ABR 410 Study Unit 7 Week 1 With Questions 2023

CRAM ABR 410 29 May 2022
Please Note: These notes have been compiled from various academic sources and they
do not represent the ideas of the maker but rather those of the academic authors. All credit
is due to the authors of such academic material and no CRAM note maker will take credit
for such material. These materials should also not be used as a single source of study
material for tests and exams but rather as a means to make the prescribed academic work
more understandable and reasonable.
These notes were compiled from the following sources: Van Niekerk and Smit Law@work
(2019) 5th edition LexisNexis; as well as lecture notes/slides made by Dr K Newaj and Ms
Y Springveldt during their presentation of the ABR410 course
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Table of Abbreviations:
AUD: Automatically Unfair Dismissal
BCEA: Basic Conditions of Employment Act 75 of 1977
CCMA: Commission of Conciliation Mediation and Arbitration
CEE: Commission for Employment Equity
CFA: Committee on Freedom of Association
COIDA: Compensation for Occupational Injuries and Diseases Act 130 of 1993
COSATU: Congress of South African Trade Unions
ECC: Employment Conditions Commission
EEA: Employment Equity Act 55 of 1988
EEP: Employment equity plan
ILO: International Labour Organisation
ICJ: International Court of Justice
LAC: Labour Appeal Court
LC: Labour Court
LRA: Labour Relations Act 66 of 1995
NEDLAC: National Economic Development and Labour Council
NMWA: National Minimum Wage Act 9 of 2018
NMWC: National Minimum Wage Commission
OHSA: Occupational Health and Safety Act 85 of 1993
PEPUDA: Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000
PES: Public Employment Services
PDA: Protected Disclosures Act 26 of 2000
SADC: Southern African Development Community
SANDU: South African National Defence Union
SANDF: South African National Defence Force
SDA: Skills Development Act 97 of 1998
SDLA: Skills Development Levies Act 9 of 1999
SETA: Sector Education and Training Authorities
TES: Temporary Employment Service
UIA: Unemployment Insurance Act 63 of 2001
ULP: Unfair Labour Practice

Study Unit 6: Unfair Labour Practices (ULP)

Introduction
Historical overview of the concept of unfair labour practice
- 1956 LRA: broad/catch all concept
- Written in broad terms
- Committed by both employers and employees
- Included individual and collective labour disputes
- Dealt with the notion of “fairness” as opposed to lawfulness for the first time
- Broad definition:
- There must be a labour practice; and
- It must be unfair in the Court's opinion
- The ambit of this definition did not cover strikes or lock-outs
- Section 186(2) of the current LRA codified ULP:
(2) “Unfair labour practice” means any unfair act or omission that arises between an
employer and an employee involving –
(a) unfair conduct by the employer relating to the promotion, demotion,
probation (excluding disputes about dismissals for a reason relating to
probation) or training of an employee or relating to the provision of benefits to
an employee;
(b) unfair suspension of an employee or any other unfair disciplinary action
short of dismissal in respect of an employee;
(c) a failure or refusal by an employer to reinstate or re-employ a former
employee in terms of any agreement; and
(d) an occupational detriment, other than dismissal, in contravention of the
Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account of the
employee having made a protected disclosure defined in that Act
- It is clear from this definition that an unfair labour practice can now only be perpetrated
by an employer and no longer by an employee
- It serves as a tool which employees can use to challenge conduct of employers
- It is a dispute of right, not a dispute of interest
- Dispute of right = challenge based on the alleged infringement of a right e.g. unfair
dismissal

- Dispute of interest = challenge based on something that you have an interest in
acquiring, but do not yet have a right to e.g. negotiate in order to include medical
aid as a benefit in the contract
- It is also clear that section 186(2) provides a closed list of what constitutes ULP
- All of these actions except regarding conduct in subsection (c) can be brought while
still in employment
- The ULP provision in the LRA is not the same as the constitutional right to fair labour
practices in section 23(1) of the Constitution
- A claim based on ULP can only be brought in terms of the LRA if the alleged conduct is
found within the closed list in section 186(2)
- If the conduct is not found in section 186(2), a claim may be brought in terms of the
constitutional right to fair labour practice
- Schoeman v Samsung Electronics SA (Pty) Ltd 1997 (LC)
- Employee refused to accept a reduction in her commission
- She was not allowed to return to work
- Employer argued it had sufficient operational reasons for locking her out
- LC had to consider
- Whether only one employee can be locked out; and
- Whether the commission earned was a benefit
- For purposes of this discussion, know that the LC found that section 186(2)
contained a closed list of ULP
Promotion
- Claimant must prove that the employer refused to promote him/her (usually show that
the position was filled by someone else)
- Then the claimant must show that this refusal to promote him/her was unfair
- The following conduct are examples of what may be challenged in terms of
section 186(2)(a):
- Where an employee acts in a position but is not substantively appointed to that
position;
- Where a temporary employee is not appointed in a permanent position; or
- Where an employer creates a reasonable expectation that an employee would be
promoted, but fails to do so
- Remember that with each claim the claimant must prove that the conduct was unfair

- Dlamini v Toyota SA Manufacturing 2004 (CCMA)

- The legal principles surrounding claims in terms of section 186(2)(a) were set out
- These principles include:
- The CCMA or the courts should be hesitant to intervene in a decision to promote
or not unless there is clearly gross unreasonableness
- If an employer is unable to justify failure to promote, then unfairness may arise
- Arbitrators are not employment agencies and they do not ensure that the best
candidate is chosen, but rather that the employer does not act unfairly towards
other candidates
- If the best candidate is not chosen, it must be shown that the process in which
the candidate was overlooked was unfair
- Thus the fairness in the reasoning is not looked at, but the fairness in the
process
- Department of Rural Development and Agrarian Reform v General Public Service
Sectoral Bargaining Council 2020 (LAC)
- Employee acted in a senior managerial position for a few years and his performance
was commendable
- During this time, numerous recruitment processes were followed by the employer,
but nobody was appointed to the post
- Furthermore, during this period, the requirements for this post changed
- This resulted in the claimant being excluded from being able to fill the post
- Before this change was brought about, the claimant met the qualification
requirements for the post
- A different candidate was appointed
- After the employee complained, he was interviewed regardless of his lack of
qualification
- At the interview stage, he was found suitable for the position
- However, a different candidate was recommended who did not have the required 3
years of experience in a management position
- The post remained vacant for a further year
- This was held to be unfair labour practice
- It was specifically held by the LAC in agreement:
- The claimant qualified for appointment as he acted in the position for a long time
- The reliance on an alternate qualification excluding the claimant was irrational

- This case is an exception to the rule that it must be proved that the post has been
filled
Demotion
- Claimants must prove that there was a demotion and that such demotion was unfair
- Demotion may constitute:
- Move to a lower rank or level;
- Loss of status; or
- Loss of pay
- Employer must provide sound reason and follow sound procedure
- Demotion can be imposed as a disciplinary penalty
- Murray v Independent Newspapers 2003 (CCMA):
- Demotion must involve a loss of benefits or diminution in the employee's status
- Thus not every change in job description or function of employee constitutes
demotion
- Employer is also obliged to consult and sometimes even negotiate with the
employee before effecting a demotion
- Nxele v Chief Deputy Commissioner, Corporate Services, Department of
Correctional Services & Others 2008 (LAC):
- "Transfer" was considered a demotion
- Reason being that the duties, status and prestige in the transferred position were
considerably inferior to those the previous position
- SA Police Service v Salukazana & Others 2010 (LC):
- Transfer of employee resulted in change in conditions and reduction in status and
responsibilities
- Thus the transfer was not challenged in itself, but its consequences were
- The transfer was held to constitute ULP
- Mwamwende v University of KwaZulu-Natal 2006 (CCMA)
- 2 universities were merged
- One of the deans from a merged university was not appointed as dean in the "new"
entity
- The former dean argued that his 5-year contract should be upheld, and that failure
to appoint him as dean constituted a demotion

- The employer argued that employment contracts were automatically transferred
within a company, and that a post in a new entity could only be created by a new
university council which post is separate from the original post created by the
contract
- The commissioner rejected this argument and held that the fixed-term contract had
to be honoured by the new council, and failure to do so would constitute unfair
labour practice
Probation
- Code of Good Practice: Dismissal (the "Code") regulates the position on probationary
employees (Item 8 of Schedule 8)
- In terms of the Code, it is permissible for an employer to submit a new employee to a
probationary period
- The aim of this process is to prevent the employer from being saddled indefinitely with
employees who fail to perform satisfactorily
- Unfairness during probationary period can be a basis for a ULP claim
- In terms of the Code
- The probationary period must be determined in advance
- This period must be reasonable, with consideration taken of the nature of the job
and the time needed to determine the suitability of an employee (e.g. complexity,
seniority etc. of the post)
- The Code sets out procedural and substantive requirements for dismissal during
probation
- If dismissed unfairly, then it is an unfair dismissal dispute, otherwise ULP dispute
- Probationary period may be extended, but must be for a fair and reasonable reason
- Extension of the period for reasons unrelated to the purpose of the probation may
be considered ULP
- Dismissal before the probationary period expires is more likely to be unfair than
dismissal at the expiration of the probationary period
Training
- Claims of ULP regarding training may arise in the following contexts:
- Failure to provide training as per the contract of employment;
- Failure to provide training as per a collective agreement;

- Failure of designated employers to implement training measures in line with
affirmative action measures in terms of the EEA
- Maritime Industries Trade Union of SA & Others v Transnet Ltd & Others 2002
(LAC)
- LAC held that ULP regarding training can be established where the employer acted
inconsistently, arbitrarily or irrationally regrading training issues
- Transnet Ltd v CCMA & Others 2001 (LC)
- Failure to provide training in this case was held to constitute unilateral change to
contractual terms
- The conduct of failing to provide training is not unfair in and by itself
- If the employer's reasoning was arbitrary or inconsistent with due process, then it
would constitute ULP
Benefits
- The question of what constitutes a benefit in this context has been surrounded by
controversy
- Initially, it was given a narrow meaning and was held to be something other than
remuneration
- Schoeman v Samsung Electronics SA (Pty) Ltd 1997 (LC)
- Benefit = something other than remuneration
- Thus if the object of the dispute falls within the definition of remuneration in the
LRA, then it is not a benefit
- Further held that the benefit must be provided in the employment contract or in
legislation for a claim to be successful
- In the facts an employee instituted a claim regarding commission
- The commission was held to constitute remuneration and not a benefit
- Thus reducing the commission earnable held not to be ULP
- HOSPERSA & Others v MEC For Health (EC) & Others 2016 (LAC)
- Held that a benefit must arise ex conractu or ex lege
- Claim for additional remuneration by nurse for acting as a matron was held not to
be a benefit
- Protekon (Pty) Ltd v CCMA & Others 2005 (LC)
- Employer and its predecessor provided travel concessions to managerial staff

- In 2002, this benefit was withdrawn unilaterally and replaced by a once-off bonus or
increase
- Respondent received concession for 19 years and was not happy to forfeit it
- The increase was alleged not to be sufficient to replace the concession
- The court held that "There can be little objection to workers choosing to tackle the
employer in the collective bargaining arena rather than trying to demonstrate
unfairness in the sense contemplated in the unfair labour practice definition. The
LRA does not appear to preclude them from doing both at the same time."
- The court in this case basically rejected the Schoeman case
- It was held that remuneration as defined in the LRA is broad enough to encompass
many forms of payment and includes many different benefits
- E.g. pensions, medical aid etc.
- Apollo Tyres SA (Pty) Ltd v CCMA & Others 2013 (LAC)
- The LAC supported the Protekon case
- Held that the distinction between remuneration and benefits drawn in the
Schoeman case was artificial and unsustainable
- Definition of remuneration was wide enough to include
- Wages
- Salaries
- Most, if not all, extras and benefits
- The concept of ULP relating to benefits was thus broadened
- The approach in Apollo Tyres is the approach followed today
Unfair disciplinary action short of dismissal

Suspension
- 2 types of suspension:
- Suspension as a disciplinary action
- As a result of a disciplinary enquiry, implemented as a penalty
- Usually results after investigation
- Suspension as a precautionary action
- Usually implemented pending the outcome of a disciplinary enquiry in order to
prevent interference with the investigation
- Usually results during investigation
- Both fall within the scope of section 186

- Nkosi v Embhuleni Tribal Authority 2007 (CCMA)
- Conditions that must be met for suspension to be considered fair:
- The relevant disciplinary code should be followed;
- The suspension is not to be used to punish the employee;
- The employee should be informed of the reason for the suspension;
- The employee should be informed of the length (which should not be
unreasonable) of the suspension; and
- The employee should be paid for the period in full
- Long v SA Breweries Pty Ltd 2019 (CC)
- Previously, employees were entitled to make representations as to why a
precautionary suspension should not be imposed
- The CC in this case changed that position and it is no longer required for employees
to be afforded this opportunity prior to the implementation of precautionary
suspension
- The reason is that precautionary suspension is not punitive, and as long as it
remains that way, the new position is how it should be
- Edumbe Municipality v Putini and Others 2020 (LAC)
- Factors to consider in determining whether suspension is substantively and
procedurally fair are, inter alia:
- The nature and seriousness of the iniuria;
- The circumstances in which the infringement took place;
- The behaviour of the defendant (especially whether the motive was honourable
or malicious);
- The extent of the plaintiff's humiliation or distress;
- The abuse of the relationship between the parties; and
- The attitude of the defendant after the iniuria had taken place
Disciplinary action short of dismissal

- E.g. of what may constitute this:
- Warnings;
- Transfers;
- Suspension without pay;
- Imposing short time on an employee as a form of discipline and not an operational
requirement

- Mehlala v Cybersmart (Pty) Ltd 2021 (CCMA)
- Employee tested positive for Covid-19
- Absent from 20 January and a medical note was issued on that day suggesting
isolation for 10 days (until 1 February)
- After 10 days, the employee still showed symptoms and remained absent
- On 3 February, the employee went to a clinic and was booked off for another 5 days
- The employer issued a final written warning for the employee’s absence from 1 to 3
February
- The final warning was overturned by the CCMA
- Laubscher v GPSSBC 2020 (LC)
- Question before the court: does scheduling of a disciplinary hearing constitute
disciplinary action short of dismissal?
- Held in the affirmative if so in certain instances
- In casu, the employee was charged with misconduct by the employer and a
disciplinary hearing was scheduled
- Months went by without any hearing, and at a later stage, the employer withdrew
the charges
- The court found that the charges were brought vexatiously and that there were no
real grounds for the charges
- This was found to be unfair
- Furthermore, it was found that there was, in fact, disciplinary action
- Charges were brought alleging misconduct, and a hearing was scheduled, but the
charges were later withdrawn
- However, scheduling of disciplinary hearing will not constitute disciplinary action
short of dismissal in every case, only under certain circumstances
Refusal to reinstate/re-employ
- Key phrase: in terms of agreement
- E.g.
- Driver dismissed for operational reasons
- Retrenchment agreement was drafted
- This contained a clause stating that if a driver position becomes available or if the
circumstances change, in the following year, the company would investigate the
possibility of re-employment of the driver

- 2 months after the retrenchment, the employer employed a different person in that
same post
- 5 requirements that must be satisfied for a claim to be successfully lodged:
- Employee must have been previously employed by the employer;
- An agreement (not only collective agreement) on re-engagement is a prerequisite,
whether agreement was reached during employment or after termination;
- There must be a vacancy; and
- The applicant must be suitably qualified
- A suitable vacancy must exist;
- Employer must have failed to reinstate or re-employ the employee in terms of the
agreement; and
- Time period within which to reinstate employee should be reasonably practical (i.e.
not years after retrenchment)
Occupational detriment on account of protected

disclosure
- Mostly regards the protection of whistle bowers
- Purpose = eradicate criminal and other irregular conduct
- Objectives:
- Protect employee from being subjected to occupational detriment for making
protected disclosure
- Provide remedies
- Set out procedures that must be followed to disclose info regarding employer
improprieties
- In order to understand this, 4 principles must be understood
- What is an occupational detriment
- What is a disclosure
- What is a protected disclosure
- What is a general disclosure
- This section of the work was primarily effected by the Protected Disclosures Act 26 of
2000 (PDA)

Occupational detriment
- The following may constitute an occupational detriment in terms of the PDA:
- Disciplinary action;
- Dismissed, suspended, demoted, harassed, intimidated;
- Transferred against will;
- Refused transfer/promotion;
- Unilateral change to terms and conditions of employment which change is
prejudicial;
- Refused reference/provided with adverse reference;
- Denied appointment;
- Threatened with any of the above actions; or
- Otherwise adversely affected
- NB: cannot institute ULP if the occupational detriment suffered is dismissal (then must
lodge unfair dismissal dispute)
Disclosure
- When an employee provides info about improper conduct being perpetrated by the
employer
- This conduct may be, inter alia:
- Criminal offence that has been committed, is being committed or is likely to be
committed;
- Employer has failed, is failing or is likely to fail to comply with a legal obligation;
- That a miscarriage of justice has occurred, is occurring or is likely to occur;
- That the health or safety of an individual has been, is being or is likely to be
damaged;
- Unfair discrimination as contemplated in the PEPUDA; or
- Any matter referred to above has been, is being or is likely to be deliberately
concealed
Protected disclosure
- This constitutes a disclosure made to specific persons identified in the PDA
- These persons may include:
- A legal advisor;

- The auditor-general or public protector

- Relevant impropriety falls within any description of matters which are ordinarily
dealt with by that person/body;
- Info disclosed must be substantially true
- To the employer itself (e.g. if conduct of another employee is reported);
- A general protected disclosure:
- Disclosure that is not made to one of these specified bodies, e.g. to the media
- Defined in section 9(1) of the PDA
- Requirements:
- Good faith;
- Reasonable belief that the info disclosed is true; and
- The disclosure is not made for personal gain
- A general protected disclosure may be further qualified in 2 ways:
- One or more of the following conditions must apply:
- At the time, employee must have reason to believe that he/she will be subjected
to occupational detriment if disclosure is made to the employer;
- No person/body is prescribed as designated person/body to whom the
disclosure must be made;
- A similar disclosure was previously made to the employer and no action was
taken within a reasonable period; or
- The impropriety is not of an exceptionally serious nature
- The disclosure must be reasonable, having regard to:
- The identity of the person to whom the disclosure is made;
- The seriousness of the impropriety;
- Whether the impropriety is continuing, or is likely to continue in the future;
- Whether the disclosure is made in breach of a duty of the employer of
confidentiality;
- If a previous disclosure was made to the employer, whether any action was
taken or might reasonably have been expected to have been taken;
- Where a previous disclosure was made to the employer, whether this was done
in accordance with proper authorised procedure; and
- Public interest

- Tshishonga v Minister of Justice 2007 (LC)

- Employee made a general disclosure
- Found to fall within the ambit of ULP
- Director in the Master's office responsible for appointing liquidators of insolvent
estates
- Minister approached him and requested that one of the Minister's (unqualified)
friends be appointed as a liquidator
- Naturally, the employee refused and he was removed from his post
- A different person was appointed in his post and this person appointed the friend of
the Minister as a liquidator
- This new liquidator was paid R583m over 3 years, while other liquidators earned
about R1m over 3 years
- The employee reported this to the Director General, who said that nothing can be
done
- He then lodged a complaint with the Public Protector and Auditor General, both of
whom also said nothing could be done
- He then resorted to going to the media
- The employee was suspended and a disciplinary hearing was conducted
- He then successfully lodged a ULP dispute
- He was found to have been subjected to an occupational detriment after making a
protected disclosure
Requirements for establishing a ULP based on occupational

detriment
- 3 basic requirements:
- An employee must have made a protected disclosure within the ambit of the PDA;
- The employer must have taken action against the employee which amounts to
occupational detriment within the ambit of the PDA; and
- The detriment suffered must be on account of, or partly on account of having made
the protected disclosure (this a causal link between the disclosure and the
retaliating action by the employer must exist)
Dispute resolution procedure

- Claim of ULP must be lodged with bargaining council or CCMA within 90 days for
conciliated
- If conciliation fails, refer to arbitration
- Exception:
- Disputes regarding occupational detriments can be referred to the LC
- Probation - follow conciliation/arbitration process (both on same day)
- Remedies:
- Reinstatement;
- Re-employment; or
- Just and equitable compensation limited to 12 months' remuneration

Study Unit 7: Unfair Dismissals

Introduction
- Until early 1980s, there was no protection against unfair dismissal in SA
- The common law position was that of "master and servant"
- This was the case with many countries
- Eventually, most of these countries adopted legislation to ensure
- Fair reasons; and
- A fair procedure
- These new measures have been criticised for undermining the flexibility necessary to
achieve globalisation
- They were also said to inhibit competitiveness
- ILO Convention 158 (termination of employment at initiative of employer) influenced
how Chapter VIII of the LRA was drafted
- The LRA recognises 3 grounds of justification of dismissals:
- Misconduct;
- Incapacity; and
- Operational requirements
Dismissal
- In an unfair dismissal dispute, the employee must first prove the existence of a
dismissal
- The statutory definition of "dismissal" is much broader than the common-law concept
- The statutory definition includes "the termination of employment relationship"
- Notice that it does not refer to the narrower "termination of an employment contract"
- In certain circumstances, the resignation of an employee may also constitute a
dismissal for the purposes of the LRA
- A dismissal is not automatically unfair
- The employee must prove that the termination amounts to "dismissal"; and
- The employer must thereafter prove that the dismissal was substantively and
procedurally fair
Termination of employment by the employer, with or without notice

- Regulated by section 186(1)(a)

- In 2014 the LRA was amended
- The previous position defined dismissal as "termination of a contract of
employment";
- The new position defines dismissal as "termination of the employment relationship"
- This may include instances where a notice period is given, or where summarily
terminated
- It may also constitute dismissal if an employment contract is concluded, and then
terminated before the employee commences employment
- If an employee provides notice of resignation, and attempts to withdraw the resignation
within the notice period, but the employer refuses to allow such withdrawal, this may
constitute a dismissal
- CEPPAWU & Another v Glass and Aluminium 2000 (CC):
- Employee resigned in the heat of the moment and tried to withdraw the resignation
the next day
- The employer refused to allow the withdrawal
- The employee claimed unfair dismissal
- The court held that the attempt of the employee to reverse the resignation the next
day showed that the decision to resign was a result of the circumstances under
which the employee acted at the time
- As such, the refusal of the employer to allow the retraction of the resignation
amounted to dismissal
Refusal or failure by an employer to renew a fixed-term contract

- Regulated by section 186(1)(b)
- 3 requirements (only 1 of the last 2 need be present):
- The employee must have had reasonably expected the employer to renew the fixed-
term contract or to retain the employee indefinitely; and
- The employer must have refused to renew the contract or retain the employee
indefinitely; or
- The employer offered renewal or retention on an indefinite basis, but the offer
created less favourable terms
- Reasonable expectation
- Expectation determined subjectively
- Reasonableness determined objectively
- Thus all relevant factors are taken into account
- The wording of the contract are important, especially in fixed-term contracts
- However, if a fixed-term contract had been renewed several times, the wording
which excludes expectation of renewal loses credibility
- Other factors that may be considered:
- Terms of the contract;
- Past practice of renewal;
- Nature of employment and reason for entering into the fixed-term contract;
- Assurances given to renew the contract (if any); and
- Failure to provide reasonable notice of non-renewal
Refusal to allow an employee to resume work after maternity leave

- Regulated by section 186(1)(c)
- Such refusal amounts to unfair dismissal
- The employee must have been entitled to maternity leave in terms of legislation,
collective agreement or contractual terms
- If the employee uses in excess of the maternity leave to which she is entitled, the
refusal of the employer to allow the employee to resume work is dismissal based on
misconduct and thus not unfair
- The above is true if the employee is unable to provide grounds for justification e.g.
medical certificate
Selective re-employment
- Regulated by section 186(1)(d)
- Elements:
- Triggering event = refusal to re-employ and ex-employee; and
- Such refusal occurs in the context where several employees are dismissed for the
same or similar reasons and the employer decides to re-employ some of them but
not all of them
- This does not amount to dismissal in the ordinary meaning, but may amount to unfair
dismissal
Constructive dismissal
- Regulated by section 186(1)(e)
- Occurs when an employee resigns, with or without notice, because employment has
been made intolerable

- Strictly speaking the termination of the employment relationship is initiated by the
employee and is thus not a dismissal
- However, the conduct of the employer "forces" the termination of employment and may
amount to unfair dismissal
- An employee who is dismissed during the notice period of the resignation may still
claim unfair dismissal
- The courts objectively view the conduct of the employer in determining whether the
employment conditions were intolerable
- This objective view is interpreted strictly
- Murray v Minister of Defence 2008 (SCA):
- The court emphasised the constitutional obligation of the employer to act fairly
when making decisions that affect the employee in his/her work
- It was held insufficient for the reason for resignation to be solely that the work
became intolerable
- This is because the intolerability of the work could be caused by factors other than
the conduct of the employer
- It has to be proven that the conduct of the employer made the work intolerable, and
that this conduct did not occur because of a good and fair reason
- Thus the test is whether the conduct of the employer "lacked good and proper
cause"
- It need not be proven that the employer intended to get rid of the employee
- There is an onerous burden on the employee to prove that continued employment
would be "objectively unbearable" (but-for test)
- Premature resignation excludes unfair dismissal
- Thus all internal grievance procedures must have been followed
- Thus resignation as an alternative to facing disciplinary hearing does not amount to
constructive dismissal
- Relevant considerations include:
- The employee must have terminated the employment relationship;
- The conduct of the employer need not amount to repudiation (thus no intention to
get rid of employee is required);
- The situation must have been objectively unbearable;
- Employee must prove that he/she would have continued employment, but for the
employer creating the objectively unbearable circumstances; and

- The employee must exhaust all possible remedies before resigning
- Theresa Mulderji v Goldrush Group (GAJB 24054-21) – in the CCMA
- Goldrush (a casino group) adopted a vaccination policy
- In terms of this policy, all employees had to be vaccinated against Covid-19 in order
to return to work
- Mulderji was a trainee officer
- The nature of her work was such that she had to work in a confined space with the
general public as well as her colleagues
- She applied to the employer to be exempted from the vaccination policy
- The employer rejected the application and she was dismissed due to her continuous
refusal
- The dismissal was based on incapacity
- The employer argued that the employee was unable to perform her duties because
of her refusal to be vaccinated
- The CCMA held that the employer has a right and a duty to ensure the safety of its
employees by having them vaccinated
- Thus the employee's refusal to adhere to the policy put the safety of the other
employees at risk and such refusal could not be justified
- The CCMA held that the dismissal based on incapacity was fair
- Centre for Autism Research and Education CC v CCMA 2020 (LC)
- Employee was successful in a claim of constructive dismissal the CCMA
- The employee did not lodge a grievance complaint with her supervisor, as the
supervisor sexually harassed her which is the main reason for her resignation
- The LC held that the CCMA correctly concluded that lodging a grievance was not
an option
- The CCMA’s order was upheld
Transfer of a business
- Regulated by section 186(1)(f)
- In terms of section 197 of the LRA, when a business is transferred as a going concern
and the new employer decides to retain the existing employees, this may not be done
on less favourable terms or conditions
- If the new employer offers less favourable terms or conditions to existing employees,
that employee may be said to have been dismissed without notice

- Therefore, new terms may be offered, as long as they are not less favourable compared
to the terms provided by the previous employer
- The exception is where the contractual terms are determined by a collective agreement
- In such a case the terms must be identical to those under the former employer
Other forms of termination of employment that are not

"dismissals"
Resignation
- This is a unilateral termination of employment initiated by an employee
- In such cases the termination is brought by the conduct of the employee and not the
employer
- The exception is, of course, when the resignation constitutes constructive dismissal
Effluxion of time
- Usually applies to fixed-term contracts
- Such contract may terminate after a specified period passes, or when a specified
objective is complete
- The exception is, of course, where the employer unfairly dismisses an employee in
terms of section 186(1)(b) by its failure to renew a fixed-term contract
Reaching retirement age

- Where an employee reaches the normal or agreed retirement age, the employment
contract expires automatically
- This does not constitute a dismissal because the termination of the employment
relationship is not brought about by the conduct of the employer
- Instead, the termination is brought about by the contractual terms or by legislative
provisions
- There is nothing that precludes the parties from continuing with the employment
relationship after the employee reaches retirement age
- In such cases both parties must agree to continue the employment relationship
Insolvency
- In the case of a compulsory winding-up of the employer, it can no longer continue its
business

- In such cases, in terms of section 38 of the Insolvency Act, the employment contracts
are suspended and are either terminated by the liquidator or are automatically
terminated after 45 days
- With compulsory winding-up, the termination cannot be said to have been brought
about by the conduct of the employer
- With voluntary winding-up, the employer specifically chooses to terminate the business
- In such cases the termination of the employment relationships may be said to have
been brought about by the conduct of the employer
Mutual agreement
- Where both parties agree to end the employment relationship, dismissal does not occur
- In such cases the termination is not unilaterally brought about by the employer
- This is usually the consequence of a settlement or waiver
Death
- The employment relationship is automatically terminated at the death of the employee
- At the death of the employer, the relationship terminates automatically if there is no
successor
- If there is a successor to the employer, the employment relationship continues between
the employee and the new employer
- This relationship may not be on less favourable terms
Supervening impossibility of performance

- When performance on behalf of both parties in terms of the contract becomes
impossible, the contract terminates automatically
- Such impossibility must be brought about by external factors, and not by the conduct
of either party
- There is a distinction between temporary and permanent impossibility
- In the former case, the duty to perform is suspended and not terminated
- E.g. of where such impossibility may occur:
- Construction company enters a fixed-term employment relationship with an
employee
- The term expires at the completion of a project
- Before the project is complete, a natural disaster occurs and renders the
construction company incapable of continuing construction
- Then the performance on the part of both parties becomes impossible

- This impossibility is brought about by external factors
Other automatic terminations

- E.g. section 17 of the Public Services Act where the employee is absent for more than
1 calendar month, the employee is deemed to have been discharged for misconduct
- This is referred to as a "deemed dismissal" and is not a dismissal in terms of section
186 or 187 of the LRA
- Another e.g. is where the continuation of the employment relationship relies on a
condition being met, and such condition is not met
Date of dismissal
- The earlier of either of the following dates:
- The date on which the employment relationship was terminated; or
- The date on which the employee left the services of the employer
- If employment is terminated on notice, it is the earlier of either of the following
dates:
- The date on which the notice period expires; or
- The date on which the employee is paid all outstanding salary
- Where employer fails to renew a fixed-term contract or does so on less favourable
terms, the date of dismissal is the date on which the employer gives notice of its
intention to the employee
- Where an employer refuses to allow an employee to return after maternity leave, the
dismissal occurs on the date on which such refusal is expressed
- Where an employer refuses to reinstate an employee, the dismissal occurs on the date
on which such refusal is expressed
Dispute resolution
- Disputes regarding dismissal must be referred by the aggrieved employee
- There are various forums to which such disputes may be referred
Arbitration
- An unfair dismissal dispute must be referred to the CCMA or bargaining council for
conciliation within 30 days after the dismissal date
- If conciliation fails, the dispute must be referred to the CCMA or bargaining council for
arbitration within 90 days after the certificate of failed conciliation is issued by the
commissioner

- The above applies even if the conciliation period was extended
Labour Court
- If the dispute relates dismissal due to operational requirements, the dispute must be
referred to the LC for adjudication
- If only 1 employee is retrenched, or earns below the threshold amount, can refer to the
CCMA for arbitration
- Disputes regarding automatically unfair dismissals are also referred to the LC for
adjudication
Onus in dismissal disputes

- In a dispute regarding unfair dismissal, the onus is on the employee to prove that there
was indeed a dismissal
- If this is proved, the onus is then on the employer to prove that the dismissal was fair
(fair reason and fair procedure)
- Sidumo & Another v Rustenburg Platinum Mines Ltd & Others 2007 (CC)
- The CC held that the employer must prove that the dismissal was executed for a fair
reason and by way of a fair procedure
- This fairness must be determined according to what the commissioner determines
to be fair, and not what the employer determines to be fair
- Thus the reasonable employer test became the reasonable commissioner test
- In this case, Sidumo (a security guard) was supposed to do body checks at a
secure point
- Someone suffered loss due to the bad job done by the security guard
- Failed to follow reasonable instruction
- No proof that loss was suffered as a direct result of the failure of Sidumo
Remedies for unfair dismissal

Reinstatement and re-employment
- Primary remedies = reinstatement/re-employment
- Section 193 of the LRA establishes these as the primary remedies
- These remedies are not ordered if:
- Employee does not wish it;
- Circumstances intolerable;
- Impractical; or

- The only reason for the dismissal is unfair procedure for the dismissal
- Reinstatement
- Employee is returned to the same position prior to unfair dismissal
- The period between dismissal and reinstatement order is uninterrupted
- Re-employment
- Employee is interviewed and employed into a new or similar position
- There is thus a new contract with new terms and conditions
Compensation
- The third remedy is compensation
- This remedy is enforced where reinstatement or re-employment is not ordered
- Section 194 of the LRA regulates compensation as a remedy
- There is no fixed amount prescribed by the LRA
- However the amount must be just and equitable
- The maximum compensation that may be ordered for unfair dismissal and ULP is 12
months' remuneration
- In their discretion to award compensation, labour courts will consider relevant factors
such as the seniority of the employee, time worked for the employer etc.
- If an employee refuses a reasonable offer of reinstatement, such refusal is
unreasonable and compensation cannot be claimed
Automatically unfair dismissal (AUD)

Introduction
- In terms of section 187, if a dismissal is found to be automatically unfair, it is not open
for the employer to justify its decision
- If a dismissal is found to be automatically unfair, a remedy may be sought by the
dismissed employee
- There are 2 kinds of AUDs:
- Those involving discrimination; and
- Those involving a worker exercising a right
- If an AUD is established, the employee is entitled to reinstatement or a maximum
compensation of 24 months' remuneration
- The employee only bears an onus to prove that there was a dismissal, and the court will
establish whether it was an AUD

Dismissals contrary to section 5:

- Section 5 of the LRA provides protection of the right to freedom of association to
employees and persons seeking employment
- Therefore, employees may not be dismissed for exercising their right to freedom of
association in a lawful manner
- However, if the employee's membership or participation in union activities interfere with
his/her capacity to perform the required work, the employer becomes entitled to act
Participation in a protected strike or protest action

- The right to strike is embodied in section 67(4)
- If the strike or protest action is lawfully arranged and protected, then dismissal due to
participation or intention to participate is an AUD
- Chapter IV of the LRA allows an employer to take action relating to an employee's
conduct during a strike, or for operational requirements
Refusal to do work normally done by striking employees

- Dismissal or lock-out for such refusal, or an indication of an intention to refuse is an
AUD
- Qualifications to the rule:
- The refusal mist be communicated in the context of a protected strike or lock-out
- The refusal must relate to the work normally performed by a striking employee and
not the employee's own work; and
- The refusal may not extend to work necessary to prevent an actual danger to life,
personal safety or health
Refusal to accept a demand in respect of any matter of mutual

interest
- Dismissal is automatically unfair if used to put pressure on employees who refuse to
agree to certain terms
- The term "matters of mutual interest" usually refers to employment terms and
conditions
- If the employee refuses to abide by a change of operational requirements (e.g. change
in shift configuration), the employer has the right to take action

Dismissal for exercising any right conferred by the LRA

- If the employee takes action against the employer, or intends to do so
- By exercising any right conferred by the LRA; or
- By participating in any proceedings in terms of the LRA
- "Proceedings" may refer to, inter alia:
- Employee taking part in conciliation and arbitration proceedings;
- Establishment of a workplace forum; and
- Representing a fellow employee in a disciplinary enquiry
Pregnancy, intended pregnancy or any other related matter

- Such a dismissal is automatically unfair and is unfairly discriminatory
- If no causal link between dismissal and pregnancy, there is no difficulty
- E.g. if, while an employee is on maternity leave, an employer discovers misconduct on
the part of the employee while she was still at work, the dismissal is not automatically
unfair
Unfair discrimination
- It is obviously automatically unfair if an employee is dismissed based on listed grounds
- TDF Network Africa (Pty) Ltd v Faris 2019 (LAC)
- Ms F was dismissed because she was unable to attend stock-count on Saturdays
due to her religion
- TFD argued that attending the stock-count was an inherent requirement of the job
as it formed part of the graduate training policy
- She was thus dismissed due to incapacity
- Ms F argued that her dismissal was procedurally and substantively unfair,
automatically unfair and that she was unfairly discriminated against by TFD on the
basis of her religion and belief
- The dispute was initially referred to the CCMA, but the matter remained unresolved
and was referred to the LC
- The LAC followed the proportionality test in determining whether attending the
monthly stock-count was an inherent requirement
- The LAC held that the requirement should have been adopted in a genuine and
good faith belief that it was necessary to the fulfilment of a legitimate work-related
purpose and must be reasonably necessary to the accomplishment of that purpose

- The LAC also held that the onus was on TDF to prove that it was impossible to
accommodate the individual employee without imposing undue hardship or
insurmountable operational difficulty
- Ultimately, TDF could not prove that it reasonably tried to accommodate Ms F
before she was dismissed
- The LAC held that the dismissal of Ms F was automatically unfair
- In terms of section 194 of the LRA, compensation for an AUD must be just and
equitable and may not be more than 24 months' remuneration
- Ms F was awarded 12 months' remuneration
Potentially fair reasons for dismissal

- Section 188 provides 3 potentially fair reasons for dismissal:
- Reasons relating to conduct;
- Reasons relating to capacity; and
- Reasons relating to operational requirements
Misconduct
Introduction
- Misconduct may be a potentially fair reason for dismissal
- Misconduct is conduct that is unlawful or punishable by the employer or the state
- Two requirements must be met for dismissal for misconduct to be fair
- Substantive fairness (actual reason for dismissal); and
- Procedural fairness (manner in which dismissal is effected)
- Item 2(1) of the Code of Good Practice: Unfair Dismissal provides that substantive
fairness is determined on the facts of each case
- The appropriateness of dismissal as punishment for the conduct is also determined on
the facts of each case
- Generally, it is not an appropriate punishment for a first offence, unless the offence is
serious enough to justify the dismissal
- Factors which the employer must consider before dismissing the employee:
- Gravity of the misconduct;
- Employee's length of service;
- Disciplinary record and personal circumstances;
- Nature of the job; and

- Circumstances surrounding the infringement
Conduct justifying dismissal

- Absenteeism and time-related offences
- Wilful absence from work is serious misconduct and is punishable by dismissal
- Dismissal is generally appropriate where the employee is repeatedly absent
- It may also be appropriate where a single incident of absence detrimentally affects
the employer's business
- Onus to justify absence rests on employee
- Abusive language
- Abusive language toward superiors, co-employees or third parties may provide a
basis for dismissal
- The circumstances of the incident must be considered in determining whether
language is abusive and the degree to which it is abusive
- Rude language must be distinguished from abusive language
- A strict approach is followed where the abusive language amounts to harassment of
a racial, sexual or other nature
- Alcohol and drug abuse
- This may amount to either incapacity or misconduct
- The Code provides that counselling and rehabilitation may be more appropriate
- There is a distinction between alcoholism in general and drunkenness at work
- The latter amounts to serious misconduct and will generally warrant dismissal
- Assault
- Where the assault is serious, dismissal may be warranted even in cases of a first
offence
- Threats of assault may also warrant dismissal
- Factors to be considered are:
- Circumstances of the employee;
- Extent to which the employee was provoked; and
- The nature of the work and the workplace
- Conflict of interest
- Employment relationships rely on a mutual degree of trust
- Breach of that trust will generally warrant dismissal
- Generally a conflict of interest involves an element of dishonesty

- Where the employer is not prejudiced and the employee abode by contractual terms
and workplace rules, dismissal is generally not appropriate
- Conflict of interest may arise where an employee pursues a personal relationship
with a third party who is in direct competition with the employer
- Damage to property
- An employee has a duty to promote the interests of the employer
- This extends toward the property of the employer, as well as the employer's
interests in that property
- Where an employee wilfully damages property of the employer, such misconduct
will generally warrant dismissal
- Desertion
- Desertion is distinguished from absence in that the employee generally indicates an
intention not to return
- The onus is on the employer to show that:
- The employee indicated an intention not to return; and
- The employer considered the employee's claim of having a justifiable reason for
being absent
- Where the employee is unable to justify his/her absence, dismissal is generally
appropriate
- Dishonesty
- Dishonesty may occur in various forms from providing false info to theft or fraud
- Dishonest conduct generally constitutes a breach of contractual obligations
- In determining whether dismissal is appropriate, the courts will consider whether
continuing the employment will be intolerable
- Dishonest conduct is not limited to instances where employees are unjustifiably
enriched at the expense of the employer
- Misrepresentation also amounts to dishonest conduct
- Insubordination
- Employment relationship is based on mutual respect and subordination
- Thus gross insubordination generally warrants dismissal
- Insubordination is gross when:
- When it is deliberate;
- When it is sustained; and

- When it indicates the employee's intention to disregard the authority of the
employer
- Dismissal is appropriate where the employee refuses to obey a reasonable
instruction to perform an act which falls under the employee's duties
- Intimidation
- This includes threatening conduct and includes reasonable apprehension of harm in
the person against whom it is directed
- This often occurs in the context of industrial action
- Dismissal may be appropriate even in instances of a first offence
- Threats directed at a particular person constitute intimidation
- Negligence
- The determining factor in the appropriateness of dismissal is generally the extent of
damage or loss suffered by the employer due to the employee's negligence
- Seniority and level of trust placed on the employee may also be considered
- Dismissal may not be appropriate in cases of contributory negligence where
employers assign employees to tasks for which they are not suitable
- Off-duty conduct
- Where conduct of an employee committed outside of the workplace impacts the
employer's business, dismissal may be appropriate
- The business interests of the employer must be infringed and the relationship of
trust must be undermined
- An employer need not wait for the outcome of criminal proceedings before effecting
dismissal
- Sexual harassment
- The employer has a duty to provide a safe working environment
- Thus all employees are obliged to refrain from committing sexual harassment
- Dismissal is warranted by serious acts or by repeated acts
How to establish substantive fairness

- Item 7 of the Code provides guidance on this matter
- First, determine whether the employee contravened a workplace rule
- This is a matter of fact and the onus is on the employer to prove
- This is done by conducting an investigation

- Second, determine whether the rule was valid and reasonable
- Was the employee aware of the rule, or could he/she reasonably have been
expected to have been aware of the rule?
- Was the rule consistently applied?
- Was dismissal an appropriate sanction?
How to establish procedural fairness

- Item 4 of the Code provides guidance on this matter
- First, investigate whether there are grounds for dismissal
- Establish whether there was a rule; and
- Establish whether the rule was contravened
- This enquiry is informal and are determined on the facts
- Second, conduct a disciplinary enquiry
- Avril Elizabeth Home for the Mentally Handicapped v CCMA 2006 (LC)
- Employee must be notified of the allegations of misconduct;
- Employee must be afforded an opportunity and reasonable time to respond to
the allegations
- Employee is entitled to assistance by a union representative or a fellow
employee
- The decision of the employer must be furnished in writing to the employee
Incapacity
Introduction
- There are 2 forms of incapacity:
- Poor work performance; and
- Ill health or injury (including mental incapacity)
- In incapacity dismissals, there is no fault/intention on the part of the employee
- Incapacity is compared to incompetence
- Distinction between temporary and permanent incapacity
Medical incapacity
- Determine whether it is permanent or temporary
- If temporary, but employee will be absent unreasonably long, employer must
investigate alternatives to dismissal (e.g. temporary replacement staff)

- If permanent, employer must consider possibility of providing alternative
employment, or ways of accommodating the disability
- Employee must be allowed to respond to an investigation into medical incapacity and
must be allowed assistance by union representative or fellow employee
- If incapacity is caused by substance abuse, counselling or rehabilitation should be
considered
- Particular consideration must be given to employees who are incapacitated due to a
work-related illness or injury
- Determine the fairness of the dismissal due to incapacity
- Determine whether the employee is, in fact, incapable of performing the work
- If incapable of performing the work
- Determine the nature of the condition and the extent to which the employee is
incapable of performing the work
- Determine the extent to which the disability can be accommodated
- If it cannot be accommodated, determine the extent to which the duties of the
employee can be adapted
- Consider the availability of suitable alternative work
- Jansen v Legal Aid South Africa 2018 (LC)
- Employee with depression became regularly absent
- The employee was submitted to a disciplinary hearing where the employer refused
to consider medical evidence of the employee’s condition
- The employer also failed to accommodate the employee due to his mental condition
- The LC also found that the dismissal was not due to the misconduct, but due to the
mental condition itself
- The employee was reinstated with retrospective effect
Incompetence (poor work performance)

- Dismissal because the employee is unable to meet performance requirements or
standards
- Not because the employee refuses to meet the performance requirements
- Usually relates to a lack of skill or knowledge
- The employer is required to conduct an investigation to assess the performance
- A reasonable evaluation must determine whether instruction, training, guidance or
counselling can remedy the incompetence

- If, after a reasonable time for improvement has passed, the employee still fails to meet
the performance standard, he/she may be dismissed
Other forms of incapacity

- Lack of qualification
- Fair ground for dismissal where lack of qualification renders the employee incapable
of performing in terms of the contract
- It must be determined whether the qualification lacked is an inherent requirement of
the job
- E.g. courier driver's licence is revoked/endorsed
- Incompatibility
- When employee does not fit with the corporate culture
- The employee's personality is the cause of serious disharmony or animosity within
the workplace
- As a result of the clashes, the employee is unable to perform his/her duties
- E.g. overly hostile behaviour
Fair procedure
- The employer must conduct an investigation to establish the reasons for the poor work
performance
- The employer must provide
- An appropriate evaluation;
- Instruction;
- Training;
- Guidance; and
- Counselling
- If the alternatives fail and a disciplinary enquiry is held with the intention to dismiss, the
employee must be afforded an opportunity to make his/her case
- The employee must also be allowed assistance from a union representative or a fellow
employee
- Item 9 of the Code provides that the procedure involves the following
determinations:
- What the required standard is;
- Whether the employee failed to meet the standard;

- Whether the employee knew or ought reasonably have known about the required
standard;
- Whether the employee was afforded an opportunity to meet the required standard;
and
- Whether dismissal is the appropriate sanction for the failure to meet the required
standard
Operational requirements
Introduction
- Dismissal on such grounds does not involve fault on the part of the employee
- Therefore the onus is on the employer to justify the dismissal
- In terms the LRA, operational requirements refers to economic, technological,
structural or similar needs of an employer
- Dismissals based on operational requirements are regulated by section 189 and 189A
Substantive fairness
- The reason for the dismissal must be fair and justifiable
- The dismissal must be necessary and implemented where there is no alternative
- This is a measure of last resort
- The reasons for the dismissal must be bona fide
- If the dismissed employees are selected based on criteria that are unfair, the dismissal
is unfair
Procedural fairness
- Section 189 regulates small-scale retrenchments
- Section 189A regulates large-scale retrenchments
- Application of section 189A:
- Where 50+ employees and employer considers dismissing at least 10;
- Where 400+ employees and employer considers dismissing at least 40; and
- Where 500+ employees and employer considers dismissing at least 50
- Employees have a right to strike in an attempt to oppose the decision to dismiss
- Selection criteria - generally "last in, first out" (LIFO)

- In other words, those employees who have spent the least amount of time working for
the employer are generally those selected for dismissal
- The employer is required to consult all parties affected by the decision to dismiss
- This minimises the impact of the retrenchment and serves as a consensus-seeking
process
Notice of contemplation of dismissal

- In terms of section 189(3), the consultation is triggered by notice from the employer
- At consultation, the employer must disclose, in writing:
- Reasons for the proposed dismissals;
- Alternatives considered and reasons for rejecting them;
- Number of employees likely to be affected and job categories they fall in;
- Selection process;
- Time when the dismissals are likely to take effect;
- Severance pay proposed;
- Assistance offered by employer to those affected;
- Possibility of future re-employment;
- Number of employees employed by the employer; and
- Number of employees retrenched in the preceding 12 months
- The consultation process is important and disregard for this step leads to unfair
procedure
Identifying the appropriate consulting party

- Section 189(1) reads as follows:
(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.
- Purpose of the consultation:
- The main purpose is job retention
- It permits parties to engage in a process where they jointly explore available
alternatives to retrenchment (section 189(6)(a))
- Possibly influence the employer respecting the decision to retrench
- Circumstances are considered (SACCAWU v Woolworths)
- It is crucial that a genuine consideration to alternatives is raised
- There are various rounds of consultation, each triggered by separate section 189(3)
notices
- The overarching principle is reasonableness
- Section 189(2) reads as follows:
(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
- Collective agreements that require consultation usually only apply to some employees,
such as those belonging to a majority union
- AMCU v Royal Bafokeng platinum Ltd (LAC)
- Majoritarianism reaffirmed by the court
- The LAC held that there is a necessity to prevent dual-consultation or a duplication
of the process
- This includes consultation regarding parties not covered by a collective agreement

- Therefore, agreements reached with majority union can be extended to other
employees
- Due consideration to the structure and hierarchy
The consultation process

- The parties to the consultation must attempt to reach consensus on appropriate
measures regarding:
- To avoid retrenchment;
- To minimise the number of retrenchments;
- To change the timing of the retrenchments;
- To mitigate the adverse effects of the retrenchments;
- The method for selecting the employees to be retrenched; and
- The severance pay that is to be paid to retrenched employees
- The employer is obliged to consider and respond to the representations
- If the employer does not agree with the representations, it must state its reasons
- Good faith is a requirement
- In terms of section 16(2), the employer is required to disclose relevant info
- In terms of section 16(5), the employer is not required to disclose info that:
- Is legally privileged;
- The employer cannot disclose due to any law or order of court;
- Is confidential and which may cause substantial harm to the employee or employer;
and
- Is private, personal info relating to an employee unless the employee consents
Fair procedure
- Generally, at the exhaustion of the consultation process, the employer gives notice of
termination
- Section 41 of the BCEA provides the formula for the calculation of severance pay
- Employees dismissed due to operational requirements are entitled to severance pay
equal to 1 week's remuneration for every full year worked for the employer
- There is no maximum severance payable
- "Remuneration" for the purposes of retrenchment excludes gratuities, payments in cash
or kind (section 35(5) of the BCEA)

Study Unit 8: Freedom of Association

Introduction
- The Constitution recognises the right to freedom of association
- ILO Convention 87, and its constitution also recognise the right to freedom of
association
- The right to freedom of association may be understood in a general context and an
employment context
- The right to freedom of association is important because it promotes collective
bargaining by allowing formation of trade unions etc.
- The LRA gives effect to the Constitutional right to freedom of association
Protection of the right to freedom of association in terms of the LRA

- The LRA provides protection in this matter in 2 ways
- Chapter II extends specific rights and protections to workers and employers
- Chapter III extends organisational rights to registered trade unions that meet
representative thresholds
- Chapter II
- Employee’s right to form or join a union, or participate in union activities
- This right is protected against unfair discrimination and/or interference from
employers
- Protection against victimisation
- Protection against discrimination based on exercising a right
- Protection against demand that employee
- May not be a union member;
- May not become a union member; or
- Must give up union membership
- Protection against prejudicial treatment due to past, present or anticipated
- Union membership;
- Union formation;
- Participation in union activities;
- Failure/refusal to obey unlawful instruction;
- Disclosure of info the employee is entitled to disclose;
- Exercise of a right; and

- Participating in proceedings in terms of the LRA

- Offer advantage in exchange for refraining from exercising a right
- Contractual provision contradicting section 4 is invalid unless permitted by the
LRA
- IMATU v Rustenburg Transitional Council 1999 (LC)
- Senior managerial employees may join trade unions
- As long as there is no conflict of interest
Exceptions to the right to freedom of association

- Certain union security arrangements may be implemented in order to
- Prevent “free riders” from benefitting from collective bargaining without paying
membership fees; or
- Promote orderly collective bargaining by ensuring that there aren’t too many parties
to collective bargaining proceedings with differing opinions
- The two most prominent of these union security arrangements are:
- Closed shop agreements; and
- Agency shop agreements
Closed shop agreement

- Collective agreement between majority trade union and employer
- The agreement has the effect that all employees of the employer must belong to that
trade union
- It is not unfair to dismiss the employee if he/she refuses to join the union
- This applies to employees entering the employment relationship after the closed
shop agreement already came into existence
- Employees who were employed before the closed shop agreement came into
existence may refuse to join
- The majority union must conduct a vote
- 2/3 of those who voted must be in favour of the agreement
- There can be a request from the employees to terminate the agreement
- Triggered by way of a petition
- May only be done if the agreement has existed for at least 3 years
- 1/3 of those who vote must be in favour of termination
Agency shop agreement

- Collective agreement between majority trade union and employer
- The agreement has the effect that the employer deducts an agency fee from all
employees who are not members of the majority union
- These employees need not become members of the majority union
- The fee may not be more than the membership fees
- This limits the right to freedom of association because
- Some employees may already be members of other unions
- Then double fees are paid
- Usually, these employees are persuaded to leave their current union and join the
majority union
- Furthermore, those who are not members of any union still pay a union fee
The right to organise

- Chapter III establishes 5 statutory rights of trade unions
- 1 Access to the workplace
- Found in section 12
- This right entails:
- Recruitment of members;
- Communication with members;
- Otherwise serving members’ interests;
- Holding meetings outside working hours at the workplace; and
- Holding elections/ballots at the workplace
- 2 Deduction of trade union subscriptions
- Member of a representative union must authorise the employer in writing to make
deductions from his/her wages
- These deductions are remitted to the union
- The remittance must be made no later than on the 15th of each month
- The employee may revoke the permission by providing a month’s written notice
- The employer must provide the union on a monthly basis with
- List of members whose wages have been deducted
- Details of amounts deducted and remitted, and period to which the deductions
relate
- Copy of every notice of revocation

- 3 Election of shop stewards (trade union representatives)

- Number of representatives depend on number of members employed in the
workplace
- There must be at least 10 members in the workplace
- Functions of trade union representatives
- Assist/represent employees in grievance/disciplinary proceedings
- Monitor employers compliance with LRA or other work-related provisions
- Report alleged contravention of the above to employer, union and authority
- Perform any other function agreed upon between employer and union
- 4 Leave for trade union activities
- Employee who bears office in representative union is entitled to reasonable leave
during working hours
- The purpose must be to perform the functions of that office
- Union must agree on
- Number of days of leave;
- Payment during leave; and
- Any other condition
- 5 Disclosure of info
- This refers to the employer disclosing info
- This involves disclosure to
- Trade union representative;
- Majority union; and
- Workplace forum
- Info that must be disclosed
- Info that allows the union representative to perform his/her functions;
- Info that allows the union to effectively engage in consultation or collective
bargaining; and
- Where applicable, info that will allow the forum to effectively engage in
consultation and joint decision-making
- If info disclosed is confidential, the employer must notify the union thereof in writing

- Info that need not be disclosed

- Legally privileged info;
- Info which the employer may not lawfully disclose;
- Confidential info which may cause substantial harm to an employee or employer
if disclosed; and
- Private personal info relating to an employee (unless that employee consents to
disclosure)
- If an employer refuses to disclose info, the union may refer the dispute to the CCMA
for conciliation
- The CCMA will consider:
- Whether the info is relevant; and
- If relevant, but confidential or private personal info, balance the harm that is
likely to be caused by disclosure against harm likely to be caused by non-
disclosure
Requirements for unions to qualify for statutory rights

- Only registered unions that are “representative” may acquire may acquire
organisational rights in terms of the LRA
- Therefore, unions that represent a very small number of workers in the workplace do
not qualify for these organisational rights
- Majority unions
- The majority of the employees in the workplace are members
- 50% plus 1 employee constitutes the majority
- Sufficiently representative unions
- No definition that stipulates the precise portion of the workforce that will suffice as
sufficiently representative
- Usually, they are those unions that are not majority unions, yet have as members a
significant portion of the workforce
- From case law it is clear that unions are sufficiently representative if around 30% of
the workforce are members
- E.g.
- An employer employs 100 workers
- Union X has 51 members (majority union)
- Union Y has 38 members (sufficiently representative)

- Union Z has 5 members (small union)
The workplace
- Representivity is determined with reference to the workplace where the union seeks
organisational rights
- The definition of a workplace in terms of organisations other than those in public
service
- Place/places where employee works
- If more than 2 operations conducted independently of one another, the place where
the employee works in connection with each independent operation
- Association of Mineworkers v Chamber of Mines 2017 (CC)
- CC held that the workplace is not the place where any single employee works
- It is the place where the employees collectively work
- There was a number of mines, each with a number of different operations
- Association of Mineworkers was the majority union in 3 of these operations
- The union argued that it the workplaces were independent and that they were
entitled to negotiate as majority union in respect of these workplaces
- The CC held that the 3 workplaces were not independent workplaces and were part
of the bigger mining operation
- Thus the union was not entitled to organisational rights to negotiate salary increases
- All the operations shared the same financial information technology and human
resources and thus operated in an integral fashion and constitute a single
workplace
- Focus on collectivity and not location
- In a test, consider the LRA definition as well as the interpretation in the above case of
that definition
Organisational rights of majority and sufficiently representative

unions
- Majority unions are entitled to all 5 organisational rights found in Chapter III
- Sufficiently representative unions are entitled to
- Access to the workplace;
- Deduction of trade union subscriptions; and
- Leave for trade union activities
- Minority unions are not entitled to any of the statutory organisational rights

The process and disputes regarding the statutory

organisational rights
Process
- A registered union wishing to exercise any organisational right must notify the employer
in writing of its intention to do so
- The notice must be accompanied by
- A copy of its certificate of registration;
- A submission that it is representative and why it should be considered so;
- The workplace in which it wishes to exercise rights; and
- A description of the rights it wishes to exercise as well as the manner in which it
wishes to exercise them
- The employer must meet with the union within 30 days in an endeavour to reach a
collective agreement in this regard
Disputes
- Most disputes are regarding whether or not a union is sufficiently representative
- If a collective agreement cannot be reached due to a dispute, the situation may be
referred to the CCMA by either party
- In determining whether the union is sufficiently representative, the commissioner
must
- Seek to minimise financial and administrative burden;
- Seek to minimise the proliferation of trade unions; and
- Consider a number of factors:
- Nature of the workplace;
- Nature of the organisational rights;
- Nature of the sector;
- Nature of the organisation’s history
- SACTWU v Marley 2000 (CCMA)
- There was a union that sought to exercise organisational rights
- It represented quite a number of employees (42%)
- The CCMA considered the above factors and concluded that the union should not
be awarded the sought organisational rights
- The reason was to avoid fragmentation in the workplace

- It was also with the aim of eliminating a vast number of completely different
opinions
- The 2014 amendment to the LRA made it possible for sufficiently representative unions
to acquire organisational rights reserved for majority unions in certain instances
- This is found in sections 21(8A) and 21(8C)
- The amendment also allows minority unions in certain circumstances to acquire
organisational rights reserved for sufficiently representative unions
- A sufficiently representative union may be allowed to appoint shop stewards and gain
the right to access to info if there is no majority union to which these rights have been
conferred
- Thus the sufficiently representative union represents less than 50% plus 1, yet is the
most representative union in that workplace
- Minority unions may conclude collective agreements that set threshold
representativeness required for unions to acquire rights reserved for sufficiently
representative unions
- Unions that still do not meet the agreed threshold may apply to the CCMA
- The CCMA will consider
- Whether the union represents a significant interest in the workplace; or
- Whether the union represents a substantial portion of employees in the workplace
- NUMSA & Others v Bader Bop (Pty) Ltd & Another 2003 (CC)
- A minority union can strike in order to gain organisational rights
- Police & Prisons Civil Rights Union v SA Correctional Services Workers Union &
Others
- The court highlights that a minority union can obtain organisational rights
- It refers to the process of referral to the CCMA
- It also refers to the right to strike
- The court named a third possible way: bargaining with the employer
- Section 20 of the LRA states that nothing precludes a union from trying to
negotiate with an employer
- In this case the employer entered a collective agreement with a minority union
granting it certain organisational rights

- Fergus article
- Can minority unions represent employees at individual disciplinary hearings?
- Solidarity v SAPS & Others 2019 (LC)
- Employee belongs to Solidarity (union)
- Wanted Solidarity to represent her at a grievance hearing
- SAPS disallowed this
- SAPS argued that employees must be represented by a representative of a
union admitted to the SSSBC, which Solidarity was not
- The LC held that Solidarity has no right to represent the employee
- Fergus disagrees with this decision
- It is clear that unions must at least be sufficiently representative in order to qualify
for organisational rights
- However, where individual grievance procedures are held, employees should have
the right to be represented by the union of which they are members
- These employees are not members of the recognised unions and are not able to be
represented by them
- Fergus argues that the right to freedom of association of individuals should include
the right to be represented by a union of his/her choice

Study Unit 9: Collective Bargaining, Strikes and Lock-

Outs
Collective bargaining and worker participation
Introduction
- The main aims of the LRA are:
- To give effect to section 23 of the Constitution;
- To give effect to South Africa’s obligations as a member state of the ILO;
- To provide a framework for collective bargaining; and
- One of the main objects of the LRA is the promotion of collective bargaining at a
sectoral level;
- There is no enforceable duty on employers to engage in collective bargaining
- Collective bargaining
- Where two parties, namely workers and employers, come together and try to
resolve each other’s claims through negotiation
- The end goal is to conclude a resolution which will then be reduced to a collective
agreement
- These claims include matters of mutual interests such as wages
- Decentralised collective bargaining:
- Takes place at a plant/enterprise level
- Thus an individual employer bargains with a union
- Centralised/sectoral collective bargaining:
- Takes place at a sectoral level
- Thus collective bargaining at bargaining councils
Bargaining parties
Introduction
- The parties are:
- Trade unions; and
- Employers/employers’ organisations
- At bargaining councils the employers are represented by employers’ organisations

Registration of trade unions and employers’ organisations

- Importance of registration of unions:
- To conclude collective agreements;
- To participate in the establishment of bargaining councils;
- To participate in the establishment of workplace forums;
- To represent members in dispute resolution proceedings; and
- To qualify for organisational rights
- Trade unions may apply to the registrar of labour relations for registration if they
comply with the following requirements:
- The name of the union may not resemble the name of another trade union;
- The union must adopt a constitution which complies with section 95(5) and (6) of
the LRA;
- The address of the union must be in the Republic;
- The union must be independent; and
- The union must be genuine (main goal must be collective bargaining, not
representation at dispute resolution procedures)
- If the registrar is satisfied, he/she must enter the union’s name in the appropriate
register
- Once registered, the union is regarded as a corporate body
- In an application for registration the union must submit:
- A prescribed form that is properly completed;
- A copy of the union’s constitution; and
- Any other info which may assist the registrar in determining whether the union
meets the requirements for registration
The constitution of the trade union or employers’ organisation

- Two aspects regarding section 95(5) to take note of:
- Section 95(5)(p) requires a union seeking registration to include a requirement for
strike and ballots in its constitution
- Section 95(5)(q) prevents a union from disciplining members or terminating
membership for failing/refusing to participate in a strike if no ballot was held or the
majority of voters did not vote in favour of the strike

- Note, however, a contrary provision in section 67(7)

- “The failure by a registered trade union or a registered employers' organisation to
comply with a provision in its constitution requiring it to conduct a ballot of those of
its members in respect of whom it intends to call a strike or lock-out may not give
rise to, or constitute a ground for, any litigation that will affect the legality of, and the
protection conferred by this section on, the strike or lock-out”
- NUMSA v Mahle Behr SA (Pty) Ltd (Association of Mineworkers & Construction
Union as Amicus Curiae) 2020 (LAC)
- Dealt with what the effect of a strike is where no ballot was held
- The LC held that the strike was unprotected due to the absence of the ballot
- However, NUMSA did not include a provision in its constitution giving effect to
section 95(5)(p)
- In 2018, the LRA was amended to encourage unions to conduct ballots before
embarking on a strike
- This amendment placed a duty on the registrar to engage with all unions with a
constitution not compliant with section 95(5)(p)
- The LAC found that the registrar failed to initiate this process with NUMSA
- Due to this failure, the LAC found that the strike was not unprotected
- The reasoning was not the provision in section 67(7), but due to the registrar’s
failure in his/her duty
- A question was left open as to whether section 67(7) takes preference over section
95(5)(p)
Bargaining councils
Introduction
- Bargaining councils serve as the primary vehicle to promote collective bargaining at a
sectoral level (centralised bargaining)
- The main function of a bargaining council is to serve as a forum for the negotiation of
terms and conditions of employment of the members of the union parties to the council
Powers and functions of a bargaining council

- To conclude and enforce collective agreements
- To prevent and resolve disputes
- To promote and establish training and education schemes

- To establish and administer schemes or funds (medical aid, pension etc.)

- To develop proposals for submission to NEDLAC/other appropriate forum on policy
legislation that affects a sector
Bargaining councils in the public sector

- Generally bargaining councils are voluntary bodies
- The exception is where bargaining councils are in public service
- The LRA provides for the establishment of a bargaining council for the public service as
a whole to be known as the Public Service Co-ordinating Bargaining Council
Collective agreements
Introduction
- Don not confuse with ordinary commercial contracts
- Concluded between unions and employer(s) or employers’ organisations
- Must be in writing, but need not be signed unless stated otherwise in the agreement
- “Matters of mutual interest” has been interpreted to be broader than including only the
terms of employment
Who is bound by collective agreements?

- Not only parties to the agreement are bound
- It also applies to:
- Members of the unions and/or employers’ organisations
- Employees not members of the party to the agreement if:
- They are identified in the agreement;
- The agreement expressly binds employees; and
- The party to the agreement is a majority union
- The extension of collective agreements to non-members is provided for in section
23(1)(d)
- AMCU v Chamber of Mines 2017 (CC)
- The constitutionality of section 23(1)(d) was challenged
- AMCU argued that because they represented majority of workers at certain mines,
the collective agreement did not bind them
- The CC held that those mines were not individual
- Therefore AMCU was not a majority union and were bound by the collective
agreement

- Section 23(1)(d) was argued as being unconstitutional as it limited the rights of

members of AMCU to strike
- The collective agreement had a no-strike clause (the collective agreement could not
be challenged by strike action)
- The CC held that this provision does impose a limitation, but that it is justified
Collective agreements concluded in bargaining councils

- Section 23(1)(d) deals with collective agreements not concluded in bargaining councils
- The extension of collective agreements concluded in bargaining councils to non-parties
is embodied in section 32
- In terms of this section the bargaining council may request by application to the
minister that the collective agreement be extended to non-parties
- There are 2 thresholds that must be met before the collective agreement can be
extended:
- Threshold 1 (internal process):
- Majority unions that are parties to the bargaining council must vote in favour of
the extension; and
- Majority employers’ organisations that are parties to the bargaining council must
also vote in favour of the extension
- Threshold 2:
- The minister must be satisfied that the following requirements have been
met:
- The majority of employees to whom the collective agreement will apply if
extended must be members of the unions that are parties to the bargaining
council; OR
- The members of the employers’ organisations that are parties to the
bargaining council must be found to employ the majority of the employees
that fall within the scope of the collective agreement; AND
- Non-parties must fall within the bargaining council’s registered scope
- Free Market Foundation v Minister of Labour
- The HC found that section 32 is not unconstitutional
- The HC held that the extension of collective agreements in terms of section 32
promotes the principle of majoritarianism
- This principle is promoted by the LRA

Strikes and lock-outs

Introduction
- Section 23(2)(c) of the Constitution provides for the right to strike
- Importance of the right:
- It is through industrial action that workers are able to assert bargaining power in
industrial relations
- The right to strike is an important component of a successful bargaining system
- The right to strike is not absolute as it may be limited by the LRA
What is a strike?
- The LRA defines a strike as:
- 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;
- This definition contains 3 elements:
- Refusal to work;
- Collective action; and
- Purpose
Elements of the definition of a strike

Refusal to work
- What is included?
- Refusal to do voluntary overtime work
- Partial refusal to work (perform some, but not all duties)
- Retardation (go-slow) and obstruction of work
- What is not included?
- Refusal based on a contravention of a statutory provision
- Simba (Pty) Ltd v FAWU 1997 (LC)
- Employees refused to work according to a new shift pattern introduced by
the employer

- The intention of the new system meant that lunch breaks could not be taken
before 5 hours of work was completed, which is unlawful
- The employer argued that the refusal to work constituted an unprotected
strike
- The LC held that “work” in the definition of a strike does not include illegal
work and refused to grant the interdict
- Refusal in reaction to a breach of contract
- Refusal based on unlawful nature of instruction
- Who can refuse to work?
- Persons who are or have been employed by the same employer or different
employers
- Those who are currently employed – fairly straight forward
- Those who have been employed – those already dismissed for refusal to work
- Different employers – secondary strikes
Collective action
- More than 1 person must be involved in the refusal to work
- This was held in Schoeman v Samsung Electronics SA (Pty) Ltd 1997 (LC)
- It must therefore be a concerted refusal to work
- Although a single employer can institute a lock-out, it cannot be enforced against a
single employee
Purpose
- For the purpose of remedying a grievance or resolving a dispute
- Includes an alleged dispute
- All employees entitled to strike whether or not they are directly involved in the
dispute
- Cannot strike in support of an unlawful demand
- TSI Holdings (Pty) Ltd & Others v NUMSA & Others 2006 (LAC)
- Strike was called to support a demand that a supervisor be dismissed for
alleged racist remarks
- The union referred the dispute to the CCMA for conciliation but it failed
- The employer suspended the manager and sought an order from the LC
stating that the strike is unlawful and unprotected
- The LC held that the demand was not to unfairly dismiss the manager

- Therefore the employer was not required to act unlawfully and the strike was
thus protected
- The LAC distinguished between strikes accompanied by a demand and
strikes where there is a grievance or dispute
- The LAC held that this strike was accompanied by a demand and examined
whether the demand was lawful
- It also examined whether the rights of the manager not to be unfairly
dismissed had been infringed
- The LAC held that the strike cannot constitute a violation of the right not to
be unfairly dismissed
- It was held that the manager’s right not to be unfairly dismissed was violated
and that this demand could not form the subject of the strike
- Once employer accedes to demands, the strike no longer has a purpose and
terminates
- TAWUSA obo Ngedle & Others v Unitrans Fuel & Chemical (Pty) Ltd 2016
(CC)
- Minority judgment held that once employer accedes to demands, the strike
no longer has a purpose and terminates
- Majority judgment did not disagree, and held that the employer had not fully
acceded to the demands and the strike thus remained protected
- Afrox Ltd v SACWU & Others 1997 (LC)
- It was held that a strike could terminate in a number of ways such as when
the strike is abandoned
- Another way is when the employer concedes the demands of the strikers or
removes the grievance by resolving the dispute
- If a strike no longer has a purpose it terminates and so does its protection
- In respect of mutual interest
- It includes “disputes of right” and “disputes of interest”
- Strikes are not permissible if the dispute can be referred to the labour court or
CCMA for arbitration
- Therefore, most strikes are revolved around disputes of interest
- The LRA prohibits strikes in respect of matters that can be referred to arbitration or
the LC
- Essentially, strikes are in relation to disputes of interest, with some exceptions

Limitations
Substantive limitations
- Section 65 of the LRA provides that:
No person may take part in a strike or a lock-out or in any conduct in contemplation
or furtherance of a strike or a lock-out if–
(a) that person is bound by a collective agreement that prohibits a strike or
lock-out in respect of the issue in dispute;
(b) that person is bound by an agreement that requires the issue in dispute to
be referred to arbitration;
(c) 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;
(d) that person is engaged in-
(i) an essential service; or
(ii) a maintenance service
- E.g. regarding paragraph (c) above
- Trade union ABC engages in a strike at employer Z
- The reason is that the employer dismissed a shop steward, Ms P
- ABC alleges that the dismissal was substantively and procedurally unfair
- ABC’s right is limited regarding the unfair dismissal dispute
- This is a “dispute of right” that must be referred to the CCMA
- Regarding paragraph (d) above
- Essential service
- Service which, if withheld or interrupted, could cause harm and/or death to
society (e.g. doctors and nurses)
- In terms of SAPS, it refers to the members of the service (officers) not everyone
such as administrators etc.
- Services not included in the definition of an essential service include the fire
department, air traffic control, water and electricity providers etc.
- Maintenance service
- A service without which “would result in a ‘material physical destruction to any
working area , plant or machinery’ were it to be interrupted”
- E.g. deep level gold mining where, if not maintained, the water pumps will
become unsafe if not regularly maintained

- Those involved in the maintenance services cannot strike

- Minimum service agreement
- This an agreement setting out the minimum service workers that must be at work in
an essential services environment
- In terms of this agreement, certain categories of workers can be identified who must
be at work during a strike
- E.g.
- In the health services sector, doctors and nurses are essential service workers
- They may enter a minimum services agreement in that sector
- This would usually mean that a portion of the doctors or nurses (e.g. 50%) must
be at work during a strike
Procedural limitations
- Section 64(1) of the LRA provides that
Every employee has the right to strike and every employer has recourse to lock out
if-
(a) the issue in dispute has been referred to a council or to the Commission
as required by this Act, and-
(i) a certificate stating that the dispute remains unresolved has been
issued; or
(ii) a period of 30 days, or any extension of that period agreed to
between the parties to the dispute, has elapsed since the referral was
received by the council or the Commission; and after that-
(b) in the case of a proposed strike, at least 48 hours' notice of the
commencement of the strike, in writing, has been given to the employer,
unless-
(i) the issue in dispute relates to a collective agreement to be
concluded in a council, in which case, notice must have been given to
that council; or
(ii) the employer is a member of an employers' organisation that is a
party to the dispute, in which case, notice must have been given to
that employers' organisation; or
(c) in the case of a proposed lock-out, at least 48 hours' notice of the
commencement of the lock-out, in writing, has been given to any trade union
that is a party to the dispute, or, if there is no such trade union, to the
employees, unless the issue in dispute relates to a collective agreement to be

concluded in a council, in which case, notice must have been given to that
council; or
(d) the case of a proposed strike or lock-out where the State is the employer,
at least seven days' notice of the commencement of the strike or lock-out
has been given to the parties contemplated in paragraphs (b) and (c).
- Equity Aviation Services (Pty) Ltd v SATAWU 2006 (LC)
- A majority union (SATAWU) called a strike in support of a wage demand
- A minority union decided not to strike, but some of the minority union members
joined the strike
- The employer argued that the strike by the majority union was protected, but that
the participation of the minority union members was unprotected
- These minority union members were dismissed
- The employer argued that the notice received from SATAWU regarded only its
members and thus only those members could strike
- The LC held that section 64(1) gives every employee the right to strike without
specification on whose behalf the notice must be given
- It further held that as long as notice is given in the proper manner, every employee
could legitimately join the strike action
- The LAC confirmed this decision and further held that, as long as the dispute has
been referred for conciliation (which failed) and that proper notice was given, then
all the employees may strike
- The intention of all the strikers must be to resolve the issue in dispute
- Instances where notice does not have to be given
- When parties to a dispute are members of a bargaining council and the dispute has
been dealt with by the council in accordance with its constitution;
- When the strike conforms to procedures set out in a collective agreement;
- When employees strike in response to an unprotected lock-out; and
- When the employer fails to comply with what is known as the “status quo” provision
in section 64(4)
- Section 64(4) of the LRA provides that
Any employee who or any trade union that refers a dispute about a unilateral
change to terms and conditions of employment to a council or the Commission in

terms of subsection (1)(a) may, in the referral, and for the period referred to in
subsection (1)(a)-
(a) require the employer not to implement unilaterally the change to terms
and conditions of employment; or
(b) if the employer has already implemented the change unilaterally, require
the employer to restore the terms and conditions of employment that applied
before the change.
- Macsteel Service Centres SA Proprietary Limited v NUMSA & Others 2020 (LC)
- The employer’s business was affected by Covid-19
- None of the employees could work for a period, and the employer continued to pay
them during that time
- Around May of 2020 some of the lockdown restrictions were removed and certain
operations could begin
- This business could resume and only allowed 50% of its employees to return to
work
- The employer could not continue to pay all of its employees their full salaries and
decided to pay all of its employees 80% of their salaries
- NUMSA argued that this constituted a unilateral change to terms and conditions of
employment
- NUMSA embarked on the section 64(4) and 65 procedure and requested the
employer not to implement the changes it intended to implement
- The employer argued that it was not a unilateral change, but rather that it was “short
pay”
- The LC held that the employer’s actions constituted a unilateral change, that it did
not comply with the section 64(4) and 65 procedures and that the employers were
entitled to embark on a strike
- Advisory arbitration
- If the dispute concerns a refusal to bargain, then an advisory arbitration award must
have been made before a notice of intention to commence a strike may be given
- This is also after conciliation fails
- An advisory award is not binding and both parties must agree to accept the award
- A refusal to bargain dispute includes:
- Refusal to recognise a union as a collective bargaining agent;
- A refusal to agree to the establishment of a bargaining council;

- Withdrawal of recognition of a collective bargaining agent;

- Resignation from a bargaining council; and
- Disputes regarding appropriate bargaining units, bargaining levels and
bargaining subjects
Secondary strikes
- Strike in support of a primary strike by employees employed by another employer
- Not to be confused with a sympathy strike
- Employees joining in a secondary strike do not gain anything, they merely support
or sympathise with the primary strike
- It therefore qualifies as a sympathy strike, but a sympathy strike is broader than
merely including secondary strikes
- Sympathy strikes include all strikes in support of a primary strike
- Therefore, employees employed by the same employer as those on the primary
strike, but who are not directly affected by the dispute may also join a sympathy
strike
Limitations of secondary strikes

- The right to engage in a secondary strike is not unlimited
- The following limitations apply:
- Firstly, the primary strike supported by the secondary strike must be lawful
- Furthermore, 7 days’ notice must be given to the secondary employer
- Finally, the nature and extent of the secondary strike must be reasonable in relation
to the possible direct or indirect effect that the secondary strike may have on the
primary employer
- The first two limitations are procedural in nature
- The third limitation defines the nature and extent of a right to engage in secondary
action
- The third limitation implies a principle of proportionality
- E.g.
- Motor manufacturer and tyre company
- Primary strike at motor manufacturer and secondary strike at tyre company
- Secondary strikers do not supply tyres to increase pressure at the motor
manufacturer
- There is a causal link

- Workers at a brick manufacturer could not engage in a secondary strike as there is

no possibility that they could have an influence
Immunities
Against breach of contract or delict
- No work no pay applies
- The employer may not claim damages or compensation from workers on strike due to
breach of contract or delict
- The above applies in so far as the actions of the workers are lawful
- If the workers act unlawfully during the strike, the employer may, of course, take action
regarding any harm suffered due to such conduct
- Employers must still comply with lawful disciplinary action where employees are
dismissed for unlawful conduct
Against dismissal
- Employers may not dismiss employees engaging in a protected strike
- If employees are dismissed for engaging in a protected strike, the dismissal is
automatically unfair
- However, as stated above, where employees engage in unlawful conduct during a
protected strike, the employer may dismiss those employees
- Employers may dismiss employees on grounds of operational requirements while
employees are engaged in protected strikes
- However, the employer must prove that the dismissal was truly based on operational
requirements and not for a different underlying reason
Against discrimination
- Employers may not discriminate against those engaging in protected strikes
- E.g. employees who decide not to participate in the strike or who do not benefit from
the strike may not be treated more favourably
- Similarly, employers may not reduce benefits of employees who engage in protected
strikes while not doing the same with other employees
Against claims for compensation

- If a strike is unprotected, the employer may claim compensation for damages suffered
due to loss of business if such compensation is just and equitable
- If the strike is protected, immunity against claims for compensation arises

- This applies in so far as the conduct of the strikers remains lawful
Dismissal of employees engaged in unprotected

strikes
- Item 6 of the Code of Good Practice: Dismissal:
(1) Participation in a strike that does not comply with the provisions of Chapter 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.
(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.
- Modise & others v Steve’s Spar Blackheath 2000 (LAC)
- There must be some form of audi alteram partem
- Thus there must be negotiations before dismissal can be instituted
- Roberts Brothers Construction Pty Ltd v NUM 2020 (LAC)
- This case regards which unions must be consulted
- Only unions with collective bargaining and organisational rights must be consulted
- There is no obligation to consult unions without organisational rights
The right to picket

- Section 69(1) of the LRA provides that:
A registered trade union may authorise a picket by its members and supporters for
the purposes of peacefully demonstrating-
(a) in support of any protected strike; or

(b) in opposition to any lockout.

- These usually take place outside the premises of the employer, but may at times also
take place on or inside the premises
- The purpose is to peacefully get non-striking employees and/or members of the public
to support the protected strike
- This includes:
- Persuading employees not to work during the strike;
- To dissuade replacement labour; or
- To persuade members of the public not to support the employer
- This may not include intimidation
- Collective agreements usually set out the rules of the picket
- If there is no such a collective agreement, then when the dispute is referred for
conciliation, the CCMA should encourage the parties to draft picketing rules
- If this fails, the CCMA itself may draft these rules on behalf of the parties
- If there is a dispute about the right to picket, it may be referred to the CCMA and if this
fails, to the LC
- SA Transport & Allied Workers Union & Another v Garvas & Others 2012 (CC)
- If unlawful conduct takes place during demonstrations then the organisers can be
held liable for damage occurred during these demonstrations
- In this case the union was ordered to pay damages to shop owners as a result of
these demonstrations
Lock-outs
- A lock-out is a form of industrial action that may be exercised by an employer
- There is no constitutional right to lock-outs
- Lock-outs include the exclusion by an employer of employees from the workplace for
the purpose of compelling the employees to accept a demand in respect of any matter
of mutual interest between employer and employee whether or not the employer
breaches those employees’ contracts of employment in the course of or for the
purpose of that exclusion
- There are 2 types of lock-outs
- Offensive lock-outs (e.g. in response to refusal to accept altercation of terms of
employment); and
- Defensive lock-outs (e.g. response to strike)

- The requirements for lock-out are similar to the requirements for a strike

Study Unit 10: Dispute Resolution

What is a dispute?
- The LRA does not define a “dispute” in any substantive sense
- The definition simply states that a dispute includes an alleged dispute
- Definition of “matters of mutual interest” important in defining labour dispute
- Interpreted by the courts as matters that arise in the context of the employment
relationship
- Excludes the promotion of social and economic interests
- Trade union calls for the stay away from work in protest against increase in VAT
- This issue does not concern matter of mutual interest between employer and
employees, rather concerns socio-economic interests of workers.
- Excludes purely political disputes: trade union calls for stay away because of
deployment of troops in foreign jurisdiction
- Three subcategories of disputes within the broader category of disputes of mutual
interest:
- Disputes that are arbitrable; (e.g. unfair dismissal)
- Disputes that are justiciable; and (e.g. unfair discrimination)
- Disputes that must be resolved by use of economic power (e.g. disputes over which
employees can strike and employers can lock out).
- The LRA does not provide for a differentiation of a dispute of right and a dispute of
interest
- Dispute of interests are disputes such as those relating to a wage increase (seeks to
create new rights)
- Dispute of right relates to existing rights (either in statute, contract or collective
agreement)
- Both dispute of rights and dispute of interests fall within the scope of matters of mutual
interest
The CCMA
- It was set up in order to ensure expeditious, efficient and affordable dispute resolution
- It was regarded as a one-stop-shop for dispute resolution
- It requires no fees and it does not require representation

- Main functions of the CCMA:

- To conciliate disputes referred to the CCMA in terms of the LRA;
- If the dispute remains unresolved, to arbitrate the dispute if applicable legislation so
requires, or by the consent of the parties;
- To assist in the establishment of workplace forums; and
- To compile and publish info and stats about its activities
Conciliation
- Unfair dismissals are referred to the CCMA to be conciliated within 30 days from the
date of dismissal
- ULPs are referred to the CCMA to be conciliated within 90 days from the date of the
alleged act or omission
- Unfair discrimination in terms of the EEA is referred to the CCMA within 6 months from
the date of the alleged act or omission
- Form 7.11 must be completed before a dispute is referred to the CCMA
- Conciliation refers to intervention by an independent 3rd party to resolve the dispute
- It is not binding, confidential and without prejudice
- It amounts to a consensus seeking process
- Value of consensus:
- Beneficial to employment relationship to resolve dispute through agreement
- Lessens burden on CCMA if settlement reached at conciliation, no need for
arbitration
- Referral to conciliation is a jurisdictional precondition
- The CC affirmed that failure to refer unfair dismissal disputes for conciliation has the
consequence that the LC has no jurisdiction to determine the dispute
- If there is a settlement agreement, it becomes a binding arbitration award which the
parties are obliged to comply with
- If not settled, a certificate of non-conciliation is issued by the CCMA
- This certificate is important for the dispute to be taken further
- No legal representation is permitted during conciliation
Arbitration
- The CCMA arbitrates unresolved disputes in respect of:
- Unfair dismissal: relating to conduct or capacity;
- Unfair dismissal: worker alleges continued employment intolerable

- Worker does not know the reason for the dismissal

- An alleged ULP
- Exercise of organisational rights
- Interpretation of those collective agreements that do not make provision for dispute
resolution procedures
- Other labour legislation also confers arbitration functions on the CCMA:
- Disputes about severance pay in terms of the BCEA
- Failure to pay any amount owing to employee or worker in terms of NMWA, in terms
of section 73A of the BCEA
- Arbitration process:
- Referred within 90 days from the date the non-conciliation certificate is issued
- The CCMA will only arbitrate if the certificate is issued
- Parties may
- Give evidence;
- Call witnesses;
- Cross-examine;
- Prove concluding arguments
- Employers may request an inquiry by an arbitrator which replaces disciplinary
hearing and arbitration
- Con-arb = applies in respect of probation etc.
Legal representation
- In terms of CCMA Rule 25, during conciliation process, parties have no right to legal
representation
- Parties must appear on their own or be represented by a union or employers’
organisation
- During arbitration, parties have the right to legal representation in certain instances
- With disputes regarding unfair dismissal due to misconduct or incapacity, no legal
representation unless the parties and the commissioner agree, or unless the
commissioner allows legal representation
- Factors that the commissioner will consider:
- Nature of the dispute;
- Complexity;
- Public interest; and

- Comparative ability
- Netherburn Engineering v Mudau 2009 (LAC)
- The court considered whether the applicant had a constitutional right to be legally
represented in arbitration proceedings
- The court held that there is no such absolute right
- CCMA, Mediation and Arbitration & Others v Law Society of the Northern
Provinces (Incorporated as the Law society of the Transvaal) 2013 (SCA)
- The court dismissed a challenge to the CCMA Rule 25
- It was held not to be unconstitutional because it is sufficiently flexible to allow for
legal representation in certain cases
Bargaining councils
- The most important function is to prevent and resolve labour disputes by means of
conciliation and arbitration
- However, do not have jurisdiction to resolve all labour disputes
- If there is a bargaining council in a specific sector the employee will not be able to refer
the matter to the CCMA
- Disputes that must be conciliated and arbitrated by bargaining councils
- Freedom of association;
- Disputes giving rise to strikes;
- Unfair dismissal/unfair labour practices; and
- Entitlement to severance
- Bargaining councils have to apply to the CCMA for accreditation
Labour court
- This is a specialist court with the same status as a division of the HC
- Section 158 of the LRA sets out the power of the LC to make an appropriate order
including:
- An order for urgent interim relief;
- An interdict;
- An order of specific performance;
- A declaratory order;
- An award of compensation;
- An award of damages; and
- An order for costs
Review of arbitration awards

- There are two categories of defects in arbitration proceedings that are reviewable by
the LC in terms of the LRA
- These categories are:
- First, arbitration awards of the CCMA may be reviewed in terms of section 145
- Second; any other functions performed in terms of the LRA may be reviewed in
terms of section 158(1)(g)
- “Defects” of the commissioner that are reviewable in terms of section 145(2)
- Committed misconduct regarding the duties of a commissioner as arbitrator;
- Committed a gross irregularity in the conduct of the arbitration proceedings;
- Exceeded his/her powers as arbitrator; or
- Party to the dispute has improperly obtained the award
- Carephone v Marcus (LAC)
- The CCMA is an organ of state and performs administrative action
- Thus the constitutional right to fair administration action broadened the scope of
reviews of arbitration awards
- The LC should not only look at procedural correctness of CCMA awards but must to
an extent consider the merits of the case to determine if reasons given for decision
are rationally justifiable
- Rustenburg Platinum Mines Ltd (Rustenburg Section) v CCMA (CC)
- Although CCMA awards constitute administrative action, PAJA does not apply
- Thus section 33 of the Constitution will also not apply
- Section 145 of the LRA requires that a constitutional standard of reasonableness
must be applied
- Therefore arbitration awards are reviewable if the commissioner’s decision is a
decision that a reasonable decision maker could not reach
Overlapping jurisdiction
- Section 157(1) confers exclusive jurisdiction on the LC and section 157(2) confers
concurrent jurisdiction on the HC
- The LC has exclusive jurisdiction regarding labour disputes and the HC has concurrent
jurisdiction regarding contractual claims in a labour related context
- The case of Chirwa and the case of Gcaba
- Section 157(1) must be interpreted broadly

- Section 157(2) must be interpreted narrowly

- The primary purpose of section 157(2) is to empower the LC to deal with causes of
action founded on provisions if the BOR that arise from employment and labour
relations
- Archer v The Public School Pinelands High School 2020 (LAC)
- The employee was dismissed and lodged an unfair dismissal claim to the CCMA
- The CCMA found the dismissal substantively and procedurally fair
- The employer chose not to review the arbitration award, but lodged an unlawful
dismissal dispute at the LC
- The LC held that one cannot, after unsuccessfully pursuing a case in the CCMA
based on an alleged unfair dismissal, approach the LC on the basis that the
dismissal was unlawful
- The LAC disagreed with this decision
- The LAC held that nothing precludes an employee from lodging both a labour law
and a contractual claim
- This is not necessarily contrary to the Chirwa and Gcaba cases
The LAC
- Has the same status as the SCA
- Comprises a Judge President, Deputy Judge President and a number of other judges
- No appeal from the LAC to the SCA, only to the CC

ABR 410 Study Unit 7 Week 1 With Questions 2023

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CRAM ABR 410 29 May 2022

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Study Unit 6: Unfair Labour Practices (ULP)

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- Dlamini v Toyota SA Manufacturing 2004 (CCMA)

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Unfair disciplinary action short of dismissal

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Disciplinary action short of dismissal

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Occupational detriment on account of protected

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- The auditor-general or public protector

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- Tshishonga v Minister of Justice 2007 (LC)

Requirements for establishing a ULP based on occupational

Dispute resolution procedure

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Study Unit 7: Unfair Dismissals

Termination of employment by the employer, with or without notice

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Refusal or failure by an employer to renew a fixed-term contract

Refusal to allow an employee to resume work after maternity leave

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Other forms of termination of employment that are not

Reaching retirement age

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Supervening impossibility of performance

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Other automatic terminations

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Onus in dismissal disputes

Remedies for unfair dismissal

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Automatically unfair dismissal (AUD)

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Dismissals contrary to section 5:

Participation in a protected strike or protest action

Refusal to do work normally done by striking employees

Refusal to accept a demand in respect of any matter of mutual

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Dismissal for exercising any right conferred by the LRA

Pregnancy, intended pregnancy or any other related matter

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Potentially fair reasons for dismissal

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Conduct justifying dismissal

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How to establish substantive fairness

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How to establish procedural fairness

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Incompetence (poor work performance)