivers refused to work according to the new system. The company consulted in vain with the drivers’
union, then gave notice of its intention to terminate their employment. Approaching the issue from a common-law perspective, the
Supreme Court held that the termination of the drivers’ contracts amounted to a repudiation which entitled the drivers to elect
whether to accept the repudiation, thereby terminating their contracts, or to hold the employer to the existing contracts and insist
on performance in terms of those contracts. The court reached this conclusion because the common law does not recognise the
right of employers to dismiss fairly for operational requirements if that dismissal amounts to a repudiation of the employees’
contracts of service. The dismissal was held to be unlawful because the employees were not given notice in terms of their
contracts.
The then LAC also held that employers could retrench employees who refused to accept operationally justifiable changes to their
terms and conditions of employment if there had been a ‘commercial rationale’ for the variation. 4
4th Ed, 2022, ch 20-p 438
The current LRA does not expressly preclude employers from retrenching employees who refuse to accept proposed changes to
their terms and conditions of employment. The definition of ‘operational requirements’ is wide enough to embrace dismissals effected
for this reason. But the Act renders dismissals aimed at compelling employees to comply with an employer’s demand automatically
unfair, 5 and permits employers to retrench employees who are on strike, provided the employer complies with the retrenchment
provisions of the LRA. 6
Even so, under the present LRA the courts have accepted that an employer may retrench employees who refuse to comply with
proposed changes to terms and conditions of employment. The first case in which this issue arose was SACWU v Afrox, 7 which also
concerned a refusal by drivers to accept changes to their shift pattern. The difference between Afrox and Natal Co-operative
Timber was that, in Afrox, the drivers had engaged in a strike aimed at forcing the company to revert to the old shift system.
Although the main issue before the court was whether the company was entitled to dismiss the strikers, the LAC, having found that
the true reason for the dismissal was the drivers’ refusal to accept the new shift arrangement, accepted that this was a valid
reason for retrenchment. 8
The Labour Court relied on Afrox in two later judgments in which employers refused to accept changes to shift arrangements
effected as an alternative to retrenchment. The employer in ECCAWUSA v Shoprite Checkers t/a OK Krugersdorp, 9 faced with
imminent financial collapse before its sale as a going concern to the Shoprite group, began consulting with its workers’ union to find
ways of avoiding retrenchment. The company and the union agreed that both parties would ‘take all reasonable measures’ to avoid
job losses, including the introduction of ‘flexible work practices’. However, when OK introduced new and more economical shift
patterns, the employees refused to accept them. The workers were then retrenched. The union argued that the company had
‘embarked upon negotiations unilaterally to change the contracts of employment of the individual applicants and therefore had to
resort to power-play by locking them out’ when the dispute arose. The court held that where amendment to terms and conditions
of employment is proffered by an employer as an alternative to dismissal during a bona fide retrenchment exercise ‘the employer will
be justified in dismissing employees who refuse to accept the alternative on offer’.
The court adopted a similar approach in MWASA v Independent Newspapers. 10 In this case, the company placed its editorial
employees in a pool and required them to work for all its publications, instead of only one publication, as before. The employees
were unhappy with this arrangement; the company gave notice of its intention to retrench those employees who refused to accept
the change. The employees then sought an order restraining the company from implementing the change, claiming that it was a
unilateral amendment to their terms and conditions of
4th Ed, 2022, ch 20-p 439
employment. They also claimed that the company could compel them to accept the change only by locking them out, not by
threatening to dismiss them. The court began by distinguishing between disputes arising during retrenchment consultations and
disputes arising in the collective bargaining process. The difference was a question of fact. On the facts before it, the court held
that dismissal was one, though not a necessary, consequence of restructuring. This proved to be one in which dismissal was a
legitimate consequence.
But in both OK Krugersdorp and Independent Newspapers the courts made it clear that they upheld the dismissals only because
the changes proposed by the employers were genuine and bona fide attempts to avoid retrenchment. This approach was upheld by
the highest court in NUMSA v Aveng Trident Steel. 11
3 (1992) 13 ILJ 1154 (D).

4 Steynsfield Restaurants v Ndlovu (1994) 15 ILJ 297 (LAC ). In this case, the court held that the proposed change lacked an adequate commercial
justification for the termination of the employees’ contracts; the dismissals were held to constitute an unfair labour practice.
6 See C hapters 16 and 17.
7 (1999) 20 ILJ 1718 (LAC ).
8 Afrox is discussed in detail in C hapter 7.
9 (2000) 21 ILJ 1347 (LC ).
10 (2002) 23 ILJ 918 (LC ).
11 (2021) 42 ILJ 67 (C C ), discussed in C hapter 7.

The present LRA prohibits dismissing employees for refusing to ‘accept a demand in respect of any matter of mutual interest
between the employer and the employee’. 12 That an employer should dismiss an employee to compel the employee to accept a
demand may seem strange; the Act really meant that a dismissal is automatically unfair if the employee was dismissed for refusing
to comply with the employer’s demand.
By the time that the old LRA was revoked, confusion surrounded the use of the lock-out to effect unilateral amendments to
terms and conditions of employment; in particular, the right of employers to dismiss employees pursuant to such lock-outs. 13 It
was held that the right to dismiss on notice in the lock-out context depended on the intention with which the lock-out was
launched: where it was pre-emptive, in the sense of being aimed at compelling the employee to comply with the employer’s demand
(or offer), dismissal was never permissible. 14 The implications of this view were that employers could never fairly dismiss
employees if the lock-out was instituted for purposes of terminating the employment relationship. A dismissal pursuant to a lock-out
was viewed as a separate act falling under the industrial court’s unfair labour practice jurisdiction, notwithstanding the exclusion of
lock-outs from the definition of ‘unfair labour practice’. 15
The original s 187(1)(c) of the present LRA was intended to end these debates. The prohibition on dismissals effected for
purposes of compelling employees to
4th Ed, 2022, ch 20-p 440
accept a demand relates only to ‘any matter of mutual interest between the employer and the employee’. Although this expression
is usually taken to refer to disputes of interest, as opposed to disputes of right, it appears that the prohibition is intended to apply
to situations in which employers try to change their employee’s contracts. The prohibition goes further than simply preventing lock-
out dismissals. It also prohibits dismissals with the specified motive, even if there is no lock-out. Section 187(1)(c) may therefore
apply, in principle, to dismissals of single employees. 16
However, the employer’s motive must be to compel the employees concerned to accept a demand. Not every dismissal effected
as a result of an employee’s failure to comply with an instruction is effected with this end in mind. The employer’s motive may
simply be to improve its operations. It is difficult in practice to unravel the employer’s motive from the facts. An appropriate test
may be to ask whether the employee’s agreement was necessary in order to permit the employer to introduce the change.
The difficulty is that, from a strictly legal perspective, changes to an employee’s terms and conditions of employment always
require the employee’s consent in order to be lawful. The inquiry may therefore be simply factual: could the employer lawfully
institute the change without the employee’s consent? If the answer is yes, the fact giving rise to the dismissal is the employee’s
refusal to obey the instruction to comply with the new conditions, rather than the employer’s desire to compel the employee to
accept the conditions. In such cases, dismissal of employees for refusing to accept the change may be treated as misconduct (see
below). If, as in OK Krugersdorp and Independent Newspapers, the proposed change was introduced not as an end in itself, but as
a means of avoiding retrenchment, the employer’s motive will likewise not be one embraced by s 187(1)(c).
In Fry’s Metals v NUMSA, 17 the LAC, as well as the SCA, 18 found no difficulty in reconciling s 187(1)(c) with the right to
dismiss employees who refused to accept a shift change for operational requirements. 19 The Constitutional Court held in NUMSA v
Aveng Trident Steel that this approach survived the 2014 amendment of s 187(1)(c), finally confirming that workers who refused to
accept amendments to their terms and conditions of employment may be dismissed in appropriate circumstances.
If a court finds that the dismissal does not fall within the ambit of s 187(1)(c), the remaining inquiry is whether the employer
acted fairly when introducing the change, and whether the employee had any valid reason for refusing to comply with the change.
Such an inquiry entails assessing the dismissal according to the ordinary principles of any dismissal for operational requirements or
misconduct.
12 Section 187(1)(c). See also C hapter 7.

13 See Moodley ‘The key to unlocking the “lock-out”?’ (1990) 11 ILJ 1 and Trollip ‘Lock-outs in South African law’ in Benjamin, Jacobus & Albertyn
(eds) Strikes, Lock-outs and Arbitration in South African Labour Law (Juta 1989) 83. Lock-out dismissals are discussed in Grogan Collective Labour Law 3
ed (Juta 2019) C hapter 17.
14 FAWU v Middevrystaatse Suiwel Koöperasie (1990) 11 ILJ 776 (IC ) at 789D: ‘In my view it seems obvious that the exclusion lock-out does not
seek to terminate the contractual relationship of the parties, but merely suspends it by temporarily repudiating it and when it ends that relationship
simply reverts to normal. In a termination lock-out the contractual relationship is severed, but without initially resolving the employment relationship.’
See also CCAWUSA v Game Discount World (1990) 11 ILJ 162 (IC ), in which the court found that the employer’s decision to regard the lock-out
dismissals as final and irrevocable precluded those dismissals from being categorised as lock-out dismissals.
15 See also CWIU v Indian Ocean Fertilizer (1991) 12 ILJ 822 (IC ).
16 The industrial court held in Fisher v Clinic Holdings (1994) 15 ILJ 842 (IC ) that a lock-out cannot be imposed against a single employee.
17 (2003) 24 ILJ 133 (LAC ).
18 NUMSA v Fry’s Metals (2005) 26 ILJ 689 (SC A).
19 These judgments are fully discussed in C hapter 7.

4th Ed, 2022, ch 20-p 441
The Labour Court raised what it termed ‘the dispute of interest approach’ in FAWU v General Food Industries. 20 General Foods had
announced that the wage bill at one of its mills was too high and asked the union if the workers were prepared to take a wage cut
as an alternative to outsourcing. They were not, and the company retrenched its workers at the mill. The court approached the
matter from the premise that the right to bargain collectively is now enshrined in the Constitution. The case represented a situation
‘where it is alleged that an interest (ie non-legal claim) has migrated from the protected collective bargaining zone to the rights or
justiciable (legally based claim) zone by process of manipulation’. The alleged ‘non-legal’ claim was the company’s demand for a
reduction of the wage bill – what has been generally described as a classic dispute of interest – ie a demand which a party to the
employment relationship is entitled to make but to which it has no legal entitlement. Those disputes, it is generally held, must be
resolved in terms of the LRA by collective bargaining coupled, if necessary, with the threat of legal industrial action. The judge held
that it was ‘unfair and unreasonable on the part of the company to undo the wage agreement by another means’ – at least for the
purpose of increasing the profits of a generally profitable group. 21
Although the LAC referred briefly to the ‘dispute of interest’ approach in the appeal against General Foods, 22 it held that the
central question on appeal was whether the employer had a fair reason based on its operational requirements to dismiss the
workers. The LAC held that General Foods had a valid reason to dismiss the workers and that the company had consulted as
required by the LRA. The dismissal was accordingly fair. This judgment seems to have ended the ‘dispute of interest approach’ in
cases such as these. The test is simply whether in any context, the employer had a genuine operational reason to retrench and
had consulted as required by the LRA. NUMSA v Aveng Trident Steel has also diluted the ‘dispute of interest’ approach (see
below). 23
20 (2002) 23 ILJ 1808 (LC ).

21 The court acknowledged, however, that the company might legitimately and fairly have retrenched had its economic survival been at stake. The
court followed this approach in NACBAWU v Hernic Premier Refractories (2003) 24 ILJ 837 (LC ).
22 General Food Industries v FAWU (2004) 25 ILJ 1260 (LAC ).
23 (2019) 40 ILJ 2024 (LAC ), discussed in C hapter 7.

The leading cases concerning dismissals of employees for refusing to comply with instructions to accept changed working conditions
are Slagment v BCAWU; 24 A Mauchle t/a Precision Tools v NUMSA, 25 NUMSA v Lumex Clipsal; 26 and Air Products v CWIU. 27 All
four cases concerned refusals by employees to obey instructions to accept changes to working conditions introduced by their
employers,
4th Ed, 2022, ch 20-p 442
who were dismissed in consequence. In Slagment, the employees concerned refused to work under a newly appointed manager. In
Precision Tools and Lumex Clipsal, operators refused to operate two machines instead of one. In Air Products, the employees
refused to move from one production unit to another because the move would entail some night work. In all these cases, the
dismissals were treated by the employers as cases of misconduct.
In Slagment, the court dealt with the issue as a simple case of misconduct. 28 There was no inquiry into whether the instruction
to work under the new manager amounted to a change in the employees’ conditions of employment. This approach is undoubtedly
correct even under the present LRA; there must be a limit to the ‘demand’ envisaged in s 187(1)(c), otherwise employees would be
entitled to resist virtually all changes introduced by management by claiming they are refusing to comply with a ‘demand’.
In Precision Tools, the employees relied squarely on their alleged contractual rights after certain machine operators were asked
to operate two machines rather than one. Disciplinary action would be taken against those who refused to do so. Ultimately, the
company collectively called on the operators to provide the names of workers who would operate two machines, failing which all
the operators would be dismissed. No names were forthcoming, and all the operators were dismissed for failing to obey a lawful and
reasonable instruction. The industrial court ruled the dismissals unfair because the company had initially issued a ‘request’, not an
instruction, and that the operators were therefore not obliged to comply with it; because by making the ‘request’ the company
intended to alter the terms of the operators’ contracts; and because the ultimate instruction was unreasonable. The LAC held that
since it was not a term of the employment contracts that operators should operate only one machine, there was no requirement in
law or fairness for the company to negotiate with the union. While in fairness management should have attempted to persuade the
workers to co-operate (which the company had done) it was entitled to issue the instruction, which was lawful and reasonable.
In Lumex Clipsal the court held that the dismissal of employees who refused to ‘double up’ was fair because they had agreed to
the shift arrangement that entailed operating more than one machine, and knew that this was so.
The question as to how far an employer must go to persuade a reluctant employee to accept a change in working practice split
the court in Air Products. In that case, management decided to transfer an employee from one plant to another because changing
workloads at the respective plants had rendered his position at the plant in which he had worked redundant, and had created a
need for an additional employee at the other plant. Several attempts were made to explain the reasons for the decision to transfer
him. The employee refused to accept the transfer because he would be required to work night shifts. He asked to be retrenched
instead. The employee was
4th Ed, 2022, ch 20-p 443
then instructed to attend a disciplinary inquiry, which he refused to do. He was dismissed for insubordination.
As in Precision Tools, the court first asked whether the transfer amounted to a change in the employee’s terms and conditions of
employment. This was found not to be the case. But the court could not agree on whether the employer was obliged to consult the
employee. The majority held that, because the company had never intended to retrench the employee, it was not obliged to
consult with him. The minority adopted a different view. One judge focused on the initial decision to declare the employee’s post at
the first plant redundant, and held that the employer should have consulted with him before taking that decision. Again, Air
Products confirms, at least by implication, that employers are obliged to consult employees before varying the terms and conditions
of their employment. But the judgment also confirms that an employer is free to dismiss the employee for ‘insubordination’ if the
employee refuses to accept the change.
24 (1994) 15 ILJ 979 (A).

25 (1995) 16 ILJ 349 (LAC ).
26 [2002] 6 BLLR 511 (LAC ).
27 (1998) 3 LLD 54 (LAC ). All these cases were decided under the 1956 LRA, but the principles remain relevant.
28 The court observed: ‘The employees had been guilty of sustained disobedience. They had deliberately set themselves on a collision course with
management. They were insubordinate and insulting. Their conduct was such as to render the continuance of the employment relationship of employer
and employee impossible.’
Can the view that employees may be retrenched or, in some cases, dismissed for misconduct for refusing to accept changes to
their working conditions be reconciled with the prohibition against dismissing employees to compel them to accept a demand? The
case law provides no clear answer. Whether employees are dismissed for refusing a change aimed at saving jobs, or for
insubordination, they are certainly dismissed for not complying with their employer’s wishes. The only way in which the cases in
which such dismissals are effected in a retrenchment context can be reconciled with s 187(1)(c) is to focus on the employer’s
motive. When employers retrench employees who refuse to accept changes proposed as alternatives to retrenchment, those
employers have introduced the changes not as ends in themselves, but for another purpose condoned – indeed, prescribed – by the
LRA. This is to seek alternatives to retrenchment.
The LAC accepted as much in NUMSA v Aveng Trident Steel. 29 Such changes fall into the same category as ‘downward
bumping’, which is also accepted by the courts, and which also involves a change to employees’ terms and conditions of
employment. 30
When employers engaged in collective bargaining introduce a threat of dismissal as a bargaining chip, they must follow the lock-
out route in respect of the particular demand. The key to understanding the relationship between the use of dismissal as an
illegitimate bargaining weapon and dismissal to obtain legitimate operational goals is to realise that, like s 187(1)(a) and (b), s
187(1)(c) is intended to promote collective bargaining by removing the power of employers to dismiss employees when deadlock is
reached in disputes of interest. A change to the terms and conditions of employment introduced to avoid retrenchment introduces
a dispute of right because such changes are permitted by s 189(2) – the issue in such cases is whether the dismissals of
employees who refuse to accept the change are fair
4th Ed, 2022, ch 20-p 444
when viewed in the context of pre-retrenchment consultations. That is a matter of rights. Similarly, when an employer gives an
instruction which employees are contractually obliged to obey, a dispute over whether the employee is entitled to disobey is a legal
(and justiciable) issue. So, too, is the question of whether the dismissals of such employees were fair. As the courts appreciated in
most of the cases discussed above the difference between dismissals aimed at avoiding retrenchment, ‘lock-out dismissals’ and
dismissals for insubordination is one of degree. Notwithstanding the amendment to s 187(1)(c) the classification must depend on
the facts of each case. 31
29 (2019) 40 ILJ 2024 (LAC ) – confirmed on further appeal in NUMSA v Aveng Trident Steel (2021) 42 ILJ 67 (C C ). The case is discussed in
C hapter 7.
30 See C hapter 20.
31 See further the discussion of s 187(1)(c) in C hapter 7.
Dismissal / Chapter 21 Other reasons for dismissal
Chapter 21
Other reasons for dismissal
4th Ed, 2022, ch 21-p 445
1. Introduction
2. Incompatibility
1. Introduction
Three forms of dismissal are recognised by the LRA. These are dismissals for misconduct, incapacity and for the operational
requirements of the employer. It is also accepted that dismissals may be justified if effected for a number of other reasons, which
do not, strictly speaking, fall into any of the above categories. These are dismissals—
• for incompatibility
• at the behest of third parties
• that result from a breakdown of trust; and
• those deemed necessary because the employee formed part of a team that is performing unsatisfactorily.
These forms of dismissal are considered in this chapter.
2. Incompatibility
The industrial court recognised incompatibility as a valid ground for dismissal, 1 and categorised this form of dismissal as a dismissal
for operational requirements. 2
4th Ed, 2022, ch 21-p 446
Under the current LRA, the definition of ‘operational requirements’ is probably too narrow to generally embrace this reason for
dismissal. Dismissal for incompatibility is now probably more properly classified as a form of dismissal for incapacity, if the employees
concerned are not to blame for the conduct that renders them incompatible with their colleagues. On the other hand, if the
employees concerned are to blame for the behaviour which offends their employers and colleagues, termination of their employment
can be viewed as a dismissal for misconduct. 3 These distinctions may seem semantic, but the correct categorisation of the
dismissal may be important, because it dictates the procedure that should be followed in dealing with the employee concerned.
‘Incompatibility’ arises when employees are unable to work harmoniously with their colleagues, or are unable to adapt to the
‘corporate culture’ of the workplace. Although incompatibility has been described as a ‘nebulous concept’, 4 it is in essence an
irreconcilable breakdown in the working relationship caused by personality differences, resulting in the employee’s inability to work
with others. 5
The rationale for dismissing employees who are unable to work in harmony with their colleagues or superiors or subordinates, or
to adapt to the ‘corporate culture’ of their employers, is the employer’s right to expect its employees to adapt to norms and
standards set by the employer and to maintain harmony in the workplace.
Where the incompatibility arises from deliberate conduct by the employee concerned there is a fine line between incompatibility
and misconduct. Employees become incompatible when their colleagues, subordinates or superiors are unable to tolerate their
behaviour. Incompatibility therefore reflects a breakdown in interpersonal relationships. Properly so termed, incompatibility can
therefore seldom arise from an isolated incident, unless the employee’s conduct on that single occasion was so grossly
unacceptable as to permanently destroy the working relationship. This could be the result, for example, of a racist or some other
offensive remark. In such cases, the employer may treat the case as misconduct, 6 or dismiss the employee for operational
reasons. 7
When incompatibility manifests itself in insubordination, the dividing line between the reasons for dismissal blurs still further.
Jardine and Tongaat Hulett Sugar provides a good illustration. 8 Mr Jardine was dismissed after expressing his view about a senior
manager’s mild reprimand for late-coming as ‘arrogant, churlish, demeaning, depreciative, ill-considered, ill-mannered, insensitive,
insulting, rude and entirely inappropriate’. Although a more insubordinate and insolent remark can scarcely be imagined, both the
employer and the commissioner chose to treat the ensuing breakdown of relations between Jardine and his superior as a case of
incompatibility. The commissioner found that this had rendered the employment relationship unsustainable.
4th Ed, 2022, ch 21-p 447
When the continued presence of the employee concerned causes disharmony in the workplace, the employer is entitled to
address the problem, and, if it does not improve, to remove the cause of the discord by dismissing the employee. 9 It has been held
that the contract of employment contains an implied term that the employee will not act in a manner calculated to cause
disharmony and a breakdown in the employment relationship. 10
The test for the substantive fairness of a dismissal for incompatibility may be formulated as follows:
• Did the employee’s conduct cause disharmony or tension in the workplace?
• Was the disharmony and tension the result of the employee’s behaviour?
• Was the disharmony and/or tension irremediable?
• Did the disharmony and/or tension have an adverse or potentially adverse effect on the employer’s business?
• Was the termination of the employee’s contract the only reasonable way in which the cause of the disharmony and/or tension
could be removed? 11
That the employee’s conduct must be the cause of the disharmony or tension complained of is self-evident. Alleged incompatibility
should not be used as an excuse for ‘sacrificing’ an employee who, for example, stands up to a superior’s unreasonable demands.
Nor should an employee be made to suffer for being a party to a soured relationship caused by another. Some degree of tolerance
or adaptability on the part of the other employees is expected, provided the employee who is causing offence makes a reasonable
effort to adapt his or her behaviour. 12 Furthermore, the incompatibility must have caused an irremediable breakdown if dismissal is
to be accepted as a fair solution to the problem. A ‘mild form of eccentricity’, such as wearing a sports cap and carrying a fistful of
pens in the shirt pocket does not justify dismissal; 13 dismissal is appropriate only when eccentricity is of ‘so gross a degree that it
causes consternation and disruption in the workplace’. 14 If the other party to the disharmonious relationship would in any event
have left the employee’s services or have been transferred to another position, it is unlikely that the dismissal of an employee with
whom the departed employee was incompatible will be justified.
As with all forms of dismissal, dismissal for incompatibility must be an expedient of last resort; dismissal is not generally accepted
as justified if the employee has not been counselled, or where it is possible without undue inconvenience to accommodate the
employee in an alternative position. The requirements set by the courts and arbitrators for the procedural fairness of dismissals for
incompatibility reflect the hybrid nature of this form of dismissal. In some cases, the employer has been taken to task for not
holding a disciplinary inquiry. In others, the dismissals were held to be unfair because the employees were not adequately informed
how
4th Ed, 2022, ch 21-p 448
they were expected to adapt their behaviour or given a reasonable opportunity to adapt. 15
1 Larcombe v Natal Nylon Industries Pietermaritzburg (1986) 7 ILJ 326 (IC ); Radebe v SA Quilt Manufacturers (1992) 1 LCD 80 (IC ); Stevenson v
Sterns Jewellers (1986) 7 ILJ 318 (IC ); Lubke v Protective Packaging (1994) 15 ILJ 422 (IC ).
2 Wright v St Mary’s Hospital (1992) 13 ILJ 987 (IC ).
3 See SARU v Watson (2019) 40 ILJ 1052 (LAC ); Jardine and Tongaat Hulett Sugar (2002) 23 ILJ 547 (C C MA); Subrumuny and ABI (2000) 21 ILJ
2780 (ARB); PETUSA obo Scott and Baci t/a D & G Fashions (1998) 3 LLD 508 (C C MA).
4 Subrumuny and ABI (2000) 21 ILJ 2780 (ARB).
5 Lubke v Protective Packaging (1994) 15 ILJ 422 (IC ).
6 See, for example, Crown Chickens t/a Rocklands Poultry v Kapp (2002) 23 ILJ 863 (LAC ).
7 As happened in Lebowa Platinum Mines v Hill (1998) 19 ILJ 1112 (LAC ).
8 (2002) 23 ILJ 547 (C C MA).
9 Erasmus v BB Bread (1987) 8 ILJ 537 (IC ).
10 CSIR v Fijen (1996) 17 ILJ 18 (A).
11 See Jardine and Tongaat Hulett Sugar (2002) 23 ILJ 547 (C C MA).
12 TR McDuling and MIF (1998) 3 LLD 198 (C C MA).
13 Joslin v Olivetti Systems & Network Africa (1993) 14 ILJ 227 (IC ).
14 Jardine and Tongaat Hulett Sugar (2002) 23 ILJ 547 (C C MA).
15 See King v Beacon Island Hotel (1987) 8 ILJ 485 (IC ) for the procedure that should be adopted in cases of incompatibility.
A class of dismissal closely related to dismissal for incompatibility, but sufficiently distinct to have its own requirements, is dismissal
effected as a result of pressure on employers from third parties. Third parties in this context may be other employees or persons
outside the employment relationship. Such pressure is typically exerted by employees or their representatives who regard a
particular employee’s continued presence in the workplace as unacceptable, and threaten industrial action if the employee is not
dismissed. 16 Clients of an employer who insist that a particular employee is no longer acceptable to them may insist that offending
employees be removed from their premises.
Such situations are more akin to classic dismissals for operational requirements than dismissals for incompatibility, because the
tension arising from the employee’s continued presence cannot be alleviated even if the employees concerned adapt their conduct.
The two classes of dismissal may merge because the employees’ demand that an offending employee be dismissed may be caused
by the latter’s unacceptable conduct.
The distinguishing aspect of dismissal at the instance of third parties is that, had it not been for the pressure exerted by the
third party, the employer would not have dismissed the employee. Such dismissals are effected because employers regard the cost
of keeping offending employees on their payrolls as greater than the actual or potential costs of the third parties’ reaction if the
employees are not dismissed.
Dismissal at the instance of third parties was considered in a number of cases by the industrial court, 17 and the LAC under the
1956 LRA. 18 The jurisprudence developed in these cases was confirmed and consolidated in Lebowa Platinum Mines v Hill. 19 That
case arose from an incident in which a supervisor called a black subordinate a ‘bobbejaan’. The supervisor was merely warned not
to do so again. Most of the employees and their union were outraged by the leniency of that ‘penalty’ and demanded that the
supervisor be dismissed. They threatened to strike if the company did not comply with this demand. The company eventually
4th Ed, 2022, ch 21-p 449
dismissed Mr Hill. The industrial court held that the dismissal was unfair and awarded him compensation of more than R1 million. The
LAC summarised the test for the fairness of this class of dismissal as follows:
• The mere fact that a third party demands the dismissal of an employee does not render such dismissal fair.
• The demand for the employee’s dismissal must have a good and sufficient foundation.
• The threat by the third party to impose some sanction against the employer must be real.
• The harm that would be caused if the third party were to carry out its threat must be significant; mere inconvenience to the
employer is not enough to justify dismissal.
• The employer must make reasonable efforts to dissuade the party making the demand to abandon the demand.
• If the third party cannot be persuaded to abandon the demand, the employer must investigate and consider alternatives to
dismissal.
• In the process of considering alternatives, the employer must consult the employee and make it clear to him or her that
rejection of any possible alternative will result in dismissal.
The court added that the sympathy to be extended to offending employees depends on the degree of blameworthiness that can be
attached to them for the incident that gave rise to the demands for their dismissal. This consideration is critical to an assessment
of the fairness of a dismissal at the instance of third parties; the less blameworthy the conduct, the more compelling the
operational reasons required.
In East Rand Proprietary Mines v UPUSA, 20 a case involving the dismissal of workers of one ethnic group to assuage the feelings
of workers of another, the court held that dismissal will be countenanced only if management ‘not only acted reasonably, but that
it had no alternative to dismissal’.
The nature of the conduct which gives rise to calls for the dismissal of the employees concerned plays a significant role in the
degree of sympathy they can hope to gain from the court. In Kroeger v Visual Marketing, 21 the applicant killed a black man in a
road rage incident which received wide media coverage and appeared to be racially motivated. The company’s black staff called for
his dismissal, saying that they had also been subjected to racist abuse by Mr Kroeger. They said that in the light of the incident,
they feared for their lives. Visual Marketing did everything prescribed by the Lebowa Platinum Mines judgment – Kroeger was
suspended on full pay and the company tried to persuade the workers to withdraw their petition. Only when it became apparent
that a stalemate had been reached was Kroeger dismissed. The court noted that Kroeger had earlier been made to apologise to a
black worker for calling him a ‘kaffir’ and considered ‘trite’ the proposition that that word can spark industrial conflict. Kroeger’s
dismissal was fair because the company had acted in good faith and to avoid the clear threat of disruption.
4th Ed, 2022, ch 21-p 450
How precisely is a dismissal at the instance of a third party to be classified in terms of the requirements of the LRA? In Lebowa
Platinum Mines and East Rand Proprietary Mines the courts seem to have treated such dismissals as a special form of
retrenchment. That case was decided under the 1956 LRA, which did not expressly distinguish between forms of dismissal. The
current LRA specifically provides that employees may be dismissed only for reasons relating to the employees’ conduct or capacity,
or to the employer’s operational requirements. In Imperial Truck Systems, the arbitrator treated the dismissal as a retrenchment.
But as was pointed out by an arbitrator, 22 the client and the employer may have different reasons for wanting to get rid of poorly
performing workers: the client was obviously concerned with the employees’ conduct, but the employer was more concerned about
ensuring the continuance of the contract.
The classification of the dismissal is important, because the employer must follow the applicable procedure. In NUMSA obo
Fortuin and Laborie Arbeidsburo, 23 the arbitrator’s solution was to prescribe both the procedures for misconduct and for
operational requirements. In the circumstances, he said, the labour broker should first have investigated whether the client’s
complaint was valid and, if so, dismissed the employees for misconduct. If the client’s complaints had proved incorrect, the labour
broker could have commenced consultation with a view to retrenchment. As it happened, the broker did neither; it simply accepted
the client’s word, and dismissed the employees without informing them of the reason. To make things more difficult for labour
brokers in such situations, an arbitrator has held that failure to find the employer an alternative post or, failing that, to commence
retrenchment consultation, constituted a ground for a claim of constructive dismissal. 24
Another source of ‘third party’ pressure to dismiss employees may come from the workforce itself. 25 The first case in which the
consequences of strikes in support of demands to dismiss a manager arose in TSI Holdings v NUMSA. 26 In that case, the workers
downed tools after referring a dispute over ‘victimisation’ to the CCMA. They demanded in their strike notice that a manager who
had allegedly used racist language be ‘total [sic] dismissed’ with ‘immediately [sic] effect’. The grammar may not have been
perfect, but the notice left no room for doubt – the workers’ demand was that the manager be fired without the niceties of the fair
hearing they would doubtless have demanded for their own comrades.
The company sought an urgent interdict in the Labour Court, raising all the points that were to be expected. It argued, first,
that the strike was unlawful because the demand was ‘unlawful’; secondly, that the dispute could have been resolved by
arbitration; thirdly, that if the workers claimed to have been victimised they could have referred a dispute to the Labour Court. The
Labour Court rejected all three arguments on a strict reading of the Act. The judge found, first, that the demand could not be
construed as requiring the employer to dismiss the manager
4th Ed, 2022, ch 21-p 451
‘unlawfully’; and, secondly, that there was no provision in the applicable bargaining council constitution or the LRA for the resolution
by arbitration or adjudication of this type of dispute.
On appeal in TSI Holdings v NUMSA, 27 the court disagreed with the factual premise from which the Labour Court proceeded. The
LAC found that the strikers’ true objective had been to have the manager fired whether or not he was accorded a fair hearing, and
irrespective of whether he was indeed guilty of racism. That demand, said the court, was unlawful because the LRA confers on all
employees, including managers, the right not to be unfairly dismissed. The demand as framed placed the company in an impossible
situation; had it succumbed, the manager could have obtained an interdict halting his dismissal until he received a fair hearing. That
possibility convinced the LAC that the demand for the supervisor’s dismissal fell outside the range of permissible strike demands,
because it would have entailed breaching the manager’s right not to be unfairly dismissed.
The LAC judgment makes it clear that strikes in support of demands that an employer fire an employee without a fair hearing and
without a sound reason are not countenanced by the LRA. But the LAC also added two important riders to this finding. The first,
which the court expressly left undecided, was that the position might have been different had the strikers demanded, not that the
manager be ‘totally dismissed with immediate effect’, but had instead requested the company to institute disciplinary action against
him in terms of the provisions of its disciplinary code and in accordance with the requirements of the law. The second qualification
lies in the court’s observation that the position might also have been different had the workers produced proof that the manager
had indeed been guilty of uttering racist comments.
The first rider was put to the test in City of Johannesburg v SAMWU. 28 That case arose after the union had referred a brace of
unresolved issues to the SALGBC, including a demand that two managers be suspended for allegedly altering certain test results.
Ignoring the municipality’s objections, the conciliating commissioner issued a certificate licensing the workers to strike. On receipt
of the strike notice, the municipality went to court for an interdict raising, among other points, the argument that the strike should
be prohibited because the demand that the managers be suspended was ‘unlawful’. At first glance, it might have seemed that, at
least in respect of the demand for the suspension of the managers, TSI favoured the municipality. In its referral to the council, the
demand relating to the managers was simply that they be suspended. However, the union’s legal advisors had studied TSI. In the
answering affidavit, a union official explained that the demand was not simply that the managers be suspended, but that they be
suspended ‘in accordance with due process’ and ‘in a manner not constituting an unfair labour practice’. The intention was
obviously to bring the demand into the scope of the first rider to the TSI judgment.
TSI and City of Johannesburg take the law on the point at least this far: employees are not allowed to strike in support of a call
for the dismissal or suspension of managers, but they are entitled to strike in support of a demand for the employer
4th Ed, 2022, ch 21-p 452
to institute disciplinary action and possibly dismiss them. Employers confronted with the former call may seek the assistance of the
Labour Court. But employers confronted with the latter demand must either ride out the strike, if they can, or satisfy the demand,
if they cannot. If they choose to satisfy the demand, they do so by instituting disciplinary action against the targeted managers
or, in the case of a suspension, they do what the law requires.
This may sound simple. But the implications of the judgments may be messy in practice. This is illustrated by City of
Johannesburg itself. The court noted that the law sets three requirements for a fair ‘preventive suspension’: first, the employer
must be satisfied that the employee is alleged (presumably on reasonable grounds) to have committed a serious offence; 29
secondly, the employer must establish that the continued presence of the employee concerned might jeopardise investigations into
the alleged misconduct or create a danger; and, thirdly, the employee must be given an opportunity to make representations. This,
then, is what the municipality had to do if it was to satisfy the workers’ ‘refined’ demand. Since a demand that the municipality
comply with the requirements of a fair procedure was not unlawful, the municipality was not entitled to an interdict.
This finding seems to create a potential vicious circle. The requirements of a fair preventive suspension, as outlined by the
court, require the employer to decide, first whether there is a prima facie case warranting suspension, then whether the employee
should be removed from the workplace. That call rests with the employer. The municipality stated that it was satisfied that the
managers concerned should not be suspended. Assuming good faith, which the court appears to have accepted, that can only
mean that, in management’s view, the first requirement had been satisfied. And, as far as management was concerned, that should
have been the end of the process.
The municipality’s finding that there was no basis for suspending the managers must be what sparked the dispute in the first
place. The strike threat followed because the workers disagreed. The effect of the strike could then only be a stalemate or
reconsideration by the municipality of its earlier finding. And a strike aimed at forcing an employer to revisit a bona fide decision
that there were no grounds for disciplining an employee does not seem far removed from a strike aimed at forcing an employer to
dismiss an employee ‘come what may’. Small wonder, then, that the court observed (with probable relief), that it was not required
to decide ‘[w]hat the situation might be once the applicant complies with the relevant requirements relating to a fair suspension
but persists with a decision not to suspend an employee whose suspension has been demanded’. The same would have applied had
the workers demanded that the employee be dismissed.
As it happened, that scenario does not seem to have arisen in this particular dispute. But it is worth considering what might
have occurred had the employer done what the court said was required of it and the workers had not relented. The municipality
would have called in the managers concerned and told them that, although it had already decided (and now placed on record) that
there were no grounds for suspending them, it had to reconsider the matter in the light of the
4th Ed, 2022, ch 21-p 453
workers’ demands. The municipality would also have had to tell the managers that, in the light of the strike, their presence in the
workplace created a danger (they could not have been told that their presence would hamper an investigation, because the matter
would presumably have already been investigated). Finally, the municipality would have had to invite the managers to make
representations as to why they should not be suspended. These representations would presumably have been to the effect that
there was no ground for suspending them, as the municipality had already found.
If, after all this, the municipality had suspended the managers, they would surely have been in much the same position, spelt out
in TSI, as employees who are unfairly dismissed due to a union’s demand. If, on the other hand, the municipality had confirmed its
original decision, the question that the court had not been required to answer in the interdict proceedings would have arisen if the
strikers had persisted with their demand. What then? The authorities seem to provide only one answer. The employer would have
had to return to the Labour Court and persuade the judge that the strike had become unlawful because the strikers were
demanding that the manager be suspended unlawfully. And the strikers would presumably have responded that the employer had
not done its job properly and should do so again. At this point, the circle seems to close. If the court were to accept the workers’
assurance that they were not demanding the managers’ suspension, but that the employer merely revisit its decision, that would
seem to have satisfied the requirement of lawfulness set by TSI and City of Johannesburg. The employer, the targeted managers
and the strikers would all be back at square one.
This is where the second rider in TSI becomes relevant – that the situation might have been different had the workers produced
proof that the manager in that case was guilty of uttering racist comments. In Johannesburg City Council the court was not
required in the initial application to determine whether the managers had in fact done what the workers alleged they had done. But
if the strike had continued after the municipality had done what the court said it must do and had reached the same conclusion it
had arrived at at the outset, the only basis for the continuation of the strike would be, on the law as stated in TSI, that the
strikers were still demanding that the managers be suspended ‘after due process’ and in a manner not constituting an unfair labour
practice.
A court considering a situation like this has two options: first, to tell the strikers they had had their chance and must now call
off the strike’; or, secondly, to inquire into whether there was justification for the demand that the managers be suspended. The
first option would not resolve the dispute; the second would require the court to resolve on papers an issue ill-suited to that form
of adjudication and which should in terms of the LRA be resolved by arbitration. Furthermore, if it were to find that the employees
should indeed have been suspended and subjected to further disciplinary action, the court could not resolve the issue by ordering
the employer to suspend the managers because the dispute is one of interest, into which courts cannot intrude. So the only option
would be to allow the strike to continue until the strikers gave up or until they achieved the result they wanted in the first place –
the suspension of the managers with or without ‘due process’ or, at any rate, after a second process which did not yield the result
desired by the strikers.
4th Ed, 2022, ch 21-p 454
There is a further possible option: the employer could submit and suspend or dismiss the managers. If this were to happen, the
issue would end up where it should end up and where it would have had the employer decided that the managers should be
suspended or dismissed in the first place – before a statutory arbitrator. But what would the situation be if the arbitrator reinstated
the employee, and the workers threatened to strike yet again? That possibility was anticipated in TSI Holdings. In that judgment,
the LAC remarked, obiter, that had the targeted manager obtained an interdict restraining the employer from dismissing him, the
strike would have become unlawful because the employer would have been required to ignore a court order. The same would
presumably apply if an arbitration award had been issued.
It seems, therefore, that the only solution for an employer confronted with a demand that a manager be dismissed, but who is at
the same time convinced that there is no fair reason for doing so, would be to steal the strikers’ thunder. This would entail holding
a disciplinary inquiry and, if necessary, seeking an interdict restraining the union from striking until the manager’s fate is ultimately
determined by the procedures prescribed by the LRA because the dispute fell within the terms of s 65(1)(c) of the LRA – ie it was a
dispute which a party could refer for arbitration.
Pressure to dismiss employees may also come from customers. In Mnguni v Imperial Truck Systems t/a Imperial Distribution, 30
the company operated a transport business from the premises of several clients. Mr Mnguni worked at a store of a large retailer. He
asked his supervisor if he could borrow two 20-litre containers because he was having difficulty with the supply of water to his
home. He was stopped by a security guard at the store’s exit, but was allowed out after the guard satisfied himself that the
containers held only water. For reasons not apparent from the judgment, a supervisor at the store accused Mnguni the following
day of stealing 40 litres of fish oil. However, the store managers accepted Mnguni’s explanation and the matter was regarded as
closed. This did not satisfy Mnguni, who instructed a lawyer to demand damages for defamation from his accuser. The store’s
managers then told Imperial that they did not want Mnguni on the site while the defamation action was pending. Mnguni was
suspended. After unsuccessful attempts to find an alternative position for him, Imperial dismissed Mnguni. The court found the
dismissal unfair because the client had not threatened Imperial, and because Imperial had failed to make reasonable attempts to
find an alternative position for Mnguni. The court also held that the dismissal was procedurally unfair because Imperial had failed to
consult Mnguni in accordance with the requirements of s 189 of the LRA.
These principles apply not only where the reason relates to the employee’s alleged misconduct; they also apply where the third
party wants the employee dismissed for incapacity or poor work performance. 31 A group of employers which frequently rely on the
wishes of third parties to escape liability for dismissals of their employees are labour brokers. This ‘defence’ is invoked when brokers’
clients insist that certain employees be removed from their premises, and the broker
4th Ed, 2022, ch 21-p 455
has no other position to which to assign the employee. They are then retrenched. INTCS Corporate Solutions followed this route
after a major client, Nissan SA, complained about the behaviour of one of its (the broker’s) employees, Mr Nape. An e-mail Nape
had sent to a colleague caused Nissan to take exception. Nissan demanded that INTCS should deal with him. INTCS held a
disciplinary hearing and Nape received a final warning. He was told to return to work at Nissan, but Nissan refused to have him
back. After INTCS consulted with Nape, he was dismissed as there was no other post available for him. Nape claimed unfair
dismissal and wanted compensation. INTCS said its only option was to terminate his services, as it was requested to do by Nissan,
and that it was contractually entitled to do so. In Nape v INTCS Corporate Solutions, 32 the judge accepted that labour broking
arrangements are sanctioned by the legislature. But, he said, this does not mean that labour broking arrangements can be used to
evade obligations under labour legislation. INTCS could not rely on the contract between itself and its client: provisions in such
contracts that permit the client or the broker to unfairly dismiss the broker’s employees are contrary to public policy and without
legal effect.
So what should INTCS have done? The judge pointed out that Nissan was the agent of the unfair dismissal. But even if it had
‘superior bargaining power’ as a major client of INTCS, this did not mean that INTCS was powerless. According to the judge, the
broker should have insisted that Nissan accept the employee’s services and, if it could not, it should have approached either the
High Court or the Labour Court for an order compelling it to do so. Nape received compensation for his unfair dismissal.
Abancedisi Labour Brokers was confronted with a similar situation, although the facts were different. Its employees working at K
went on an unlawful strike and most of them refused to sign a ‘code of conduct’ designed by K to regulate future industrial action
at its plant. K told those workers who refused to sign the code to stay off its premises. Their union claimed they had been unfairly
dismissed. But, as it turned out, the referral was premature. In NUMSA obo Ketlhoilwe v Abancedisi Labour Brokers, 33 the court
noted that the applicants had not pursued their allegation that the arrangement between Abancedisi and the respondent and K was
a sham. 34 The union argued instead that Abancedisi had delegated to K the power to dismiss them, and that the broker was
accordingly liable for the unfair dismissal. The court found that the contract between the respondent and K did not support this
interpretation; it merely provided that a client was entitled to demand that Abancedisi remove employees from its site, and gave
the broker the right to terminate the contract. The evidence indicated that Abancedisi had not dismissed the employees when K
refused them access to its premises; it was common cause that they were still on its payroll when the matter was referred to the
CCMA. The court held that the employees had failed to prove that they were dismissed.
4th Ed, 2022, ch 21-p 456
A further situation which may be placed under this head arises where employees’ services are terminated in consequence of an
agreement between an employer and the employee’s trade union. This unlikely situation arose in Fakude v Kwikot. 35 Kwikot
instituted disciplinary action against about 100 of its employees for engaging in unprotected industrial action. But their union,
NUMSA, tried to make the best of a bad case. It concluded a collective agreement in terms of which the services of 26 employees
would be terminated on payment of severance packages, for which they were required to sign acceptance in full and final
settlement of all claims against the company. The remaining employees who had participated in the strike received final written
warnings. Those who did not, claimed that they had been unfairly dismissed. Before the unfair dismissal trial commenced, Kwikot
raised a special plea that they had not been dismissed.
The court was required to determine whether the 26 had been dismissed, and whether their acceptance of the severance
package was vitiated by duress. The employees contended that the collective agreement was void because it was
unconstitutional, against public policy and violated the provisions of the LRA. The court rejected the employees’ argument that, as
agents of their members, trade unions are required to seek approval from their members before concluding collective agreements
and held that unions have the power and authority to take decisions on behalf of their members. In doing so, they must uphold the
interests of the majority of members, even if particular decisions are detrimental to a minority. NUMSA had acted in the interests of
the majority at the expense of the minority, which it was entitled to do. The court accordingly ruled that the applicant workers had
not been dismissed.
A dismissal at the instance of a third party may also be automatically unfair if the reason is proscribed by the LRA. 36 Where an
employer conducted its business on premises rented from a religious mission, the code of which prohibited persons of ‘amorous
disposition’ from entering the property. This resulted in two unwed employees who had fallen pregnant gaining access to the
workplace. They were both dismissed. Both the Labour Court and the LAC rejected the employer’s attempt to blame the dismissal
on its landlord. 37 The LAC pointed out that the women’s constitutional rights had been infringed, and reminded the employer that
it could have interdicted the mission from forcing it to dismiss them. The dismissal was ruled automatically unfair.
16 The Labour C ourt has held that demands for the dismissal of employees may form the subject matter of a protected strike: TSI Holdings v
NUMSA (2004) 25 ILJ 1080 (LC ). The LAC overruled this decision because it found that the employees’ demand was that the offending employee should
be dismissed without a fair hearing (TSI Holdings v NUMSA (2006) 27 ILJ 1483 (LAC )). The court left open the question whether a strike is protected if the
demand is that the offending employee be subjected to fair disciplinary action. These cases are discussed below. See also NUMSA v Hendor Mining
Supplies (a Division of Marschalk Beleggings) (2007) 28 ILJ 1278 (LC ).
17 See Mazibuko v Mooi River Textiles (1989) 10 ILJ 875 (IC ) – demand by majority union that members of minority union be dismissed; Jonker v
ABI (1993) 14 ILJ 199 (IC ) – demand by employees that employee be dismissed because of past affiliations with security police.
18 East Rand Proprietary Mines v UPUSA (1996) 17 ILJ 1134 (LAC ); ABI v Jonker (1993) 14 ILJ 1232 (LAC ).
19 (1998) 19 ILJ 1112 (LAC ).
20 (1996) 17 ILJ 1134 (LAC ).
21 (2003) 24 ILJ 1979 (LC ).
22 In NUMSA obo Fortuin and Laborie Arbeidsburo (2003) 24 ILJ 1438 (BC A).
23 (2003) 24 ILJ 1438 (BC A).
24 Fourie and JD Bester Labour Brokers (2003) 24 ILJ 1625 (BC A).
25 Although these cases may also be described as cases of incompatibility (see above), they are treated here as cases of dismissal at the instance
of third parties because the same principles are applicable.
26 (2004) 25 ILJ 1080 (LC ).
27 (2006) 27 ILJ 1483 (LAC ).
28 (2009) 30 ILJ 2064 (LC ).
29 See Mogothle v Premier of the North West Province (2009) 30 ILJ 605 (LC ).
30 (2002) 23 ILJ 492 (LC ).
31 As happened in NUMSA obo Swanepoel and Oxyon Services (2004) 25 ILJ 1136 (BC A). The arbitrator held that a labour broker was obliged to
seek to persuade its client to be more patient with a worker incapacitated by a back injury.
32 (2010) 31 ILJ 2120 (LC ).
33 (2010) 31 ILJ 2142 (LC ) (confirmed on appeal: NUMSA v Abancedisi Labour Services (2012) 33 ILJ 2824 (LAC ).
34 Had the union done so, the case might have had a different result: see Dyokhwe v De Kock NO (2012) 33 ILJ 2401 (LC ).
35 (2013) 34 ILJ 2024 (LC ).
36 See, for example, Memela v Ekhamanzi Springs (2012) 33 ILJ 2911 (LC ). Automatically unfair dismissals are discussed in C hapter 7.
37 Memela v Ekhamanzi Springs (2012) 33 ILJ 2911 (LC ). The LAC held in Ekhamanzi Springs v Mnomiya (2014) 35 ILJ 2388 (LAC ).
More controversial is the classification as a form of dismissal for operational requirements dismissals effected due to a ‘breakdown of
trust and confidence’ in the employee. 38 The obvious danger of treating a breakdown of trust itself as a
4th Ed, 2022, ch 21-p 457
valid ground of dismissal for operational requirements is that it affords employers a means of circumventing the general requirement
that an employer must prove that employees dismissed for misconduct actually committed the offences concerned.
Operational requirements were accepted by courts operating under the 1956 LRA as justifying dismissal when the employer was
unable to prove an allegation of misconduct, but where the circumstances were such that the employer was able to demonstrate
that the relationship of trust and confidence has been compromised. 39
The principle underlying these cases seems to be that, in exceptional circumstances, where an employer is faced with proven
theft but cannot identify the culprits, ‘operational requirements’ can be invoked to justify dismissal. This is a departure from the
requirement that an employee may be dismissed for misconduct only if it is proved on a balance of probabilities that the employee
actually committed the offence. 40
However, it must be accepted that there are situations in which losses occasioned by theft could conceivably threaten the
viability of a business. 41 When theft is occurring and the employer has done everything in its power to identify the actual culprits
without success, there is no reason in principle why the employer should not be able to invoke operational reasons as a justification
for terminating the services of a group of employees whose duties, if properly performed, would prevent theft. But whether a court
will accept the dismissal of a group of employees to ensure that a guilty employee is caught in the net is doubtful. 42
In other contexts the doctrine of ‘reasonable suspicion’ has been held insufficient to justify dismissing employees the employer
was unable to prove were actually involved in serious misconduct. Of these, the most dramatic was FAWU obo Kapesi v Premier
Foods t/a Blue Ribbon Salt River, 43 in which the court ruled unfair the dismissal of a group of employees whom the employer could
not prove had perpetrated assault, murder and intimidation which had occurred during a strike.
Under the current LRA, if a breakdown of the trust relationship cannot be invoked on its own to justify a dismissal, it may be
raised to avoid having the employee reinstated. 44
38 See Brassey et al The New Labour Law (Juta 1987) 96–7.

39 EAWTUSA v The Productions Casting Co (1988) 9 ILJ 702 (IC ); Moletsane v Ascot Diamonds (1993) 2 LCD 310 (IC ).
40 See C hapter 11 for a discussion of such cases.
41 But see NUMSA v Genlux Lighting (2009) 30 ILJ 654 (LC ).
42 See the discussion of the doctrine of ‘collective guilt’ and common purpose in C hapter 11.
43 (2010) 31 ILJ 1654 (LC ). Upheld on appeal: FAWU obo Kapesi v Premier Foods t/a Blue Ribbon Salt River (2012) 33 ILJ 1779 (LAC ). These
judgments are discussed in C hapter 16.
44 See C hapter 24.
The situation that arises when a team of workers is performing unsatisfactorily, but the employer cannot identify the weak link, was
dealt with in an arbitration between FEDCRAW and Snip Trading. 45 The company was testing the legality of its policy of dismissing
the entire staff of a store where shrinkage reached a certain level. The arbitrator held that the policy was not unfair per se,
provided that individual
4th Ed, 2022, ch 21-p 458
employees were given the opportunity to explain that they had not contributed to the loss. In the award, the arbitrator developed
the concept of ‘team liability’. He described it as the species of misconduct where employees are dismissed ‘because as individual
components of the group each has culpably failed to ensure that the group complies with a rule or attains a performance standard
set by the employer’.
Reliance on the concept of ‘team liability’ is distinguishable from reliance on ‘collective guilt’, ‘reasonable suspicion’ or ‘derivative
misconduct’, 46 because in the former case the employer does not allege that any particular individual is the guilty party and
cannot be said to be dismissing innocent employees in order to rid itself of the guilty. ‘Team liability’ arises in rare cases when an
employer cannot, in spite of its best efforts, pinpoint the cause of the team’s inability to meet the required performance standard,
whether that standard pertains to control of stock or production targets. The notion of team liability was endorsed by the LAC in
Foschini Group v Maidi. 47
Whether such cases should be dealt with as cases of incapacity or of operational requirements is an open question. However, if
an employer takes reasonable steps to counsel or consult the members of the team, dismissal will probably be justified on
operational grounds. 48
45 (2001) 22 ILJ 1945 (ARB).

47 (2010) 31 ILJ 1787 (LAC ).
48 For a discussion of the Snip award, see Landman ‘Team misconduct: The final solution to shrinkage?’ (2001) 17(5) Employment Law 3–8. See
further C hapter 11.

When a husband and wife are employed as a ‘team’, the dismissal of one may render the continued employment of the other
impracticable. It has been accepted that in such circumstances the dismissal of the ‘innocent’ party is justified on operational
grounds. 49
Nitrophoska v CCMA provides a sad example. 50 Mrs Jacobs confessed to benefiting from a protracted fraud perpetrated by Ms
S, who worked in the regional office with the married couple. Mr Jacobs, who managed the branch at which the errant pair worked,
was fired. When the scam was first uncovered, Jacobs had professed himself bemused at how R1,3 million could have been stolen
from ‘under his nose’ in a scam involving his wife. But he admitted that, as manager of the office, he had neglected his duties.
Management invited him to make representations as to how the employment relationship could possibly be sustained in these
circumstances. Initially, Jacobs said that he could not think how it could. But, after seeing a labour consultant, he changed his
tune, and claimed that there was no valid reason to dismiss him. A CCMA commissioner ruled the dismissal substantively fair but
procedurally unfair because Jacobs had not been formally notified of the charges. Jacobs was awarded compensation equal to three
months’ pay. The court held on review that the commissioner had applied far too stringent a test for procedural fairness. Jacobs
was fully aware that he had been negligent. The sole issue was
4th Ed, 2022, ch 21-p 459
whether the employment relationship could be sustained. He had been invited twice to address management on that issue. This
was enough in the circumstances to satisfy the audi alteram partem rule. The award was set aside, and the dismissal ruled fair.
Where co-employees, or an employee and an employee of a client or competitor enter into an intimate personal relationship
during their employment, similar problems may arise. 51 Security might be compromised, or the relationship might affect discipline in
the workplace. These situations may be dealt with as misconduct by one or both of the employees if the relationship has
transgressed acceptable bounds. However, if the relationship develops outside the workplace and results in a partnership in the
ordinary sense, the employees may claim that action against them is a violation of their right not to be discriminated against on the
grounds of marital status. 52
If a romance that blooms after the employees have commenced employment threatens to compromise the employer’s business
interests, the situation must be dealt with as an operational problem. This means that the employer must consult the employee(s)
concerned, consider alternatives to dismissal and, in the absence of agreement, apply fair and objective criteria when choosing
which employee to dismiss, if not both.
The latter requirement is illustrated by G v K, 53 in which the employee was dismissed after having an affair with a senior
director of the company, whose life had become difficult as a result of her continuing presence in the company after the affair had
ended. The court observed that to uphold the woman’s dismissal would render ‘every female employee vulnerable and expendable
once she has slept or cavorted with her employer’.
Cases in which a relationship is formed between an employee and a person employed by a competitor, or who has business
interests that compete with the employer, may be dealt with in terms of the requirements of conflict of interest or fraudulent non-
disclosure. 54
49 Govender v M A Matala Lads’ Hostel (1987) 8 ILJ 809 (IC ).

50 (2011) 32 ILJ 1981 (LC ).
51 Jacobs v Sandvik NH 13/2/6953 (unreported).
52 See s 187(1)(f) of the LRA. See C hapter 7.
53 (1988) 9 ILJ 314 (IC ).
54 See C hapter 9.

A closed shop agreement is an arrangement between an employer and a particular trade union in terms of which the employer
undertakes to employ only members of that union. 55 When these agreements are concluded, the employer is compelled to dismiss
employees who refuse to join the union party to the agreement. Under the 1956 LRA, the courts generally sanctioned dismissals
that took place under closed shop agreements. 56 However, before dismissing employees under closed shop agreements, employers
were required to take ‘reasonable steps’ to avoid dismissal by ensuring that the employees concerned understood the
consequences of their
4th Ed, 2022, ch 21-p 460
refusal to join the union party to the agreement, or by at least considering applying for exemption from the agreement. 57
The current LRA expressly provides that it is not unfair to dismiss employees who refuse to join a union, or who are expelled from
unions that are parties to closed shop agreements. 58 However, such dismissals are fair only if the union is entitled in terms of its
constitution to refuse the employee’s application for membership, and if the reason for the expulsion is fair and constitutional. 59
Non-member employees must also be given a reasonable opportunity to apply for membership of the union after conclusion of the
agreement. 60
The Labour Court is empowered to determine the fairness of the union’s decision to refuse an employee’s membership, or to expel
employees. When so doing, the court must decide whether the refusal or expulsion is permitted by the union’s constitution and
whether the reason is fair. If the exclusion or expulsion that led to the dismissal was unfair or unconstitutional, the court may grant
relief provided for by the LRA – including reinstatement or compensation – except that in such cases the union must foot the bill for
any financial compensation. 61
55 See Grogan Collective Labour Law 3 ed (Juta 2019) C hapter 3.

56 See BAWU v Initial Laundries (1988) 9 ILJ 272 (IC ); MWASA v Die Môrester en Noord-Transvaler (1991) 12 ILJ 802 (LAC ); SACWU v Storm
Plastics (1993) 14 ILJ 367 (LAC ).
57 See UPUSA v Pro-Plan Office Furniture (1993) 2 LCD 100 (IC ).
58 Section 26(4).
59 Section 26(5).
60 Section 26(7).
61 Section 26(9). The Act does not indicate who is responsible for the monetary component of a retrospective reinstatement order, but this seems
to be an oversight. Such payments must clearly be deemed to constitute ‘compensation’ for purposes of this provision.

A regulatory authority may impose new qualifications for performing certain categories of work. What is the position of employees
who, due to the imposition of new qualifications or standards set by legislation, no longer qualify to be employed in their posts?
Whether the termination of an employee’s services in such circumstances is treated as a dismissal for incapacity or for operational
requirements is an open question. Gouws v Mpumalanga Provincial Government is illustrative. 62 Mr Gouws served for a number of
years as chairperson of the erstwhile Eastvaal District Council ‘subject to the legislative restructuring of district councils’. The
applicable legislation was then amended to provide for the election of chairpersons of district councils. Gouws’ services were
accordingly terminated. He claimed he had been unfairly retrenched because he had been assured that he would remain in his
position until the next municipal elections four years hence. The court held that Gouws was not retrenched ‘in the ordinary and
accepted meaning of that term’. The employer was therefore obliged neither to pay him severance pay nor to consult him in
accordance with the requirements of s 189. 63
The Gouws case should not be regarded as authority for a general rule that any employees disqualified from performing their work
as a result of new legislation are not entitled to be consulted before a decision is taken to terminate their services. In Gouws, the
court held that the employee had been aware of the
4th Ed, 2022, ch 21-p 461
precarious nature of his position since his appointment. Had this not been the case, Gouws would at least have been entitled to be
considered for appointment to an alternative position. Whether he would in addition have been entitled to severance pay would
have depended on whether the dismissal had been for incapacity or for operational requirements. The better view is probably that
employees in the position of Mr Gouws are dismissed for incapacity, however unfair it may seem to deprive such employees of
severance pay, as was found to be the case in Solidarity v ARMSCOR, 64 in which the employee had been deprived of a security
clearance. But they may receive compensation.
62 (2001) 22 ILJ 1822 (LC ).
63 See at 1061G–H, 1827B–D.
64 (2019) 40 ILJ 535 (LAC ).

Before amendments of the LRA, employees whose services were terminated due to the liquidation of their employer by order of
court were not regarded as having been dismissed. 65
In NULAW v Barnard NO, 66 the LAC distinguished in this regard between involuntary winding-up and voluntary liquidation. The
court drew attention to the difference between the procedure leading to a compulsory winding-up of a company, in which a court
has discretion whether to grant such an order, and a voluntary winding-up, where the court cannot interfere with the right which
the Companies Act 61 of 1973 gave to the requisite majority of shareholders to effect a winding-up once the proper procedures
have been followed. In the case of a voluntary winding-up, the requisite resolution by the majority causes the termination of the
employees’ contracts. Section 38 of the Insolvency Act 24 of 1936 then comes into play automatically. In a voluntary winding-up,
the resolution to wind up terminates the decision and amounts to a dismissal; in a compulsory winding-up, the terminations are
caused by the order of a court, and probably do not amount to dismissal.
Since employees whose services are terminated due to voluntary liquidation are deemed to have been dismissed, they are
entitled to be consulted in accordance with the requirements of s 189 of the LRA, and to claim compensation for unfair dismissal
from the liquidators of the company if they are unfairly dismissed. 67
65 See SAAPAWU v HL Hall & Sons (Group Services) (1999) 20 ILJ 399 (LC ).
66 (2001) 22 ILJ 2290 (LAC ).
67 See C hapters 17 and 24.

To allege that a person is unfit for office is perhaps the most generalised basis on which a dismissal can be based. Such an
allegation is unlikely to pass muster under the LRA, unless the employer provides concrete evidence for why the person is
considered unfit, and the reason proves that the employer cannot reasonably keep the employee in its service.
But some statutes and regulations allow for termination of employment if employees are deemed unfit. One is the SAPS Act. The
SAPS established ‘fitness
4th Ed, 2022, ch 21-p 462
boards’ after it was established that about 1 500 serving members had criminal records. These officers were intended to give
affected officers the opportunity of making representations as to why they should remain in service. Representing three of its
members, POPCRU challenged the procedure before any employees were declared unfit. In POPCRU v Minister of Police NO, 68 the
court noted that a different section of the South African Police Service Act 68 of 1995 also provides that members convicted of
offences and sentenced to terms of imprisonment without the option of a fine shall be deemed to have been discharged. Guidelines
for the conduct of fitness inquiries provide that proper notice must be given, that employees may be represented, and that
evidence may be led. The minister had not declared that the proceedings currently under way should be converted into disciplinary
proceedings. Apart from the three individual applicants – who had all been convicted of minor offences and none of whom had been
sentenced to imprisonment – there were a number of categories of officers who might conceivably be properly dealt with before
fitness boards convened under the SAPS Act. These included officers with criminal records who concealed their convictions after
appointment and officers who had been sentenced to periods of imprisonment after appointment.
The court found it difficult to see how such employees could be dealt with by way of disciplinary action. But officers like the
individual applicants, who were found guilty of an offence but not sentenced to terms of imprisonment, did not fall within the scope
of the fitness procedure. The SAPS disciplinary regulations identify the commission of offences as acts of misconduct, and
accordingly applied to them. Dealing with these employees in terms of the ‘fitness’ procedure side-stepped the disciplinary
regulations, and deprived them of the right to plead in mitigation and the right to appeal against verdict or sanction. The court held
that fitness boards could not be convened in respect of members who are or have been convicted of criminal offences whilst in
service but not sentenced to terms of imprisonment without the option of a fine. The applicant employees all fell within this
category, so the proceedings of the fitness boards were not legally binding on them. In respect of other categories of officers,
however, there was insufficient evidence to enable the court to determine whether the SAPS’ conduct was lawful.
68 [2014] 8 BLLR 796 (LC ).
Dismissal / Chapter 22 Dismissal of unprotected strikers
Chapter 22
Dismissal of unprotected strikers
4th Ed, 2022, ch 22-p 463
1. Introduction
2. Background
13.2 Fair ultimatum
the strikers
13.2.2 The ultimatum must indicate in clear terms what is demanded of the strikers, when and where they are
required to comply, and what sanction will be imposed if they fail to comply
13.2.3 Sufficient time must be given for all the strikers to be informed of the ultimatum to enable them to reflect on
it, and to respond to it by either compliance or rejection
4th Ed, 2022, ch 22-p 464
17.1 Protest action
1. Introduction
The LRA recognises the constitutional right of employees to strike, but limits the exercise of that right to disputes concerning
‘matters of mutual interest’. 1 The Act also requires that, before exercising the right to strike, employees must comply with certain
procedures. If the issue in dispute is one over which employees are permitted to strike and the relevant statutory procedures have
been followed, the Act affords protection to the strikers. This amounts to indemnity from any adverse action, including dismissal,
taken against the employees for the act of striking per se. 2 Unless strike dismissals are for bona fide operational reasons or for
misconduct during the strike, they are rendered automatically unfair. But this indemnity covers only ‘protected’ strikers. The Act
expressly states that participation in strikes that do not comply with its provisions ‘may constitute a fair reason for dismissal’. 3
The LRA also permits employers to take disciplinary action against employees for misconduct committed during a strike, whether or
not that strike is protected. 4 Dismissal of protected strikers is discussed in Chapter 7. This chapter deals with dismissal of
‘unprotected’ strikers.
1 With the exception of strikes over certain retrenchments: see s 189A, discussed in C hapter 17. The statutory requirements for strike action are
discussed in Grogan Collective Labour Law 3 ed (Juta 2019) C hapter 11.
2 See C hapter 7.
3 Section 68(5).
4 Section 67(5).
2. Background
At common law, a strike constitutes a breach of contract, justifying termination of the employment contract. 5 It was generally
accepted by the civil courts and some courts functioning under the 1956 LRA (see below) that a refusal by employees to work
entitled their employer to accept the employees’ repudiation and to summarily dismiss them. While protecting strikers who had
complied with its provisions against criminal prosecution, the 1956 LRA did not expressly protect strikers against dismissal. This was
left to the courts operating under the Act’s
4th Ed, 2022, ch 22-p 465
unfair labour practice jurisdiction. Most early decisions by the industrial court in cases concerning strike dismissals suggested that,
at least implicitly and somewhat tentatively, the court was prepared to go beyond the employers’ claims that they had exercised a
contractual right and to investigate the fairness of the employers’ actions. 6 This line of judgments was confirmed by the then
Supreme Court in Marievale Consolidated Mines v President, Industrial Court, 7 and Natal Die-Casting v President of the Industrial
Court. 8
Recognition that the courts could adjudicate the fairness, as opposed to the legality, of strike dismissals paved the way for the
development of a set of criteria in terms of which fairness could be assessed in cases involving dismissals of strikers. These
considerations included the cause, nature, extent and objective of the strike; the circumstances of the employees and of the
employer; the duration, consequence and result of the strike; the purposes of the LRA and the principles of fair collective
bargaining; the parties’ commitment to good faith negotiation; the provisions of relevant contracts of service and collective
agreements; and the manner in which the employees conducted themselves during the strike.
Even before the adoption of the interim Constitution, the Appellate Division of the former Supreme Court indicated in a number of
judgments that it was prepared to accept that the dismissal of strikers could constitute an unfair labour practice, albeit in
exceptional circumstances. 9 Neither the strict contractual approach nor its residue could survive the constitutional entrenchment
of the right to strike and to bargain collectively. However, by the advent of the current LRA, it was impossible to formulate a short
and definitive answer to the question as to when ‘illegal’ strikers could be dismissed. 10 The drafters of the Code of Good Practice:
Dismissal attempted to extract the main principles of earlier jurisprudence. The requirements of the code, and the manner in which
the Labour and Labour Appeal Courts have applied it, form the subject of this chapter.
In so far as the principles enunciated in earlier judgments have been codified, many of them remain applicable and are included,
where appropriate, in the discussion. 11
4th Ed, 2022, ch 22-p 466
Section 68(5) of the LRA provides:
Participation in a strike that does not comply with the provisions of this C hapter, or conduct in
contemplation or in furtherance of that strike, may constitute a fair reason for dismissal. In
determining whether or not a dismissal is fair, the C ode of Good Practice: Dismissal in
Schedule 8 must be taken into account.
5 Marievale Consolidated Mines v NUM (1986) 7 ILJ 108 (W); Ngewu v Union Co-operative Bark & Sugar Co 1982 (4) SA 390 (N); NUMSA v Vetsak
Co-operative (1991) 12 ILJ 564 (LAC ); NTE v SACWU (1990) 11 ILJ 43 (N); R v Smit 1955 (1) SA 239 (C ).
6 See, for example, Maine v African Cables (1985) 6 ILJ 234 (IC ); MWASA v The Argus Printing & Publishing Co (1984) 5 ILJ 16 (IC ); Ngobeni v
Vetsak (Co-op) (1984) 5 ILJ 205 (IC ); Rikhotso v Transvaal Alloys (1984) 5 ILJ 228 (IC ); Themba v Niko Van Rooyen Taksidermie (1984) 5 ILJ 245 (IC ).
7 (1986) 7 ILJ 152 (T).
8 (1987) 8 ILJ 245 (D).
9 See NUM v East Rand Gold & Uranium Co (1991) 12 ILJ 1221 (A); SAAWU (in liquidation) v De Klerk NO (1992) 13 ILJ 1123 (A); Performing Arts
Council of Transvaal v PPWAWU (1994) 15 ILJ 65 (A).
10 For a debate on the various approaches to this issue, and the extent to which judges operating under the 1956 Act remained divided, see Betha
v BTR Sarmcol (a division of BTR Dunlop) (1998) 19 ILJ 459 (SC A).
11 In SACWU v Afrox (1999) 20 ILJ 1718 (LAC ) the court conceded that developments relating to strike dismissals under the 1956 LRA remain
relevant under the present LRA, but warned against ‘uncritical acceptance’ of earlier judgments because, so the court said, fairness has now become a
hallmark of the law, not merely a ‘moral adjunct to it’.

Item 6(1) of the code deals with the substantive fairness of strike dismissals as follows:
Participation in a strike that does not comply with the provisions of C hapter IV is misconduct.
However, like any other act of misconduct, it does not always deserve dismissal. The
substantive fairness of dismissal in these circumstances must be determined in the light of
the facts of the case, including—
(a) the seriousness of the contravention of this Act;
(b) attempts made to comply with this Act; and
(c) whether or not the strike was in response to unjustified conduct by the employer.
The procedural requirements for a fair dismissal for striking are set out in item 6(2):
Prior to dismissal the employer should, at the earliest opportunity, contact a trade union
official to discuss the course of action it intends to adopt. The employer should issue an
ultimatum in clear and unambiguous terms that should state what is required of the
employees and what sanction will be imposed if they do not comply with the ultimatum. The
employees should be allowed sufficient time to reflect on the ultimatum and respond to it,
either by complying with it or rejecting it. If the employer cannot reasonably be expected to
extend these steps to the employees in question, the employer may dispense with them.
While the code attempts to guide strike-bound employers with these brief provisions, it does not purport to be exhaustive. Section
68(5) of the LRA enjoins the court to consider the entire code when evaluating the fairness of the dismissal of unprotected strikers.
Both items 6 and 7 must therefore be taken account.
Determining the substantive fairness of such dismissals therefore has two stages. The dismissal may satisfy the requirements of
item 6, but nonetheless fail to pass the requirements of item 7, particularly if dismissal is adjudged not to be a fair sanction in the
circumstances. 12 Nor is the code intended to be applied mechanistically. But the code emphasises that dismissals of strikers will
not be upheld merely because the strike is unprotected. In the following paragraphs, the considerations expressly mentioned in the
code are discussed first, followed by several considerations which remain relevant.
12 NUMSA v Lectropower (2014) 35 ILJ 3205 (LC ).
4th Ed, 2022, ch 22-p 467
The Code of Good Practice: Dismissal applies only to work stoppages that constitute strikes; dismissal for other breaches of the
obligation to work are treated either as individual or collective misconduct, 13 or as protected or unprotected ‘protest action’. 14
While the essence of a strike is the employees’ refusal to work, not all refusals to work constitute strikes. The difference between a
strike and other forms of work stoppage is important, because, generally speaking, the procedures applicable to strikes need not be
followed when dealing with employees who are breaching their contracts by not working. 15 A strike is defined in the LRA as: 16
[The] partial or complete concerted refusal to work, or the retardation or obstruction of work,
by persons who are or have been employed by the same employer or by different
employers, for the purpose 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.
A complete analysis of this definition of ‘strike’ is beyond the scope of this volume. 17 The essential elements are the following. To
constitute a strike, the work the employees refuse to perform must form part of their contractual duties, 18 except if such work
constitutes overtime. The duration or extent of the work stoppage is irrelevant. So, too, is the number of employees engaged in
the work stoppage, save that a single employee cannot strike.
The employer that is the target of the strike need not be the employer of the strikers themselves. Secondary strikes are
therefore permitted in certain circumstances. 19
The strike must be aimed at remedying a grievance or resolving a dispute concerning ‘a matter of mutual interest’. This means
that the dispute must concern an issue that relates to the employment relationship – usually an improvement in terms and
conditions of employment to which the employees have no legal entitlement. However, employees may not strike over issues that
may be referred to adjudication or arbitration – so-called ‘disputes of right’. A dispute is classified as one concerning rights if the
employee has a legal entitlement to the claim that gives rise to the dispute, which entitlement can be enforced under the LRA. 20
4th Ed, 2022, ch 22-p 468
To be fairly dismissed for engaging in an unprotected strike the employees concerned must self-evidently be participants in the
strike. Where employees who were dismissed for striking proved that they were unable to work because their tasks depended on
the work of others who were striking, the dismissals were ruled unfair. 21
13 See C hapter 11.

14 ‘Protest action’ is defined in the LRA as ‘the partial or complete concerted refusal to work . . . for the purpose of promoting or defending the
socio-economic interests of workers, but not for a purpose referred to in the definition of “strike”’. The definition is discussed in detail in the companion
volume Collective Labour Law C hapter 10.
15 The distinction between strikes and other forms of mass refusal to work is not, however, absolute in this regard. Thus in Mzeku v VWSA (2001)
22 ILJ 1575 (LAC ) the court dealt with a work stoppage, that arose from the workers’ grievance with their union, as a strike, although it expressed doubt
about whether their conduct amounted to a strike within the technical meaning of that term. These terms are fully discussed in Collective Labour Law
C hapter 10.
16 Section 213.
17 This is undertaken in Collective Labour Law C hapter 10.
18 Imperial Cargo Solutions v SATAWU (2017) 38 ILJ 2479 (LAC ).
19 Section 66.
20 Gauteng Provinsiale Administrasie v Scheepers (2000) 21 ILJ 1305 (LAC ).

Unprotected strikers may in certain circumstances be dismissed for the act of striking per se, even if the strike is not accompanied
by other forms of misconduct. Whether the strikers complied with the provisions of the LRA before downing tools is fundamental to
an inquiry into the fairness of a strike dismissal, because strikers may not be dismissed if they have complied with the Act. 22 The
requirements for a protected strike are both procedural and substantive.
The procedures that must be followed if a strike is to be protected are set out in s 64 of the LRA. Briefly, these require the
employees concerned to refer the dispute to the bargaining council concerned, if the parties fall within the registered scope of a
council or, if not, to the CCMA. The employees may engage in a strike only if the council or the CCMA certifies that the dispute has
been conciliated and remains unresolved, or if 30 days have passed since the referral. Once the certificate has been issued or the
prescribed period has lapsed, the employees or their union must give the employer at least 48 hours’ notice of the commencement
of the strike.
Strikers need not comply with these provisions where the parties to the dispute are members of a bargaining council and the
dispute has been dealt with in terms of the council’s constitution; where the parties have complied with the provisions of a
collective agreement by which they are bound; or where the employer has unilaterally amended the employees’ terms and
conditions of employment and where the employer has refused to comply with a request that the changes not be implemented or
be revoked. 23
The LRA affords secondary strikers protection only if the primary strikers have complied with the provisions of the Act, the
employers concerned have been given at least seven days’ notice of the proposed secondary strike, and the strike is ‘reasonable in
relation to the effect that the secondary strike may have on the business of the primary employer’. 24
Employees may not strike if:
4th Ed, 2022, ch 22-p 469
• The employees are bound by a collective agreement that prohibits them from striking over the issue in dispute, or which
requires the dispute to be referred for arbitration. 25
• The issue in dispute is ‘one that a party has the right to refer to arbitration or to the Labour Court in terms of this Act’. 26
• The employees are bound by an arbitration award, collective agreement or ministerial determination that regulates the issue in
dispute. 27
• The employees are engaged in an essential or maintenance service. 28
The fairness of a dismissal of unprotected strikers depends on the flagrancy of the violation of the above requirements. The degree
to which employees have failed to comply with these requirements is relative. The Code of Good Practice suggests that workers
who have flagrantly ignored the requirements of the Act and can offer no explanation for their conduct, should not expect much
sympathy and courts have generally not given them any. Thus where strikers breached a collective agreement and gave the
employer no warning whatsoever before they downed tools, their dismissal was upheld. 29 So, too, was the dismissal of workers
who embarked on a strike after the dispute had been resolved through conciliation, 30 and of others who downed tools to force
their employer to withdraw disciplinary charges against a shop steward. 31
The reference in the code to the ‘seriousness’ of the contravention and to ‘attempts made to comply with the Act’ indicates that
the courts may condone minor technical errors such as miscalculation of time limits or the incorrect completion of forms. 32 The
fact that the strikers genuinely or reasonably believed that they had complied with the requirements of the Act may also weigh in
their favour, as it did in SACCAWU obo Mokebe v Pick ‘n Pay Retailers, 33 in which the strikers left work two hours before the
commencement of a national protected strike, which their union had delayed because it had given insufficient notice to the
employer. 34
However, the courts will not accept workers’ ignorance of the illegality of their strike if the officials of their union were fully
aware that the strike was unprotected. 35 A breach of a prior undertaking to refrain from unlawful strike action will also weigh
against the strikers if they are dismissed for doing so. 36 So, too, did the deliberate flouting of a collective agreement and rejection
of repeated pleas from
4th Ed, 2022, ch 22-p 470
the strikers’ own union to go back to work. 37 The more serious the infringement, the heavier the onus on employees to justify
their failure to comply with the Act. 38
22 See C hapter 7.
23 Section 65.
24 Section 66. This requirement is discussed in Billiton Aluminium SA v NUMSA (2001) 22 ILJ 2434 (LC ). A mistaken belief that a strike is secondary
when it is in fact primary may prove costly. In CEPPWAWU v CTP (2013) 34 ILJ 1966 (LC ), for example, the employer dismissed strikers for engaging in
what the company regarded as a secondary strike because they had not followed the procedures required for that form of strike. It turned out, however,
that the strike was primary because all strikers were employed by divisions of the same employer. Had it not been for the fact that the strike was
unlawful in another respect, the dismissal would have been automatically unfair. On secondary strikes, see Collective Labour Law C hapter 12.
25 Section 65(1)(a) and (b).
26 Section 65(1)(c). But see the amendment effected by s 189A, which permits strikes over certain retrenchments, discussed in C hapter 17.
29 TGWU v De la Rey’s Transport (1999) 20 ILJ 2731 (LC ).
30 WESUSA v Jacobsz (2000) 21 ILJ 1680 (LC ).
31 STEMCWU v Brano Industries (2000) 21 ILJ 666 (LC ).
32 LAW Wholesale Meat Distributors v FAWU [1998] 8 BLLR 859 (LAC ).
33 (2018) 39 ILJ 201 (LAC ).
34 See also ICS Group t/a Dairybelle (Bloemhof) v NUFBWSAW (1998) 19 ILJ 775 (LAC ).
35 Coin Security Group v Adams (1999) 20 ILJ 1192 (LAC ).
36 PPWAWU v Urbans Industries [1996] 7 BLLR 894 (IC ).
37 SACTWU v Berg River Textiles – A Division of Seardel Group Trading (2012) 33 ILJ 972 (LC ).
38 Perskor v MWASA (1991) 12 ILJ 86 (LAC ). See, for example, NUMSA v Tek Corporation (1991) 12 ILJ 577 (LAC ); Mzeku v VWSA (2001) 22 ILJ
1575 (LAC ) at [17] (upheld by the C onstitutional C ourt: see Xinwa v VWSA (2003) 24 ILJ 1077 (C C )). The justification for placing the onus on the strikers
is based on the doctrine of ‘unclean hands’ – having broken the law, the strikers must explain why they are nevertheless entitled to relief: see Tshabalala
v Minister of Health 1987 (1) SA 513 (W). However, in Performing Arts Council of the Transvaal v PPWAWU (1994) 15 ILJ 65 (A) the court pointed out
that the doctrine should not fetter the courts’ discretion.

The code recognises that an illegal or unprocedural strike may be justified if the employer provoked the employees’ action by
treating them unfairly. The term ‘unjustified’ goes further than illegal conduct – any unfair conduct by the employer may excuse the
employees’ failure to comply with the LRA.
The drafters of the code probably had in mind two categories of unfair conduct – unfair bargaining tactics and unfair labour
practices directed at individuals. The idea that unfair bargaining tactics by the employer can in certain circumstances excuse an
illegal strike flows from recognition that one of the principal objectives of the Act is to promote orderly collective bargaining. 39
Obduracy by either party during the bargaining process may serve to excuse otherwise unacceptable conduct by the other. In
several cases, dismissed strikers were granted relief because their employers had refused to bargain at all or in good faith. 40
Several judgments dealing with the conduct of employers make use of the concepts of provocation or self-defence. The use of
these terms is metaphorical in this context. In criminal and civil law provocation or self-defence purges of its illegality conduct that
would otherwise be unlawful. Since the lawfulness of a strike depends solely on compliance by the strikers with the relevant
provisions of the LRA, it is impossible to imagine situations in which the employer’s conduct can render lawful an otherwise illegal
strike. 41 ‘Provocation’ in this context merely justifies the strikers’ non-compliance with the Act, and ‘self-defence’ may be properly
equated with ‘self-help’, permitted in situations where compliance with the statutory requirements would cause the employees
irrecoverable loss. The better view is probably that a strike in response to bad behaviour by the employer purges all or some of the
strikers’ blameworthiness. The unjustified conduct of the employer simply justifies the workers’ action, and renders dismissal unfair
on that account. 42
The employer’s conduct need not therefore amount to provocation in the legal sense to render the dismissal of unprotected
strikers unfair. In SACTWU
4th Ed, 2022, ch 22-p 471
v Mediterranean Textile Mills, 43 for example, the applicant employees were dismissed after receiving an ultimatum four hours into a
work stoppage in protest against their employer’s decision not to pay them their annual bonus. It transpired that the workers had
requested to meet management to discuss the issue, and were awaiting a response. The court found that, although the work
stoppage was unprotected, all the circumstances had to be considered in evaluating the fairness of dismissal for unlawful striking.
The court found that the company had known of its financial problems for some time, and had delayed pursuing an exemption
application to the bargaining council. This was unfair to the workers. Furthermore, the strike was relatively brief and orderly. The
strikers’ dismissal was ruled unfair. 44
But employees cannot rely on alleged unfair conduct by employers to justify their failure to comply with an ultimatum. In Triple
Anchor Motors v Buthelezi, 45 the LAC accepted that the employer had adopted an ‘intransigent attitude which was inimical to
good labour relations’ during negotiations preceding a strike, but nevertheless held that the employees had brought dismissal on
themselves by ignoring an ultimatum.
A still more striking example is provided by SACCAWU obo Ramonthle v Sun City, 46 a sequel to the notorious Gupta wedding. The
case concerned three shop stewards who had engaged in an unprotected strike, and were dismissed along with 14 other workers.
The strike followed complaints about the sexual harassment of a worker and some guests’ refusal to be served by black staff. The
union claimed that the dismissals were unfair because the strike was in response to unjustified conduct by Sun City. They had one
major hole in their case – the conduct that the union had complained about was not perpetrated by the employer, but by the
Guptas and their guests. The court held that the ‘unjustified conduct’ referred to in the LRA is that of the employer, not of third
parties. Apart from this, Sun City had reacted immediately to the complaint of sexual harassment, and some guests had indicated
that they wished to be attended to in their rooms by their own retainers. The Guptas had also brought their own cooks from India,
who specialised in Indian cuisine. All this had been explained to the workers. The complaint that Sun City ‘had not done enough’
was vague and unsubstantiated. The union had not indicated what more the hotel could have done to allay the workers’ concerns.
To aggravate matters, the strike had been timed to coincide with a prestigious musical event hosted by the hotel. By then, the
Guptas had departed, never to be seen again. There was accordingly no longer any point to the demand that Sun City correct the
behaviour of the wedding guests. The dismissals of the three shop stewards were upheld.
The court also showed no sympathy for workers who refused to report for work after it was explained to them that the factory
gates had been locked by mistake by security guards who thought that they were on strike. 47
4th Ed, 2022, ch 22-p 472
Apart from allegedly unfair conduct by employers in the collective bargaining context, allegedly unfair actions by employers
against individual employees – in particular dismissals – frequently give rise to collective action by other workers in sympathy with
the allegedly wronged employee. The 1956 LRA did not expressly prohibit such strikes. The present Act expressly provides that
strikers will not be granted protection if the issue in dispute is one that can be referred for arbitration or adjudication. For this
reason, the Labour Court will not lightly grant relief to employees dismissed for striking over ‘rights’ issues.
39 Section 1(d)(i).
40 Sentraal-Wes (Koöperatief) v FAWU (1990) 11 ILJ 977 (LAC ); NUMSA v Pro Roof Cape (2005) 26 ILJ 1705 (LC ); FAWU v Mnandi Meat Products &
Wholesalers (1995) 16 ILJ 151 (IC ).
41 Save where this is expressly permitted by the Act. Thus, employees who strike in response to an unlawful lock-out are not required to follow the
prescribed procedures before striking in response to the lock-out. See s 64(3)(c).
42 See, for example, Hendor Steel Supplies v NUMSA (2009) 30 ILJ 2376 (LAC ), where the court held that dismissal had been a disproportionate
penalty in the case of an unlawful strike sparked by the employer’s insensitive handling of a supervisor who had hurled racial abuse at some workers.
43 (2010) 31 ILJ 2694 (LC ).
44 See also NUM obo Employees v CCMA (2011) 32 ILJ 2104 (LAC ), in which the employer unreasonably withheld the strikers’ pay, and failed
properly to explain why it had done so.
45 (1999) 20 ILJ 1527 (LAC ).
46 (2018) 39 ILJ 436 (LC ).
47 MTO Forestry v CEPPWAWU [2018] 10 BLLR 950 (LAC ).

The longer the unprotected strike, the less sympathy the court is likely to have for the strikers if they are dismissed. Conversely,
the dismissal of strikers in the first few minutes of an unlawful work stoppage will almost invariably be held to be unfair because the
employer will not have had time to clearly warn the strikers of the possible consequences of their action, and to comply with the
other procedural requirements of a fair strike dismissal. 48 More important than the duration of the strike itself, therefore, is the
light which the length of the strike throws on the employees’ obduracy and disregard for the requirements of the Act, and on the
reasonableness of the dismissal. The longer the strike has lasted, the more likely it is that the employer will be able to prove that
dismissal was indeed an action of last resort.
The court had no sympathy for workers who had stayed on strike for three days because they claimed, unjustifiably, that the
weather was too inclement for them to work. 49 But even if the strike has endured for some time, dismissal may be unfair if the
employer failed to take bona fide steps to discuss the workers’ grievance, and to make reasonable efforts to persuade them to
return to work.
48 See further the discussion below of the requirements of a fair ultimatum.

49 NUM v Power Construction (2017) 38 ILJ 227 (LC ).

Since economic harm may justify even the dismissal of protected strikers, it must also be a potentially relevant consideration when
assessing the fairness of dismissals of unprotected strikers. The harm caused by a strike is relevant in a number of respects. It may
indicate that it would be unfair to the employer to incur further expenses by compensating the employees, even if the dismissal was
unfair, 50 or by granting them back pay if they are reinstated. The harm caused by the strike can also serve to indicate the gravity
of the strikers’ misconduct and illustrate the obduracy of their behaviour. 51
Furthermore, while the LRA provides that participation in an unprotected strike may be treated as a form of misconduct, it does
not follow that an employer cannot
4th Ed, 2022, ch 22-p 473
also dismiss for operational reasons in this context. 52 While the law probably requires an employer to prove that the losses
incurred by a protected strike are significant and irreversible before the strikers were retrenched, the courts would be unlikely to
apply as strict a test if unprotected strikers were to be retrenched to stem losses caused by the strike.
50 See VWSA v Brand NO (2001) 22 ILJ 993 (LC ), in which the dismissed ‘strikers’ were denied compensation altogether for this reason.
51 See, for example, County Fair Foods (Epping), a division of Astral Operations v FAWU (2018) 39 ILJ 1953 (LAC ).
52 See C hapter 7.

How much sympathy dismissed strikers receive from the courts also depends on the legitimacy of the strike. Legitimacy in this
context turns on the nature of the demands and the conduct of the strikers. Although the LRA distinguishes only between
‘protected’ and ‘unprotected’ strikes, it is generally accepted that the latter may in certain circumstances be more or less
‘legitimate’.
Legitimacy is normally assessed by the strikers’ objective – if the strike is aimed at a goal which would have been acceptable had
the strikers complied with the procedures prescribed by the Act, the strike might be said to be ‘legitimate’; if, on the other hand,
the strikers are seeking to extract an unacceptable, unreasonable or illegal concession from the employer, the strike will be
stigmatised as illegitimate. 53 A strike initiated and led by a political party (the EFF) was held to be entirely illegitimate and at odds
with the LRA, and the court observed that the list of demands given to the employer read more like a party manifesto than genuine
workplace demands. 54 The nature of the employer’s business can also be a factor in assessing the legitimacy of a strike. 55
The notion of ‘legitimacy’ occurs mainly in judgments under the 1956 LRA dealing with the dismissals of legal strikers. This was
because that Act afforded no express protection against dismissal to legal strikers and did not distinguish in this context between
lawful and unlawful strikes. It was accordingly relevant to distinguish between legal strikes on the basis of their legitimacy or, as
some courts put it, their ‘functionality’ in the collective bargaining context. 56 It must be accepted under the current LRA that all
protected strikes are ‘functional’, no matter how unreasonable the demands (in the sense of being unattainable, as opposed to
unlawful) the strikers’ demands may be. It is accordingly generally inappropriate to distinguish between strikes on this basis.
Furthermore, because under the 1956 LRA all strike dismissals were dealt with under the courts’ general unfair labour practice
jurisdiction, it was possible to extend the notion of legitimacy to unlawful strikes, and to base the assessment of the fairness of
strike dismissals on the employer’s
4th Ed, 2022, ch 22-p 474
conduct in the negotiating process. This approach is of questionable relevance to the dismissal of unprotected strikes under the
current Act.
Modibedi v Medupi Fabrication illustrates that strikers’ demands may become unreasonable when they are pushed too far. 57 This
case flowed from the strike-plagued Medupi Power Station project. Despite a collective agreement containing a peace clause, the
employees of the respondent labour supplier downed tools because they objected to the quality of food supplied by a catering
company. Eventually, the workers demanded that the company buy groceries and give them cash to prepare their own meals. They
then refused to complete several shifts, ostensibly because they needed to shop for food. The workers were eventually suspended
and summoned to disciplinary hearings, which they refused to attend. The court rejected the employees’ submission that the work
stoppages were in response to unjustified conduct by the company. The company had gone out of its way to appease the
employees’ culinary tastes. In response, the workers had ratcheted up their unreasonable demands, and shifted the goal posts.
They had behaved like recalcitrant bullies. If anybody had indulged in provocative conduct, it was the workers. Their conduct was
of such gravity that it made a continued employment relationship intolerable. The court confirmed that the dismissal of the
employees was substantively and procedurally fair.
53 See, for example, MTWU obo Sehularo v G4 Cash Services (2013) 34 ILJ 1221 (LC ), in which the strike was a protest against the arrest by the
police of the strikers’ colleagues for alleged complicity in an armed robbery. The court ruled this totally unreasonable because the arrests had nothing to
do with the employer, and it had no power to interfere with the actions of the police.
54 Calgan Lounge v NUFAWSA (2019) 40 ILJ 342 (LC ). The court was concerned with an interdict, but on the return date expressed no sympathy
with the workers, who had since been dismissed.
55 Thus in Black Health & Allied Workers Union of SA v Garden City Clinic (1987) 8 ILJ 462 (IC ) the court deprecated the employees’ illegal strike
because it placed the employer ‘over a barrel while under an obligation to its admitted patients to maintain and implement hygienic life-saving (death
preventing?) measures not only on legal grounds, but equally on humanitarian grounds’.
56 See in this regard BAWU v Prestige Hotels t/a Blue Waters Hotel (1993) 14 ILJ 963 (LAC ) at 972D–F.
57 (2014) 35 ILJ 3171 (LC ).

Although strikes are by definition calculated to cause harm to the employer, the courts take the view that such damage should not
be caused unfairly. This is why the LRA enforces a statutory ‘cooling off’ period of 30 days and requires strikers to give 48 hours’
notice of the commencement of a strike. An unprotected strike called without notice at a time calculated to cause maximum
embarrassment to the employer is likely to be frowned upon. 58
Whether or not notice has been given, a strike can still be unfair if launched at a time calculated to cause the employer
unjustifiable harm. 59 Where employees commenced a legal strike immediately after preparing orders and loading perishable
foodstuffs into trucks for delivery, both their application for reinstatement and the appeal against its rejection failed because the
workers need not have waited for meat to be removed from cold storage before launching the strike. 60 The same applied to
workers who timed an illegal work stoppage to coincide with the arrival of wet concrete at a bridge building site. 61
The relevance of timing is illustrated by several other cases. Where employees agreed to refer a dispute to mediation, but went
on strike just before the mediation was due to begin, their dismissal was ruled fair; 62 so, too, where the union was still
4th Ed, 2022, ch 22-p 475
negotiating with the employer and both had reached a point at which agreement was imminent and probable but instead the
workers embarked on a strike without consulting their union. 63
58 Thus in BAWU v Palm Beach Hotel (1988) 9 ILJ 1016 (IC ) the court found that the absence of prior notice was particularly unfair because ‘the
respondent is a hotel with obligations to its guests, including providing breakfast’.
59 FBWU v Hercules Cold Storage (1989) 10 ILJ 457 (IC ).
60 FBWU v Hercules Cold Storage (1990) 11 ILJ 47 (LAC ).
61 Roberts Brothers Construction v NUM (2020) 41 ILJ 2107 (LAC ).
62 SAAWU v Nampak Products (1987) 8 ILJ 452 (IC ).
63 MAWU v BTR Sarmcol – a division of BTR Dunlop (1995) 16 ILJ 83 (IC ); SACCAWU v Irvin & Johnson (1999) 20 ILJ 2302 (LAC ).

The right to strike does not include a licence to engage in unruly or criminal behaviour, even though such conduct has now become
the norm. This is especially so when the strike itself is unprotected, although protected strikers may also be dismissed for
misconduct unrelated to the act of striking itself. 64
The courts have frequently taken the conduct of strikers into account when evaluating the fairness of their dismissals. 65
Violence and intimidation have been described as an ‘abuse of the right to strike’, and unions are responsible for controlling their
members during the strike. 66 Merely carrying objects that may inflict harm has been held sufficient to justify dismissal. 67
Nevertheless, a distinction must be drawn between situations in which all employees are dismissed after a violent strike, and
situations in which only some strikers are singled out for disciplinary action because of misconduct during the strike. In the former
case, the court may take the strikers’ collective misconduct into account when assessing the fairness of their dismissal. In the
latter situation, the employee is being disciplined for the alleged misconduct, not for the act of striking per se. That some strikers
were armed is sufficient to single them out from those strikers who were not. 68 Disciplinary procedures applicable to any form of
misconduct must accordingly be followed in such cases.
An employer acts within its rights if it acts against particular employees for misconduct during a strike and dismisses them, 69
but all the strikers may not be collectively punished for the misconduct of some, 70 unless, of course, all the strikers are fairly
dismissed for the act of striking per se.
In some cases, the employees’ good conduct during the strike has been taken into account as a factor that renders their
dismissal unfair. 71 However, an LAC judge was ‘at a loss to see how this in itself is to be regarded as a factor rendering the
dismissal of the strikers unfair’. 72
64 Section 67(5) of the LRA.

65 See, for example, Trellidor v NUMSA obo Ndwalane (2022) 43 ILJ 1331 (LAC ).
66 WBHO Construction v Hlatshwayo NO (2020) 41 ILJ 2144 (LAC ). In Spar Eastern Cape Distribution Centre v THORN [2021] 12 BLLR 1264 (LC ),
the respondent union was fined for contempt of court and made to pay the costs of the contempt application on a punitive scale for failing to control its
members during a protected strike.
67 Pailpac v De Beer NO (2021) 42 ILJ 1038 (LAC ).
68 SACCAWU v Check One (2012) 33 ILJ 1922 (LC ).
69 See, for example, SACCAWU v Irvin & Johnson (1999) 20 ILJ 2302 (LAC ); Maine v African Cables (1985) 6 ILJ 234 (IC ).
70 See, for example, NUMSA v Bonar Long NTC (SA) (1990) 11 ILJ 1147 (IC ).
71 Ntsaba v Eastern Province Textiles (1987) 8 ILJ 470 (IC ) at 487B; BAWU v Asoka Hotel (1989) 10 ILJ 167 (IC ) at 167F; Performing Arts Council
of the Transvaal v PPWAWU (1994) 15 ILJ 65 (A).
72 NUMSA v Tek Corporation (1991) 12 ILJ 577 (LAC ).

4th Ed, 2022, ch 22-p 476
In the absence of special circumstances, such as misconduct, which justify singling out some strikers for dismissal, an employer
must apply the ‘parity principle’ when disciplining unprotected strikers – generally speaking, if the employer decides to dismiss one
striker, it must dismiss them all; conversely, if one striker’s action is condoned, the action of all of the other strikers should likewise
be condoned. Dismissed strikers have been rescued by the ‘parity principle’ in a number of cases. 73 The selective dismissal of some
strikers and not others will also not be accepted unless it can be shown that the conduct of the dismissed strikers was markedly
more unacceptable than that of the others. 74
The parity principle applies even in the case of a national strike, when one employer decides to dismiss its striking employees,
but other employers allow their employees to resume work. 75 Where the employer is able to gather evidence only against some
strikers involved in a strike, but cannot prove others were involved, there will be no breach of the parity rule if only those who are
found guilty are dismissed. Shop stewards may be singled out for dismissal if they play a decisive role in inducing workers to engage
in unprotected strike action. 76
73 SACTWU v Novel Spinners [1999] 11 BLLR 1157 (LC ). The principle of consistency is discussed in C hapter 8.
74 NUMSA v Henred Fruehauf Trailers (1994) 15 ILJ 1257 (A).
75 VRN Steel v NUMSA (1995) 16 ILJ 1483 (LAC ). On selective dismissal, see further C hapter 4.
76 SACCAWU obo Ramontlhe v Sun City (2020) 41 ILJ 160 (LAC ), in which the employer concluded a settlement agreement reinstating dismissed
strikers, but not with the shop stewards.

Apart from the above considerations relating to the substantive fairness of strike dismissals, the Code of Good Practice: Dismissal
and the courts have set out a number of additional procedural requirements. The code requires an employer faced with a strike to
contact the employees’ union and to issue a fair ultimatum before dismissing strikers. Furthermore, as in all forms of dismissal for
misconduct, the employer must comply with the audi alteram partem rule. Bearing in mind that, as in all forms of dismissal, failure
to comply with a fair procedure may also affect the substantive fairness of a dismissal, these procedural requirements are discussed
in the following paragraphs.
The purpose of the requirement that employers must contact a trade union official ‘at the earliest possible opportunity’ before
taking action against strikers, 77 is to enable the employer to ‘discuss’ the course of action the employer intends to adopt. The
code does not indicate what employers must do if all or some of the strikers do not belong to any union. However, the spirit of the
provision suggests that in such cases the employer should seek out and communicate with representatives of the strikers. Although
item 6(2) specifically states that employers must contact an
4th Ed, 2022, ch 22-p 477
official of the strikers’ union, the court has held that contact with shop stewards suffices, especially when they have been
enthusiastic supporters of the strike. 78
The requirement that the employer should discuss its proposed course of action with a union official is intended to discourage
rash action by the employer. These discussions are designed to enable the parties to secure an early return of the strikers to work
before the employer takes drastic action. The union is given an opportunity to attempt to persuade the employer to delay the next
stage – the issuing of an ultimatum (see below) – while attempts are made to persuade the strikers to resume work.
The requirement that employers must contact the strikers’ union does not apply to unions that are not recognised by the
employer or are insufficiently representative of employees in the workplace. 79
Unions may not abuse their right to be consulted merely to protract the strike. Where it is plain that the union is making no
attempt to persuade the strikers to resume work, the employer may issue an ultimatum. 80 When a union claims that a dismissal
was premature because it was still trying to persuade the strikers to resume work the test is whether, on the probabilities, the
union could have succeeded in ending the strike in a reasonable time. 81
Whether consultation with a union as envisaged by item 6(2) will constitute sufficient compliance with the audi alteram partem
principle depends on the contents of the discussions between the union and the employer, as well as on the unsettled question of
what kind of hearing strikers must be given and whether it must take place before or after an ultimatum is issued (see below). The
union may take the view that the strike is protected. In such a case, the employer must make a reasonable attempt to convince
the union that it is not. A mere notice to the union that the employer intends issuing an ultimatum is insufficient to meet the audi
requirement. 82
13.2 Fair ultimatum
The second procedural requirement mentioned by the code is that the employer must give the strikers an ultimatum before
dismissing them. 83 The use of the term ‘ultimatum’ is unfortunate, as it evokes the image of warfare. 84 An ultimatum is simply a
warning that the employer intends to dismiss the strikers if they do not
4th Ed, 2022, ch 22-p 478
return to work within a specified time. But the metaphor is not altogether inapposite. There is seldom an excuse for not giving any
ultimatum, even if the employees have been warned that their strike is unprotected. 85 Conversely, strikers are unlikely to be
treated sympathetically by the courts if they repeatedly ignore clear ultimatums. 86
Like any ultimatum, a pre-dismissal warning to strikers is intended to give them a last chance to consider whether to comply with
the employer’s demand that they resume work. 87 The requirement that an ultimatum be issued before strikers are dismissed is also
aimed at ensuring that the employer does not act in anger and haste. 88
Determining the fairness of an ultimatum entails two inquiries. The first inquiry is aimed at establishing whether the ultimatum
was fair; the second at establishing the fairness of dismissals pursuant to the ultimatum . 89 When assessing the fairness of an
ultimatum, factors to be considered are the developments that led to the decision to issue the ultimatum, the terms of the
ultimatum and the time allowed for compliance. Factors relevant to the second inquiry include the reaction of the strikers, their
efforts to comply with the ultimatum, the reasons for their non-compliance and developments that may have taken place between
the time the ultimatum was issued and the time of the dismissals.
The following are the requirements for a fair ultimatum: 90
the strikers
The main purpose of an ultimatum is to inform the workers that they are breaching their contracts of employment and that they
face dismissal if they continue to do so. The employer must therefore make reasonable attempts to ensure that the ultimatum
actually reaches all the strikers or, if that is not possible, their representatives. If the strikers speak a language other than that
generally used in the workplace, the ultimatum should be in their language, or at least translated to them in their language. It is
advisable that the ultimatum should be in writing. 91
4th Ed, 2022, ch 22-p 479
13.2.2 The ultimatum must indicate in clear terms what is demanded of the strikers, when and where they are required
to comply, and what sanction will be imposed if they fail to comply
In some circumstances, a simple instruction to strikers to resume work by a specified time will be sufficient. In the case of shift
workers, the employer should indicate specific times at which the respective shift workers should report for duty. Some employers
require strikers not only to return to work but also to sign a written undertaking that they will continue to work in terms of their
contracts of employment, or accept certain conditions imposed by the employer. Where this is required, the ultimatum should so
indicate.
The workers must understand the ultimatum. The courts have found that vague allusions to the possibility of dismissal by
phrases such as ‘if you don’t return to work, you will find out what will happen to you’, 92 and ‘unless you return to work,
disciplinary action will be taken’, 93 do not satisfy this requirement.
The instruction to the workers must not only be clear; it must also be reasonable. For example, where strikers were threatened
with summary dismissal because they did not return to work and accept the employer’s final wage offer, the court found that, in so
far as non-compliance with the latter requirement was a material consideration in the employer’s decision to dismiss the strikers,
the dismissal was both illegal and unfair because it was not based on a ground recognised in law as justifying summary dismissal. 94
An ultimatum was also ruled unreasonable when the employer reserved the right to dismiss those strikers who were on final
warnings for an earlier stay-away, on the basis that those workers would be ‘damned if they returned to work, and damned if they
did not’. 95
However, this does not mean that an employer cannot inform strikers in an ultimatum that they will be issued with warnings or
final warnings on their return to work. 96
An employer was also held to have acted unreasonably by insisting that the strikers could not return to work unless they gave
an assurance that they would not strike again after they resumed work, and persisted with this condition even though the threat of
strike action had passed. 97
13.2.3 Sufficient time must be given for all the strikers to be informed of the ultimatum to enable them to reflect on it,
and to respond to it by either compliance or rejection
The requirement that the employer must give the employees time to consider their response to an ultimatum must be balanced
against other factors, especially the employer’s earlier attempts to convince the workers of the illegality of their action,
4th Ed, 2022, ch 22-p 480
and the losses suffered by the employer before the ultimatum is issued. 98 Apart from these considerations, the reasonableness of
the time an employer has given strikers to respond to an ultimatum is assessed according to the time required in the circumstances
to allow the ultimatum to achieve its main purposes. These are to enable the strikers to reassess their position and to take advice;
to enable their union to persuade them to resume work; and to give the employer the chance to ‘cool down’.
Other considerations in evaluating the reasonableness of the time set by an ultimatum for the strikers’ return to work are the
length of the strike, the complexity of the issues involved, the logistics of communicating the ultimatum to the strikers and
facilitating their return to work, the state of mind of the strikers at the time the ultimatum was issued, and the nature of the
demand set in the ultimatum. Where workers involved in an alleged go-slow were given five hours to return production to normal
levels, the ultimatum was held to be unfair not only because of the time involved, but also because individuals could not possibly
comply with the requirement without the co-operation of the others. 99 Care should be taken when issuing ‘staggered’ ultimatums
to different shifts. 100
The reasonableness or otherwise of an ultimatum also depends to an extent on the reaction of the employees or their
representatives. Unions frequently request more time after an ultimatum is issued. While employers are not obliged to comply with
such requests, they are advised to do so if the union advances plausible reasons and if there is a reasonable possibility that
extending the ultimatum may enhance the prospect of ending the strike within a reasonable time. In the case of wildcat strikes, the
courts may regard as unfair an employer’s refusal to extend an ultimatum so that the strikers’ union can become involved. 101
If strikers wish to be deemed to have complied with an ultimatum, they must comply completely and unconditionally. Workers
who abandon a full-blown strike and immediately engage in a go-slow after their return to work will not have complied with an
ultimatum warning them to cease participating in an unprotected strike. But workers’ rights to resume a strike are reserved; they
may strike again over an issue after returning to work in response to an ultimatum if they have not also agreed to abandon the
demand.
If workers resume a strike after returning to work in response to an ultimatum the employer need not necessarily issue a further
ultimatum; whether fairness requires a fresh ultimatum depends on the facts of each case. If an ultimatum is extended, it is unfair
to dismiss some strikers for failing to comply with the original deadline, then to permit other strikers to return by the later
deadline. 102
4th Ed, 2022, ch 22-p 481
Once having issued an ultimatum, the employer must not do anything to prevent the workers from complying with it if they wish
to do so. It would be manifestly unfair to issue an ultimatum and then lock the factory gates in the face of returning workers. 103
The ultimatum must be issued for a bona fide purpose, that is, it must be aimed at inducing the strikers to resume work. Lack of
bona fides may be demonstrated by the haste with which the employer dismissed the strikers after issuing the ultimatum or by
attempts by the employer to hinder the strikers when they tried to heed the ultimatum. 104
An ultimatum aimed solely at ending the strike so that the employer could dismiss the strikers later for misconduct would for the
same reasons be deemed a mere charade. 105 So, too, when an employer issues an ultimatum and then prevents its workers from
returning to work by locking them out, the ensuing dismissals are unfair. 106
Notwithstanding the above procedural requirements, strikers may be denied compensation where they flagrantly defied
ultimatums, even though their dismissals were found procedurally unfair.
77 Item 6(2).
78 Sasol Mine v Nhlapo (2021) 42 ILJ 2589 (LAC ).
79 Roberts Brothers Construction v NUM (2020) 41 ILJ 2107 (LAC ).
80 See, for example, NUMSA v Datco Lighting (1996) 17 ILJ 315 (IC ).
81 See Performing Arts Council of the Transvaal v PPWAWU (1994) 15 ILJ 65 (A). See also Doornfontein Gold Mining Co v NUM (1994) 15 ILJ 527
(LAC ), in which it was found that the extension of an ultimatum would have enabled the union to help end the strike before dismissals became necessary.
The court found in VRN Steel v NUMSA (1995) 16 ILJ 1483 (LAC ) that had the employer contacted its workers union before issuing the ultimatum, the
employer would have learned that the national strike in which its employees were participating was about to end. In NUM v Goldfield Security (1999) 20
ILJ 1553 (LC ) a dismissal of strikers effected while a union official was still genuinely trying to intervene was held to be premature and hence unfair.
82 Modise v Steve’s Spar Blackheath (2000) 21 ILJ 519 (LAC ), discussed below.
83 Item 6(2).
84 See the strictures against this view of industrial action in Betha v BTR Sarmcol (a division of BTR Dunlop) (1998) 19 ILJ 459 (SC A).
85 SACCAWU obo Mokebe v Pick ’n Pay Retailers (2018) 39 ILJ 201 (LAC ).
86 See, for example, County Fair Foods (Epping), a division of Astral Operations v FAWU (2018) 39 ILJ 1953 (LAC ).
87 See NUMSA v Elm Street Plastics t/a ADV Plastics (1989) 10 ILJ 328 (IC ).
88 Plaschem v CWIU (1993) 14 ILJ 1000 (LAC ).
89 NUMSA v GM Vincent Metal Sections (1999) 20 ILJ 2003 (SC A); W G Davey v NUMSA (1999) 20 ILJ 2017 (SC A).
90 The main judgments from which the code draws are Liberty Box & Bag Manufacturing Co and PPWAWU (1990) 11 ILJ 427 (ARB); Henred
Fruehauf Trailers v NUMSA (1992) 13 ILJ 593 (LAC ); Performing Arts Council (Transvaal) v PPWAWU (1992) 13 ILJ 1439 (LAC ); Doornfontein Gold Mining
Co v NUM (1994) 15 ILJ 527 (LAC ) at 545–6. See generally Grogan ‘Acting on the ultimatum’ (1995) 11(5) Employment Law 106.
91 See Performing Arts Council (Transvaal) v PPWAWU (1992) 13 ILJ 1439 (LAC ).
92 NUM v Amcoal Colliery & Industrial Operations (1990) 11 ILJ 1295 (IC ).
93 Nelspruit Drycleaners v SACCAWU (1994) 15 ILJ 283 (LAC ).
94 SACWU v Plascon Ink & Packaging Coatings (1991) 12 ILJ 353 (IC ).
95 Doornfontein Gold Mining Co v NUM (1994) 15 ILJ 527 (LAC ) at 547C –D.
96 Ramotsepane v Barmot Truck Hire [2002] 6 BLLR 525 (LAC ); AMCU obo Members v Samancor Western Chrome Mines (2020) 41 ILJ 2771
(LAC ).
97 NUMSA v Wubbeling Engineering (1995) 16 ILJ 1489 (LAC ); see also Performing Arts Council (Transvaal) v PPWAWU (1992) 13 ILJ 1439 (LAC ).
98 BAWU v Edward Hotel (1989) 10 ILJ 357 (IC ).
99 Henred Fruehauf Trailers v NUMSA (1992) 13 ILJ 593 (LAC ).
100 See AMCU obo Members v Samancor Western Chrome Mines (2020) 41 ILJ 2771 (LAC ).
101 NUM v Miranda Coal Mining Co (1995) 16 ILJ 1155 (IC ). For further cases in which employers were held to have failed to comply with the
reasonable time requirement, see BAWU v Palm Beach Hotel (1988) 9 ILJ 1016 (IC ); NUMSA v Tek Corporation (1990) 11 ILJ 721 (IC ); JB Haworth &
Associates v Joseph Mpanyana [1992] 3 BLLR 21 (IC ). However, see also Rikhotso v Transvaal Alloys (1984) 5 ILJ 228 (IC ), in which a 10-minute
ultimatum was held to be sufficient in the circumstances.
102 NUMSA and VWSA (2001) 22 ILJ 771 (C C MA).
103 In NULAW v Bader Bop (2004) 25 ILJ 1469 (LC ), the union unsuccessfully sought to persuade the court that the employer had done so.
104 See, for example, ICS Group t/a Dairybelle (Bloemhof) v NUFBWSAW (1998) 19 ILJ 775 (LAC ).
105 Doornfontein Gold Mining Co v NUM (1994) 15 ILJ 527 (LAC ).
106 Plaschem v CWIU (1993) 14 ILJ 1000 (LAC ).
Once an employer has issued an ultimatum, it is normally assumed to have waived the right to dismiss the strikers until the
ultimatum expires. If an employer waives the right to dismiss on the strength of an ultimatum, it may be required to issue a fresh
ultimatum. But if the workers breach the terms of the ultimatum after they resume work, the employer need not issue a fresh
one. 107
Once strikers have complied with an ultimatum, the employer is precluded from dismissing the strikers for the act of striking per
se. In this sense, an ultimatum amounts to a waiver by the employer of its right to dismiss. By issuing an ultimatum, the employer is
in effect saying: ‘You may be dismissed if you do not return to work, but you will not be dismissed if you do.’ An employer was
found to have waived the right to dismiss strikers because it had intimated that it would continue negotiations once the employees
reported for work. 108 An employer may amend the terms of an ultimatum after it has been issued provided it has a good reason
and gives the strikers notice of the change. 109 This proviso split the LAC in Maluti Transport v MRTAWU, 110 in which the LAC had
occasion to consider the
4th Ed, 2022, ch 22-p 482
doctrine of waiver in some detail. The employees in that case were dismissed after they went on strike in sympathy with workers
who had been dismissed earlier for engaging in an overtime ban. When the strike turned violent, the strikers were told to return
home for a specified period to ‘cool off’. Before that period had expired, the workers were instructed to resume work. When they
refused to do so, they were fired. Even so, they returned to work on the day on which they had originally been instructed to
resume work, and were told that they could ‘re-apply’ for their positions. The employees refused to do so, and engaged in ‘unruly
behaviour’ that necessitated a court interdict. The LAC held that the test for whether an employer has waived the right to dismiss
is essentially based on fairness. Fairness may dictate on occasion that parties cannot change their minds after making a choice;
however, fairness may also permit parties to change their minds in only two circumstances: first, if there is a sound reason;
second, if the other party is given adequate notice of the change of mind. According to two of the three judges, Maluti Transport
had not explained why it had decided to revoke the instruction to the strikers to cool off. Nor was there any evidence to indicate
whether the workers would not have changed their minds and returned to work at the end of the cooling-off period. The waiver
was accordingly not accepted. 111
Where the employer waits some time before dismissing workers when they have resumed work after a strike it may be held to
have waived the right to dismiss. 112
For an extreme example of a delayed attempt to discipline strikers, see FAWU v Premier Foods t/a Blue Ribbon Salt River. 113
107 SAAWU (in liquidation) v De Klerk NO (1992) 13 ILJ 1123 (A).

108 Mshumi v Roben Packaging t/a Ultrapak (1988) 9 ILJ 619 (IC ).
109 AMCU obo Members v Samancor Western Chrome Mines (2020) 41 ILJ 2771 (LAC ).
110 (1999) 20 ILJ 2531 (LAC ).
111 C onradie JA pointed out in a strong dissent that the instruction to the workers to stay at home for the cooling-off period was not an agreement,
and did not confer on the strikers a contractual right to stay away until the end of that period. According to C onradie JA, the only election confronting
Maluti Transport was the choice between dismissing the strikers or not dismissing them. The company had not exercised that choice before telling the
workers to go home. The judge added: ‘I do not believe that an employer is bound by estoppel or waiver if it in effect says to its rioting workforce “go
home, and give me a (fixed) period to reflect on what to do next.” If the employer then reaches a decision sooner than it thought it would, it should (of
course on proper notice) be able to take the decision sooner.’
112 Administrator, Orange Free State v Mokopanele (1990) 11 ILJ 963 (A).
113 (2013) 34 ILJ 1171 (LC ), discussed in C hapter 16.

Even though participation in unprotected strikes constitutes misconduct, the Code of Good Practice does not expressly require
employers to accord strikers hearings before dismissing them. This silence reflects what was generally thought to be the position in
regard to these forms of dismissal. In many judgments, it was accepted that the issuing of a fair ultimatum was the only procedural
step required before dismissing strikers; strikers who defied an ultimatum were regarded as having acted with full knowledge of the
consequences of their actions; it would accordingly have
4th Ed, 2022, ch 22-p 483
been futile to grant them hearings. 114 Some courts went so far as to say that workers who embark on an unlawful strike waive
their right to any form of pre-dismissal hearing. 115
Some exceptions were admitted by courts that followed this approach. It was accepted that fairness might demand an inquiry
when some employees pleaded that they did not willingly take part in the strike or were not in fact striking (because, for example,
they were on leave or ill at the time). An inquiry is also necessary if employees are charged with misconduct committed during the
strike. 116 In one stray judgment the Labour Court accepted, without explanation, that the dismissal of unprotected strikers was
unfair simply because they were not given a chance to state their cases. 117
The view generally adopted by the Labour Courts that unprotected strikers were generally not entitled to hearings was at
variance with a line of cases decided by the civil courts in which it was held that, according to administrative law principles, public
sector employees are entitled to make representations before being dismissed for striking. 118
The LAC revisited this issue in Modise v Steve’s Spar Blackheath. 119 The majority noted in that case that the audi alteram
partem rule had been imported into labour law from administrative law, and had been generally held to apply to all kinds of
dismissals, including those effected for participation in strikes and other forms of mass stay-away. The audi rule was based on the
principle that people are entitled to hearings before adverse decisions are taken which affect their rights, liberties or legitimate
expectations. A decision to dismiss an employee has adverse consequences, whatever the reason. There was no reason, therefore,
why it should not also apply in the case of dismissals for participation in strikes, whether legal or illegal, and irrespective of whether
the strikers had been given an ultimatum.
According to the majority judgment in Steve’s Spar, the only basis for excusing an employer’s failure to give strikers a hearing
before dismissing them is express or implied waiver by the strikers of their right to be heard. However, said the court, waiver cannot
be deduced from the mere fact that the workers were on strike and had failed to comply with an ultimatum. The majority also
rejected the argument
4th Ed, 2022, ch 22-p 484
that to give workers a hearing after an ultimatum had been issued would be an exercise
© 2023 J uta and Com pany (P ty) Ltd.
in futility. A hearing and an ultimatum serve
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that to give workers a hearing after an ultimatum had been issued would be an exercise in futility. A hearing and an ultimatum serve
different purposes, and occur at different times in the same dispute. The purpose of an ultimatum is not to elicit information or
explanations from the workers to whom it is addressed; an ultimatum is intended to give strikers time to reflect on their actions. A
hearing is intended to give workers an opportunity to explain why they did not heed the ultimatum, or why they should not be
dismissed. An ultimatum was accordingly not an adequate substitute for a hearing.
The majority in Steve’s Spar did not commit itself to stipulating the form a hearing in the strike context should take. According to
their judgment, this depends on the circumstances of each case: in some cases a formal hearing will be called for; in others an
informal hearing will do.
Steve’s Spar suggests that the form of the hearing depends on the circumstances; it is difficult to imagine how an employer can
possibly hold a formal hearing before issuing an ultimatum. At that stage, the employees are merely given the opportunity of
complying with the ultimatum and so escaping dismissal. There is surely no point in ‘charging’ them at that stage with misconduct
and hearing representations on such a charge. This is the approach that seems to be taken by judges and arbitrators in the wake
of Steve’s Spar. 120
Although in Steve’s Spar the majority did not express a view on whether a hearing should be accorded strikers before or after an
ultimatum is issued, the court seemed to prefer the idea that a ‘hearing’ should be held before, as the employer would at that stage
be more amenable to persuasion.
It also appears from this judgment that the only purpose served by a pre-dismissal ‘hearing’ is to enable the strikers to attempt
to persuade the employer that an ultimatum should not be issued because the strike is protected or ‘legitimate’. If the strikers fail
to do so, the employer is free to issue an ultimatum and dismiss those strikers who fail to comply with it. 121
Steve’s Spar was decided under the 1956 LRA. In Karras t/a Floraline v SASTAWU, 122 the LAC held in another divided judgment
that the requirement of a pre-dismissal hearing for strikers applied with greater force under the current LRA. The majority assumed
that the hearing required by item 6(2) assumed that the hearing may be conducted on a collective basis. 123 However, the LAC
has since held that employees should be allowed to make individual representations when they may have had personal reasons for
participating in the unprotected strike. 124 It seems that the collective hearing may also be informal. 125
These judgments give employers little guidance on what they must do to comply with the audi rule before dismissing strikers. It
seems, however, that the following steps will suffice:
4th Ed, 2022, ch 22-p 485
• Before issuing the ultimatum, the employer should notify the employees or their union that it intends to do so, and invite
representations as to why this should not be done.
• The employer should entertain any representations that are received and, if they are not acceptable, notify the employees or
their union that it intends issuing the ultimatum.
• When the ultimatum is issued, the employees should be given a reasonable period to consider their response.
• Any worker who complies with the ultimatum may not be dismissed for participating in the strike.
• Those who do not comply with the ultimatum may be dismissed.
• After the dismissals, the employer should consider representations from individuals regarding why the dismissals should be
reversed. 126
The requirements for procedural fairness apply when strikers are dismissed for misconduct during the strike, as opposed to being
dismissed for the act of striking per se. 127 Normally, employees are charged with such misconduct after resuming work, but
nothing prevents an employer from convening disciplinary hearings during the strike. 128 However, in one case the Labour Court
upheld an arbitrator’s finding that the employer’s failure to hold a formal hearing for employees dismissed for engaging in acts of
violence and intimidation during a strike was excusable in the circumstances. 129
114 See, for example, NUM v Haggie Rand (1991) 12 ILJ 1022 (LAC ); NUMSA v Vital Engineering (1992) 1 LCD 68 (IC ); NUMSA v Three Gees
Galvanising (1993) 14 ILJ 372 (LAC ); NUPSW v Alberton Old Age Home (1990) 11 ILJ 494 (LAC ); NUMSA v Elm Street Plastics t/a ADV Plastics (1989) 10
ILJ 328 (IC ) at 338I–J; FAWU v Willowton Oil & Cake Mills (1990) 11 ILJ 131 (IC ); Kolatsoeu v Afro-Sun Investments t/a Releke Zesame
Supermarket (1990) 11 ILJ 754 (IC ) at 758G–I; Black Health & Allied Workers Union of SA v Garden City Clinic (1987) 8 ILJ 462 (IC ); NUMSA v Vetsak
Co-operative (1996) 17 ILJ 455 (A); CWIU v Mend-A-Bath International (1996) 1 LLD 131 (IC ).
115 Majola v D & A Timbers (1997) 18 ILJ 342 (LAC ); NUPSW v Alberton Old Age Home (1990) 11 ILJ 494 (LAC ); NUMSA v Malcomess Toyota, a
division of Malbak Consumer Products (1999) 20 ILJ 1867 (LC ).
116 See, for example, FWCSA v Casbah Burger Box (1996) 17 ILJ 947 (IC ). The qualification was also accepted in NUPSW v Alberton Old Age
Home (1990) 11 ILJ 494 (LAC ).
117 For example, in NUMSA v Fibre Flair t/a Kango Canopies (1999) 20 ILJ 1859 (LC ), the court held without elaborating that the dismissal of
unprotected strikers was unfair because the employer had not granted them an adequate hearing.
118 See generally Grogan ‘Strike dismissals in the public sector’ (1991) 12 ILJ 1. The leading case is Administrator, Transvaal v Zenzile 1991 (1)
SA 21 (A).
119 (2000) 21 ILJ 519 (LAC ), with C onradie JA dissenting.
120 See, for example, NULAW v Bader Bop (2004) 25 ILJ 1469 (LC ).
121 Steve’s Spar was interpreted and applied in Mzeku v VWSA (2001) 22 ILJ 1575 (LAC ).
122 (2000) 21 ILJ 2612 (LAC ).
123 See also NUMSA v Transnet National Ports Authority (2019) 40 ILJ 516 (LAC ).
124 SACCAWU obo Mokebe v Pick ’n Pay Retailers (2018) 39 ILJ 201 (LAC ). See also NTM obo Molema v Botselo Holdings (2020) 41 ILJ 701 (LC ).
125 PTAWU obo Khoza v New Kleinfontein Gold Mine (2016) 37 ILJ 1728 (LC ).
126 See, for example, Masilela v Reinhardt Transport (2010) 31 ILJ 2942 (LC ); SACTWU v Yarntex t/a Bertrand Group (2010) 31 ILJ 2986 (LC ).
127 On which, see C hapters 10 and 11.
128 CEPPWAWU v Metrofile (2004) 25 ILJ 231 (LAC ). In this case, the employer’s right to proceed with disciplinary action was confirmed in the
context of a protected strike.
129 Mxalisa v Dominium Uranium (2013) 34 ILJ 2052 (LC ).
Unprotected strikers will not generally receive the court’s sympathy if they have a habit of engaging in such action, particularly if
they are on final warning for doing so. However, if prior warnings are to be held against strikers, the conduct against which they
were warned must be for striking illegally. 130
Employers frequently couple notice to strikers of their dismissals with an invitation to them to reapply for their jobs on their
original terms. If workers do reapply, the employer should not seize the opportunity to sift out ‘troublemakers’, as this could render
the employer liable to a claim by the employees that they have been selectively dismissed, unless the employer can justify the
differential treatment. 131
4th Ed, 2022, ch 22-p 486
Just as protected strikers are not shielded from disciplinary action or dismissal for misconduct (see Chapter 7), the courts are
even less sympathetic to unprotected strikers who engage in unlawful acts. 132
An employer is entitled to set reasonable conditions when offering re-employment. Strikers who refuse to accept those
conditions cannot claim to have been selectively dismissed. For example, employers may require employees to sign an undertaking
that they will work according to their contracts of employment after returning to work; it is permissible to decline to re-employ
those former employees who fail to do so. 133 When dismissal is coupled with an offer of re-employment, the fairness of the
employees’ dismissal is generally assessed according to the circumstances that prevailed at the time the employer refused to re-
employ, not at the time of the preceding dismissal. 134 The employer is not required to keep the offer of re-employment open
indefinitely.
An employer may also treat dismissed strikers unfairly even after they are re-employed. In Mediterranean Woollen Mills v
SACTWU, 135 the employer had agreed to re-employ on temporary contracts workers who had been dismissed for engaging in an
illegal strike. The company warned that it would ‘review’ the situation after three months if it became apparent that the parties
could not ‘work together’. By the end of that period all but forty of the employees had been re-employed permanently. The forty
were told that their contracts would not be renewed on the basis of their absenteeism records, poor work performance,
interpersonal relationships and other considerations. They were never told of the specific reasons why they were not permanently
re-employed. The court found that the company had created the impression that all the dismissed strikers would be re-employed on
a permanent basis if their conduct during the trial period satisfied management. The company had acted unfairly by not telling the
workers why they had not been re-employed, and by not giving them an opportunity to defend themselves against allegations made
against them.
130 SACCAWU obo Mokebe v Pick ‘n Pay Retailers (2018) 39 ILJ 201 (LAC ), in which the court discounted prior warnings for a march on the
general manager’s office.
131 See, for example, Yichiho Plastics v SACTWU (1996) 17 ILJ 648 (LAC ), in which the court rejected the employer’s claim that it had re-employed
only some of the strikers for operational requirements because its orders had been reduced by the strike and the workers’ subsequent violent conduct.
‘Selective non-re-employment’ is discussed in C hapter 4.
132 See, for example, NUMSA obo Dhludhlu v Marley Pipe Systems SA (2021) 42 ILJ 1924 (LAC ) and Thobela v Apollo Bricks (2021) 42 ILJ 1940
(LAC ).
133 Wubbeling Engineering v NUMSA (1997) 18 ILJ 935 (SC A).
134 MAWU SA v BTR Sarmcol – a division of BTR Dunlop (1995) 16 ILJ 83 (IC ).
135 (1998) 19 ILJ 731 (SC A).

17.1 Protest action
Workers frequently collectively refuse to work for reasons that do not fall within the statutory definition of strike. Stay-aways were
a frequent occurrence under the apartheid government because black workers had few other effective ways to express political
demands. This form of collective action cannot always be held to be irrelevant to labour issues in the broader sense, as was
demonstrated by the national stay-aways in protest against the 1988 Labour Relations Amendment Act.
4th Ed, 2022, ch 22-p 487
Initially, the industrial court took the view that participation by workers in stay-aways was a form of illegal conduct which could,
in principle, justify dismissal. 136 But although under the 1956 LRA participation in stay-aways constituted a criminal offence, 137
the court remained willing to investigate the fairness of such dismissals. For example, dismissals for participation in stay-aways was
found unfair where the employer had treated participants inconsistently, 138 where the employees were unable to report for work
because no transport was available, 139 where the sanction of dismissal was regarded as too harsh in the circumstances, 140 and
where the employees were able to prove that they had stayed away because of intimidation. 141 Dismissals were also found to be
unfair where the employer had previously tolerated stay-aways, but had subsequently decided to take a firm stand without
informing its employees of its change of mind and the possibility that they might be dismissed if they stayed away again. 142 Some
members of the industrial court went further by holding that, within the peculiar political circumstances prevailing in South Africa at
the time, stay-aways for political reasons should not necessarily be characterised as illegitimate and that participation in such
actions should not necessarily be regarded as misconduct. 143 This was particularly so when the stay-away was called or
supported by the employees’ union.
The LAC had occasion to pronounce on the liberal approach taken by the industrial court in a dispute between Amcoal Collieries
and NUM. 144 The court held that stay-aways for political purposes were illegal, that ‘political realities’ could not be taken into
consideration when deciding on the fairness of a dismissal, and that it would be ‘against public policy’ if courts were to assist
employees dismissed for engaging in protests that involved staying away from work.
On further appeal, the then Appellate Division of the former Supreme Court in NUM v Free State Consolidated Gold Mines
(Operations), President Steyn Mine; President Brand Mine, Freddies Mine, 145 took a more sympathetic approach. The case arose
out of the dismissal of 53 workers for joining a national stay-away called by COSATU in protest against the amendments to the
1956 LRA and the all-white general elections of 1989. The court held that although stay-aways were illegitimate, illegal and
constituted misconduct justifying disciplinary action, it did not follow that dismissal was always an appropriate sanction for this
form of misconduct. The workers had been dismissed for individual absenteeism, not for
4th Ed, 2022, ch 22-p 488
participating in a stay-away. However, for purposes of assessing the fairness of the dismissals, the stay-away was not to be
treated as an ordinary case of absenteeism. The underlying cause of the stay-away had to be considered; there was a sense of
grievance and frustration with the government and employers in general, which was shared by more than a million workers. The
critical consideration for the court was that the dismissed employees perceived their protest action to be legitimate. This
perception had to be taken into account in mitigation. Furthermore, the dismissed workers’ individual absenteeism records were not
a sufficient basis for treating them differently from other workers who had taken part in the stay-away. Finally, the employees had
not been clearly warned that they would be dismissed if they took part in the protest action.
The sentiments underlying the Free State Consolidated Gold Mines judgment have been given statutory expression in the current
LRA, which recognises ‘protest action’ as a legitimate form of industrial action, and protects participants against dismissal if such
actions satisfy the requirements of the LRA. Protest action is defined as a ‘partial or complete concerted refusal to work for the
purpose of promoting or defending the socio-economic interests of workers, but not for a purpose referred to in the definition of
strike’. 146 The LRA sets out the procedures that must be followed before a union or federation of unions can call their members
out in protest. 147
The only substantive limitation is that the protest action must be aimed at addressing ‘the socio-economic interests of workers’.
The scope of that term was considered by the Labour Court in Government of the Western Province v COSATU, 148 in which the
authorities sought to interdict a proposed stay-away to protest against disparities in facilities at schools. The government argued
that this objective did not fall within the scope of the term ‘socio-economic interests of workers’. The court held that the phrase
must be given a wide meaning, and that it was sufficient for the workers to ‘place the demand or matter giving rise to the protest
action squarely within the ambit of social status and [the] economic position of workers in general’ and that workers ‘have an
interest to ensure that their children do not suffer from the ills that afflicted them as a result of the skew policies of the past’. The
participating workers could not therefore be dismissed.
Dismissal for involvement in unprotected protest action has not been considered in any reported judgment.
A collective refusal to work will not constitute a strike or protest action if it is aimed at achieving ends not contemplated in the
statutory definitions of those terms. Participants in such actions are not protected by the LRA, and commit misconduct. Although
there is no direct authority on how employers should deal with such incidents, the indications are that the courts and arbitrators
will treat dismissals for
4th Ed, 2022, ch 22-p 489
collective refusals to work that do not amount to strikes or protest action in much the same way as they treat dismissals for
unprotected strikes and protest action.
The closest example is provided by the dismissal by VWSA of about 1 300 of its workers after a strike in support of a demand
that the majority union at the VWSA plant lift its suspension of several dissident shop stewards. Neither the CCMA commissioner
who arbitrated the dispute, 149 nor the Labour Court on review, 150 nor the LAC, 151 nor a private arbitrator who dealt with
another aspect of the dispute, 152 regarded the action as a strike in the technical sense. However, the commissioner, the
arbitrators and both courts dealt with the matter in terms of the requirements of any strike dismissal – in particular whether the
company had complied with the audi alteram partem rule before issuing the ultimatum and dismissing the strikers. 153
136 See, for example, Marutha v Semper t/a Review Printers, Pietersburg (1990) 11 ILJ 804 (IC ); Mbeyane v Cembad t/a Art Centre (1989) 10 ILJ
468 (IC ); NUMSA v Industrial Protective Finishing (1990) 11 ILJ 1309 (IC ).
137 Section 65(1A).
138 SALDCDAWU v Advance Laundries t/a Stork Napkins (1985) 6 ILJ 544 (IC ).
139 Dlali v Railit (1989) 10 ILJ 353 (IC ); NUMSA v Bell Equipment (1990) 11 ILJ 391 (IC ).
140 Matheus v Namibia Sugar Packers (1993) 14 ILJ 1514 (IC ).
141 Dlali v Railit supra; NUMSA v Bell Equipment supra.
142 ACTWUSA v African Hide Trading Corporation (1989) 10 ILJ 475 (IC ).
143 Gana v Building Materials Manufacturers t/a Doorcor (1990) 11 ILJ 565 (IC ); NUM v Amcoal Colliery & Industrial Operations (1990) 11 ILJ 1295
(IC ); Freestate Consolidated Gold Mines (Operations) (Western Holdings Mine) and NUM (1991) 12 ILJ 168 (ARB). See generally Benjamin ‘Stayaways
won’t go away’ (1989) 6(1) Employment Law 2 .
144 Amcoal Collieries & Industrial Collieries v NUM (1992) 13 ILJ 359 (LAC ).
145 (1995) 16 ILJ 1371 (A).
146 Section 213.
147 Section 77. These procedures were considered in Business South Africa v COSATU (1997) 18 ILJ 474 (LAC ) and are fully discussed in Collective
Labour Law C hapter 13.
148 (1999) 20 ILJ 151 (LC ).
149 Mzeku and VWSA (2001) 22 ILJ 771 (C C MA).
150 VWSA v Brand NO (2001) 22 ILJ 993 (LC ).
151 Mzeku v VWSA (2001) 22 ILJ 1575 (LAC ).
152 NUMSA and VWSA (2002) 23 ILJ 792 (ARB).
153 See also FAWU obo Rala and Coca Cola Bottling (2002) 23 ILJ 196 (C C MA) (upheld on review: Coca-Cola Bottling East London v CCMA (2003)
24 ILJ 823 (LC )). For further discussion of dismissals of unprotected strikers, see Collective Labour Law C hapter 15.
Dismissal / Chapter 23 Procedures for challenging dismissals
Chapter 23
Procedures for challenging dismissals
4th Ed, 2022, ch 23-p 490
1. Introduction
2. Urgent relief
4. ‘Pre-dismissal inquiry’
5. Section 191
7. Conciliation
8. ‘Con-arb’
9. Settlement
11. Statutory arbitration
13. Adjudication
13.1 Labour Court
14. Appeals
1. Introduction
The LRA provides dismissed employees with three forums for challenging their dismissals: the CCMA, bargaining councils authorised
by the CCMA to conduct arbitrations, and the Labour Court. 1 Employees falling within the registered scope
4th Ed, 2022, ch 23-p 491
of bargaining councils are required to refer disputes concerning dismissals or unfair labour practices to the relevant council, which
must arbitrate the matter if it is accredited to do so. If a recognition agreement or contract of employment provides that disputes
concerning the termination of employment must be referred for private arbitration, the employee cannot generally utilise the
statutory forums. The procedures laid down by the LRA for challenging dismissals in the Labour Court, the CCMA or a bargaining
council are outlined in this chapter. 2
1 Subject of course to further appeals to the LAC and/or the C onstitutional C ourt.
2 The following is merely a thumbnail sketch. For a complete survey of practice in these forums, see Grogan Labour Litigation and Dispute
Resolution 3 ed (Juta 2019).
2. Urgent relief
The Labour Court is empowered to grant urgent interim relief, and may make appropriate orders, including interdicts and declaratory
orders, to protect the rights of employers and employees either finally or pending the resolution of disputes by the conventional
procedures provided for by the LRA. 3
These applications are brought on notice of motion, usually, but not necessarily, on an interim basis, pending the outcome of
arbitration or litigation. In the case of dismissals, urgent applications are normally used before the dismissal occurs, and are aimed
at obtaining orders restraining the employer from dismissing the employee. The Labour Court is generally reluctant to intervene in
dismissal disputes before dismissals are actually effected. 4 This is because the employee often finds it difficult to prove the
requirements for urgent relief, in particular the absence of an ‘adequate alternative remedy’ and the prospect of suffering
irreversible harm.
The debate over whether the Labour Court has competence to interdict pending dismissals under the LRA was settled by
Booysen v Minister of Safety & Security. 5 Since that judgment was handed down, the Labour Court has entertained many
applications to interdict disciplinary hearings. Some have succeeded, 6 most not. 7 The courts appear to have taken seriously the
LAC’s caution that such relief ought to be granted only in the most exceptional circumstances. In fact, in some cases the courts
have gone so far as to grant punitive costs against well-heeled employees (usually public servants) who on the advice of ‘clever
lawyers’ bring urgent
4th Ed, 2022, ch 23-p 492
applications to halt disciplinary hearings. 8 It goes without saying that the court will not interdict disciplinary action unless it has
actually started. 9
Whistleblowers threatened with dismissal or who have been dismissed may also obtain relief from the High Court or the Labour
Court, either on an urgent basis or by way of trial action under the PDA. 10 In Letsoalo v Minister of Police, 11 the court held that
the availability of s 188(11) of the LRA, which entitles either the employer or the employee to request a s 188 inquiry in cases
where the employee alleges in good faith that he is being targeted for whistleblowing, was an adequate alternative remedy to an
urgent application to halt the disciplinary proceedings against the applicant employee.
4 See Shezi v SAPS (2021) 42 ILJ 184 (LC ).
5 (2011) 32 ILJ 112 (LAC ).
6 SAMWU obo Matola v Mbombela Municipality (2011) 32 ILJ 2748 (LC ). In this case, the employer had breached the municipal disciplinary code by
appointing practising lawyers to act as initiator and presiding officer. See also PSA obo Khan v Tsabidi NO (2012) 33 ILJ 2117 (LC ); Mkasi v DOH:
KZN (2019) 40 ILJ 2576 (LC ).
7 Armstrong v SACAA (2011) 32 ILJ 2487 (LC ); Mpati v Premier of the Free State [2011] 12 BLLR 1202 (LC ); RAF v CCMA (2011) 32 ILJ 707 (LC );
Ngcongo v UNISA (2012) 33 ILJ 2100 (LC ); Motingoe v Head of the Department, Northern Cape Department of Roads & Public Works (2014) 35 ILJ 2492
(LC ); Golding v HCI Managerial Services (2015) 36 ILJ 1098 (LC ); Reddi v UKZN (2015) 36 ILJ 1915 (LC ); Ravhura v Zungu NO (2015) 36 ILJ 1615 (LC );
Nxumalo v Minister of Correctional Services (2016) 37 ILJ 177 (LC ); Ngobeni v PRASA Corporate Real Estate Solutions (2016) 37 ILJ 1704 (LC ); Maluleke
v Greater Giyani Local Municipality (2019) 40 ILJ 1061 (LC ).
8 Botes v City of Johannesburg Property Co (2021) 42 ILJ 530 (LC ). See also Shezi v SAPS (2021) 42 ILJ 184 (LC ); Magoda v DG of Rural
Development & Land Reform (2017) 38 ILJ 2795 (LC ); Phahlane v SAPS (2021) 42 ILJ 569 (LC ).
9 See Mxakato-Diseko v DG: DIRCO (2020) 41 ILJ 953 (LC ) and NEHAWU obo Members Providing Essential Health Services v Minister of
Health (2020) 41 ILJ 1724 (LC ).
10 See Young v Coega Development Corporation (1) (2009) 30 ILJ 1776 (EC P) and Young v Coega Development Corporation (2) (2009) 30 ILJ
1786 (EC P). The jurisdiction of the High C ourt to entertain claims under the PDA, either on a final or interim basis, was confirmed in City of Tshwane
Metropolitan Municipality v ECSA (2010) 31 ILJ 322 (SC A).
11 (2016) 37 ILJ 1916 (LC ).
The LRA makes no provision for review of disciplinary proceedings before the matter has been arbitrated in the normal course under
s 145 (see above). Yet, oddly, the courts will allow public sector employers to do so. 12 Private sector employers do not have this
luxury. The Labour Court has warned, however, that such reviews should not be launched lightly. 13
12 Hendricks v Overstrand Municipality (2015) 36 ILJ 163 (LAC ); Ntshangase v MEC for Finance: KZN (2009) 30 ILJ 2653 (SC A).
13 Statistics SA v Molebatsi (2019) 40 ILJ 2603 (LC ).
4. ‘Pre-dismissal inquiry’ 14
An amendment to the LRA makes it possible for employers to use the services of CCMA commissioners or persons appointed by
accredited bodies to conduct pre-dismissal hearings and to ‘direct’ the action that may be taken against the employee in cases of
alleged misconduct or incapacity. 15 Employees must consent to this process after they have been advised of the allegation
against them. The employer may be represented by a director, an employee or (with the consent of the employee) a legal
practitioner.
The commissioner conducting an inquiry under s 188A has all the powers of a commissioner conducting a post-dismissal
arbitration, except that, instead of issuing an award, the commissioner must ‘direct what action, if any, should be taken against the
employee’ – in other words, they may dismiss employees. Since the commissioner’s directive is ‘final and binding’ it cannot be
undone by another
4th Ed, 2022, ch 23-p 493
commissioner; the only option for a dissatisfied party would be to take the decision on review. 16 Once s 188A proceedings have
been agreed to, neither party may unilaterally abandon the proceedings. 17 Even if the award is set aside on review, the parties
remain bound by the s 188A agreement. 18
The LRA now makes special provision for pre-dismissal arbitration where employees charged with ‘ordinary’ misconduct claim that
they are whistleblowers. Employees who in good faith allege that disciplinary action against them constitutes an ‘occupational
detriment’ as defined in the PDA may require the employer to hold an inquiry under s 188A. 19 If they do, the employer is obliged to
make arrangements for such a hearing. 20
Once an employer agrees to s 188A proceedings, it cannot unilaterally abandon them and revert to an internal disciplinary
inquiry. 21
14 Now termed, more neutrally, ‘Inquiry by arbitrator’: s 188A.

15 Section 188A.
16 In which case s 145 applies, although a reviewing court must take into account the difference between arbitrations conducted under s 188A and
those conducted in terms of s 191(5)(a) – ie ‘post-dismissal’ arbitrations: see Mudau v MEIBC (2013) 34 ILJ 663 (LC ).
17 As occurred in Kubheka v MEC: Human Settlements (Gauteng Provincial Government) (2021) 42 ILJ 1497 (LC ), when the employer decided to
institute internal disciplinary proceedings against the employee on different charges.
18 SATAWU v MSC Depots (2013) 34 ILJ 706 (LC ).
20 Nxele v National Commissioner: DCS (2018) 39 ILJ 1799 (LC ).
21 Mchuba v PRASA (2016) 37 ILJ 1923 (LC ); Msagala v Transnet (2018) 39 ILJ 259 (LC ).
5. Section 191
The referral of disputes to arbitration or adjudication is regulated by s 191(1) to (5), which reads:
(1) (a) If there is a dispute about the fairness of a dismissal, or a dispute about an unfair
labour practice, the dismissed employee or the employee alleging the unfair labour practice
may refer the dispute in writing to—
(i) a council, if the parties to the dispute fall within the registered scope of that
council; or
(ii) the C ommission, if no council has jurisdiction.
(b) A referral in terms of paragraph (a) must be made within—
(i) 30 days of the date of a dismissal or, if it is a later date, within 30 days of the
employer making a final decision to dismiss or uphold the dismissal;
(ii) 90 days of the date of the act or omission which allegedly constitutes the unfair
labour practice or, if it is a later date, within 90 days of the date on which the
employee became aware of the act or occurrence.
(2) If the employee shows good cause at any time, the council or the C ommission may
permit the employee to refer the dispute after the relevant time limit in subsection (1) has
expired.
(2A) Subject to subsections (1) and (2), an employee whose contract of employment is
terminated by notice, may refer the dispute to the council or the C ommission once the
employee has received that notice.
(3) The employee must satisfy the council or the C ommission that a copy of the referral
has been served on the employer.
(4) The council or the C ommission must attempt to resolve the dispute through
conciliation.
4th Ed, 2022, ch 23-p 494
(5) If a council or a commissioner has certified that the dispute remains unresolved, or if
30 days or any further period as agreed between the parties have expired since the council
or the C ommission received the referral and the dispute remains unresolved—
(a) the council or the C ommission must arbitrate the dispute at the request of the
employee if—
(i) the employee has alleged that the reason for dismissal is related to the
employee’s conduct or capacity, unless paragraph (b)(iii) applies;
(ii) the employee has alleged that the reason for dismissal is that the
employer made continued employment intolerable or the employer
provided the employee with substantially less favourable conditions or
circumstances at work after a transfer in terms of section 197 or 197A,
unless the employee alleges that the contract of employment was
terminated for a reason contemplated in section 187;
(iii) the employee does not know the reason for dismissal; or
(iv) the dispute concerns an unfair labour practice; or
(b) the employee may refer the dispute to the Labour C ourt for adjudication if the
employee has alleged that the reason for dismissal is—
(i) automatically unfair;
(ii) based on the employer’s operational requirements;
(iii) the employee’s participation in a strike that does not comply with the
provisions of C hapter IV; or
(iv) because the employee refused to join, was refused membership of or
was expelled from a trade union party to a closed shop agreement.

All dismissal and unfair labour practice disputes must first be referred for conciliation either to a bargaining council, if the parties to
the dispute fall within the registered scope of a council, or to the CCMA. In the case of dismissals, this must be done within 30
days of the date of the dismissal, 22 failing which condonation must be sought from the council or the commission, and granted. An
application for condonation of a late referral should be on affidavit, furnish a reasonable explanation for the employee’s delay, and
satisfy the commissioner that there are reasonable prospects of success, and that the other party has not been unduly prejudiced
by the delay. 23
After a council or the CCMA certifies that the dispute remains unresolved, the employee must refer the dispute either for
adjudication by the Labour Court or for arbitration by a council or the commission. Dismissals effected for certain reasons must be
referred for arbitration, and those effected for other reasons must be referred to the Labour Court.
The correct forum is determined not by the say-so of the employee, but by the actual reason for the dismissal. 24 The correct
legal position is that, when a dispute is referred under s 191(5)(b) to the Labour Court, it assumes jurisdiction provisionally. If it
later becomes apparent that the reason for the dismissal falls under s 191(5)(a), the court must discontinue hearing the matter and
either stay
4th Ed, 2022, ch 23-p 495
the proceedings pending arbitration or arbitrate the matter itself with the consent of the parties and the court. The only
significance of the way employees categorise disputes is therefore to determine the forum to which the dispute is initially referred
after conciliation.
The referral is effected by completing form LRA 7.13, which must be signed by the referring parties or their union representatives
or attorneys. The dismissed employees must be cited by name in the referral form. However, the fact that only their union is cited
is not necessarily fatal. 25 The Labour Court has accepted that in mass dismissals the referral form need be signed only by one
employee, provided that the names of the other employees are annexed to the form and that it is accepted that the referring
employee was mandated by the others. 26
The form merely specifies the section of the Act upon which the employee relies and the outcome desired. When the form is
received, the council or the CCMA must appoint a commissioner to convene a conciliation meeting within 30 days of the date on
which the referral was received, unless the parties agree to extend this period. 27
Unless the dispute concerns an alleged unfair labour practice, employees must actually have been dismissed, or at least been
given notice of dismissal, before they can refer a dispute to the CCMA. 28
22 For the method of determining the date of dismissal, see C hapter 5.

23 See, for example, Rustenburg Platinum Mines (Rustenburg section) v CCMA (1998) 19 ILJ 327 (LC ).
24 Wardlaw v Supreme Mouldings (2007) 28 ILJ 1042 (LAC ).
25 NUM v Hernic Exploration (2003) 24 ILJ 787 (LAC ).
26 Rustenburg Platinum Mines v Monnapula [2003] 9 BLLR 909 (LC ).
27 Section 135(2).
28 PPWAWU v Nasou-Via Afrika (a division of the National Education Group) (1999) 20 ILJ 2101 (LC ).
7. Conciliation
Conciliating commissioners are masters of the process; they may attempt to resolve the dispute in any manner deemed most
effective, including mediation, fact-finding, and making recommendations, which may take the form of an advisory award. 29
However, apart from the power to decide whether to issue a certificate, the conciliating commissioner has no prescriptive
powers over the parties; the commissioner’s role is merely persuasive. 30
Conciliation proceedings may be attended only by the employee involved and his or her trade union representative, and by the
employer, or an employee or director of the employer. 31 Lawyers may not attend. But conciliating commissioners may not dismiss
matters if the referring party fails to attend; the matter can only be removed from the roll. 32
The conciliation process normally begins with statements by each party, in which they give the details of their cases and specify
the relief they seek. Since conciliation effectively amounts to a settlement negotiation, neither party is bound
4th Ed, 2022, ch 23-p 496
by any admission or statement made during the process. Nor is either party obliged to settle.
If settlement is effected, the conciliating commissioner should assist the parties in drafting a settlement agreement, which if
properly drafted will end the dispute. If the parties cannot settle, the conciliating commissioner must issue a certificate to this
effect, specifying the nature of the dispute and indicating the forum to which the dispute should be referred if the employee
decides to take the matter further. Again, the conciliating commissioner’s decision on the forum has no legal force.
Once in possession of a certificate indicating that the dispute has not been resolved, the employee has 90 days to refer the
dispute to arbitration or to the Labour Court, as the case may be. The time limit runs from the date on which the certificate is
actually issued, not from the date on which it should have been issued. 33 Whether or not the conciliating commissioner issues a
certificate, the employee has the right to refer the matter to the CCMA or a bargaining council for arbitration or to the Labour
Court, as the case may be, 30 days after the date of the referral, 34 unless the conciliating commissioner had expressly ruled that
the commission lacks jurisdiction. The employee is not bound by the conciliating commissioner’s designation of the dispute, nor by
the commissioner’s specification of the forum to which the dispute is to be referred. 35
If for any reason the employer contends that the council or the commission lacks jurisdiction, the conciliating commissioner must
make a ruling on that objection. If the commissioner upholds the point, that decision will conclude the matter, unless it is set aside
on review. An arbitrator cannot decide on the validity of a conciliating commissioner’s decision. If, on the other hand, the
conciliating commissioner declines to make a jurisdictional ruling a jurisdictional challenge may be raised at the arbitration or
adjudication stage if it relates to a fundamental issue, such as the alleged non-existence of an employment relationship or whether
the employee had been dismissed.
Arbitrating commissioners are not bound by the way conciliating commissioners classify the reason for the dismissal. Where, for
example, employees allege that they were dismissed for a reason falling under s 191(5)(a) the arbitrator must inquire into the
reason for the dismissal and, if it is a reason that requires the dispute to be referred for adjudication, must make a ruling on
jurisdiction, if the conciliating commission has not already done so. 36
29 Section 135(3).
30 An attempt by a conciliating commissioner to force parties to settle a dispute has been held to constitute a reviewable irregularity: Topics v
CCMA (1998) 3 LLD 475 (LC ).
31 Section 135(4). The requirements of this provision cannot be waived by the parties or the commissioner; attendance by parties other than those
permitted to attend will accordingly nullify the proceedings: Mavundla v Vulpine Investments t/a Keg & Thistle (2000) 21 ILJ 2280 (LC ).
32 Premier of Gauteng v Ramabulana (2008) 29 ILJ 1099 (LAC ). See also Naude v MEC for Department of Health & Social Services, Mpumalanga
Province (2008) 29 ILJ 1540 (LC ).
33 NUM v Hernic Exploration (2003) 24 ILJ 787 (LAC ). See also Sappi Timber Industries t/a Boskor Sawmill v CCMA (2003) 24 ILJ 846 (LC ).
34 Premier of Gauteng v Ramabulana supra.
35 NUMSA v Driveline Technologies (2000) 21 ILJ 142 (LAC ) at 158B–C .
36 Goldfields Mining SA (Kloof Gold Mine) v CCMA (2010) 31 ILJ 371 (LC ). In that case, the court described the information provided in the
‘certificate of outcome’ as nothing more than gratuitous advice, without legal significance for later phases of the dispute.
8. ‘Con-arb’
In an attempt to save time often wasted by separate conciliation and arbitration proceedings in matters that cannot be resolved by
agreement, the LRA has been amended to permit conciliating commissioners to proceed directly to arbitration in
4th Ed, 2022, ch 23-p 497
certain cases. In terms of s 191(5A), a conciliating commissioner may, in any case over which the council or CCMA has jurisdiction
to arbitrate, commence arbitration immediately after certifying that the dispute remains unresolved, provided that neither party
objects. In terms of the CCMA Rules, the objection must be made in writing at least seven days before the date of set-down. A
commissioner may arbitrate without the consent of the parties only if the dispute concerns the dismissal of the employee ‘for any
reason related to probation’.
9. Settlement
One of the hopes of the drafters of the LRA was that a high proportion of disputes would be resolved at conciliation. However, in
the case of dismissal disputes in particular, the process has not been as effective as was hoped; most dismissals referred for
conciliation are ultimately determined by arbitration or adjudication. If settlement is achieved, and the conciliating commissioner
issues a certificate to that effect, the employee cannot seek any further relief against the employer relating to the dispute referred
for conciliation, as the matter becomes res judicata. 37
If the employee claims that he was unlawfully or unfairly induced to conclude the agreement, the certificate must be set aside
on review before the employee may take further legal action. The same applies if the agreement was concluded on the basis of a
mistake common to the parties, whether a mistake of fact or law. 38
If the employer unconditionally reinstates the employee in terms of a settlement agreement and subsequently dismisses the
employee again for a reason unrelated to the initial dismissal, the employee is not precluded from referring a fresh dispute
concerning the second dismissal. 39
Neither party may withdraw from a settlement agreement without the other’s written consent. 40 An agreement that the
employee would withdraw a constructive dismissal claim in return for an undertaking that he would be considered for a future
vacancy was held to have compromised the constructive dismissal claim. 41 So, too, did an employee’s acceptance of a severance
package in ‘full and final settlement’ of his retrenchment. 42
4th Ed, 2022, ch 23-p 498
The commission may, on application by either party, make a settlement agreement an arbitration award. 43 Once this is done,
the employee may not refer a dispute to the CCMA until the agreement has been set aside or corrected by the Labour Court. 44
A settlement agreement concluded prior to termination will also compromise an unfair dismissal claim. 45 In Gbenga-Oluwatoye v
Reckitt Benckiser SA, 46 the Constitutional Court rejected a claim that a ‘termination agreement’ was unconstitutional because it
deprived the employee of his right to approach an appropriate forum with an unfair dismissal claim on the basis that this was a
once-off agreement that settled a particular dispute, not a general waiver of the right to approach an appropriate forum.
An employee may not be forced to sign a settlement agreement either before or after dismissal; refusal to do so will only affect
the relief that may be granted the employee if it is ruled unfair. Where an employee refused an open offer of reinstatement by an
employer who had admitted that the dismissal was procedurally unfair, the court found that the offer had been made merely to
avert a costs order. The employee received compensation. 47
The outcome of internal grievance proceedings may constitute an enforceable settlement agreement if it was signed by both
parties. 48
The court will not enforce a settlement agreement that is plainly unreasonable, even if it has been made an arbitration award. 49
If a settlement agreement involves payment of a sum of money to the employee, the employer may deduct PAYE before paying
the sum over; the employee cannot then claim that the employer has breached the agreement by paying a sum less than the
amount agreed upon. 50
37 Naidu v Ackermans (2000) 21 ILJ 1830 (LC ); Fry / Grasshopper [1999] 4 BALR 406 (C C MA).
38 Murray & Roberts v CCMA (2019) 40 ILJ 2510 (LAC ).
39 Harrisawak v La Farge SA (2001) 22 ILJ 1395 (LC ).
40 Section 141(1)(b).
41 NUM v Tokiso Dispute Settlement (2010) 31 ILJ 2962 (LC ).
42 Nkosi v SSG Security Solutions (2020) 41 ILJ 1408 (LC ).
43 Section 142A.
44 First National Bank (Wesbank Division) v Mooi NO (2009) 30 ILJ 336 (LC ), in which the court found that the C C MA lacked jurisdiction to inquire
into the validity of a settlement agreement which recorded that the employee had resigned. This judgment is debatable. C ommissioners are obliged to
determine whether dismissals actually took place, and such inquiries are commonplace. If the employer raises a document styled a settlement
agreement, it should be required to prove that it is a valid agreement. The central issue is whether the employee has resigned or was dismissed. The
validity of the settlement agreement is at most a collateral issue that fell within the commission’s jurisdiction, and the onus rested on the employer to
prove its validity. The requirements for a valid settlement agreement are set out in Minister of Justice & Constitutional Development v Myburgh (2018) 39
ILJ 553 (LAC ).
45 See, for example, Baise v Mianzo Asset Management (2019) 40 ILJ 1987 (LAC ); Chidi v UNISA (2015) 36 ILJ 709 (LC ).
46 (2016) 37 ILJ 2723 (C C ).
47 Engelbrecht v Bachique 705 t/a The New House of Busby (2020) 41 ILJ 2641 (LC ).
48 IMATU obo Nathan v Polokwane Local Municipality (2020) 41 ILJ 937 (LC ).
49 Lekwa Local Municipality v SALGBC (2017) 38 ILJ 190 (LC ), in which the employer’s representative agreed to settle an employee’s constructive
dismissal claim by offering the equivalent of five years’ salary.
50 Eckhard v Filpro Industrial Filters (1999) 20 ILJ 2043 (LC ).

The LRA provides two forums for the resolution of dismissal disputes: the Labour Court or arbitration under the auspices of
accredited bargaining councils or the CCMA. Section 191(5) distinguishes between matters that may be arbitrated by
4th Ed, 2022, ch 23-p 499
councils or the CCMA and those that must be referred for adjudication by the Labour Court.
All unfair labour practice disputes must be referred for arbitration. Section 191(5)(a) provides that a council or the commission
must arbitrate the dispute if employees have alleged that the dismissal relates to their conduct or capacity, or amounts to a
constructive dismissal, or that they are ignorant of the reason. Section 191(5)(b) provides that dismissed employees may refer the
dispute to the Labour Court if they allege that the dismissal was for a reason that is automatically unfair, based on the employer’s
operational requirements, or that it arose from alleged participation in an unprotected strike, or that it was the consequence of a
closed shop agreement. The proper forum is determined, not by the employee’s description of the reason for the dismissal, but by
the true reason. 51
The parties may agree that a dispute which should otherwise be referred to the Labour Court can be arbitrated. In the absence
of agreement, either party may request the director of the CCMA to refer a dispute which should otherwise be arbitrated to the
Labour Court. 52 Where no application has been made to the CCMA director, the forum is determined by the way the employee
describes the dispute. 53 This is in accordance with the general rule that a forum’s jurisdiction is determined by the applicant’s
pleaded case, 54 not by whether the pleadings have made out a good case.
However, as Zungu v Premier of the Province of KZN illustrates, 55 there are limits to that rule. The applicant in that case
challenged the legality of the employer’s decision not to renew her fixed-term contract under s 158(1)(h) of the LRA. The
Constitutional Court agreed with the LAC’s finding that the dispute was in reality about a dismissal as defined by s 186(1)(b) and
that the matter should accordingly have been referred for arbitration. 56 The Labour Court accordingly lacked jurisdiction to
entertain the application.
The same applies to matters referred to the CCMA or bargaining councils. In those forums, arbitrating commissioners are enjoined
to identify the true dispute and to rule that the CCMA or council lacks jurisdiction if the matter should have been referred to the
Labour Court, or vice versa. 57 Employees who are retrenched alone may choose to refer disputes either to the Labour Court or to
arbitration. Section 191(12) applies to all employees retrenched alone, even if others were consulted before the retrenchment. It
also gives employees employed by small employers the choice of referring retrenchment disputes for arbitration in any
circumstances, provided that the employees were dismissed for operational reasons.
51 Wardlaw v Supreme Mouldings (2007) 28 ILJ 1042 (LAC ), discussed above.

52 Section 191(6). If the director refuses to do so, that decision may not be taken on review until the conclusion of the arbitration proceedings.
53 Magubane v Mint Road Sawmills [1998] 2 BLLR 143 (LC ); Avroy Shlain Cosmetic v Kok (1998) 19 ILJ 336 (LC ); NEHAWU v Pressing Metal
Industries (1998) 19 ILJ 1477 (LC ); Oosthuizen v CAN Mining & Engineering Supplies (1999) 20 ILJ 910 (LC ). These judgments appear to have been
confirmed in NUMSA v Driveline Technologies (2000) 21 ILJ 142 (LAC ).
54 Gcaba v Minister of Safety & Security (2009) 30 ILJ 2623 (C C ).
55 (2018) 39 ILJ 523 (C C ).
56 See Zungu v Premier, Province of KZN (2017) 38 ILJ 1644 (LAC ).
57 See NUMSA obo Jama v Transnet Engineering Uitenhage [2018] 3 BLLR 301 (LC ).
11. Statutory arbitration 58

4th Ed, 2022, ch 23-p 500
The LRA requires arbitrating commissioners to conduct the arbitration ‘in a manner that the commissioner considers appropriate in
order to determine the dispute fairly and quickly’. The commissioner is also enjoined to ‘deal with the substantial merits of the
dispute with a minimum of legal formalities’. 59
The statutory injunction to dispose of disputes swiftly and informally does not mean that arbitrating commissioners are entitled
to disregard those legal formalities which accord with the principles of natural justice. Many arbitration awards and other decisions
of commissioners have been set aside on the basis of procedural irregularities held by the Labour Court to have deprived parties of
the right to a fair hearing. 60
Parties are entitled, ‘subject to the discretion of the commissioner’, to give evidence, call witnesses, ‘question the witnesses of
the other party’ and make closing arguments. 61 However, a commissioner may order that a matter proceed in the employer’s
absence if the employer does not appear. 62 Furthermore, commissioners are required to take into account any applicable code of
good practice and their own code of conduct.
Arbitration hearings are not merely reviews of the employer’s decision to dismiss employees, or of the propriety of the procedures
followed by the employer. They constitute a full rehearing on the merits as well as an investigation of the fairness of the procedure
followed by the employer. 63 This means that all relevant evidence must be placed before the commissioner in proper form, even if
it has been fully canvassed at the employee’s disciplinary and appeal hearings.
The converse situation is not as clear, ie whether an employer may rely on evidence not presented at the disciplinary inquiry at
the later arbitration hearing. If an arbitration hearing is indeed a hearing de novo, there can be no objection to the admission of
such evidence. However, one arbitrator has held that documents not introduced at a pre-dismissal inquiry cannot be relied on later
to justify a dismissal at a subsequent arbitration. 64 If the commissioner commits any irregularity in the proceedings which denies a
party a fair hearing, that irregularity renders the proceedings and the ensuing award reviewable. 65
4th Ed, 2022, ch 23-p 501
The commissioner is required to issue an arbitration award, ‘with brief reasons’, within 14 days of the conclusion of the hearing,
unless the director of the CCMA (or presumably, the secretary of a council) has granted an extension. 66 However, non-compliance
by the commissioner with this requirement is not necessarily fatal, provided that the award is issued within a reasonable time of the
conclusion of the hearing. 67
While the award must be accompanied by ‘brief’ reasons, those reasons should indicate with reasonable clarity why the
commissioner reached the conclusion that the dismissal was or was not fair, and should justify the relief granted, if any. A CCMA
award that is not ‘justifiable according to the reasons given by the commissioner’ is in principle reviewable. 68 Awards issued by
bargaining councils are subject to the same standards of review as those applicable to CCMA awards. 69
An arbitrating commissioner may grant costs against a party only if that party has acted frivolously and vexatiously in proceeding
with or defending the matter, or during the arbitration hearing. 70

59 Section 138(1).
60 Some examples: Dimbaza Foundries v CCMA (1999) 20 ILJ 1763 (LC ) – commissioner unfairly refusing employer’s application for
postponement; SA Cleaning Services v STEMCWU [2000] 9 BLLR 116 (LC ) – commissioner improperly allowing employee’s representative to testify on
her behalf; PPWAWU v Commissioner: CCMA (Port Elizabeth) [1998] 5 BLLR 499 (LC ) – commissioner allowing parties’ witnesses to remain in hearing
while others testified; Dairybelle v CCMA (1999) 4 LLD 629 (LC ) – commissioner placing undue pressure on parties to complete evidence quickly; Legal
Aid Board v John NO (1998) 19 ILJ 851 (LC ) – commissioner not allowing party to lead material evidence. The list of judgments in which awards have
been set aside could be extended indefinitely. The reader is referred in this regard to Labour Litigation and Dispute Resolution C hapter 7.
61 Section 138(2).
62 Section 138(5)(b)(i).
63 Gibb v Nedcor (1998) 19 ILJ 364 (LC ).
64 French and Compuware Corporation Southern Africa (2003) 24 ILJ 2011 (C C MA).
65 See s 145 of the LRA.
66 Section 138(7) and (8).
67 AA Ball v Kolisi (1998) 19 ILJ 795 (LC ).
68 See further below and Labour Litigation and Dispute Resolution C hapter 14.
69 Section 51(8). For a judgment on the review of the awards of private arbitrators, see Stocks Civil Engineering v Rip NO (2002) 23 ILJ 358 (LAC ).
70 Section 139(10). See further C hapter 25.
12. Private arbitration 71

The LRA does not prohibit employers and employees from agreeing to bypass the procedures laid down by the Act by referring
particular dismissal disputes, or all disputes, to private arbitration. The LAC initially held that an agreement to refer disputes for
private arbitration would not hold if it was less favourable to the employee than the statutory dispute resolution procedures, 72 but
seems to have reversed that qualification. In Gerber v Stanlib Asset Management, 73 the court held that a clause in the
employee’s contract providing that all disputes would be resolved by private arbitration deprived the Labour Court of jurisdiction to
entertain the employee’s claim that his dismissal was automatically unfair.
Private arbitrations are conducted in terms of the Arbitration Act 42 of 1965, 74 and the parties are at liberty to determine the
arbitrator’s terms of reference in any manner they please. Although awards issued under the Arbitration Act are ‘final and binding’,
they may be set aside on review if the arbitrator exceeds his or her powers, or commits ‘misconduct’ or a ‘gross irregularity in the
proceedings’. 75
71 See further Labour Litigation and Dispute Resolution C hapter 8.

72 NBCRFI v Carlbank Mining Contracts (2012) 33 ILJ 1808 (LAC ).
73 (2022) 43 ILJ 1080 (LAC ).
74 For an exposition of this Act, see Butler & Finsen Arbitration in South Africa: Law and Practice (Juta 1993) and Ramsden The Law of Arbitration:
South African & International Arbitration (Juta 2009).
75 Section 33 of the Arbitration Act. For an exposition of the meaning of these terms, see Stocks Civil Engineering v Rip NO (2002) 23 ILJ 358
(LAC ).
13. Adjudication
13.1 Labour Court
The Labour Court has four powers relevant to dismissal disputes: to adjudicate dismissal disputes referred in terms of s 191(5)(b) or
by the director of the CCMA under s 191(6); to review decisions or awards of arbitrators under s 145; to interdict
4th Ed, 2022, ch 23-p 502
actions of employers before dismissals or unfair labour practices are effected (see above); and to enforce awards.
Disputes referred under s 191(5)(b) are conducted by trial; they must be referred in terms of rule 6 of the Rules of the Labour
Court. This rule requires the employee to refer a ‘statement of claim’ containing inter alia ‘a clear and concise statement of the
material facts, in chronological order’, on which the party relies. These facts must be set out in sufficient detail to enable the
employer to reply. 76 The employer may respond to the statement of claim within 10 days of delivery. 77 The rules also require the
parties to convene a pre-trial conference within 10 days of the delivery of the employer’s response. 78
Reviews under s 145 are heard on application, ie by notice of motion accompanied by affidavit. 79 Parties seeking to review
CCMA or bargaining council awards are entitled to a copy of the record of the arbitration hearing. 80
Prior to the 2002 amendments of the LRA, an arbitration award lacked the force of law until it was made an order of court under
s 158(1)(c). However, the Act now provides that an award other than an advisory award is ‘final and binding . . . as if it were an
order of the Labour Court’. 81 An award can now be enforced by way of contempt proceeding in the Labour Court or, if it concerns
only the payment of compensation, by execution proceedings.
Actions by dismissed employees to hold the employer to the contract or to claim damages for breach of contract may be instituted
in either the Labour Court or the High Court. 82 The SCA has gone so far as to rule that claims for breach of contract may be
instituted, not only in the alternative to claims for unfair dismissal under the LRA, but simultaneously or sequentially. 83 This had
been confirmed repeatedly by the Labour Court, 84 and finally by the Constitutional Court. 85 This means that employers may be
faced with claims for both compensation under the LRA and for contractual damages.
However, in contractual claims, employees must prove their actual financial loss and defences may be open to the employer
which may not succeed under the LRA. 86 The correct forum is determined by the employee’s pleadings. 87 If the claim is for unfair
dismissal, the matter must be pursued in the Labour Court or by
4th Ed, 2022, ch 23-p 503
statutory arbitration. If the claim relates to the alleged unlawfulness of the dismissal arising from an alleged breach of contract the
matter may be pursued in either the Labour Court or the High Court. 88 Employers may not unilaterally prescribe whether a dismissal
is unlawful or unfair. 89 However, if the contract provides that the employer must comply with the LRA before dismissing
employees, the claim may be accepted as contractual in nature. 90
Employees may approach the Labour Court or the CCMA directly with claims for unpaid salary without first approaching the
DOL. 91
Another issue which has long vexed the courts is whether public sector employees are entitled to approach the High Court with
claims that their employers have infringed their constitutional, statutory or common-law right to lawful and fair administrative
action. That issue was clarified to some extent by the Constitutional Court. In Chirwa v Transnet, 92 the majority of the divided
court held that dismissals do not constitute administrative action subject to review by any court. On that view, dismissed
employees may not challenge their dismissals on the basis of the employer’s alleged breach of their right to lawful and fair
administrative action. Chirwa caused as much confusion as it resolved.
In Gcaba v Minister of Safety & Security, 93 the Constitutional Court attempted to put an end to the messy jurisdictional debate
that ensued after Chirwa. A unanimous court found that a police officer’s complaint that he had been denied promotion was an ‘LRA
claim’, which did not constitute administrative action reviewable in a civil court. Noting that after Chirwa ‘divergent’ schools of
thought had emerged over the proper interpretation of s 157(1) and (2) of the LRA, the court accepted that the same conduct
may threaten or violate different constitutional rights and give rise to different causes of action in law. However, the court also
noted that the Constitution recognises the need for specialisation in a modern society under the rule of law. Different kinds of
relationships between the state and citizens, and between citizens themselves, are dealt with in different provisions of the
Constitution, and the legislature has been mandated to create detailed legislation regulating certain rights. Once a system of rules
and structures has been crafted to deal with a particular right, it is preferable that that system be used. Forum-shopping is
undesirable, especially once a litigant has chosen a specific cause of action.
Gcaba confirms post-Chirwa judgments in which the High Court ruled that it retains jurisdiction in matters where claimants have
no remedy under the LRA, for example, a dispute concerning the alleged unlawful failure to appoint an applicant
4th Ed, 2022, ch 23-p 504
for a municipal post where the applicant had not sought to rely on discrimination, 94 or where an employee claimed relief for which
the LRA provided no remedy. 95 But whether the Labour Court will review labour practices and dismissals is currently an open
question. In the light of Chirwa that court held in one case that it lacks jurisdiction to review disputes arising from dismissals in the
public sector, 96 and in another the court held that it cannot review internal disciplinary proceedings. 97
The Labour Court has been prepared to review and interdict an unlawful suspension, 98 and has also set aside a decision to
transfer an employee. 99 On the other hand, the Labour Court has also held that it lacks jurisdiction to review dismissals in the
public sector, and dismissed a review application on that basis. 100 It seems that the practical position is now that the Labour
Court will decline to entertain review applications if the employee has a ‘conventional’ remedy under the LRA. Only in the most
exceptional circumstances will it be prepared to set aside dismissals pending the outcome of the dispute by arbitration or
adjudication. The High Court still holds that it has jurisdiction to entertain applications concerning alleged breaches of employment
related statutes, excluding those over which the Labour Court has jurisdiction. 101
Any party aggrieved by a decision of any arbitrator deciding a matter that can be referred to arbitration under the LRA can take
the award on review to the Labour Court. 102 However, the operation of an award is not suspended pending a review, unless the
employer furnishes security equivalent to 24 months’ salary if the employee is reinstated, or equal to the compensation granted the
employee. 103
Private arbitration awards dealing with labour and employment issues may also be reviewed by the Labour Court. 104 The
grounds of review are set out, respectively, in s 145 of the LRA or s 33 of the Arbitration Act. 105
While uncertainty reigned for some time over the extent to which the court could interfere with decisions of commissioners, the
test is now confirmed. This requires the reviewing court to determine whether the conclusion reached by the
4th Ed, 2022, ch 23-p 505
arbitrator is one a reasonable commissioner might have reached, 106 except where the commissioner commits a patent error of law,
in which case the test is objective. This means that the court will not interfere with an award lightly – the starting point is that
commissioners are required to ‘apply their own sense of fairness’ to the material before them. If the commissioner has considered all
relevant evidence, a court will not interfere merely because the judge might have reached a different conclusion. The
‘reasonableness’ test does not apply to reviews of private arbitration awards, 107 or to jurisdictional rulings by arbitrators.
76 Rule 6(1)(b)(i).
77 Rule 6(3).
78 Rule 6(4).
79 Rules 7 and 7A. On the grounds of review, see below.
80 Rule 7A(2)(b).
81 Section 143(1).
82 See s 77(3) of the BC EA.
83 Makhanya v University of Zululand (2009) 30 ILJ 1539 (SC A). But see SAMSA v McKenzie (2010) 31 ILJ 529 (SC A).
84 See Archer v Public School – Pinelands High School (2020) 41 ILJ 610 (LAC ), in which the appellant had referred a contractual claim under the
BC EA after his dismissal was upheld by a C C MA commissioner. See also Toyota SA Motors v Nzuza (2020) 41 ILJ 908 (LAC ).
85 Baloyi v Public Protector (2021) 42 ILJ 961 (C C ).
86 Pilanesberg Platinum Mines v Ramabulana (2019) 40 ILJ 2723 (LAC ).
87 Gcaba v Minister of Safety & Security (2010) 31 ILJ 296 (C C ).
88 Jurisdiction to entertain claims ‘to hear and determine any matter concerning a contract of employment’ is conferred on both the Labour C ourt
and the civil courts: s 77(3) of the BC EA.
89 SABC v CCMA (2020) 41 ILJ 493 (LC ).
90 Carter v Value Truck Rental (2005) 26 ILJ 711 (SE); SAFA v Mangope (2013) 34 ILJ 311 (LAC ).
91 AWU v Philip Morris SA (2020) 41 ILJ 863 (C C ).
92 (2008) 29 ILJ 73 (C C ).
93 (2009) 30 ILJ 2623 (C C ).
94 Mlokoti v Amathole District Municipality (2009) 30 ILJ 517 (E).
95 Tsika v Buffalo City Municipality (2009) 30 ILJ 105 (E).
97 Booysen v SAPS (2009) 30 ILJ 301 (LC ), overruled on appeal: see above.
98 Mogothle v Premier of the North-West Province (2009) 30 ILJ 605 (LC ).
99 Nxele v Chief Deputy Commissioner, Corporate Services, Department of Correctional Services (2008) 29 ILJ 2708 (LAC ).
101 Aberdeen Senior Secondary School v MEC, Department of Education, Eastern Cape Province (2011) 32 ILJ 871 (EC B). This case concerned the
disputed election of an educator in breach of the Employment of Educators Act 76 of 1998. The application failed on the merits.
102 Section 145 of the LRA. The Labour C ourt acquires jurisdiction over awards of arbitrators acting in terms of the Arbitration Act 42 of 1965 by
virtue of s 157(3) of the LRA.
103 Section 145(8).
104 Section 157(3), which provides: ‘Any reference to the C ourt in the Arbitration Act, 1965 (Act 42 of 1965), must be interpreted as referring to
the Labour C ourt when an arbitration is conducted under that Act in respect of any dispute that may be referred to arbitration in terms of this Act.’
105 And are fully discussed in Labour Litigation and Dispute Resolution C hapters 14 and 15.
106 See Sidumo v Rustenburg Platinum Mines (2007) 28 ILJ 2405 (C C ).
14. Appeals
The current LRA abolished the right to appeal against decisions of the industrial court that existed under the 1956 LRA and replaced
that with the right to take decisions of the CCMA on review to the Labour Court (see previous section). However, a right of appeal
from all decisions of the Labour Court has been retained. Such appeals lie only to the LAC, subject to the right to appeal directly
against decisions of the Labour Court to the Constitutional Court on ‘constitutional matters’. 108 The LAC has no jurisdiction to
review decisions of the Labour Court.
Judgments of the High Court may be taken on appeal either to a Full Bench of three judges of the same division or to the SCA. Full
benches have no jurisdiction to hear appeals from the Labour Court but may hear appeals on such labour matters over which the
High Court has jurisdiction.
Although the SCA initially assumed jurisdiction to entertain appeals from the LAC, the Constitution was amended in 2013 to exclude
the SCA’s jurisdiction in ‘labour matters’. This certainly means that appeals can no longer be taken to the SCA in matters relating to
industrial action, collective agreements and the like. However, whether the amendment applies to employment disputes in which
parties plead breach of contract is doubtful. The SCA has always insisted that such disputes fall within the jurisdiction of the civil
courts. But disputes concerning the fairness, as opposed to the lawfulness of dismissals are now excluded from the SCA.
The Constitutional Court is the highest court in the South African judicial structure. It may entertain appeals in all constitutional
matters from the High Court or from
4th Ed, 2022, ch 23-p 506
the SCA. The Constitutional Court can also with leave act as a court of first instance in constitutional matters. The Constitutional
Court therefore has the final say in all matters relating to the constitutional right to fair labour practices, fair administrative action,
and other fundamental rights related to employment and labour relations. The Constitutional Court has entertained many cases
emanating from the Labour Courts, and has frequently overruled the LAC. While the court may in theory also entertain appeals
directly from the Labour Court, it has indicated that it will do so only in the most exceptional of circumstances. 109
108 That right exists in terms of rule 18 of the rules of the C onstitutional C ourt, which permits appeals from decisions of the High C ourt directly to
the C onstitutional C ourt, provided that the High C ourt confirms that the point under appeal is a ‘constitutional matter’.
109 Dudley v City of Cape Town (2004) 25 ILJ 991 (C C ).
Dismissal / Chapter 24 Remedies
Chapter 24
Remedies
4th Ed, 2022, ch 24-p 507
1. Introduction
3.1 Reinstatement
3.2 Re-employment
3.4 Compensation
3.6 Other orders
5. Severance pay
1. Introduction
The labour tribunals and civil courts are empowered to grant a number of remedies to dismissed employees. These are outlined in
this chapter.

The 1956 LRA expressly granted the industrial court power to grant interim relief on an urgent, 1 or non-urgent, 2 basis to
employees pending the final determination of dismissal disputes by that court. The purpose of interim relief was to restore the
status quo ante the dismissal pending final determination or settlement. There is no equivalent provision in the current LRA.
Instead, the Labour Court is now given general power to grant urgent relief in matters falling under its jurisdiction, 3 and a more
general power to ‘order the performance of any particular act which order,
4th Ed, 2022, ch 24-p 508
when implemented, will remedy a wrong and give effect to the primary objects of the Act’. 4
The Labour Court may use these powers to restrain employers from dismissing employees until the employer has complied with
the provisions of the Act, 5 but may interdict incomplete disciplinary proceedings only in exceptional circumstances where injustice
would otherwise result. 6
Interim relief takes the form of rule nisi, in which the respondent is required to perform some act (such as reinstating the
employee) or to refrain from some action (such as proceedings with disciplinary action against an employee). Temporary relief
endures until the matter is argued on the return day and the court is persuaded to discharge the order, failing which the interim
order will be confirmed.
Employees and employers may also seek final relief, even in urgent proceedings. The difference between interim and final relief is
obvious: interim relief is granted pending the outcome of some other procedure, usually a fully-fledged review. These are known as
interdicts pendite lite. Final relief is what its name suggests; it binds the parties absolutely and is subject to appeal. This is why the
test for final relief is stricter than the test for interim relief.
1 Section 17(11)(a) of the 1956 LRA. See also s 22(2)(a) of the Public Service Labour Relations Act 102 of 1993 (PSLRA).
2 Section 43 of the 1956 LRA. See also s 23 of the PSLRA.
3 Section 158(1)(a)(i).
4 Section 158(1)(a)(iii).
5 NUMSA v Comark Holdings (1997) 18 ILJ 516 (LC ).
6 Booysen v Minister of Safety & Security (2011) 32 ILJ 112 (LAC ), discussed in C hapter 23.

3.1 Reinstatement
The statutory remedies for an unfair dismissal and for unfair labour practices are set out in s 193 of the LRA. This provision reads:
(1) If the Labour C ourt or an arbitrator appointed in terms of this Act finds that a dismissal
is unfair, the C ourt or the arbitrator may—
(a) order the employer to reinstate the employee from any date not earlier than the
date of dismissal;
(b) order the employer to re-employ the employee, either in the work in which the
employee was employed before the dismissal or in other reasonably suitable
work on any terms and from any date not earlier than the date of dismissal; or
(c) order the employer to pay compensation to the employee.
(2) The Labour C ourt or the arbitrator must require the employer to reinstate or re-
employ the employee unless—
(a) the employee does not wish to be reinstated or re-employed;
(b) the circumstances surrounding the dismissal are such that a continued
employment relationship would be intolerable;
(c) it is not reasonably practicable for the employer to reinstate or re-employ the
employee; or
(d) the dismissal is unfair only because the employer did not follow a fair procedure.
4th Ed, 2022, ch 24-p 509
(3) If a dismissal is automatically unfair or, if a dismissal based on the employer’s

operational requirements is found to be unfair, the Labour C ourt in addition may make any
other order that it considers appropriate in the circumstances.
(4) An arbitrator appointed in terms of this Act may determine any unfair labour practice
dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may
include ordering reinstatement, re-employment or compensation.
Reinstatement is generally regarded as the ‘default’ remedy for an employee whose dismissal is ruled substantively unfair, unless the
provisions of s 93(2) apply. If they decide not to reinstate such employees, commissioners must ensure that they provide adequate
reasons for denying the primary remedy. 7
The term ‘reinstatement’ is to be interpreted in its ordinary meaning. 8 If employees are reinstated, they resume employment on
the terms and conditions that prevailed at the time of dismissal; the period during which the employee has been out of work as a
result of the unfair dismissal is regarded as nothing more than a suspension of the employment contract. The retrospective
operation of an order of reinstatement is intended to place unfairly dismissed employees in the same position they would have been
in had they not been dismissed.
Theoretically, employees who are reinstated with full retrospective effect should receive every cent they lost as a result of
being put out of work. But this need not be the case: the employee may have incurred additional expenses, like loss of insurance
policies, forced sales of their homes, medical expenses that would otherwise have been covered by medical aid, and the like. They
may also have lost years of pensionable service if they were forced to look to their pension funds for money to tide them over. 9
These expenses are not recoverable by enforcement of the reinstatement order, but may form the subject of a contractual or
delictual action.
A fresh contract does not have to be concluded with the reinstated employee; the original contract simply revives. 10 However,
it has been held that it is not the
4th Ed, 2022, ch 24-p 510
reinstatement order itself which revives the contract; reinstated employees must actually tender service before they can claim the
right to resume their employment. 11
Reinstatement cannot be granted where the employee is unable to tender or render service because they cannot perform in
terms of their revived contracts. This will be the case, for example, where the employee had died or is legally precluded from
performing his or her work. 12
Reinstatement need not be fully retrospective to the date of the dismissal; the extent of retrospectivity is left to the discretion
of the court or arbitrator. Full retrospective reinstatement is usually denied if the employee was partly to blame for the
circumstances that led to his or her dismissal, or if the employee unduly delayed pursuing the action.
Although the employer must pay a reinstated employee a sum of money if the reinstatement order is made retrospective, that
sum is not compensation as contemplated in sub-s (1)(c). The LRA deals with reinstatement and compensation in different
sections. An employee who is awarded full retrospective reinstatement cannot be awarded compensation in addition to back pay.
This would be inconsistent with the use of the disjunctive ‘or’ in s 193(1). The only limitation on the retrospective operation of a
reinstatement order is that it must not pre-date the date of the dismissal.
Section 193(1) is silent on the period for which reinstatement should be made retrospective: this lies within the discretion of
judges and arbitrators. The passage of time since the dismissal is not in itself a bar to complete retrospective reinstatement. 13 But
the courts and arbitrators have taken a number of factors into account when deciding that issue. These include the heavy financial
loss that would otherwise be suffered by the employee, 14 whether the delay between dismissal and reinstatement was caused by
the employer, 15 and the cost that would be incurred by the employer if full retrospective reinstatement is ordered. 16 The LAC has
bemoaned the effect of delays in dispute resolution on the amount of back pay granted reinstated employees. It has gone so far as
to suggest that the court be given extra powers to prevent reinstated employees from profiting excessively from massive amounts
of back pay and recommend that the legislature investigate why it is taking so long to dispose of all too many labour disputes. The
court recommended that the legislature should make appropriate amendments to reduce the problem, without saying what these
may be. 17
4th Ed, 2022, ch 24-p 511
A concern expressed by some judges that employees may be tempted to gain greater compensation than that permitted by the
Act by seeking orders of full retrospective reinstatement, then immediately resigning, remains a consideration. The court suspected
that this was the case in NUMSA v Edelweiss Glass & Aluminium, 18 and shaped an order to avoid this form of exploitation by
dismissed employees who plainly did not intend to resume work with their former employer – back pay was limited to 24 months for
those employees who wished to be reinstated, and those who did not received compensation equal to 24 months’ wages, because
their dismissal was automatically unfair.
Much the same concern has been expressed about employers who try delay reinstating unfairly dismissed employees by pursuing
reviews and appeals in the hope that the employee will be financially exhausted. While every employer is entitled to pursue these
remedies, the courts will not be sympathetic if the employer ultimately fails and reinstatement can no longer be evaded. 19
The LRA permits judges and arbitrators to award compensation to, rather than reinstate, employees whose dismissals are ruled
substantively unfair in certain limited circumstances – where a continuation of the employment relationship would be ‘impracticable’
or ‘intolerable’; where the dismissal is only procedurally unfair; or, obviously, where the employee does not wish to be reinstated. 20
These provisions are discussed in the following section.
Retrospectively reinstated employees are entitled to the full remuneration they would have received during the period between
their dismissals and their reinstatement, including non-discretionary bonuses, vacation pay, medical aid contributions and the
like. 21 But where an employee was reinstated with partial retrospective effect, he was held to not be entitled to back pay for the
period between his dismissal and the date on which the reinstatement order took effect. 22
When determining the quantum of back pay, a court may take into account amounts paid to the employee on the termination of
their employment – such as severance pay. 23 Amounts earned while challenging their dismissals may be taken into account in
exceptional circumstances. 24
An employer need not reinstate employees who cannot or will not tender their services in full. 25 If an employee who has been
retrospectively reinstated does not report for duty or is not actually reinstated for whatever reason, the employee cannot claim
back pay. 26 The correct course in these circumstances is to bring contempt proceedings.
Employees who have unreasonably refused an offer of full retrospective reinstatement before the trial are unlikely to be
reinstated later or even be awarded compensation. 27 So, too, will a court be unlikely to reinstate employees who refuse to repay
severance benefits received by them. 28
4th Ed, 2022, ch 24-p 512
Employees who perform illegal work, while possibly entitled to challenge their dismissals under the LRA, are unlikely to be granted
reinstatement. One such group are ‘sex workers’. 29
A reinstatement order does not endure beyond the date on which it takes effect. Once an employer has taken a dismissed
employee back into service, the employer acquires its ordinary authority over the employee. 30 However, even where the employer
decided to subject reinstated employees to fresh disciplinary action, they were held to be entitled to back pay because the
employees had been taken back into service. 31
Because reinstatement revives the original employment contract, the court and arbitrators cannot fashion new contracts when
they order reinstatement. 32 Reinstatement simply revives the contract as if the dismissal never occurred. It follows that, generally
speaking, a reinstated employee is entitled to resume work in the position he occupied before he was dismissed. 33
If an employer restores the contractual relationship and pays or offers to pay the employee, the reinstatement order is satisfied
even if the employee is not physically restored to his or her old position, especially where the position no longer exists due to
restructuring. 34
Employees on fixed-term contracts will not be reinstated if, by the time their dismissals are ruled unfair, their contracts have
expired; 35 to do so would effectively mean imposing a new contract on the parties. The exception is where employees were found
to have had a reasonable expectation that their fixed-term contracts would be renewed. 36 In these cases the employee may be
reinstated for a further fixed-term contract of the same duration, or if the expectation was of indefinite employment
permanently. 37
Although back pay and compensation may appear much the same, they are different remedies. 38 Back pay may only be ordered
with an order of reinstatement, and where reinstatement is ordered, the employee is not entitled to both back pay
4th Ed, 2022, ch 24-p 513
and compensation. 39 An award of damages under the EEA or compensation for breach of contract may, however, be coupled with
a reinstatement order.
The vexed question whether claims under the LRA prescribe after three years by virtue of the Prescription Act 68 of 1969 was
partially resolved by legislative amendment. Section 145(7) now provides that review proceedings do not suspend the operation of
an arbitration award, unless the employee furnishes security in terms of s 145(8). This means that an award of reinstatement
becomes immediately enforceable if the employer does not furnish security, which in the case of an award of reinstatement or re-
employment must be the equivalent of 24 months of the employees’ remuneration, and in the case of the compensation awarded.
Section 145(9) provides that the institution of review proceedings under the LRA does not interrupt the running prescription.
Section 145 does not apply to appeals against reinstatement orders by the Labour Court. The period of prescription of judgment
debts is 30 years. 40
Like compensation, interest accrues on back pay from the moment it is owed. This would normally be the date of the dismissal,
except where the dismissed employee is reinstated later by an arbitrator or the court. The LAC has held that interest starts running
from the date on which reinstatement is ordered. 41
Employees who have been unlawfully (as opposed to unfairly) dismissed may choose to sue for damages or for ‘specific
performance’, which is the equivalent of reinstatement. However, that remedy is by no means guaranteed, especially if the court is
satisfied that the employment relationship has been destroyed. 42
3.2 Re-employment
The LRA does not specify the circumstances in which re-employment should be ordered, rather than reinstatement. Nor is the term
defined in the Act. ‘Re-employment’ must accordingly be given its ordinary meaning: the employees begin work afresh with the
employer, and any benefits arising from their past employment are not extended to the new employment relationship. 43 For
example, the court has held that it was implicit in an order of re-employment that the employees were obliged to accept a change
in medical aid schemes. 44
Because re-employment is a less complete remedy than reinstatement; it must have been intended to be an exceptional remedy.
The LRA appears to provide for orders of re-employment to cater for the special forms of dismissal provided by s 186(1)(b) and (d)
– ie ‘dismissals’ effected by the non-renewal of fixed-term contracts and so-called selective non-re-employment. 45 Re-
employment, as opposed to reinstatement, is the obvious remedy in those cases because the contract initial contract had lawfully
lapsed before the dismissal. But there is nothing in the
4th Ed, 2022, ch 24-p 514
Act to prevent judges or arbitrators from ordering re-employment of employees in other appropriate circumstances. But in these
cases they should not ordinarily be entitled to back pay.
On the face of it, the LRA leaves the Labour Court and arbitrators free to choose between reinstatement, re-employment or
compensation. Section 193(2) merely provides that reinstatement or re-employment must be ordered unless any of the
circumstances listed in paras (a) to (d) applies.
Reinstatement or re-employment may not be ordered in cases in which dismissals are held in procedurally unfair only. 46
However, the rule that an employee whose dismissal is ‘only’ procedurally unfair does not apply where the right to a fair hearing is
conferred by the employment contract. Where this is so, the employee can seek an order of specific performance under the BCEA,
at least until the employer has complied with a fair procedure. 47 Such an order effectively results in reinstatement. 48
Self-evidently, re-employment cannot be ordered when the employee does not wish to be reinstated or re-employed, or where
the circumstances surrounding the dismissal are ‘such that a continued employment relationship would be intolerable’, and where it
is not ‘reasonably practicable’ for the employer to reinstate or re-employ the employee.
The exceptions listed in s 193(2) are all potentially problematic, even though they have been held to be ‘mandatory’ by the
LAC. 49 It may well be that, despite an employee’s unwillingness to be reinstated or re-employed, such orders would be fairest to
both parties in the circumstances. The employer may, for example, have a right to institute disciplinary charges against employees
for misconduct other than that for which they were dismissed.
The provision that reinstatement may not be ordered where the employee does not wish to be reinstated seems obvious – the
employee is dominis litis in unfair dismissal proceedings and is as such entitled to specify the relief sought. But in one case, the
court found that a request for compensation should not automatically be considered a waiver of the right to be reinstated unless
the employee appreciates the legal ramifications of the choice. And in another case the employee was permitted to change his mind
after applying for compensation only in his statement of claim because circumstances had changed since the referral. 50
In SBV Services v CCMA, 51 the court advised arbitrators dealing with cases in which employees do not seek reinstatement to
advise them that:
• The law enjoins the arbitrator or the court to reinstate the employee if the dismissal is found substantively fair.
• Reinstatement means that the employee will be entitled to resume employment and in addition has become entitled to his
wages and other monies that he
4th Ed, 2022, ch 24-p 515
would have been paid during the period of his unfair dismissal (according to the judge, the term ‘back pay’ should be avoided).
• The employee may choose compensation, but that compensation is not for non-patrimonial loss or for lost income (this must
be explained in a language and a manner which is suitable for the employee’s station in life).
• The employee may be awarded an amount in money that does not exceed the threshold that is applicable in his case.
This procedure must be followed even if the employee is represented.
The conclusion that the continuation of an employment relationship would be ‘intolerable’ is so open-ended as to lend itself to
abuse; most dismissals so sour the employment relationship from both sides that the employer can always seek to rely on this
exception. 52 This is why the courts generally require proof, or at least confirmation in evidence, that the restoration of the
employment relationship will indeed be intolerable, 53 or impracticable. 54 Reinstatement was found to be both in the case of an
employee afflicted with bipolar mood disorder who had assaulted a female colleague because his own psychiatrist had said that he
could relapse even while on medication. 55 And in AMCU v Northam Platinum Mine, 56 the court found reinstatement impracticable
because the union had attached unreasonable conditions when it tendered its members’ return to work after they had stayed away
for fear of being attacked by members of a rival union and had been dismissed for absence without leave.
Where the employer fails to prove that the dismissed employee was guilty of the charge(s) for which they were dismissed, there
is generally no reason why reinstatement should be refused. 57 This was emphatically confirmed by the Constitutional Court in Booi
v Amathole District Municipality. 58 A unanimous court found that the Labour Court had erred by confirming an arbitrator’s finding
that Mr Booi was innocent of the charges for which he had been dismissed but setting aside his decision to reinstate Booi and
awarding him compensation instead. The court found that the municipality had tried to argue against reinstatement on the same
grounds on which it had unsuccessfully tried to prove the dismissal fair. The test for ‘intolerability’ did not depend on the subjective
view of the employer. Intolerable in this context means more than that the relationship after
4th Ed, 2022, ch 24-p 516
reinstatement would be fraught or even tense – it must be proved that it would be unbearable. The highest court held that the
Labour Court had erred by denying Booi the reinstatement order he had sought, even though he had already accepted the
compensation that had been ordered. 59
Where the alleged breakdown in the employment relationship was caused by the employer’s bad faith, there is also no reason to
deny reinstatement. 60
However, in some cases, where the employee’s dismissal was found substantively unfair on the basis of some consideration
unrelated to the misconduct itself – such as inconsistency or a breach of the ‘double jeopardy’ rule – the gravity of the misconduct
may itself militate against an award of reinstatement. 61
Another issue raised by s 193(2)(b) is whether reinstatement may be denied employees because of their conduct after their
dismissals. 62 In Glencore Holdings v Sibeko, 63 the employee, a bulldozer driver, had been dismissed for not wearing regulation
earmuffs. A CCMA commissioner found that Mr Sibeko had not committed any misconduct. But he declined to grant reinstatement
because Sibeko had behaved belligerently during the arbitration hearing. The Labour Court set aside the award and substituted an
award of reinstatement. The LAC noted that the grounds on which an arbitrator may decline to reinstate employees whose
dismissals have been found to be unfair are limited to those in s 193(2). While Sibeko might have accused the employer of bribing
witnesses and the proceedings had been interrupted several times by heated exchanges, and he had exclaimed that the ‘battle’
between him and the employer had ‘only just begun’, the record also indicated that Sibeko had been responding to taunts and jeers
by the company’s representatives. The court could find no jurisprudential basis on which the commissioner could have deviated
from the primary remedy of reinstatement. The exception that reinstatement need not be ordered where the employment
relationship was ‘intolerable’, did not apply because this referred to circumstances at the time of the dismissal. 64 The resumption
of the employment relationship could not be said to be ‘impracticable’ because Sibeko’s conduct during the arbitration proceedings
had nothing to do with his work as a bulldozer driver, which does not necessarily require good manners. 65
4th Ed, 2022, ch 24-p 517
The LAC followed Glencore in VSB Construction t/a Techni-Civils v NUM obo Mngqola, 66 in which the court could find no reason
why a shop steward who had informed HR that the workers thought the MD was a racist should not have been reinstated rather
than receiving compensation, as an arbitrator had found appropriate because the employee had been dishonest during the
arbitration.
The nature of the misconduct for which an employee was dismissed – specifically sexual harassment and making racist comments
– may in itself be enough to indicate that the employment relationship had been damaged beyond repair, even if the dismissal was
found to be substantively unfair for some other reason. 67
The requirement that reinstatement need be granted where it would not be ‘reasonably practicable’ sets an equally high hurdle.
The LAC had held that the phrase means ‘not feasible’ or ‘beyond possibility’ and gave as examples where the employee’s job no
longer exists, or where the employer has been liquidated or where reinstatement would otherwise be ‘futile’. 68 Mere inconvenience,
such as where a replacement had been employed, would fall short of that test.
Another situation where reinstatement cannot be granted is where it would be unlawful for the employee to resume employment.
This was the finding in Solidarity v ARMSCOR, 69 in which the LAC found it logically and legally impermissible to reinstate an
employee who had been deprived of a necessary security clearance, even though his dismissal was substantively unfair.
3.4 Compensation
The legislature has thus far devised two formulae for quantifying compensation for unfair dismissal. The original s 194 distinguished
for this purpose dismissals that were unfair ‘only because the employer did not follow a fair procedure’, those found unfair ‘because
the employer did not prove the reason for dismissal was a fair reason related to the employer’s conduct, capacity or based on the
employer’s operational requirements’, and those that were automatically unfair. In the later and current version, substantively and
procedurally unfair dismissals were collapsed into one, and distinguished only from automatically unfair dismissals.
The 1956 LRA did not expressly provide for compensating unfairly dismissed employees. The courts operating under that Act
equated compensation with ‘damages’, as that expression is used in the law of contract and delict, ie the sum necessary to
compensate employees for patrimonial loss suffered as a result of their dismissals. 70 The drafters of the current Act originally
sought to deprive the court and arbitrators of the apparently limitless discretion impliedly conferred by the 1956 LRA to compensate
unfairly dismissed employees. The initial attempt to do so in s 194(2) of the current LRA caused such intense judicial debate and
uncertainty that it was excised in 2002 and replaced with a revised s 194(1) to regulate compensation for all forms of dismissal,
except automatically unfair
4th Ed, 2022, ch 24-p 518
dismissals, which remain regulated by s 194(3). The provisions dealing with compensation for unfair dismissal now read: 71
(1) The compensation awarded to an employee whose dismissal is found to be unfair

either because the employer did not prove that the reason for dismissal was a fair reason
relating to the employee’s conduct or capacity or the employer’s operational requirements or
the employer did not follow a fair procedure, or both, must be just and equitable in all the
circumstances, but may not be more than the equivalent of 12 months’ remuneration
calculated at the employee’s rate of remuneration on the date of dismissal.
(2) [deleted]
(3) The compensation awarded to an employee whose dismissal is automatically unfair
must be just and equitable in all the circumstances, but not more than the equivalent of 24
months’ remuneration calculated at the employee’s rate of remuneration on the date of
dismissal.
(4) The compensation awarded to an employee in respect of an unfair labour practice
must be just and equitable in all the circumstances, but not more than the equivalent of 12
months remuneration.
The problematic distinction between substantively and procedurally unfair dismissals has been eliminated. The punitive 24-month
ceiling previously set for automatically unfair dismissals remains. The highest compensation an unfairly dismissed employee whose
dismissal is not automatically unfair can now receive is the equivalent of 12 months’ remuneration.
The requirement that, subject to that ceiling, compensation must be ‘just and equitable in all the circumstances’ restores to the
judges and commissioners the discretion that the original s 194 sought to remove, subject to the 12-month ceiling, which may not
be exceeded. 72 The discretion to award compensation must be exercised ‘judicially’. This means that it cannot be quantified by a
mere thumb suck. But a reviewing court will not lightly interfere with the compensation awarded by a commissioner, especially if the
employer’s only objection is to the amount. The employer must show that the commissioner acted capriciously, or upon the wrong
principle, or with bias, or had adopted an incorrect approach.
Compensation is quantified in multiples of the employee’s salary at the time of the dismissal, and includes commission lost as a
result of the dismissal. 73 In principle, the size of the employee’s monthly package is not relevant to estimating compensation.
However, commissioners are bound by the salary the employee was actually earning. If they base compensation on an incorrect
finding of the employee’s actual salary, the award will be subject to review. 74
If the employee’s dismissal was neither for a fair reason nor in accordance with a fair procedure compensation will generally be
awarded. 75 Conversely, employees
4th Ed, 2022, ch 24-p 519
whose dismissals are substantively fair but procedurally unfair may be denied compensation, 76 or their compensation may be
reduced. 77
The LAC has warned against using considerations relevant to the substantive fairness of a dismissal when considering whether
compensation should be granted for procedural unfairness. 78 But the courts will intervene when excessive compensation is granted
to employees responsible for egregious misconduct. 79
Although it accepted that compensation is a solatium for injured feelings, rather than aimed at reimbursing dismissed employees
for their actual loss, the latter consideration may be taken into account in determining just and equitable compensation in
exceptional circumstances. 80
Employees who refused reasonable and unconditional offers of reinstatement may also be denied compensation. 81 This applies
also in cases of automatically unfair dismissals. 82
Judges and arbitrators must take into account all relevant factors when determining compensation, including such factors as the
loss suffered by the employee, whether dismissed employees have mitigated their loss, the flagrancy of the employer’s non-
compliance with the Act, the employer’s attempts to make good the wrong, and general considerations of fairness to the employer
and the employee.
Compensation for unfair dismissal remains sui generis – the equivalent neither of patrimonial damages nor of damages for personal
injury, but a combination of the two. The court has even held that an employee was entitled to compensation even though he was
paid out in full for the balance of his fixed-term contract because he had lost the opportunity to possibly claim a reasonable
expectation that his contract might be renewed. 83
Dismissed employees are not bound to mitigate their loss by seeking alternative employment. 84 But any benefits granted by the
employer – such as notice or severance pay – should be taken into account. For the same reason, employees who have
unreasonably refused settlement offers of unconditional and fully retrospective reinstatement but nevertheless pursue claims for
compensation may be denied any or some relief. 85
4th Ed, 2022, ch 24-p 520
When compensation is awarded to an employee whose dismissal is only procedurally unfair, consideration must be given to the
degree of deviation from the principles of a fair procedure. The court has ruled that, in awarding compensation equivalent to 12
months’ remuneration to an employee who had obstinately refused to acknowledge his poor work performance and had only worked
for the employer for a few months, the arbitrating commissioner had reached a grossly unreasonable conclusion because there was
no evidence that the commissioner had even considered these two factors. 86
Section 195 expressly provides that compensation awarded under s 194 is in addition to, and not a substitute for, any other
amount to which the employee is entitled in terms of any law, collective agreement, or contract of employment. This means that
such amounts cannot be set off against compensation, when the latter is calculated, unless the employer’s claim satisfies the
common-law requirements for set-off. 87
It has been held that employees dismissed prior to the expiry of fixed-term contracts may not be awarded compensation in
excess of the remuneration they would have received had the contract run its course, 88 but need not necessarily receive that
amount. 89 At common law, their claim may not exceed the amount they would have earned for the balance of the contract, or
that of what they would have received for the notice period if the contract could be terminated on notice. 90
Because compensation for unfair dismissal is considered a solatium for an infringement of the employee’s right to be treated
fairly, and therefore a form of personal injury (see above), compensation may be claimed even by an employee whose estate has
been sequestrated. 91 It goes without saying that compensation can be claimed by the executor of the employee’s deceased
estate, or by the employee’s heirs. 92 The same appears to go even for workers who performed illegal work. In ‘Kylie’ v CCMA, 93
the LAC suggested that a dismissed ‘sex worker’ may be entitled to compensation for her unfair dismissal, but left that issue for the
CCMA to decide. That issue was never decided, as the parties settled the matter after the appeal.
4th Ed, 2022, ch 24-p 521
An employer against whom a compensation award is made is entitled to deduct from the amount the tax owing and to pay it over
to SARS. It would be for SARS to determine any dispute over the amount deducted. 94
Although the quantum of compensation is calculated in multiples of the employee’s weekly or monthly remuneration, if the
evidence indicates that the employee is being paid below a prescribed rate, the legal minimum must be used as the basis for the
calculation. 95
Awards of compensation automatically attract interest at the legal rate calculated from the date on which the award was
issued, unless the arbitrator or court specifies otherwise, 96 or the amount of compensation is altered in review, in which case
interest runs from the date of judgment. 97
Where employees are awarded compensation only, the ceilings prescribed by the Act may not be exceeded. Arbitrators must
therefore ensure that ‘imaginative’ remedies do not result in employees receiving more than those amounts. 98
Amounts accepted by employees by way of settlement agreement before their dismissals will generally be deducted from
compensation, 99 unless the court or arbitrator is satisfied that the settlement comprehensively disposed of the dispute, in which
case the employee will not be entitled to any compensation. The court has held that acceptance by employees of severance
benefits does not compromise their right to claim compensation for unfair dismissal. 100 When an employer wrongly terminated an
employee’s fixed-term contract prematurely and immediately after realising its mistake the employer offered to reinstate her
unconditionally and pay her the two months’ salary she had lost in consequence of her unlawful dismissal, the court held that the
employee could not sue for compensation for any more than the amount tendered. 101
An employer may counterclaim for damages caused by a dismissed employee’s misconduct, if the counterclaim and the dismissal
arose from the same set of facts. 102
As pointed out above, claims for compensation awarded for unfair dismissal prescribe after three years. However, if the delay is
occasioned by the employer’s unsuccessful attempts to review the award, or to appeal against the review judgment, the running of
prescription is interrupted. If employers wish to stay the enforcement
4th Ed, 2022, ch 24-p 522
of an award, they must lodge security equal to the amount of compensation awarded. 103
Although the EEA excludes disputes about unfair dismissals from disputes concerning claims for unfair discrimination, 104 the courts
have generally allowed ‘dual’ claims for unfair discrimination as well as for automatically unfair dismissals to be combined in the same
action. 105 The courts have, however, been wary of ‘punishing’ guilty employers excessively by awarding compensation and
damages under the two Acts. 106
3.6 Other orders
Where a dismissal is ruled automatically unfair, or where a dismissal based on the employer’s operational requirements is found to be
unfair, the Labour Court may in terms of s 193(3) ‘in addition . . . make any other order that it considers appropriate in the
circumstances’. At first glance, s 193(3) appears to be open-ended. The courts have not tested the limits of this provision. The
intention behind s 193(3), it seems, is to permit the judges to fashion additional and more general remedies appropriate to these
kinds of dismissals. For example, the court might order the employee to desist in future from practices that give rise to an
automatically unfair dismissal or, in the case of a retrenchment, order the re-employment of the employees at some future date, or
order the employer to enter into a rehiring agreement.
One issue which has not been finally resolved is whether an arbitrating commissioner who decides that dismissal was too harsh a
penalty may reinstate the employee subject to a warning, which is frequently done, or some lesser penalty. Some courts have
taken the view that the imposition of alternative penalties does not fall within the powers of commissioners. 107 But in Engen
Petroleum v CCMA, 108 the LAC held that commissioners may do so.
Section 195 of the LRA provides:
An order or award of compensation made in terms of this C hapter is in addition to, and not a
substitute for, any other amount to which the employee is entitled in terms of any law,
collective agreement or contract of employment.
4th Ed, 2022, ch 24-p 523

An award made in terms of the LRA compensates the employee for an unfair dismissal or an unfair labour practice, which may be
less than the amount the employee could claim for breach of contract. This means that employees may, in addition to such
compensation as they have been awarded under the LRA, claim further amounts to which they may be entitled by law. An obvious
example where a further claim may be possible is the unlawful premature termination of a fixed-term contract of employment.
Depending on the period for which the contract may have run, contractual damages may exceed the ceilings prescribed by s 194,
and may be claimed by a separate civil law action. 109
Claims for unfair dismissal and unfair labour practice are quite distinct from claims for the enforcement of contracts of
employment; the effect of s 195 is that employees may claim both compensation for unfair conduct and damages for breach of
contract, if applicable. This interpretation of s 195 is reinforced by s 37(6) of the BCEA, which states that employees’ entitlement
to payments on termination in terms of that Act do not affect their right to dispute the lawfulness or fairness of their dismissals
under the LRA.
The converse must then also apply: employees may pursue claims for the enforcement of their contracts of employment and
claims for unfair dismissals in the respective forums simultaneously or in sequence, and the employer may not raise a plea of res
judicata in either forum. 110 An unfair dismissal therefore gives rise to two distinct causes of action, each potentially giving rise to
a separate remedy. 111 Whether and to what extent the respective courts will, when qualifying compensation or damages, take
into account compensation afforded by the other remains to be seen. But the Labour Court has expressed reluctance to duplicate
claims when employees rely in unfair dismissal cases on both the LRA and the EEA (see below).
7 See Ethekwini Municipality v Hadebe [2016] 8 BLLR 745 (LAC ), in which the arbitrator provided adequate reasons for choosing compensation. The
converse applied in SARS v CCMA (2017) 38 ILJ 97 (C C ). But in Jonas v CCMA (2017) 38 ILJ 376 (LC ) and Xstrata SA (Lydenburg Alloy Works) v NUM
obo Masha (2016) 37 ILJ 2313 (LAC ) arbitrators were held to have wrongly denied reinstatement.
8 However, even the courts may use the term somewhat loosely: in SACCAWU v Massmart Holdings (2020) 41 ILJ 2403 (C AC ), the C ompetition
Appeal C ourt (C AC ), with a bench of judges experienced in labour law, approved a merger subject to the condition that employees retrenched due to the
merger should be ‘reinstated’ if and when jobs became available in the merged entity. SAC C AWU contended that this entitled employees who were re-
engaged to back pay. The C AC held that the earlier judgment could not have intended to use the term ‘reinstatement’ in its usual sense, but merely to
ensure that employees who had been re-employed would not lose their previous years of service with the merged companies.
9 See Zono v National Commissioner of Correctional Services NO (2020) 41 ILJ 2447 (LAC ). Mr Zono had drawn an amount from his pension
holdings while he challenged his dismissal. He then was reinstated (see Zono v Gruss NO [2011] 9 BLLR 873 (LAC )) but the department informed him
that he had lost about 20 years’ pensionable service. The LAC held that, because he was a member of a defined benefit pension scheme, he could not
force the pension fund or the employer to credit him with years of service accumulated before he withdrew from the scheme.
10 Nel v Oudtshoorn Municipality (2013) 34 ILJ 1737 (SC A).
11 Kubeka v Ni-Da Transport (2021) 42 ILJ 499 (LAC ). This judgment made it clear that it is not the reinstatement order itself which revives the
contract, but the tendering of service. If the employer refuses to reinstate, the proper remedy is to apply to have the employer declared in contempt.
The employees in this case failed because they had chosen to bring their action under the BC EA, which they could not do because they had failed to
tender service.
12 See, for example, Solidarity v ARMSCOR (2019) 40 ILJ 535 (LAC ) and City of Johannesburg v IMATU obo Erasmus (2019) 40 ILJ 1191 (LAC ).
13 SACCAWU v Woolworths (2019) 40 ILJ 87 (C C ).
14 Shoprite Checkers v CCMA (2008) 29 ILJ 2581 (LAC ).
15 Billiton Aluminium SA t/a Hillside Aluminium v Khanyile (2010) 31 ILJ 273 (C C ).
16 SACTWU v Mediterranean Textile Mills (2010) 31 ILJ 2694 (LC ) – but see Mediterranean Textile Mills v SACTWU (2012) 33 ILJ 160 (LAC ). Baba v
GPSSBC (2011) 32 ILJ 2669 (LC ); Visser v Mopani District Municipality (2012) 33 ILJ 321 (SC A).
17 Koko v Greater Tubatse Municipality (2021) 42 ILJ 1019 (LAC ).
18 (2010) 31 ILJ 139 (LC ).
19 For a good example, see Fidelity Security Services v Ngqola (2022) 43 ILJ 1611 (LAC ).
20 Section 193(2), discussed below.
21 Themba v Mintroad Sawmills (2015) 36 ILJ 1355 (LC ); NUM v Seriti Coal t/a New Vaal Colliery (2021) 42 ILJ 2291 (LC ).
22 Ludick v Vodacom (2021) 42 ILJ 2621 (LC ).
23 See, for example, Coca-Cola v Ngwane NO (2013) 34 ILJ 3155 (LC ).
24 Maroveke v Talane NO (2021) 42 ILJ 1871 (C C ).
25 IMATU obo Erasmus v City of Johannesburg (2013) 34 ILJ 1741 (LC ).
26 Kubeka v Ni-Da Transport (2021) 42 ILJ 499 (LAC ). Where the employer refused to reinstate, the correct procedure would be to launch
contempt proceedings and later claim the back pay by action under the BC EA.
27 See, for example, Basson v Cecil Nurse (2001) 22 ILJ 673 (LC ); Scholtz v Sacred Heart College (2001) 22 ILJ 722 (LC ); Van Niekerk v Cheque
Guarantee Services (2001) 22 ILJ 728 (LC ).
28 Sithole v Ingwe Collieries (2005) 26 ILJ 2136 (T).
29 See ‘Kylie’ v CCMA (2010) 31 ILJ 1600 (LAC ).
30 See Jeremiah v National Sorghum Breweries (1999) 20 ILJ 1055 (LC ), in which the reinstated employee sought an order prohibiting the
employer from transferring him, a decision made about five weeks after his reinstatement. The court held: ‘An order of reinstatement does not operate
in perpetuity in the sense that the employer is permanently deprived of its pre-existing rights to redeploy the employee or amend his working conditions
in accordance with the original contract.’ See also IMATU obo Pillay and eThekweni Municipality (2006) 27 ILJ 627 (BC A).
31 Tshenolo Waste v Sekgoro (2021) 42 ILJ 2693 (LC ).
32 Dierks v UNISA (1999) 20 ILJ 1227 (LC ). This case involved the termination of a fixed-term contract. The court held, somewhat controversially,
that it could not reinstate an employee in a permanent position after the non-renewal of a fixed-term contract.
33 See National Commissioner of the SAPS v Myers (2012) 33 ILJ 1417 (LAC ); Myers v National Commissioner of the SAPS (2013) 34 ILJ 1729
(SC A); National Commissioner of the SAPS v Myers (2018) 39 ILJ 1965 (LAC ).
34 Pillay v Santam (2020) 41 ILJ 2695 (LC ); DG: Office of the Premier of the Western Cape v SAMA obo Broens (2011) 32 ILJ 1077 (LC ).
35 Zilwa Cleaning & Gardening Services v CCMA (2010) 31 ILJ 780 (LC ).
36 See C hapter 4.
37 As occurred in DAFF v Baron (2019) 40 ILJ 2290 (LAC ).
38 See Genrec Engineering v MEIBC (2016) 37 ILJ 2649 (LC ).
40 NUMSA obo Fohlisa and 41 others v Hendor Mining Supplies (a Division of Marschalk Beleggings) (2017) 38 ILJ 1560 (C C ).
41 Mashaba v Telkom SA (2020) 41 ILJ 2437 (LAC ).
42 See, for example, Mntambo v Piotrans (2021) 42 ILJ 2298 (GJ).
43 Consolidated Frame Cotton Corporation v President of the Industrial Court; Consolidated Woolwashing & Processing Mills v President of the
Industrial Court 1986 (3) SA 786 (A).
44 Johnson Matthey v NUMSA (2012) 33 ILJ 2420 (LC ).
46 Mzeku v VWSA (2001) 22 ILJ 1575 (LAC ) at 1602.
47 But an order of specific performance is by no means a foregone conclusion if the employer can prove that the employment relationship has
broken down: see, for example, Mntambo v Piotrans (2021) 42 ILJ 2298 (GJ).
48 See Ngubeni v National Youth Development Agency (2014) 35 ILJ 1356 (LC ).
49 Mthethwa v CCMA (2022) 43 ILJ 1786 (LAC ).
50 Sibiya v SAPS (2022) 43 ILJ 1805 (LAC ).
51 (2013) 34 ILJ 996 (LC ).
52 Before in the VWSA judgment, the Labour C ourt held, for example, that reinstatement should never be ordered when a dismissal was only
procedurally unfair and the offence involved dishonesty: Malelane Toyota v CCMA [1999] 6 BLLR 555 (LC ). This approach seems to have been confirmed
by the LAC where the employee was dishonest, even in cases where the dismissal was found to have been substantively unfair: Boxer Superstores v
Zuma (2008) 29 ILJ 2680 (LAC ). In some cases, employees have been denied reinstatement because of unflattering remarks made about their
managers in arbitration or subsequent proceedings: see, for example, Dunwell Property Services v Sibande (2011) 32 ILJ 2652 (LAC ). But see Shoprite
Checkers v CCMA [2008] 12 BLLR 1211 (LAC ).
53 Jonas v CCMA (2017) 38 ILJ 376 (LC ).
54 Xstrata SA (Lydenburg Alloy Works) v NUM obo Masha (2016) 37 ILJ 2313 (LAC ), in which the court applied a strict meaning to the word
‘impracticable’.
55 Xaxa v Cokile NO (2021) 42 ILJ 1791 (LC ).
56 (2021) 42 ILJ 2565 (LAC ).
57 FAWU obo Kapesi v Premier Foods t/a Blue Ribbon Salt River (2012) 33 ILJ 1779 (LAC ); Glencore v Sibeko (2018) 39 ILJ 138 (LAC ); VSB
Construction t/a Techni-Civils (discussed below).
58 (2022) 43 ILJ 91 (C C ).
59 This case may well have overruled Afgen v Ziqubu (2019) 40 ILJ 2276 (LAC ) and Standard Bank of SA v Leslie (2021) 42 ILJ 1080 (LAC ), in
which the court declined to reinstate employees who had been found not guilty of the charges for which they were dismissed because the employment
relationship had broken down.
60 Lubbe v Roop NO (2012) 33 ILJ 1695 (LC ).
61 SARS v CCMA (2017) 38 ILJ 97 (C C ) (unrepentant racist); Moodley v Department of National Treasury (2017) 38 ILJ 1098 (LAC ) (employee
guilty of not following procurement policies); Booysen v SSSBC (2021) 42 ILJ 1192 (LAC ) (employee admitting to statutory rape).
62 Maepe v CCMA (2008) 29 ILJ 2189 (LAC ) (commissioner lying under oath in arbitration proceedings concerning his dismissal); Buthelezi v
ABI (1999) 20 ILJ 2316 (LC ) (employee publishing article in media after dismissal disparaging employer); Matsekoleng v Shoprite Checkers [2013] 2
BLLR 130 (LAC ) (employee behaving badly during arbitration proceedings concerning his own dismissal).
63 (2018) 39 ILJ 138 (LAC ).
64 This is how the court interpreted Maepe v CCMA (2008) 29 ILJ 2189 (LAC ).
65 See also Sibeko v Xstrata Coal SA (2016) 37 ILJ 1230 (LC ), which anticipated Glencore Holdings, which was followed and applied in NUM obo
Mngqola v VSB Construction t/a Techni-Civils [2018] 7 BLLR 700 (LC ), in which the employee was dismissed for accusing his employer of being racist.
See also SAMWU v Ethekwini Municipality [2019] 1 BLLR 46 (LAC ) and Afgen v Ziqubu (2019) 40 ILJ 2276 (LAC ).
66 (2021) 42 ILJ 2407 (LAC ).
67 Tlou v CCMA (2020) 41 ILJ 1445 (LC ), relying on Edcon v Pillemer (2009) 30 ILJ 2642 (SC A).
68 Xstrata SA (Lydenburg Alloy Works) v NUM obo Masha (2016) 37 ILJ 2313 (LAC ).
69 (2019) 40 ILJ 535 (LAC ).
70 Alert Employment Personnel v Leech (1993) 14 ILJ 655 (LAC ); Foodpiper t/a Kentucky Fried Chicken v Shezi (1993) 14 ILJ 126 (LAC ).
71 Section 194 as amended by s 48 of Act 12 of 2002.
72 Except in the form of back pay coupled with an order of retrospective payment (see above). An award of five years’ compensation for an
employee who was found to have been unfairly denied renewal of his contract for that period was set aside because the commissioner had exceeded his
powers by granting more than the statutory maximum: UNISA v Stapelberg NO (2019) 40 ILJ 2610 (LC ).
73 Zapop v CCMA (2016) 37 ILJ 1882 (LAC ). C ommission is calculated on the basis of the earnings received over the 13 weeks preceding the
dismissal: s 35(4) of the BC EA.
74 Solidarity obo Bouwer v Arivia t/a Arivia.kom (2010) 31 ILJ 2730 (LC ).
75 Group 6 Security Services v Moletsane NO (2005) 26 ILJ 1693 (LC ).
76 See, for example, Transnet v CCMA (2008) 29 ILJ 1289 (LC ), in which the court held on review that a commissioner’s decision to award a
dismissed employee the equivalent of six months’ wages for alleged procedural unfairness was absurdly inflated. Had the commissioner had regard to
the seriousness of the employee’s misconduct (he had savagely assaulted his wife at the workplace in the presence of his children) he would have
awarded no compensation.
77 Seardel Group t/a Cape Underwear Manufacturers v SATAWU [2009] 10 BLLR 1219 (LC ).
78 SAMA obo Pietz v DOH, Gauteng (2017) 38 ILJ 2297 (LAC ).
79 McGregor v PHSDSBC (2021) 42 ILJ 1643 (C C ).
80 Total SA v Meyer (2021) 42 ILJ 1696 (LAC ).
81 Rawlins v Kemp t/a Centralmed (2010) 31 ILJ 2325 (SC A); Setcom v Dos Santos (2011) 32 ILJ 1434 (LC ). The offer must obviously be made in
good faith, which was found not to be the case in Ocean Basket Airport v BCRCAT (2013) 34 ILJ 1569 (LC ).
82 See Heath v A & N Paneelkloppers (2015) 36 ILJ 1301 (LC ), in which the court found that Ms Heath’s dismissal for falling pregnant was
egregiously unfair, but because the employee offered to reinstate her unconditionally, the compensation she would otherwise have received (24 months’
salary) was cut to six months.
83 PSA obo Mbiza v Office of the Presidency (2014) 35 ILJ 1628 (LC ).
84 Foodpiper t/a Kentucky Fried Chicken v Shezi (1993) 14 ILJ 126 (LAC ) at 136C .
85 Kemp t/a Centralmed v Rawlins (2009) 30 ILJ 2677 (LAC ).
86 Brolaz Projects v CCMA (2008) 29 ILJ 2241 (LC ).
87 Viljoen v Nketoana Municipality (2003) 24 ILJ 437 (LC ); Penny v 600 SA Holdings (2003) 24 ILJ 967 (LC ). The requirements for a plea of set-off
are: (1) the parties must be mutually indebted to each other; (2) both debts must be liquidated and of the same nature; and (3) both debts must be fully
due and legally enforceable.
88 Billion Group v Mosheshe (2018) 39 ILJ 368 (LAC ); Jorgensen v I Kat Computing (2018) 39 ILJ 785 (LAC ); Tshongweni v Ekhuruleni Metropolitan
Municipality (2010) 31 ILJ 3027 (LC ).
90 Morgan v CUT, Free State (2013) 34 ILJ 938 (LC ).
91 That is, the claim need not be made by the trustee of the insolvent estate: see Viljoen v Nketoana Municipality (2003) 24 ILJ 437 (LC ). This
means that the trustee may either enforce an award of compensation or pursue the action itself on behalf of the deceased employee: Manashewitz and
Salvage Core (2000) 21 ILJ 1453 (C C MA).
92 Estate late WG Jansen van Rensburg v Pedrino (2000) 21 ILJ 494 (LAC ).
93 (2010) 31 ILJ 1600 (LAC ).
94 Penny v 600 SA Holdings (2003) 24 ILJ 967 (LC ). The Labour C ourt will not determine the amount of tax payable: LSRC & Associates v
Blom (2011) 32 ILJ 2685 (LC ). But whether compensation paid in terms of a settlement agreement is a proper subject for arbitration: Maasz and Fidelity
Security Services (2011) 32 ILJ 2825 (C C MA).
95 Majola and Moonsamy (2004) 25 ILJ 153 (C C MA).
96 Top v Top Riezen (2006) 27 ILJ 1948 (LC ).
97 Malatji v Minister of Home Affairs (2018) 39 ILJ 2684 (LAC ).
98 See, for example, Kwadukuza v SALGBC (2009) 30 ILJ 356 (LC ).
99 As was the case in Zeda Car Leasing t/a Avis Fleet v Van Dyk (2020) 41 ILJ 1360 (LAC ).
100 NASAWU v Pearwood Investments t/a Wolf Security (2009) 30 ILJ 1852 (LC ).
101 Motaung v Wits University (School of Education) (2014) 35 ILJ 1329 (LC ).
102 Rand Water v Stoop (2013) 34 ILJ 576 (LAC ). The LAC remitted the matter to the Labour C ourt to determine both the unfair dismissal dispute
and the counterclaim. That court found in Stoop v Rand Water (2014) 35 ILJ 1391 (LC ) that Stoop and his colleague Buckle had indeed defrauded Rand
Water of the amount claimed, and ruled that they were jointly and severally liable to repay about R8 million. In an attempt to evade that order, Stoop
had withdrawn his unfair dismissal dispute. But Buckle’s dismissal was ruled fair and he was ordered to pay the costs of his unfair dismissal claim on a
punitive scale.
103 Section 145(8)(b).
104 Section 10(1).
105 Simmadari v Absa Bank (2018) 39 ILJ 1819 (LC ).
106 See ARB Electrical Wholesalers v Hibbert (2015) 36 ILJ 2989 (LAC ); SAA v Jansen van Vuuren (2014) 35 ILJ 2774 (LAC ); Rapoo v Rustenburg
Local Municipality [2020] 6 BLLR 533 (LAC ).
107 See, in particular, Rustenburg Platinum Mines (Rustenburg Section) v CCMA (2006) 27 ILJ 2076 (SC A).
108 (2007) 28 ILJ 1507 (LAC ) at [142]. In the light of the fact that the SC A’s judgment was entirely overturned by the C onstitutional C ourt in
Sidumo v Rustenburg Platinum Mines (2007) 28 ILJ 2405 (C C ), the LAC ’s ruling in this respect in Engen is probably binding.
109 See the remarks of the majority in Fedlife Assurance v Wolfaardt (2001) 22 ILJ 2407 (SC A).
110 Makhanya v University of Zululand (2009) 30 ILJ 1539 (SC A).
111 However, an employee seeking to enforce a claim under contract must prove that a term of the contract has been breached. It is no longer
enough to simply state that a duty to act fairly is an implied or tacit term of the contract, because the SC A has ruled that it is not: see SAMSA v
McKenzie 2010 (3) SA 601 (SC A), discussed in Grogan Labour Litigation and Dispute Resolution 3 ed (Juta 2019) C hapter 5. But where the contract
contains an express term that the employee is entitled to a hearing or to be dismissed only for a valid reason, a civil action remains open to the
employee: see Denel v Vorster (2004) 25 ILJ 659 (SC A). Despite SAMSA, therefore, those employees whose contracts incorporate disciplinary codes or
incorporate the provisions of the LRA can still sue for breach of contract if they are unfairly dismissed.
Consequential damages are losses over and above the loss of the employee’s remuneration – for example, wasted relocation costs
or costs incurred as a result of the repossession of the employee’s property or the cancellation of insurance policies as a result of
the employee’s inability to make repayments or pay premiums. Section 194 does not expressly limit compensation to multiples of the
employee’s salary or wages. But the ceilings on compensation suggest that the legislature did not intend the Labour Court to grant
consequential damages to dismissed employees. Moreover, s 195 (see above) suggests that consequential damages should be
sought
4th Ed, 2022, ch 24-p 524
by way of civil action. However, the Labour Court may, subject to the statutory ceilings, grant higher compensation to an
employee who has suffered significant prejudice or inconvenience due to the dismissal.
Unlike the LRA, the EEA expressly grants the Labour Court power to award damages to employees who have been victims of
unfair discrimination. It has done so in a number of cases. 112 Although the EEA expressly excludes unfair dismissals from the
definition of ‘dispute’ in that statute, the Labour Court has in one case awarded an employee whose dismissal was found to have
been based on discrimination both compensation under the LRA and damages under the LRA. 113 The court went even further in
Ditsamai v Gauteng Shared Services Centre: 114 it held that an employee who had already been awarded compensation for unfair
dismissal may bring a subsequent separate action for damages under the EEA, even though the damages claim arose from his
dismissal. These decisions are questionable. Section 10(1) of the EEA is clearly intended to prevent duplication of claims under both
Acts arising from the same set of facts.
Nothing prevents an employee from claiming relief under the LRA as well as damages for breach of contract under the common
law if the facts of the dismissal justify claims under both heads. 115 Indeed, as the court pointed out in PE v Dr Beyers Naude
Local Municipality, 116 a claim for damages under the common law may be more advantageous because the common law provides
no cap on damages. The employee in that case received about R4 million in damages for trauma resulting from sexual harassment
which caused her to resign from the municipality because the culprit had not been dismissed.
Claims for damages in delict arise when an individual is able to prove that the defendant has breached a patrimonial right or a
right of personality. It may well transpire that a particular act of an employer infringes an employee’s ‘labour’ or ‘employment’ right
as well as a right protected by the law of delict, or perhaps only the latter. In such cases, nothing prevents the employee from
suing for damages that cannot be recovered under the appropriate labour legislation, except where a claim lies under the
Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA). 117
Where an employer defames a dismissed employee, a claim would lie in a civil court. However, where the defamation occurs in
circumstances that give rise to a
4th Ed, 2022, ch 24-p 525
defence of qualified privilege, such claims will not succeed – as the respondent learned in Clover SA v Sintwa. 118
The High Court has also held, in principle, that a statutory employer may be liable for damages for ‘malicious prosecution’ for
instituting unwarranted disciplinary action against an employee. 119 Where an employee has been reinstated with back pay the
situation appears to be different. Mr Kutu was not content with that relief and sued the official who had instituted the disciplinary
action, claiming R1 million in damages for malicious prosecution and R500 000 for loss of income arising from his suspension and
dismissal. The High Court accepted that action for malicious prosecution may be pursued by unfairly dismissed employees, but
noted that Kutu had not been arrested and criminal charges had not been laid against him. Kutu had had full recourse to the
procedures provided by the LRA, and had been awarded compensation. The court held that this was not a matter in which the High
Court had concurrent jurisdiction with the Labour Court. The action was struck from the roll. 120
Except where expressly provided for by statute, the Labour Court lacks jurisdiction to entertain common-law delictual actions.
112 See, for example, Ntsabo v Real Security (2003) 24 ILJ 2341 (LC ); SATAWU obo Finca v Old Mutual Life Assurance C o (SA) (2006) 27 ILJ 1204
(LC ); Piliso v Old Mutual Life Assurance Co (SA) (2007) 28 ILJ 897 (LC ).
113 Evans v Japanese School of Johannesburg (2006) 27 ILJ 2607 (LC ). In Christian v Colliers Properties (2005) 26 ILJ 234 (LC ) the court held
that, where an employee claims both compensation for an automatically unfair dismissal and damages for harassment, the compensation should be
taken into account when qualifying the damages.
114 (2009) 30 ILJ 2072 (LC ).
115 Parry v Astral Operations (2005) 26 ILJ 1479 (LC ); Dial Tech v Hudson (2007) 28 ILJ 1237 (LC ). Additional relief may be sought in either the
High C ourt or the Labour C ourt.
116 (2021) 42 ILJ 1545 (EC G).
117 In such cases, actions against the employer are expressly excluded by the C OIDA: see s 35(1) and Grogan Employment Rights 3 ed (Juta
2019) C hapter 14.
118 (2017) 38 ILJ 350 (EC G).
119 Mahlangu v Minister of Police (2017) 38 ILJ 1749 (GP).
120 See Kutu v Minister, Department of Justice & Correctional Services (2021) 42 ILJ 2489 (MM).
5. Severance pay 121

The amount of severance pay to which an employee is entitled is regulated by s 41(2) of the BCEA. This provides that employees
dismissed for operational requirements are entitled to severance pay equal to one week’s remuneration for each year of continuous
service with the retrenching employer, even if the dismissal is fair in all respects. Severance pay is discussed in Chapter 18.
Acceptance of severance pay does not necessarily amount to a waiver of an employee’s right to pursue an unfair dismissal
action. 122
121 The entitlement to severance pay is also discussed in C hapter 18.

122 Roberts v WC Water Comfort (1999) 4 LLD 117 (LC ); Decision Surveys International v Dlamini (1999) 4 LLD 300 (LAC ). On severance pay
generally, see further C hapter 18.

The amount an employee can claim for damages for unlawful breach or repudiation of contract depends on the nature of the
contract. If the contract is for a fixed period, it may be terminated by the employer only if the employee is in material breach. If
the contract is unlawfully terminated by the employer before the termination date, the employee may claim the equivalent of the
amount he or she would have earned between the date of termination and the date the contract would otherwise have expired,
less any earning he received, or might have received
4th Ed, 2022, ch 24-p 526
with reasonable diligence. 123 However, even when a fixed-term contract has been unlawfully terminated, the employee must still
plead and prove the actual damages; the employee is not automatically entitled to the salary he or she would have earned had the
contract run its course. 124
If the contract is for an indefinite period – ie provides for no termination date save that of retirement – the most the employee
may claim is the equivalent of the notice pay he or she would have received had the required notice been given, even if the
termination was unlawful for breach of some other provision of the contract. The employee may, however, claim ‘specific
performance’, which is the equivalent of reinstatement (see above).
123 Fedlife Assurance v Wolfaardt (2001) 22 ILJ 2407 (SC A), confirmed in Buthelezi v Municipal Demarcation Board (2004) 25 ILJ 2317 (LAC ).
Transposed to the context of labour law, the latter judgment is controversial in so far as it suggests that employers may not even retrench employees on
fixed-term contracts.
124 SAFA v Mangope (2013) 34 ILJ 311 (LAC ); KZN Tourism Authority v Wasa (2016) 37 ILJ 2581 (LAC ).
Dismissal / Chapter 25 Costs in dismissal matters
Chapter 25
Costs in dismissal matters
4th Ed, 2022, ch 25-p 527
1. Introduction
2. Labour Court
5. The civil courts
1. Introduction
In civil courts, the normal rule relating to costs is that unsuccessful parties must pay the costs of their legal representatives plus
the costs of the successful party. The scale of fees depends on the status of the court and the way the unsuccessful parties, or
their representatives, have conducted the proceedings. The normal rule that costs follow the result may inhibit parties from
approaching the courts, as an adverse costs order could be ruinous to a person of little or even average means. This is why special
provision is made for costs orders by labour tribunals. In this chapter the provisions regulating orders of costs by the Labour Court
and the CCMA are explained.
2. Labour Court
The Labour Court, which is a court of law and equity, 1 may make orders for the payment of costs ‘according to the requirements
of the law and fairness’. 2 The considerations the Labour Court must take into account when deciding whether to make an order for
costs are set out in s 162(2). They are:
(a) whether the matter referred to the C ourt ought to have been referred to
arbitration in terms of this Act and, if so, the extra costs incurred in referring the
matter to the C ourt; and
(b) the conduct of the parties—
(i) in proceeding with or defending the matter before the C ourt; and
(ii) during the proceedings before the C ourt.
4th Ed, 2022, ch 25-p 528

The provision that the court may grant costs orders ‘according to the requirements of the law and fairness’ echoes the wording of s
17(12)(a) of the 1956 LRA, which regulated the industrial court’s power to make costs orders. The only difference was that the
industrial court was required to make such orders ‘in accordance with law and fairness’. The inclusion of the definite article before
the word ‘law’ in the current Act has been held to be inconsequential; the Labour Court has adopted much the same approach as
that followed by the courts under the 1956 Act. 3
The meaning of the phrase ‘according to the requirements of law and fairness’ in the 1956 LRA was examined in NUM v East Rand
Gold & Uranium Co, 4 in which the Appellate Division of the former Supreme Court held with reference to the industrial court that
the idea that ‘the requirements of the law and fairness’ must be taken into account is consistent with the role of a court in which
both law and fairness are to be applied. Proceedings in the industrial court were frequently a part of a conciliation process and
parties, particularly individual employees, should not be discouraged from approaching the court. Consideration should be given to
avoiding costs orders where there is a genuine dispute and the approach to the court was not unreasonable. The industrial court
should have been easily accessible to litigants who suffer the effects of unfair labour practices. The court also pointed out that
parties in labour disputes will often have ongoing relationships that will survive after the dispute has been resolved, which may be
damaged by costs orders. The court stressed that these considerations were not a closed list and that the court retained a ‘very
wide discretion’ when it came to costs.
The drafters of the current LRA took these considerations into account when drafting s 162. At first glance, they might seem to
encourage a ‘pro-employee’ stance when it comes to costs. On the contrary, the courts have stressed that fairness in the labour
context requires regard to be had to the interests of both employees and employers; after all employers are also prejudiced by
having to pay the costs of defending unsuccessful actions. 5
The balance attempted to be struck in these judgments may have been upset by the Constitutional Court. In Zungu v Premier of
the Province of KZN, 6 the highest court confirmed that the general rule that costs follow the result is not the norm in Labour and
Labour Appeal Court proceedings, but that the opposite should generally apply. Noting that the LRA empowers the labour courts to
grant costs ‘in accordance with the law and fairness’, the court held that the prospect of adverse costs orders should not deter
employees from pursuing legitimate claims. Costs orders had been granted against Ms Zungu in both the Labour and Labour Appeal
Courts after each found that former court lacked jurisdiction to arbitrate her claim. The Constitutional Court agreed that the further
appeal lacked prospects of success on the merits, but nonetheless found that the courts below had not exercised their discretion in
respect of costs judicially because neither court had justified its costs
4th Ed, 2022, ch 25-p 529
orders. These orders were replaced with orders that each party should bear their own costs in all proceedings, including the final
appeal. The court followed the same approach in Long v SAB, 7 and emphatically confirmed it in UPSCO v SACM. 8 In that judgment
the court set two requirements for costs orders, namely that the labour courts must (1) give reasons for decisions to grant costs
orders and (2) apply their minds to the dictates of the fairness standard in s 162 and the constitutional and statutory imperatives
that underpin it. A curt statement that the judge ‘could find no reason for costs not to follow the result’ is not good enough. The
Constitutional Court did not indicate the kinds of reasons that would justify costs orders. However, even the highest court will not
haver against granting costs against employers who abuse the judicial process to resist reinstating deserving employees. In
Municipal Manager OR Tambo District Municipality v Ndabeni, 9 the court ordered the municipality to pay costs on a punitive scale
because it had failed to implement a valid court order and dragged the respondent employee, an unemployed woman, through five
courts in six years to resist an order that she be reinstated to a permanent position in the municipality’s employ, which the
municipality had been ordered to do by the High Court.
Some judges have held that these judgments all but preclude the Labour Court from making costs orders against unsuccessful
employees. But this cannot be the effect of these judgments; not even the Constitutional Court can deprive the Labour Court of its
statutory discretion to award costs in appropriate cases. 10
Just as the factors listed in East Rand Gold & Uranium do not purport to be exhaustive, so the factors mentioned in the LRA are
not the only considerations to which the court may have regard. The special mention of matters that arrive before the Labour
Court when they should have been referred to arbitration is apparently designed to discourage parties from resorting to the more
costly of the two forums provided for by the Act, when the more economical forum is available. 11 The conduct of the parties in
proceeding with or defending the matter, or during the proceedings, is a standard consideration. Conduct justifying an adverse
costs order includes the pursuit or defence of a matter when there are no prospects of success, the earlier refusal of a reasonable
settlement offer, the wilful ignoring of the statutory dispute-resolution procedure, delays and unnecessary postponements, and the
making of unfounded accusations. 12
Where a trade union appears as a party to a dispute, rather than in a purely representative capacity, it may be joined in a costs
order. 13 And when representatives are guilty of misconduct, they may be ordered to pay costs de bonis propriis. This includes
legal representatives and trade union officials. 14 In one case the court ruled that officials responsible for an unlawful dismissal
should make representations as to why the responsible managers should not pay the costs out of their own pockets. 15 Where an
employee launched contempt proceedings knowing full well that the court order had been complied with, a punitive costs order was
held warranted because his aim was simply to harass the employer. 16
Since there is no scale of fees for taxation of costs for appearances in the Labour Court, rule 48 of the Uniform Rules of the High
Court applies. However, the court
4th Ed, 2022, ch 25-p 530
has warned that sight should not be lost of the fact that the legislature intended to provide means of resolving labour disputes less
costly than proceedings in the High Court. The primary consideration should be the complexity of the matter and the degree of
specialisation required of the legal representative. 17 In one case, the Labour Court granted costs in favour of a dismissed
employee who had represented herself in an appeal because she was a qualified advocate and was accordingly entitled to a fee for
her legal expertise. 18
1 Section 151(1).
2 Section 162(1).
3 Callguard Security Services v TGWU (1997) 18 ILJ 380 (LC ).
4 (1991) 12 ILJ 1221 (A).
5 Van Rensburg v Austen Safe Co (1998) 19 ILJ 158 (LC ), following Consolidated Frame Cotton Corporation v The President, Industrial Court (1986)
7 ILJ 489 (A) and NUMSA v Vetsak Co-operative (1996) 17 ILJ 455 (A).
6 (2018) 39 ILJ 523 (C C ).
7 (2019) 40 ILJ 965 (C C ).
8 (2021) 42 ILJ 2371 (C C ).
9 (2022) 43 ILJ 1019 (C C ).
10 See, for example, Moses v CCMA (2019) 40 ILJ 2371 (LC ), in which the court granted costs against the employee, who persisted with a
particularly hopeless case.
11 This is precisely what Ms Zungu did.
12 See, for example, Lamprecht v Pienaar Bros [1998] 6 BLLR 608 (LC ) at 612.
13 Simelane v Letamo Estate (2007) 28 ILJ 2053 (LC ).
14 See Moloi v Euijen NO (1997) 18 ILJ 1372 (LC ), in which a union official who launched an unfounded attack on a commissioner’s integrity was
ordered to pay the costs of the action.
15 Solidarity v SABC (2016) 37 ILJ 2888 (LC ). They were ultimately ordered to do so.
16 Pillay v Santam (2020) 41 ILJ 2695 (LC ).
17 Sibisi v Ganpath (2003) 24 ILJ 857 (LC ).
18 Bester v SEFA (2020) 41 ILJ 877 (LAC ).

The grounds on which CCMA and bargaining council arbitrators may order costs against a party in arbitration proceedings are even
more limited. Prior to amendments to the LRA in 2002, commissioners were permitted to award costs against a party only if that
party, or a person representing him or her, ‘acted in a frivolous or vexatious manner’ by proceeding with or defending the dispute
during the arbitration proceedings. 19
Parties act frivolously by pursuing a matter which they should have known was futile. 20 Vexatious conduct is conduct
calculated merely to cause annoyance to or calculated to insult the other party. The latter may include uncivil, obstructive or
unethical conduct during the hearing. While it is not clear from the Act whether the CCMA can award costs to reimburse a party for
travel and time lost and other expenses incidental to the arbitration, the CCMA Rules appear to make allowance only for the
recovery of costs incurred on legal representatives or for the calling of witnesses. 21
The CCMA is also empowered to make costs orders ‘according to the requirements of the law and fairness’ and in accordance
with the CCMA Rules. For the meaning of the phrase ‘requirements of the law and fairness’, see the previous section. Costs may not
be ordered against a party simply because they do not attend proceedings. 22 And neither the CCMA nor bargaining councils have
power to make punitive costs orders. 23
Under the original s 140(2), the CCMA was empowered to order employers to pay the costs of the arbitration (as opposed to the
other party) if a dismissal was found to be procedurally unfair. 24 This provision has been removed. Costs of the arbitration
proceedings may now be ordered only if the commissioner finds that the CCMA is performing a dispute-resolution exercise that a
party should have performed itself. 25
4th Ed, 2022, ch 25-p 531
Neither the CCMA nor bargaining councils have competence to award costs on a punitive scale. 26
19 Section 138(10).
20 Luthuli v Flortime (1988) 9 ILJ 287 (IC ).
21 Rule 14.
22 Le Roux and AMC Parts (2007) 28 ILJ 1881 (BC A).
23 Okhahlamba Local Municipality v Mabuya (2022) 43 ILJ 198 (LC ).
24 This provision was rarely used.
25 Section 147.
26 Okhahlamba Local Municipality v Mabuya (2022) 43 ILJ 198 (LC ).
An arbitrator appointed under the Arbitration Act 42 of 1965 may award costs against one or more parties to the arbitration on
application by one of the parties. 27 However, arbitrators may not award costs if they are precluded by the arbitration agreement
from so doing and, if the agreement allows for an order of costs, the order may be granted only on the grounds expressly or
impliedly specified in the agreement. 28
27 Arbitration Act s 35(2).

28 On costs in arbitration proceedings, see Butler & Finsen Arbitration in South Africa (Juta 1993) 276–85. The issue of costs is considered in
greater detail in Grogan Labour Litigation and Dispute Resolution 3 ed (Juta 2019) C hapters 7, 8, 12 and 13.
5. The civil courts
The invariable rule in the civil courts is that ‘costs follow the result’, ie that the losing party pays the other’s taxed costs. This is a
common-law principle and no statutory rule exists in regard to costs. 29 An examination of the law of costs in the civil courts is
beyond the scope of this work.
29 However, costs are discretionary in the High C ourt. It remains to be seen whether judges will be influenced by the approach adopted in UPSCO
v SACM (2021) 42 ILJ 2371 (C C ) – see above.
Dismissal / Table of cases
Table of cases
0-9 A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
0-9
4th Ed, 2022, p 532
21st Century Life v Nombewu (2019) 40 ILJ 1493 (LAC)
— 40
A
AA Ball v Kolisi (1998) 19 ILJ 795 (LC)
— 501
Aarons v University of Stellenbosch (2003) 24 ILJ 1123 (LC)
— 71, 123, 158
ABC Powertech Transformers v Centre for Dispute Resolution, MEIBC (2007) 28 ILJ 1232 (LC)
— 195
Abdullah v Kouga Municipality (2012) 33 ILJ 1850 (LC)
— 56
Abeldas v Woolworths [1995] 12 BLLR 20 (IC)
— 259, 346
Abels and Dialogue Group (2009) 30 ILJ 2167 (CCMA)
— 358
Aberdeen Senior Secondary School v MEC, Department of Education, Eastern Cape Province (2011) 32 ILJ 871 (ECB)
— 504
ABI v Jonker (1993) 14 ILJ 1232 (LAC)
— 448
Abrahams / Rapitrade 64 t/a Concept Creations [2007] 6 BALR 501 (BCFMI)
— 23
Abrahams v Pick ’n Pay Supermarkets (OFS) (1993) 14 ILJ 729 (IC)
— 207
ABSA Bank v Naidu (2015) 36 ILJ 602 (LAC)
— 180
Ackron v Northern Province Development Corporation (1998) 3 LLD 403 (LC); [1998] 9 BLLR 916 (LC)
— 42
Acrylic Products v CWIU [1997] 4 BLLR 370 (LAC)
— 226
ACTWUSA v African Hide Trading Corporation (1989) 10 ILJ 475 (IC)
— 487
ACTWUSA v JM Jacobsohn (1990) 11 ILJ 107 (IC)
— 194, 274
Adcock Ingram Critical Care v CCMA (2001) 22 ILJ 1799 (LAC)
— 112, 207, 209, 226, 322–323
Adcock Ingram Healthcare v GIWUSA obo Khumalo [2020] 2 BLLR 162 (LC)
— 235
Adcock Ingram Healthcare v Zinyana (2020) 41 ILJ 2165 (LC)
— 358
Administrative & Technical Association of SA v Free State Consolidated Gold Mines (Operations) [1987] 11 BLLR 1397 (LAC)
— 238
Administrator, Natal v Sibiya 1992 (4) SA 532 (A)
— 3, 382
Administrator, Orange Free State v Mokopanele (1990) 11 ILJ 963 (A)
— 3, 482
Administrator, Transvaal v Zenzile 1991 (1) SA 21 (A)
— 3, 483
Administrator of the Transvaal v Traub (1989) 10 ILJ 823 (A)
— 3, 46, 57
AECI Explosives (Zomerveld) v Mambalu (1995) 16 ILJ 1505 (LAC)
— 106, 332, 354, 355
Afgen v Ziqubu (2019) 40 ILJ 2276 (LAC)
— 516
Afrisix t/a Afri Services v Wabile NO (2014) 35 ILJ 668 (LC)
— 193
Afrox Healthcare v CCMA (2012) 33 ILJ 1381 (LAC)
— 339
Afrox v NBCCI (2006) 27 ILJ 1111 (LC)
— 265
Agricultural Research Council v Ramashowana NO (2018) 39 ILJ 2509 (LC)
— 70
Airey v GE Security Africa (2009) 30 ILJ 1068 (LC)
— 409
Air Products v CWIU (1998) 3 LLD 54 (LAC)
— 226, 441–443
Albany Bakeries v Van Wyk (2005) 26 ILJ 2142 (LAC)
— 67, 69
Albemarle Paper Co v Moody 422 US 405 (1975)
— 411
Aldendorff and Outspan International (1997) 18 ILJ 810 (CCMA)
— 69
Alert Employment Personnel v Leech (1993) 14 ILJ 655 (LAC)
— 517
Allpass v Mooikloof Estates t/a Mooikloof Equestrian Centre (2011) 32 ILJ 1637 (LC)
— 157
Alpha Plant & Services v Simmonds (2001) 22 ILJ 359 (LAC)
— 196, 383, 396
Amalgamated Workers Union of SA v Fedics Food Services (1999) 20 ILJ 602 (LC)
— 415, 416
A Mauchle t/a Precision Tools v NUMSA (1995) 16 ILJ 349 (LAC)
— 226, 441–442, 443
Amazwi Power Products v Turnbull (2008) 29 ILJ 2554 (LAC)
— 34, 40
Amcoal Collieries & Industrial Collieries v NUM (1992) 13 ILJ 359 (LAC)
— 487
AMCU obo Members v Samancor Western Chrome Mines (2020) 41 ILJ 2771 (LAC)
— 479, 480, 481
AMCU v Anglogold Ashanti (2016) 37 ILJ 2320 (LC)
— 114
AMCU v Buffalo Coal Dundee (2016) 37 ILJ 2035 (LAC)
— 393
AMCU v Northam Platinum (2018) 39 ILJ 2692 (LC)
— 201
AMCU v Northam Platinum Mine (2021) 42 ILJ 2565 (LAC)
— 115, 515
AMCU v Piet Wes Civils (2017) 38 ILJ 1128 (LC)
— 54
4th Ed, 2022, p 533
AMCU v Royal Bafokeng Platinum (2018) 39 ILJ 2205 (LAC)
— 394
AMCU v Royal Bafokeng Platinum (2020) 41 ILJ 555 (CC)
— 394
AMCU v Shanduka Coal (2013) 34 ILJ 1519 (LC)
— 399
AMCU v Sibanye Gold t/a Sibanye Stillwater (1) (2019) 40 ILJ 1597 (LC)
— 384
AMCU v Tanker Services (2018) 39 ILJ 2265 (LC)
— 381
ANC v Municipal Manager: George Local Municipality (2010) 31 ILJ 69 (SCA)
— 27, 41
Anglo American Farms t/a Boschendal Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC)
— 104, 191, 239, 269
Anglo American Platinum (Rustenburg Platinum Mines) v Beyers (2021) 42 ILJ 2149 (LAC)
— 281
Anglo Office Supplies v Lotz (2008) 29 ILJ 953 (LAC)
— 430
Anglo Platinum (Bafokeng Rasemone Mine) v De Beer (2015) 36 ILJ 1453 (LAC)
— 189
April and Workforce Group Holdings t/a The Workforce Group (2005) 26 ILJ 2224 (CCMA)
— 39
Aquarius Platinum v CCMA (2020) 41 ILJ 2059 (LAC)
— 237, 238
Arangie and Abedare Cables (2007) 28 ILJ 268 (CCMA)
— 219
ARB Electrical Wholesalers v Hibbert (2015) 36 ILJ 2989 (LAC)
— 168, 522
Arbeter / Skipper International [1998] 8 BALR 977 (CCMA)
— 339
Archer v Public School – Pinelands High School (2020) 41 ILJ 610 (LAC)
— 502
Armitage Shanks SA v Mnisi (1995) 16 ILJ 61 (IC)
— 224
ARMSCOR v CCMA (2016) 37 ILJ 1127 (LC)
— 350, 351
Armstrong v SACAA (2011) 32 ILJ 2487 (LC)
— 491
Asara Wine Estate & Hotel v Van Rooyen (2012) 33 ILJ 363 (LC)
— 66
Assign Services v NUMSA (Casual Workers Advice Office as Amicus Curiae) (2018) 39 ILJ 1911 (CC)
— 18, 46, 73
AST Holdings v Roos (2007) 28 ILJ 1988 (LAC)
— 429
Astore Africa v CCMA [2008] 1 BLLR 14 (LC)
— 217
Astral Operations v Parry (2008) 29 ILJ 2668 (LAC)
— 33
Atkins v Datacentrix (2010) 31 ILJ 1130 (LC)
— 154
Atlantis Diesel Engines v NUMSA (1994) 15 ILJ 1247 (A)
— 381, 391, 405
Atlantis Foundries v NUMSA obo Brown (2020) 41 ILJ 2813 (LC)
— 354
Auf der Heyde v UCT (2000) 21 ILJ 1758 (LC)
— 396
Aunde SA v NUMSA (2011) 32 ILJ 2617 (LAC)
— 394
Auret v Eskom Pension & Provident Fund (1995) 16 ILJ 462 (IC)
— 214, 220, 312
AUSA obo Melville and SAA Technical (2002) 23 ILJ 1094 (ARB)
— 276
AUSA v SAA (2011) 32 ILJ 2861 (CC)
— 425, 426
AUSA v SAA (2015) 36 ILJ 3030 (LC)
— 390
Austin-Day v Absa Bank [2022] 6 BLLR 514 (LAC)
— 214
Autozone v Dispute Resolution Centre of Motor Industry (2019) 40 ILJ 1501 (LAC)
— 187, 189
Avril Elizabeth Home for the Mentally Handicapped v CCMA (2006) 27 ILJ 1644 (LC)
— 174, 247, 248, 253, 254, 271
Avroy Shlain Cosmetic v Kok (1998) 19 ILJ 336 (LC)
— 499
AWU v Philip Morris SA (2020) 41 ILJ 863 (CC)
— 503
B
Baba / East Cape Agricultural Project [1999] 9 BALR 1013 (CCMA)
— 68
Baba v GPSSBC (2011) 32 ILJ 2669 (LC)
— 510
Badenhorst v GC Baars (1995) 16 ILJ 1596 (IC)
— 145
Bahl / St Lucia Sands [1998] 3 BALR 249 (CCMA)
— 215
BAISEMWU v Iscor (1990) 11 ILJ 156 (IC)
— 393
Baise v Mianzo Asset Management (2019) 40 ILJ 1987 (LAC)
— 498
Baloyi v M & P Manufacturing (2001) 22 ILJ 391 (LAC)
— 394, 395, 405
Baloyi v Public Protector (2021) 42 ILJ 961 (CC)
— 245, 502
Bakenrug Meat t/a Joostenberg Meat v CCMA (2022) 43 ILJ 1272 (LAC)
— 210
Bamford / Energiser (SA) [2001] 12 BALR 1251 (P)
— 222, 240, 272
Bandat v De Kock (2015) 36 ILJ 979 (LC)
— 156
Barrier v Paramount Advanced Technologies (2021) 42 ILJ 1177 (LAC)
— 418
Barry and African Defence Systems (2004) 25 ILJ 1102 (CCMA)
— 419
BASODWU v Homegas (1986) 7 ILJ 411 (IC)
— 321
Basset v Servistar (1987) 8 ILJ 503 (IC)
— 275
Basson v Cecil Nurse (2001) 22 ILJ 673 (LC)
— 511
BAWU v Asoka Hotel (1989) 10 ILJ 167 (IC)
— 475
BAWU v Edward Hotel (1989) 10 ILJ 357 (IC)
— 480
BAWU v Initial Laundries (1988) 9 ILJ 272 (IC)
— 459
BAWU v Palm Beach Hotel (1988) 9 ILJ 1016 (IC)
— 474, 480
BAWU v Prestige Hotels t/a Blue Waters Hotel (1993) 14 ILJ 963 (LAC)
— 125, 473
4th Ed, 2022, p 534
Baxter v Minister of Justice & Correctional Services (2020) 41 ILJ 2553 (LAC)
— 163
BCAWU v Murray & Roberts Building (Tvl) (1991) 12 ILJ 112 (LAC)
— 390, 397
BCAWU v Slagment (1992) 13 ILJ 1168 (LAC)
— 225
BCAWU v West Rand Brickworks (1984) 5 ILJ 69 (IC)
— 343
Beaurain v Martin NO (1) (2014) 35 ILJ 2443 (LC)
— 163
Beck / Gavid Investments t/a Bulton Corporation [2001] 6 BALR 569 (CCMA)
— 270
Bedderson v Sparrow Schools Education Trust (2010) 31 ILJ 1325 (LC)
— 146
Bekker v Nationwide Airlines [1998] 2 BLLR 139 (LC)
— 404
BEMAWU obo Mohapi v Clear Channel Independent (2010) 31 ILJ 2863 (LC)
— 130–131
BEMAWU v SABC (2016) 37 ILJ 1394 (LC)
— 265, 288
Bennett and Mondipak (2004) 25 ILJ 583 (CCMA)
— 352
Bester v SEFA (2020) 41 ILJ 877 (LAC)
— 530
Betha v BTR Sarmcol (a division of BTR Dunlop) (1998) 19 ILJ 459 (SCA)
— 121, 465, 477
Beyer v City of Birmingham District Council [1997] IRLR 211 (EAT)
— 136
Bhana and Columbus Stainless (2005) 26 ILJ 1793 (BCA)
— 68
Bhengu v Union Co-operative (1990) 11 ILJ 117 (IC)
— 277
BIAWU v Mutual & Federal Insurance Co (2002) 23 ILJ 1037 (LC)
— 118, 327, 329
Bidvest Prestige Services v Lebea NO (2021) 42 ILJ 377 (LC)
— 419
BIFAWU obo Tsotetsi v Old Mutual Insure (2022) 43 ILJ 1369 (LC)
— 134
BIFAWU v Mutual & Federal Insurance Company (2006) 27 ILJ 600 (LAC)
— 118, 324, 327
Biggs v Rand Water (2003) 24 ILJ 1957 (LC)
— 168
Billion Group v Mosheshe (2018) 389 ILJ 368 (LAC)
— 520
Billion Group v Ntshangase (2018) 39 ILJ 2516 (LC)
— 71
Billiton Aluminium SA t/a Hillside Aluminium v Khanyile (2010) 31 ILJ 273 (CC)
— 510
Billiton Aluminium SA v NUMSA (2001) 22 ILJ 2434 (LC)
— 123, 468
Black Health & Allied Workers Union of SA v Garden City Clinic (1987) 8 ILJ 462 (IC)
— 473, 483
Black Mountain v CCMA [2005] 1 BLLR 1 (LC)
— 218, 253
Blue Circle Materials v Haskins (1992) 1 LCD 6 (LAC)
— 333, 336, 343
BMD Knitting Mills v SACTWU (2001) 22 ILJ 2264 (LAC)
— 374, 377, 406
BMW (South Africa) v Van der Walt (2000) 21 ILJ 113 (LAC)
— 277, 278, 279, 280, 281
Board of Executors v McCafferty (1997) 18 ILJ 949 (LAC)
— 17
Booi v Amathole District Municipality (2022) 43 ILJ 91 (CC)
— 515
Bootes v Eagle Ink Systems KZN (2008) 29 ILJ 139 (LC)
— 157
Booysen / DCS [2006] 8 BALR 757 (GPSSBC)
— 312
Booysen v Minister of Safety & Security (2011) 32 ILJ 112 (LAC)
— 491, 508
Booysen v SAPS (2009) 30 ILJ 301 (LC)
— 504
Booysen v SSSBC (2021) 42 ILJ 1192 (LAC)
— 516
Borg-Warner SA v NAAWU (now known as NUMSA) (1991) 12 ILJ 549 (LAC)
— 47
Bosal (Afrika) / NUMSA obo Botha [2000] 3 BALR 325 (IMSSA)
— 422
Boschendal Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC)
— 213
Bosman / Pick ’n Pay Retailers [2002] 3 BALR 237 (AMSSA)
— 210
Boss Logistics v Phopi (2010) 31 ILJ 1644 (LC)
— 214, 337, 340
Botes v City of Johannesburg Property Co (2021) 42 ILJ 530 (LC)
— 492
Botha / Toys Promotion t/a Novelty Toy [2001] 4 BALR 323 (CCMA)
— 69
Botha v BBR Security (Pretoria) (2001) 22 ILJ 1367 (LC)
— 404
Botha v Du Toit Vrey & Partners (2005) 26 ILJ 2362 (LC)
— 145, 167
Boxer Superstores Mthatha v Mbenya (2007) 28 ILJ 2209 (SCA)
— 8, 9, 99
Boxer Superstores v Zuma (2008) 29 ILJ 2680 (LAC)
— 515
Branford v Metrorail Service (Durban) (2003) 24 ILJ 2269 (LAC)
— 278, 280
Brian Joffe t/a J Air v CCMA [2019] 1 BLLR 1 (LAC)
— 144
British Labour Pump Co v Byrne [1979] IRLR 94
— 407
British UK v Swift [1981] IRLR 91
— 175
Brolaz Projects v CCMA (2008) 29 ILJ 2241 (LC)
— 520
Broll Property Group v Du Pont (2006) 27 ILJ 269 (LAC)
— 380
Brook v Mayor & Burgesses of the London Borough of Haringey [1992] IRLR 478
— 412
Builders Trade Depot v CCMA (2012) 33 ILJ 1154 (LC)
— 219
Burger v Alert Engine Parts (1999) 4 LLD 90 (LC)
— 420
Business & Design Software v Van der Velde (2009) 30 ILJ 1277 (LAC)
— 161, 429
Business South Africa v COSATU (1997) 18 ILJ 474 (LAC)
— 488
Buthelezi v ABI (1999) 20 ILJ 2316 (LC)
— 344, 516
Buthelezi v MDB (2004) 25 ILJ 2317 (LAC)
— 54, 55, 371–373, 413–414, 526
Buys v Impala Distributors (2008) 29 ILJ 641 (LC)
— 161
C
4th Ed, 2022, p 535
Cadbury SA v CCMA [2013] 8 BLLR 761 (LC)
— 224
Calgan Lounge v NUFAWSA (2019) 40 ILJ 342 (LC)
— 473
Callguard Security Services v TGWU (1997) 18 ILJ 380 (LC)
— 528
Camhee / Parkmore Travel [1997] 2 BLLR 180 (CCMA)
— 345
Campbell Scientific Africa v Simmers (2016) 37 ILJ 116 (LAC)
— 233
Cane Carriers and Govender (1989) ARB 8.11.10
— 216
Cannon and Sappi Saicor (2004) 25 ILJ 597 (CCMA)
— 205
Cantamessa and Edcon Group (2017) 38 ILJ 1909 (CCMA)
— 203
Cape Town City Council v SAMWU (2000) 21 ILJ 2409 (LC)
— 249
Cape Town Municipal Professional Staff Association v The Municipality of the City of Cape Town (1994) 15 ILJ 348 (IC)
— 119
Cape Wrappers v Scheepers [2002] 8 BLLR 729 (LC)
— 177, 208
Carephone v Marcus NO (1998) 19 ILJ 1425 (LAC)
— 376
Carr v Alexander Russell [1976] IRLR 220
— 314
Carr v Fisons Pharmaceuticals (1995) 16 ILJ 179 (IC)
— 286, 342
Carter v CCMA (2010) 31 ILJ 2876 (LC)
— 203
Carter v Value Truck Rental (2005) 26 ILJ 711 (SE)
— 54, 212, 213, 503
Castle Lead Works (Tvl) and NUMSA (1989) 10 ILJ 776 (ARB)
— 216
Catering Pleasure & Food Workers Union v National Brands (2007) 28 ILJ 1064 (LC)
— 389
CAWU / Mezi Foods [2001] 2 BALR 112 (CCMA)
— 270
CAWU v Sabrix (1996) 1 LLD 25 (IC)
— 269, 286
CCAWUSA v Checkers SA NH 11/2/894
— 326
CCAWUSA v Game Discount World (1990) 11 ILJ 162 (IC)
— 439
CCAWUSA v Status Hotel (1990) 11 ILJ 167 (IC)
— 417
CCAWUSA v Wooltru t/a Woolworths (Randburg) (1989) 10 ILJ 311 (IC)
— 193, 194, 222, 223
Central News Agency v CCAWUSA (1991) 12 ILJ 340 (LAC)
— 213, 239
Centre for Autism Research & Education v CCMA (2020) 41 ILJ 2623 (LC)
— 69, 70
CEPPWAWU obo Evans and Poly Oak (2003) 24 ILJ 2204 (BCA)
— 205
CEPPWAWU obo Gumede v Republican Press (2006) 27 ILJ 335 (LC)
— 399, 410
CEPPWAWU obo Hlophe v Bayfibre Central Co-operative (2017) 38 ILJ 627 (LC)
— 423
CEPPWAWU v Cordero (2008) 29 ILJ 1157 (LC)
— 434
CEPPWAWU v CTP (2013) 34 ILJ 1966 (LC)
— 468
CEPPWAWU v Glass & Aluminium 2000 (2002) 23 ILJ 695 (LAC)
— 40–41, 65
CEPPWAWU v Herbert Plastics (2002) 23 ILJ 1044 (LC)
— 158
CEPPWAWU v Metrofile (2004) 25 ILJ 231 (LAC)
— 125, 178, 485
CEPPWAWU v NBCCI (2010) 31 ILJ 2836 (LAC)
— 179
CEPPWAWU v Print Tech (2010) 31 ILJ 1850 (LC)
— 426
Chabeli v CCMA (2010) 31 ILJ 1343 (LC)
— 92
Chafeker v CCMA (2015) 36 ILJ 451 (LC)
— 99
Chamber of Mines and NUM (1988) ARB 7.11.1
— 236
Changula v Bell Equipment (1992) 13 ILJ 101 (LAC)
— 190, 194
Chauke v Lee Service Centre t/a Leeson Motors (1998) 19 ILJ 1441 (LAC)
— 289, 294–295, 296, 301
Chester Wholesale Meats v NIWUSA (2006) 27 ILJ 915 (LAC)
— 382, 392
Chetty v Raydee t/a St James Accommodation (1988) 9 ILJ 318 (IC)
— 224
Chetty v Scotts Select a Shoe (1998) 19 ILJ 1465 (LC)
— 390
Chetty v Toyota SA [2011] 8 BLLR 735 (LC)
— 205, 206
Chevron Engineering v Nkambule (2003) 24 ILJ 1331 (SCA)
— 8
Chidi v UNISA (2015) 36 ILJ 709 (LC)
— 498
Chillibush Communications v Johnston NO (2010) 31 ILJ 1358 (LC)
— 33, 34, 45
Chiloane v Rema Tip Top Industrial [2002] 11 BLLR 1066 (LC)
— 42
Chimphondah v Housing Investment Partners (2021) 42 ILJ 1720 (LC)
— 68
Chirwa v Transnet (2008) 29 ILJ 73 (CC)
— 9, 282, 283, 503, 504
Chizunza v MTN (2008) 29 ILJ 2919 (LC)
— 112, 156, 158
Choene v Mitsui & Co Southern Africa (2012) 33 ILJ 2872 (LC)
— 157, 353
Cholota v Trek Engineering (1992) 13 ILJ 219 (IC)
— 193, 194
Chothia v Hall Longmore & Co (1997) 18 ILJ 1090 (LC)
— 395
Chowan v Associated Motor Holdings (2018) 39 ILJ 1523 (GJ)
— 164
Christian v Colliers Properties (2005) 26 ILJ 234 (LC)
— 524
Chubisi v SABC (2021) 42 ILJ 395 (LC)
— 38
Cimi / TNBS Mutual Bank [2001] 10 BLLR 1068 (CCMA)
— 220
City of Cape Town v Freddie (2016) 37 ILJ 1364 (LAC)
— 205
4th Ed, 2022, p 536
City of Cape Town v SALGBC (2) (2011) 32 ILJ 1333 (LC)
— 310
City of Johannesburg v IMATU obo Erasmus (2019) 40 ILJ 1191 (LAC)
— 510
City of Johannesburg v Jacobs NO [2021] 6 BLLR 579 (LC)
— 213
City of Johannesburg v SAMWU (2009) 30 ILJ 2064 (LC)
— 451, 452, 453
City of Johannesburg v Swanepoel NO (2016) 37 ILJ 1400 (LC)
— 224
City of Tshwane Metropolitan Municipality v ECSA (2010) 31 ILJ 322 (SCA)
— 164, 492
City Power v Grinpal Energy Management Services (2015) 36 ILJ 1423 (CC)
— 428
Clarence v National Commissioner of the SAPS (2011) 32 ILJ 2927 (LAC)
— 207
Clarke v Eley (IMI) Kynoch [1982] IRLR 482
— 412
Clover SA v Sintwa (2017) 38 ILJ 350 (ECG)
— 290, 525
Cobra Watertech v NUMSA (1995) 16 ILJ 607 (LAC)
— 125
Coca-Cola Bottling East London v CCMA (2003) 24 ILJ 823 (LC)
— 489
Coca-Cola v Ngwane NO (2013) 34 ILJ 3155 (LC)
— 511
Coega Development Corporation v CCMA (2016) 37 ILJ 923 (LC)
— 211
Coetzee v Moorreesburg se Koringboere Koöperatief (1997) 18 ILJ 1341 (LC)
— 166
Coetzee v Zeitz Mocaa Foundation Trust (2018) 39 ILJ 2529 (LC)
— 30, 42, 246
Coetzer and The Citizen Newspaper (2003) 24 ILJ 622 (CCMA)
— 71
Coin Security Group v Adams (1999) 20 ILJ 1192 (LAC)
— 469
Coin Security Group v TGWU [1997] 10 BLLR 1261 (LAC)
— 270
Cold Chain v FAWU (2020) 41 ILJ 2067 (LAC)
— 388
Colven Associates Border v MEIBC (2009) 30 ILJ 2406 (LC)
— 45
Comed Health v NBCCI (2012) 33 ILJ 623 (LC)
— 178
Computicket v Marcus NO (1999) 20 ILJ 342 (LC)
— 181
Concorde Plastics v NUMSA [1998] 2 BLLR 107 (LAC)
— 221
Consani Engineering v CCMA (2004) 25 ILJ 1707 (LC)
— 177, 191, 192, 239
Consolidated Frame Cotton Corporation v President of the Industrial Court; Consolidated Woolwashing & Processing Mills v President
of the Industrial Court 1986 (3) SA 786 (A); (1986) 7 ILJ 489 (A)
— 363, 513, 528
Continental Tyre SA v NUMSA (2008) 29 ILJ 2561 (LAC)
— 389–390
Conti Print v CCMA (2015) 36 ILJ 2245 (LAC)
— 71
Conway v Matthew Right and Nephew [1977] IRLR 89
— 314
Cornelius and Howden Africa t/a M & B Pumps (1998) 19 ILJ 921 (CCMA)
— 247
COSAWU v Zikhethele Trade (2005) 26 ILJ 1056 (LC)
— 426
Cosme v Polisak (2010) 31 ILJ 1861 (LC)
— 113
County Fair Foods (Epping), a division of Astral Operations v FAWU (2018) 39 ILJ 1953 (LAC)
— 472, 478
County Fair Foods v CCMA (1999) 20 ILJ 1701 (LAC)
— 182, 184, 185, 187, 208
County Fair Foods v CCMA (2003) 24 ILJ 355 (LAC)
— 280
County Fair Foods v OCGAWU [2003] 7 BLLR 647 (LAC)
— 378
Cowie v Ellard & Co (1994) 9 EDC 132
— 331
Craig v Rubdec t/a Guys and Girls (1992) 1 LCD 29 (IC)
— 333
Cronje and Toyota Manufacturing (2001) 22 ILJ 735 (CCMA)
— 270, 271
Cronjé v CCMA (2002) 23 ILJ 1563 (LC)
— 203, 240
Crown Chickens t/a Rocklands Poultry v Kapp (2002) 23 ILJ 863 (LAC)
— 202, 205, 446
CS v Swanepoel [2022] 7 BLLR 660 (WCC)
— 235
CSAAWU obo Dube v Robertson Abattoir (2017) 38 ILJ 121 (LAC)
— 47, 133, 226
CSFWU v Aircondi Refrigeration (1990) 11 ILJ 532 (IC)
— 397, 406
CSIR v Fijen (1996) 17 ILJ 18 (A)
— 38–39, 64, 447
CWIU obo Frank / Druggist Distributors t/a Heynes Mathew [1998] 12 BALR 1573 (CCMA)
— 250
CWIU of SA v Lennon (1994) 15 ILJ 1037 (LAC)
— 382
CWIU v AECI Paints (Natal) (1988) 9 ILJ 1046 (IC)
— 193, 224
CWIU v Algorax (2003) 24 ILJ 1917 (LAC)
— 46, 131, 132, 133, 377, 402
CWIU v Boardman Brothers (Natal) (1995) 16 ILJ 619 (LAC)
— 200, 236
CWIU v Indian Ocean Fertilizer (1991) 12 ILJ 822 (IC)
— 439
CWIU v Johnson & Johnson [1997] 9 BLLR 1186 (LC)
— 143, 383, 406, 413
CWIU v Latex Surgical Products (2002) 23 ILJ 1386 (LC)
— 391
CWIU v Latex Surgical Products (2006) 27 ILJ 935 (LAC)
— 412
CWIU v Mend-A-Bath International (1996) 1 LLD 131 (IC)
— 483
CWIU v Reckitt & Colman (1990) 11 ILJ 1319 (IC)
— 292
CWIU v Sopelog (1994) 15 ILJ 90 (LAC)
— 398
CWU v Telkom SA (2017) 38 ILJ 360 (LC)
— 383
D
4th Ed, 2022, p 537
DAFF v Baron (2019) 40 ILJ 2290 (LAC)
— 58, 512
DAFF v Teto (2020) 41 ILJ 2086 (LAC)
— 48
Dagane v SSSBC (2018) 39 ILJ 1592 (LC)
— 205
Dairybelle v CCMA (1999) 4 LLD 629 (LC)
— 500
Dalgleish v Ampar t/a Sol Energy [1995] 11 BLLR 9 (IC)
— 68
Dallyn v Woolworths (1995) 16 ILJ 696 (IC)
— 69
Damelin v Solidarity obo Parkinson (2017) 38 ILJ 872 (LAC)
— 335
Daniels and Cape Promotional Manufacturing (2006) 27 ILJ 196 (CCMA)
— 69
Danzas AEI (SA) v Wanza NO [2003] 11 BLLR 1133 (LC)
— 335
Datt v Gunnebo Industries (2009) 30 ILJ 2429 (LC)
— 145, 146
Dauth and Brown & Weir’s Cash & Carry (2002) 23 ILJ 1472 (CCMA)
— 202, 240
Davis v Tip NO 1996 (1) SA 1152 (W)
— 262, 314–315
Dawtrey and BBR Security (1998) 3 LLD 414 (CCMA)
— 68
Daymon Worldwide SA v CCMA (2009) 30 ILJ 575 (LC)
— 70
DB Contracting North v NUM (2015) 36 ILJ 2773 (LAC)
— 382–383
DBT Technologies v Garnevska (2020) 41 ILJ 2078 (LAC)
— 120
DCS v GPSSBC (2012) 33 ILJ 216 (LC)
— 81
DCS v POPCRU (2011) 32 ILJ 2629 (LAC); (2013) 34 ILJ 1375 (SCA)
— 149, 150, 155, 166
De Almeida v Reeflords Property Development (2020) 41 ILJ 637 (LC)
— 391
De Beers Consolidated Mines (Venetia Mine) v NUM (2020) 41 ILJ 884 (LAC)
— 192, 210
De Beers Consolidated Mines and NUM (1990) ARB 8.3.7
— 310
De Beers Consolidated Mines v CCMA (2000) 21 ILJ 1051 (LAC)
— 182, 191, 195, 196, 221
De Beers Group Services v NUM (2011) 32 ILJ 1293 (LAC)
— 100, 386, 388
De Beer v SA Export Connection t/a Global Paws (2008) 29 ILJ 347 (LC)
— 135
De Bruyn v Metorex [2021] 10 BLLR 979 (LAC)
— 154, 419
Decision Surveys International v Dlamini (1999) 4 LLD 300 (LAC)
— 421, 525
De Klerk v Project Freight Group (2015) 36 ILJ 716 (LC)
— 405
De Laan v Van Dyk Carpet Company [2003] 3 BLLR 257 (LC)
— 394
Dell v Seton SA [2011] 9 BLLR 846 (LAC)
— 210
Delport v Parts Incorporated Africa of Genuine Parts [2002] 8 BLLR 755 (LC)
— 395
De Milander v MEC for The Department of Finance: Eastern Cape (2013) 34 ILJ 1427 (LAC)
— 57
Denel v Gerber (2005) 26 ILJ 1256 (LAC)
— 18, 19, 20
Denel v Vorster (2004) 25 ILJ 659 (SCA)
— 256, 523
DENOSA obo Ramaroane v MEC for Health, Gauteng Province (2019) 40 ILJ 2533 (LC)
— 213
Department of Defence v Thamaga NO [2022] 8 BLLR 723 (LC)
— 283
Department of Education, North West v Van Eck NO (2011) 32 ILJ 1346 (LC)
— 420
Department of Education (Province of the Northern Cape) v Kearns (2019) 40 ILJ 1764 (LAC)
— 256
Department of Public Works, Roads & Transport v Motshoso [2005] 10 BLLR 957 (LC)
— 261, 262
Dercksen and Amaintit Pipe Systems SA (2003) 24 ILJ 1182 (BCA)
— 312
DETAWU obo Mqaqambiso v BP Southern Africa (2022) 43 ILJ 157 (LC)
— 215, 241
De Villiers v HOD, Education, Western Cape Province (2010) 31 ILJ 1377 (LC)
— 84
De Villiers v Premier, Eastern Cape Provincial Government (2012) 33 ILJ 382 (LC)
— 39
De Vries v Lanzerac Hotel (1993) 14 ILJ 432 (IC)
— 373
DG: Office of the Premier of the Western Cape v SAMA obo Broens (2011) 32 ILJ 1077 (LC)
— 81, 512
DHA v Ndlovu (2014) 35 ILJ 3340 (LAC)
— 189, 192, 214
DHL Supply Chain SA v De Beer NO (2013) 34 ILJ 1530 (LC)
— 263
DHL Supply Chain v De Beer NO (2014) 35 ILJ 2379 (LAC)
— 251, 252
Dial Tech v Hudson (2007) 28 ILJ 1237 (LC)
— 524
Die Raad van Mynvakbonde v Die Kamer van Mynwese van SA (1984) 5 ILJ 344 (IC)
— 121
Dierks v UNISA (1999) 20 ILJ 1227 (LC)
— 58, 60, 512
Dimbaza Foundries v CCMA (1999) 20 ILJ 1763 (LC)
— 500
Dimension Data v GWB Technologies (2022) 43 ILJ 1824 (LC)
— 427
Dimension Data v Omega Digital Services (2020) 41 ILJ 2453 (LC)
— 428
DIMES v Durban City Council (1988) 9 ILJ 1085 (IC)
— 317
DIMES v Tongaat Town Board (1993) 2 LCD 54 (IC)
— 363, 397
Dion Discount Centres v Rantlo [1996] 1 LLD 9 (LAC)
— 238
Discovery Health v CCMA (2008) 29 ILJ 1480 (LC)
— 19, 34, 79
Ditsamai v Gauteng Shared Services Centre (2009) 30 ILJ 2072 (LC)
— 524
Dlali v Railit (1989) 10 ILJ 353 (IC)
— 487
Dlamini v CCMA (2004) 25 ILJ 1060 (LC)
— 275
Dlamini v Green Four Security (2006) 27 ILJ 2098 (LC)
— 148, 166
DOH (North West Province) v Strydom (2020) 41 ILJ 619 (LAC)
— 178
DOH, Western Cape v Twalo [2022] 8 BLLR 741 (LC)
— 283
Dolo v CCMA (2011) 32 ILJ 905 (LC)
— 309, 318
4th Ed, 2022, p 538
Doornfontein Gold Mining Co v NUM (1994) 15 ILJ 527 (LAC)
— 326, 477, 478, 479, 481
Douglas v Gauteng MEC for Health (2008) 29 ILJ 1499 (LC)
— 159
Dreyden and Duncan Korabie Attorneys (2022) 43 ILJ 1405 (CCMA)
— 351
Dube v University of Zululand [2019] 3 BLLR 285 (LC)
— 55
Dudley v City of Cape Town (2004) 25 ILJ 991 (CC)
— 506
Duncanmec v Gaylard NO (2018) 39 ILJ 2633 (CC)
— 206
Duncanmec v Itumeleng NO (2020) 41 ILJ 1331 (LAC)
— 217
Dunlop Mixing & Technical Services v NUMSA obo Khanyile (2016) 37 ILJ 2065 (LC)
— 298
Dunwell Property Services v Sibande (2011) 32 ILJ 2652 (LAC)
— 34, 515
Du Plessis / DCS [2006] 7 BALR 653 (GPSSBC)
— 312
Du Plessis / Eskom [2001] 5 BALR 427 (P)
— 354
Durban City Police / SAMWU [1998] 7 BALR 929 (IMSSA)
— 239
Durban Confectionery Works t/a Beacon Sweets v Majangaza (1993) 14 ILJ 663 (LAC)
— 258
Du Toit v Sasko (1999) 20 ILJ 1253 (LC)
— 29
Dyasi v Onderstepoort Biological Products (2011) 32 ILJ 1085 (LC)
— 257
Dyokhwe and Adecco Recruitment Services (2009) 30 ILJ 2989 (CCMA)
— 23, 24–25
Dyokhwe v De Kock NO (2012) 33 ILJ 2401 (LC)
— 16, 25, 45, 455
Dywili v Brick & Clay [1995] 7 BLLR 42 (IC)
— 228
E
Early Bird Farms v FAWU (2004) 25 ILJ 2135 (LAC)
— 123
Early Bird Farms v Mlambo [1997] 5 BLLR 541 (LAC)
— 238
Easi Access Rental v CCMA (2016) 37 ILJ 1419 (LC)
— 189
Eastern Cape Tourism Board v CCMA [2010] 11 BLLR 1161 (LC)
— 67
East Rand Proprietary Mines v UPUSA (1996) 17 ILJ 1134 (LAC)
— 369, 448, 449, 450
EAWTUSA v The Productions Casting Co (1988) 9 ILJ 702 (IC)
— 457
Ebrahim / Telkom SA [2006] 2 BALR 176 (CCMA)
— 235
ECCAWUSA obo Nkosi & Vilakazi and Wimpy Kempton City (1998) 3 LLD 194 (CCMA)
— 208
ECCAWUSA v Shoprite Checkers t/a OK Krugersdorp (2000) 21 ILJ 1347 (LC)
— 130, 402, 421, 438, 439, 440
Eckhard v Filpro Industrial Filters (1999) 20 ILJ 2043 (LC)
— 498
ECSA v City of Tshwane Metropolitan Municipality (2008) 29 ILJ 899 (T)
— 164
Edcon Group v Steenkamp (2015) 36 ILJ 1469 (LAC)
— 290, 388
Edcon v Cantamessa (2020) 41 ILJ 195 (LC)
— 203, 309
Edcon v Pillemer NO (2008) 29 ILJ 614 (LAC); (2009) 30 ILJ 2642 (SCA)
— 188, 189, 258, 517
Edcon v Steenkamp (2015) 36 ILJ 1469 (LAC)
— 86, 87, 99, 100
Edcon v Steenkamp (2018) 39 ILJ 531 (LAC)
— 387
Eddels (SA) v Sewcharau (2000) 21 ILJ 1344 (LC)
— 273
Edgars Consolidated Stores v SACCAWU (2010) 31 ILJ 2578 (LC)
— 433
Edgars Stores v SACCAWU (1998) 19 ILJ 771 (LAC)
— 93–94
Ehlers v Bohler Uddeholm Africa (2010) 31 ILJ 2383 (LC)
— 155
Ehrke v Standard Bank of SA (2010) 31 ILJ 1397 (LC)
— 213
EIMWU v Starpak (1992) 13 ILJ 655 (IC)
— 410
Ekhamanzi Springs v Mnomiya (2014) 35 ILJ 2388 (LAC)
— 137, 456
Ekhuruleni Metropolitan Municipality v Mashazi NO (2010) 31 ILJ 614 (LC)
— 282
Ekurhuleni Metropolitan Municipality v Madonsela (2021) 42 ILJ 2168 (LAC)
— 48, 73
Ekurhuleni Metropolitan Municipality v SALGBC (2022) 43 ILJ 825 (LAC)
— 233
Ekurhuleni Metropolitan Municipality v SAMWU (2018) 39 ILJ 546 (LAC)
— 287
Elliot International v Veloo (2015) 36 ILJ 422 (LAC)
— 77
Elundini Municipality v SALGBC [2011] 12 BLLR 1193 (LC)
— 54
Enever v Barloworld Equipment, A Division of Barloworld SA (2022) 43 ILJ 2025 (LC)
— 215
Engelbrecht v Bachique 705 t/a The New House of Busby (2020) 41 ILJ 2641 (LC)
— 498
Engen Petroleum v CCMA (2007) 28 ILJ 1507 (LAC)
— 185, 522
Enterprise Foods and FAWU (1990) ARB 6.3.5
— 322
Enterprise Foods v Allen (2004) 25 ILJ 1251 (LAC)
— 378
Enviroserv Waste Management v Interwaste t/a Interwaste Environmental Solutions (2016) 37 ILJ 959 (LC)
— 428
EOH Abantu v CCMA (2019) 40 ILJ 2477 (LAC)
— 259
Erasmus v BB Bread (1987) 8 ILJ 537 (IC)
— 447
Esack NO v CGE (2000) 21 ILJ 467 (W)
— 41
Eskom Holdings v Ferreira (2007) 28 ILJ 2588 (LC)
— 276
Eskom Holdings v Fipaza (2013) 34 ILJ 549 (LAC)
— 214, 220
Eskom / NUM [2000] 8 BALR 947 (IMSSA)
— 240
Eskort v Mogotsi (2021) 42 ILJ 1201 (LC)
— 225
Espack / Telkom SA [2004] 9 BALR 1128 (CCMA)
— 168
Estate late WG Jansen van Rensburg v Pedrino (2000) 21 ILJ 494 (LAC)
— 520
4th Ed, 2022, p 539
Ethekwini Municipality v Hadebe [2016] 8 BLLR 745 (LAC)
— 509
Evans v CHT Manufacturing (1992) 13 ILJ 1585 (IC)
— 223, 287
Evans v Japanese School of Johannesburg (2006) 27 ILJ 2607 (LC)
— 524
EWN v Pharmaco Distribution (2016) 37 ILJ 449 (LC)
— 147
Exactics-Pet v Patelia NO (2006) 27 ILJ 1126 (LC)
— 217
Exarro Coal t/a Grootgeluk Coal Mine v Maduma (2017) 38 ILJ 2531 (LC)
— 354
Experian SA v Haynes (2013) 34 ILJ 529 (GSJ)
— 430
F
Fairway at Randpark Operations v CCMA (2016) 37 ILJ 675 (LC)
— 252
Fakude v Kwikot (2013) 34 ILJ 2024 (LC)
— 78, 456
FAWU and ABI (2002) 23 ILJ 774 (CCMA)
— 266
FAWU obo Gaoshubelwe v Pieman’s Pantry (2017) 38 ILJ 132 (LAC)
— 90
FAWU obo Kapesi v Premier Foods t/a Blue Ribbon Salt River (2010) 31 ILJ 1654 (LC)
— 250, 252, 305, 365–366, 412
FAWU obo Kapesi v Premier Foods t/a Blue Ribbon Salt River (2012) 33 ILJ 1779 (LAC)
— 125, 366, 409, 457, 515
FAWU obo Klaas / La Farge SA [2000] 12 BLLR 1370 (CCMA)
— 216
FAWU obo Maleke / SAB [1998] 10 BALR 1330 (AMSSA)
— 210
FAWU obo Rala and Coca Cola Bottling (2002) 23 ILJ 196 (CCMA)
— 489
FAWU obo Tambala / Allied Amusement [2000] 12 BALR 1398 (CCMA)
— 256
FAWU v ABI (1994) 15 ILJ 1057 (LAC)
— 294, 301
FAWU v BB Bread (1987) 8 ILJ 704 (IC)
— 270, 274
FAWU v CG Smith Sugar (1989) 10 ILJ 907 (IC)
— 264
FAWU v Cold Chain (2015) 36 ILJ 226 (LC)
— 386
FAWU v General Food Industries (2002) 23 ILJ 1808 (LC)
— 131, 441
FAWU v Harvestime Corporation (1989) 10 ILJ 497 (IC)
— 226, 322, 324
FAWU v Kellogg SA (1993) 14 ILJ 406 (IC)
— 374
FAWU v Middevrystaatse Suiwel Koöperasie (1990) 11 ILJ 776 (IC)
— 129, 439
FAWU v Mnandi Meat Products & Wholesalers (1995) 16 ILJ 151 (IC)
— 323, 470
FAWU v National Sorghum Breweries (1998) 19 ILJ 613 (LC)
— 395
FAWU v Pietersburg Milling Co (A division of Tiger Milling & Feeds) (1995) 16 ILJ 1497 (LAC)
— 380
FAWU v Premier Foods t/a Blue Ribbon Salt River (2013) 34 ILJ 1171 (LC)
— 482
FAWU v Rainbow Chicken Farms (2000) 21 ILJ 615 (LC)
— 140–141, 148, 413
FAWU v SAB (2004) 25 ILJ 1979 (LC)
— 364–365, 368, 410–411
FAWU v SAB (2020) 41 ILJ 2652 (LC)
— 380
FAWU v The Cold Chain (2007) 28 ILJ 1593 (LC)
— 116
FAWU v Willowton Oil & Cake Mills (1990) 11 ILJ 131 (IC)
— 483
FBWU v Hercules Cold Storage (1989) 10 ILJ 457 (IC)
— 474
FBWU v Hercules Cold Storage (1990) 11 ILJ 47 (LAC)
— 125, 474
FEDCRAW and Snip Trading (2001) 22 ILJ 1945 (ARB)
— 239, 303, 457
FEDCRAW obo 23 Members and Librapac (1997) 2 LLD 197 (CCMA)
— 270
Fedlife Assurance v Wolfaardt (2001) 22 ILJ 2407 (SCA)
— 8, 13, 23, 99, 372, 373, 523, 526
FEDSAS v MEC for the Department of Basic Education, Eastern Cape [2011] 6 BLLR 616 (ECB)
— 23
Ferguson v Basil Read (2013) 34 ILJ 1163 (LC)
— 421
Fernandes v Lezmin 108 t/a Jasmin Café (2008) 29 ILJ 662 (LC)
— 158
Ferodo v Barnes [1976] IRLR 302
— 174
FGWU v Fidelity Guards Holdings t/a Pritchard Cleaning (1999) 20 ILJ 2052 (LC)
— 382
Fidelity Cash Management Service v CCMA (2008) 29 ILJ 964 (LAC)
— 264
Fidelity Security Services v Ngqola (2022) 43 ILJ 1611 (LAC)
— 511
Fidelity Supercare Cleaning v Busakwhe [2010] 3 BLLR 260 (LC)
— 51, 52
Fijen v CSIR (1994) 15 ILJ 759 (LAC)
— 38–39, 286
First National Bank (Wesbank Division) v Mooi NO (2009) 30 ILJ 336 (LC)
— 498
First National Bank, a Division of First Rand Bank v CCMA (2017) 38 ILJ 2545 (LC)
— 350–351
First National Bank, a Division of First Rand National Bank v Language [2012] 5 BLLR 478 (LC)
— 214
First National Battery v CCMA (2010) 31 ILJ 1203 (LC)
— 213
Fisher v Clinic Holdings (1994) 15 ILJ 842 (IC)
— 440
Fitzpatrick v British Railways Board [1991] IRLR 376 (CA)
— 136
Fletcher v Elna Sewing Machine Centres (2000) 21 ILJ 603 (LC)
— 391, 414
FOCSWU obo Dyaloyi / Qulani Security [2000] 8 BALR 879 (CCMA)
— 236
FOCSWU obo Ralawe / Anglican Church [1999] 9 BALR 1022 (CCMA)
— 339
4th Ed, 2022, p 540
Foodgro (A Division of Leisurenet) v Keil (1999) 20 ILJ 2521 (LAC)
— 430, 434
Foodpiper t/a Kentucky Fried Chicken v Shezi (1993) 14 ILJ 126 (LAC)
— 517, 519
Footware Trading v Mdlalose (2005) 26 ILJ 443 (LAC)
— 17
Forecourt Express v SATAWU (2006) 27 ILJ 2537 (LAC)
— 159, 377
Foschini Group v CCMA (2008) 29 ILJ 1515 (LC)
— 69, 71
Foschini Group v Maidi (2010) 31 ILJ 1787 (LAC)
— 263, 304, 458
Fourie and JD Bester Labour Brokers (2003) 24 ILJ 1625 (BCA)
— 450
Franmann Services v Simba (2013) 34 ILJ 897 (LC)
— 427
Free State Buying Association t/a Alpha Pharm v SACCAWU (1998) 19 ILJ 1481 (LC)
— 106, 171, 172, 255
Freestate Consolidated Gold Mines (Operations) (Western Holdings Mine) and NUM (1991) 12 ILJ 168 (ARB)
— 487, 488
Free State Provincial Government (Department of Agriculture) v Makae (2006) 27 ILJ 1845 (LC)
— 80, 81
French and Compuware Corporation Southern Africa (2003) 24 ILJ 2011 (CCMA)
— 500
Freshmark v CCMA (2003) 24 ILJ 373 (LAC)
— 378, 420, 421
Freshmark v SAWU obo De Klerk (2000) 21 ILJ 356 (LC)
— 421
Friedlander v Hodes 1944 CPD 169
— 331
Frost and Telkom SA (2001) 22 ILJ 1253 (CCMA)
— 279
Fry / Grasshopper [1999] 4 BALR 406 (CCMA)
— 497
Fry’s Metals v NUMSA (2003) 24 ILJ 133 (LAC)
— 46, 160, 374, 378, 402, 440
Fulcrum Engineering v Chauke (1997) 18 ILJ 679 (LAC)
— 209
FWCSA v Casbah Burger Box (1996) 17 ILJ 947 (IC)
— 483
G
G4S Secure Solutions (SA) v Ruggiero NO (2017) 38 ILJ 881 (LAC)
— 214
G4S Secure Solutions SA v CCMA (2020) 41 ILJ 1388 (LC)
— 221
Gaga v Anglo Platinum (2012) 33 ILJ 329 (LAC)
— 232
Galiesitoe v CCMA [2017] 7 BLLR 690 (LC)
— 215
Gana v Building Materials Manufacturers t/a Doorcor (1990) 11 ILJ 565 (IC)
— 487
Gauteng Provincial Legislature v CCMA (2022) 43 ILJ 616 (LAC)
— 48
Gauteng Provinsiale Administrasie v Scheepers (2000) 21 ILJ 1305 (LAC)
— 130, 467
Gbenga-Oluwatoye v Reckitt Benckiser SA (2016) 37 ILJ 902 (LAC)
— 77, 78
Gbenga-Oluwatoye v Reckitt Benckiser SA (2016) 37 ILJ 2723 (CC)
— 78, 498
Gcaba v Minister of Safety & Security (2009) 30 ILJ 2623 (CC)
— 282, 283, 499, 503
Gcaba v Minister of Safety & Security (2010) 31 ILJ 296 (CC)
— 502
Gcwensha v CCMA (2006) 27 ILJ 927 (LAC)
— 194
Geerdts v Multichoice Africa (1998) 3 LLD 446 (LAC)
— 212, 241
Gerber v Stanlib Asset Management (2022) 43 ILJ 1080 (LAC)
— 501
Gemalto SA v CEPPWAWU (2015) 36 ILJ 3002 (LAC)
— 179
General Food Industries t/a Blue Ribbon Bakeries v FAWU (2004) 25 ILJ 1655 (LAC)
— 414, 416
General Food Industries v FAWU (2004) 25 ILJ 1260 (LAC)
— 131, 374, 441
General Motors v NUMSA obo Ruiters (2015) 36 ILJ 1493 (LAC)
— 356
Genrec Engineering v MEIBC (2016) 37 ILJ 2649 (LC)
— 512
GE Security (Africa) v Airey (2011) 32 ILJ 2078 (LAC)
— 411
Gibb v Nedcor (1998) 19 ILJ 364 (LC)
— 175, 500
Gijima AST v Hopley (2014) 35 ILJ 2115 (LAC)
— 386
Gimini Indent Agencies t/a S & A Marketing v CCMA (1999) 20 ILJ 2872 (LC)
— 269
Gird v Holt Leisure Parks (1995) 4 LCD 37 (IC)
— 270
GIWUSA obo Nyangaza and Germiston Powder Coates (2005) 26 ILJ 200 (BCA)
— 263
Glencore Holdings v Sibeko (2018) 39 ILJ 138 (LAC)
— 515, 516, 517
Glencore Operations SA (Lion Ferrochrome) v NUM obo Maripane (2017) 38 ILJ 181 (LC)
— 327
Glencore Operations SA v CCMA (2021) 42 ILJ 2446 (LC)
— 201, 351
Glencore v CCMA (2018) 39 ILJ 2536 (LC)
— 86
Goldfields Mining SA (Kloof Gold Mine) v CCMA (2010) 31 ILJ 371 (LC)
— 496
Gold Fields Mining SA (Kloof Gold Mine) v CCMA (2014) 35 ILJ 943 (LAC)
— 227
Gold Fields Trust v Stander [2002] 9 BLLR 797 (LAC)
— 390
Goldgro v McEvoy (2019) 40 ILJ 1202 (LAC)
— 163
Golding v HCI Managerial Services (2015) 36 ILJ 1098 (LC)
— 491
Gold One v Madalani (2020) 41 ILJ 2832 (LC)
— 68
Goliath v Medscheme (1996) 17 ILJ 760 (IC)
— 64
Gonya v Besterecta (1986) 7 ILJ 39 (LC)
— 395
Goodyear SA v CCMA [2004] 1 BLLR 7 (LAC)
— 218
Gostelow v Datakor Holdings t/a Corporate Copilith (1993) 14 ILJ 171 (IC)
— 333, 343
Gouws v Mpumalanga Provincial Government (2001) 22 ILJ 1822 (LC)
— 369, 420, 460
4th Ed, 2022, p 541
Govender v Independent Newspapers, KZN [2009] 6 BLLR 522 (LC)
— 409
Govender v M A Matala Lads’ Hostel (1987) 8 ILJ 809 (IC)
— 458
Government of the Western Province v COSATU (1999) 20 ILJ 151 (LC)
— 488
Gqibitole v Pace Community College (1999) 20 ILJ 1270 (LC)
— 167
Gregory and Russells (1999) 20 ILJ 2145 (CCMA)
— 232
Grobler v Naspers (2004) 25 ILJ 439 (C)
— 70
Grootboom v NPA (2010) 31 ILJ 1875 (LC)
— 80, 81
Grootboom v NPA (2014) 35 ILJ 121 (CC)
— 83
Group 6 Security Services v Moletsane NO (2005) 26 ILJ 1693 (LC)
— 518
G v K (1988) 9 ILJ 314 (IC)
— 459
Gwe v De Lange (2020) 41 ILJ 341 (ECP)
— 290
Gxolo v Harmony Gold Mine [2018] 8 BLLR 794 (LC)
— 283
H
Hadebe v Romatex Industrials (1986) 7 ILJ 726 (IC)
— 381
Hamandawana v Dispute Resolution Centre (2014) 35 ILJ 1312 (LC)
— 60
Hamata v Chairperson, Peninsula Technikon Internal Disciplinary Committee (2002) 23 ILJ 1531 (SCA)
— 266
Hannah v Government of the Republic of Namibia 2000 (4) SA 940 (NmLC)
— 32
Harding v Petzetakis Africa (2012) 33 ILJ 876 (LC)
— 114
Harmony Goldmine Co v Raffee NO (2018) 39 ILJ 2017 (LC)
— 208
Harmony Gold Mining Co v CCMA (2013) 34 ILJ 912 (LC)
— 241
Harper v Morgan Guarantee Trust Co of New York, Johannesburg 2004 (3) SA 253 (W)
— 13
Harper v Morgan Guarantee Trust Co of New York, Johannesburg (2004) 25 ILJ 1024 (W)
— 13
Harrisawak v La Farge SA (2001) 22 ILJ 1395 (LC)
— 78, 497
Harsco Metals SA v Arcellor Mittal SA (2012) 33 ILJ 901 (LC)
— 427
Hart v Camdon Realty (1992) 13 ILJ 1600 (IC)
— 287
Hassim v Incorporated Law Society of Natal 1979 (3) SA 298 (A)
— 317
Hawker v Life Offices Association of SA (1987) 8 ILJ 231 (C)
— 4
Haywood and Combotrade 13 t/a Powerman (2004) 25 ILJ 2247 (BCA)
— 224
HC Heat Exchangers v Araujo [2020] 3 BLLR 280 (LC)
— 71
Heath v A & N Paneelkloppers (2015) 36 ILJ 1301 (LC)
— 519
Hedley v Papergraphics (2001) 22 ILJ 935 (LC)
— 336
Heigers v UPC Retail Services [1998] 1 BLLR 45 (LC)
— 375
Helderberg International Importers v McGahey NO (2015) 36 ILJ 1586 (LC)
— 96
Hendor Steel Supplies v NUMSA (2009) 30 ILJ 2376 (LAC)
— 470
Hendricks v Mercantile & General Reinsurance Co of SA (1994) 15 ILJ 304 (LAC)
— 341, 354
Hendricks v Overstrand Municipality (2015) 36 ILJ 163 (LAC)
— 282, 283, 492
Hendry v Adcock Ingram (1998) 19 ILJ 85 (LC)
— 377
Henred Fruehauf Trailers v NUMSA (1992) 13 ILJ 593 (LAC)
— 177, 293, 478, 480
Herholdt v Nedbank (2012) 33 ILJ 1789 (LAC)
— 213
Hibbert v ARB Electrical Wholesalers (2013) 34 ILJ 1190 (LC)
— 145
High Rustenburg Estate v NEHAWU obo Cornelius (2017) 38 ILJ 1758 (LAC)
— 433
Highveld District Council v CCMA (2003) 24 ILJ 517 (LAC)
— 255, 256, 414
Highveld Steel & Vanadium Corporation v NUMSA (2004) 25 ILJ 71 (LAC)
— 396
Hillside Aluminium v Mathuse (2016) 37 ILJ 2082 (LC)
— 249, 268
Hlongwane v Plastix (1990) 11 ILJ 171 (IC)
— 363
Hoch v Mustek Electronics (2000) 21 ILJ 365 (LC)
— 214, 220
Hoechst v CWIU (1993) 14 ILJ 1449 (LAC)
— 171
Hoffmann v SAA (2000) 21 ILJ 2357 (CC)
— 165, 166, 352–353
Hofmeyr v Saaiman t/a SA Endovascular Group Practice (2020) 41 ILJ 659 (LC)
— 134
Horn v Beesnaar NO (2022) 43 ILJ 115 (LAC)
— 208, 308
HOSPERSA v MEC for Health (2003) 24 ILJ 2320 (LC)
— 81–82, 201
HOSPERSA v Northern Cape Provincial Administration (2000) 21 ILJ 1066 (LAC)
— 130
Hulamin v MEIBC (2014) 35 ILJ 3417 (LC)
— 221, 258
Hulett Aluminium v Bargaining Council for the Metal Industry (2008) 29 ILJ 1180 (LC)
— 213
Humphries & Jewell v FEDCRAW (1991) 12 ILJ 1032 (IC)
— 224
Hydraulic Engineering Repair Services v Ntshona (2008) 29 ILJ 163 (LC)
— 34
Hydro Colour Inks v CEPPWAWU (2011) 32 ILJ 1625 (LAC)
— 435
I
4th Ed, 2022, p 542
IBSA v Old Mutual Services & Technology Administration (2006) 27 ILJ 1026 (LC)
— 387
ICHAWU obo Members and Leilani Restaurants (2010) 31 ILJ 1967 (CCMA)
— 385
ICHAWU v CCMA (2015) 36 ILJ 3086 (LC)
— 224
ICS Group t/a Dairybelle (Bloemhof) v NUFBWSAW (1998) 19 ILJ 775 (LAC)
— 469, 481
IIE v Mbileni (2013) 34 ILJ 1538 (LC)
— 29
Ikwezi Municipality v SALGBC (2012) 33 ILJ 1447 (LC)
— 242
IMATU obo Erasmus v City of Johannesburg (2013) 34 ILJ 1741 (LC)
— 511
IMATU obo Hlabisa v Umkhanyakude District Municipality (2022) 43 ILJ 1842 (LC)
— 146
IMATU obo Nathan v Polokwane Local Municipality (2020) 41 ILJ 937 (LC)
— 498
IMATU obo Pillay and eThekweni Municipality (2006) 27 ILJ 627 (BCA)
— 512
IMATU obo Strydom v Witzenberg Municipality (2012) 33 ILJ 1081 (LAC)
— 349
IMATU obo Strydom v Witzenburg Municipality (2008) 29 ILJ 2947 (LC)
— 359
IMATU v City of Johannesburg Metropolitan Municipality [2014] 6 BLLR 545 (LAC)
— 58
IMATU v City of Matlosana Local Municipality (2014) 35 ILJ 2459 (LC)
— 163
IMATU v Department of Health, Eastern Cape Province [2011] 4 BLLR 366 (LC)
— 431
IMATU v Rustenburg Transitional Council (2000) 21 ILJ 377 (LC)
— 116, 210, 320, 321, 322
Impact Ltd v NBCWPS (2013) 34 ILJ 2266 (LC)
— 86, 201
Imperial Cargo Solutions v SATAWU (2017) 38 ILJ 2479 (LAC)
— 467
Imperial Cold Storage & Supply Co v Field (1993) 14 ILJ 1221 (LAC)
— 417, 418
Imperial Transport Services v Stirling (1999) 4 LLD 164 (LAC)
— 391
Imvula Quality Protection v UNISA (2017) 38 ILJ 2763 (LC)
— 427–428
Industrial Union of SA v Lennon (1994) 15 ILJ 1037 (LAC)
— 381
Intercape Ferreira Mainliner v McWade (2020) 41 ILJ 208 (LC)
— 215
Intertech Systems v Sowter (1997) 18 ILJ 689 (LAC)
— 156
Irvin & Johnson v CCMA (2002) 23 ILJ 2058 (LC)
— 420
Irvin & Johnson v CCMA (2006) 27 ILJ 935 (LAC)
— 72
Ivor Karan t/a Karan Beef Feedlot v Randall (2012) 33 ILJ 2579 (LAC)
— 145
J
Jacklens / Pep Stores [1999] 6 BALR 673 (CCMA)
— 303
Jack v DG of the Department of Environmental Affairs [2003] 1 BLLR 28 (LC)
— 22
Jacobs / JDG Trading [2004] 9 BALR 1045 (P)
— 355
Jacobs v KZN Treasury (2022) 43 ILJ 1286 (LAC)
— 212
Jacobs v Sandvik NH 13/2/6953 (unreported)
— 459
Jacobsen v Tugela and Maumulo Rural Licensing Board 1964 (1) SA 45 (D)
— 268
Jacobson v Vitalab (2019) 40 ILJ 2363 (LC)
— 134
Jadwat’s Wholesalers v Maphumolo (1992) 13 ILJ 979 (LAC)
— 17
Jafta v Ezemvelo KZN Wildlife (2009) 30 ILJ 131 (LC)
— 22
James v Eskom Holdings (2017) 38 ILJ 2269 (LAC)
— 87, 100, 245
James v Namcon Logistics (2020) 41 ILJ 2845 (LC)
— 120
James v Waltham Holy Cross UDC [1973] IRLR 202
— 333
Jamie v Ellis Park Stadium (2020) 41 ILJ 2465 (LC)
— 161
Janda v First National Bank (2006) 27 ILJ 2627 (LC)
— 112
Jansen v Minister of Correctional Services of the RSA (2010) 31 ILJ 650 (LC)
— 150
Jardine and Tongaat Hulett Sugar (2002) 23 ILJ 547 (CCMA)
— 351, 369, 446, 447
JB Haworth & Associates v Joseph Mpanyana [1992] 3 BLLR 21 (IC)
— 480
JDG Trading t/a Price ’n Pride v Brunsdon (2000) 21 ILJ 501 (LAC)
— 286, 341, 410
Jenkin v Khumbula Media Connexion [2010] 12 BLLR 1295 (LC)
— 434
Jeremiah v National Sorghum Breweries (1999) 20 ILJ 1055 (LC)
— 512
Jerry’s Security Services v CCMA [2001] 7 BLLR 751 (LC)
— 329
Johane v Rand Mine Milling & Mining (1995) 16 ILJ 1249 (IC)
— 145
Johannes v Polyoak Industries [1998] 1 BLLR 18 (LAC)
— 225
Johnson & Johnson v CWIU (1999) 20 ILJ 89 (LAC)
— 375, 381, 382, 406
Johnson Matthey v NUMSA (2012) 33 ILJ 2420 (LC)
— 513
Johnson v Anglo Operations t/a Boart Longyear Operations (2005) 26 ILJ 2216 (LC)
— 399
John v Afrox Oxygen (2018) 39 ILJ 1278 (LAC)
— 163
Jonas / Quest Staffing Solutions [2003] 7 BALR 811 (CCMA)
— 49
Jonas v CCMA (2017) 38 ILJ 376 (LC)
— 509, 515
Jones v Retail Apparel [2000] 6 BLLR 676 (LC)
— 420
Joni v Kei Fresh Produce Market (2018) 39 ILJ 2405 (ECM)
— 47
Jonker v ABI (1993) 14 ILJ 199 (IC)
— 448
4th Ed, 2022, p 543
Jonker v Okhahlamba Municipality (2005) 26 ILJ 782 (LC)
— 260–261
Jordaan v CCMA (2010) 31 ILJ 2331 (LAC)
— 64
Jordan v ELRC (2021) 42 ILJ 2227 (LC)
— 84
Jorgensen v I Kat Computing (2018) 39 ILJ 785 (LAC)
— 520
Joseph v Killarney Engineering (2021) 42 ILJ 1492 (LC)
— 35
Joseph v University of Limpopo (2011) 32 ILJ 2085 (LAC)
— 57–58
Joslin v Olivetti Systems & Network Africa (1993) 14 ILJ 227 (IC)
— 447
Joy Mining Machinery a division of Harnischfeger (SA) v NUMSA (2002) 23 ILJ 391 (LC)
— 353
K
Kaefer Energy Projects v CCMA (2022) 43 ILJ 125 (LAC)
— 242
Kahn v Rainbow Chicken Farms (1985) 6 ILJ 60 (IC)
— 226
Kakaza and Department of Communications (2003) 24 ILJ 908 (BCA)
— 279
Kalik v Truworths (Gateway) (2007) 28 ILJ 2769 (LC)
— 213
Kaltwasser v Isambulela Group Administrator (2014) 35 ILJ 3436 (LC)
— 114
Kammies v Golden Arrow Bus Services (1994) 15 ILJ 1113 (IC)
— 211, 227, 241
Karras t/a Floraline v SASTAWU (2000) 21 ILJ 2612 (LAC)
— 484
Kaye / SAA [2001] 11 BLLR 1170 (CCMA)
— 242
Keagrams and SACWU (1985) ARB 8.18.1
— 328
Kebeni v Cementile Products (Ciskei) (1987) 8 ILJ 442 (IC)
— 110, 364
Keeble and Flashcor 166 t/a CTM–Kimberley (2009) 30 ILJ 3005 (CCMA)
— 91
Keller v Transnet (1998) 19 ILJ 136 (LC)
— 404
Kelly Group v Khanyile (2013) 34 ILJ 2035 (LC)
— 270
Kelly Industrial v CCMA (2015) 36 ILJ 1877 (LC)
— 50
Kemp t/a Centralmed v Rawlins (2009) 30 ILJ 2677 (LAC)
— 519
Keppler / Birkhart International Forwarding SA [2000] 12 BALR 1405 (CCMA)
— 339
Keshwar v SANCA (1991) 12 ILJ 816 (IC)
— 116
Ketse v Telkom SA (2015) 36 ILJ 1592 (LC)
— 389, 394
Key Delta v Marriner 1998 JDR 0387 (E); [1998] 6 BLLR 647 (E)
— 4
Kgethe v LMK Manufacturing (1998) 19 ILJ 524 (LAC)
— 405, 425
Khambule v Impala Platinum (2019) 40 ILJ 2505 (LAC)
— 189
Khan v MMI Holdings (2018) 39 ILJ 1772 (LC)
— 164
Khan v MMI Holdings (2021) 42 ILJ 1737 (LC)
— 145
Khanyile v CCMA (2004) 25 ILJ 2348 (LC)
— 32
Khula Enterprise Finance v Madinane (2004) 25 ILJ 535 (LC)
— 272
Khulani Fidelity Services Group v CCMA [2009] 7 BLLR 664 (LC)
— 42
Khumalo v Otto Hoffmann Handweaving Co (1988) 9 ILJ 883 (IC)
— 276, 321
Khum MK Investments & Bie Joint Venture v CCMA (2020) 41 ILJ 1129 (LAC)
— 47
Kievits Kroon Country Estate v Mmoledi (2012) 33 ILJ 2812 (LAC)
— 201, 355
Kimberley Ekapa Mining Joint Venture v NUM (2021) 42 ILJ 761 (LAC)
— 382
King v Beacon Island Hotel (1987) 8 ILJ 485 (IC)
— 448
Kleinkopje Colliery / NUM obo Mabane [2001] 12 BALR 1259 (IMSSA)
— 218
Kleinkopje Colliery / NUM obo Mbenekazi [1998] 9 BALR 1206 (IMSSA)
— 215
Kleynhans / Tremac Industries [2001] 5 BALR 469 (CCMA)
— 250
Klusener and KZN Cricket (2016) 37 ILJ 2916 (CCMA)
— 338–339
Koko v Greater Tubatse Municipality (2021) 42 ILJ 1019 (LAC)
— 510
Kolatsoeu v Afro-Sun Investments t/a Releke Zesame Supermarket (1990) 11 ILJ 754 (IC)
— 483
Korsten v Macsteel [1996] 8 BLLR 1015 (IC)
— 191, 257
Kotze v Rebel Discount Liquor Group (2000) 21 ILJ 129 (LAC)
— 286, 396, 403, 407, 414
Krishna v UKZN (2012) 33 ILJ 1688 (LC)
— 72, 430
Kroeger v Visual Marketing (2003) 24 ILJ 1979 (LC)
— 449
Kroukam v SA Airlink (2005) 26 ILJ 2153 (LAC)
— 112, 116–117, 120, 143, 325
Kroutz / Distillers Corporation [1999] 8 BLLR 912 (CCMA)
— 250
Kruger v Aciel Geomatics (2016) 37 ILJ 2567 (LAC)
— 428
Kruger v CCMA (2002) 23 ILJ 2069 (LC)
— 69
Kruger v Jigsaw Holdings (2006) 27 ILJ 1161 (LC)
— 34, 404
Kubeka v Ni-Da Transport (2021) 42 ILJ 499 (LAC)
— 510, 511
Kubheka v MEC: Human Settlements (Gauteng Provincial Government) (2021) 42 ILJ 1497 (LC)
— 272, 493
Kuipers and Durattract Plastics (2004) 25 ILJ 758 (BCA)
— 71
Kukard v GKD Delkor (2015) 36 ILJ 640 (LAC)
— 97
Kukard v Molapo Technology [2006] 4 BLLR 334 (LC)
— 404
4th Ed, 2022, p 544
Kutu v Minister, Department of Justice & Correctional Services (2021) 42 ILJ 2489 (MM)
— 290, 525
Kwadukuza v SALGBC (2009) 30 ILJ 356 (LC)
— 521
‘Kylie’ and Van Zyl t/a Brigittes (2007) 28 ILJ 470 (CCMA)
— 79
‘Kylie’ v CCMA (2008) 29 ILJ 1918 (LC)
— 19, 79
‘Kylie’ v CCMA (2010) 31 ILJ 1600 (LAC)
— 19, 34, 79, 512, 520
Kynoch Feeds v CCMA (1998) 19 ILJ 836 (LC)
— 42
KZN Tourism Authority v Wasa (2016) 37 ILJ 2581 (LAC)
— 101, 526
L
L & C Steinmuller (Africa) v Shepherd (2005) 26 ILJ 2359 (LAC)
— 399
Labuschagne / WP Construction [1997] 9 BLLR 1251 (CCMA)
— 236
Lahee Park Club v Garratt [1997] 9 BLLR 1137 (LAC)
— 213
L-A J v Afrox Oxygen [2015] 12 BLLR 1213 (LC)
— 163
Lakomski v TTS Tool Technic Systems (2007) 28 ILJ 2775 (LC)
— 412
Laltoparsat and Webber Wentzel Bowens (2004) 25 ILJ 371 (CCMA)
— 220
Lamprecht v Pienaar Bros [1998] 6 BLLR 608 (LC)
— 529
Langa v Active Packaging (2001) 22 ILJ 397 (LAC)
— 404, 405
Langa v SALGBC (Mpumulanga) (2013) 34 ILJ 2248 (LC)
— 22
Lanzerac Manor v De Vries (1996) 17 ILJ 11 (A)
— 396
Larcombe v Natal Nylon Industries, Pietermaritzburg (1986) 7 ILJ 326 (IC)
— 336, 445
Laser Junction v Fick (2017) 38 ILJ 2675 (KZD)
— 432
Latha / Glenashley Spar [2001] 5 BALR 474 (CCMA)
— 272
Lawrence v I Kuper & Co t/a Kupers – A member of Investec (1994) 15 ILJ 1140 (IC)
— 190
LAW Wholesale Meat Distributors v FAWU [1998] 8 BLLR 859 (LAC)
— 469
Leadbeter / O’Hagan’s Franchise Marketing [1999] 9 BALR 1034 (CCMA)
— 355
Leal and Moroka Swallows Football Club (2010) 31 ILJ 1029 (ARB)
— 338
Lebese and SAPS (2003) 24 ILJ 1752 (BCA)
— 79
Lebowa Platinum Mines v Hill (1998) 19 ILJ 1112 (LAC)
— 369, 446, 448, 449, 450
Lebu v Maquassi Hills Local Municipality (2) (2012) 33 ILJ 653 (LC)
— 257
Lefu v Western Areas Gold Mining Co (1985) 6 ILJ 307 (IC)
— 125, 284, 287
Legal Aid Board v John NO (1998) 19 ILJ 851 (LC)
— 500
Legal Aid SA v Jansen (2020) 41 ILJ 2580 (LAC)
— 147
Legal Aid SA v Mayisela (2019) 40 ILJ 1526 (LAC)
— 205
Legalwise Insurance SA v Kleinot NO (2020) 41 ILJ 2862 (LC)
— 357
Legolie / Sentrasure [2001] 7 BALR 769 (CCMA)
— 312
Lekabe v Minister: Department of Justice & Constitutional Development (2009) 30 ILJ 2444 (LC)
— 260, 261
Lekwa Local Municipality v SALGBC (2017) 38 ILJ 190 (LC)
— 498
Lemley v CCMA (2020) 41 ILJ 1339 (LAC)
— 419
Le Monde Luggage t/a Pakwells Petje v Dunn NO (2007) 28 ILJ 2238 (LAC)
— 39, 67, 355
Leonard Dingler Employee Representative Council v Leonard Dingler (1998) 19 ILJ 285 (LC)
— 143
Leonard Dingler v Ngwenya (1999) 20 ILJ 1171 (LAC)
— 238
Leoni Wiring Systems (East London) v NUM (2007) 28 ILJ 642 (LC)
— 385–386
Le Roux and AMC Parts (2007) 28 ILJ 1881 (BCA)
— 530
Letsoalo v Minister of Police (2016) 37 ILJ 1916 (LC)
— 164, 272, 492
Lewis v Media 24 (2010) 31 ILJ 2416 (LC)
— 151
Liberty Box & Bag Manufacturing Co and PPWAWU (1990) 11 ILJ 427 (ARB)
— 478
Liddle / Pick ’n Pay [2000] 8 BLLR 898 (CCMA)
— 173
Lithotech Manufacturing Cape (a Division of Bidpaper Plus) v Statutory Council for the Newspaper, Printing & Packaging Industry
(2010) 31 ILJ 1425 (LC)
— 202
L M Wulfsohn Motors t/a Lionel Motors v Dispute Resolution Centre (2008) 29 ILJ 356 (LC)
— 68
Lombard and KGA Lewens (2004) 25 ILJ 1770 (CCMA)
— 311
Long v Prism Holdings (2010) 31 ILJ 2110 (LC)
— 425
Long v Reumech Gear Ratio (a division of Reunert Mechanical Systems) (2002) 23 ILJ 724 (LC)
— 394
Long v SAB (2019) 40 ILJ 965 (CC)
— 529
Lottering v Stellenbosch Municipality (2010) 31 ILJ 2923 (LC)
— 31
Louw / Delta Motor Corporation [1996] 2 BLLR 673 (CCMA)
— 238
Louw v Micor Shipping (2000) 5 LLD 401 (LC)
— 391
LSRC & Associates v Blom (2011) 32 ILJ 2685 (LC)
— 521
L S v CCMA (2014) 35 ILJ 2205 (LC)
— 358
LTE Consulting v CCMA (2017) 38 ILJ 2787 (LC)
— 214
Lubbers v Santech Engineering (a division of Scaw Metals) [1994] 10 BLLR 124 (IC)
— 210
4th Ed, 2022, p 545
Lubbe v Roop NO (2012) 33 ILJ 1695 (LC)
— 516
Lubke v Protective Packaging (1994) 15 ILJ 422 (IC)
— 445, 446
Ludick v Vodacom (2021) 42 ILJ 2621 (LC)
— 511
Lukie v Rural Alliance t/a Rural Development Specialist (2004) 25 ILJ 1445 (LC)
— 134
Luthuli v Flortime (1988) 9 ILJ 287 (IC)
— 530
Lynoch v Cereal Packaging [1988] IRLR 510
— 348
M
Maada v MEC of the Northern Province for Finance & Expenditure (2003) 24 ILJ 937 (LAC)
— 39, 40
Maasz and Fidelity Security Services (2011) 32 ILJ 2825 (CCMA)
— 521
Mabaso v Universal Product Network (2003) 24 ILJ 1532 (LC)
— 412
Mabinana v Baldwin’s Steel [1999] 5 BLLR 453 (LAC)
— 209, 293
Madlala v Nampak Sacks [2008] 3 BLLR 267 (LC)
— 205
Madondo / SAB [2001] 8 BALR 875 (CCMA)
— 269
Maepe v CCMA (2008) 29 ILJ 2189 (LAC)
— 188, 516
Mafihla v Govan Mbeki Municipality (2005) 26 ILJ 257 (LC)
— 22, 55
Mafomane v Rustenburg Platinum Mines [2003] 10 BLLR 999 (LC)
— 111
Magagane v MTN SA (2013) 34 ILJ 3252 (LC)
— 162
Magic Company v CCMA (2005) 26 ILJ 271 (LC)
— 264
Magoda v DG of Rural Development & Land Reform (2017) 38 ILJ 2795 (LC)
— 492
Magubane v Mint Road Sawmills [1998] 2 BLLR 143 (LC)
— 499
Maharaj v CP de Leeuw (2005) 26 ILJ 1088 (LC)
— 142
Mahlakoane v SARS (2018) 39 ILJ 1034 (LAC)
— 280
Mahlamu v CCMA (2011) 32 ILJ 1122 (LC)
— 49–50
Mahlangu / St Josephs Home for the Aged [2000] 8 BALR 902 (CCMA)
— 228, 339
Mahlangu v Amplats Development Centre (2002) 23 ILJ 910 (LC)
— 69
Mahlangu v CIM Deltak (1986) 7 ILJ 346 (IC)
— 250
Mahlangu v Minister of Police (2017) 38 ILJ 1749 (GP)
— 290, 525
Mahlangu v Minister of Sport & Recreation (2010) 31 ILJ 1907 (LC)
— 81
Mahlangu v Samancor Chrome (Eastern Chrome Mines) (2020) 41 ILJ 1910 (LAC)
— 241
Mahlinza v Zulu Nyala Game Ranch [2004] 3 BLLR 245 (LC)
— 394
Maidi v MEC for the Department of Education (2003) 24 ILJ 1552 (LC)
— 79
Maila and Dynamic Marketing Corporation (2009) 30 ILJ 1176 (CCMA)
— 40
Maila v Hungry Eye Restaurant (1990) 11 ILJ 400 (IC)
— 284
Maimela v UNISA (2010) 31 ILJ 121 (LC)
— 120
Maine v African Cables (1985) 6 ILJ 234 (IC)
— 465, 475
Majola and Moonsamy (2004) 25 ILJ 153 (CCMA)
— 521
Majola v D & A Timbers (1997) 18 ILJ 342 (LAC)
— 483
Majola v MEC, Department of Public Works, Northern Province (2004) 25 ILJ 131 (LC)
— 267
Majoro / Friendly Grocer (Orkney) [2001] 4 BALR 355 (CCMA)
— 339
Makhale v Vitro Building Products [1996] 4 BLLR 506 (IC)
— 355
Makhanya v University of Zululand (2009) 30 ILJ 1539 (SCA)
— 9, 502, 523
Makhoba v CCMA (2022) 43 ILJ 166 (LC)
— 309
Makoti v Jesuit Refugee Service of SA (2012) 33 ILJ 1706 (LC)
— 49
Makumalo and eLearning Systems t/a eDegree (2007) 28 ILJ 2330 (CCMA)
— 364
Malaka v GPSSBC (2020) 41 ILJ 2783 (LAC)
— 213
Malamlela v SALGBC (2018) 39 ILJ 2454 (LAC)
— 223
Malandoh v SABC (1997) 18 ILJ 544 (LC)
— 59
Malan v Bulbring NO (2004) 25 ILJ 1737 (LC)
— 309
Malapile v Germiston Ceramics & Potteries (1988) 9 ILJ 855 (IC)
— 264
Malatji v Minister of Home Affairs (2018) 39 ILJ 2684 (LAC)
— 521
Malelane Toyota v CCMA [1999] 6 BLLR 555 (LC)
— 515
Maloba v Minaco Stone Germiston (2000) 21 ILJ 1795 (LC)
— 423, 426
Maluleke v Greater Giyani Local Municipality (2019) 40 ILJ 1061 (LC)
— 491
Maluti Transport v MRTAWU (1999) 20 ILJ 2531 (LAC)
— 481
Mamabolo v Manchu Consulting (1999) 20 ILJ 1826 (LC)
— 418, 423
Mambalu v AECI Explosives (Zomerveld) (1995) 16 ILJ 960 (IC)
— 201
Manashewitz and Salvage Core (2000) 21 ILJ 1453 (CCMA)
— 520
Maneche v CCMA (2007) 28 ILJ 2594 (LC)
— 224, 228
Manhattan Motors Trust v Abdulla (2002) 23 ILJ 1544 (LAC)
— 42
Manqele and SARS (2004) 25 ILJ 1114 (CCMA)
— 60
4th Ed, 2022, p 546
MAN Truck & Bus (SA) and UAMAWU (1991) 12 ILJ 181 (ARB)
— 104
Manyaka v Van de Wetering Engineering [1997] 11 BLLR 1458 (LC)
— 391
Maoke v Telkom (2020) 41 ILJ 2414 (GP)
— 161
Marievale Consolidated Mines v NUM (1986) 7 ILJ 108 (W)
— 464
Marievale Consolidated Mines v President of the Industrial Court (1986) 7 ILJ 152 (T)
— 98, 457, 465
Maripane v Glencore Operations (Lion Ferrochrome) (2019) 40 ILJ 1999 (LAC)
— 224
Maritz and Cash Towing (2002) 23 ILJ 1083 (CCMA)
— 49
Maritz v Calibre Clinical Consultants (2010) 31 ILJ 1436 (LC)
— 42, 421
Markhams (a Division of Foschini Retail Group) v Matji NO [2003] 11 BLLR 1145 (LC)
— 174
Maroveke v Talane NO (2021) 42 ILJ 1871 (CC)
— 511
Marques v Group Five Construction (Under Supervision) (2020) 41 ILJ 677 (LC)
— 422
Marsland v New Way Motor & Diesel Engineering (2009) 30 ILJ 169 (LC)
— 147
Marthinussen v MEIBC (2016) 37 ILJ 2292 (LAC)
— 213
Martin & East v NUM (2014) 35 ILJ 2399 (LAC)
— 124
Martins v Roopa NO (2011) 32 ILJ 353 (LC)
— 313
Marutha v Semper t/a Review Printers, Pietersburg (1990) 11 ILJ 804 (IC)
— 487
Masetlha v President of the RSA 2008 (1) SA 566 (CC)
— 56
Mashaba / Van der Merwe [1997] 12 BLLR 1644 (CCMA)
— 420
Mashaba v Telkom SA (2018) 39 ILJ 1067 (LC)
— 117–118
Mashaba v Telkom SA (2020) 41 ILJ 2437 (LAC)
— 513
Mashabela / Monyela Services [2006] 2 BALR 122 (MEIBC)
— 51
Mashava v Cuzen & Woods Attorneys (2000) 21 ILJ 402 (LC)
— 112, 136–137
Mashiya v Sirkhot NO (2012) 33 ILJ 420 (LC)
— 269
Masilela v Leonard Dingler (2004) 25 ILJ 544 (LC)
— 401
Masilela v Reinhardt Transport (2010) 31 ILJ 2942 (LC)
— 485
Masinga v Chief of the SANDF (2022) 43 ILJ 805 (SCA)
— 80
Massmart Holdings v Reddy (2022) 43 ILJ 1297 (LAC)
— 214
Masoka and Consolidated Wire Industries (2005) 26 ILJ 965 (BCA)
— 264, 265
Maswanganyi v Minister of Defence & Military Veterans (2020) 41 ILJ 1287 (CC)
— 85
Matatiele Local Municipality v Shaik (2017) 38 ILJ 2280 (LAC).
— 100
Mathabathe v NMBMM (2017) 38 ILJ 391 (LC)
— 99, 265, 272
Mathabela v Dr J S Moroka Local Municipality (2011) 32 ILJ 2000 (LC)
— 257
Matheus v Cycsad Engineering (1993) 2 LCD 307 (IC)
— 192
Matheus v Namibia Sugar Packers (1993) 14 ILJ 1514 (IC)
— 487
Matla Coal and NUM (1993) 14 ILJ 766 (ARB)
— 327
Matsekoleng v Shoprite Checkers [2013] 2 BLLR 130 (LAC)
— 237, 516
Matshazi v Mezepoli Melrose Arch; Nyoni v Mezepoli Nicolway; Moto v Plaka Eastgate Restaurant; Mohsen v Brand Kitchen
Hospitality (2021) 42 ILJ 600 (GJ)
— 75–76
Matthews v GlaxoSmithKline SA (2006) 27 ILJ 1876 (LC)
— 418
Maubane v The African Bank (1987) 8 ILJ 517 (IC)
— 209
Mavumengwana v Samancor (Metalloys) (1992) 1 LCD 200 (IC)
— 310
Mavundla v Vulpine Investments t/a Keg & Thistle (2000) 21 ILJ 2280 (LC)
— 495
Mawonga (ILGM intervening) v Walter Sisulu Local Municipality (2019) 40 ILJ 974 (ECG)
— 101
MAWU and Horizon Engineering (1989) 10 ILJ 782 (ARB)
— 200
MAWU v A Mauchle t/a Precision Tools (1980) 1 ILJ 227 (IC)
— 110
MAWU v Bonar Long NPC (SA) (1987) 8 ILJ 108 (IC)
— 62
MAWU v BTR Sarmcol – a division of BTR Dunlop (1995) 16 ILJ 83 (IC)
— 475, 486
MAWU v Feralloys (1987) 8 ILJ 124 (IC)
— 62
MAWU v Hart (1985) 6 ILJ 478 (IC)
— 381
MAWU v Samancor NH 11/2/1359 (IC)
— 328
MAWU v Transvaal Pressed Nuts, Bolts & Rivets (1986) 7 ILJ 703 (IC)
— 62
MAWU v Transvaal Pressed Nuts, Bolts & Rivets (1988) 9 ILJ 129 (IC)
— 224, 274
Mazibuko v Mooi River Textiles (1989) 10 ILJ 875 (IC)
— 448
Mazista Tiles v NUM (2004) 25 ILJ 2156 (LAC)
— 132–133
Mbeyane v Cembad t/a Art Centre (1989) 10 ILJ 468 (IC)
— 487
Mbobo v Randfontein Estates Gold Mining Co (1992) 13 ILJ 1485 (IC)
— 393
Mbombo v Rennies Bulk Terminals (2002) 23 ILJ 1587 (LC)
— 394, 409
Mbuli and Spartan Wiremakers (2004) 25 ILJ 1128 (BCA)
— 250
McBain / Afrox [1999] 12 BALR 1386 (CCMA)
— 218
McGregor v DOH, Western Cape (2021) 42 ILJ 514 (LAC)
— 233
McGregor v PHSDSBC (2021) 42 ILJ 1643 (CC)
— 233, 519
Mchuba v PRASA (2016) 37 ILJ 1923 (LC)
— 493
McInnes v Technikon Natal (2000) 21 ILJ 1138 (LC)
— 58, 168
McLaughlin v Independent Loss Consultants [2013] 1 BLLR 41 (LC)
— 156
4th Ed, 2022, p 547
Mdlalose v IE Laher & Sons (1985) 6 ILJ 350 (IC)
— 77
Mdlolose v Coin Security Group [2001] 7 BLLR 777 (LC).
— 420
MEC, Department of Education, Western Cape Government v Jethro NNO (2019) 40 ILJ 2318 (LAC)
— 84
MEC, DOH, Eastern Cape v Odendaal (2009) 30 ILJ 2093 (LC)
— 18, 64
MEC, DOH, Eastern Cape v PHSDSBC (2016) 37 ILJ 1429 (LC)
— 179
MEC, Public Works, Northern Province v CCMA (2003) 24 ILJ 2155 (LC)
— 79, 201
MEC: Department of Education, Gauteng v Msweli (2013) 34 ILJ 650 (L)
— 80
MEC: Department of Finance, Economic Affairs & Tourism, Northern Province v Mahumani (2004) 25 ILJ 2311 (SCA)
— 267
MEC for Education, Gauteng v Mgijima (2011) 32 ILJ 640 (LC)
— 214
MEC for Education & Culture v Mabika (2005) 26 ILJ 2368 (LC)
— 79, 80, 81, 263
MEC for Finance, KZN v Dorkin NO (2008) 29 ILJ 1707 (LAC)
— 188, 281, 282
MEC for Health, North West Province v SAMA (2022) 43 ILJ 134 (LAC)
— 84
MEC for Health v Koethe (2011) 32 ILJ 647 (LC)
— 81
MEC for the DOH, Western Cape v Weder; MEC for the DOH, Western Cape v DENOSA obo Mangena (2014) 35 ILJ 2131 (LAC)
— 84
Mediterranean Textile Mills v SACTWU (2012) 33 ILJ 160 (LAC)
— 510
Mediterranean Woollen Mills v SACTWU (1998) 19 ILJ 731 (SCA)
— 486
Mega Bus & Coach / SATAWU obo Matsane [2001] 10 BALR 1051 (IMSSA)
— 220, 329
Mekgoe and Standard Bank of SA (1997) 2 LLD 96 (CCMA)
— 275
Melomed Hospital Holdings v CCMA (2013) 34 ILJ 920 (LC)
— 20
Memela v Ekhamanzi Springs (2012) 33 ILJ 2911 (LC)
— 137, 456
Metal Box SA and MAWU (1987) ARB 8.10.1
— 236
Metcash Trading t/a Metro Cash & Carry v Fobb (1998) 19 ILJ 1516 (LC)
— 239
Metro Cash & Carry v Tshehla (1996) 17 ILJ 1126 (LAC)
— 228
Metropolitan Health Risk Management v Majatladi (2015) 36 ILJ 958 (LAC)
— 69
Metrorail (Wits) / SAFWU [1998] 1 BALR 88 (IMSSA)
— 239
Metrorail / SATAWU [2000] 10 BLLR 1208 (IMSSA)
— 208
Metrorail / SATAWU obo Makhubela [2000] 5 BALR 599 (IMSSA)
— 250
Metshe v PAWUSA (2011) 32 ILJ 2984 (LC)
— 366
Metsimaholo Local Municipality v SALGBC [2016] 5 BLLR 435 (LAC)
— 210
Meyi v Ovcon (1988) 9 ILJ 672 (IC)
— 406
Mfazwe v SA Metal & Machinery Co (1987) 8 ILJ 492 (IC)
— 125
Mhlambi v CCMA (2006) 27 ILJ 814 (LC)
— 68
Mhlekude v SAA (2017) 38 ILJ 577 (LAC)
— 327
Mhlungu and Gremick Integrated Security Specialists (a division of Servest) (2001) 22 ILJ 1030 (CCMA)
— 350
Mhoalodi v East Rand Gold & Uranium Co (1988) 9 ILJ 597 (IC)
— 315
Miladys v Naidoo (2002) 23 ILJ 1234 (LAC)
— 68
Minister of Correctional Services v POPCRU (2016) 37 ILJ 1179 (LC)
— 83
Minister of Defence & Military Veterans v Maswanganyi (2019) 40 ILJ 2267 (SCA)
— 80, 85
Minister of Justice & Constitutional Development v Myburgh (2018) 39 ILJ 553 (LAC)
— 498
Minister of Police v Kgopa [2019] 1 BLLR 16 (LAC)
— 268, 283
Minister of Police v Skosana 1977 (1) SA 31 (A)
— 117
Minister van Landbou v Venter 1973 (3) SA 59 (A)
— 315
Minister van Onderwys en Kultuur v Louw 1995 (4) SA 383 (A)
— 79
Minnaar / Wedge Street World [1998] 2 BALR 138 (CCMA)
— 213
MISA/SAMWU obo Members v Madikor Drie (2005) 26 ILJ 2374 (LC)
— 422
MISA v Silverton Spraypainters & Panelbeaters (2013) 34 ILJ 1440 (LAC)
— 226
Miskey v Maritz NO (2007) 28 ILJ 661 (LC)
— 32
Miyambo v CCMA (2010) 31 ILJ 2031 (LAC)
— 239
Mjaji / Creative Signs [1997] 3 BLLR 321 (CCMA)
— 248
Mkasi v Department of Health: KZN (2019) 40 ILJ 2576 (LC)
— 265, 491
Mkhele v SAB (1991) 12 ILJ 900 (IC)
— 201
Mkhwanazi v MEC for the Department of Education, KZN [2022] 6 BLLR 558 (LC)
— 83
Mkhwanazi v Plasser Railway Machinery (SA) (1993) 14 ILJ 237 (IC)
— 275
Mkokeli v Bloomberg LP (2021) 42 ILJ 1224 (LC)
— 114, 120
Mlokoti v Amathole District Municipality (2009) 30 ILJ 517 (E)
— 504
Mmola v CCMA (2018) 39 ILJ 1793 (LC)
— 266
Mndebele v Xstrata SA t/a Xstrata Alloys (2016) 37 ILJ 2610 (LAC)
— 226
Mnguni v Gumbi (2004) 25 ILJ 715 (LC)
— 135
Mnguni v Imperial Truck Systems t/a Imperial Distribution (2002) 23 ILJ 492 (LC)
— 450, 454
Mnguti v CCMA (2015) 36 ILJ 3111 (LC)
— 40
Mntambo v Piotrans (2021) 42 ILJ 2298 (GJ)
— 513, 514
4th Ed, 2022, p 548
Modibedi v Medupi Fabrication (2014) 35 ILJ 3171 (LC)
— 474
Modikwa Mining Personnel Services v CCMA (2013) 34 ILJ 373 (LC)
— 205
Modise v Steve’s Spar Blackheath (2000) 21 ILJ 519 (LAC)
— 287, 288, 305, 477, 483, 484
Moen v Qube Systems (2017) 38 ILJ 2712 (LAC)
— 213
Mofokeng and KSB Pumps (2003) 24 ILJ 1756 (BCA)
— 92
Mofokeng v Rotek & Roshcon (2021) 42 ILJ 1902 (LAC)
— 57
Mogola v HOD, Department of Education NO (2012) 33 ILJ 1203 (LC)
— 81
Mogorosi / Northern Cape Bus Service [2000] 5 BALR 604 (IMSSA)
— 329
Mogothle v Premier of the North-West Province (2009) 30 ILJ 605 (LC)
— 9, 452, 504
Mohamedy’s v CCAWUSA (1992) 13 ILJ 1174 (LAC)
— 397, 407
Mohlola v Citibank (2003) 24 ILJ 417 (LC)
— 315
Moila v Shai NO (2007) 28 ILJ 1028 (LAC)
— 39, 42
Mokhele v Schmidt NO (2016) 37 ILJ 2662 (LC)
— 161
Mokoena v Garden Art (2008) 29 ILJ 1196 (LC)
— 232
Mokoena v Merafong Municipality (2020) 41 ILJ 234 (LC)
— 87, 99
Mokoetle v Madau NO (2009) 30 ILJ 2755 (LC)
— 261
Molawa / Quyn International Outsourcing [2004] 7 BALR 848 (MEIBC)
— 51
Molehe v PHSDSBC (2019) 40 ILJ 2584 (LC)
— 351
Moletsane v Ascot Diamonds (1993) 2 LCD 310 (IC)
— 457
Moloantoa v CCMA (2021) 42 ILJ 2259 (LC)
— 280, 281
Moloi v Euijen NO (1997) 18 ILJ 1372 (LC)
— 529
Moloto v City of Cape Town (2011) 32 ILJ 1153 (LC)
— 9
Molusi and Ngisiza Bonke Manpower Services (2009) 30 ILJ 1657 (CCMA)
— 50, 75
Monare v SA Tourism (2016) 37 ILJ 394 (LAC)
— 259
Monareng v Dr JS Moroka Municipality (2022) 43 ILJ 1855 (LC)
— 31
Mondi Paper v Dlamini [1996] 9 BLLR 1109 (LAC)
— 217
Mondi Timber Products v Tope (1997) 18 ILJ 149 (LAC)
— 174, 245
Mönnig v Council of Review 1989 (4) SA 866 (C)
— 268
Moodley v Department of National Treasury (2017) 38 ILJ 1098 (LAC)
— 516
Moodley v Fidelity Cleaning Services (2005) 26 ILJ 889 (LC)
— 384
Moodley v Knysna Municipality (2007) 28 ILJ 1715 (C)
— 268, 283
Môrester Bande v NUMSA (1990) 11 ILJ 687 (LAC)
— 373, 390, 397
Morgan v CUT, Free State (2013) 34 ILJ 938 (LC)
— 520
Moropane v Gilbeys Distillers & Vintners (1998) 19 ILJ 635 (LC)
— 170, 247
Moses v CCMA (2019) 40 ILJ 2371 (LC)
— 529
Moshela v CCMA (2011) 32 ILJ 2692 (LC)
— 313
Mosikili v SA Board of Sheriffs (2022) 43 ILJ 946 (WCC)
— 262
Mostert and Dorbyl Automotive (1999) 4 LLD 68 (CCMA)
— 236
Motale v The Citizen 1978 [2017] 5 BLLR 511 (LC)
— 258
Motaung v Department of Education (2013) 34 ILJ 1199 (LC)
— 152
Motaung v Wits University (School of Education) (2014) 35 ILJ 1329 (LC)
— 521
Mothiba v Exxaro Coal t/a Grootgeluk Coal Mine (2021) 42 ILJ 1910 (LAC)
— 213
Motingoe v HOD, Northern Cape Department of Roads & Public Works (2014) 35 ILJ 2492 (LC)
— 163, 491
Motitswe v City of Tshwane (2014) 35 ILJ 3458 (LC)
— 88
Motsamai v Everite Building Products [2011] 2 BLLR 144 (LAC)
— 235
Motsamai v Everite Building Products Unreported CCMA case no GA 25798-04 (16 February 2005); unreported LC case no JR
1250/05, JR 3100/05 (14 December 2006)
— 235
Motswenyane / Rockface Promotions [1997] 2 BLLR 217 (CCMA)
— 171
Mouton v Boy Burger (2011) 32 ILJ 2703 (LC)
— 143
Movers / Legend Security [2005] 4 BALR 487 (CCMA)
— 222
Mpati v Premier of the Free State [2011] 12 BLLR 1202 (LC)
— 491
Mpele v Municipal Council of the Lesedi Local Municipality (2019) 40 ILJ 572 (LC)
— 87
Mphaphuli v Ramotshela NO (2020) 41 ILJ 242 (LC)
— 219
Msagala v Transnet (2018) 39 ILJ 259 (LC)
— 493
Mshumi v Roben Packaging t/a Ultrapak (1988) 9 ILJ 619 (IC)
— 481
Msunduzi Municipality v Hoskins (2017) 38 ILJ 582 (LAC)
— 211
Mtati v KPMG Services (2017) 38 ILJ 1362 (LC)
— 29–30, 42, 246
Mthethwa v CCMA (2022) 43 ILJ 1786 (LAC)
— 514
Mthimkhulu v Standard Bank of SA (2021) 42 ILJ 158 (LC)
— 30, 246
MTN Group Management Services v Mweli (2021) 42 ILJ 775 (LAC)
— 412
MTO Forestry v CEPPWAWU [2018] 10 BLLR 950 (LAC)
— 471
Mtshwene v Glencore Operations SA (Lion Ferrochrome) (2019) 40 ILJ 507 (LAC)
— 229
MTWU obo Sehularo v G4 Cash Services (2013) 34 ILJ 1221 (LC)
— 473
Mudau v MEIBC (2013) 34 ILJ 663 (LC)
— 493
4th Ed, 2022, p 549
Mulaudzi v City of Tshwane Metropolitan Municipality (2022) 43 ILJ 398 (LC)
— 262
Mulderij and Goldrush Group (2022) 43 ILJ 671 (CCMA)
— 351
Municipal Manager OR Tambo District Municipality v Ndabeni (2022) 43 ILJ 1019 (CC)
— 529
Munnik Basson Da Gama Attorneys v CCMA (2011) 32 ILJ 1169 (LC)
— 259
Munsamy and Quality Products (2013) 34 ILJ 2386 (CCMA)
— 259
Murray & Roberts v CCMA (2019) 40 ILJ 2510 (LAC)
— 497
Murray v Minister of Defence (2006) 27 ILJ 1607 (C)
— 63, 70
Murray v Minister of Defence (2008) 29 ILJ 1369 (SCA)
— 8, 9, 63, 64, 70, 99
Mushi v Exxaro Coal Grootegeluk Coal Mine [2019] 10 BLLR 1134 (LAC)
— 256
Mustek v Tsabadi NO [2013] 8 BLLR 798 (LC)
— 251
Mutual Construction Company Tvl v Ntombela NO (2010) 31 ILJ 901 (LAC)
— 214, 221, 258
MWASA v Die Môrester en Noord-Transvaler (1991) 12 ILJ 802 (LAC)
— 459
MWASA v Independent Newspapers (2002) 23 ILJ 918 (LC)
— 130, 402, 438–439, 440
MWASA v SABC (1986) 7 ILJ 754 (IC)
— 410
MWASA v The Argus Printing & Publishing Co (1984) 5 ILJ 16 (IC)
— 465
MWU obo Heydenrych / Turbine Versions t/a Wonderair [2001] 11 BALR 1187 (CCMA)
— 228
MWU/Solidarity obo Macgregor v SANParks (2006) 27 ILJ 818 (LC)
— 382
Mxakato-Diseko v DG: DIRCO (2020) 41 ILJ 953 (LC)
— 492
Mxalisa v Dominium Uranium (2013) 34 ILJ 2052 (LC)
— 485
Myers and SAPS (2003) 24 ILJ 2212 (BCA)
— 205
Myers v National Commissioner of the SAPS (2013) 34 ILJ 1729 (SCA)
— 512
Mzeku and VWSA (2001) 22 ILJ 771 (CCMA)
— 489
Mzeku v VWSA (2001) 22 ILJ 1575 (LAC)
— 289, 328, 467, 470, 484, 489, 514, 515
Mzolo v Rhodes University (2021) 42 ILJ 1308 (ECG)
— 281, 283
N
NAAWU (now known as NUMSA) v Borg-Warner SA (1991) 12 ILJ 549 (LC)
— 62
NAAWU (now known as NUMSA) v Borg-Warner SA (1994) 15 ILJ 509 (A)
— 62, 422
NAAWU v Pretoria Precision Castings (1985) 6 ILJ 369 (IC)
— 211, 272
NACBAWU v Hernic Premier Refractories (2003) 24 ILJ 837 (LC)
— 131, 441
NACBAWU v Masinga (2000) 21 ILJ 411 (LC)
— 329
NACTWUSA and Waverley Blankets (2000) 5 LLD 487 (CCMA)
— 326
Naicker / Lever Ponds [1998] 10 BALR 1355 (IMSSA)
— 344
Naicker v Q Data Consulting (2002) 23 ILJ 730 (LC)
— 367
Naidoo v La Mercy Beach Hotel [1996] 1 BLLR 98 (IC)
— 201
Naidoo v Parliament of the RSA (2020) 41 ILJ 1931 (LAC)
— 140, 158
Naidoo v Standard Bank of SA (2019) 40 ILJ 2589 (LC)
— 30, 42, 246
Naidu v Ackermans (2000) 21 ILJ 1830 (LC)
— 497
Nama Khoi Local Municipality v SALGBC (2019) 40 ILJ 2092 (LC)
— 21
Nampak Corrugated Wadeville v Khoza (1999) 20 ILJ 578 (LAC)
— 175, 181, 185, 187, 211, 228
Nape v INTCS Corporate Solutions (2010) 31 ILJ 2120 (LC)
— 25–26, 455
NASARIEU obo Mngomezulu and Tongaat Hulett Sugar (2016) 37 ILJ 2441 (BCA)
— 209
NASA v Unilever SA (2020) 41 ILJ 1399 (LC)
— 405
NASAWU v Pearwood Investments t/a Wolf Security (2009) 30 ILJ 1852 (LC)
— 421, 521
Nasionale Parkeraad v Terblanche (1999) 20 ILJ 1520 (LAC)
— 220, 276
Natal Die-Casting v President of the Industrial Court (1987) 8 ILJ 245 (D)
— 465
National Commissioner of SAPS v Phopho (2021) 42 ILJ 1666 (LAC)
— 85–86
National Commissioner of the SAPS v Mphalele NO (2019) 40 ILJ 806 (LAC)
— 283
National Commissioner of the SAPS v Myers (2012) 33 ILJ 1417 (LAC)
— 242, 512
National Commissioner of the SAPS v Myers (2018) 39 ILJ 1965 (LAC)
— 512
National Commissioner of the SAPS v Nienaber NO (2017) 38 ILJ 1859 (LC)
— 202
National Health Laboratory Service v Yona (2015) 36 ILJ 2259 (LAC)
— 68, 71
National Union of Mineworkers v Durban Roodepoort Deep Ltd (1987) 8 ILJ 156 (IC)
— 293
Nationwide Airlines v Madau [2003] 3 BLLR 279 (LC)
— 337
Naude v MEC, DOH, Mpumalanga (2009) 30 ILJ 910 (LC)
— 152
Naude v MEC for Department of Health & Social Services, Mpumalanga Province (2008) 29 ILJ 1540 (LC)
— 495
NBCCMI (KZN Chamber) v Glamour Fashions Worker Primary Co-operative (2018) 39 ILJ 1737 (LAC)
— 34
NBCRFI v Carlbank Mining Contracts (2012) 33 ILJ 1808 (LAC)
— 501
Ndala v Value Truck Rental [1995] 9 BLLR 138 (IC)
— 240
Ndamase v Fyfe-King 1939 EDL 259
— 331
NDCAWU v Cummins Emission Solutions (2014) 35 ILJ 2222 (LC)
— 124, 209
Ndikumdavy v Valkenberg Hospital (2012) 33 ILJ 2648 (LC)
— 34, 79
Ndima v Waverley Blankets; Sithukuza v Waverley Blankets (1999) 20 ILJ 1563 (LC)
— 35, 425
4th Ed, 2022, p 550
Ndlambe Municipality v CCMA (2008) 29 ILJ 2263 (LC)
— 95–96
Ndlovu / Chapelat Industries [1999] 8 BALR 996 (IMSSA)
— 250
Ndlovu v Supercare Cleaning (1995) 4 LCD 338 (IC)
— 200
Ndudane v Premier of the Eastern Cape (2022) 43 ILJ 438 (ECB)
— 215
Nedbank v SASBO obo Greenaway (2022) 43 ILJ 2085 (LC)
— 213
Nedcor Bank v Frank (2002) 23 ILJ 1243 (LAC)
— 213
Nedcor Bank v Jappie [1998] 10 BLLR 1002 (LAC)
— 213, 220
Negro v Continental Spinning & Knitting Mills 1954 (2) SA 203 (W)
— 199, 331
NEHAWU obo Barnes and Department of Foreign Affairs (2001) 22 ILJ 1292 (BCA)
— 222, 308
NEHAWU obo Cornelius v High Rustenburg Estate (2016) 37 ILJ 1183 (LC)
— 431
NEHAWU obo Members Providing Essential Health Services v Minister of Health (2020) 41 ILJ 1724 (LC)
— 172, 225, 492
NEHAWU obo Mofokeng v Charlotte Theron Children’s Home (2004) 25 ILJ 2195 (LAC)
— 144
NEHAWU v Agricultural Research Council (2000) 5 LLD 403 (LC)
— 382
NEHAWU v McGladdery NO (2012) 33 ILJ 1236 (LC)
— 80
NEHAWU v Medicor t/a Vergelegen Medi-Clinic (2005) 26 ILJ 501 (LC)
— 336, 367
NEHAWU v Minister of Trade, Industry & Competition (2021) 42 ILJ 1992 (LC)
— 389
NEHAWU v Pressing Metal Industries (1998) 19 ILJ 1477 (LC)
— 499
NEHAWU v SAIMR [1997] 2 BLLR 146 (IC)
— 420
NEHAWU v UCT (2000) 21 ILJ 1618 (LC)
— 160, 426
NEHAWU v UCT (2002) 23 ILJ 306 (LAC)
— 431
NEHAWU v UCT (2003) 24 ILJ 95 (CC)
— 159, 431
NEHAWU v University of Fort Hare (1998) 19 ILJ 122 (LC)
— 382
NEHAWU v University of Pretoria (2006) 27 ILJ 117 (LAC)
— 395
Nel / PEC Group [2004] 6 BALR 727 (CCMA)
— 235
Nelspruit Drycleaners v SACCAWU (1994) 15 ILJ 283 (LAC)
— 479
Nel v Oudtshoorn Municipality (2013) 34 ILJ 1737 (SCA)
— 509
Nel v Transnet Bargaining Council [2010] 1 BLLR 61 (LC)
— 178
Nemadzivhanani v University of Venda (2020) 41 ILJ 1343 (LAC)
— 260
Netherburn Engineering t/a Netherburn Ceramics v Mudau NO (2009) 30 ILJ 1521 (CC)
— 8
NETU v Henred Fruehauf Trailers [2000] 7 BLLR 804 (LC)
— 415
NETU v Meadow Feeds [1998] 1 BLLR 99 (CCMA)
— 69
Newcastle Municipality v Nzimande [2021] 1 BLLR 94 (LC)
— 58
New Denmark Colliery / NUM obo Mahlabane [2000] 12 BALR 1460 (IMSSA)
— 238
New Forest Farming v Cachalia (2003) 24 ILJ 1995 (LC)
— 336–337
NEWU v CCMA (2003) 24 ILJ 2335 (LC)
— 41
NEWU v Mintroad Saw Mills (1998) 19 ILJ 95 (LC)
— 382
Ngantwini / Daimler Chrysler [2000] 9 BALR 1061 (CCMA)
— 233, 234
Ngcongo v UNISA (2012) 33 ILJ 2100 (LC)
— 491
Ngewu v Union Co-operative Bark & Sugar Co 1982 (4) SA 390 (N)
— 464
Ngiba v Van Dyck Carpets (1988) 9 ILJ 453 (IC)
— 393
Ngobeni v Minister of Communications (2014) 35 ILJ 2506 (LC)
— 163
Ngobeni v PRASA Corporate Real Estate Solutions (2016) 37 ILJ 1704 (LC)
— 272, 491
Ngobeni v Vetsak (Co-op) (1984) 5 ILJ 205 (IC)
— 465
Ngobe v J P Morgan Chase Bank (2015) 36 ILJ 3137 (LC)
— 136
Ngozo v Scorpion Legal Protection (2008) 29 ILJ 1039 (LC)
— 114
Ngubeni v National Youth Development Agency (2014) 35 ILJ 1356 (LC)
— 101, 244, 514
Ngubo v Hermes Laundry Works (1990) 11 ILJ 591 (IC)
— 326
Ngutshane v Ariviakom t/a Arivia.kom (2009) 30 ILJ 2135 (LC)
— 211, 256, 265, 504
Ngwenya v Premier of KZN (2001) 22 ILJ 1667 (LC)
— 78
Niewoudt v All-Pak (2009) 30 ILJ 2451 (LC)
— 22
Niland v Ntabeni NO (2017) 38 ILJ 1686 (LC)
— 67, 70
Nitrophoska v CCMA (2011) 32 ILJ 1981 (LC)
— 259, 287, 458
Njikelana v Kruger NO (2019) 40 ILJ 2380 (LC)
— 58
Nkomo v Pick ’n Pay Retailers (1989) 10 ILJ 937 (IC)
— 239
Nkopo v Public Health & Welfare Bargaining Council (2002) 23 ILJ 520 (LC)
— 79
Nkosi v SSG Security Solutions (2020) 41 ILJ 1408 (LC)
— 405, 497
NMBMM v IMATU obo Tshabalala (2019) 40 ILJ 1021 (LAC)
— 208
Nodlele v Mount Nelson Hotel (1984) 5 ILJ 216 (IC)
— 194
Nogcantsi v Mnquma Local Municipality (2017) 38 ILJ 8 (LAC)
— 88–89
Nogoduka v Minister of the Department of Higher Education & Training [2017] 6 BLLR 634 (ECG).
— 31, 42
Nokeng Tsa Taemene Local Municipality v Louw NO [2019] 1 BLLR 35 (LAC)
— 68
Nonzamo Cleaning Services Co-operative v Appie (2008) 29 ILJ 2168 (E)
— 34
Norkie v Diskom Discount (2001) 22 ILJ 1851 (LC)
— 78
4th Ed, 2022, p 551
Northern Cape Allied Workers Union obo Sethlego v CCMA (2009) 30 ILJ 1299 (LC)
— 385
Ntabeni v MEC for Education, Eastern Cape (2001) 22 ILJ 2619 (Tk)
— 79, 201
NTE v SACWU (1990) 11 ILJ 43 (N)
— 464
NTM obo Molema v Botselo Holdings (2020) 41 ILJ 701 (LC)
— 484
NTM v PRASA (2018) 39 ILJ 560 (LAC)
— 289, 293, 297–298
Ntsaba v Eastern Province Textiles (1987) 8 ILJ 470 (IC)
— 475
Ntsabo v Real Security (2003) 24 ILJ 2341 (LC)
— 70, 138, 156, 524
Ntsangani v Golden Lay Farms (1992) 13 ILJ 1199 (IC)
— 393
Ntshangane v Speciality Metals (1998) 19 ILJ 584 (LC)
— 258
Ntshangase v MEC for Finance, KZN (2009) 30 ILJ 2653 (SCA)
— 188, 282, 283, 492
Ntshanga v SAB (2003) 24 ILJ 1404 (LC)
— 364, 367
Ntsibande v Union Carriage & Wagon Co (1993) 14 ILJ 1566 (IC)
— 224, 264
NUCCAWU v Transnet t/a Portnet (2000) 21 ILJ 2288 (LC)
— 19
NULAW v Bader Bop (2004) 25 ILJ 1469 (LC)
— 481, 484
NULAW v Barnard NO (2001) 22 ILJ 2290 (LAC)
— 35, 44, 46, 76–77, 461
NULAW v Crown Footware [2000] 6 BLLR 739 (LC)
— 272
NUM and RSA Geological Services (A Division of De Beers Consolidated Mines) (2004) 25 ILJ 410 (ARB)
— 295
NUM obo Botsane v Anglo Platinum Mine (Rustenburg Section) (2014) 35 ILJ 2406 (LAC)
— 179
NUM obo Employees v CCMA (2011) 32 ILJ 2104 (LAC)
— 471
NUM obo Matela / New Vaal Colliery [1999] 3 BLLR 332 (IMSSA)
— 258
NUM obo Members v Sibanye Stillwater (2021) 42 ILJ 174 (LC)
— 422
NUM obo Milisa v WBHO Construction [2016] 6 BLLR 642 (LC)
— 50
NUM obo Mngqola v VSB Construction t/a Techni-Civils [2018] 7 BLLR 700 (LC)
— 515, 516
NUM obo Nkuna / Western Deep Levels Mine [2000] 1 BALR 72 (IMSSA)
— 216
NUM obo Selemela v Northam Platinum (2013) 34 ILJ 3118 (LAC)
— 193
NUM obo Thuke and Palaborwa Mining Co (2010) 31 ILJ 1270 (CCMA)
— 216
NUMSA and VWSA (2001) 22 ILJ 771 (CCMA)
— 480
NUMSA and VWSA (2002) 23 ILJ 792 (ARB)
— 325, 327–328, 489
NUMSA obo 73 members / BEG Labour Engineering Supplies [2006] 8 BALR 777 (MEIBC)
— 51
NUMSA obo Davids / Bosal Africa [1999] 11 BALR 1327 (IMSSA)
— 190, 191, 217
NUMSA obo Dhludhlu v Marley Pipe Systems SA (2021) 42 ILJ 1924 (LAC)
— 302, 486
NUMSA obo Dlavana / Xstrata SA Wonderkop [2001] 4 BALR 385 (CCMA)
— 353
NUMSA obo Fohlisa and 41 others v Hendor Mining Supplies (a Division of Marschalk Beleggings) (2017) 38 ILJ 1560 (CC)
— 513
NUMSA obo Fortuin and Laborie Arbeidsburo (2003) 24 ILJ 1438 (BCA)
— 450
NUMSA obo Jama v Transnet Engineering Uitenhage [2018] 3 BLLR 301 (LC)
— 499
NUMSA obo Joseph and Hillside Aluminium (2004) 25 ILJ 2264 (BCA)
— 120
NUMSA obo Ketlhoilwe v Abancedisi Labour Brokers (2010) 31 ILJ 2142 (LC)
— 26, 455
NUMSA obo Khanyile v Dunlop Mixing & Technical Services (2018) 39 ILJ 2226 (LAC)
— 299–300
NUMSA obo Magadla and AMT Services (2003) 24 ILJ 1769 (BCA)
— 92
NUMSA obo Maifo v Ulrich Seats (2012) 33 ILJ 2918 (LC)
— 119
NUMSA obo Majoro / Purple Moss 1309 t/a Kopano Thermal Insulation [2008] 4 BALR 342 (MEIBC)
— 50
NUMSA obo Masha v Samancor (Eastern Chrome Mines) (2021) 42 ILJ 1881 (CC)
— 241
NUMSA obo Masuku / Marthinusen & Coutts [1998] 9 BALR 1170 (CCMA)
— 250
NUMSA obo Members and Bevcan (2006) 27 ILJ 414 (BCA)
— 42
NUMSA obo Members and TFM Cape (1999) 20 ILJ 3030 (CCMA)
— 32
NUMSA obo Members v Bell Equipment Co SA (2011) 32 ILJ 382 (LC)
— 389
NUMSA obo Members v SAA (In Business Rescue) (2020) 41 ILJ 1402 (LC)
— 364, 391
NUMSA obo Members v Timken SA (2009) 30 ILJ 2124 (LC)
— 410
NUMSA obo Members v Transnet (2019) 40 ILJ 583 (LC)
— 115
NUMSA obo Motloba v Johnson Controls Automotive SA (2017) 38 ILJ 1626 (LAC)
— 119, 325
NUMSA obo Mudi / Goodyear SA [2000] 7 BALR 789 (CCMA)
— 221
NUMSA obo Nganezi v Dunlop Mixing & Technical Services (2019) 40 ILJ 1957 (CC)
— 242, 300–301, 301, 302
NUMSA obo Ngele v Delta Motor Corporation (2002) 23 ILJ 1876 (LC)
— 238
NUMSA obo Ngoyi and Lapace Construction (2010) 31 ILJ 1275 (BCA)
— 26
NUMSA obo Swanepoel and Oxyon Services (2004) 25 ILJ 1136 (BCA)
— 357, 454
NUMSA obo Walton / Goodyear [2000] 12 BALR 1416 (CCMA)
— 354
NUMSA obo White and Lear Automotive Interiors (2005) 26 ILJ 1816 (BCA)
— 353
NUMSA obo Williams and Southern Wind Shipyard (2003) 24 ILJ 1454 (BCA)
— 41
NUMSA v Abancedisi Labour Services (2012) 33 ILJ 2824 (LAC)
— 26, 455
4th Ed, 2022, p 552
NUMSA v Anglo Gold Ashanti [2018] 11 BLLR 1128 (LC)
— 394
NUMSA v Atlantis Diesel Engines (1992) 13 ILJ 405 (IC)
— 373
NUMSA v Atlantis Diesel Engines (1993) 14 ILJ 642 (LAC)
— 374, 397–398, 407
NUMSA v Atlantis Forge (2005) 26 ILJ 1984 (LC)
— 180
NUMSA v Aunde SA (2010) 31 ILJ 133 (LC)
— 394
NUMSA v Aveng Trident Steel (A Division of Aveng Africa) (2019) 40 ILJ 2024 (LAC)
— 133–134, 402, 443
NUMSA v Aveng Trident Steel (A Division of Aveng Africa) (2021) 42 ILJ 67 (CC)
— 112, 134, 369, 439, 440, 441, 443
NUMSA v Bell Equipment (1990) 11 ILJ 391 (IC)
— 487
NUMSA v Benoni Engineering Works & Steel Foundry NH 11/2/1624 (IC)
— 326, 328
NUMSA v Boart MSA (1995) 16 ILJ 1469 (LAC)
— 125
NUMSA v Bonar Long NTC (SA) (1990) 11 ILJ 1147 (IC)
— 475
NUMSA v BTR Dunlop (2) (1989) 10 ILJ 727 (IC)
— 321, 326
NUMSA v CCMA [2002] 7 BLLR 632 (LC)
— 42
NUMSA v Comark Holdings (1997) 18 ILJ 516 (LC)
— 381, 405, 406, 508
NUMSA v Datco Lighting (1996) 17 ILJ 315 (IC)
— 477
NUMSA v Delta Motor Corporation [2002] 9 BLLR 817 (LAC)
— 178
NUMSA v Dorbyl (2004) 25 ILJ 1300 (LC)
— 377
NUMSA v Dorbyl (2007) 28 ILJ 1585 (LAC)
— 127
NUMSA v Driveline Technologies (2000) 21 ILJ 142 (LAC)
— 496, 499
NUMSA v Edelweiss Glass & Aluminium (2010) 31 ILJ 139 (LC)
— 511
NUMSA v Elm Street Plastics t/a ADV Plastics (1989) 10 ILJ 328 (IC)
— 287, 478, 483
NUMSA v Fibre Flair t/a Kango Canopies (1999) 20 ILJ 1859 (LC)
— 483
NUMSA v Fry’s Metals (2005) 26 ILJ 689 (SCA)
— 8, 46, 440
NUMSA v General Motors SA (2009) 30 ILJ 1861 (LC)
— 393
NUMSA v Genlux Lighting (2009) 30 ILJ 654 (LC)
— 366, 457
NUMSA v GM Vincent Metal Sections (1999) 20 ILJ 2003 (SCA)
— 478
NUMSA v Greenfields Labour Hire (2004) 25 ILJ 558 (LC)
— 384
NUMSA v G Vincent Metal Sections (1993) 14 ILJ 1318 (IC)
— 121
NUMSA v Hendor Mining Supplies (a Division of Marschalk Beleggings) (2007) 28 ILJ 1278 (LC)
— 448
NUMSA v Henred Fruehauf Trailers (1994) 15 ILJ 1257 (A)
— 176, 177, 293, 476
NUMSA v Industrial Protective Finishing (1990) 11 ILJ 1309 (IC)
— 487
NUMSA v John Thompson Africa (2002) 23 ILJ 1839 (LC)
— 406
NUMSA v Kaefer Energy Projects (2022) 43 ILJ 181 (LC)
— 200
NUMSA v Kaefer Thermal Contracting Services [2002] 6 BLLR 570 (LC)
— 382
NUMSA v Lectropower (2014) 35 ILJ 3205 (LC)
— 466
NUMSA v Lumex Clipsal [2002] 6 BLLR 511 (LAC)
— 441–442
NUMSA v Malcomess Toyota, a division of Malbak Consumer Products (1999) 20 ILJ 1867 (LC)
— 483
NUMSA v Nalva (1992) 13 ILJ 1207 (IC)
— 326
NUMSA v Pro Roof Cape (2005) 26 ILJ 1705 (LC)
— 470
NUMSA v Rafee NO (2016) 37 ILJ 2122 (LC)
— 212, 253
NUMSA v SA Five Engineering (2004) 25 ILJ 2358 (LC)
— 389
NUMSA v Shakespear Shopfitters (2008) 29 ILJ 1960 (LC)
— 389
NUMSA v Steloy Stainless Precision Casting [1995] 7 BLLR 87 (IC)
— 200
NUMSA v Success Panelbeaters & Service Centre t/a Score Panelbeaters & Service Centre (1999) 20 ILJ 1851 (LC)
— 430, 432
NUMSA v Tek Corporation (1990) 11 ILJ 721 (IC)
— 480
NUMSA v Tek Corporation (1991) 12 ILJ 577 (LAC)
— 470, 475
NUMSA v Three Gees Galvanising (1993) 14 ILJ 372 (LAC)
— 483
NUMSA v Tiger Wheels Limited Group [2001] 12 BLLR 1353 (LC)
— 378
NUMSA v Transnet National Ports Authority (2019) 40 ILJ 516 (LAC)
— 266, 305, 468, 484
NUMSA v Vetsak Co-operative (1991) 12 ILJ 564 (LAC)
— 464
NUMSA v Vetsak Co-operative (1996) 17 ILJ 455 (A)
— 288, 483, 528
NUMSA v Vital Engineering (1992) 1 LCD 68 (IC)
— 483
NUMSA v Wubbeling Engineering (1995) 16 ILJ 1489 (LAC)
— 479
NUMSA v Zeuna-Starker Bop (2002) 23 ILJ 2283 (LC)
— 129
NUM v Alexcor (2004) 25 ILJ 2034 (LC)
— 383
NUM v Amcoal Colliery & Industrial Operations (1990) 11 ILJ 1295 (IC)
— 479, 487
NUM v Amcoal Colliery t/a Arnot Colliery (2000) 5 LLD 226 (LAC)
— 179, 193, 194
NUM v Anglo American Research Laboratories [2005] 2 BLLR 148 (LC)
— 368, 410
NUM v Anglo Gold Ashanti (2019) 40 ILJ 407 (LC)
— 431
NUM v Ascoreg (1999) 20 ILJ 2649 (LC)
— 383
4th Ed, 2022, p 553
NUM v Billard Contractors (2006) 27 ILJ 1686 (LC)
— 262
NUM v Black Mountain Mineral Development Co (1994) 15 ILJ 1005 (LAC)
— 121, 125
NUM v Black Mountain Mining (2010) 31 ILJ 387 (LC)
— 119, 325
NUM v Blinkpan Collieries (1986) 7 ILJ 579 (IC)
— 267
NUM v Buffelsfontein Gold Mining (Beatrix Mines Division) (1988) 9 ILJ 341 (IC)
— 294
NUM v Buffelsfontein Gold Mining Co (1991) 12 ILJ 346 (IC)
— 326
NUM v CCMA (2007) 28 ILJ 1614 (LC)
— 280
NUM v CCMA (2008) 29 ILJ 378 (LC)
— 74
NUM v CCMA (2010) 31 ILJ 703 (LC)
— 205
NUM v CCMA (2011) 32 ILJ 956 (LC)
— 258, 264
NUM v CCMA (2011) 32 ILJ 1975 (LC)
— 385
NUM v CCMA (2015) 36 ILJ 2038 (LAC)
— 173, 297
NUM v Civil & General Contractors (2011) 32 ILJ 2709 (LC)
— 143
NUM v Coin Security Group t/a Protea Coin Group (2011) 32 ILJ 137 (LC)
— 366
NUM v Council for Mineral Technology (1998) 3 LLD 448 (LAC)
— 293
NUM v Crown Mines [2001] 7 BLLR 716 (LAC)
— 77
NUM v DB Contracting North (2013) 34 ILJ 971 (LC)
— 369–370
NUM v De Beers Consolidated Mines (2006) 27 ILJ 1909 (LAC)
— 86, 385
NUM v De Beers Group Services (2009) 30 ILJ 1880 (LC)
— 385
NUM v Doornfontein Gold Mining Co [1994] 9 BLLR 52 (IC)
— 211
NUM v East Rand Gold & Uranium (1986) 7 ILJ 739 (IC)
— 308
NUM v East Rand Gold & Uranium Co (1991) 12 ILJ 1221 (A)
— 465, 528, 529
NUM v East Rand Proprietary Mines (1987) 8 ILJ 315 (IC)
— 193
NUM v Ezulweni Mining Company (2017) 38 ILJ 448 (LC)
— 393
NUM v Free State Consolidated Gold Mines (Operations), President Steyn Mine; President Brand Mine, Freddies Mine (1995) 16 ILJ
1371 (A)
— 487
NUM v Fry’s Metals (2001) 22 ILJ 701 (LC)
— 131–133
NUM v Fry’s Metals (2005) 26 ILJ 689 (SCA)
— 133
NUM v Goldfield Security (1999) 20 ILJ 1553 (LC)
— 477
NUM v Haggie Rand (1991) 12 ILJ 1022 (LAC)
— 176, 483
NUM v Hernic Exploration (2003) 24 ILJ 787 (LAC)
— 495, 496
NUM v Kloof Gold Mining Co (1986) 7 ILJ 375 (IC)
— 208, 259
NUM v Miranda Coal Mining Co (1995) 16 ILJ 1155 (IC)
— 480
NUM v Mogale Gold, a Division of Mintails (SA) (2015) 36 ILJ 2815 (LAC)
— 173
NUM v Power Construction (2017) 38 ILJ 227 (LC)
— 472
NUM v Rand Mines Milling Co (1986) 7 ILJ 765 (IC)
— 274
NUM v Rustenburg Base Metals Refiners (1993) 14 ILJ 1094 (IC)
— 331, 347
NUM v Samancor (Tubatse Ferrochrome) (2011) 32 ILJ 1618 (SCA)
— 201, 263, 285, 351, 355
NUM v Seriti Coal t/a New Vaal Colliery (2021) 42 ILJ 2291 (LC)
— 511
NUM v Sibanye Gold (Kloof Division) (2018) 39 ILJ 2476 (LAC)
— 241
NUM v Tokiso Dispute Settlement (2010) 31 ILJ 2962 (LC)
— 497
NUM v Transvaal Navigation Collieries and Estate Co (1986) 7 ILJ 393 (IC)
— 193, 264
NUM v Unisel Gold Mines (1986) 7 ILJ 398 (IC)
— 269
NUM v Vryheid (Natal) Railway Coal & Iron Company (1986) 7 ILJ 587 (IC)
— 354
NUM v Western Areas Gold Mining Co (1985) 6 ILJ 380 (IC)
— 267
NUM v Western Holding Gold Mine (1993) 2 LCD 243 (IC)
— 328
NUM v Zinc Corporation of South Africa (LAC case no. 11/2/11462, undated and unreported)
— 245
NUPSAW obo Mani v NLB (2013) 34 ILJ 1931 (SCA)
— 153, 226
NUPSAW obo Mani v NLB (2014) 35 ILJ 1885 (CC)
— 115, 153, 226
NUPSAW v Mfingwana (2020) 41 ILJ 2190 (LC)
— 48, 56
NUPSW v Alberton Old Age Home (1990) 11 ILJ 494 (LAC)
— 483
NUTW v Braitex (1987) 8 ILJ 794 (IC)
— 373
NUTW v Stag Packings 1982 (4) SA 151 (T)
— 4
Nxele v Chief Deputy Commissioner, Corporate Services, Department of Correctional Services (2008) 29 ILJ 2708 (LAC)
— 504
Nxele v National Commissioner: DCS (2018) 39 ILJ 1799 (LC)
— 493
Nxumalo v Minister of Correctional Services (2016) 37 ILJ 177 (LC)
— 491
Nyalunga v PP Webb Construction (1990) 11 ILJ 819 (IC)
— 314
Nyamane v MEC: Free State DOH [2019] 12 BLLR 1371 (LC)
— 84
Nyembezi v NEHAWU [1997] 1 BLLR 94 (IC)
— 226, 241
O
Ocean Basket Airport v BCRCAT (2013) 34 ILJ 1569 (LC)
— 276, 519
4th Ed, 2022, p 554
OCGAWU and First Pro Engineering (2004) 25 ILJ 772 (BCA)
— 422
Oerlikon Electrodes SA v CCMA (2003) 24 ILJ 2188 (LC)
— 204
Okhahlamba Local Municipality v Mabuya (2022) 43 ILJ 198 (LC)
— 199, 530, 531
Olckers v Monviso Knitwear (1988) 9 ILJ 875 (IC)
— 240, 316
Old Mutual Life Assurance Co SA v Gumbi (2007) 28 ILJ 1499 (SCA)
— 8, 9, 99, 263, 355
Old Mutual Life Assurance SA v Makanda (2020) 41 ILJ 444 (LC)
— 235
Old Mutual v Motale (2020) 41 ILJ 1085 (GJ)
— 258
Oliver v Foschini Group (1995) 4 LCD 418
— 213
Olivier and Imperial Bank (2006) 27 ILJ 1049 (CCMA)
— 71
Olivier v AECI Plofstowwe & Chemikalieë, Bethal (1988) 9 ILJ 1052 (LC)
— 274
Oosthuizen v CAN Mining & Engineering Supplies (1999) 20 ILJ 910 (LC)
— 499
Oosthuizen v Telkom SA (2007) 28 ILJ 2531 (LAC)
— 394, 412
Orange Toyota (Kimberley) v Van der Walt (2000) 21 ILJ 2294 (LC)
— 239
Ouwehand v Hout Bay Fishing Industries (2004) 25 ILJ 731 (LC)
— 39
Overstrand Municipality v Magerman NO (2014) 35 ILJ 1366 (LC)
— 282
Owen v DOH, KZN (2009) 30 ILJ 2461 (LC)
— 22, 48, 59
P
P and B (unreported IMSSA award dated 15 September 1993)
— 311
Paarl Coldset v Singh (2022) 43 ILJ 2010 (LAC)
— 196
Pahlana v PetroSA (2022) 43 ILJ 212 (LC)
— 199, 331, 349, 358
Pailpac v De Beer NO (2021) 42 ILJ 1038 (LAC)
— 475
Palaborwa Mining Co v Cheetham (2008) 29 ILJ 306 (LAC)
— 187, 196, 218
Palace Engineering v Ngcobo (2014) 35 ILJ 1971 (LAC)
— 338
Palierakis v Atlas Carton & Litho (in liquidation) (2014) 35 ILJ 2839 (LC)
— 435
Palluci Home Depot v Herskowitz (2015) 36 ILJ 1511 (LAC)
— 223
Palmanor v Cedron [1978] IRLR 303
— 68
Panorama Park Retirement Village v CCMA (2020) 41 ILJ 1200 (LC)
— 171
Paramount Advanced Technologies v Barrier (2020) 41 ILJ 1414 (LC)
— 418
Parexel International v Chakane NO (2018) 39 ILJ 644 (LC)
— 349
Parexel International v Chakane NO (2019) 40 ILJ 2334 (LAC)
— 358
Parliament of the RSA v Charlton (2010) 31 ILJ 2353 (LAC)
— 162
Parmalat SA v CCMA (2017) 38 ILJ 2586 (LC)
— 356–357
Parmalat SA v CCMA [2009] 6 BLLR 558 (LC)
— 180
Parry v Astral Operations (2005) 26 ILJ 1479 (LC)
— 524
PAWUSA v Department of Education, Free State Province (2008) 29 ILJ 3013 (LC)
— 81
Payten / Premier Chemical Industries [1999] 8 BALR 922 (CCMA)
— 67
Pearson v Sheerbonnet SA (1999) 20 ILJ 1580 (LC)
— 33
Pecton Outsourcing Solutions v Pillemer NO (2016) 37 ILJ 693 (LC)
— 52–53
Penny v 600 SA Holdings (2003) 24 ILJ 967 (LC)
— 520, 521
PE Rack 4100 v Sanders (2013) 34 ILJ 1477 (LAC)
— 428
Performing Arts Council (Transvaal) v PPWAWU (1992) 13 ILJ 1439 (LAC)
— 478, 479
Performing Arts Council of the Transvaal v PPWAWU (1994) 15 ILJ 65 (A)
— 121, 465, 470, 475, 477
Perskor v MWASA (1991) 12 ILJ 86 (LAC)
— 121, 470
Perumal v Clover SA (2022) 43 ILJ 226 (LC)
— 406, 419
PETUSA obo Scott and Baci t/a D & G Fashions (1998) 3 LLD 508 (CCMA)
— 446
PE v Dr Beyers Naude Local Municipality (2021) 42 ILJ 1545 (ECG)
— 524
PG Group v Mbambo NO (2004) 25 ILJ 2366 (LC)
— 33, 34, 44
Phahlane v SAPS (2021) 42 ILJ 569 (LC)
— 492
Pharmaco Distribution v EWN (2017) 38 ILJ 2496 (LAC)
— 147
Phenithi v Minister of Education (2005) 26 ILJ 1231 (O)
— 79, 80, 81, 82, 284
Phenithi v Minister of Education (2006) 27 ILJ 477 (SCA)
— 80
Philander v La Maison (2014) 35 ILJ 3222 (LC)
— 273
Phillips v Fieldstone Africa (2004) 25 ILJ 1005 (SCA)
— 209
Phiri v Impala Platinum (1995) 16 ILJ 500 (IC)
— 241
Phuthi v CCMA (2016) 37 ILJ 2417 (LC)
— 258
Pick ’n Pay Retailers v JAMAFO obo Maluleke [2020] 12 BLLR 1229 (LAC)
— 213
Pick ’n Pay Supermarket v Boshomane [1995] 8 BLLR 8 (LAC)
— 240
Pienaar v Tony Cooper & Associates (1995) 16 ILJ 192 (IC)
— 18
Piet Wes Civils v AMCU (2019) 40 ILJ 130 (LAC)
— 54
Pik-It-Up Johannesburg v SALGBC (2011) 32 ILJ 2728 (LC)
— 58
Pilanesberg Platinum Mines v Ramabulana (2019) 40 ILJ 2723 (LAC)
— 101, 502
4th Ed, 2022, p 555
Piliso v Old Mutual Life Assurance Co (SA) (2007) 28 ILJ 897 (LC)
— 524
Pillay v Santam (2020) 41 ILJ 2695 (LC)
— 512, 529
Pitcher assisted by the Western Cape Omnibus & Salaried Staff Union v Golden Arrow Bus Service (1995) 16 ILJ 1201 (IC)
— 192
Plaschem v CWIU (1993) 14 ILJ 1000 (LAC)
— 478, 481
Plascon Evans Paints and SACWU (1990) ARB 8.3.3
— 212
Plascon Ink & Packaging Coating v Ngcobo (1997) 18 ILJ 327 (LAC)
— 287
POPCRU v DCS (2010) 31 ILJ 2433 (LC)
— 148, 155
POPCRU v Minister of Correctional Services (1999) 20 ILJ 2416 (LC)
— 258
POPCRU v Minister of Correctional Services (2006) 27 ILJ 555 (E)
— 8
POPCRU v Minister of Police NO [2014] 8 BLLR 796 (LC)
— 462
POPCRU v Minister of Safety & Security (2010) 31 ILJ 556 (GNP)
— 24
Porter Motor Group v Karachi (2002) 23 ILJ 348 (LAC)
— 415
Portnet (Cape Town) and SATAWU obo Lesch (2002) 23 ILJ 1675 (ARB)
— 219
Potgietersrus Platinum v CCMA (1999) 20 ILJ 2679 (LC)
— 174
Potgieter v George Municipality (2011) 32 ILJ 104 (WCC)
— 22
Potgieter v Tubatse Ferrochrome (2014) 35 ILJ 2419 (LAC)
— 163
PPWAWU and Plett Timbers (1997) 2 LLD 35 (CCMA)
— 417
PPWAWU obo Mtshishela / Farmex Components [2001] 8 BALR 820 (CCMA)
— 250
PPWAWU v Commissioner: CCMA (Port Elizabeth) [1998] 5 BLLR 499 (LC)
— 500
PPWAWU v Convertacor (1990) 11 ILJ 763 (IC)
— 287
PPWAWU v Delma (1989) 10 ILJ 424 (IC)
— 77
PPWAWU v Nasou-Via Afrika (a division of the National Education Group) (1999) 20 ILJ 2101 (LC)
— 495
PPWAWU v Uniply (1985) 6 ILJ 255 (IC)
— 321
PPWAWU v Urbans Industries [1996] 7 BLLR 894 (IC)
— 469
Pratten v Afrizun KZN (2020) 41 ILJ 2899 (LC)
— 412
Premier Medical & Industrial v Winkler 1971 (3) SA 866 (T)
— 209
Premier of Gauteng v Ramabulana (2008) 29 ILJ 1099 (LAC)
— 495, 496
Pretoria Society for the Care of the Retarded v Loots (1997) 18 ILJ 981 (LAC)
— 66
Pretorius v Blyvooruitzicht Gold Mining Co (1999) 20 ILJ 2917 (LC)
— 395
Pretorius v Britz [1997] 5 BLLR 649 (CCMA)
— 67
Pretorius v Rustenburg Local Municipality (2008) 29 ILJ 1113 (LAC)
— 419
Pritchard Cleaning Services v Grogan NO (1999) 20 ILJ 922 (LC)
— 422
Protect a Partner v Machaba-Abiodun (2013) 34 ILJ 392 (LC)
— 33
Provincial Commissioner, Gauteng SAPS v Mnguni (2013) 34 ILJ 1107 (SCA)
— 9
PSA obo Jafta v MEC for Transport, Safety & Liaison (Northern Cape) (2022) 43 ILJ 891 (LC)
— 84
PSA obo Khan v Tsabidi NO (2012) 33 ILJ 2117 (LC)
— 491
PSA obo Mbiza v Office of the Presidency (2014) 35 ILJ 1628 (LC)
— 519
PSA obo Mohlala v Minister of Home Affairs (2019) 40 ILJ 415 (LC)
— 81
PSA obo Molosiwa v Department of Education and Sports Development – North West [2020] 1 BLLR 67 (LC)
— 261, 283
PSA obo Van der Walt v Minister of Public Enterprises (2010) 31 ILJ 420 (LC)
— 81
PSA obo Van Rooyen / SAPS [2000] 6 BALR 733 (IMSSA)
— 316
PSA obo Venter v Laka NO (2005) 26 ILJ 2390 (LC)
— 275, 279
PTAWU obo Khoza v New Kleinfontein Gold Mine (2016) 37 ILJ 1728 (LC)
— 484
Q
Qalinga v CCMA [2019] 1 BLLR 40 (LAC)
— 237
Qwabe and Robertson’s Foods (2007) 28 ILJ 1356 (CCMA)
— 18
R
Raad van Mynvakbonde v Harmony Goudmynmaatskappy (1993) 14 ILJ 183 (LC)
— 412
Radebe v MEC: Health, Eastern Cape (2015) 36 ILJ 478 (LC)
— 17
Radebe v Premier, Free State 2012 (5) SA 100 (LAC)
— 163
Radebe v SA Quilt Manufacturers (1992) 1 LCD 80 (IC)
— 445
RAF v CCMA (2011) 32 ILJ 707 (LC)
— 491
Rainbow Farms v CCMA [2011] 5 BLLR 451 (LAC)
— 238
Rainbow Farms v Dorasamy NO (2014) 35 ILJ 3462 (LC)
— 214, 220
Ramabulana v Pilansberg Platinum Mines (2015) 36 ILJ 2333 (LC)
— 99, 101
Ramonetha v Department of Roads and Transport, Limpopo (2018) 39 ILJ 384 (LAC)
— 84–85
Ramotsepane v Barmot Truck Hire [2002] 6 BLLR 525 (LAC)
— 125, 479
4th Ed, 2022, p 556
Rampersad v BB Bread (1986) 7 ILJ 367 (IC)
— 194
Ramsammy v Wholesale & Retail SETA (2009) 30 ILJ 1927 (LC)
— 163
Randall v Karan t/a Karan Beef Feedlot (2010) 31 ILJ 2449 (LC)
— 146
Randall v Progress Knitting Textiles (1992) 13 ILJ 200 (IC)
— 61
Randburg Town Council v NUPSW (1994) 15 ILJ 129 (LAC)
— 317–318
Rand Mutual and NUM (1990) ARB 8.17.8
— 200
Rand Water Board / NETU obo Weber [1998] 5 BALR 650 (IMSSA)
— 237
Rand Water Staff Association obo Snyman and Rand Water (2001) 22 ILJ 1461 (ARB)
— 212
Rand Water v Stoop (2013) 34 ILJ 576 (LAC)
— 521
Raol Investments t/a Thekwini Toyota v Madala (2008) 29 ILJ 267 (SCA)
— 142, 205
Raol Investments t/a Thekwini Toyota v Madala 2008 (1) SA 551 (SCA)
— 144
Rapoo v Rustenburg Local Municipality [2020] 6 BLLR 533 (LAC)
— 522
Raseroka v SAA (2020) 41 ILJ 978 (LC)
— 88
Ravhura v Zungu NO (2015) 36 ILJ 1615 (LC)
— 100, 491
Rawlins v Kemp t/a Centralmed (2010) 31 ILJ 2325 (SCA)
— 519
RAWUSA v Schuurman Metal Pressing (2004) 25 ILJ 2376 (LC)
— 387
Reckitt & Colman (SA) v Bales (1994) 15 ILJ 782 (LAC)
— 65, 286, 415
Reckitt & Colman (SA) v CWIU (1991) 12 ILJ 806 (LAC)
— 292
Reddi v UKZN (2015) 36 ILJ 1915 (LC)
— 491
Reddy v University of Natal (1998) 19 ILJ 49 (LAC)
— 232, 233
Revan Civil Engineering Contractors v NUM (2012) 33 ILJ 1846 (LAC)
— 86, 100, 387, 388
Reynolds and Priday (2004) 25 ILJ 629 (CCMA)
— 210
Rheinmetall v NBCCI (2015) 36 ILJ 2117 (LC)
— 339
Rheinmetall v NBCCI (2016) 37 ILJ 2099 (LC)
— 339
Rhode and Amsteele Systems (2012) 33 ILJ 2749 (BCA)
— 168, 413
Riekert v CCMA (2006) 27 ILJ 1706 (LC)
— 256, 260
Rikhotso v Transvaal Alloys (1984) 5 ILJ 228 (IC)
— 465, 480
Riverview Manor v CCMA (2003) 24 ILJ 2196 (LC)
— 67
Road Accident Fund v CCMA (2011) 32 ILJ 707 (LC)
— 248
Robbertze v Matthew Rustenburg Refineries (Wadeville) (1986) 7 ILJ 64 (IC)
— 274, 275
Roberts and WC Water Comfort (1999) 4 LLD 117 (LC)
— 77
Roberts Brothers Construction v NUM (2020) 41 ILJ 2107 (LAC)
— 474, 477
Robertson & Caine v CCMA (2001) 22 ILJ 2488 (LC)
— 324
Roberts v WC Water Comfort (1999) 4 LLD 117 (LC)
— 421, 525
Robineau v Schenker SA (2020) 41 ILJ 1648 (LAC)
— 33
Robinson and Sun Couriers (2003) 24 ILJ 655 (CCMA)
— 334
Robinson v PriceWaterhouseCoopers (2006) 27 ILJ 836 (LC)
— 144, 412
Rockcliffe v Mincom (2008) 29 ILJ 399 (LC)
— 146
Rockliffe v Mincom (2007) 28 ILJ 2041 (LC)
— 112
Rogers v Exactocraft (2015) 36 ILJ 277 (LC)
— 419
Roos / Serfontein [2001] 1 BALR 41 (CCMA)
— 68
Rosond v Western Platinum (2017) 38 ILJ 454 (LC)
— 428
Rossouw / Charl Meyer t/a Capwest Moulding Components [1999] 3 BALR 249 (CCMA)
— 67
Rossouw v SA Mediese Navorsingsraad (1987) 8 ILJ 660 (IC)
— 274
Rostoll v Leeupoort Minerale Bron (1987) 8 ILJ 366 (IC)
— 222, 223
RSA Geological Services (a Division of De Beers Consolidated Mines) v Grogan (2008) 29 ILJ 406 (LC)
— 295
RTMC v Tasima; Tasima v RTMC (2020) 41 ILJ 2349 (CC)
— 425, 428, 429
Rubenstein v Price’s Daelite (2002) 23 ILJ 528 (LC)
— 166, 167
Rubin Sportswear v SACTWU (2004) 25 ILJ 1671 (LAC)
— 145, 146, 167, 432, 434
Rustenburg Platinum Mines (Bafokeng Rasimone Platinum Mine) v CCMA (2007) 28 ILJ 408 (LC)
— 178, 180
Rustenburg Platinum Mines (Rustenburg section) v CCMA (1998) 19 ILJ 327 (LC)
— 494
Rustenburg Platinum Mines (Rustenburg Section) v CCMA (2006) 27 ILJ 2076 (SCA)
— 183, 184, 185, 522
Rustenburg Platinum Mines v CCMA [2004] 1 BLLR 34 (LAC)
— 183
Rustenburg Platinum Mines v Monnapula [2003] 9 BLLR 909 (LC)
— 495
Rustenburg Platinum Mine v SAEWA obo Bester (2018) 39 ILJ 1503 (CC)
— 204
Rustenburg Town Council v Minister of Labour 1942 TPD 220
— 40
R v Smit 1955 (1) SA 239 (C)
— 464
S
SAA (in Business Rescue) v NUMSA obo Members (2020) 41 ILJ 2113 (LAC)
— 391
Saaiman v De Beers Consolidated Mines (Finsch Mine) (1995) 16 ILJ 1551 (IC)
— 171
4th Ed, 2022, p 557
SAAPAWU v HL Hall & Sons (Group Services) (1999) 20 ILJ 399 (LC)
— 35, 76, 461
SAA v Bagopa (2007) 28 ILJ 2718 (LAC)
— 412
SAA v Jansen van Vuuren (2014) 35 ILJ 2774 (LAC)
— 522
SAAWU (in liquidation) v De Klerk NO (1992) 13 ILJ 1123 (A)
— 465, 481
SAAWU v Dorbyl Automotive Products (1988) 9 ILJ 680 (IC)
— 62
SAAWU v Nampak Products (1987) 8 ILJ 452 (IC)
— 474
SAAWU v Steiner Services (1988) 9 ILJ 895 (IC)
— 267
SA Bank of Athens v Cellier NO (2009) 30 ILJ 197 (LC)
— 59
SABC v CCMA (2001) 22 ILJ 487 (LC)
— 201, 263, 284
SABC v CCMA (2002) 23 ILJ 1549 (LAC)
— 92
SABC v CCMA (2020) 41 ILJ 493 (LC)
— 503
SABC v CCMA [2002] 8 BLLR 693 (LAC)
— 285
SABC v CCMA [2006] 6 BLLR 587 (LC)
— 106
SABC v Grogan NO (2006) 27 ILJ 1519 (LC)
— 235
SABC v Keevy [2020] 6 BLLR 607 (LC)
— 283
SABC v Phasha (2021) 42 ILJ 816 (LAC)
— 38, 259
SAB v CCMA [2012] 8 BLLR 811 (LC)
— 214
SAB v FAWU (1992) 1 LCD 16 (LAC)
— 271
SAB v Hansen (2017) 38 ILJ 1766 (LAC)
— 202
SAB v Hansen [2016] 5 BLLR 516 (LC)
— 205
SAB v Louw (2018) 39 ILJ 189 (LAC)
— 411–412, 413
SACCAWU and Pep Stores (1998) 19 ILJ 939 (CCMA)
— 302, 303
SACCAWU and Pick ’n Pay Hypermarket (Northgate) (2004) 25 ILJ 1820 (ARB)
— 190, 256
SACCAWU / Diskom Discount Stores [1997] 6 BLLR 819 (CCMA)
— 267
SACCAWU obo Mabunza / Standard Bank SA [1998] 9 BALR 1185 (CCMA)
— 268
SACCAWU obo Mokebe v Pick ’n Pay Retailers (2018) 39 ILJ 201 (LAC)
— 469, 478, 484, 485
SACCAWU obo Mvuyana v Oyster Box Hotel (2018) 39 ILJ 2337 (LC)
— 401
SACCAWU obo Peter / Hessel Cash & Carry [2001] 1 BALR 48 (CCMA)
— 217
SACCAWU obo Ramonthle v Sun City (2018) 39 ILJ 436 (LC)
— 471
SACCAWU obo Ramontlhe v Sun City (2020) 41 ILJ 160 (LAC)
— 178, 328, 476
SACCAWU obo Sandi / Solly Kramer [1999] 10 BALR 1207 (CCMA)
— 239
SACCAWU obo Sikhundla and Radisson Blu Hotel Waterfront (2010) 31 ILJ 1500 (CCMA)
— 205
SACCAWU obo Waterson / JDG Trading [1999] 3 BALR 353 (IMSSA)
— 214, 312
SACCAWU v Amalgamated Retailers (2002) 23 ILJ 165 (LC)
— 394
SACCAWU v Cashbuild [1996] 4 BLLR 457 (IC)
— 238, 302
SACCAWU v Checkers Shoprite (1996) 17 ILJ 753 (IC)
— 228
SACCAWU v Check One (2012) 33 ILJ 1922 (LC)
— 475
SACCAWU v Edgars Stores (1997) 18 ILJ 1064 (LC)
— 93
SACCAWU v Gallo Africa (2005) 26 ILJ 2397 (LC)
— 401, 416
SACCAWU v Irvin & Johnson (1999) 20 ILJ 2302 (LAC)
— 177, 293, 310, 475
SACCAWU v Irvin & Johnson (Sea Foods Division Fish Processing) (2000) 21 ILJ 330 (LAC)
— 270
SACCAWU v Irvin & Johnson (Sea Foods Division Fish Processing) (2000) 21 ILJ 1583 (CC)
— 270
SACCAWU v JDG Trading (2019) 40 ILJ 140 (LAC)
— 391
SACCAWU v Mahawane Country Club (2002) 23 ILJ 902 (LAC)
— 224
SACCAWU v Massmart Holdings (2020) 41 ILJ 2403 (CAC)
— 509
SACCAWU v Shakoane (2000) 21 ILJ 1963 (LAC)
— 94
SACCAWU v Southern Sun Hotel Interests (2017) 38 ILJ 463 (LC)
— 389
SACCAWU v Western Province Sports Club t/a Kelvin Grove Club (2008) 29 ILJ 3038 (LC)
— 431
SACCAWU v Wimpy Aquarium [1998] 9 BLLR 965 (LC)
— 415, 422
SACCAWU v Woolworths (2019) 40 ILJ 87 (CC)
— 398, 510
SA Cleaning Services v STEMCWU [2000] 9 BLLR 116 (LC)
— 500
SACTWU / Dermar Fashions [1997] 2 BLLR 235 (CCMA)
— 417
SACTWU / Nettex [2002] 3 BALR 245 (AMSSA)
— 173
SACTWU obo Baatjies and Pep Stores (2004) 25 ILJ 632 (CCMA)
— 303
SACTWU v Berg River Textiles – A Division of Seardel Group Trading (2012) 33 ILJ 972 (LC)
— 149, 150, 470
SACTWU v Cadema Industries [2008] 8 BLLR 790 (LC)
— 57
SACTWU v Discreto (a division of Trump & Springbok Holdings) (1998) 19 ILJ 1451 (LAC)
— 374
SACTWU v Martin Johnson (1993) 14 ILJ 1033 (LAC)
— 190
SACTWU v Mediterranean Textile Mills (2010) 31 ILJ 2694 (LC)
— 470–471, 510
SACTWU v Ninian & Lester (1995) 16 ILJ 1041 (LAC)
— 226, 324
SACTWU v Novel Spinners [1999] 11 BLLR 1157 (LC)
— 179, 305, 476
SACTWU v R Stumpfe t/a Die Lederhandler, George (1992) 13 ILJ 388 (IC)
— 209
4th Ed, 2022, p 558
SACTWU v Rubin Sportswear (2003) 24 ILJ 429 (LC)
— 167
SACTWU v SA Clothing Industries; Mtambo v SA Clothing Industries (1993) 14 ILJ 983 (LAC)
— 62
SACTWU v Yarntex t/a Bertrand Group (2010) 31 ILJ 2986 (LC)
— 485
SACU v Telkom SA (2020) 41 ILJ 1425 (LC)
— 400
SACWU obo Le Roux / Midas Paints [2001] 6 BALR 652 (CCMA)
— 220
SACWU obo Reeding and Plastamid (1999) 4 LLD 394 (CCMA)
— 328
SACWU v Afrox (1998) 19 ILJ 62 (LC)
— 126
SACWU v Afrox (1999) 20 ILJ 1718 (LAC)
— 117, 126, 127, 135, 368, 375, 376, 381, 399, 438, 465
SACWU v Agrihold (1992) 1 LCD 246 (IC)
— 240
SACWU v Dyasi [2001] 7 BLLR 731 (LAC)
— 43, 65, 81, 201, 263, 285
SACWU v Engen Petroleum (1998) 19 ILJ 1568 (LC)
— 430, 431
SACWU v NCP Chlorchem (2007) 28 ILJ 1308 (LC)
— 205, 206
SACWU v Noristan Holdings (1987) 8 ILJ 682 (IC)
— 129
SACWU v Plascon Ink & Packaging Coatings (1991) 12 ILJ 353 (IC)
— 479
SACWU v Plascon Paints (Tvl) [1997] 12 BLLR 1550 (LAC)
— 220
SACWU v Sentrachem (1988) 9 ILJ 410 (IC)
— 62
SACWU v Storm Plastics (1993) 14 ILJ 367 (LAC)
— 459
SACWU v Toiletpak Manufacturers (1988) 9 ILJ 295 (IC)
— 62
SADTU v Minister of Education (2001) 22 ILJ 2325 (LC)
— 130
Sadulla v Jules Katz & Co (1997) 18 ILJ 1482 (CCMA)
— 232
SAEWA obo Bester v Rustenburg Platinum Mine (2017) 38 ILJ 1779 (LAC)
— 204
SAFA v Mangope (2013) 34 ILJ 311 (LAC)
— 101, 503, 526
Saldanha Bay Municipality v SAMWU obo Wilschut (2016) 37 ILJ 1003 (LC)
— 78
SALDCDAWU v Advance Laundries t/a Stork Napkins (1985) 6 ILJ 544 (IC)
— 487
SA Library for the Blind v CCMA (2019) 40 ILJ 422 (LC)
— 339
SALSTAFF obo Bezuidenhout and Metrorail (2) (2001) 22 ILJ 2531 (BCA)
— 27, 65, 68
SALSTAFF obo Brink and Portnet (2002) 23 ILJ 628 (BCA)
— 279
SALSTAFF obo Janse Van Vuuren and Transnet t/a Transwerk (2002) 23 ILJ 2153 (BCA)
— 329
SALSTAFF obo Van Niekerk / SAA [1999] 2 BALR 218 (IMSSA)
— 210
SALSTAFF v Swiss Port South Africa [2003] 3 BLLR 295 (LC)
— 68
Samancor (Eastern Chrome Mines) v CCMA (2020) 41 ILJ 2135 (LAC)
— 241
Samancor Chrome (Eastern Chrome Mines) v NUM obo Mahlangu [2019] 1 BLLR 82 (LC)
— 241
Samancor Tubatse Ferrochrome v MEIBC (2010) 31 ILJ 1838 (LAC)
— 75, 104, 263, 351
Samancor v MEIBC (2009) 30 ILJ 389 (LC)
— 350, 366–367
SAMA obo Pietz v DOH, Gauteng (2017) 38 ILJ 2297 (LAC)
— 519
SA Metal & Machinery Co v Gamaroff [2010] 2 BLLR 136 (LAC)
— 145, 146
SAMSA v McKenzie (2010) 31 ILJ 529 (SCA); 2010 (3) SA 601 (SCA)
— 9, 10, 13, 99, 101, 502, 523
Samson v CCMA (2010) 31 ILJ 170 (LC)
— 178
Samtor Tankers v Kule (1993) 14 ILJ 1038 (LAC)
— 258
Samuels and B & G Displays (2005) 26 ILJ 1145 (BCA)
— 39
SA Mutual Life Assurance Society v IBSA [2001] 9 BLLR 1045 (LAC)
— 336, 364, 367, 368, 410
SAMWU obo Abrahams v City of Cape Town (2008) 29 ILJ 1978 (LC)
— 256, 288, 292
SAMWU obo Abrahams v City of Cape Town (2011) 32 ILJ 3018 (LC)
— 292
SAMWU obo Cindi v SALGBC (2017) 38 ILJ 472 (LC)
— 277
SAMWU obo Jacobs v City of Cape Town (2015) 36 ILJ 484 (LC)
— 289–290
SAMWU obo Matola v Mbombela Municipality (2011) 32 ILJ 2748 (LC)
— 257, 491
SAMWU obo Peni and City of Tygerberg (1998) 3 LLD 429 (CCMA)
— 240
SAMWU v Arbuthnot (2014) 35 ILJ 2434 (LAC)
— 163
SAMWU v City of Johannesburg (2018) 39 ILJ 894 (LC)
— 432
SAMWU v Ethekwini Municipality (2017) 38 ILJ 158 (LAC)
— 226, 321, 325
SAMWU v Ethekwini Municipality [2019] 1 BLLR 46 (LAC)
— 516
SAMWU v Kannaland Municipality (2010) 31 ILJ 1819 (LAC)
— 365
SAMWU v Ngaka Modiri Molema District Municipality (2016) 37 ILJ 2430 (LC)
— 258
SAMWU v Rand Airport Management Co (2005) 26 ILJ 67 (LAC)
— 158–159, 160, 425, 426
Sanders v Cell C Provider Company (2010) 31 ILJ 2722 (LC)
— 428
SANDF v Blaauw (2021) 42 ILJ 2672 (LC)
— 47, 48
Sanny v Van der Westhuizen [2005] 10 BLLR 1017 (LC)
— 259
SA Polymer Holdings t/a Mega-Pipe v Llale (1994) 15 ILJ 277 (LAC)
— 393, 394
SAPO v CCMA (2011) 32 ILJ 2442 (LAC)
— 310
SAPO v Mampeule (2009) 30 ILJ 664 (LC)
— 33, 34, 44–45, 51
SAPO v Mampeule (2010) 31 ILJ 2051 (LAC)
— 33, 34, 45, 49, 50
Sappi Novaboard v Bolleurs (1998) 19 ILJ 784 (LAC)
— 213, 220
4th Ed, 2022, p 559
Sappi Timber Industries t/a Boskor Sawmill v CCMA (2003) 24 ILJ 846 (LC)
— 496
SAPS v Magwaxaza (2020) 41 ILJ 408 (LAC)
— 259, 312
SAPS v POPCRU obo Mmatli (2021) 42 ILJ 358 (LAC)
— 207
SAPS v Van der Merwe NO (2013) 34 ILJ 1579 (LC)
— 316
SARHWU obo Mthembu / SAA [1999] 2 BALR 227 (IMSSA)
— 220
SARPA v SA Rugby (2008) 29 ILJ 2218 (LAC)
— 59
SARS v CCMA (2009) 30 ILJ 2961 (LC)
— 59
SARS v CCMA (2010) 31 ILJ 1238 (LC)
— 280
SARS v CCMA (2016) 37 ILJ 655 (LAC)
— 87, 102, 205, 280, 281
SARS v CCMA (2017) 38 ILJ 97 (CC)
— 100, 202, 206, 245, 275, 280, 281, 283, 509, 516
SARU v Watson (2019) 40 ILJ 1052 (LAC)
— 351, 446
SASBO – Finance Union v Absa Bank [2011] 12 BLLR 1232 (LC)
— 389
SASBO obo Fourie v Nedbank (2020) 41 ILJ 500 (LC)
— 385, 391
SASBO v Standard Bank of SA (2022) 43 ILJ 1794 (LAC)
— 213
Sasol Mine v Nhlapo (2021) 42 ILJ 2589 (LAC)
— 477
Sasol Mining v CCMA (2015) 36 ILJ 2359 (LC)
— 241
Sasol Nitro v NBCCI (2017) 38 ILJ 2322 (LAC)
— 258
SATAWU obo Collins / Spoornet [2002] 8 BALR 825 (AMSSA)
— 203
SATAWU obo Dube v Fidelity Supercare Cleaning Services Group (2015) 36 ILJ 1923 (LC)
— 51
SATAWU obo Finca v Old Mutual Life Assurance Co (SA) (2006) 27 ILJ 1204 (LC)
— 524
SATAWU obo Langa v Zebediela Bricks (2011) 32 ILJ 428 (LC)
— 43, 285, 286
SATAWU obo Radebe and Metrorail Wits (2001) 22 ILJ 2372 (ARB)
— 250
SATAWU obo Zimu and Group 4 Securicor Security Services (2009) 30 ILJ 1674 (CCMA)
— 242
SATAWU v Forecourt Express [2003] 8 BLLR 823 (LC)
— 398
SATAWU v IKAPA Coaches (A Division of Cullinan Holdings) (2021) 42 ILJ 894 (LC)
— 382
SATAWU v Ikhwezi Bus Service (2009) 30 ILJ 205 (LC)
— 179, 328
SATAWU v Khulani Fidelity Security Services (2011) 32 ILJ 130 (LAC)
— 366
SATAWU v MSC Depots (2013) 34 ILJ 706 (LC)
— 493
SATAWU v Platinum Mile Investments t/a Transition Transport (2008) 29 ILJ 1742 (LC)
— 164
SATAWU v Servest Security – A division of Servest Group (2022) 43 ILJ 426 (LC)
— 115
SA Tourism Board v CCMA [2004] 3 BLLR 272 (LC)
— 256
SATU obo Van As v Kohler Flexible Packaging Cape (2002) 23 ILJ 1248 (LAC)
— 417
Sayles v Tartan Steel [2000] 2 BLLR 161 (LAC)
— 420, 421
SA Yster, Staal- en Verwante Nywerhede Unie v ASEA Electric SA (1988) 9 ILJ 463 (IC)
— 190
SBV Services v CCMA (2013) 34 ILJ 996 (LC)
— 514
Schatz v Elliott International (2008) 29 ILJ 2286 (LC)
— 426
Schierhout v Union Government 1926 AD 286
— 4
Schmahmann v Concept Communications Natal (1997) 18 ILJ 1333 (LC)
— 166
Schneier & London v Bennett 1927 TPD 346
— 199
Scholtz v Sacred Heart College (2001) 22 ILJ 722 (LC)
— 511
Schuster v Capab Orchestra (1992) 13 ILJ 1607 (IC)
— 287
Schutte v Powerplus Performance (1999) 20 ILJ 655 (LC)
— 425
Schweitzer v Waco Distributors (a Division of Voltex) (1998) 19 ILJ 1573 (LC)
— 44, 145, 146, 166, 167
Screenex Wire Weaving Manufacturing v Ngema (2010) 31 ILJ 361 (LAC)
— 403, 409
Seabolo / Belgravia Hotel [1997] 6 BLLR 829 (CCMA)
— 201
Seardel Group t/a Cape Underwear Manufacturers v SATAWU [2009] 10 BLLR 1219 (LC)
— 519
Secunda Supermarket t/a Secunda Spar v Dreyer NO (1998) 19 ILJ 1584 (LC)
— 64
Securitas Specialised Services v Kabelane (2021) 42 ILJ 833 (LAC)
— 113
Seema v GPSSBC (2005) 26 ILJ 2037 (LC)
— 79, 80, 263
Sekgobela v SITA (2008) 29 ILJ 1995 (LC)
— 163
Semenya SC v CCMA (2006) 27 ILJ 1627 (LAC)
— 247, 262, 276
Sentraal-Wes (Koöperatief) v FAWU (1990) 11 ILJ 977 (LAC)
— 121, 470
Setcom v Dos Santos (2011) 32 ILJ 1434 (LC)
— 519
Seven Abel t/a The Crest Hotel v HRWU (1990) 11 ILJ 504 (LAC)
— 284
Sheriff of the High Court, Rustenburg v High Rustenburg Hydro (2011) 32 ILJ 1249 (LC)
— 431
Shezi v SAPS (2021) 42 ILJ 184 (LC)
— 491, 492
Shoprite Checkers v CCMA (1998) 19 ILJ 892 (LC)
— 239
Shoprite Checkers v CCMA (2008) 29 ILJ 2581 (LAC)
— 187, 239, 510
Shoprite Checkers v CCMA (2009) 30 ILJ 829 (SCA)
— 8
Shoprite Checkers v CCMA [2008] 12 BLLR 1211 (LAC)
— 239, 515
Shoprite Checkers v JL (2022) 43 ILJ 903 (LC)
— 69
Shoprite Checkers v Nkosi (2022) 43 ILJ 1386 (LC)
— 66
Shoprite Checkers v Ramdaw NO (2000) 21 ILJ 1232 (LC)
— 193
Sibanye Gold v CCMA (2021) 42 ILJ 2467 (LC)
— 418
Sibeko v Xstrata Coal SA (2016) 37 ILJ 1230 (LC)
— 516
4th Ed, 2022, p 560
Sibisi v Ganpath (2003) 24 ILJ 857 (LC)
— 530
Sibisi v Gelvenor Textiles (1985) 6 ILJ 122 (IC)
— 200
Sibiya v Arivia.kom (2008) 29 ILJ 1556 (LC).
— 430
Sibiya v NUM (1996) 1 LLD 128 (IC)
— 245
Sibiya v SAPS (2021) 42 ILJ 577 (LC)
— 270
Sibiya v SAPS (2022) 43 ILJ 1805 (LAC)
— 514
Sidumo v Rustenburg Platinum Mines (2007) 28 ILJ 2405 (CC)
— 8, 175, 182, 185, 186, 187, 188, 191, 195, 196, 278, 407, 505, 522
Sihlali v SABC (2010) 31 ILJ 1477 (LC)
— 39–40, 40
Sikhosana v Sasol Synthetic Fuels (2000) 21 ILJ 649 (LC)
— 106, 383–384, 394, 403
Silicone Smelters / NUMSA obo Makhobotloane [2000] 4 BALR 468 (IMSSA)
— 329
Simelane v Audell Metal Products (1987) 8 ILJ 438 (IC)
— 110
Simelane v Letamo Estate (2007) 28 ILJ 2053 (LC)
— 405, 529
Simmadari v Absa Bank (2018) 39 ILJ 1819 (LC)
— 522
Simmers v Campbell Scientific Africa (2014) 35 ILJ 2866 (LC)
— 233
Simpson / Forklift Rental and Technical Services t/a Forktech [2005] 10 BALR 1098 (CCMA)
— 235
Sindane v Prestige Cleaning Services (2010) 31 ILJ 733 (LC)
— 45, 51
Singh v eThekwini Municipality (Treasury Department) (2015) 36 ILJ 769 (LC)
— 178
Singh v Mondi Paper (2000) 21 ILJ 966 (LC)
— 395
SITA v CCMA (2008) 29 ILJ 2234 (LAC)
— 18
Sithole v Ingwe Collieries (2005) 26 ILJ 2136 (T)
— 511
Sithole v MEIBC (2018) 39 ILJ 472 (LC)
— 79
Slade v The Pretoria Rent Board 1943 TPD 246
— 268
Slagment v BCAWU (1994) 15 ILJ 979 (A)
— 225, 276, 441–442
Smith and Broll Property Group (2003) 24 ILJ 1427 (CCMA)
— 419
Smith and Magnum Security (1997) 2 LLD 50 (CCMA)
— 64, 69
Smith and Partners in Sexual Health (2011) 32 ILJ 1470 (CCMA)
— 252
SmithKline Beecham v CCMA (2000) 21 ILJ 988 (LC)
— 71
Smith v Courier Freight (2008) 29 ILJ 420 (LC)
— 382
Smith v Kit Kat Group (2017) 38 ILJ 483 (LC)
— 147
Smith v Office of the Chief Justice (2018) 39 ILJ 1357 (LC)
— 48
SN v Sky Services [2019] 5 BLLR 504 (LC)
— 157
Solidarity/MWU obo Van Staden v Highveld Steel & Venadium (2005) 26 ILJ 2045 (LC)
— 279
Solidarity obo Bouwer v Arivia t/a Arivia.kom (2010) 31 ILJ 2730 (LC)
— 518
Solidarity obo Kotze v PHWSBC (2010) 31 ILJ 3022 (LC)
— 80
Solidarity obo Kruger v Transnet (2021) 42 ILJ 852 (LAC)
— 209
Solidarity obo Liebenberg-Botes v Lyttelton Dolomite t/a Afrimat (2020) 41 ILJ 1438 (LC)
— 42, 90
Solidarity obo Members v Barloworld Equipment Southern Africa (2022) 43 ILJ 1757 (CC)
— 381
Solidarity obo McCabe v SAIMR [2003] 9 BLLR 927 (LC)
— 111
Solidarity obo Steyn v Minister of Correctional Services (2009) 30 ILJ 2508 (LC)
— 79
Solidarity obo Strydom v SITA (2022) 43 ILJ 1881 (LC)
— 146
Solidarity obo Van Tonder v ARMSCOR (2019) 40 ILJ 1539 (LAC)
— 68
Solidarity obo Wehncke v Surf4cars (2011) 32 ILJ 3037 (LC)
— 133
Solidarity v ARMSCOR (2019) 40 ILJ 535 (LAC)
— 350, 461, 510, 517
Solidarity v PHWSBC (2014) 35 ILJ 2105 (SCA)
— 83
Solidarity v SABC (2016) 37 ILJ 2888 (LC)
— 99, 101, 224, 529
Solidarity v SAPS (2019) 40 ILJ 448 (LC)
— 266
Solid Doors v Commissioner Theron (2004) 25 ILJ 2337 (LAC)
— 65
Solomons and Usabco (2002) 23 ILJ 786 (CCMA)
— 417
Sol Plaatje Municipality v SALGBC (2022) 43 ILJ 145 (LAC)
— 237, 258
Somi v Old Mutual Africa Holdings (2015) 36 ILJ 2370 (LC)
— 99, 101
Somyo v Ross Poultry Breeders [1997] 7 BLLR 862 (LAC)
— 228, 333, 336, 337, 343, 346
Sondiyazi / Pep Stores [1999] 11 BALR 1315 (CCMA)
— 303
Sookunan and SAPO (2000) 21 ILJ 1923 (CCMA)
— 232
Sosibo and Ceramic Tile Market (2001) 22 ILJ 811 (CCMA)
— 250
Southern Sun Hotel Interests v CCMA (2010) 31 ILJ 452 (LC)
— 178
Southern v Franks Charlesly and Co [1981] IRLR 278
— 40
Spar Eastern Cape Distribution Centre v THORN [2021] 12 BLLR 1264 (LC)
— 124, 475
Spar Eastern Cape Distribution Centre / Warnie [2021] 10 BALR 1104 (CCMA)
— 124
Spar Group v Sea Spirit Trading 162 t/a Paledi (2018) 39 ILJ 1990 (LAC)
— 426
Specialised Belting & Hose v Sello NO [2009] 7 BLLR 704 (LC)
— 258
Spoornet and SATAWU obo Mampetlane (2002) 23 ILJ 1090 (BCA)
— 329
Spoornet / TWU obo Du Plessis [1998] 7 BALR 973 (IMSSA)
— 352
Springbok Trading v Zondani (2004) 25 ILJ 1681 (LAC)
— 42
SRV Mills Services v CCMA (2004) 25 ILJ 135 (LC)
— 178
4th Ed, 2022, p 561
SSC Infrasek v CCMA (2021) 42 ILJ 2473 (LC)
— 178, 180
Standard Bank of SA v CCMA (1998) 19 ILJ 903 (LC)
— 213, 220, 239
Standard Bank of SA v CCMA (2008) 29 ILJ 1239 (LC)
— 147, 349
Standard Bank of SA v Chiloane (2021) 42 ILJ 863 (LAC)
— 31, 42, 246
Standard Bank of SA v Leslie (2021) 42 ILJ 1080 (LAC)
— 516
Stander v ELRC (2011) 32 ILJ 972 (LC)
— 189
Statistics SA v Molebatsi (2019) 40 ILJ 2603 (LC)
— 492
Steenkamp v Edcon (NUMSA intervening) (2016) 37 ILJ 564 (CC)
— 86–87, 245, 388
Stellenbosch Municipality v SALGBC (2022) 43 ILJ 2100 (LC)
— 283
STEMCWU v Brano Industries (2000) 21 ILJ 666 (LC)
— 469
Stevenson v Sterns Jewellers (1986) 7 ILJ 318 (IC)
— 333, 336, 343, 445
Stewart Wrightson v Thorpe 1977 (2) SA 943 (A)
— 4
Steyn / Crown National [2002] 5 BALR 546 (CCMA)
— 210
Steynsfield Restaurants v Ndlovu (1994) 15 ILJ 297 (LAC)
— 437
Steyn v Driefontein Consolidated t/a West Driefontein (2001) 22 ILJ 231 (LC)
— 403
Stocks Civil Engineering v Rip NO (2002) 23 ILJ 358 (LAC)
— 501
Stofberg / Dunlop Tyres SA [2000] 5 BALR 930 (CCMA)
— 220
Stokwe v MEC: Department of Education, Eastern Cape (2019) 40 ILJ 773 (CC)
— 261
Stoop v Rand Water (2014) 35 ILJ 1391 (LC)
— 521
Stratford v Investec Bank (2015) 36 ILJ 583 (CC)
— 76
Straud v Steel Engineering Co (1993) 2 LCD 259 (IC)
— 220
Strydom / Usko [1997] 3 BLLR 343 (CCMA)
— 239, 279
Strydom v Nederduitse Gereformeerde Gemeente Moreleta Park (2009) 30 ILJ 868 (EqC)
— 16
Strydom v T-Systems SA (2012) 33 ILJ 2978 (LC)
— 434
Subrumuny and ABI (2000) 21 ILJ 2780 (ARB)
— 351, 369, 446
Sugreen and Standard Bank of SA (2002) 23 ILJ 1319 (CCMA)
— 250
Sun Couriers v CCMA (2002) 23 ILJ 189 (LC)
— 334–335
Supergroup Supply Chain Partners v Dlamini (2013) 34 ILJ 108 (LAC)
— 403, 410
S v Mokgethi 1990 (1) SA 32 (A)
— 117
S v Safatsa 1988 (1) SA 868 (A)
— 301
S v Singo 1993 (1) SACR 226 (A)
— 301
Swanepoel v Leica Geosystems AG (2014) 35 ILJ 2877 (LC)
— 428
Swart and Mr Video (1998) 19 ILJ 1315 (CCMA)
— 165
Swartbooi / Department of Transport [2002] 8 BALR 812 (BC)
— 270
Swart v Greenmachine Horticultural Services (A Division of Sterikleen) (2010) 31 ILJ 180 (LC)
— 137
Sylvester / Neil Muller Constructions [2002] 1 BALR 113 (CCMA)
— 222, 235
T
Taljaard and Securicor (2003) 24 ILJ 1167 (CCMA)
— 232
Tanker Services v Magudulela [1997] 12 BLLR 1552 (LAC)
— 216, 217
TAWU obo Mabele / Autonet [1999] 9 BALR 1164 (CCMA)
— 257
TAWUSA obo Ngedle v Unitrans Fuel and Chemical (2016) 37 ILJ 2485 (CC)
— 124
TAWUSA obo Tau v Barplats Mine (Crocodile River Mine) (2009) 30 ILJ 2791 (LC)
— 304
TAWU v Natal Co-operative Timber (1992) 13 ILJ 1154 (D)
— 437, 438
Taxi-Trucks Parcel Express v NBCRFI (2012) 33 ILJ 2985 (LC)
— 217, 219
Taylor v Alidair [1978] IRLR 82
— 333
Taylor v ILC Independent Loss Consultants (2011) 32 ILJ 2006 (LC)
— 404
Teeney v Hullett Aluminium (1995) 4 LCD 121 (IC)
— 207
Telkom SA v CCMA (2002) 23 ILJ 536 (LC)
— 279
Telkom SA v Van Staden (2021) 42 ILJ 869 (LC)
— 412
TEUSA obo Hibbert / Chalmers Engineering [1999] 3 BALR 369 (IMSSA)
— 344
TFD Network Africa v Faris (2019) 40 ILJ 326 (LAC)
— 149, 165
TFD Network Africa v Singh NO (2017) 38 ILJ 1119 (LAC)
— 224
TGWU obo Joseph / Gray Security Services (Western Cape) [1999] 20 BALR 698 (CCMA)
— 254
TGWU v Bayete Security Holdings (1999) 20 ILJ 1117 (LC)
— 140
TGWU v City Council of Durban (1991) 12 ILJ 156 (IC)
— 373, 397
TGWU v De la Rey’s Transport (1999) 20 ILJ 2731 (LC)
— 469
TGWU v Interstate Bus Lines (1988) 9 ILJ 877 (IC)
— 222, 259
TGWU v Keeley Forwarding & Stevedoring (1990) 11 ILJ 554 (IC)
— 406
Thabane / Thales Geosolutions [2002] 3 BALR 331 (CCMA)
— 354
Theewaterskloof Municipality v SALGBC (Western Cape Division) (2010) 31 ILJ 2475 (LC)
— 189, 242
4th Ed, 2022, p 562
Thekiso v IBM South Africa (2007) 28 ILJ 177 (LC)
— 144, 168, 413
Themba v Mintroad Sawmills (2015) 36 ILJ 1355 (LC)
— 511
Themba v Niko Van Rooyen Taksidermie (1984) 5 ILJ 245 (IC)
— 465
Thobela v Apollo Bricks (2021) 42 ILJ 1940 (LAC)
— 302, 486
Thomas v Fidelity Corporate Services (2007) 28 ILJ 424 (LC)
— 389
Tiger Brands t/a Albany Bakeries v Levy NO (2007) 28 ILJ 1827 (LC)
— 304, 365
Timothy v Nampak Corrugated Containers (2010) 31 ILJ 1844 (LAC)
— 222
Tlou v CCMA (2020) 41 ILJ 1445 (LC)
— 517
TMT Services & Supplies v CCMA (2019) 40 ILJ 150 (LAC)
— 224
Topics v CCMA (1998) 3 LLD 475 (LC)
— 495
Top v Top Riezen (2006) 27 ILJ 1948 (LC)
— 521
Tosca Labs v CCMA (2012) 33 ILJ 1738 (LC)
— 217
Total SA v Meyer (2021) 42 ILJ 1696 (LAC)
— 519
Townsend v Roche Products (1994) 15 ILJ 886 (IC)
— 270
Toyota SA Motors v CCMA (2016) 37 ILJ 313 (CC)
— 28, 29
Toyota SA Motors v Lewis [2012] 9 BLLR 945 (LC)
— 214
Toyota SA Motors v Nzuza (2020) 41 ILJ 908 (LAC)
— 502
Toyota SA Motors v Radebe (2000) 21 ILJ 340 (LAC)
— 182, 220, 240, 274, 278, 318
Transnet Freight Rail v TBC (2011) 32 ILJ 1766 (LC)
— 217, 219
Transnet Rail Engineering v TBC (2012) 33 ILJ 1481 (LC)
— 237
Transnet t/a Transnet Freight Rail v NUMSA obo Manku (2021) 42 ILJ 1948 (LAC)
— 59
Transnet v CCMA (2008) 29 ILJ 1289 (LC)
— 519
Transport Fleet Maintenance v NUMSA (2004) 25 ILJ 104 (LAC)
— 31–32, 432
Transvaal Mattress and Furniture Co and NUMSA & PPWAWU (1990) ARB 8.18.17
— 328
Trellidor v NUMSA obo Ndwalane (2022) 43 ILJ 1331 (LAC)
— 475
Trident Steel v CCMA (2005) 26 ILJ 1519 (LC)
— 263, 285
Triple Anchor Motors v Buthelezi (1999) 20 ILJ 1527 (LAC)
— 471
TR McDuling and MIF (1998) 3 LLD 198 (CCMA)
— 447
True Blue Foods t/a Kentucky Fried Chicken v CCMA (2015) 36 ILJ 1375 (LC)
— 304
Trustees for the time being of the National Bioinformatics Network Trust v Jacobsen (2009) 30 ILJ 2513 (LC)
— 248
TSB Sugar RSA (now RCL Food Sugar) v Dorey (2019) 40 ILJ 1224 (LAC)
— 162
Tsengwa v Knysna Municipality (2015) 36 ILJ 2392 (LC)
— 289
Tshabalala v Minister of Health 1987 (1) SA 513 (W)
— 470
Tshenolo Waste v Sekgoro (2021) 42 ILJ 2693 (LC)
— 512
Tshivhandekano v Minister of Mineral Resources (2018) 39 ILJ 1847 (LC)
— 100
Tshongweni v Ekhuruleni Metropolitan Municipality (2010) 31 ILJ 3027 (LC)
— 247, 520
TSI Holdings v NUMSA (2004) 25 ILJ 1080 (LC)
— 448, 450
TSI Holdings v NUMSA (2006) 27 ILJ 1483 (LAC)
— 448, 451, 453, 454
Tsika v Buffalo City Municipality (2009) 30 ILJ 105 (E)
— 9, 504
Tubatse Chrome v MEIBC (2013) 34 ILJ 2333 (LC)
— 201
Tuckers Land and Development Corporation v Hovis 1980 (1) SA 645 (A)
— 38
Twani / Hillbank Motor Corporation [2001] 12 BALR 1283 (MIBCO)
— 77
Tzaneng Treated Timbers v NBCWPS (2022) 43 ILJ 1348 (LAC)
— 219
U
UAMAWU v Fodens (SA) (1983) 4 ILJ 212 (IC)
— 321, 412
UASA obo Fortuin and Golden Arrow Bus Services (2004) 25 ILJ 1142 (BCA)
— 350
UASA – The Union obo Maribe v Coca Cola Fortune (2021) 42 ILJ 2702 (LC)
— 47, 48
Uber SA Technology Services v NUPSAW (2018) 39 ILJ 903 (LC)
— 16
Ubuntu Education Fund v Paulsen (2019) 40 ILJ 2524 (LAC)
— 339
UCT v Auf der Heyde (2001) 22 ILJ 2647 (LAC)
— 396, 420
Ukweza Holdings v Nyondo (2020) 41 ILJ 1354 (LAC)
— 47, 59
UKZN v Pillay (2019) 40 ILJ 158 (LAC)
— 273
Unilever SA v Salence [1996] 5 BLLR 547 (LAC)
— 381, 415
Unilong Freight Distributors v Muller (1998) 19 ILJ 229 (SCA)
— 228, 337, 340
Union of Pretoria Municipal Workers v Stadsraad van Pretoria (1992) 13 ILJ 1563 (IC)
— 260, 315–316
UNISA v Solidarity obo Marshall (2009) 30 ILJ 2146 (LC)
— 275
UNISA v Stapelberg NO (2019) 40 ILJ 2610 (LC)
— 518
United National Breweries (SA) v Khanyeza (2006) 27 ILJ 150 (LAC)
— 395
United Tobacco Co v Baudach (1997) 18 ILJ 506 (LAC)
— 42
Unitrans Zululand v Cebekhulu [2003] 7 BLLR 688 (LAC)
— 107, 108
Universal Church of the Kingdom of God v Myeni (2015) 36 ILJ 2832 (LAC)
— 19, 21
4th Ed, 2022, p 563
Universal Product Network v Mabaso (2006) 27 ILJ 991 (LAC)
— 412
University of Pretoria v CCMA (2012) 33 ILJ 183 (LAC)
— 60
University of the North v Franks (2002) 23 ILJ 1252 (LAC)
— 400, 422
UPSCO v SACM (2021) 42 ILJ 2371 (CC)
— 529, 531
UPUSA v Grinaker Duraset (1998) 19 ILJ 107 (LC)
— 405
UPUSA v Pro-Plan Office Furniture (1993) 2 LCD 100 (IC)
— 460
Uthingo Management v Shear NO (2009) 30 ILJ 2152 (LC)
— 27
Uys v Imperial Car Rental (2006) 27 ILJ 2702 (LC)
— 135
V
Vaal Toyota (Nigel) v MIBCO [2002] 10 BLLR 936 (LAC)
— 176
Value Logistics v Basson (2011) 32 ILJ 2552 (LC)
— 66
Van Aarde v Suid-Afrikaanse Nasionale Lewensassuransie Maatskappy (1994) 3 LCD 375 (IC)
— 336, 345
Van As v Colin Katz & Associates (1992) 1 LCD 103 (IC)
— 336
Van der Grijp v City of Johannesburg (2007) 28 ILJ 2079 (LC)
— 261
Van der Merwe and Becker (2004) 25 ILJ 1349 (CCMA)
— 65–66
Van der Merwe v McDuling Motors [1998] 3 BLLR 332 (LC)
— 395
Van der Velde v Business & Design Software (2006) 27 ILJ 1225 (LC)
— 160, 429
Van der Velde v Business & Design Software (2006) 27 ILJ 1738 (LC)
— 160
Van Eyk v Minister of Correctional Services (2005) 26 ILJ 1039 (E)
— 260, 261
Van Niekerk v Cheque Guarantee Services (2001) 22 ILJ 728 (LC)
— 511
Van Rensburg v Austen Safe Co (1998) 19 ILJ 158 (LC)
— 377, 382, 396, 405, 528
Van Rooyen v Blue Financial Services (SA) (2010) 31 ILJ 2735 (LC)
— 412
Van Rooy v Nedcor Bank (1998) 19 ILJ 1258 (LC)
— 241
Van Vuuren v Mondelez SA (2019) 40 ILJ 1106 (LC)
— 403
Van Wyk v Independent Newspapers Gauteng (2005) 26 ILJ 2433 (LC)
— 240
Van Zyl and DOL (1998) 19 ILJ 951 (CCMA)
— 168
Van Zyl NO v CCMA (2012) 33 ILJ 2471 (LC)
— 35
Van Zyl v Duva Opencast Services (1988) 9 ILJ 905 (IC)
— 308
Vemisani Security Services v Mmusi: In re Mmusi v Vemisani Security Services (2013) 34 ILJ 440 (LC)
— 414
Vermeulen v Investgold [2015] 4 BLLR 447 (LC)
— 398
Verwey v VWSA [1996] 9 BLLR 1198 (IC)
— 241
Vickers v Aquahydro Projects (1999) 20 ILJ 1308 (LC)
— 398
Viedge v Rhodes University [2019] 3 BLLR 318 (ECG)
— 87, 101, 281
Viljoen v Nketoana Municipality (2003) 24 ILJ 437 (LC)
— 520
Visser and Woolworths (2005) 26 ILJ 2250 (CCMA)
— 309
Visser v Mopani District Municipality (2012) 33 ILJ 321 (SCA)
— 510
Visser v Safair Freighters (1989) 10 ILJ 529 (IC)
— 343
Visser v SAIMR (1998) 19 ILJ 1616 (LC)
— 381
Visser v Sanlam (2001) 22 ILJ 666 (LAC)
— 382
Visser v Sanlam [2000] 8 BLLR 969 (LC)
— 382
Vodacom v Gilde (2008) 29 ILJ 1762 (LC)
— 206
Volkwyn / Truworths [2002] 4 BALR 455 (CCMA)
— 222
Volvo (Southern Africa) v Yssel (2009) 30 ILJ 2333 (SCA)
— 209
Vorster v Rednave Enterprises t/a Cash Converters Queenswood (2009) 30 ILJ 407 (LC)
— 135
VRN Steel v NUMSA (1995) 16 ILJ 1483 (LAC)
— 476, 477
VSB Construction t/a Techni-Civils v NUM obo Mngqola (2021) 42 ILJ 2407 (LAC)
— 203, 517
Vundla and Ashley Motors (2003) 24 ILJ 272 (BCA)
— 172
VWSA v Brand NO (2001) 22 ILJ 993 (LC)
— 472, 489
W
Wallis v Thorpe (2010) 31 ILJ 1254 (LC)
— 65
Walsh v SG: Eastern Cape DOH (2019) 40 ILJ 1328 (LC)
— 82
Walsh v SG: Eastern Cape DOH (2021) 42 ILJ 1461 (LAC)
— 83
Walsh v SG: Eastern Cape DOH [2020] 7 BLLR 730 (LC)
— 82–83
Walters v Transitional Local Council of Port Elizabeth (2000) 21 ILJ 2723 (LC)
— 158
Wanda v Toyota SA Marketing, a Division of Toyota SA Motors [2003] 2 BLLR 224 (LAC)
— 382
Wardlaw v Supreme Mouldings (2004) 25 ILJ 1094 (LC)
— 61, 135
Wardlaw v Supreme Mouldings (2007) 28 ILJ 1042 (LAC)
— 112, 135, 143, 494, 499
Wasteman Group v SAMWU (2012) 33 ILJ 2054 (LAC)
— 222, 324
4th Ed, 2022, p 564
Waverley Blankets v Ndima (1999) 20 ILJ 2564 (LAC)
— 76
WBHO Construction v Hlatshwayo NO (2020) 41 ILJ 2144 (LAC)
— 209, 475
Weder v MEC DOH, Western Cape (2013) 34 ILJ 1315 (LC)
— 84
Wentworth and WH Saffer (2002) 23 ILJ 959 (CCMA)
— 337
Wereley v Productivity SA (2020) 41 ILJ 997 (LC)
— 88
Western Cape Education Department v Baatjes (2022) 43 ILJ 1353 (LAC)
— 208
Western Cape Education Department v GPSSBC (2013) 34 ILJ 2960 (LC)
— 66
Western Cape Education Department v GPSSBC (2014) 35 ILJ 3360 (LAC)
— 66
Western Cape Nature Conservation t/a Cape Nature v CCMA (2022) 43 ILJ 1394 (LC)
— 353
Western Platinum Refinery v Hlebela (2015) 36 ILJ 2280 (LAC)
— 296–297, 298, 300, 301
Westmeyer / Wynne-Clarke [2006] 8 BALR 842 (CCMA)
— 235
Westonaria Local Municipality v SALGBC [2010] 3 BLLR 342 (LC)
— 215
WESUSA v Jacobsz (2000) 21 ILJ 1680 (LC)
— 469
W G Davey v NUMSA (1999) 20 ILJ 2017 (SCA)
— 478
Whall v Brandadd Marketing (1999) 20 ILJ 1314 (LC)
— 383, 392, 418
Wheeler v Pretoria Propshaft Centre (1999) 20 ILJ 2982 (IC)
— 375
Whitehead v Woolworths (1999) 20 ILJ 2133 (LC)
— 15, 21, 312
Whitehead v Woolworths (2000) 21 ILJ 571 (LAC)
— 21, 165, 166
White / Medpro Pharmaceuticals [2000] 10 BALR 1182 (CCMA)
— 334, 345
Whitfield v Inyati Game Lodge (1995) 4 LCD 178 (IC)
— 245
Wienand v Pharmanatura (2013) 34 ILJ 1012 (LC)
— 34
Williams v Gilbeys Distillers & Vintners (1993) 2 LCD 327 (IC)
— 240, 258
Wilson v Prinsloo: In re Prinsloo v Expidor 163 t/a The League of Gentlemen (2021) 42 ILJ 1714 (LAC)
— 17
Wiltshire v University of the North (2005) 26 ILJ 2440 (LC))
— 400
Wium v Zondi [2002] 11 BLLR 1117 (LC)
— 275, 279, 312
Wolfaardt v IDC (2002) 23 ILJ 1610 (LC)
— 365, 367–368
Woolworths v CCMA (2022) 43 ILJ 839 (LAC)
— 200
Woolworths v Mabija (2016) 37 ILJ 1380 (LAC)
— 189
Woolworths v SACCAWU (2016) 37 ILJ 2831 (LAC)
— 214
Woolworths v SACCAWU (2018) 39 ILJ 222 (LAC)
— 386
Woolworths v Whitehead (2000) 21 ILJ 571 (LAC)
— 139, 140, 141
Workers Labour Consultants obo Petrus Khoza v Zero Appliances (1999) 4 LLD 733 (LC)
— 395
Workforce Group v McLintock (2017) 28 ILJ 2517 (LAC)
— 220
World Luxury Hotels Awards v De Wet (2018) 39 ILJ 808 (LAC)
— 419
Wright v St Mary’s Hospital (1992) 13 ILJ 987 (IC)
— 445
WSSA v King Cetshwayo District Municipality (2020) 41 ILJ 2493 (LC)
— 428
Wubbeling Engineering v NUMSA (1997) 18 ILJ 935 (SCA)
— 486
Wyeth SA v Manqele (2005) 26 ILJ 749 (LAC)
— 22, 312
Wyeth SA v Manqele [2003] 7 BLLR 734 (LC)
— 21–22
X
Xaba v Everite (1985) 6 ILJ 255 (IC)
— 321
Xaxa v Cokile NO (2021) 42 ILJ 1791 (LC)
— 515
Ximba v LTA Earthworks (North) (1992) 13 ILJ 1513 (IC)
— 417
Xinwa v VWSA (2003) 24 ILJ 1077 (CC)
— 470
Xstrata SA (Lydenburg Alloy Works) v NUM obo Masha (2016) 37 ILJ 2313 (LAC)
— 509, 515, 517
X / Y [2006] 10 BALR 1057 (CCMA)
— 235
Y
Yanta v Minister of Education and Culture, KwaZulu 1992 (3) SA 54 (N)
— 79
Yichiho Plastics and SACTWU (1991) 12 ILJ 1395 (ARB)
— 274
Yichiho Plastics v Muller (1994) 15 ILJ 593 (LAC)
— 264
Yichiho Plastics v SACTWU (1996) 17 ILJ 648 (LAC)
— 485
Young v Coega Development Corporation (1) (2009) 30 ILJ 1776 (ECP)
— 492
Young v Coega Development Corporation (2) (2009) 30 ILJ 1786 (ECP)
— 164, 492
Young v Lifegro Assurance (1991) 12 ILJ 1256 (LAC)
— 406
Z
Zabala v Gold Reef City Casino [2009] 1 BLLR 94 (LC)
— 152
ZA One t/a Naartjie Clothing v Goldman NO (2013) 34 ILJ 2347 (LC)
— 227
Zapop v CCMA (2016) 37 ILJ 1882 (LAC)
— 518
Zeda Car Leasing t/a Avis Fleet v Van Dyk (2020) 41 ILJ 1360 (LAC)
— 363, 521
4th Ed, 2022, p 565
Zero Appliances v CCMA (2007) 28 ILJ 1836 (LC)
— 387
Zihlangu / Welkom TLC [2000] 10 BALR 1191 (CCMA)
— 220
Zikhethele Trade v COSAWU (2007) 28 ILJ 2742 (LAC)
— 426
Zilwa Cleaning & Gardening Services v CCMA (2010) 31 ILJ 780 (LC)
— 512, 513, 520
Zolwayo / Sparrow Task Force Engineering [2006] 6 BALR 599 (MEIBC)
— 51
Zondi and PPM Security Services (2009) 30 ILJ 981 (CCMA)
— 75
Zondi and SAPS (2011) 32 ILJ 1796 (BCA)
— 313
Zondo v Uthukela District Municipality (2015) 36 ILJ 502 (LC)
— 267
Zono v Gruss NO [2011] 9 BLLR 873 (LAC)
— 224, 261, 509
Zono v National Commissioner of Correctional Services NO (2020) 41 ILJ 2447 (LAC)
— 509
Zungu v Premier, Province of KZN (2017) 38 ILJ 1644 (LAC)
— 499
Zungu v Premier of the Province of KZN (2018) 39 ILJ 523 (CC)
— 245, 499, 528
Dismissal / Table of legislation
Table of legislation
A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
A
4th Ed, 2022, p 566
Agricultural Labour Act 147 of 1993
— 7
Arbitration Act 42 of 1965
— 501, 504
s 33 — 501, 504
s 35(2) — 531
B
Basic Conditions of Employment Act 75 of 1997
— 7, 16, 22, 31, 33, 41, 44, 61, 99, 100, 101, 135, 224, 246, 355, 403, 417, 420, 421, 432, 502, 510, 511, 514
s 10(1) — 200
s 23 — 355
s 25 — 60
s 27(2)(b) — 135
s 34 — 437
s 35(4) — 518
s 37(6) — 523
s 41 — 416–417, 420
s 41(2) — 525
s 41(4) — 415, 421
s 41(10) — 417, 418
s 77(3) — 99, 100, 245, 502, 503
s 84(1) — 418
C
Close Corporations Act 69 of 1984
— 33, 99
Companies Act 61 of 1973
— 461
Companies Act 71 of 2008
— 33, 44, 76, 435
Compensation for Occupational Injuries and Diseases Act 130 of 1993
— 120, 524
s 35(1) — 524
Constitution of the Republic of South Africa, 1996
— 7, 80, 116, 156, 360, 441, 503
Bill of Rights — 28, 41
s 9 — 138
s 23 — 9
s 23(1) — 231
Constitution Seventeenth Amendment Act 2012
— 8
Co-operatives Act 14 of 2005
— 34
Sch 1, item 6(1) — 34
Criminal Procedure Act 51 of 1977
s 252A — 249
D
Defence Act 42 of 2002
— 86
s 59 — 80
s 59(1)(d) — 80, 85
E
Education Labour Relations Act 46 of 1993
— 6
Employment Equity Act 55 of 1998
— 7, 70, 114, 138, 144, 145, 146, 148, 152, 155, 157, 164, 168, 229, 230, 231, 232, 352, 513, 522, 523, 524
s 1 definition of “people with disabilities” — 146–147, 349
s 2 — 168
s 6 — 138
s 6(1) — 140, 230
s 6(2)(a) — 168
s 6(3) — 229
s 7 — 353
s 7(2) — 353
s 10 — 138
s 10(1) — 522, 524
s 11 — 143
s 12(2)(e) — 413
s 15(2)(d)(i) — 168
s 60(1) — 234
4th Ed, 2022, p 567
Employment of Educators Act 76 of 1998
— 504
s 14(1)(a) — 80
s 14(2) — 80, 84
I
Immigration Act 13 of 2002
— 79
Insolvency Act 24 of 1936
— 422, 434
s 35 — 416
s 38 — 76, 416, 461
L
Labour Relations Act 28 of 1956
— 2, 3, 5, 11, 17, 37, 62, 93, 94, 98, 101, 104, 106, 110, 119, 121, 129, 133, 176, 239, 247, 248, 274, 284, 287, 321, 328,
360, 361, 62, 363, 370, 374, 376, 380, 390, 392, 393, 396, 407, 417, 420, 424, 437, 439, 41, 448, 450, 457, 459, 464, 465, 472,
473, 484, 487, 505, 517, 528
s 17(11)(a) — 507
s 17(12)(a) — 528
s 43 — 507
s 46(9) — 6
s 65(1A) — 487
Labour Relations Act 66 of 1995
— 2, 3, 5, 6, 7–9, 10, 11, 14, 15, 16, 17, 18, 19, 21, 22, 23, 25, 29, 32, 33, 34, 37, 38, 42, 43, 45, 48, 49, 50, 51, 52, 53, 55,
56, 59, 63, 72, 73, 76, 81, 86, 87, 88, 89, 90, 92, 93, 94, 98, 99, 100, 101–102, 104, 105, 106–107, 110, 111, 114, 116, 119,
120, 121, 122, 123, 132, 133, 134, 138, 143, 144, 145, 146, 147, 149, 153, 155, 156, 161, 170, 173, 174, 183, 184, 185, 186,
231, 235, 239, 245, 247, 248, 255, 260, 274, 276, 281, 282, 283, 289, 290, 321, 347, 351, 353, 362, 364, 368, 372, 373, 375,
376, 380, 381, 383, 390, 398, 399, 402, 403, 404, 407, 409, 414, 417, 419, 423, 432, 436, 438, 439, 441, 443, 445, 446, 450,
451, 453, 456, 457, 461, 464, 465, 467, 468–470, 471, 472, 473, 474, 484, 488, 490, 491, 493, 496, 497, 498, 500, 501, 502,
503, 504, 507, 508–523, 524, 525, 528, 529, 530
Ch IV — 111, 121, 128, 466, 494
Ch VIII — 100, 121, 124, 125, 388
s 1(d)(i) — 470
s 3 — 7, 32
s 4 — 112, 118
s 4(2)(a) — 153
s 5 — 49, 50, 111, 113–120
s 5(1) — 113, 120
s 5(2)(a)(i)–(iii) — 113
s 5(2)(b) — 52, 113
s 5(2)(c) — 113
s 5(2)(c)(iii) — 153
s 5(2)(c)(vi) — 113
s 5(4) — 50, 52, 53
s 14 — 319
s 14(4)(a) — 266, 327
s 14(5) — 325
s 15 — 326
s 16 — 371, 405
s 26 — 119
s 26(4), (5), (7), (9) — 460
s 26(6) — 115, 119
s 26(7)(a) — 119
s 51(8) — 501
s 64 — 122, 468
s 64(3)(c) — 470
s 64(4) — 436, 437
s 65 — 123, 468
s 65(1)(a), (b) — 469
s 65(1)(c) — 361, 362, 384, 454, 469
s 65(1)(d) — 123, 469
s 65(3)(a) — 469
s 66 — 123, 467, 468
s 67(3) — 127
s 67(4) — 121
4th Ed, 2022, p 568
s 67(5) — 121, 124, 125, 126, 368, 464, 475
s 68(3) — 121
s 68(5) — 464, 466
s 76 — 127
s 77 — 122, 488
s 77(3) — 121
s 93(2) — 509
s 135(2), (3), (4) — 495
s 138(1), (2), (5)(b)(i) — 500
s 138(7), (8) — 501
s 138(10) — 530
s 139(10) — 501
s 140(2) — 530
s 142A — 498
s 143(1) — 502
s 145 — 87, 182, 492, 493, 500, 501, 502, 504, 513
s 145(7) — 513
s 145(8) — 504, 513
s 145(8)(b) — 522
s 145(9) — 513
s 147 — 530
s 151(1) — 527
s 157(1) — 8, 503
s 157(2) — 503
s 157(3) — 504
s 158(1)(a) — 491
s 158(1)(a)(i) — 507
s 158(1)(a)(iii) — 508
s 158(1)(c) — 502
s 158(1)(h) — 81, 84, 100, 282, 283, 499
s 158(2)(b) — 112
s 162 — 528, 529
s 162(1), (2) — 527
s 167(1) — 8
s 185 — 3, 10, 101
s 186 — 89, 94, 166
s 186(1) — 11–12, 14, 52, 111, 364
s 186(1)(a)–(c) — 16
s 186(1)(a) — 12, 16, 23, 38, 41, 44, 46, 47, 48, 51, 65, 66, 76, 80, 91, 97, 436
s 186(1)(b) — 13, 23, 47, 48–49, 60, 95, 499, 513
s 186(1)(c) — 13, 61, 96, 97, 134, 135
s 186(1)(d) — 13, 31, 62, 63, 96, 422, 513
s 186(1)(e) — 13, 41, 64, 65, 68, 69, 91, 96
s 186(1)(f) — 13, 60, 72, 158, 430
s 186(2)(b) — 144
s 186(2)(c) — 62, 422
s 186(2)(e) — 62
s 187 — 103, 105, 111, 143, 160, 413, 494
s 187(1) — 111, 112, 113, 114, 120, 157
s 187(1)(a)–(e) — 164
s 187(1)(a) — 46, 121, 300, 443
s 187(1)(b) — 127, 128, 443
s 187(1)(c) — 46, 47, 129, 130, 131, 132, 133, 134, 439, 440, 442, 443–444
s 187(1)(d) — 113–120
s 187(1)(d)(i) — 120
s 187(1)(e) — 61, 134, 135, 136, 137
s 187(1)(f) — 60, 61, 138, 139, 140, 141, 142, 143, 146, 156, 157, 164, 165, 166, 430, 459
s 187(1)(g) — 158, 159, 160, 161
s 187(1)(h) — 162, 163
s 187(2) — 140
s 187(2)(a) — 164, 165, 166
s 187(2)(b) — 32, 44, 146, 166, 167
4th Ed, 2022, p 569
s 188 — 102, 106, 113, 156, 492
s 188(1) — 244
s 188(1)(a) — 21, 92, 102, 331
s 188(1)(b) — 102
s 188(2) — 106
s 188(11) — 164, 272, 492
s 188A — 124, 272, 492, 493
s 188A(4) — 272
s 188A(11) — 493
s 189 — 53, 54, 77, 100, 106, 130, 165, 196, 362, 364, 366, 370–373, 375, 380, 381, 383, 384, 386, 388, 389, 390, 391, 396,
454, 460, 461
s 189(1) — 369, 375, 393–394, 431
s 189(1)(a) — 394
s 189(2) — 375, 381, 398, 399, 406, 443
s 189(3) — 385, 388, 391, 392, 404, 405
s 189(4) — 405
s 189(7) — 403, 408
s 189A — 24, 54, 86, 87, 99, 100, 161, 373, 375, 383, 384, 385, 386, 388, 389, 390, 392, 393, 406, 464, 469
s 189A(2)–(5) — 384–385
s 189A(4) — 73
s 189A(7) — 385
s 189A(8) — 86, 361, 388
s 189A(13) — 54, 383, 386, 387, 388, 389
s 189A(13)(a), (b), (d), (17) — 387
s 189A(18) — 389
s 189A(19) — 376, 406
s 189A(19)(b) — 376
s 190 — 90–91, 96
s 190(1) — 94, 96, 97
s 190(1)(a) — 91, 92
s 190(1)(b) — 92, 93, 94
s 190(1)(c), (d), (2) — 94
s 190(2)(a) — 95, 96
s 190(2)(b), (c) — 96
s 191 — 37, 97
s 191(1)–(5) — 493–494
s 191(1)(b)(i) — 276
s 191(2A) — 42, 43, 93, 94
s 191(5) — 21, 498
s 191(5)(a) — 493, 494, 496, 499
s 191(5)(b) — 494, 499, 501, 502
s 191(5)(b)(ii) — 362, 387, 389
s 191(5A) — 497
s 191(6) — 499, 501
s 191(12) — 499
s 192(1) — 37, 64
s 192(2) — 13, 89, 173
s 193 — 508–509
s 193(1) — 510
s 193(1)(a), (b) — 90
s 193(1)(c) — 510
s 193(2) — 191, 511, 514, 516
s 193(2)(b) — 516
s 193(2)(d) — 244
s 193(3) — 419, 522
s 194 — 90, 517, 518, 520, 523
s 194(1) — 244, 517
s 194(2) — 517
s 194(3) — 518
s 195 — 520, 522, 523
s 196 — 416
4th Ed, 2022, p 570
s 196(1) — 362
s 196(2)(d) — 93
s 197 — 12, 32, 60, 72, 111, 145, 158, 159, 160, 161, 421, 424, 425, 426, 427, 428, 429, 430, 431, 432, 434, 494
s 197(1)(a) — 425
s 197(2) — 425, 427, 430, 431
s 197(2)(d) — 430, 432
s 197(3)(a) — 421, 431, 432
s 197(3)(b) — 431, 432
s 197(4) — 432
s 197(5)(b) — 159
s 197(5)(b)(i) — 32
s 197(6) — 430, 431
s 197(6)(a) — 159, 431
s 197(7) — 433
s 197(10) — 434
s 197A — 12, 72, 111, 158, 159, 430, 434, 494
s 198 — 25
s 198(2) — 18
s 198(4C) — 52
s 198A — 18, 21, 24, 45, 46, 72, 73, 400
s 198A(1) — 72
s 198A(3) — 72, 73
s 198A(3)(b), (4) — 24, 46, 72, 73
s 198A(8) — 86
s 198A(13) — 390
s 198B — 21, 22, 48, 52–54, 55, 56, 73, 400
s 198B(1) — 52
s 198B(3), (5) — 48
s 198D — 47
s 198D(5) — 21
s 200 — 153
s 200A — 19, 20
s 200B — 17
s 213 — 16, 123, 360, 362, 467, 488
Sch 1 — 416
Sch 7, item 2(1)(d) — 62
Sch 8: Code of Good Practice: Dismissal — 7, 44–45, 106, 165, 170, 180, 183, 190, 218, 219, 222, 241, 246, 248, 255, 256,
257, 266, 267, 274, 292, 309, 331, 339, 340, 342, 344, 345, 347, 354, 465, 466, 467, 469, 476, 482
Item 3(2) — 190
Item 3(3) — 192
Item 4(1) — 246
Item 4(2) — 320, 328–329
Item 4(4) — 284
Item 6, 6(1) — 466
Item 6(2) — 466, 476, 477, 484
Item 7 — 187, 466
Item 7(b) — 184
Item 8 — 196, 332, 339, 342
Item 9 — 332
Item 10 — 332, 347–348, 351, 356
Item 11 — 332, 348–349, 356
Labour Relations Amendment Act 83 of 1988
— 486
Labour Relations Amendment Act 12 of 2002
s 48 — 518
O
Occupational Health and Safety Act 85 of 1993
— 231
P
Pension Funds Act 24 of 1956
— 432
Ch VA — 359
Prescription Act 68 of 1969
— 513
Promotion of Administrative Justice Act 3 of 2000
— 183, 185, 282, 283
4th Ed, 2022, p 571
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000
— 16, 138, 162, 164, 231
Protected Disclosures Act 26 of 2000
— 111, 162, 163, 164, 212, 231, 493
s 3 — 162
Protection from Harassment Act 17 of 2011
— 231
Protection of Personal Information Act 4 of 2013
— 253
Public Service Act Proc 103 of 1994
— 31
s 17(1) — 279
s 17(3) — 81, 82, 83
s 17(3)(a) — 81, 83
s 17(3)(a)(i) (formerly s 17(5)(a)(i)) — 79, 82, 83, 84, 85, 201
s 17(3)(b) — 83, 84
s 17(5) — 81, 82
s 17(5)(a) — 82
s 17(5)(b) — 81
Public Service Labour Relations Act 102 of 1993
— 7
s 22(2)(a) — 507
s 23 — 507
R
Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2002
— 252–253
S
South African Police Service Act 68 of 1995
— 85, 86, 461, 462
Codes
Code of Good Practice on Dismissal Based on Operational Requirements, GenN 1517 of 1999
— 7, 381
Item 5 — 381
Item 8 — 408
Code of Good Practice on Employment of Persons with Disabilities, GN 1085 of 2015
— 349
Item 5 — 349
Item 11 — 349
Item 12 — 349
Code of Good Practice on the Handling of Sexual Harassment Cases, GN R1367 of 1998
— 229
Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace, Amended, GN 1357 of 2005
— 229
Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace, GN 1890 of 2022
— 229
Item 2.2 — 231
Item 2.3 — 231
Item 4.1 — 229
Item 4.2 — 229
Item 4.3 — 229
Item 4.5.2 — 229
Item 4.6 — 230
Item 4.7.3 — 229
Item 4.7.5 — 230
Item 4.7.7 — 229
Item 4.7.10 — 229
Item 4.7.11 — 229
Item 5.1 — 230
Item 5.2 — 230
Item 5.2.6 — 230
Item 5.2.6.2 — 232
Item 5.2.7 — 230
Item 6.3 — 230
Item 6.5 — 231
Item 6.6.5 — 230
Item 6.8.1 — 231
Item 7.5.2 — 231
Item 8.2 — 232
Item 8.2.5 — 232
4th Ed, 2022, p 572
Item 8.2.7 — 232
Item 9.1 — 232
Item 9.3 — 232
Item 9.4–9.6 — 232
Item 10 — 234
Item 10.1.2 — 234
Item 10.1.3 — 234
Item 10.2 — 234
Item 10.3 — 234
Item 10.5 — 234
Item 10.6.1 — 234
Item 10.9 — 234
Item 11 — 234
Item 13.3 — 235
Code of Good Practice: Who is an Employee
— 19
Rules
Rules of the Constitutional Court
Rule 18 — 505
Rules of the Labour Court
Rule 6 — 502
Rule 6(1)(b)(i) — 502
Rule 6(3), (4) — 502
Rule 7 — 502
Rule 7A — 502
Rule 7A(2)(b) — 502
Uniform Rules of the High Court
Rule 14 — 530
Rule 48 — 529
Conventions
International Labour Organisation: Termination of Employment Convention 158 of 1982
— 360
art 5 — 110
Part II — 360
Dismissal / Subject index
Subject index
A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
A
4th Ed, 2022, p 573
ABSCONDMENT — 92, 199, 201
ABSENCE FROM WORK — 199–202, 325–326, 347
ABSENCE WITHOUT LEAVE (AWOL) — 28, 43, 79
ABSENTEEISM — 199–201
ABSOLUTION FROM INSTANCE — 112
ABUSIVE LANGUAGE AND CONDUCT — 202–207
ADDICTION see ALCOHOL ABUSE; DRUG ABUSE
ADJUDICATION
breach of contract claims — 502–503
by Labour Court — 501–502
referral of disputes to — 493–494
AFFIRMATIVE ACTION
defence to automatically unfair dismissal — 168
dismissal for operational requirements — 413
AGE — 144–146
ALCOHOL ABUSE — 216–219, 351–352
APPEALS
Constitutional Court — 505–506
and defects in initial disciplinary inquiry — 276
effect on date of dismissal — 93–94
form of — 274–275
to full bench of High Court — 505
internal — 93–94
to Labour Appeal Court — 505
legal consequences of decision — 275
penalty increase or decrease — 275
process — 8
Supreme Court of Appeal — 505
ARBITRATION
costs — 531
disputes regarding unfair labour practices — 499
pre-dismissal — 493
private — 501, 531
referral of disputes for — 494, 496
review of awards — 504–505
statutory — 500–501
ASSAULT — 207–208
AUTOMATICALLY UNFAIR DISMISSAL
closed shop dismissals — 119
to compel employees to accept demands — 129–134
compensation — 518
criminal offence under 1956 LRA — 110
defences see DISCRIMINATORY DISMISSAL
discriminatory dismissals see DISCRIMINATORY DISMISSAL
for exercise of any statutory right — 120
identification of prohibited reasons prompting dismissal — 111–112
for instituting action under LRA — 120
no defence if dismissal proved — 164
onus of proof — 112–113
participation in lawful strikes — 121–127
pregnant employees — 111, 134–137
refusal to perform work of strikers or locked-out employees — 127–129
transfers of business — 158–161
union activities — 115–119
victimisation — 113–115
whistleblowers — 162–164
B
BARGAINING COUNCILS
arbitration by — 498–499
costs — 530–531
referral of disputes to — 494
BELIEF — 152
BIAS, presiding officers at disciplinary inquiry — 268–272
BREATHALYSER TESTS — 216–217
BULLYING — 229–230, 241 see also HARASSMENT
BUMPING — 401, 414–416
C
CAUSATION — 135, 368–369
CCMA see COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION (CCMA)
CLOSED SHOP AGREEMENTS — 119, 459–460
CLOSURE OF BUSINESS see TRANSFER OF BUSINESS
COLLECTIVE AGREEMENTS
termination in consequence of — 78
transfer of business — 432–433
COLLECTIVE GUILT — 239, 293–294, 458
COLLECTIVE MISCONDUCT
collective hearings — 265–266, 288–289
common purpose — 300, 301–302
compared to collective guilt — 239
derivative misconduct — 292, 294–301
disciplinary procedure — 306
as operational ground for dismissal — 304–305
principle of consistency — 124, 179, 305
sanctions — 305–306
selection of employees for discipline — 291–293
separate disciplinary inquiries — 265
team liability — 302–304
COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION (CCMA)
arbitration by — 498–499
costs — 530–531
imposition of alternative penalties — 522
‘reasonable commissioner’ test — 181–188, 505
referral of disputes to — 494–495
review of awards — 501
transferral of powers from industrial court — 6
COMMON LAW
contractual damages — 525–526
date of dismissal for abscondment — 92
disciplinary procedure — 244–245
dismissal disputes in public sector — 2
employees who have already been dismissed — 31
notice of termination to redundant employees — 360
set-off in compensation award — 520
‘substantive’ and ‘procedural’ fairness — 3, 99
termination of employment contract — 2, 11, 12, 13–14
theft by employees — 236–237
transfer of business — 424
COMMON PURPOSE — 208, 300, 301–302
COMPANY RULES, failure to comply with — 240–241
COMPENSATION
under 1956 LRA — 517
in addition to damages — 522–523
4th Ed, 2022, p 574
and alternative employment — 519
automatically unfair dismissal — 518
choice of — 515
and claims for damages for unfair discrimination — 522
combination of patrimonial and personal injury damages — 519, 520
commission lost — 518
under current LRA — 517–518
denial of — 519
dismissal procedurally unfair but substantively fair — 107, 289
distinguished from back pay on reinstatement — 510, 512–513
factors influencing — 519
interest — 521
judicial discretion — 518
in lieu of reinstatement — 511
prescription of claim — 521
quantification — 517, 518, 521
refusal of settlement offers — 519
review of awards — 518
set-off — 520
solatium for injured feelings — 519, 520
when awarded — 518–519
‘CON-ARB’ — 496–497
CONCILIATION
attendance at proceedings — 495
persuasive role of commissioners — 495
process — 495–496
referral of disputes to bargaining council or CCMA — 494
referral of unresolved dispute to arbitration or Labour Court — 496
settlement agreement — 496, 497–498
CONDITIONS OF EMPLOYMENT
of transferred employees — 431–432
unilateral amendment of — 402
CONDUCT UNBECOMING — 221–222
CONFIDENTIAL INFORMATION, disclosure of — 212
CONFLICT OF INTEREST — 209–211
CONSCIENCE — 152
CONSISTENCY
collective misconduct — 124, 179, 305
disciplining shop stewards for misconduct — 328
CONSTITUTIONAL COURT — 505–506
CONSTRUCTIVE DISMISSAL
application also to employees not covered by the LRA — 9
blameworthiness of employer — 70
bona fide efforts to remove cause of employee’s complaint — 71
causal nexus between employer’s acts and decision to resign — 70
circumstances must have been brought about by employer — 69–70
date of dismissal — 96–97
employee ending contract with or without notice — 64
employee’s abandonment of employment — 65
employees who resign — 69
employers dismissing employees during notice period after resignation — 65–66
form of dismissal initiated by employees — 27
forms of ‘intolerable’ conduct — 67–68
intolerability — 64, 66
meaning of — 63–64
only where employee terminates contract — 41
onus of proof on employee — 64, 66
reasonable belief of employee — 67
recognition by industrial court — 11
test of other options available to employee — 67, 71
two-stage test — 64
CONSULTATION
appropriate measures — 398
avoiding or minimising dismissals — 399
changing the timing of dismissals — 402–403
commencement — 390–391
completion of — 405–406
disclosure of information — 404–405
distinguished from negotiation — 381
duration — 378
facilitators appointed — 385–386
facilitators not appointed — 386–390
in good faith — 382
mitigating adverse effects of dismissals — 403
notice — 391–393
object of — 381
parties — 393–396
role of — 382–384
selection criteria — 399, 403
severance pay — 403
sufficiency of — 403–404
CONTRACTS OF EMPLOYMENT
breach or repudiation of — 101, 525–526
contract uberrimae fidei — 209
dissolution of — 78–79
invalid — 19, 34, 52
lapsed — 88
meaning of — 16
resolutive conditions — 88–89
transfer of — 72
unlawful — 34, 78–79
void ab initio — 78–79
CO-OPERATIVES, members as employees — 34
CORPORATE ENTITIES, persons rendering service through medium of — 20
COSTS
bargaining councils — 530–531
CCMA — 530–531
civil courts — 531
Labour Court — 527–530
COUNSELLING — 218–219, 234, 335, 339, 343, 352, 447
CRIMINAL CONDUCT — 311–312
past criminal convictions — 312
CRIMINAL PROCEEDINGS
and disciplinary proceedings — 313–318
outcomes — 316–318
right to silence — 313–314
sub judice principle — 314–315
‘CRISIS ZONE’ CASES — 284
D
DAMAGES
in addition to compensation — 522–523
delictual claims — 524
for malicious prosecution — 525
DAMAGE TO PROPERTY — 211
DATE OF DISMISSAL
abscondment — 92
constructive dismissal — 93, 96–97
effect of internal appeals — 93–94
importance of — 90
termination of fixed-term contracts — 94–96
termination with or without notice — 91–93
DECLARATORY ORDERS see URGENT APPLICATIONS
4th Ed, 2022, p 575
DEEMED DISMISSALS
‘conditional’ dismissals — 201–202
discharged by operation of law — 79–86
DEEMED EMPLOYEES — 20–21
DEFAMATION — 524–525
DEPRESSION — 147
DERIVATIVE MISCONDUCT — 292, 294–301, 458
DESERTION
distinguished from absenteeism and abscondment — 199, 201
employee staying away longer than permitted maternity leave — 61
failure to hold disciplinary inquiry — 284–286
intention — 43
and resignation — 38, 42
DIRECTORS — 33–34, 44–45
disclosures to board — 163
DISABILITY — 146–148
DISCIPLINARY CODES
procedural fairness — 106, 255–256
treatment of absenteeism — 199–200
DISCIPLINARY OFFENCES
absence from work — 199–202
abusive language and conduct — 202–207
alcohol abuse — 216–219
assault — 207–208
bringing employer’s name into disrepute — 221–222
bullying — 229–230, 241
conduct unbecoming — 221–222
conflict of interest — 209–211
damage to property — 211
disclosure of confidential information — 212
dishonesty — 212–214
drug abuse — 215
failure to comply with company rules — 240–241
fraud — 219–221
harassment — 229–235
insolence — 222–223
insubordination — 222, 223–226, 241
intimidation — 208–209
miscellaneous — 241–242
misrepresentation — 214–215
moonlighting — 210
negligence — 226–229
non-compliance with rules and policies — 240–241
poor work performance — 226–229
racism — 144, 202–205, 205–206, 230–231
sleeping on duty — 200, 213, 236
theft — 236–240
unauthorised use or possession of company property — 240
DISCIPLINARY PROCEDURE
applicable to reason for dismissal — 253
charges — 257–259
collective misconduct — 306
at common law — 244–245
consequences of procedural unfairness — 289–290
‘crisis zone’ cases — 284
delays — 260–262
double jeopardy — 277–280, 516
evidence in rebuttal — 265
fairness requirements under current LRA — 245
investigation of offence — 248–253
judicial review — 281–283
mass dismissals — 288–289
minimum requirements for fairness — 254–255
minutes — 268
‘no difference’ principle — 286–287
plea — 259–260
relating to shop stewards — 328–329
review — 280–281
right to appeal — 274–277
rules of natural justice — 253, 267–268
sanction — 272–273
verdict — 272–273
waiver of right to be heard — 287
when hearings may be dispensed with — 284–287
witnesses
evidence of — 264–265
right to call and cross-examine — 267–268
written representations — 265–266, 306
DISCIPLINARY PROCEEDINGS
adequate notice of hearing — 257
and criminal proceedings — 247–248, 313–318
employee’s presence — 262–266
hearings after dismissal — 262
hearings of strikers — 125
hearings preceding dismissal — 262
impartiality of presiding officer — 268–272
interpreters — 266
not privileged occasions — 314
outcomes — 316–318
postponement of hearing — 263
properly constituted — 257
representation of employees in — 266–267, 327
representation of shop stewards in — 329
resignation without notice to evade — 246
review of — 492, 503–504
suspension pending — 39–40
DISCIPLINARY RECORD — 193–195
DISCIPLINARY SANCTIONS
in accordance with employer’s disciplinary code — 190
aggravating factors — 196
collective misconduct — 305–306
decision by presiding officer — 272–273
effect of misconduct on employment relationship — 188–189
employee’s disciplinary record — 193–195
employee’s length of service — 195–196
employee’s personal circumstances — 196–197
gravity of offence — 192–193
lesser sanctions — 190–191
mitigating factors — 196
‘reasonable commissioner’ test — 181–188
reasonable expectation that employer could continue with employment relationship — 191–192
DISCLOSURE
of confidential information — 212
of information in consultation — 404–405
of unlawful acts of employers — 212
DISCRIMINATION
arbitrary grounds — 138, 140
defences — 140
direct or indirect — 142–143
distinguished from differentiation — 139
employees who resign because of — 141–142
harassment — 229–235
prohibited grounds — 143–158
proof of — 141–142
protection against for exercising statutory rights — 120
unfair — 138, 139, 524
DISCRIMINATORY DISMISSAL
damages — 524
defences
affirmative action — 168
inherent requirements of job — 136, 156, 164–166
retirement age — 164, 166–168
onus of proof — 143
prohibited grounds
4th Ed, 2022, p 576
age — 144–146
arbitrary grounds — 156–158
belief — 152
conscience — 152
disability — 146–148
freedom of expression — 153–154
gender — 154–155
harassment — 156
HIV status — 157
language — 154
nationality — 156, 157
race — 144
religion — 148–151
sexual harassment — 156
sexual orientation — 154–155
DISHONESTY — 212–214
before employment commenced — 310
DISMISSAL — 66
appropriateness — 105
at behest of third parties — 448–456
closed shop agreements — 119, 459–460
at common law — 2, 11, 12, 13–14
under current LRA — 14
disqualification for office — 461–462
existence of — 37
insolvency of employer — 461
onus of proof on employee — 37, 64, 66, 89
of parties to contracts of employment — 16–18
for personal relationships — 458–459
result of new legislation — 460–461
statutory definitions — 11–12, 37–38
trust relationship breakdown — 456–457
unfitness for office — 461–462
DISMISSAL FOR INCAPACITY — 103–105
addiction — 351–352
alternative/adapted employment — 356–367
distinguished from dismissal for operational requirements — 367
establishing capacity — 352–354
incompatibility — 351, 368, 369, 445–448
legal incapacity — 349–351
meaning of — 331
medical boarding — 358–359
nature of — 349–352
pre-dismissal procedure — 358
seriousness of incapacity — 354–355
shop stewards of managerial status — 322
sick leave — 355
test for fairness — 357–358
DISMISSAL FOR MISCONDUCT
consistent application of rule — 176–180
contravention of rule — 172–173
existence of rule — 171
fault of employee — 103
forms of misconduct see DISCIPLINARY OFFENCES
justification of rule — 172
knowledge of rule — 175–176
meaning of misconduct — 169–170
onus of proof — 173–174
outside workplace — 307–311
‘reasonable commissioner’ test — 181–188
sanction — 180–197
standard of proof — 173, 174–175, 457
test for — 104
test for breach of rule — 173
validity of rule — 171–172
whistleblowers — 162–164
DISMISSAL FOR OPERATIONAL REQUIREMENTS — 103–105
affirmative action — 413
alternative employment — 414, 419–421
bumping — 401, 414–416
collective misconduct — 304–305
at common law, fairness — 360
decision to retrench — 396–398
dismissal as only option — 376
distinguished from dismissal for incapacity — 367
employees on fixed-term contracts — 371–373, 413–414
judicial intervention in — 361–362
large-scale retrenchments — 361, 375–376, 384–390
legislative intervention in — 362
meaning of retrenchment — 362–364
means of avoiding retrenchment
bumping — 401, 414–416
early retirement — 401
elimination or reduction of overtime — 400
extended unpaid leave or temporary layoff — 401
moratorium on recruitment — 400
redeployment — 401
reduction of normal working hours — 401
shedding of contract workers — 400
transfer — 401
unilateral amendment of employees’ conditions of service — 402, 443
voluntary severance — 400
‘no difference’ principle — 406–407
pre-retrenchment process
consultation see CONSULTATION
correction of flawed process — 406
disclosure of information — 404–405
final decision — 405–406
procedural fairness — 106
protected strikers — 125–127
reason for — 364–370
adequacy of — 373–375
causation — 368–369
fairness — 360–378
misconduct — 365–366
objective link between dismissal and employer’s need — 368
performance standard in respect of past performance — 365
technological, structural and economic — 360, 362
reasons for — 331
re-employment after — 422–423
retrenchments arising out of restructuring — 363, 376, 390, 391, 410–412
right to strike — 161
selection criteria — 403, 408–414
severance pay — 361, 403, 416–422
strikes over retrenchments — 362
unilateral amendment of employees’ conditions of service — 402, 437–439
DISMISSAL FOR POOR WORK PERFORMANCE
alternatives to dismissal — 345
appropriate sanction — 340–341
awareness of performance standard — 339–340
counselling — 335, 339, 343
between culpable negligence and incapacity — 331
existence of reasonable standards — 333
as form of incapacity — 331
opportunity to improve — 340, 344
pre-dismissal procedure
assistance and support — 344
counselling — 343
fair and proper appraisal — 343
final warning — 344
4th Ed, 2022, p 577
incapacity inquiries — 345
initial warning — 343
opportunity to improve — 344
when hearings may be dispensed with — 345–346
proof that employee’s performance is substandard — 332–339
probationary employees — 339
senior employees — 336–339
substantive fairness — 332
test for — 332
DISMISSAL FOR PROTEST ACTION — 122, 486–489
DISMISSAL LAW
under 1956 LRA — 5–7
under civil law — 9–10
under current LRA — 7–9
extension to public service and farm workers — 6–7
history — 3–5
DISMISSAL OF PROTECTED STRIKERS — 121–123, 464
DISMISSAL OF UNPROTECTED STRIKERS
at common law — 464
criteria in assessing fairness — 465
conduct of employer — 470–472, 485–486
conduct of strikers — 475, 485–486
duration of strike — 472
harm caused by strike — 472–473
legitimacy of demands — 473–474
non-compliance with LRA — 468–470
parity principle — 476
timing of strike — 474–475
pre-dismissal procedure
contact with union — 476–477
hearings — 482–485
ultimatum — 477–481
selection for dismissal — 476
waiver of right to dismiss — 481–482
DISPUTES ABOUT UNFAIR DISMISSALS
appeals — 505–506
adjudication — 498–499, 501–505
arbitration — 498–501
choice of forum — 490–491
con-arb — 496–497
conciliation — 495–496
initiation of action — 494–495
pre-dismissal inquiry — 492–493
regulation of referral of disputes — 493–494
review of disciplinary proceedings — 492
settlement — 497–498
urgent interim relief — 491–492
DISPUTES OF INTEREST — 441
DOMESTIC WORKERS, inclusion in dismissal law — 7
DOUBLE JEOPARDY — 277–280, 516
DRUG ABUSE — 215, 351–352
E
ELECTRONIC DEVICES, abuse of — 240
EMPLOYEES
absent without leave (AWOL) — 28
assistance to investigators — 249
competition with employer — 209–211
counselling — 218–219, 234
deemed — 20–21
directors — 33–34
employed abroad — 33
essential service workers — 123
excluded from LRA — 32
extended employment relationship after dismissal — 31–32
on fixed-term contracts — 22–23
of insolvent companies — 35
of labour brokers — 24–27
maintenance workers — 123
members of co-operatives — 34
parties to contracts of employment — 16–18
parties to unlawful contracts — 34
persons rendering service through medium of corporate entities — 20
persons who have not yet commenced work — 21–22
presence at hearings — 262–266
probationary — 23
sex workers as — 19
statutory — 18–20
trainees — 23–24
who have already been dismissed — 31
who have been given notice of termination — 29–31
who have reached retirement age — 32
who have resigned — 27–29
EMPLOYERS
disciplinary authority — 245–246, 307, 308
duty to treat employees fairly — 64
identification of — 17
labour brokers as — 17–18
EMPLOYMENT RELATIONSHIP
extended — 31–32
intolerability or impracticability of continuation with — 66–71, 515–516
ENTRAPMENT — 249–250
F
FAIRNESS
consequences of procedural unfairness — 289–290
disciplinary procedure — 244, 254–255
dismissal for incapacity — 357–358
dismissal for operational requirements — 360–378
double jeopardy rule — 279
implied duty in contract of employment — 9–10
pre-dismissal procedure — 102
procedural — 3, 102, 106–107, 328–329, 341–346, 380–407, 466, 476–481
relationship between substantive and procedural — 106, 107–108
substantive — 3, 102, 103–105, 108, 332, 375–376, 466
ultimatum — 477–481
FALSIFICATION OF RECORDS OR DOCUMENTS — 221
FARM WORKERS, inclusion in dismissal law — 6–7
FIRST IN, FIRST OUT (FIFO) PRINCIPLE — 409
FIXED-TERM CONTRACTS
automatic termination — 47, 50–52, 52–54
damages for unlawful breach or repudiation of contract — 525–526
date of dismissal — 94–96
employees on — 22–23
failure to renew — 59
needs of third parties — 49–50
non-renewal as form of dismissal — 11, 18, 44, 47–60
novation — 47–48
reasonable expectation of renewal — 56–60
reinstatement of employees — 512
section 186(1)(b) — 48–49
section 198B — 52–54
termination before expiry — 47, 54–56
termination of contract — 52–54
FOREIGN EMPLOYEES — 34
FRAUD — 219–221
FREEDOM OF EXPRESSION — 153–154
G
4th Ed, 2022, p 578
GENDER — 154–155
GROUP MISCONDUCT see COLLECTIVE MISCONDUCT
H
HARASSMENT — 156, 202, 229–235
HIGH COURT
appeals to — 505
costs — 531
HIV STATUS — 157
HOSTILE WORK ENVIRONMENT — 230
I
ILLNESS see DISMISSAL FOR INCAPACITY
IMPOSSIBILITY OF PERFORMANCE — 74–76
INCOMPATIBILITY — 351, 368, 369, 445–448
INDEPENDENT CONTRACTORS, termination of contract not constituting dismissal — 16
INHERENT REQUIREMENTS OF JOB — 136, 156, 164–166
INJURY see DISMISSAL FOR INCAPACITY
INSOLENCE — 222–223
INSOLVENCY
employees of insolvent companies — 35, 76–77, 422, 461
transfer of insolvent business — 161, 434–435
INSOURCING — 427–428
INSUBORDINATION — 222, 223–226, 241
INTERDICTS see URGENT APPLICATIONS
INTIMIDATION — 208–209
INVECTIVE see ABUSIVE LANGUAGE AND CONDUCT
INVESTIGATION OF OFFENCE
assistance of employees — 249
entrapment — 249–250
pre-hearing — 249
telephone tapping — 250
J
JOB REDUCTION BY ATTRITION — 364
JUDICIAL REVIEW OF DISCIPLINARY PROCEEDINGS — 281–283
JURISDICTION OF COURTS — 8, 9–10, 245, 503–504, 525
L
LABOUR APPEAL COURT — 505
LABOUR BROKERS
employees of — 24–27
as employers — 17–18
termination of contract — 45–46, 50–52, 72–73
LABOUR COURT
costs — 527–530
forum for resolution of dismissal disputes — 498–499
no jurisdiction over common law delictual actions — 525
referral of disputes to — 494–495, 496
LABOUR RELATIONSHIP IN SOUTH AFRICA — 5–7
LANGUAGE — 154
LAST IN, FIRST OUT (LIFO) PRINCIPLE — 409–413
LEGAL PRACTITIONERS
may not attend conciliation proceedings — 495
representation of employees in disciplinary proceedings — 266–267
representation of employees in pre-dismissal inquiries — 492
LIE DETECTORS see POLYGRAPH TESTS
LOCATIO CONDUCTIO OPERIS see CONTRACT OF EMPLOYMENT
LOCKOUTS
dismissals — 46–47
refusal to perform work of strikers or locked-out employees — 127–129
termination — 129
unilateral amendment of employees’ conditions of service — 439–440, 443–444
M
MASS DISMISSALS — 288–289
MATERNITY LEAVE, refusal to allow resumption of employment — 60–61, 134
MEDICAL BOARDING — 358–359
MEDICAL CERTIFICATES — 355
MENTAL ABSENCE — 200
MERGERS see TRANSFER OF BUSINESS
MISREPRESENTATION — 214–215
MOONLIGHTING — 210
N
NATIONALITY — 156, 157
NEGLIGENCE — 226–229, 331
‘NO DIFFERENCE’ PRINCIPLE — 286–287, 406–407
O
OCCUPATIONAL DETRIMENT — 162, 163, 493
OFFENSIVE LANGUAGE — 202
ONUS OF PROOF — 173–174
OUTSOURCING — 159–160, 161, 426–427
OVERTIME WORK — 200
P
PARITY PRINCIPLE — 124, 177, 179, 180, 206–207, 293, 305, 476
PARTIES TO CONTRACTS OF EMPLOYMENT — 16–18
PARTIES TO UNLAWFUL CONTRACTS, as employees — 34
PEOPLE WITH DISABILITIES, definition — 146–147, 349
PERSONAL RELATIONSHIPS — 458–459
POLYGRAPH TESTS — 179, 242, 250–252, 295, 366
POOR WORK PERFORMANCE — 226–229
PRE-DISMISSAL ARBITRATION — 493
PRE-DISMISSAL INQUIRIES — 492–493
PRE-DISMISSAL PROCEDURE, fairness — 102, 246–248
PREGNANT EMPLOYEES — 111, 134–137
causation test — 135
dismissal for any reason related to pregnancy or intended pregnancy — 135
intended pregnancy — 135, 137
PRESCRIPTION
compensation claims — 521
and review proceedings — 513
PRESIDING OFFICERS AT DISCIPLINARY INQUIRY
acting in bad faith — 279–280
bias — 268–272
impartiality of — 268–272
recusal of — 268–272
PRIVACY, invasion of for purposes of investigating offences — 252–253
PROBATIONARY EMPLOYEES — 23, 339
PROTECTED DISCLOSURES see WHISTLEBLOWERS
4th Ed, 2022, p 579
PROTEST ACTION
legitimate form of industrial action — 488
outside statutory definition of strike — 486
perception of legitimacy — 488
refusal to work not amounting to — 488–489
requirements for lawfulness — 122
socio-economic interests of workers — 488
PROVOCATION — 207–208, 470
PUBLIC SECTOR
common law dismissal disputes — 2
dismissal as administrative action — 2–3
inclusion in dismissal law — 6–7
jurisdiction of courts — 503–504
R
RACE, discrimination on ground of — 144
RACISM
conduct — 205–206
and discrimination — 144
racial harassment — 230–231
racist language — 202–205
REASONABLE SUSPICION — 457, 458
RE-EMPLOYMENT
when cannot or need not be ordered — 514–517
REINSTATEMENT
back pay — 510–513
choice to sue for damages or reinstatement — 513
compensation — 510, 511, 512–513, 515
doctrine of ‘reasonable suspicion’ — 457
employee must tender or render service — 510
employees on fixed-term contracts — 512
interest on back pay — 513
not competent remedy in cases of procedural fairness — 100
primary remedy for substantive unfairness — 509
retrospective operation — 509, 510
revival of original contract — 509–510
security furnished by employer — 513
when cannot or need not be ordered — 514–517
RELIEF FOR UNFAIR DISMISSAL
final — 507–508
fora for challenge to unfair dismissal — 490–491, 494
interim — 491–492, 507–508
urgent — 491–492, 507–508
RELIGION — 148–151
REMEDIES FOR UNFAIR DISMISSAL
alternative penalties — 522
compensation — 517–523
consequential damages — 523
contractual damages at common law — 525–526
damages for malicious prosecution — 525
damages in addition to compensation — 522–523
defamation claims — 524–525
delictual claims — 524
industrial court — 6
other orders — 522
re-employment see RE-EMPLOYMENT
reinstatement see REINSTATEMENT
status quo orders — 6
RESIGNATION
and desertion — 38, 42
vs dismissal — 27
in heat of moment — 40
on notice — 27
required notice not given — 41, 42
termination of contract — 27
as unilateral act — 40
by way of conduct or orally — 40
when binding — 40
withdrawal of — 27–28, 40, 41
without notice to evade disciplinary proceedings — 246
RETIREMENT
age — 144–146, 166–168
compulsory — 44
forced — 32
RETRENCHMENTS see DISMISSAL FOR OPERATIONAL REQUIREMENTS
REVIEW
arbitration awards — 504–505
of CCMA awards — 501
of disciplinary proceedings — 280–281, 492, 503–504
and prescription — 513
RIGHT NOT TO BE UNFAIRLY DISMISSED — 3, 10, 101
RIGHT NOT TO BE UNLAWFULLY DISMISSED — 10
RIGHT TO BE HEARD — 287
RIGHT TO FAIR HEARING — 244–245
RIGHT TO FAIR LABOUR PRACTICES — 7, 9, 377
RIGHT TO PRIVACY — 252–253
RIGHT TO SEVERANCE PAY — 419–420
RIGHT TO SILENCE — 249, 261–262, 299, 313–314, 315
RIGHT TO STRIKE — 123, 125, 161, 475
S
SAFETY see WORKPLACE: FAILURE TO COMPLY WITH SAFETY RULES
SALE OF BUSINESS see TRANSFER OF BUSINESS
SANCTIONS see DISCIPLINARY SANCTIONS
SELECTIVE DISMISSAL, distinguished from selective non-re-employment — 62
SELECTIVE NON-RE-EMPLOYMENT — 61–63
date of dismissal — 96
distinguished from selective dismissal — 62
as form of dismissal — 11, 18
SELF-DEFENCE — 207, 470
SETTLEMENT AGREEMENTS — 77–78
SEVERANCE PAY
under 1956 LRA — 361, 370
and consultation — 403
employees of insolvent companies — 422
limitations of right to — 419–421
no exemption from obligation to pay — 417
quantification — 417–419, 525
referral of dispute about entitlement — 417
transfer of business — 420, 421
and waiver of right to pursue unfair dismissal action — 77, 525
SEXIST LANGUAGE — 202
SEXUAL HARASSMENT — 156, 229–235
SEXUAL ORIENTATION — 154–155
SEX WORKERS — 19, 512
SHOP STEWARDS
attendance at meetings — 325–326
conflict of interest — 322
discipline of — 319–329
dismissal — 113
employees of managerial status — 321
failure to discharge duties — 327–328
misconduct in bargaining context — 322–323
misconduct in other contexts — 324–325
pre-dismissal consultation with unions — 328–329
principle of consistency — 328
protection against victimisation — 119
recognition agreements — 319
representation at disciplinary hearings — 327
4th Ed, 2022, p 580
representation of employees in disciplinary proceedings — 266
statutory protection — 320
victimisation — 320, 321–322, 329
SHRINKAGE see THEFT
SICK LEAVE — 355
SLEEPING ON DUTY — 200, 213, 236
STANDARD OF PROOF — 174–175
STATUS QUO ORDERS — 6
STATUTORY EMPLOYEES — 18–20
STAY-AWAYS see PROTEST ACTION
STRIKERS see also DISMISSAL OF UNPROTECTED STRIKERS
hearings of — 125, 262
offences committed during strike — 124
as participants — 468
protected — 121–123
refusal to perform work of — 127–129
retrenchment of protected — 125–127
right to be heard — 287
supportive action by — 123
STRIKES
definition — 467
disputes concerning ‘matters of mutual interest’ — 464
lawful strike action — 121–123
misconduct during — 124
over retrenchments — 362
participants in — 468
refusal to work not amounting to — 488–489
requirements for lawfulness — 122–123
secondary — 123
SUMMARY DISMISSAL — 12–13
SUMMARY TERMINATION — 92
SUPREME COURT OF APPEAL — 505
SWEARING see ABUSIVE LANGUAGE AND CONDUCT
T
TEAM LIABILITY — 302–304, 457–458
TEAM MISCONDUCT see COLLECTIVE MISCONDUCT
TELEPHONE TAPPING — 250
TEMPORARY EMPLOYMENT SERVICES — 17–18, 72
TERMINATION OF EMPLOYMENT BY EMPLOYER
actions of employer — 41
consensual — 42
desertion — 38
directors dismissed by vote of shareholders — 44–45
at instance of third parties — 45–46
intention — 41–42
lockouts — 46–47
notice of — 29–31, 43
notice of in writing — 41
resignation or dismissal — 38–42
retirement — 44
revocation of — 42
summary — 44
THEFT
at common law — 236–237
distinguished from pilfering — 239
intention — 237
perpetrators and accomplices or accessories — 239–240
proof on balance of probabilities — 237, 238
shrinkage — 238–239, 302–303
THIRD PARTIES — 448–456
TRADE UNIONS
legitimate and lawful activities — 115–119, 153
obligation to consult — 383
representatives see SHOP STEWARDS
victimisation related to membership or activities — 113
TRAINEES — 23–24
TRANSFER OF BUSINESS
collective agreements and awards — 432–433
conditions of employment of transferred employees — 431–432
date of transfer — 429
dismissals connected with — 158–161
duties of transferring employer — 433
effects of — 429–431
employment contracts — 72, 158–159
franchise arrangement — 428
as going concern — 72, 159, 425–428
insolvency — 434–435
insolvent businesses — 161
insourcing — 427–428
obligations of employer after transfer — 72, 434
outsourcing — 159–160, 161, 426–427
pensions — 432
retrenchments — 159, 161
second-generation outsourcing — 426–428
severance pay — 420, 421
TRANSFER OF EMPLOYEES — 72, 434
TRUST RELATIONSHIP — 456–457
U
ULTIMATUM
bona fide attempt to induce strikers to resume work — 481
clear and reasonable instruction — 479
communication in clear and unambiguous terms in medium understood — 477–478
fairness — 477–481
as pre-dismissal warning — 477–478
time for employees’ consideration of response — 479–480
when to be issued — 477
workers must not be prevented from compliance — 481
UNAUTHORISED USE OR POSSESSION OF COMPANY PROPERTY — 240
UNFAIR DISMISSAL
automatically unfair — 105
categories — 102
under current LRA — 101
defensibility of decision to dismiss — 105
UNFAIR LABOUR PRACTICES
application of principles — 5
dismissals as — 5–6
disputes to be referred for arbitration — 499
statutory definitions — 5, 6
UNFITNESS FOR OFFICE — 461–462
UNILATERAL AMENDMENT OF CONDITIONS OF SERVICE
under 1956 LRA — 437–443
breach of contract — 437
dispute of interest approach — 441
employees who engage in strike — 436
and lockouts — 439–440, 443–444
means of avoiding retrenchment — 402, 443
and misconduct — 441–443
in retrenchment context — 437–439
UNLAWFUL DISMISSAL
choice to sue for damages or reinstatement — 513
compared to unfair dismissals — 86–88, 98–101
compared to unlawful dismissals — 86–88, 98–101
for want of compliance with contracts — 101
UNPROTECTED STRIKES, dismissal of strikers — 114
URGENT APPLICATIONS — 491–492, 507–508
V
4th Ed, 2022, p 581
VERBAL ABUSE see ABUSIVE LANGUAGE AND CONDUCT
VICTIMISATION — 110–111, 113–115, 321–322
VOLUNTARY LIQUIDATION — 76–77, 461
VOLUNTARY SEVERANCE PACKAGE (VSP) — 364, 422
W
WAIVER
of right to be heard — 287
of right to pursue action — 77–78
WARNINGS — 193–195, 343
WHISTLEBLOWERS
dismissal of — 162–164, 212
occupational detriment — 162, 163, 493
pre-dismissal arbitration — 493
protection against harassment — 231
relief from High Court or Labour Court — 492
use of qualified practitioners to hear internal disciplinary inquiries — 272
WORKPLACE
abuse of internet, e-mail and mobile phones — 240
failure to comply with safety rules — 241
misconduct outside — 307–311
WORK STOPPAGE see STRIKES

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Dismissal / Preface

Dismissal / Table of contents

1956 LRA Labour Relations Act 28 of 1956

ABET adult basic education and training

ACTW USA Amalgamated Clothing Textile W orkers Union

Aids Acquired Immune Deficiency Syndrome

ANC African National Congress

ARMSCOR Armaments Corporation of South Africa

AW OL absent without leave

BAISEMW U Black Allied Iron, Steel, Engineering and

BASODW U Black Allied Shops Offices and Distributive

BAW U Black Allied W orkers Union

BCEA Basic Conditions of Employment Act 75 of

BCFMI Bargaining Council for the Furniture

BEMAW U Broadcasting, Electronic Media and Allied

BIFAW U Banking, Insurance, Finance and Assurance

CAC Competition Appeal Court

CCAW USA Commercial, Catering and Allied W orkers

CFO chief financial officer

COIDA Compensation for Occupational Injuries and

COSATU Congress of South African Trade Unions

4th Ed, 2022, p xix

COSAW U Commercial, Services and Allied W orkers

CSAAW U Commercial, Stevedoring, Agricultural and

CSIR Council for Scientific and Industrial Research

CW U Communication W orkers Union

DCS Department of Correctional Services

DETAW U Democratised Transport Logistics and Allied

DHA Department of Home Affairs

DIRCO Department of International Relations and

DOL Department of Labour (‘DOL’ is also used to

DPP Director of Public Prosecutions

ECB Eastern Cape Local Division, Bhisho

ECG Eastern Cape High Court, Grahamstown

ECP Eastern Cape High Court, Port Elizabeth

EEA Employment Equity Act 55 of 1998

EIMW U Engineering, Industrial and Mining W orkers

EqC Equality Court

FBW U Food and Beverage W orkers Union

FEDCRAW Federal Council of Retail and Allied W orkers

FGW U Food and General W orkers Union

GenN General Notice

4th Ed, 2022, p xx

GNP North Gauteng High Court, Pretoria

HOSPERSA Health and Other Service Personnel Trade

ICHAW U Independent Commercial Hospitality and

ILO International Labour Organisation

IMSSA Independent Mediation Services of South

JAMAFO Joint Affirmative Management Forum

LRA Labour Relations Act 66 of 1995

MEC Member of the Executive Council

MJC Muslim Judicial Council

NAAW U National Automobile and Allied W orkers

4th Ed, 2022, p xxi

NACBAW U National Construction, Building and Allied

NBCW PS National Bargaining Council for the W ood and

NO nomine officio (meaning ‘in official capacity’)

NUFAW SA National Union of Furniture and Allied

NUMSA National Union of Metalworkers of South

NUTW National Union of Textile W orkers