Labour Law Notes (Il) 2020

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Critical Law Studies CC ©

Labour Law Notes 2020
INDIVIDUAL
LABOUR
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner or
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THE CONTRACT OF EMPLOYMENT AND ITS RELATIONSHIP WITH

LABOUR LEGISLATION
A contract of employment, just like any other type of contract, is regulated by
common law. In cases where a specific labour matter is not covered by the
LRA or any other labour legislation, common law will apply. In order for a
contract of employment to be valid, the parties to the contract must have
satisfied all of common law requirements for the conclusion of a valid
contract. There are also common law duties which parties must comply with
during the employment relationship.
These are in line with African values of humaneness and fairness which
require parties to adhere to certain rules in order for their acts to be approved
and that if a party has a duty to do something he or she must do it in line
with what was agreed upon, and failure to do so will constitute a breach which
will in turn have consequences.
Development of The Employment Contract
In Roman law, a distinction was made between letting and hiring of some
physical object or thing (the locatio conductio rei) and two other forms of letting
and hiring. The locatio conductio operis related to the letting and hiring of a
specific piece of work, for example, the contract for an independent contractor
engaged to do a specific piece of work. The locatio conductio operarum related
to the letting and hiring of someone’s personal services in exchange for
remuneration, for example a contract of employment.
The Continued Importance of The Employment Contract
The contract of employment links the employer and the employee in an
employment relationship. If there is no employment relationship between the
parties, the rules of labour law do not apply to that relationship. The contract
of employment is important for the following reasons:
1. if a contract of employment exists, the person who renders service to
the employer in terms of that agreement will be an ‘employee’, not only
in contractual terms, but also for purposes of the application of labour
legislation;
2. the contract of employment is an important source of the terms and
conditions of employment of any employee;
3. in cases where a statutory right coincides with an employee’s
contractual right the employee will usually be entitled to elect to enforce
either the statutory right or the contractual right.
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Definition of The Employment Contract

Essential elements
The contract of employment can be defined as ‘an agreement between two
parties in terms of which one party (the employee) works for another (the
employer) in exchange for remuneration’.
The key elements in a contract of employment are therefore the following:
1. voluntary agreement;
2. to work;
3. for remuneration.
The contract of employment is therefore reciprocal in nature. The employee
works in exchange for remuneration and the employer remunerates the
employee in exchange for the employee offering to place his/her labour
potential at the disposal and under the control of the employer.
1. Voluntary Agreement:
No one may be forced to enter into an employment contract because to do so
would be forced labour.
The employment contract must comply with the general requirements of our
law for a valid contract, if not, such contract is not binding and enforceable.
2. ‘To work’:
‘To work’ = to place one’s labour potential at the disposal and under the
control of another thereby offering one’s services to another person/company.
The parties may agree what work the employee will do and the employer is
entitled to tell the employee what, when and how the work is to be done.
3. Remuneration:
Remuneration usually takes the form of payment of money or the provision of
another benefit (payment in kind).
4. Reciprocal nature of the contract:
= one promise is made in exchange of another and one obligation is incurred
in exchange for another. Therefore, the employee works in exchange for
remuneration and the employer remunerates the employee in exchange for
the employee offering to place his labour potential at the employer’s disposal.
In Mpanza: 2 state advocates were reassigned to other duties which was in
accordance with their employment contacts. The disgruntled employees
thereafter only irregularly attended at work. The employer therefore began
making deductions from their salaries to recoup the salaries paid to them
during the periods of their absence. The court found this to be in order as the
employees had been in breach of their contracts by unlawfully failing to
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perform their obligations to render their services to the employer (no-work,

no-pay).
The Element of Control
With regard to control, it is not necessary for there to be actual control on a
day-to-day and hour-to- hour basis. It is sufficient, for the purposes of the
employment contract, that the employer merely has the right to exercise
control over the activities of the employee.
Control and subordination are important characteristics of the employment
relationship and were previously regarded as the most important distinction
between the employment contract and that of the independent contractor. In
today’s modern society, and due to specialisation, control has been reduced
to a right of an employer to control its employees and is now only one of the
factors which a court will use when determining the existence of an
employment contract.
Requirements for a Valid Employment Contract
All contracts in our law, including employment contracts, must comply with
the following requirements before the law recognises the contract as legally
binding:
1. There must be consensus between the parties;
2. Parties must have legal capacity to act;
3. Performance must be legally possible;
4. Performance must be physically possible; and
5. If there are formalities, they must be complied with.
1. There must be consensus/agreement between the parties

Consensus = agreement. Therefore, the parties must agree on the same thing.
i.e. An employment relationship is based on agreement as to the terms and
conditions of the contract, for example, remuneration, working hours, period
of employment, the type of work to be done, etc.
The parties must also be in agreement with regards to the specifics of the
contract. For e.g. A believes that he is being hired as a mechanic but B
(employer) is under the impression that he is hiring a chef into his services,
there is no valid contract.
In the Church of the Province of Southern Africa: The court held that the
relationship between the priest and the church was not an employment
relationship even though there was the offer, and the priest had been licensed
to perform functions on behalf of the church.
In the Universal Church of the Kingdom of God v Myeni: When being
ordained as a pastor of the church, the pastor signed 2 documents one of
which was a ‘Declaration of Voluntary Service’, in which the pastor
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acknowledged that he understood and accepted that he was not an employee

of the church but was to render his voluntary services and for which he would
receive an allowance from the church not as remuneration, but for the
purpose of subsistence.
When his services were terminated for misconduct, he claimed unfair
dismissal at the CCMA.
The LAC held that neither party intended to enter into any legally binding
contract with the other and based on the documents signed by the pastor
there was clearly no employment contract between himself and the church.
2. Both parties to the contract must have the necessary capacity to
contract.
Children under the age of 18 years and mentally ill persons do not have the
capacity to conclude a valid employment contract.
3. Performance under the agreement must be physically possible.

It must be possible for the employee to perform his obligations.
4. The agreement must be legally possible and its conclusion must be

lawful.
A contract that contravenes legislation and the employment of illegal
foreigners is unlawful. Under common law, an unlawful contract is void (or
voidable).
It is not legally possible to employ someone as a hired gun.
Negotiation and Formalities - The Balance of power in concluding the

contract:
It is clear that the employer and employee do not have the same bargaining
power. Due to its financial and other resources, the employer is usually in a
position to dictate the content of the employment contracts and there is often
very little an employee can do to negotiate the terms of the contract in his
favour except for e.g. in cases of highly skilled and experienced employees.
Therefore, the employment relationship is often seen as a power-relationship.
The common law contract of employment does not recognize the imbalance of
power and focuses on the making of reciprocal promises between he employer
and the employee and providing remedies if either party breaches its
obligations.
Must the Contract be in Writing?

GR: an employment contract does not need to be in writing. However,
sometimes legislation requires that the employment relationship must be in
writing. E.g. learnership agreements.
S29 BCEA imposes a duty on the employer to provide “written particulars of
employment”. But other than that, an oral agreement is as binding and valid
as a written agreement.
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The Common Law Contractual Duties of the Parties:

The common law contractual duties of the employee: (the rights of the
employer)
1. To tender his/her services
2. To work competently and diligently
3. To obey lawful and reasonable instructions of the employer
4. To serve the employer’s interests and act in good faith
1. To Tender Services To The Employer

The primary duty of an employee is tender his services to the employer as and
when required by the contract. Therefore, at a time to place agreed by the
parties, the employee must place his labour potential at his employer’s
disposal to do the work agree upon. This includes that the employee enter
and remain in the employer’s service. Any employee who fails to do so will not
be remunerated (eg. No work no pay), exceptions to this rule include paid
leave.
‘Tendering services’ vs ‘to work’: by merely offering his services to the
employer, the employee is complying with his contractual duty therefore if he
arrives at the agree place and at the agreed time and date but the employer
indicates that there is no work for the employee, the employee is still entitled
to remuneration by virtue of the fact that he has tendered his services to the
employer. The fact that there is no work for the employee to do does not
constituted a breach of his duties.
Breach of this duty may arise in the following instances: If the employee –
• Refuses to work
• Deserts his employment (to leave with no intention of returning to work)
• Absconds from employment (disappears for no apparent reason)
• Is absent without permission
While less serious forms of breach incl:
• Being late for work
• Poor time keeping
• Not being present at his work-station
• Loitering
Breaches such as these constitute misconduct for which an employer may
potentially terminate employment.
2. To work competently and diligently:

When entering into employment with the employer, the employee guarantees
that he is capable of doing the work, and that he will perform it competently,
diligently and without negligence. This competence is an implied term in the
employment contract. If, for example, an employee lies about his or her
qualifications, that employee will be found liable for breach of his duty, as he
cannot then perform said duty, the consequence of which may lead to the
employee’s termination on the grounds of incapacity or misconduct.
Failure to comply with this duty takes on 3 forms:
• The employee is capable of doing the work but intentionally fails to do
the work properly;
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• The employee is capable of doing the work but negligently fails to

perform the agreed duties or performs the duties in a negligent manner;
• The employee is incapable of doing the work because he doe not have
the necessary skills or because of an illness or disability.
3. To Obey Lawful and Reasonable Instructions Of The Employer

This is an implied duty which stems from the fact that the employee is under
the control and authority of the employer.
Non-compliance with this duty will amount to insubordination and breach of
contract and if serious enough can lead to termination of the employment
contract.
Serious insubordination = a willful and persistent refusal to comply with the
instructions of the employer.
Employees only need to follow those orders or instructions that are reasonable
and lawful and relate to the employee’s agreed duties. Therefore, disobeying
the employer’s instructions that fall outside the scope of agreed work does not
constitute a breach and therefore does not entitle the employer to terminate
the contract of employment.
4. To Serve The Employer’s Interests And To Act In Good Faith

An employment relationship is based on trust and confidence.
This is an implied duty, which flows from the nature of the employment
contract. It includes, for example, the duty –
• not to work against the employer’s interests,
• not to compete with the employer,
• to devote hours of work to promoting the employer’s business and
reputation of the employer (= to act in good faith) may extend beyond
employment (restraint of trade)
• to act honestly.
The duty of good faith manifests itself in 2 ways:
1. A fiduciary duty = to act solely in the interests of the employer and
which stems from the nature of the job and the responsibilities of the
employee; and
2. A contractual duty of good faith = forms part of the employment
contract.
1. Fiduciary Duties:
These are duties that apply to persons who have access to or power in relation
to, the affairs of the beneficiary and must be exercised for the sole purpose of
promoting the interests of the beneficiary.
2 core fiduciary duties:
1. The duty of no conflict = to avoid all potential conflicts of interest; and
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2. The no profit duty = this duty prohibits fiduciaries from obtaining any
unauthorized profit for themselves that has not been properly
disclosed/consented to by the beneficiary.
Remedies for breach of fiduciary duties include claims for recision and the
fiduciary’s profits as well as ordinary contractual remedies such as summary
termination.
In Cyberscene Ltd: A number of senior employees resigned and went on to
engage in unlawful competition with their former employer, using the
confidential information relating to its business and operations, obtained
while in the employ of their former employer.
The court found them to be in breach of their fiduciary duties and granted the
former employer the interdict it sought to prevent such breach.
Serving the interest of the employer means that the employee who is in the
position of fiduciary should:
• Promote the employers business
• Avoid all conflicts of interest
• Place business interests of the employer above his own
The more senior the employee, the greater the fiduciary duty on the employee.
In Lerena: A key accounts manager abused his position, to divert sales
opportunities to his own companies to make substantial profits at the expense
of and without the knowledge of the employer. The employer successfully sued
the employee for the repayment of those profits.
2. The Contractual duty of Good Faith
This pertains to emplyees who are not in a fiduciary position in relation to the
business of the employer.
Examples of breach of this duty:
• Dishonesty in relation to the employers affairs (fraud, theft, bribery,
corruption);
• Abuse of confidential information
• Conduct that brings the name of the employer into disrepute.
Serious breach of this duty will entitle the employer to summarily dismiss the
employee and sue for damages.
The Common Law Contractual Duties of the Employer: (the rights of the
employee)
1. To remunerate the employee
2. A duty to provide work
3. Safe working conditions
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4. A general duty of fair dealing with employees?
1. To remunerate the employee

The main duty of the employer is to remunerate his employees.
Wages/salaries are determined in the contract between the parties.
The payment of remuneration is an essential element of the contract and
therefore if there is no mention of payment or calculation of a wage in the
contract itself, it may be held that no employment contract exists.
Legislation, collective agreements and sectoral determinations sometimes set
the minimum payments and the parties are free to agree to higher
remuneration.
In terms of the common law rule, no-work no-pay applies and the employer
is only obliged to remunerate for work the employee actually tendered to
perform.
2. To provide work
The general rule is that there is no duty on an employer to provide the
employee with work, however, where an employee relies on work being
provided to enable him to earn an income (where the employee’s salary is
commission-based or is dependent on actual work done), or where the
employee’s success is dependent on the performance of certain duties on a
regular basis, for example, an actor, the employer will be required to provide
work. Failure on the part of the employer to provide work will amount to a
breach of contract (Faberlan)
A similar right to be provided with work may arise where the employee
requires the work in order to maintain/develop his skills.
Special relationships and circumstances may also make it necessary to
provide work.
3. Duty to provide safe working conditions
The employer must as far as possible, provide a safe place to work, safe
machinery and tools and ensure safe procedures and processes are followed.
In addition to the common law, further duties are imposed by the
Occupational Health and Safety Act as well as the Mine Health and Safety
Act.
4. A duty of fair dealing with employees
This is a common law duty which applies to the employment relationship
however, when the employer breaches this duty the employee is more likely
to seek relief in terms of the LRA or the Constitution.
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Other Terms and Conditions of Employment:

The Freedom to Contract and the Basic Conditions of Employment
Although the parties enter into the employment contract voluntarily, the
employer remains in a position of power. Therefore, various ‘minimum
standards’ legislation are in place to protect the interests of the employees
who are often in vulnerable positions and limit the employer’s freedom to
contract, namely:
1. The National Minimum Wage Act (NMWA);
2. The Basic Conditions of Employment Act (BCEA); as well as
3. The Labour Relations Act (LRA) – regulating the process of Collective
Bargaining.
The NMWA provides for the general minimum wage that all workers are
entitled to.
The BCEA provides a number of other minimum standards to protect
employees.
GR: parties cannot conclude a contract that is less favourable than the
provisions of the BCEA.
The LRA promotes collective bargaining between trade unions and employers
thereby placing the employers and employees in a more equal footing and by
promoting collective bargaining the LRA promotes fair terms and conditions
of employment.
The Terms and Conditions of Employment:
The T’s & C’s of employment are derived from different sources:
1. The terms agreed to by the parties (orally/in writing)
2. The common law implied terms
3. Statute (NMWA/BCEA)
4. Collective agreements
Which of the aforementioned sources will apply to a matter all depends on the
following:
1. The type of employee involved;
2. The nature of the work performed; and
3. The industry,
T’s & C’s of employment normally include issues such as the employee’s:
• Job description
• Working hours
• Leave
• Sick leave
• Notice periods for termination
• Remuneration
• How and when remuneration is to be paid
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• Other duties of the employer and employee

• The duration of the agreement
• The basis upon which the employee is appointed
(permanent/temporary)
Changes To Contractual Terms And Conditions Of Employment
GR: An employer may not unilaterally change terms and conditions of
employment as that would amount to repudiation and breach of contract. In
terms of common law, where the parties did not make any provisions for
changes, the employer who wishes to make any changes to the terms and
conditions of employment will have to give the affected employee notice of
termination of the existing contract and offer the employee a new contract
with new terms and conditions. Otherwise, the only other ways in which they
can be lawfully changed are:
1. by agreement, or in line with a method prescribed in the employment
contract;
2. by means of a collective agreement;
3. by operation of the law (eg, the BCEA); or
4. through a sectoral determination issued by the Minister.
Even though the terms of the employment relationship are contained in the
contract, the parties will also be bound by other statutory provisions and
applicable collective agreements of which cannot be unilaterally changed.
The employer does, however, not have to obtain agreement from its employees
to implement or change customs and practices which develop in the
workplace. These could, for example, relate to an agreement whereby an
employee is granted an afternoon off each week or a Christmas function,
however the employer must make sure that the nature of the employee’s job
remains the same.
Restraint of Trade
A clause in restraint of trade is one that prevents an employee, in various
ways, from exercising his/her trade, profession or calling, or engaging in the
same business venture as the employer, for a specified period and within a
specified area after leaving employment. The restraint of trade clause must be
judged by the criterion of public policy. In establishing whether or not a
restraint or trade amounts to an unreasonable limitation on a person’s
freedom to trade the various factors a court should take into consideration
include the nature, extent and duration of the restraint and factors peculiar
to the parties and their respective bargaining powers and interests. A restraint
will only be enforced if, as point of departure, it serves to protect an interest
which, according to the law, deserves protection – typically (but not
exclusively) ‘confidential information’ and ‘trade secrets or connections’. The
effect of a restraint of trade clause continues even after the contract of
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employment has been terminated, regardless of the reason for that

termination.
A restraint clause is included in employment contracts to:
• protect the employer’s interests, trade secrets, goodwill and business
connections against unfair competition from employees during and
after employment, and
• prevent an employee from competing with his employer within a specific
area and for a specific time.
A restraint of trade clause is lawful and enforceable unless it is unreasonable
and so strict that it prevents an ex-employee from being able to earn a living
in which case it would be unenforceable.
In determining whether or not a restraint of trade is enforceable, a court must
balance the following two considerations:
1. the public interest, which requires parties to comply with their
contractual obligations, even if these are unreasonable, versus
2. the right of all persons to be permitted to engage in a profession of their
own choice.
In Magna Alloys & Research, the court held that a restraint of trade
agreement is valid and enforceable unless it is contrary to public policy. A
contract will be contrary to public policy and unenforceable if it is
unreasonable. (The onus is on the employee to show that the clause is
contrary to public policy).
Reasonableness must be determined with reference to the interests of both
parties, public policy and the surrounding circumstances and the following
questions should be asked when in determining reasonableness:
• Is there an interest deserving of protection at the termination of the
agreement?
• Is that interest being prejudiced?
• If so, how does that interest weigh up against the interests of the other
party not to work?
• Is there another aspect of public policy apart from the relationship
between the parties, which requires that the restraint should either be
enforced or disallowed?
• Is the restraint wider than is necessary to protect the protectable
interest?
Onus of Proof:
If an employee seeks to enforce a ROT, the following considerations will apply:
1. The employer must prove that:
a. The ROT provision exists; and
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b. It was breached
2. The employee must prove on a balance of probabilities that in all
circumstance of the case, it will be unreasonable to enforce the ROT.
Failing which, the court will order that the ROT be enforced.
The employee is burdened with the onus because public policy requires that
people should be bound by their contractual undertakings (Chilwan)
When deciding whether or not a restraint clause is contrary to public policy,
the courts will consider the circumstances, which exist at the time when
enforcement of the clause is sought and not those, which existed at the time
that the contract was concluded.
The court may, in considering a restraint, decide that part of the clause is
enforceable and that part of it is not enforceable. In doing so the court will
look at:
• Area the restraint of trade will be enforced
• Period of the restraint of trade
• Intentions of the employer
It would be unreasonable to restrain a former employee from using his

knowledge and skill or experience to make a living because public policy
requires that people should be free to complete fairly in the market place to
sell their skills and knowledge to their own best advantage. The information
must be useful, not public knowledge, it must be known only to a restricted
number of people or a close circle and be of economic value to the employer.
Note: the court will not enforce a ROT merely to eliminate/prevent the
employees use of his own knowledge, skills and experience. One cannot be
prevented from using what is in his head. The skills an employee acquires in
the course of developing his trade, even if specialized does not constitute a
protectable interest of the former employer therefore, the employer must show
that a legitimate interest is being prejudiced (e.g. confidential
information/trade secrets)
In Labournet (Pty) Ltd the LAC held that the employer who fails to prove that
there is a ‘protectable interest’ will not be able to rely on a restraint of trade.
The court held further that an employee cannot be restrained form taking
away knowledge, skills and experience even if those were acquired during the
course of his employment.
The ROT continues even after the employment relationship has terminated,
regardless of the reason for the termination but the circumstances
surrounding the termination may lead to a finding that such ROT I contrary
to public policy (Reeves v Marfield Insurance Brokers CC)
In Fidelity Guard Holdings: the Court held that in so far as the ROT is a
limitation of rights in terms of S22, the common law as developed by the
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courts complies with the requirements laid down in S36 of the constitution.
Therefore, in terms of the common law ROT clauses are only enforceable if
they do not conflict with public policy
In Vumatel (Pty) Ltd: The Court Described Confidential information as
information that:
• Is received by an employee about business opportunities available to an
employer
• Is/is potentially useful to a competitor who would find value in it
• Is relating to proposals made to procure business
• Is relating to price/pricing arrangements not generally available to 3rd
parties
• Has actual economic value to the person seeking to protect it
• Includes customer information, details, particulars
• The employee is contractually/by statue required to keep confidential
• Is relating to specifications of a product/process of manufacture.
This information must not be public knowledge, public property or in the
public domain.
Vicarious Liability
Vicarious liability means that the employer may be held legally liable for the
wrongful acts (delicts) of its employees committed in the course and scope of
their duties. In order for vicarious liability to apply, the following requirements
must exist:
• There must be an employment relationship;
• The act must have happened in the scope and course of employment;
• The act must amount to a delict
Vicarious liability links well with ubuntu and with African norms that are
encapsulated in the following proverb: Kgomo e wetswa ke namane ko
bodibeng. This essentially means that if a child from household A has caused
damage to household B, his or her parents should be held liable. In the
employment context, an employee would take up the position of the child and
an employer the position of the parent, simply because employers have control
over their employees. Also of importance is the fact that employees are
typically under-resourced and may not be able to pay damages to third parties
when such is due. Therefore, employers would, in terms of vicarious liability,
be called in to pay damages and would use the inherent disciplinary power
they have over employees to get recourse from those employees who were
wrongdoers. This is fair to all parties and resonates with the culture of
humaneness, human dignity and respect for others.
Example: A, an employee of B garage is instructed by the employer to drive
on of B’s clients to the customer’s office in the courtesy bus belonging to B
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garage. On the way to the customer’s office, A negligently causes and accident
which causes C, a member of the public, serious injuries. By operation of the
doctrine of vicarious liability, B garage could be held accountable to C for the
negligence of A, provided that certain requirements are met.
In NK v Minister of Safety and Security: A young woman accepted a lift
from a uniformed police officer (while 2 other police officers (in uniform) were
seated in the vehicle). All 3 police officers were on duty at the time. Instead of
taking the woman home the police officers took turns to rape her.
The young woman instituted a claim for damages from the employer (the
Minister of Safety and Security)
It was clear that the police officers were not acting in the furtherance of the
employer’s business. However, the employer was found to be vicariously
liable.
The Constitutional Court described the test to determine vicarious liability:
1. Determine whether the acts were done solely for the purpose of the
employee – this is a subjective test to determine the employee’s state of
mind and is a factual question
2. Is there a sufficiently close enough link between the employees acts for
his own interests and the business of the employer – this is an objective
test
In NK’s case, the intention of the rapists was clearly not to further the
employer’s interest but the court found that there was indeed a sufficient close
connection to the business of the employer due to the fact that the
Constitution mandates the member of the police to protect members of the
community and prevent crime. The conduct of the police officers
simultaneously committing an offence and failing to prevent/protect the
individual = breach of their Constitutional obligations as well as a breach of
the applicant’s Constitutional rights. Therefore, the connection between the
conduct of the police officers and their employment is sufficiently close to
render the respondent liable.
Vicarious liability of private employers is not always as clear and will often
depend on what the business is about but the liability of the police and
defence force is not without limitation. E.g. In the Minister of Safety and
Security v Booysen: An on duty police reservist visited the home of his
girlfriend for supper after which, he drew his service pistol and shot his
girlfriend in the face and then committed suicide.
The court found that the mere fact that the police issued the reservist with a
weapon is not enough to found liability.
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The difference between the Booysen case and NK’s case is that the reservist
was not engaging with Booysen in his official capacity but rather as lovers in
a domestic setting thereby breaking the connection.
Vicarious liability & Sexual Harassment:
In Grobler v Naspers BPK: the court considered whether an employer can be
held vicariously liable for the acts of sexual harassment of a secretary by a
manage. The court took into consideration that the employer, in terms of the
common law, could be held liable for the manager’s actions because of the
fact that the harassment by an employee fell within the risks employers
should assume by conducting their business and that the employer had
placed the manager in a position of authority over the secretary.
The court held that the policy considerations warranted holding the employer
liable for the conduct of the manager.
Note: in cases of sexual harassment, it might not be necessary to resort to
common law vicarious liability because S6 of the Employment Equity Act
declares sexual harassment as unfair discrimination and S60 creates a form
of statutory vicarious liability of employers for the sexual harassment
perpetrated by their employees.
Breach of the Employment Contract

If a party to a contract of employment fails to carry out his/her obligations in
terms of the contract, that party is guilty of a breach of contract. Innocent
parties therefore have a number of remedies at their disposal.
Contractual remedies arise out of the common law employment contract,
unlike the unfair dismissal remedies such as reinstatement, re-
employment/compensation, provided for in terms of the LRA.
In the past, cases, in which parties seeking relief based on breach of contract,
had to be litigated at the Labour Court or ordinary civil courts which is
expensive and time consuming, making it very difficult or impossible for an
employee. However, S73 A(1) of BCEA provides that where an employee earns
below the threshold amount determined by the Minister of Labour in terms of
the BCEA may institute a claim for payment of any amount owing to the
employee in terms of the contract of employment at the CCMA.
This provision avoids the costs and delays associated with litigation in the
courts. However, any other contractual claims will still have to be taken
through either the Labour Court or the High Court.
Forms of Breach
A breach of the employment contract may be serious or less serious. A serious
breach is also called a fundamental breach or a breach of a material term of
the contract. A distinction between the two types of breach of the employment
contract is important for purposes of determining the contractual remedies to
which the innocent party is entitled.
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E.g. if an employer fails/refuses to remunerate the employee or if an employee

fails/refuses to tender his services, such failure/refusal = breach of a material
term of the contract
Contractual Remedies:
If the employer’s (or employee’s) breach of contract is serious enough, the
employee (or employer) has an initial choice of either:
a) accepting the employer’s (or employee’s) repudiation of the
employment contract and terminating (cancelling) the contract
immediately (summarily); or
b) seeking to enforce the contract (also called specific performance).
Irrespective of the innocent party’s initial choice between either termination
(cancellation) or specific performance, the innocent party may claim damages
suffered as a result of the other party’s breach of contract. But the innocent
party cannot both cancel and claim specific performance.
1. Summary Termination – no period of notice of termination is given
and termination takes immediate effect.
If a breach of contract is not serious enough to warrant summary termination,
the innocent party may still claim damages.
2. Specific Performance = A court order in terms of which a party that
committed a breach is ordered to fulfil his contractual obligations
In the Nation Union of Textile Workers: the court held that it is in the
court’s discretion to determine whether or not to order specific performance
depending on the circumstances of each case
3. Damages – irrespective of the innocent party’s choice between
termination or specific performance, the innocent party may claim
damages as a result of the breach.
Damages can only be claimed if a loss has actually been suffered and
the loss can be proved. GR: the amount of the damages is determined
in order to put the innocent party in the position her would have been
in had the other party not breached the contract.
In Myers v Abramson a case of wrongful dismissal, the court held that the
damages, at common law, is the actual loss suffered by the employee
represented by the sum due to him for the unexpired period of the contract
less any sum he earned or could reasonably have earned during such period
in similar employment.
Damages vs Compensation:
Damages = the loss suffered by an employee because of breach of the contract.
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Compensation = generally limited by legislation and a lump sum is awarded

to an employee to remedy the unfairness of the employer’s conduct.
S77(3) BCEA confers concurrent jurisdiction on the labour court and ordinary
civil courts in respect of matters arising from the employment contract
therefore, the employee has a choice in respect of contractual disputes to
approach either the labour court or the civil courts.
Termination of the Employment Contract

Forms of Termination
The employment contract may be lawfully terminated in the following ways:
• Completion of the contract
• Termination by agreement
• Termination on insolvency
• Termination as a result of breach of contract
• Termination on notice
1. Completion of the Contract:

A fixed-term employment contract will automatically come to an end when the
period agreed upon expires, or when the task agreed upon is completed.
Can a fixed term contract be lawfully terminated before it is completed
(either summarily or on notice)? Yes, in the event of serious breach by one
of the parties or by giving of a notice of termination provided that the contract
itself provides for termination on notice prior to the completion of the contract
(Lottering)
2. Termination by Agreement:
The parties may agree to terminate the contract. The contract may be
terminated in this manner irrespective of the length of the period originally
agreed upon.
3. Termination on Insolvency:
S38 of the Insolvency Act provides that the sequestration of an employer
suspends all contracts of employment between the employer and employees.
A liquidator/trustee is appointed to wind up the affairs of the employer, who

may at a later date, terminate the employee’s employment contracts after a
consultation process has been concluded. The consultation is aimed at
reaching consensus on appropriate measures to save/rescue either whole or
part of the employer’s business.
The persons to be consulted with are the same as those listed in S189 LRA
for dismissal for operational requirements.
S197A LRA provides for the revival of and transfer of contracts of employment
where there is a transfer of an insolvent business as a going concern.
GR: an insolvent employee may pursue any profession or occupation or enter
into any employment but cannot, during the sequestration of his estate, either
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carry on or be employed in any capacity or have any direct or indirect interest

in the business of a trader who is a general dealer/manufacturer.
4. Termination as a result of breach of Contract:
An employee who fails to perform his contractual duties may be guilty of
breach and may therefore be dismissed. If the breach is serious enough he
may be summarily dismissed.
An employee may terminate the contract summarily if the employer is guilty

of serious breach.
Determining whether the breach is serious enough to warrant summary

dismissal may sometimes be difficult.
Examples of serious breaches:
• Gross negligence on the part of the employee
• Absence from work in certain circumstances – repeated
absence/absence causing serious prejudice
• Failure to obey reasonable, lawful instructions – if refusal is serious
and deliberate (Dyasi)
• Various forms of dishonesty amounting to breach of the employee’s
duty to act in good faith
• Other forms of serious misconduct such as assault, drunkenness or
sexual harassment.
It is possible that the conduct of the employer results in a breach thereby

justifying the employees summary termination e.g. failing to provide safe
working conditions or failing to pay the employee the remuneration agreed
upon.
A contract may not be terminated if the innocent party has waived the right
to terminate summarily. If the innocent party acts in a way that condones the
breach of contract the right to terminate is lost.
5. Termination on Notice:
A contract of service for an indefinite period is lawfully terminated by one
party giving the other notice of intention to terminate the contract.
Fixed term contracts can also be terminated in this way, provided that the
court makes provision for termination on notice
The contract does not end the moment notice is given. The notice is to inform
the other party that the party giving notice intends to terminate the contract
at some future date therefore the contract terminates on expiry of the notice.
In SA Music Rights Organisation Ltd: The court had to determine the

meaning of a ‘month’ for the purpose of an employee’s termination of
employment.
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The employees letter of appointment provided that notice of termination would

be one month.
The employee gave notice of termination on 8 January 2008 indicating that

his resignation would be effective from 31 January 2008. The employer’s view
was that the notice would run from 1 February 2008 to end February 2008
which the employee disagree and stopped working on 8 February 2008.
The court held that it is necessary to look at the intention of the parties by
interpreting the contract after which the Court came to the conclusion that
the employers interpretation was correct – the employee was obliged to give
notice so as to take effect from the 1st day of the month and run until the end
of February 2008. The employee was therefore in breach of his contractual
duties.
If no notice period is agreed to, reasonable notice must be given. What is
reasonable depends on the circumstances, taking into account certain
factors, namely:
• Recognized practice within the industry
• The type of work
• Period of employee’s remuneration (e.g. if the employee is remunerated
on a monthly basis – a month’s notice = reasonable).
The BCEA sets minimum standards relating to notice periods.
Notice given by an employee = resignation. In Lottering: the court

summarized the principles applicable to resignation by an employee:
1. Notice must be unequivocal;
2. It is unilateral – therefore the employer’s acceptance is not required for
the resignation to be valid
3. Notice cannot be withdrawn without the employer’s consent
4. The contract is not terminated on the date it is given but when the
notice period expires
5. If the employee does not work during the notice period, the employer
does not have to pay the employee - no-work no-pay
6. If notice is shorter than required in terms of the contract, the employee
is in breach therefore the employer may hold the employee to what is
left of the contract or cancel it summarily and sue for damages
7. If the notice is shorter than required in terms of the contract and the
employer elects to hold the employee to the contract, the contract
terminates when the full period of notice expires.
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THE MEANING OF EMPLOYEE
It is important to be able to identify who is an employee. It is also important

to draw a distinction between employees and other workers, for example
independent contractors. You should also understand that only an
employment relationship falls under the protective scope of labour laws.
Others who do not fall under the definition of employee (for example
independent contractors) will however still be protected by the Constitution
and the law of contract.
Labour legislation and rights contained therein are only available to

‘employees’ and not to independent contractors. Although a person who works
in terms of an employment contract is an ‘employee’ it is often not easy to
identify an employee. First, it is difficult to distinguish between employees
and independent contractors as both categories perform work in exchange for
payment. Second, work is often not performed by employees working in terms
of what is still regarded as the standard form of employment. Third, there are
significant differences between the protection of senior and junior employees
in terms of labour legislation.
Statutory definition of Employee

In terms of the BCEA and section 213 of the LRA, an employee is:
(a) any person, excluding an independent contractor, who works for
another person, or for the State and who receives, or is entitled to
receive, any remuneration; and
(b) any other person who in any manner assists in the carrying on or
conducting the business of an employer
Part (a) of the definition

• includes employees in the private and public sector
• includes domestic and farm workers
• incorporates the common law contract of service (the locatio
conductio operarum)
• excludes the contract of work (ie of an independent contractor)
(the locatio conductio operarus)
However, due to the fact this definition still does not definitively state who an
employee is, we must look to the tests developed by the courts, as discuss
below.
The first thing to note regarding part (a) of the definition is its wide coverage.
The LRA now covers domestic workers and farm workers who were excluded
from the ambit of general labour legislation. Second is that it does not
expressly require the existence of a valid contract of employment to acquire
the status of ‘employee’ for purposes of labour legislation. Third, is its specific
exclusion of ‘independent contractors’.
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The absence of an employment contract does not necessarily exclude a person

from protection by labour legislation, in Kylie the Court had to determine
whether a prostitute can claim protection against unfair discrimination in
terms of the LRA. The Labour Court had no doubt that Kylie was an employee
as she had set working hours, lived on the employer’s premises and was
subject to workplace rules, therefore falling within the LRA’s definition of an
employee. BUT prostitution constitutes a crime and therefore Kylie was not
entitled to the protection against unfair discrimination in terms of the LRA.
The Labour Appeal Court accepted her status as an employee and held that
in principle, she should be entitled to the protection of the LRA BUT cautioned
that the extent of protection and availability of remedies depends on the
circumstances of each case.
In Discovery Health the Court had to determine whether foreign workers

without the required work permits are employees and whether their
employment contracts are valid. The employee was an Argentinian national
who lawfully resided in SA and claimed that at the time of employment he was
legally permitted to work for the company. The company later established that
this was not the case and terminated his employment.
The Labour Court looked a section 38(1) of the Immigration Act and concluded
that the Act does not say that a contract of employment concluded without
the necessary permit renders it void and it is not an offence to accept
work/work for another on that basis. What the Act does prohibit is the
employment of a person who is a foreigner in contravention of the Act,
therefore, the criminal aspect focuses not on the employee but on the
employer, who employs a foreigner without the required permits.
By virtue of the fact that the company employed him in breech of section 38(1)
of the Immigration Act does render the contract invalid but, the absence of a
valid contract of employment does not disqualify a person from the status of
an employee. Nevertheless, albeit that the employee was not entitled to the
protection in terms of the LRA against unfair discrimination he was entitled
to the constitutional right to fair labour practices in terms of section 23 of the
Constitution.
Part (b) of the definition appears very wide as it refers to a person who ‘in any
manner assists in carrying on or conducting’ the employer’s business.
Example – if a person works for a non-profit organization and he is paid by

the organization, he would generally be regarded as an employee of that
organization. BUT a voluntary charity worker who is not paid would most
likely fall outside the scope of part (a) of the definition. However, it is possible
to argue that the voluntary charity worker, if he assists in any manner in
conducting/carrying on of the business of the employer, would fall within the
ambit of part (b). it is necessary to consider if the person is obliged to provide
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that assistance in terms of a contractual agreement and whether that

assistance is provided with some regularity.
Statutory and Judicial Exclusions and Inclusions
Exclusions:
• section 2 of the LRA excludes members of the National Defence Force
and the State Security Agency from its scope.
• Section 3 of the BCEA excludes members of the State Security Agency
and unpaid volunteers working for an organization serving a charitable
purpose from its scope.
• Section 4 of the EEA excludes members of the National Defence Force,
the National Intelligence Agency, the South African Secret Service or the
South African National Academy of Intelligence or the directors and
staff of Comsec.
Inclusions:
• Section 83(1) of the BCEA which provides that the Minister of Labour
may deem any category of persons to be employees for the purpose of
the whole or any part of the BCEA, any other employment law or for the
purposes of any sectoral determination made by the Minister in terms
of the BCEA.
• The EEA expressly includes applicants for employment under its
protection against unfair discrimination.
When does Employment commence?

In Wyeth the Labour Appeal Court held that the term employee in terms of
the LRA includes a person who has concluded a contract of employment but
who has not yet started working. Therefore, a person who has concluded a
contract of employment is more than an applicant for employment and
already has access to protection against unfair discrimination in terms of the
Employment Equity Act as well as protection against unfair Labour practices
and unfair dismissals in terms of the LRA but the general rule is that once
the employment is terminated, an ex-employee is no longer protected in terms
of legislation (Magoshi).
The distinction between employees and independent contractors — the

tests developed by the courts and the legislative presumption as to who
is an employee
Over the years, our courts have formulated a number of tests for drawing this
distinction:
1. The control test considers whether or not there is control over:

• the type of work the person does,
• the manner in which (how) it must be done, and
• when it must be done.
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Control and subordination are important characteristics of the employment

relationship and were previously regarded as the most important distinction
between the employment contract and that of the independent contractor. In
today’s modern society, and due to specialisation, control has been reduced
to a right of an employer to control its employees and is now only one of the
factors which a court will use when determining the existence of an
employment contract. Therefore, this test alone does not help in determining
the true definition of an employee.
2. The Organisation (integration) test considers whether or not

• the person is part and parcel of the organization
• the person’s work is integrated into the organisation of the employer
and not just an accessory to it.
3. The Multiple or Dominant Impression test: It is often seen as the

standard test currently used by our courts and it relies on various
indicators to determine whether or not the relationship in question is one
of employment. The factors, or indications, that the court would take into
consideration to obtain a dominant impression, include the following -
• The right of supervision, in other words, whether the employer has the
right to supervise the other person, (ie ‘the worker’).
• The extent to which the worker depends on the employer in the
performance of duties.
• Whether the worker is allowed to work for another. Normally, someone
who is an employee in terms of an employment contract is not allowed
to work for anyone else.
• Whether the worker is required to devote a specific time to his/her
work.
• Whether the worker is obliged to perform his/her duties personally.
(Usually, someone working for another in terms of an employment
contract is obliged to render the services personally. In the case of an
independent contractor, it does not really matter who does the work as
long as the job gets done).
• Whether the worker is paid according to a fixed rate or by commission.
• Whether the worker provides his/her own tools and equipment.
• Whether the employer has the right to discipline the worker. The
existence of this right would normally indicate control, which, in turn,
would be indicative of an employment contract.
All the factors together create what is called a ‘dominant impression’.
4. The Reality test looks at the “substance of the relationship as opposed

to the form thereof” (Denel)
5. The Economic capacity Test looks at whether the employee’s income-

earning capacity is solely dedicated to the employer. The Labour Appeal
Court in the State Information and Technology Agency Case created
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a new test by reviving some of the older tests used by the court, namely,
Control and Integration and adding ‘economic dependence’.
Irrespective of what one chooses to call the test to be applied, the following
principles should be applied to distinguish between employees and
independent contractors:
1. What the parties choose to call their relationship in their agreement is

only a point of departure;
2. How the parties structure their relationship in the agreement –
although this is important, it remains subject to the reality of the
situation;
3. In Considering the reality of the situation, one must consider ALL
aspects of this relationship;
4. These aspects may constitute a multitude of factors all of which can be
grouped under 3 subheadings namely, control, integration and
economic dependence; and
5. In weighing up the many factors, the approach should be qualitative
and not quantitative.
The LRA (S200A) and the BCEA (S83(A)) took the heavy burden from the
employee by creating a Rebuttable Presumption. If one of the factors listed
below in terms of the Acts were present, the presumption was that the
applicant was an employee, the employer then bears the onus of proving, on
a balance of probabilities, that it is not an employment relationship. These
factors are:
1. the manner in which the person works is subject to the control or
direction of another person;
2. the persons hours of work are subject to the control or direction of
another person;
3. in the case of a person who works for an organization, the person forms
part off that organization;
4. the person has worked for the employer for an average of at least 40
hours per month over the last 3 months;
5. the person is economically dependent on the other person for whom he
works/renders a service;
6. the person is provided with tools of the trade or equipment by the other
person;
7. the person only works for, or renders services to, one person.
While aimed at making it easier to establish a person’s status as an employee,

the provision is subject to limitations:
1. A contractual arrangement to perform work must exist.
2. It only applies to those instances where a persons wants to establish
his status as an employee for purposes of the applicability of the
legislation. For purposes of the common law, contractual disputes
between employer and employee, the tests as developed by the courts
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apply and the onus is on the person claiming to be an employee to prove

status.
3. The presumption only applies to persons who earn below the threshold
laid down by the Minister of Labour in terms of the BCEA (R 205 433.30
per annum). For those earning more than the threshold, the tests
developed by the courts will apply.
4. If the presumption does apply, it is possible to rebut same by means of
evidence to the contrary. Onus in this case shifts to the employer to
rebut and prove that the person is not an employee.
Non-Standard Employment
In Sibiya the Labour Court emphasised that whether an employee is casual

or permanent is irrelevant when considering whether or not there has been a
dismissal.
1. Fixed Term Employees

Fixed-term contract employees are employed either for a specified period of
time, or until the completion of a specific project or the occurrence of a future
specified event. Seasonal workers, replacement workers or employees engaged
for a specific operational requirement would be included in this group of
temporary employees. Casual workers (usually employed on a daily basis) are
also usually regarded as fixed-term employees. Fixed-term employees are
‘employees’ as defined and are entitled to all the protection afforded by Labour
legislation; however, they are often exposed to exploitation in the workplace.
There are two reasons for appointing employees on a fixed term basis. Firstly,
fixed term contracts terminate upon:
• Expiry of the agreed period of service.
• Completion of the agreed project.
• The occurrence of the specified future event.
Employers use fixed term contracts to circumvent the protection employees
have against unfair dismissal.
Secondly, employers often distinguish between different categories of

employees for the purposes of the benefits such as retirement and medical
benefits.
The LRA addresses potential abuse of such fixed term employees by means of
two important provisions:
1. Section 186(1)(b) which provides that where a fixed term employee has
as a reasonable expectation of renewal of his contract and the contract
does not get renewed would constitute a dismissal.
2. Section 198(B) applies to fixed term employees earning the BCEA
threshold and provides:
• A fixed term contract must be in writing.
• Must not be for a period exceeding 3 months if the nature of the work
is of a limited or definite period unless the employer can provide any
27
other justifiable reason for fixing the term – the court must state what
the justifiable reasons are, Justifiable reasons include:
o Replacing temporary absent employee
o Employed temporarily due to an increase in workload
o Student/graduate being trained
o Work on a specific project for a specific time
o Non-citizen with a work permit
o Employee performs seasonal work
o Public works or similar
o Position is funded by external source for specific period
o After retirement, the employee continues to work for employer
Section 198B(5) holds that any contravention of the aforementioned

principles will result in the employment being deemed to be for an indefinite
duration. In Piet Wes Civils the court held that a fixed term contract linked
to the future supply of work by the client, given its uncertain duration doesn’t
meet the required certainty of termination. Therefore, such contract should
be regarded as of indefinite duration.
In Central Technical Services (pty) Ltd the TES included in its employees’
contracts that the contracts would cease once the specific work is completed
in terms of the duration of the project or specific part thereof. The Court held
that the required specificity regarding when the terminating event of the fixed
term contract would be was lacking, therefore, treated the contract as being
of an indefinite duration.
Fixed term contracts for longer than 3 months - employees must not be
treated less favorably than employees permanently performing the
same/similar work unless there is a justifiable reason such as:
• Seniority;
• Experience;
• Length of service;
• Merit; or
• The quality or quantity of the work performed.
Employers must afford fixed term employees and permanent employees’ equal
opportunities to apply for vacancies. Employees in terms of fixed term
contracts exceeding 24 months subject to the terms of any applicable
collective agreement, are entitled to one week’s remuneration for every
completed year upon expiry of the contract.
Section 198B aims to address the abuse of fixed term contracts in respect of
vulnerable employees, but its scope is limited:
• It only applies to employees earning less than the threshold
amount in terms of the BCEA.
• It creates a number of exceptions to the general rule that fixed term
contracts must not exceed 3 months.
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• It does not apply to all employers. It excludes employers employing

less than 10 or fewer than 50 employees during the first 2 years
of business operations.
• It does not apply to fixed term contracts permitted in terms of any
statute, sectoral determination or collective agreement.
Part-Time Employees
A part-time employee may work fewer days in a week than a full-time
employee or work shorter daily hours than a full-time employee. The fact that
an employee is a part-time employee does not change the employee’s status -
he/she is still an employee as defined in Labour legislation and still enjoys
protection against unfair dismissal. However, these employees are often
exploited.
Section 198 C provides protection for part time employees earning less than
the BCEA threshold.
• Examples: Domestic/casual piece worker.
• Employee is remunerated specifically in accordance with time worked
(less than a full-time employee).
• The Act does not give job security protection but focuses on equal
treatment regarding terms and condition of employment, remuneration
and skills development.
• Therefore, part time employees must be treated not less favourably than
a comparable full time employee doing the same or similar work, unless
there are justifiable reasons.
• Comparable full-time employee = an employee who is paid for a full
day, is considered a full-time employee in terms of custom and practice
and performs the same or similar work as the part-time employee
• Not less favourable = takes into account factors like the remuneration
a person receives in comparison to a another person in a full-time
employment but does not mean identical or the same. E.g. in certain
instances the employee may be paid remuneration instead of receiving
benefits such as retirement benefits and medical aid.
• Factors such as seniority, experience or length of service may justify
the differentiation and part-time employees must be given the
opportunity to apply for job opportunities, receive training and skills
development
• The provisions of S198C will not apply to:
o Employers with less than 10 employees or less than 50 employees
and whose business has been in operation for less than 2 years
o Employees earning more than R205 433 a year
o Employees who ordinarily work fewer than 24 hours a month for
the employer
o During an employees first 3 months of continuous employment
with an employer.
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Temporary Employment Services

Section 198 of the LRA describes a temporary employment service (TES), also
called a labour broker, as ‘any person who, for reward, procures for or
provides to a client other persons who perform work for the client and who
are remunerated by the temporary employment service.’ Such employees are
often used to provide persons to perform non-core functions, or, in times of
need, persons who perform core functions.
The use of TES gives rise to a triangular relationship - the TES and the client
conclude a service agreement in terms of which the TES will provide persons
to the client to perform work and for which the client pays the TES an agreed
fee.
In terms of subsections 198(2)-(4):

• A person whose services have been procured for, or provided to, a client
by a TES is deemed to be the employee of the TES, and the TES is that
person’s employer.
• A person who is an independent contractor is not an employee of a TES,
nor is the TES the employer of that person.
• A TES and the client are jointly and severally liable if the TES, in respect
of any of its employees, contravenes –
o a collective agreement concluded in a bargaining council that
regulates terms and conditions of employment;
o a binding arbitration award that regulates terms and conditions of
employment;
o the BCEA; or
o a sectoral determination made in terms of the BCEA.
What this means is that persons on the ‘books’ of the TES are the employees
of the TES, not of the client and they are remunerated by the TES.
In Assign Services (Pty) Ltd it was held that the triangular relationship splits
the functions of the employee between the TES and the client for a fee. The
TES is responsible for payment of the employees and manage the HR
component of employment, while the client is responsible for the day-to-day
management, work allocation and performance assessment in most
circumstances are conducted by the client as well as the employees working
conditions as employees are placed on the client’s premises.
Before the 2004 amendments to the LRA, the purpose of the TES was to
protect the client from the consequences of the employment relations and to
relieve them from having to deal with the HR need of the people working for
them. Clients were often incentivised to offer lower prices in order to be
awarded the clients contract therefore resulting in lower wages for placed
employees.
Challenges with the use of TES:
30
• Section 198 of the LRA provides for joint liability of the TES and client
in limited circumstances.
• There is no joint liability for unfair Labour practices, unfair
discrimination or unfair dismissal which in the past resulted in many
organization’s opting to use the services of a TES in order to avoid
having to appoint its own employees.
The TES often tried to use different strategies that would further prejudice to
employees, namely:
• Appointing persons who provided services to the clients as independent
contractors not as employees therefore excluding its own liability.
• Including a clause in the employment contracts stipulating that should
the client no longer want the employee to perform the work or the
services the agreement was cancelled, the contract between the TES
and the employee would automatically terminate – thereby eliminating
the possibility of an unfair dismissal claim against the TES.
In terms of section 198A of the LRA, a temporary service means those

instances where an employee:
• Works for the TES’s client for a period not exceeding 3 months;
• Works as a substitute for an employee of a client who is temporarily
absent; or
• Works in a category of work and for any period of time which is
determined to be a temporary service by a collective agreement
concluded in a bargaining council, a sectoral determination or a notice
published by the Minister of Labour.
This section protects vulnerable employees and applies only to those who earn
less than R 205 433.30 per annum.
If the service is indeed a temporary service, the employee remans the employee
of the TES, however, if the service to the client is not temporary (longer than
3 months and the other exceptions do not apply) section 198A(3)(b) holds
that the employee is deemed to be the employee of the client of the TES and
the client is therefore the employer unless there is a valid fixed term contract
then the employee is deemed to be employed on an indefinite basis by the
client. The employee must not be treated less favourably than an employee of
the client performing the same/similar work unless there is a justifiable
reason for the differential treatment.
Section 198A(4) holds that termination by TES of employees services with a

client for the purpose of avoiding the deeming provision or the employee
exercises a right in terms of the LRA constitutes a dismissal subject to the
requirements of fairness. Proceedings may be instituted against either the
TES or the client or both.
In Assign Services the court held that even though the client is deemed the
employer, the employee may still claim against the TES as long as there is still
a contract between the TES and employee. Therefore, in light of this the
31
employee is deemed to be the employee of the client only for purposes of the
LRA. Therefore potentially liable for any claims brought in terms of the LRA
i.e. unfair labour practices, unfair dismissal and any contractual claim the
employee may have will be instituted against the TES and cannot be enforced
against the client.
Other categories of Employees
1. Probationary Employees
During the probation period skills and abilities of an employee are assessed.
The employer determines how compatible the worker is with fellow employees,
clients, management and the workplace in general. At the end of the
probationary period one of three things may happen :
• the employee’s permanent employment may be confirmed,
• the probation period may be extended subject to further conditions, or
• the employee’s performance may be unsatisfactory and his/her services
terminated due to poor performance.
Item 8(1) of Schedule 8 of the Code of Good Practice provides that dismissal
required that during the probationary period the employee’s performance
should be assessed and the employee should be given reasonable evaluation,
instruction, training, guidance/counselling to allow him to tender satisfactory
service.
It is easier to dismiss a probationary employee than a permanent employee

for poor performance but in all other respects (such as protection against
dismissal for misconduct or operational requirements, protection against
unfair discrimination or unfair labour practices) the probationary employee is
protected to the same degree as other permanent employees.
2. Senior and Junior Employees

Because of the functions exercised by senior managers one may think that
they are not employees. A manager may, for example, have the power to both
appoint and dismiss people, however he/she is still an employee for purposes
of the application of Labour legislation. Labour legislation extends important
protections to employees earning below the BCEA threshold amount (these
employees are often referred to as vulnerable employees).
Senior managerial employees are employees for the purpose of the LRA.
Even a director may also constitute an employee. The Court distinguishes
between 2 types of directors:
1. Executive directors – (inside director) often an employee, officer,
significant shareholder e.g. CEO or CFO; and
2. Non-Executive directors – a member of the board who is not engaged or
employed by the organization.
The dismissal of a senior managerial employee is a bit different in practice,

e.g. slightly different rules regarding dismissal for incapacity, by virtue of his
32
senior position, he should know whether or not his work is of the required
performance standard, therefore, lessening the employer’s duty to provide
training, counselling guidance etc. The rights of senior managerial employee’s
to participate in trade union activities is limited as doing so may give rise to
a conflict of interest, which may be seen as misconduct. They are also
excluded from protection of the BCEA in relation to working hours.
Junior Employees. The Labour legislation extends important protections to

employees earning below the BCEA threshold amount. Example:
• Protection in terms of the provision of the BCEA regarding working
hours;
• The provisions of section 198A, 198B, 198C of the LRA relating to non-
standard forms of employment;
• Presumption as to who is an employee in terms of section 200A of the
LRA; and
• Referral of unfair discrimination cases in terms of EEA to the CCMA.
3. Public Servants and Private Employees

Before public servants were excluded from protection of general Labour
legislation. Today public servants have access to the same Labour legislation
as other employees read together with legislation applicable to public servants
in general, e.g. Public Service Act.
Who is the Employer?

If an employee feels his/her rights have been infringed, the correct employer
(legal entity) must be identified as the respondent in the employee’s case. Of
all employers, the State is the largest single employer.
Although it is usually easy to identity who the employer is, it is however

sometimes necessary to lift the corporate veil. This means that the question
as to who the employer is will be considered with due regard to the
circumstances to ensure equity and justice between the parties. Therefore,
the CCMA or the Labour Court will look at the reality of the relationship and
consider who the REAL parties are regardless of the manner in which the
parties have used companies or close corporations to create what appears to
be a different relationship.
In terms of section 200B of the LRA, an employer includes:

• One or more person who carries on, associated, related activity,
business by or through the employer if the intent or effect of doing so
is or has been to directly/indirectly to defeat the purpose of the LRA or
any other employment law.
• If more than one person is held to be the employer in terms of the above,
those persons are jointly and severally liable for any failure to comply
with the obligation of an employer in terms of the Act or any other
employment law.
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In Buffalo Coal the Court confirmed that the purpose of section 200B is to
prevent collusion to undermine by 2 or more persons the provisions of the Act
or any other employment law.
If all the requirements of section 200B are met, the persons are employers
and are jointly and severally liable for failure to comply with the obligations
of an employer in terms of the Act or any other employment law.
If any party who wants to rely on section 200B to hold an employer liable,
MUST show 2 things:
1. That such persons are carrying on/conducting an associated/related
business by/through an employer; and
2. The intent/effect in doing so is/was to directly/indirectly defeat the
purpose of the LRA or any other employment law.
In Jele: the Court had to decide whether the different provincial departments
constituted different employers. Upon analysis of the relevant provisions of
the Constitution and the Public Service Act, the Labour Appeal Court
concluded that employees of provincial governments are employees of the
state irrespective of the state department they work for. Therefore, the state
is then a single employer.
34
MINIMUM STANDARDS LEGISLATION AND OTHER SOURCES OF TERMS

AND CONDITIONS OF EMPLOYMENT
Different Sources of Terms and Conditions of Employment

The contract of employment is the most important source of rights for
employees but it is not enough to properly protect the rights of the employees.
This has led to the adoption of legislation that seeks to ensure the fair
treatment of employees.
The two most important pieces of minimum standards legislation currently in

force are the National Minimum Wage Act 9 of 2018 (NMWA) which regulates
the level of minimum pay workers are entitled to, and the Basic Conditions of
Employment Act 75 of 1997 (BCEA) which regulates minimum terms and
conditions of employment other than minimum pay. ‘Ministerial
determinations’ and ‘sectoral determinations’ issued in terms of the BCEA
may also be issued to provide for specific minimum standards of employment
for certain categories of employees or employers, or certain sector of the
economy. Labour legislation also promotes fair terms and conditions of
employment indirectly for example through the Labour Relations Act 66 of
1995 (LRA) which is aimed to promote collective bargaining through which
trade unions try to conclude collective agreements with employers regulating
terms and conditions of employment of their members.
1. The National Minimum Wage Act (NMWA)
The Goals of the NMWA:
The NMWA came into operation on 1 January 2019 with, among other things,
the goals of ‘improving the wages of the lowest paid workers’ and ‘protecting
workers from unreasonably low wages’ (section 2).
It seeks to achieve this through a combination of the following:

• prescribing a national minimum wage (NMW);
• prohibiting employers from taking steps (such as a reduction of working
hours) to undermine the effectiveness of the minimum wage;
• providing, in general, for the overriding effect of the NMWA in relation
to a contract of employment, collective agreement, or sectoral
determination;
• providing for very limited exemptions to employers from the obligation
to pay the minimum wage; and
• establishing a National Minimum Wage Commission (NMW
Commission) whose responsibilities include annual reviews of the level
of the NMW and recommendations to the Minister of Labour about
adjustments to it. The NMW Commission also has important
responsibilities in terms of the BCEA, notably to investigate and make
recommendations to the Minster of Labour about the promulgation of
sectoral determinations in terms of that Act.
35
The Scope of the NMWA:

The Act applies to all workers and their employers except those excluded in
terms of S2:
• members of the SANDF
• members of the National Intelligence Agency
• Members of the South African Secret Service
• ‘A volunteer’ = someone who works for another and who does not
receive/is not entitled to receive any remuneration for his services.
S1 of the Act defines a ‘worker’ as any person who works for another and who
receives/is entitled to receive any payment for the work whether in money or
in kind
There are 3 differences between the definition of employee in terms of the LRA
and ‘worker in terms of the NMWA:
1. The NMWA does not expressly exclude the independent contractor;
2. The NMWA refers to ‘payment’ instead of ‘receive remuneration’;
3. There is no part (b) in the NMWA as in the LRA which includes any
other person who in any manner assists in the carrying on/conducting
the business of the employer.
In spite of the very small differences the NMWA does not apply to the
independent contractor because they do not ‘cork for another’, they work for
themselves by providing a service to their clients.
The Provisions of the NMWA:

S4(1) NMWA provides that the NMW is set at R20/hr. Therefore, someone who
works 8hrs/day for 5days/week will earn a monthly wage of approx. R3500.
Exceptions in terms of schedule 1:

1. MW for Farm workers = R18/hr (in terms of sectoral determination);
2. MW for domestic workers = R15/hr (sectoral determination for domestic
workers);
3. MW for workers employed in expanded public works program = R11/hr
(this is labour intensive initiative from Government funded by public
resources and designed to reduce unemployment);
4. Learners working in terms of learnership agreements concluded in
terms of the Skills Development Act are entitled to a sliding scale of
weekly allowances prescribed in terms of schedule 2 of the NMWA.
Sections 4(4) to 4(7) of the NMWA provide the following rights and obligations
on workers and employers relating to payment of the NMW -
• Every worker is entitled to a wage no less than the NMW, subject to the
exceptions mentioned in the previous paragraph.
• Every employer must pay wages to its workers that are not less than
the NMW, again subject to the exceptions in the previous paragraph.
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• The payment of the NMW cannot be waived; ie an employee cannot

lawfully agree to accept a wage lower than the minimum wage in order
to secure employment.
• The NMW takes precedence over any contrary provision in a contract,
collective agreement, sectoral determination or law, subject to the
exceptions mentioned above.
• The NMW must constitute a term of the worker’s contract – unless the
contract, an applicable collective agreement, or applicable sectoral
determination is more favourable to the worker; in which case effect is
given to the more favourable wage provided for in the contract, collective
agreement or sectoral determination.
The NMW Commission is tasked to conduct an annual review of the minimum

wage and to recommend adjustments.
S5 of NMWA regulates the obligation to pay the MW. S5(1) Excludes the
following from the MW:
1. Payment made to enable the worker to work (transport, equipment,
tools, food, accommodation allowance)
2. Any payment in kind, incl board and accommodation unless otherwise
provided for in terms of a sectoral determination;
3. Gratuities such as bonuses, gifts/tips;
4. Any other prescribed category of payment.
S5(2) and (3) read with S9A BCEA:

• A worker is entitled to be paid MW for the hours an employee works on
any day but if the worker works less than 4 hours on any day, he is
entitled to be paid for the 4 hours for that day
• A worker who is paid on a weekly/monthly basis is to be paid MW in
respect of his ordinary weekly/monthly working hours
• Employers who are not able to meet the MW obligations can apply for
exemptions, as regulated in terms of S15 NMWA, either in person or
online.
Exemptions:
• Are limited;
• May not exceed a period 1 year;
• Do not apply to entitle the employer to pay less than 90% of the
prescribe MW
S4(8) NMWA applies retrospectively and provides that any unilateral change
to the workers wages, hours of work or other terms and conditions of
employment in connection with the NMWA, by the employer would amount to
an unfair labour practice.
The interaction between the NMWA and other sources of terms and
conditions of employment in relation to levels of wages:
37
The BCEA does not prescribe any level of wages for ordinary hours of work
and often the contracts of employment provide for a higher level of ordinary
wages than the NMWA, any applicable sectoral determination or collective
agreement. Therefore, the GR is to effect to the contract of employment.
The Enforcement of the NMWA:

In the event that the employment contract, sectoral determination, collective
agreement or other law prescribes a wage less than the NMW, the NMWA shall
override such contract, sectoral determination, collective agreement/law.
The NMWA does not provide for how payment of the NMW is to be enforced.
All provisions relating to the enforcement of the NMW are contained in BCEA,
namely:
• Inspectors from the labour department; or
• Legal proceeding initiate by the worker himself at the CCMA in terms of
S73A BCEA – the CCMA will attempt to resolve the dispute through
conciliation, failing which, the matter may be arbitrated.
The BCEA expressly allows disputes regarding failure to pay the NMW to be
instituted jointly with:
• A claim that the employee was discriminated against for exercising his
rights in terms of the BCEA;
• Any claim for unfair dismissal;
• A dispute about the employee’s entitlement to severance pay in the case
of a dismissal for operational reasons.
2. The Basic Conditions of Employment Act (BCEA):
The Goals of the BCEA:

The primary goal of the BCEA is to give effect to section 23(1) of the
Constitution (the right to fair labour practices) by establishing and enforcing
basic conditions of employment.
The Application of the BCEA:

The BCEA does not apply to the independent contractor therefore, it is
important to first establish whether or not the worker is an employee.
S83A of the BCEA contains presumptions as to who is an employee while S3

Excludes the following categories of employees:
• Members of the State Security Agency; and
• Unpaid volunteers working for an organization serving a charitable
purpose.
Apart from the general exclusions from the BCEA mentioned above, there are
certain partial exclusions. Examples of partial exclusions incl:
• S6 of the Act - provides that chapter two of the Act, which regulates
working hours, does not apply to certain employees.
38
• many of the provisions regulating working hours do not apply to

persons earning in excess of a statutory threshold determined by the
Minister of Labour in terms of section 6(3).
• The provisions of chapters two to five of the Act also do not apply to
employees working less than 24 hours per month for an employer.
• S27(1), which provides that only employees who have been in
employment with an employer for longer than four months and who
work for at least four days a week for that employer are entitled to family
responsibility leave in terms of the Act.
A. Regulation of Working Time:
Chapter two of the BCEA regulates the working hours of employees. The
following employees are excluded by section 6 from the provisions of chapter
two and their working hours are thus not governed by the BCEA —
• senior managerial employees;
• employees engaged as sales staff who travel to the premises of
customers and who regulate their own hours of work; and
• employees who work less than 24 hours a month for an employer.
S6(2) stipulates that the provisions relating to overtime, meal intervals, rest
periods, night work and work on public holidays do not apply to work required
to be done without delay due to circumstances the employer could not
reasonably have expected and which cannot be performed during ordinary
hours of work.
1. Ordinary working hours:

Section 9 - maximum ordinary working hours are 45 hours per week and
nine hours per day if the employee works for five days a week. The maximum
ordinary working hours of employees who work more than five days a week is
eight hours a day.
This may be extended by a max of 15 minutes a day / 60 minutes a week if
employees serve members of the public.
2. Overtime work:
Section 10 - provides that employees may only be required to work overtime
in accordance with an agreement between employees and their employer, and
that employees may not work more than ten hours’ overtime a week. A
collective agreement may increase the maximum permitted overtime to 15
hours a week, but this type of collective agreement may not apply for more
than two months in any 12-month period. Overtime work is remunerated at
one-and-a-half times the employee’s normal remuneration, alternatively the
employer may grant equivalent paid time off (time-and-a-half).
3. Compressed work week:

The parties may agree that the employee will work up to 12 hrs a day
(including meal interval) without receiving overtime pay, provided that:
• the employee does not work more than 45 ordinary hrs in any week,
39
• more than 5 hrs overtime a week, or

Such a collective agreement lapses after 12 months.
Ordinary hrs and overtime can be averaged over a period of up to 4 months
in terms of a collective agreement – this is allowed where overtime is
calculated over a period of time.
4. Meal intervals and rest periods:

Section 14 - if an employee works continuously for more than five hours, the
employer must give the employee a meal interval of at least one continuous
hour. During the meal interval the employee may be asked to perform only
the duties that cannot be left unattended and cannot be performed by another
employee. An employee must, however, be remunerated for a meal interval in
which the employee is required to work or if the employee is required to be
available for work.
Section 15 - an employer must allow an employee a daily rest period of at
least 12 consecutive hours between ending and recommencing work. The
employer must also grant the employee a weekly rest period of at least 36
consecutive hours that, unless otherwise agreed, must include a Sunday.
The basic conditions may be varied by written agreement:

• The daily rest period may be reduced to 10 hours if the employee lives
on the workplace premises and has a meal interval of at least 3 hours;
• The weekly rest period may be 60hours, but only every 2nd week or be
reduced by 8 hours in a given week provided the rest period in the
following week is extended equivalently – S14 does not apply to
employees earning in excess of the BCEA threshold.
5. Sundays:
Section 16 - If an employee does not normally work on a Sunday and the
employer requires the employee to work on a Sunday, the employee must be
paid double his/her hourly wage. If the employee normally works on a
Sunday, the employer must pay — one and a half times the employee’s wage
for each hour worked. Alternatively, the employer may grant the employee
equivalent paid time off.
6. Public holidays:
Section 18 - An employer may not require an employee to work on a public
holiday, unless the parties have agreed otherwise. If the employee does not
work, he/she is entitled to his/ her ordinary remuneration for that day. But
if the employee does work on a public holiday, the employer must pay — at
least double the employee’s ordinary wage for every hour worked.
In terms of S22 of the Public Holidays Act, if a public holiday falls on a

Sunday, the following Monday shall be a public holiday.
7. Night work:
Section 17 - defines ‘night work’ as any work done after 18:00 and before
06:00 the next day – it does not matter that the bulk of the employee’s work
40
is not night work, nor that the employee only occasionally works after 18:00.
An employer may only require or permit an employee to work at night if there
is an agreement to this effect and if the employee is compensated by:
• the payment of an allowance (a shift allowance); or
• by a reduction of working hours; and
• An employee may only work at night if transportation is available
between the employee’s home (or at least its close vicinity) and the
workplace at both the beginning and the end of the employee’s shift.
(the employer is only obliged to provide transport if there is no public
transport at either the beginning or the end of the employee’s shift)
B. Leave:
Chapter three of the BCEA, which provides for various forms of leave, does
not apply to an employee who works less than 24 hours a month for an
employer.
1. Annual Leave:
In respect of each annual leave cycle (a period of 12 months’ employment with
the same employer) an employee is entitled to at least 21 consecutive days’
annual leave on full remuneration. It appears that the Act provides for three
weeks’ leave and the reference to 21 days is to calendar days and not working
days.
Section 20 provides that annual leave must be granted not later than six
months after the end of the annual leave cycle. This provision is subject to
much scrutiny because, if the employee fails to do so, is he entitled to be paid
out this leave in terms of S40 or does he forfeit this leave?
In Jardine: The court held that employees are entitled to be paid out their
leave. But, In Jooste: The court limited the right of employees to accrue leave
in terms of the BCEA stating that the employee is only entitled to be paid for
leave accrued and not taken within the current leave cycle and from the
immediately preceding leave cycle.
In Ludick: The Court held that id an employee is entitled to more than 21

days leave, the accrual of the additional leave and if/when it can be paid out
is regulated in terms of the contract between the parties. The BCEA does not
apply.
The following principles apply:

a. An employer cannot require an employee to take annual leave
during other types of leave e.g. annual leave during/instead of
family responsibility leave;
b. The employee may not be required to take leave during the period
of notice of termination of employment;
c. If the employee is on unpaid leave and is/becomes entitled to paid
leave, the employee must on written request of the employer,
permit the employee to take paid leave;
41
d. If a public holiday falls during the employee’s annual leave he is

entitled to take an additional day of paid leave;
e. In terms of S21, an employer must pay the employee leave
equivalent to the remuneration the employee would normally
receive during that period, calculated at the employees rate of
remuneration immediately before the beginning of the period of
annual leave.
Section 40 states that, on termination of employment, an employer must pay

an employee remuneration for any leave due that the employee has not yet
taken. An employer may not require the employee to take annual leave during
other types of leave.
2. Sick Leave:
Section 22 - the sick leave cycle is a period of 36 months’ employment with
the same employer. During every sick leave cycle, an employee is entitled to
six weeks’ paid sick leave. During the first six months of employment, an
employee is entitled to one day’s paid sick leave for every 26 days worked. If
the employee is on sick leave, the employee is entitled to the wage normally
payable for work on that day.
Section 23(1) - an employer is not required to pay an employee if the

employee has been absent from work for more than two consecutive days or
on more than two occasions during an eight-week period if the employee does
not (at the request of the employer) produce a medical certificate stating the
employee was unable to work for the duration of the employee’s absence on
account of illness or injury.
In Kiewiets Kroon Country Estate: The SCA held that the employee’s
genuine belief that her health was threatened unless she complete the
traditional healers course was not an illness in the conventional sense and
therefore a medical certificate was not required.
Section 23(2) – A medical certificate must be issued and signed by a medical

practitioner or other person certified to diagnose and treat patients and who
is registered with the professional council.
Abuse of sick leave (e.g. to take sick leave on a Monday/Friday without good
reason, on a regular basis) or providing false/fraudulently obtained medical
certificates may constitute a misconduct worthy of dismissal.
3. Maternity Leave:
Section 25 - An employee is entitled to at least four consecutive months’
maternity leave. The BCEA does not provide that maternity leave should be
paid leave. However, payment in respect of maternity leave is regulated in the
Unemployment Insurance Act. An employee must notify an employer in
writing, unless the employee is unable to do so, of the date on which she
intends to commence her maternity leave and when she intends to return to
42
work after maternity leave. Maternity leave may commence at any time after
four weeks prior to the expected date of birth (unless otherwise agreed) or on
a date necessary in light of the employee’s or baby’s health as certified by a
doctor or midwife.
Section 25(3) states that no employee may return to work until six weeks
after birth (unless certified fit to do so by a doctor or midwife). The Act also
makes provision for women who suffer a miscarriage or give birth to a stillborn
child during the third trimester and entitles these employees to six weeks’
leave after the miscarriage or stillbirth.
The protection of pregnant women is further emphasized by the BCEA’s Code

of Good Practice on the Protection of Employees during Pregnancy and after
the Birth of a Child (GN R 1441 of 13 November 1998). This code deals with
a host of related issues including steps the employer should take to identify
physical, ergonomical, chemical and biological hazards and the aspects of
pregnancy that may affect work.
Section 26(1) - An employer may not require or permit a pregnant or nursing

employee to perform work that is hazardous to her health or to the health of
her child.
Section 26(2) – If work is hazardous/night work the employer, if reasonably

practicable is obliged to offer the employee suitable alternative work on terms
and conditions that are not less favourable than her usual terms and
conditions of employment for the duration of her pregnancy and continues for
a period of 6 months thereafter. (this provision does not guarantee suitable
alternative employment but only a consideration for such employment (New
Kleinfontein Gold Mine) – Every case is dealt with on its own merits)
4. Family Responsibility Leave:

Section 27 - provides for three days’ paid family responsibility leave during
each annual leave cycle. The employee is entitled to take this leave for:
• the birth, illness or death of a child; or
• the death of the employee’s spouse or life partner, parent, and other
immediate family members.
The employer may require proof of the event for which family responsibility
leave was granted.
It is possible to amend the number of days and circumstances for which
family responsibility leave may be granted in terms of a collective agreement.
Family responsibility leave cannot be accrued (carried over to the next leave
cycle).
It is only available to employees who have worked for mote than 4 months
and work at least 4 days a week.
5. Parental, Adoption and Commissioning Parental Leave:

Section 25A - provides for unpaid parental leave of at least 10 consecutive
days for an employee who is a parent of a child, to be taken from:
43
•the date of birth; or

•in case of adoption, from the day on which the adoption order is
granted by the court; or
• from the day the child is placed with the adoptive parent pending
a court order (whichever day comes first).
Section 25B - provides that an adoptive parent of a child under the age of
two is entitled to:
• unpaid adoption leave of ten consecutive weeks; or
• to the parental leave provided for in section 25A.
The two adoptive parents are not both entitled to adoption leave – one may
claim the adoption leave, but then the other is only entitled to section 25A
parental.
Section 25C - provides that a commissioning parent in a surrogate
motherhood agreement is entitled to either:
• unpaid commissioning parental leave of at least ten consecutive weeks;
or
• to ordinary parental leave from the date on which the child is born.
If there are two commissioning parents, only one may take commissioning
parental leave and the other may take ordinary section 25A parental leave.
In respect of all three types of leave – parental, adoption or commissioning

parental – payment during leave is to be regulated by the Unemployment
Insurance Act and in all three instances the employee has to notify the
employer in writing one month in advance that this leave will be taken.
C. Particulars of Employment and Remuneration:
Section 29 of the BCEA provides that the employer must provide the
employee, in writing, with certain particulars.
Particulars to be provided at the commencement of employment:

• Full name and address of the employer
• Name and occupation of employee/brief job description
• Place of work
• Date of commencement of employment
• Ordinary hours of work
• The employee’s wages/rate and method of calculating wages
• Rate of pay for overtime
• How frequently remuneration is paid
• The leave to which the employee is entitled
• Any deductions to be made from the employee’s remuneration
Provisions relating to Remuneration:

The BCEA does not prescribe a minimum wage – this is now done by the
NMWA in conjunction with the different sectoral determinations and
applicable bargaining council collective agreements.
44
Section 32 – provides that if an employee is paid in money it must be in South

African Rands on a daily, weekly or monthly basis either in cash or directly
deposited into the employee’s bank account within 7 days of completion of the
period for which the remuneration is payable.
Section 33 – The employer must provide the employee with the following
information everytime the employee is paid:
• The period for which payment is made;
• The amount and purpose of any deduction;
• The actual amount paid to the employee.
Section 34 – Regulates deductions from the employee’s remuneration and
provides the following:
• GR: the employer may not make any deductions from an employee’s
remuneration unless the employee agrees to the deduction in respect
of:
o A specified debt;
o If the deduction is required/permitted in terms of law (e.g. Income
Tax);
o A collective agreement (agency fee);
o A court order;
o An arbitration award.
• An employer may deduct money from the employee’s salary to
reimburse the employer for loss or damage if:
o the loss or damage occurred in the course of employment and
was due to the fault of the employee;
o the employer has followed fair procedure and has given the
employee a reasonable opportunity to show why deductions
should not be made;
o the total amount of the debt does not exceed the actual amount
of the loss or damage; and
o the total deductions from the employee’s remuneration do not
exceed one quarter of the employee’s remuneration in money
The Courts have applied S34 quite strictly. For example:
• The common law rules relating to set off is subject to S34 therefore,
even if an employee owes an employer a liquidated amount od money,
the employer cannot deduct the amount from the employee’s salary
without complying with S34. (British American Tobacco)
• In the absence of a written agreement consenting to the deduction or
where one of the exceptions listed in S34(1)(b) does not apply or the
employer does not comply with S34(2) or and applicable court order or
award, a deduction is unlawful (Police and Prison Civil Rights Union
obo Moyo)
There are 3 ways in which S34 may overlap with disciplinary steps taken by
an employer:
1. The employer may want to impose a fine as a disciplinary sanction and
then deduct the fine from the employees remuneration – this is only
lawful if one of the exceptions in terms of S34(1)(b) applies (e.g.
45
legislation provides for it), or failing that, if the employee agrees to such
fine in compliance with S34(1)(a).
2. An employer may want to suspend and employee without pay as a
disciplinary sanction after the employee has been found guilty; or
3. The conduct of the employee may not constitute misconduct but may
also cause the employer monetary loss e.g. damage to a motor vehicle
or machinery.
Section 34A(1) - provides that if the employer deducts from an employee’s

remuneration any amount for payment to a benefit fund, defined as a pension,
provident, medical aid or similar fund, the employer must pay the amount to
the fund within seven days of the deduction being made.
With regards to payments mistakenly made to an employee – the consent of
the employee is not required and the obligation on the employer extends only
so far as to advise the employee of the error and the amount of the deduction
to be made.
Section 35 - relates to the calculation of remuneration and wages. An
employee’s wage is calculated by reference to the number of hours an
employee normally works. An employee’s monthly remuneration or wage is
four and one-third times the employee’s weekly remuneration or wage,
respectively.
S35 gives the Minister of Labour the power to determine whether a particular
category of payment, whether in money or in kind, forms part of an employee’s
remuneration for purposes of calculating leave pay, payment in lieu of notice
and severance pay.
In terms of Item1- the following payments must be included in the calculation
of leave pay:
• Housing/accommodation allowance/subsidy
• Car allowance or provision of a car except if the car is provided to enable
the employee to work
• Any cash payments made to an employee
• Any other payment in kind received by an employee
• The employer’s contribution to medical aid, pension or provident fund
etc
• Employer’s contribution to funeral/death benefit scheme
In terms of Item 3 – the value of payments in kind must be determined by
reference to the value agreed to in the employment contract/collective
agreement or by referring to the cost incurred by the employer in providing
the payments in kind.
In terms of Item 2 – the following forms of payment are not included in
calculating leave pay:
46
• Any cash payment/payment in kind provided to enable the employee to

work (e.g. tools, transport, equipment)
• A relocation allowance
• Gratuities (e.g. tips from customers/gifts from the employer)
• Share incentive schemes
• Discretionary payments not related to an employee’s hours of
work/performance (discretionary profit sharing)
• An entertainment allowance
• And education/schooling allowance
D. Termination of Employment:
1. Notice Periods:
Section 37 - provides for minimum notice periods. This means that the
employee and employer may agree to longer notice periods. If the employee
has worked for six months or less, he is, as a minimum, entitled to only one
week’s notice of termination of employment. If the employee has worked for
longer than six months but for less than a year, the minimum notice period
is two weeks. Four weeks’ notice of termination is the statutory minimum in
the case of employees who have worked for an employer for longer than a year
and also for farm workers and domestic workers who have been employed for
more than six months. Notice of termination must be given in writing, except
when it is given by an illiterate employee. An illiterate employee receiving
notice is entitled to an explanation by or on behalf of the employer.
The employer may not give notice of termination during any period of leave
(ordinary, sick, maternity or family responsibility leave).
Notice of termination given by an employer may not run concurrently with

ordinary leave, maternity leave or family responsibility leave but it may run
concurrently with sick leave and therefore an employee may take paid leave
during the notice period – similarly if the notice of termination is given by the
employee.
An employer may, in cases of serious misconduct, terminate the contract of

employment without notice = summary dismissal.
2. Payment in Lieu of Notice:

Section 38 - permits the payment of remuneration instead of notice. An
employer may pay that employee salary or wages in lieu of notice. Section 38
furthermore provides that if an employee gives notice of termination of
employment and the employer waives any part of the notice period, the
employer must pay the employee the remuneration the employee would have
received for the notice period, unless the employer and employee agree
otherwise.
47
Section 39 - provides that where an employee resides in accommodation on

the employer’s premises or provided by the employer and the employer
terminates the contract through payment in lieu of notice in terms of section
38 the employer is obliged to provide accommodation for at least a month, or
the longer notice period agreed upon by the parties. If the employee elects to
stay in the accommodation, the payment owed to the employee in terms of
section 38 is reduced by the agreed value of the accommodation.
3. Payment on Termination of Service:

Section 40 - provides that, on termination of employment, an employer must
pay to an employee: money owing in respect of any time off for overtime
worked or for work on Sundays; remuneration in respect of annual leave
accrued but not taken.
4. Severance Pay:
Section 41 - if an employer dismisses an employee for operational reasons,
the employer must pay an employee severance pay equal to at least one week’s
remuneration for each completed year of continuous service with that
employer.
5. Certificate of Service:
Section 42 - provides that on termination of employment an employee is
entitled to a certificate of service stating a number of employment particulars,
namely: the name of the employee and employer; dates of commencement and
termination of employment; the employee’s job description and remuneration.
The reason for termination may be included at the employee’s request only.
A certificate of service is not a reference/testimonial. The purpose of the

certificate of service is to confirm the basic facts about the employee’s service
and serves to confirm that an employee had worked for an employer for a
specific period and do not usually mention the employee’s performance,
conduct, abilities or capacity as such information is usually referred to in a
reference or testimonial.
Variation of Provisions of the BCEA:

The parties may not contract out of the BCEA (by providing in the employment
contract that the BCEA will not apply), BUT, the Act does allow for the
variation of certain basic conditions of employment in the following ways:
1. A collective agreement concluded at a Bargaining Council:

The parties to a bargaining council may change anything contained in the
BCEA except the following core provisions relating to:
• Working hours
• Ordinary working hours
• Night work
A bargaining council agreement may not reduce the following:
• An employees annual leave to less than 2 weeks
• Maternity leave
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• Sick leave
• Parental leave
• Adoption leave
• Commissioning parental leave
A bargaining council agreement may not conflict with the prohibition against
child labour.
2. A collective agreement concluded outside of a Bargaining Council

between the employer and trade union:
A collective agreement may replace/exclude a basic condition of employment
to the extent that such replacement/exclusion is permitted in terms of the
BCEA itself. For example:
• Increasing overtime from a maximum of 10hrs/week to a maximum of
15hrs/week;
• Averaging ordinary working hours and overtime working hours;
• The entitlement to family responsibility leave
3. Changing the basic conditions of employment to something less

favourable by means of agreement between the employer and
employees:
This method is not very powerful and may only vary a statutory basic
condition to the extent permitted in terms of the BCEA. For example:
• An agreement to extend the period during which an employer has to
grant paid time off for overtime or work on Sundays;
• An agreement for a compressed work week;
• An agreement to reduce/dispense with a meal interval;
• An agreement regarding overtime, night work and work on public
holidays
4. Variations of the Basic Conditions of Employment by the Minister

of Labour:
a. Ministerial Determinations:
Section 50 - The Minister has the power to make a determination to replace
or exclude any of the minimum standards provided for in the BCEA in respect
of any category of employees or any categories of employers.
An employer or employers’ organisation may also apply for a Ministerial

determination. This form of determination is also referred to as an exemption.
The powers of the Minister are subject to some limitations. For example, a
ministerial determination in respect of ordinary hours of work may only be
made if the ordinary hours of work, rest periods and annual leave are on the
whole more favourable than the basic conditions of employment laid down in
the BCEA.
b. Sectoral Determinations:
A sectoral determination establishes basic conditions of employment for
employees in a sector (‘sector’ is defined in section 1 of the Act as being ‘an
49
industry or a service or a part of an industry or a service’) and an area (which

includes, according to section 1, ‘any number of areas, whether or not
contiguous’). A sectoral determination may set minimum terms and
conditions of employment, including minimum rates of remuneration as well
as minimum increases.
The powers of the Minister to make sectoral determinations are subject to

certain limitations mainly pertaining to child labour, working hours and night
work.
The Minister of labour may not make a sectoral determination covering

employees and employer who are bound by a bargaining council agreement.
A number of procedures must be followed before a Minister issues a sectoral

determination, namely:
• Conditions of employment in the sector and area must be investigated
by the NMW Commission;
• The report must be submitted to the Minister of labour for consideration
• The final decision regarding whether or not a sectoral determination
should be made is the decision of the Minister of Labour.
Sectoral determinations take precedence over the BCEA applicable within
those sectors.
The BCEA (or sectoral determination), Contract of Employment and

Collective Agreements:
The interaction between the BCEA, the contract of employment and collective
agreements may present practical problems. It may be difficult to ascertain
whether an employee’s terms and conditions of employment are governed by
the BCEA or the contract of employment or a collective agreement or by both
contract and collective agreement.
There are some guidelines to determine which source of terms and conditions
applies:
1. ascertain whether the BCEA (or any part of it) applies to the employee
in question. It is also necessary to consider whether the BCEA regulates
the specific issue under consideration;
2. consider the BCEA’s position in respect of employment contracts. A
minimum standard of employment contained in the BCEA will
constitute a term and condition of employment unless another law or
the contract of employment is more favourable to the employee than the
minimum standard. An employer and an employee cannot contract out
of the BCEA.
Section 23(3) of the LRA - provides that a collective agreement varies or

changes the employee’s contract of employment automatically (if it applies).
The fact that employers and employees cannot contract out of the BCEA does
not mean that they cannot vary or ‘escape’ the minimum standards of
50
employment as laid down in the BCEA through either a contract of

employment or a collective agreement.
There are rules of procedure to determine which source of terms and

conditions of employment applies – for example, a collective agreement may
regulate an issue which is also regulated by the BCEA and by the individual
employment contract. Which source takes precedence?
• Collective agreements and legislation usually take precedent over the
individual employment contracts while in some cases the collective
agreement may, depending on what they provide for (and whether they
are bargaining council agreements) take precedent over the BCEA
provided that the variation falls within the framework of the BCEA.
• If an employee is covered by a collective agreement and the terms of the
collective agreement are more favourable than the BCEA, the provisions
of the collective agreement usually apply and if the provisions of the
collective agreement are less favourable than the BCEA, the collective
agreement will only apply if the agreement falls within the framework
of the BCEA. If not, the BCEA will apply.
• A contract of employment may provide more favourable terms and
conditions than the BCEA as well as those set out in the collective
agreement.
• Some minimum standards of the BCEA may be varied/changed even if
less favourable to the employee. This may only be done in terms of a
bargaining council agreement and in some cases, even the employment
contract can change the minimum standards of employment.
When determining the employee’s actual terms and conditions of

employment, the following should be taken into account:
1. Does the BCEA/sectoral determination apply to the employee? And is
the term/condition in question regulated by the BCEA?
2. Is there an applicable bargaining council collective agreement
stipulating the minimum terms and conditions of employment? If so, it
must be determined whether or not the term/condition is regulated by
both the BCEA and the Bargaining council agreement. If so, whether
the matter is regulated more favourably to the employee in the
bargaining council agreement, the latter will take precedent. If the
bargaining council agreement’s provision is less favourable than the
BCEA provision, it must be considered whether or not the deviation is
allowed in terms of S49 of BCEA, if so, effect must be given to the
bargaining council agreement. If not, the BCEA takes precedence.
3. Is there an applicable enterprise/plant level collective agreement
regulating the issue? If so, bear in mind that the collective agreement
changes the contract of employment.
a. Is the contract, as changed byt the collective agreement, in line
with the BCEA/an applicable bargaining council agreement? If
so, the contract takes precedence. If not, because it is less
favourable than the BCEA or bargaining council agreement the
51
principles in 2 above apply to determine whether the BCEA or

bargaining council agreement takes precedence;
b. If the BCEA takes precedence, determine whether or not the
deviation in the collective agreement is allowed in terms of the
BCEA. If not, the BCEA takes precedence – but, if the bargaining
council agreement takes precedent over the BCEA the matter will
be resolved with reference to the bargaining council agreement
itself.
c. If the deviation in the collective agreement is not allowed, the
bargaining council agreement takes precedence.
4. If there is a contract of employment, but no plant/enterprise level
collective agreement, determine whether the contract is in line with
either the BCEA or an applicable bargaining council agreement if there
is one.
a. If the contract is more favourable, effect must be given to the
contract;
b. If the contract is less favourable, the BCEA applies and will
depend on whether or not the deviation is allowed in terms of S49
BCEA. If it is less favourable and the bargaining council
agreement applies, the question is whether the bargaining
council agreement allows for such deviation
Enforcement of the BCEA:

The enforcement and protection of the employee’s rights in terms of S78
provides that employees have the following rights:
1. To complain to a trade union rep/labour inspector about the employer’s
failure to comply with the provisions of the Act;
2. To discuss conditions of employment with fellow employees or anyone
else;
3. To refuse to comply with an instruction that is contrary to the
provisions of the Act;
4. To refuse to agree to any term or condition that is contrary to the
provisions of the Act;
5. To inspect records that the employer must keep in terms of the Act or
to request a trade union rep or labour inspector to inspect the records;
and
6. Participate in any proceedings in terms of the Act.
The BCEA provides for two types of enforcement of its provisions:

1. Administrative enforcement by the Department of Labour - provision is
made for the appointment of labour inspectors to promote, monitor and
enforce compliance with the BCEA and other labour legislation; and
2. Through the institution of legal proceedings by or on behalf of the
employee - the point of departure is S77(1) which provides that, subject
to the Constitution and the jurisdiction of the Labour Appeal Court, and
except where the BCEA provides otherwise, the Labour Court has
exclusive jurisdiction in respect of all matters in terms of the BCEA.
52
1. Labour Inspectors:
The powers of the labour inspectors include:
• to enter the premises of the employer;
• force disclosure of information;
• A labour inspector who reasonably believes that an employer is not
complying with the BCEA, may try to secure a written undertaking
from the employer to comply;
• If the undertaking is given and the employer fails to comply, the DG
may request that the CCMA make the undertaking an arbitration
award;
• The labour inspectors may issue a compliance order to an employer
who contravenes the BCEA
o The employer may challenge the compliance order at the CCMA;
o If there is no challenge and also no compliance order, application
may be made to have the compliance order made and award of
the CCMA in terms of S73
2. Legal Proceedings by or on behalf of the aggrieved employee:

In terms of S77(1A) the labour court has exclusive jurisdiction to grant civil
relief arising from a breach of provisions dealing with:
• The prohibited conduct of the employer
• Prohibition of work by children
• Regulations on work by children
• Prohibitions regarding the employment of children
• Prohibitions of forced labour
• Confidentiality of information
• Obstruction, undue influence and fraud
S77A furnishes the Labour court with wide powers:

• Reviewing the performance of a function provided for in terms of the
BCEA
• Making determinations on any matter concerning the contract of
employment such as
o Orders of specific performance
o Damages awards
o Compensation awards
• Imposing fines where applicable
S77(3) provides that the Labour court has concurrent jurisdiction with the
civil courts to hear and determine any matter concerning the employment
contract whether or not the contract has been changed by the BCEA.
Therefore, the employee has a choice to approach the civil courts or the labour
court for relief in respect of breach of contract.
The CCMA has jurisdiction over the following BCEA matters:

1. The employee earns less than the R205433.30 threshold and the
employee’s claim is for payment if an amount due in terms of the BCEA;
53
2. If there is an unfair dismissal case before the CCMA, the CCMA may
determine any claim for an amount owing to the employee in terms of
the BCEA;
3. If the employee alleges discrimination, the CCMA may also determine
any other BCEA contravention in conjunction with such case;
4. Disputes about written undertakings and compliance orders;
5. If a dispute is about entitlement to severance pay in case of a dismissal
for operational reasons.
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DISMISSALS
Protection of Employees in terms of Common Law

It is important to note that under the common law, employees were not
protected against unfair dismissal. The law was only interested with the
reason for the dismissal – that is, if the reason is found to be lawful an
employer could dismiss at any time without a need to give a prior hearing to
the employee so dismissed.
The development of the law of unfair dismissal

South Africa is a member of the International Labour Organisation (ILO). This
organisation sets out labour standards that are contained into conventions
that all member states must comply with. An example of ILO conventions
dealing with dismissals is the Termination of Employment Convention 158 of
1982. Not only does this convention provide pre-dismissal procedural
guidelines but it also sets out three grounds upon which an employer may
rely to dismiss an employee. These grounds are:
• misconduct,
• incapacity and
• operational requirements.
A dismissal will only be fair if the reason to dismiss is one of the three grounds
indicated above and the employer has complied with the pre-dismissal
procedure. In essence, an employee must be given an opportunity to be heard
before dismissal. This principle is contained in the audi alteram partem rule.
Unfair dismissal in term of the LRA

S185(a) LRA: every employee has the right not to be unfairly dismissed by
the employer.
If an employee alleges that he has been unfairly dismissed, he must prove

that he:
• is an employee (only employees are protected by the LRA)
• has been dismissed (ito S186(1))
The employer must then prove that the dismissal was not unfair by proving:
• substantive fairness (that there was a fair reason for the dismissal)
• procedural fairness (that a fair procedure was followed)
The Definition of dismissal:

A dismissal in terms of S186(1) includes any one of the following:
• Where the employer terminates the contract with or without notice
• An employee who reasonably expected the employer to renew a fixed
term contract of employment on the same or similar terms, but offered
to renew on less favourable terms, or did not renew it
• An employer refused to allow an employee to resume work after she
took maternity leave in terms of any law, collective agreement or her
contract of employment
55
• an employer dismissed a number of employees for the same or similar

reasons and offered to re-employ one or more of them and refused to
employ another (selective re-employment).
• An employee terminated her contract of employment with or without
notice because the employer made continued employment intolerable
for the employee;
• an employee terminated a contract with or without notice because the
new employer, after transfer in terms of S197 or S197A, provided the
employee with conditions or circumstances at work that are less
favourable to the employee than those provided by the old employer.
It is not always easy to establish whether dismissal has taken place. Where
dismissal exits, the employer must prove that, it is fair. Remember, fairness
of dismissal is dependable on existence of two things namely, a valid reason
and the compliance with a pre-dismissal procedure.
Termination of Employment by the Employer with or without notice

This type of dismissal has the following elements:
• termination by the employer

• of a contract of employment
• with or without notice
If an employee commits serious breach of contract, the employer may

terminate the contract summarily (immediately & without notice), in which
case, the employee forfeits his notice, however, he must still be given an
opportunity to be heard.
Where the termination of employment was with notice, the period of notice,
even if provided for in terms of the employment contract must equal to/exceed
the minimum period prescribed in the BCEA.
It is always important to note that even though a termination of employment

is lawful in terms of common law, the termination whether on
notice/summary must be fair in terms of the LRA and the employer is subject
to enquiry as to the fairness thereof.
In National Union of Mineworkers v CCMA an employee was found guilty of

culpable homicide and sentenced to imprisonment. While in prison the
employer informed the employee that as he was unable to render his services,
the employee had repudiated his contract of employment, which repudiation
the employer accepted. The LC held that the employer’s acceptance of the
employee’s repudiation amounted to dismissal in term of section 186(1)(a) of
the LRA.
In Smit v KitKat the court found that the employer’s refusal to allow the
employee to resume work amounted to dismissal even though the employer
did not formally dismiss the employee.
56
In Vulkenberg Hospital the hospital terminated the services of a worker

whose refugee status was about to expire. The court held that based on the
existence of an employment relationship, the employee had been dismissed.
Termination by the Employee (resignation)

In cases such as these an employee may claim to have been dismissed while
the employer claims that the employee resigned. Therefore, is not a dismissal
in terms of section 186(1)(a).
To determine whether there was a dismissal or a resignation the court must

look at the intention of the parties. The LC held that a resignation is a
unilateral termination of the contract of employment by the employee. The
courts have held that the employee must indicate a clear and unambiguous
intention not to go on with the contract by words or conduct that would lead
a reasonable person to believe that the employee had such an intention.
Notice of termination of employment given by an employee

GR: Resignation is a final and unilateral act once given, cannot be withdrawn
without the employer’s consent. However, in Chemical Energy Paper
Printing Wood the LAC said that despite the GR the court must determine
the intention of the parties when deciding whether there has been a
resignation. In this case the employee returned to work the day after resigning
in the heat of the moment and the refusal by the employer to accept the
employee’s retraction of resignation was held to be a dismissal.
In Coetzee an employee who was about to face disciplinary action claimed to
have resigned with immediate effect and that the employer has no jurisdiction
to proceed with the disciplinary enquiry. The court confirmed the following:
• the employment contract only comes to an end once the resignation
takes effect i.e. end of the notice period.
• If an employee wrongfully purports to resign without notice, the
employer is entitled to exercise its contractual rights during the notice
period to either accept the breach and claim damages or claim specific
performance.
The court further held that there was nothing preventing the employer from
implementing disciplinary proceedings against the employee during the notice
period.
In Naidoo and Another v Standard Bank two employees were charged with
gross misconduct and dishonesty and in their attempt to avoid their
disciplinary hearings they resigned with immediate effect. The court held that
the resignation with immediate effect brought the employment relationship to
an end therefore, an employer who wishes to discipline an employee after
resignation with immediate effect must 1st seek an order for specific
performance in order to hold the employee to his notice period.
57
The position regarding when a contract of employment with immediate effect

takes effect remains uncertain but nothing prevents an employer who is
contacted for a reference to disclose that the employee had resigned at a stage
when he came to know that disciplinary steps were being initiated against
him.
Termination before commencement of employment

When does employment commence?
1. Is it when the contract is concluded; or?
2. When the employee actually starts working?
In White Head the LC held that a person who has concluded a contract of
employment is not an employee until he actually starts working/rendered his
services.
In Jack v DG Department of Environmental Affairs, the employee received
a letter of appointment and had resigned from his previous position. A day
before he was to start work, he was informed that the offer of appointment is
revoked due to an administrative error. The employee sought an urgent
interdict for specific performance of the employment contract. The LC held
that once the parties have reached an agreement on all the essential terms of
employment the contract is binding and enforceable.
In Wyeth the employer and employee concluded a written contract on 15
March which provided that the employee would start work on 01 April. Before
the employee commenced working the employer informed him that it was no
longer prepared to employ him. The employee claimed that he had been
unfairly dismissed. The LC held that the employment relationship commences
upon the conclusion of a valid contract of employment.
Desertion or Abscondment by the employee

Desertion = employee indicates either expressly or by implication, that
he/she did not intend returning to work for the employer.
Abscondment = when an employee has been absent from work for such a
period that it can be inferred that the employee has no intention of returning
to work.
In both cases the employee is in breach of his contract of employment.
The question that then arises is: “when does a dismissal take place?”. This
depends on who terminates the contract:
1. The employee when he leaves his employment without
explanation/reason? Or
2. The employer when he accepts the employee’s repudiation of the
contract before it is terminated? In this case, it is the employer’s action
that terminated the contract and this action constitutes a dismissal in
terms of the LRA.
In SABC v CCMA the LC distinguished between the desertion and absence

from work and held that although the desertion is breach of contract, same
does not necessarily bring the contract of employment to an end. Only when
58
the employer accepts the employee’s repudiation could it be said that there
was a dismissal.
In Dyasi the LAC held that if the employee cannot be traced the employer
may have no other option but to accept the employees breach. Therefore, the
court said that it could be argued that the employee terminated the contract
not the employer BUT if the employer had a choice and choses to terminate
the contract it would constitute a dismissal.
In SA Transport and Allied Workers Union obo Langa the court held that
desertion requires an element of intention not to work therefore, it is not a
form of misconduct like absenteeism and automatically terminates a contract
of employment.
Termination by operation of law – section 17(3)(a)(i) Public Services Act

Sometimes an employment relationship is terminated neither by the employer
nor the employee but by operation of law = Automatic Termination. Example
– section 17(3)(a)(i) of the Public Services Act provides that an employee who
is absent without permission for more than 1 calendar month will be deemed
to have been dismissed for misconduct. Employment terminated in this
manner does not constitute a dismissal in terms of section 186(1) of the LRA.
Contractual automatic terminations

Sometimes employers try to avoid liability for unfair dismissals by providing
in their contracts that employment will terminate automatically if a certain
event takes place.
In SA Post Office v Mampeule the employee was removed as director of the

Post Office, and the employer terminated his employment. The articles of
association of the Post Office stated that when a director ceased to hold office,
his contract terminated automatically and simultaneously, and the
employee’s contract contained a similar clause. The employer argued that the
employee had not been dismissed because the termination was compelled by
the articles of association and had been agreed to in the contract. The court
rejected the employer’s argument and held that it was contrary to public
policy and not possible in law. The employee had a right not to be unfairly
dismissed and could not contract out of this right - a contract cannot provide
for the automatic termination of a contract of employment.
This type of clause has been used by the TES assigning an employee to work
for a client. In SA Tawu obo Dube the LC confirmed that the protection
against unfair dismissal is a fundamental right in terms of section 185 and
that the employees cannot contract out of this protection through automatic
termination clauses or otherwise. Such contractual provision has in most
cases been considered contrary to public policy, unconstitutional and
unenforceable.
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In Enforce Security Group the LAC held that not all automatic termination
clauses are invalid and held that certain factors should be considered,
namely:
1. The precise wording of the clause;
2. The context of the entire agreement;
3. The relationship between the fixed term event and the purpose of the
contract with the client;
4. Whether it is left to the client to pick and choose who is to render the
service under the service agreement;
5. Whether the clause is used to unfairly target a particular employee by
either the client or the employer; and
6. Whether the event is based on proper economic and commercial
considerations.
In this case the employer had contracted to provide security services to a

Shopping Centre. The contracts of employment with the employees hired to
perform the security services contained a clause in terms of which the
employees acknowledged that their employment was dependent on the
continuation of the contract between the employer and the Shopping Centre.
The LAC decided that such a fixed term eventuality contracts between the
TES and its employees terminated upon termination of the contract between
the TES and the client and does not amount to a dismissal.
In Piet Wes Civils CC, the court considered whether an automatic

termination clause rendered the contract to be of a fixed term. The LAC found
that the work done for the client was not of a limited duration and therefore
the contract is not a fixed term contract. Therefore, with regards to section
198B, the purported termination of the contracts in terms of the automatic
termination clause amounted to dismissal.
Failure to renew a fixed term contract or retain an employee after the

expiry of a fixed term contract – section 186(1)(b)
Although it is possible to validly conclude a fixed term contract of
employment, the expiry of such contract may still constitute a dismissal. If
the employee reasonably expected the employer to:
i) Renew a fixed term contract on the same/similar terms but the
employer offered to renew on less favorable terms or did not offer to
renew it; or
ii) Retain the employee in employment on an indefinite basis but
otherwise on the same/similar terms but the employer offered to retain
the employee on less favorable terms or did not offer to retain the
employee at all.
In terms of common law, a fixed term contract of employment terminates

when the period as agreed in the contract comes to an end or when the project
is completed.
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• Section 186(1)(b)(i) – Reasonable expectation to renew a fixed term

contract
If the employer fails to renew the contract or does renew it but on less
favorable terms it would constitute a dismissal. Employees bear the onus of
proving that the expectation of renewal was reasonable. Reasonableness
involves an objective test to determine whether a reasonable employee in the
current circumstances expected the employer to renew the fixed term contract
on the same/similar terms
The reason for non-renewal is important:

In Bronn VUCT: the renewal of the contract was dependent upon the
continued funding. The CCMA stated that the existence of the reasonable
expectation had to be determined in light of the specific contractual provisions
of each fixed term contract as well as the context in which the contracts were
entered into. The employer must have created the expectation in the following
ways:
1. By making representations to the employee that the contract would be
renewed;
2. By assuring the employee that the contract would be renewed – Prior
promise; or
3. Through past renewals of the fixed term contract.
In Kemp and Rhodes University: the assurances relied on were given by

someone without the necessary authority therefore, there was no reasonable
expectation and therefore, no dismissal.
In Independent Municipal and Allied Trade Union: it was held that the
wrong termination date appearing on what was clearly a 5-year fixed term
contract could not give rise to a reasonable expectation of renewal/extension
of the fixed term contract. In this case a subsidized education agreement
requiring the employee to remain in the employer’s service for a period
exceeding the term of his fixed term contract was held to not have created a
reasonable expectation of renewal.
Each case is considered on its own merit.
The date of dismissal is the date on which the employer notified the employee
of the intention not to renew the contract or the date on which the employer
offered the renewal on less favorable terms.
• Section 186(1)(b)(ii) – Reasonable expectation of a permanent

position
In some cases, employees who have been employed in terms of a series of fixed
term contracts will not have an expectation that their fixed term contract will
be renewed but rather that they will be employed on a permanent basis for an
indefinite period of time.
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In University of PTA the LAC held that section 186(1)(b) did not cover a
situation where an employee had a reasonable expectation of permanent
employment.
Today section 186(b)(ii) provides that an offer to retain an employee who had
previously been employed in term of a fixed term contract on less favorable
terms or not to make such an offer amounts to a dismissal where the employee
had a reasonable expectation that he/she would be offered an indefinite
contract on the same/similar terms as the fixed term contract.
Dismissal for reasons relating to pregnancy

Before, there was little protection for women and children in Labour. Today
section 186(1)(c) of the LRA as well as section 25 of the BCEA provides
considerable security of employment for the duration of a female employee’s
maternity leave.
Example – if an employee is not permitted to return to work after being on

maternity leave it amounts to a dismissal in terms of section 186(1)(a). section
187(1)(e) of the LRA hold that a dismissal for any reason relating to pregnancy
is automatically unfair. In these cases, there must be a causal link (nexus)
between the existence of dismissal and pregnancy.
Selective re-employment – section 186(1)(d)

Involves the dismissal of a number of employees for the same/similar reasons
and thereafter offering re-employment to 1/more of them while refusing to re-
employ the others.
Example – a group of employees is dismissed for participating in an

unprotected strike and the employer subsequently offers re-employment to all
except 3 employees who were active trade union members. Or, an employer
faced with difficult financial conditions dismisses a group of employees based
on its operational requirements and at a later stage offers to re-employ some
but not all of the employees it had previously dismissed.
Before employees can be dismissed in this way, they must have rendered their
services e.g.:
• Employer dismissed 50 employees for participating in an unprotected
strike (1st dismissal);
• Upon dismissal of 50 employees on 1 July they were told to return on
the 8th July to reapply for their position;
• All 50 previously dismissed employees except A + B reapplied;
• The employer re-employed 40 of the previously dismissed employees;
and
• Those previously dismissed employees that were not re-employed
except for A + B will be able to claim that they had been dismissed.
In summary – the elements for selective re-employment include:

1. A previous dismissal of more than 1 employee;
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2. Those employees must have been dismissed for the same/similar

reasons;
3. An offer of re-employment was made to some; and
4. There was a refusal to re-employ them and the others.
This type of dismissal also occurs if an employer invites a group of former

employees to apply for positions but deliberately refrains from informing
others who are entitled to be considered. Selective re-employment is NOT
always unfair, the question of whether there was a dismissal and whether the
dismissal was unfair is 2 separate enquiries.
The onus is on the employer to show that there is a legit and fair basis for
selecting to re-employ some of the previously dismissed employees and not
the others – failure to discharge this onus results in the dismissals being
rendered unfair.
The date of dismissal is the date on which the employer 1st refused to re-
employ the employees.
Dismissal in terms of section 186(1)(d) is NOT the same as the unfair labour
practice in terms of section 186(2)(c) (the failure /refusal by an employer to
reinstate/re-employ an employee in terms of any agreement) but for an
employer’s conduct to fall within the scope of ULP the mere breach of an
agreement to re-employ is sufficient and there need not be shown that some
employees were re-employed while others were not. Section 186(1)(d) requires
no agreement in order for it to take effect.
Constructive Dismissal – section 186(1)(e)

The essential features of constructive dismissal are that the employee
terminated employment with or without notice but the termination was not
entirely voluntary but is caused by the actions/omissions of the employer
making continued employment intolerable for the employee.
In Solid Doors (Pty) Ltd: the court held that there are 3 requirements for
constructive dismissal:
1. The employee must have terminated the employment.
2. The reason for the termination must have been because continued
employment had become intolerable for the employee; and
3. It was the conduct of the employer that made continued employment
intolerable.
All three requirements must be present before the dismissal will be considered
constructive dismissal. The test for intolerability is objective and the employee
must show that the facts upon which his claim is based actually existed at
the time he terminated the contract and that they could reasonably be seen
to justify a finding of intolerability.
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In Solidarity obo Van Tonder: the LAC described the word intolerable as a
situation that is more than can be tolerated or endured or insufferable.
The intolerable circumstances created by the employer must be the proximate

cause of the resignation – if not, it is not a dismissal (Niland v Ntabeni)
If the employee terminates by giving notice and must work during the period
of notice it may be difficult for him to argue that continued employment is
intolerable. Similarly, an employee who claims to have been constructively
dismissed will find it difficult to persuade the arbitrator that continued
employment was intolerable if he seeks reinstatement/re-employment as a
remedy.
In some cases the court has stated that the employees termination must be
the last resort after all other reasonable alternatives have been exhausted and
the employee has no other choice but to resign e.g. the employee had lodged
a grievance to try remedy the situation, however in Strategic Liquor
Services, the CC appears to have rejected this approach and the overriding
test remains that of intolerability of continued employment and this may be
the case even if the employee had a choice other than resignation.
Examples of the employer’s intolerable conduct:

• Physical/mental abuse;
• Harassment;
• Demotion;
• A unilateral change to T’s and C’s of employment;
• Forced transfers;
• Unfounded allegations of misconduct; or
• Unfair disciplinary action short of dismissal.
In the event that an employee resigns in an attempt to avoid disciplinary

action it is unlikely that he will succeed in a claim for constructive dismissal.
To succeed with a claim of constructive dismissal the employee must resign
within a reasonable time of the trigger which may have been a once-off
outrage/the last straw following an earlier string of events.
In Agricultural Research Council: it was held that the fact that the
employee continued to work for 5 months after the employers alleged
oppressive conduct, indicated that the working environment was not
intolerable.
In Yona: the employee was booked off from work due to severe depression
and general anxiety disorder as a result of her working conditions. She was
not given extended sick leave, but she did not apply for it and her absence
was processed as unpaid leave. The employee resigned on 1 months’ notice
and claimed constructive dismissal. The LAC found that the resignation was
as a result of the employers conduct and the employer’s failure to assist the
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employee who was suffering from a serious mental condition and who was in
dire need of assistance rendered the employment relationship intolerable.
Note – constructive dismissal is a form of dismissal and is not always unfair

e.g. substantively fair constructive dismissal based on operational
requirements.
Constructive dismissal, Sexual Harassment and Vicarious Liability

Genuine cases of constructive dismissal:
Pretorius v Britz – court held that where an employee was subjected to

continued harassment, she will be deemed to have been constructively
dismissed if she resigns in desperation. In this case the constructive dismissal
is automatically unfair dismissal because sexual harassment is a form of
unfair discrimination (s 187(1)(f) LRA). This could lead to the employer being
liable on the basis of unfair discrimination in terms of the EEA (in Dial Tech
CC v Hudson and Another the employee resigned and successfully claimed
constructive dismissal and unfair discrimination)
In Grobler the employee succeeded on the basis of common law in holding

her employer vicariously liable for sexual harassment suffered at the hands
of her manager and was awarded delictual damages.
Section 197 and 197A Transfers of employment contracts (s186(1)(f))

In terms of common law an employer acquiring a business as a going concern
not obliged to take over the employment contracts of employees from the old
employer. This then led to the termination of the employment contracts and
if the employer wished to continue business with the same workers, he had
to conclude new contracts of employment with them.
In terms section 197 and 197A greater protection is given to protect the rights
of these vulnerable employees. This section provides for the rights of
employees to have their employment contracts transferred by operation of law
in the event of a business being transferred as a going concern.
The aim of section 197 is to:

1. Facilitate the transfer of business as a going concern;
2. Promote employment security; and
3. Prevent unfair dismissals during such transfers.
Section 186(1)(f) it is a dismissal if an employee terminates employment with

or without notice if the new employer after the transfer in terms of section
197/197A provided the employee with conditions that are substantially less
favourable to the employee than the previous employer.
There are a number of factors to be met before the employee will be able to
establish the existence of a dismissal in terms of section 186(1)(f):
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1. The transfer concerned must fall within the ambit of section 197 – sale of
business (whole/part) as a going concern;
2. The conditions/circumstances provided by the new employer must be
substantially less favorable compared to the previous employer; and
3. The employee’s resignation must be because of the changed
circumstances/conditions that are substantially less favorable.
All three requirements must be met to establish the existence of a dismissal,

if not, the employee’s resignation is valid. The onus of proving that the
conditions/circumstances is less favourable rests on the employee. Once the
dismissal is established by the employee, the onus shifts to the employee to
prove that the dismissal is fair, to do so, the employer must present evidence
to break the causal link between the transfer and the dismissal. Failing which,
the dismissal will also constitute an automatically unfair dismissal in terms
of section 187(1)(g).
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AUTOMATICALLY UNFAIR DISMISSAL (AUD)
With this type of dismissal the employer cannot defend the dismissal, except
in two cases which are:
1. inherent requirements of a job; and
2. retirement age.
Employees are therefore protected and cannot be dismissed based on any of
the reasons listed in the section. The protection in this regard relates to some
of the fundamental rights protected by the Constitution.
This provision of the LRA therefore protects constitutional values and Ubuntu
principles relating to human dignity and fairness.
Automatically unfair dismissals in terms of international labour

standards:
The ILO convention 158 of 1982 not only protects and promotes employees’
rights and freedoms but regard the dismissal of an employee for exercising
any of his /her rights or freedoms, an automatically unfair dismissal. The
concept automatically unfair dismissal is now adopted by the LRA where it
also enjoys an express provision.
Examples of AUD in terms of Article 5 of Convention 158 of 1982 of ILO –

Dismissal for:
• union membership/participation in union activities outside of working
hours/with consent of employer within working hours;
• seeking office as/acting/having acted in the capacity of a worker’s
representative;
• the filing of a complaint/the participation in proceedings against an
employer involving an alleged violation of laws/regulations/recourse to
competent administrative authorities;
• race, colour, gender, sex, marital status, family responsibilities,
pregnancy, religion, political opinion, national extraction or social
origin;
• absence from work during maternity leave.
The Constitution:
The concept of AUD endorses the fundamental rights enshrined in the Bill of
Rights of the constitution. Namely:
• equality
• dignity
• fair labour practices
The state may bot directly or indirectly discriminate against anyone unless
justified in terms of affirmative action measures.
S23 of the Constitution provides for the right to fair labour practices which
includes the right to:
1. join and participate in the activities of trade unions or employers
organisations
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2. bargain collectively
3. strike
Automatically Unfair Dismissals in terms of the LRA:

Section 187 of the LRA - defines automatically unfair dismissal as where
the reason for dismissal is –
(a) that the employee participated in or supported, or indicated an intention

to participate in or support, a strike or protest action that complies with
the provisions of Chapter IV;
(b) that the employee refused, or indicated an intention to refuse, to do any
work normally done by an employee who at the time was taking part in a
strike that complies with the provisions of Chapter IV or was locked out,
unless that work is necessary to prevent an actual danger to life, personal
safety or health;
(c) a refusal by employees to accept a demand in respect of any matter of
mutual interest between them and their employer;
(d) that the employee took action, or indicated an intention to take action,
against the employer by—
(i) exercising any right conferred by this Act; or
(ii) participating in any proceedings in terms of this Act;
(e) the employee’s pregnancy, intended pregnancy, or any reason related to
her pregnancy;
(f) that the employer unfairly discriminated against an employee, directly or
indirectly, on any arbitrary ground, including, but not limited to race,
gender, sex, ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief, political opinion, culture, language,
marital status or family responsibility;
(g) a transfer, or a reason related to a transfer, contemplated in section 197
or 197A; or
(h) a contravention of the Protected Disclosures Act, 2000, by the employer,
on account of an employee having made a protected disclosure defined in
that Act.
Despite subsection (1)(f)—
(i) a dismissal may be fair if the reason for dismissal is based on an inherent
requirement of the particular job;
(j) a dismissal based on age is fair if the employee has reached the normal or
agreed retirement age for persons employed in that capacity.’
Onus in AUD:
Where an employee alleges to have been automatically and unfairly dismissed,
the employer may rebut such allegation by proving that the dismissal is not
an automatically unfair dismissal but rather a dismissal for misconduct,
operational requirements or incapacity and that, it was fair. In other words,
employer cannot argue that an automatically unfair dismissal was fair except
where section 187(2)(a) of the LRA above is applicable. That is, if the dismissal
is based on inherent requirement of the job or employee has reached
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retirement age; the employer may defend that by arguing that it is a fair
dismissal.
S192 LRA determines that the onus is on the employee who has to do more
than merely establish the existence of a dismissal as per S192(1).
In de Beer: the court held that the employee has an evidential burden to
provide evidence which is sufficient ‘to raise a credible possibility that an AUD
has taken place’. Thereafter, the onus shifts to the employer to prove that the
dismissal is not AUD.
An automatically unfair dismissal carries a more severe maximum penalty

than an ordinary unfair dismissal, namely 24 months’ salary
The Dominant or Proximate Cause:

Where there appears to have been more than one reason and thus difficult to
establish which of those reasons the employer had relied on to dismiss an
employee; the courts had developed a twofold inquiry to determine the real
reason. The inquiry consists of a factual and legal cause. Eventually, the court
will regard the most dominant reason as the cause of dismissal.
• The first enquiry is into the real reason for the dismissal:
In SA Chemical Workers Union v Afrox: the LAC held that in order for the
dismissal to be AUD, participation in the protected strike must have been the
proximate cause of the dismissals.
This is a question of Causation:
1. Factual Causation: would the dismissal have occurred if there was no
participation in the strike?
• If yes, the dismissal is not AUD;
• if no, determine the legal causation;
2. Legal Causation: was the participation/conduct of the employees the
main/dominant/proximate/most likely cause of the termination?
In Banking Insurance Finance and Allied Workers Union v Mutual and

Federal: the LAC held that if the dominant reason for the dismissal is the
misconduct of the employee, the dismissal is not AUD.
The trade union rep, while representing a union member, misled the CCMA
commissioner during an unfair dismissal case and was subsequently
dismissed.
The LAC found that the trade union rep’s behavior while participating in his
duties, and not the fact that he was fulfilling in his trade union duties, that
was the main reason for his dismissal therefore the dismissal was not AUD.
1. Infringement of Freedom of Association:

A dismissal will be automatically unfair if an employer dismisses an employee
and the reason therefore is related to the employee’s trade union membership
or activities.
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Freedom of association is a fundamental right and is protected by S18 & S23

of the Constitution. This protection is further extended by S5 of the LRA –
employees have the right to form, join, belong to and participate in the lawful
activities of a trade union.
The essence of the LRA is to prevent to victimization of employees for
exercising the fundamental right to freedom of association.
In Elliot International (Pty) Ltd: employees were dismissed for alleged
operational reasons soon after they joined the trade union. The court found
that the real reason for the dismissal was the fact that they had joined the
trade union and therefore the dismissal = AUD.
All employees, including senior managers, enjoy the right to freedom of

association. If a senior manager is also a member of a trade union, there is a
potential for a conflict of interests, since a managerial employee may have
access to information that can harm the employer if divulged to the union. At
the same time, he cannot be dismissed when exercising the right to freedom
of association.
IMATU & others v Rustenburg Transitional Council: Although a senior
manager cannot be prevented from joining a union, he must act in good faith
towards his employer, and in so doing, the employee must be careful in
balancing the interests of the union and the employer.
2. Participation in a Protected Strike/Protest:

Employees are protected for their participation in or support of a protected
strike or protest action (certain provisions must be complied with before
strikes and protest action will be protected).
Exceptions: Employees may be dismissed during a protected strike in cases

of:
• misconduct
• criminal activity is never condoned: any assaults or damage to the
employer’s property may justify dismissal for misconduct.
• operational reasons.
In SA Chemical Workers Union v Afrox: the employees went on strike when
the employer introduced a new shift system. The employer claimed that the
dismissals were for operational reasons.
The Court found that the circumstances for the dismissal for operational
reasons must be the proximate cause.
In National Union of Mineworkers v Dorbyl: the LAC held that criminal
activity is never condoned irrespective of whether the strike is protected.
Therefore, any criminal conduct (assault on co-worker) or damage to the
employer’s property during a protected strike will justify dismissal for
misconduct.
3. Replacement Labour:
Ordinarily, the employer’s production line is put to a halt during the strike,
which means the longer the strike takes the more the employer loses
production and business opportunities. In an attempt to avoid huge losses
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during strikes, employers were seen resorting to what is called replacement

labourers, which may be people within or outside the organization, who do
the work usually done by employees on strike. But replacement labour may
also be used where a complete stoppage of organisational operations may
endanger lives, personal safety or health and that of the other. Generally, the
use of replacement labour undermines the process of collective bargaining. It
is regulated in terms of section 76 of the LRA. Co-employees of those engaged
in a strike may not be dismissed for refusing to do the work usually done by
those on strike otherwise, the dismissal will constitute an automatically
unfair dismissal.
4. The Employee’s refusal to accept a demand in respect of matters

of Mutual Interest – S187(1)(c):
An employer who wants to change the T’s and C’s of employment in the face
of the employee’s opposition to the change has 2 potential actions:
a) The employer may lock out the employees in order to attempt to
compel them to agree; or
b) The employer may decide to dismiss the employees who are
refusing to agree to the changes and employ persons who are
prepared to agree to work in accordance with the new T’s and C’s
(= dismissal for operational requirements of the business)
This is an automatically unfair dismissal, because the employer is using

bullying tactics against the employee by threatening him with dismissal if he
does not agree to the employer’s demands.
Terms and conditions of employment may only be changed by negotiation and

an employer is prohibited from threatening employees with dismissal so as to
get them to agree to changes.
In Fry’s Metals, the employer sought to change the shift system but the trade
union refused to agree to the change despite several attempts by the employer
to negotiate with it. As the union would not accept the change, the employer
decided to dismiss the employees for operational reasons and argued that it
was an operational requirement that the workers had to be willing to work on
the new shift system. The purpose of the dismissal was not to force the
employees to accept the new shift system, but rather to get rid of the existing
employees and to find new employees who would be willing to work in terms
of the new system. The court held that the employer’s demand was final and
was not just a threat and held that the dismissal was fair on the basis of the
operational requirements of the employer.
NB: Before: it was an automatically unfair dismissal if the employees

refused to accept a demand in respect of any matter of mutual interest
between the employee and the employer and were dismissed for that reason.
The employer merely had to prove that the dismissal was not to compel the
employees to accept the demand in order to escape liability.
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Now: The LRA now not only looks at the intention of the employer, but
rather the reaction of the employees.
The amendment to S187(1)(c) was considered by the LAC in National Union

of Mineworkers of SA v Aveng Trident Steel: the employer, faced with
economic difficulties, gave notice of possible retrenchments in terms of
S189(3) LRA. One of the proposals made to minimize the need to retrench,
was to restructure the workforce to widen the scope of existing job
descriptions.
The trade union refused to agree to the restructuring and the employer
proceeded with the retrenchments.
The trade union challenged the fairness of the dismissals arguing that they
were AUD.
The LAC applied the test to determine the proximate cause and found that
the employer’s primary purpose was to restructure for operational reasons to
ensure long term survival and found that the dismissals we not AUD.
In Jacobson v VITALAB: the LC considered the wording of the section and

found that the purpose of the section was to protect the integrity of the
collective bargaining process therefore it did not apply to dismissal disputes
involving individual employees.
5. Exercise of rights - S187(1)(d):

During the employment relationship just like any other relationship, parties
are prone to conflicts, which may require relevant authorities such as the
CCMA and courts to resolve. Employer may not dismiss an employee because
the latter has referred the matter to the CCMA or the court. Such a dismissal
will amount to an automatically unfair dismissal.
The purpose of this section is to allow employees to exercise those rights

without fear of intimidation or dismissal.
It is possible for the employer to put forward another fair reason for the
dismissal e.g. misconduct, which therefore must be the proximate reason for
the dismissal. If not, it = AUD (Kroukam)
In the National Lotteries Board: the CC held that trade unions have the
right to determine their own strategies and tactics in dealing with the
employer concerning grievances, complaints, disputes of rights or disputes of
interests as well as how to handle consultations, negotiations, discussions
and collective bargaining with the employer all of which fall within the union’s
lawful activities in terms of the LRA. Therefore any dismissal of employees for
engaging in such activities = AUD in terms of S187(1)(d).
6. Pregnancy – S187(1)(e):
If an employee alleges that she has been unfairly dismissed because of a
reason relating to her pregnancy, she will have to prove
(1) that she was an employee and
(2) that she had been dismissed and
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(3) that the dismissal was related to her pregnancy or intended pregnancy.
In Mashava: a candidate attorney did not disclose her pregnancy to the

employer during the interview. When she was appointed and informed the
employer that she was pregnant, the employer dismissed her on the basis that
she had been deceitful by the non-disclosure during the interview. The court
held that although deceit could warrant dismissal, failure to disclose
pregnancy does not amount to deceit.
In Swart: an employee was harassed and victimised because she had not
disclosed her pregnancy to the employer during the interview. After staring
employment, it came out that she was pregnant and the employer started
reprimanding her for poor work performance and she was dismissed for
misconduct. The court held that the employee had shown that fact that she
had not disclosed her pregnancy was the main reason for her dismissal and
that this rendered the dismissal automatically unfair. The court confirmed
that there was no obligation on an employee to disclose her pregnancy.
If an employee lies about her pregnancy it does not amount to dishonesty

since she is not obligated to disclose personal information. S6 EEA prohibits
discrimination on the ground of pregnancy.
In Victor v Finro Cash & Carry: after finding out of the employee’s
pregnancy, the employer reduced her salary by R1000/month and changed
her job description.
The employee resigned and claimed constructive dismissal.
The court found that the employee had bee constructively dismissed on the
grounds of her pregnancy therefore = AUD
In de Beer: the LC found that the dismissal of a mother, when she requested
an extension of her maternity leave to look after her colic twins, was
sufficiently linked to the pregnancy to qualify as a reason related to the
pregnancy. Therefore = AUD inspite of an agreement in terms of which an
employee waives her rights to minimum maternity leave in terms of the BCEA
(which is not permitted and is therefore null and void)
Any agreement in which an employee undertakes not to fall pregnant is

unconstitutional (Wallace v Du Toit)
In Ekhamanzi Springs (Pty) Ltd v Mnomiya: the employee was refused

entry to the premises of the mission station on which the employer’s factory
was based because she was pregnant and unmarried.
The LAC held that the LRA protects all female pregnant employees against
dismissal regardless of their marital status.
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7. Discrimination – S187(1)(f):
Unfair Discrimination and Onus:

A dismissal, if based on unfair discrimination against an employee, whether
directly or indirectly, on any arbitrary ground, including, but not limited to
race, gender, sex, ethnic or social origin, colour, sexual orientation, age
disability, religion, conscience, belief, political opinion, culture, language,
marital status or family responsibility, will be automatically unfair.
Some discretion is allowed if the reason for the discrimination is based on:
a) the inherent requirements of the particular job, or
b) age, if the employee has reached the normal or agreed-to retirement age
for persons employed in that capacity.
S187(1)(f) should be read with S6 Employment Equity Act (EEA) and S9

Constitution. However, each of these sections serve a different purpose.
The EEA gives effect to S9 of the Constitution but the LRA deals specifically
with alleged discriminatory dismissals – one difference between S6 EEA and
S187(1)(f) of LRA is the cause of action.
• S6 EEA is used when the cause of action is the impairment of one’s
dignity in terms of a policy or practice;
• S187(1)(f) arises from dismissal albeit unfair discrimination.
Therefore, because the reason for the dismissal is unfair discrimination it =
AUD and therefore an employee can claim both unfair discrimination and
AUD.
Another important difference between S6 EEA and S187(1)(f) LRA is the

justification of grounds/defences provided for. For example, S6 EEA provides
for Affirmative Action as a defence for unfair discrimination but this is not
provided for in terms of S187(2) LRA.
Specific Instances of Discrimination:
a) Racial Discrimination:
Dismissal on the basis of race = AUD
Onus: The employee is to provide sufficient evidence to raise a credible
possibility that his dismissal falls within the scope of S187(1)(f), thereafter,
the onus shifts to the employer to disprove this allegation.
In Raol Investments (Pty) Ltd: the SCA cautioned against an assumption
that a dismissal was racially motivated merely because the employees
belonged to different racial groups.
In Bakulu: the LC found that there was insufficient evidence to suggest a link
between the employee’s race and his dismissal. Therefore, it was not AUD.
In September and others v CMI Business Enterprise CC: the LC held that
it was satisfied that the employees had been constructive4ly dismissed as they
were forced to work under intolerable conditions involving racial abuse and
racially discriminatory treatment. Therefore = AUD in terms of S187(1)(f).
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In McInnes v Technikon Natal: The LC held that an employer’s affirmative

action policy is not a defence as affirmative action does not justify dismissal.
b) Gender Discrimination:
In Alkins v Datacentrix: the employee, after accepting an offer of
employment, advised the employer that he was in the process of undergoing
gender reassignment from male to female.
The employer argued that his failure to divulge this information during the
interview = misrepresentation and dishonesty and thereafter terminated his
employment.
The LC held that the employee had no legal duty to disclose such info and it
is none of the employer’s business. Therefore, the dismissal = AUD on the
basis of sex and gender.
c) Discrimination based on Sex:

In Christian v Colliers Properties: an employee, on her 3rd day of
employment, was dismissed for rejecting a senior manager’s unwanted sexual
advances.
The LC found that the dismissal = unfair discrimination on the basis of sex
therefore = AUD.
d) Discrimination based on Religious beliefs:

In Food and Allied Workers Union v Rainbow Chicken Farms: the
employer dismissed certain employees employed as Halaal butchers because
they refused to work on a Muslim religious holiday.
LC held that a refusal to allow Muslim employees to take a day off for their
religious holiday would be unfair if some employees were allowed to do so
while others were not but, if the absence of Muslim butchers employed to
slaughter chickens according to Halaal standards, would disrupt the
employer’s business, the employer was entitled to insist that they remain at
work for operational reasons. Which was the case here. Therefore, the
dismissals were not AUD and instead the court held that the employees =
guilty of insubordination. However, dismissal was not an appropriate sanction
because the employees were motivated by religious principle.
In TFD Network Africa (Pty) Ltd v Faris: Ms Feris, a Seventh Day Adventist
who refused to work on Saturdays to participate in stock take was dismissed.
The LAC found that Ms Feris’ position was different from the Muslim workers
in the Rainbow Chicken’s case because had all the affected employees taken
leave, the factory would have had to close therefore causing the employer to
suffer undue hardship. However, in Ms Feris’ case there was no evidence that
the employer suffered any hardship at all by Ms Feris absence. Therefore, her
dismiss = AUD in terms of S187(1)(f).
e) Age Discrimination:
GR: Dismissal based on age = AUD. Except if the employee has reached the
normal/agreed age of retirement.
The following factors need to be considered when determining whether there
is AUD on the basis of age:
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• Establish whether the reason for dismissal was indeed the employees
age;
• Whether there was a normal/agreed retirement age; and
• Whether the employee had reached that age
In Schweitzer: the LC held that the criteria had been met therefore the
dismissal is not AUD. The court also accepted that the exception in S187(2)
continued to apply when the employee was permitted to work beyond the
normal/agreed retirement age.
f) Discrimination on the grounds of Disability:

Dismissal on the grounds of disability may constitute AUD. However, S188
LRA also provides for dismissal on the grounds of incapacity. Therefore, if for
example an employee suffers a back injury, due to a car accident, which
renders him unable to perform his work, he may be fairly dismissed on the
grounds of incapacity, which may also constitute a disability.
“People with Disabilities” = people who have a long term recurring

physical/mental impairment which substantially limits their prospects of
entry to/advancements in employment.
The following principles must be taken into account:

• In many cases, a disability also constitutes incapacity;
• an employer may still dismiss an incapacitated employee even though
the incapacity is also a disability for 2 reasons:
o the employer may argue that the real reason for the dismissal is
the employee’s incapacity to do the job and not the existence of
the disability; or
o the employer can argue that the dismissal is justified in terms of
the inherent requirements of the job.
• There is an obligation on the employer to try to reasonably
accommodate the employee subject to the principle of ‘undue hardship’.
Not all disabilities = incapacity. In Smith v Kit Kat Group: The court held
that disability is not synonymous with incapacity.
An employee is incapacitated if an employer cannot accommodate her or if
she refuses an offer of reasonable accommodation.
Dismissing an incapacitate employee in these circumstances is fair but if an
employee is disable but not incapacitate, the dismissal would be unfair.
Arbitrary Grounds:
S187(1)(f) is not a closed list therefore, employees can argue that they have
been unfairly discriminated against on an arbitrary ground not specifically
listed in this section.
The courts have adopted the test applied by the Constitutional Court when
interpreting and applying the equality provisions of the Constitution in terms
of which, a ground will fall within the scope of S187(1)(f) if it has the potential
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to impair the dignity of the person or to affect him in a comparably serious

manner.
In New Way Motor v Diesel Engineering (Pty) Ltd v Marsland: the LAC
held that dismissal of an employee because she suffered from depression = a
discriminatory dismissal on an arbitrary ground = AUD.
IN Pharmaco Distribution (Pty) Ltd v EWN: The employee’s dismissal was
based on her refusal, as a person with bipolar, to undergo a medical
examination which she would not have been required to do but for her
condition.
The LAC found that her dismissal = based on unfair discrimination on the
grounds of her mental condition and = AUD.
In Allpass v Mooikloof Estates (Pty) Ltd: the dismissal based on the HIV
status (which is not a listed ground in terms of S187(1)(f)) of an employee =
AUD.
Exceptions:
S187(2) LRA states that despite subsection (1)(f) – a dismissal may be fair if
the reason for the dismissal is based on:
1. The inherent requirements of the job; or
2. The employee has reached the normal or agreed age of retirement.
1. The Inherent Requirements of the Job:

= a requirement without which the particular job cannot be done.
The inherent requirements of the job may determine that the dismissal = fair,
even though discrimination is alleged on one or more of the listed grounds.
ONUS – the employer must prove:
• The requirement is an inherent requirement of the job. In Department
of Correctional Services v POPCRU: the SCA confirmed that ‘neat’
short hair not worn in dreadlocks was not an inherent requirement of
the job for prison officials.
• It is impossible to accommodate the individual employee without
imposing undue hardship or insurmountable operational difficulty on
the employer or the business.
2. The Normal/Agreed Retirement Age:

This exception only applies where an employee has reached the
normal/agreed age of retirement therefore, such dismissal based on age = fair.
A retirement age that is not an agreed retirement age becomes a normal

retirement age when employees have been retiring at that age for so long that
it can be said that it has become the norm for employees to retired at that
particular age.
8. Transfer of Employment Contracts – S187(g):

S197 and S197A provide that if a business or part thereof is transferred as a
going concern from 1 employer to another, the employees employed in that
business will, unless otherwise agreed, be automatically transferred from the
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employment of the old employer to the new one on T’s and C’s that are not
less favourable as those of the previous employer.
Often employers try to avoid the application of this section by dismissing the
employees concerned. S187(g) seeks to prevent this from happening.
Therefore if the reason for the dismissal is the transfer of the business in
terms of S197 or S197A the dismissal = AUD.
S186(1)(f) – protects employees who have been transferred in terms of

S197/S197A and provides that if an employee who has been transferred in
terms of these sections terminates his contract of employment because the
T’s and C’s of employment are substantially less favourable than the previous
employer = Constructive dismissal.
ONUS:
• The employee must prove that the new circumstances/conditions are
substantially less favourable; and
• The employer must prove that the dismissal was not
unfair/automatically unfair.
The LAC confirmed that before the court will find that a dismissal in terms of
S197 transfer = AUD, certain factors must be satisfied:
• The employee must prove that there was a dismissal;
• The employee must show that the transaction underlying the dismissal
= automatically unfair – by adducing evidence that the dismissal is
connected to the transfer;
• The employer must prove that the reason for the dismissal is not
because of the transfer in terms of S197 – by proving for example that
it was based on operational requirements).
9. Protected Disclosures – S187(1)(h):

The Protected Disclosures Act (PDA) aims to promote the eradication of
criminal activity and other irregular conduct in the organs of state and private
bodies by providing protection to whistle blowers in both the private and
public sector who disclose information regarding the unlawful/irregular
conduct by employers, fellow employees and workers.
Therefore:
• If an employee is subjected to an occupational detriment because of a
protected disclosure, the employer’s actions = unfair labour practice in
terms of S186(2)(d) LRA;
• If an employee is dismissed in contravention of the PDA, the dismissal
= AUD in terms of S187(1)(h).
What is a protected disclosure?

= a disclosure that has been made to:
a) A legal advisor;
b) An employer
c) A cabinet member
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d) Certain persons/bodies in terms of S8PDA. Such as:

i. The public protector
ii. Human rights commission
iii. Auditor general
S6 PDA deals with disclosures made to the employer:

For a disclosure to be protected,
• it must be made in good faith, and
• in accordance with the procedure prescribed by the employer, or
• it must be made to the employer of the employee or institution
nominated by the employer for that purpose.
General Protected Disclosures:

• Are not made to persons or the employer in terms of S5 -8 PDA);
• Must be made in GF
• The employee must reasonably believe that the information is
substantially true
• It must not be made for personal gain
• The employee must have reason to believe that:
o If the disclosure is made to the employer, he will suffer an
occupational detriment;
o There is no applicable S8 body and the information will be
destroyed or concealed;
o The same information was previously disclosed to the employer
or S8 body and no action was taken; or
o The matter is exceptionally serious.
• The disclosure must be reasonable according to the following factors:
o The identity of the person to whom the disclosure was made;
o The seriousness of the conduct;
o Whether the conduct is continuing or might continue;
o Whether the employee breaches a duty of confidentiality;
o The track record of the employer in dealing with disclosures;
o The public’s interest
The intentional disclosure of false information which is harmful = criminal

offence.
Courts have the authority to insulate an employee from liability for disclosing
a substantial breach of law (S9A).
For a disclosure to be protected, it must be made in accordance with the

prescriptions of the PDA, namely:
• It must be about certain information – information regarding the
criminal/irregular conduct of the employer;
• To a certain person – the employer or other prescribed person or meets
the requirements of a general protected disclosure in terms of S9A PDA;
• In a certain way – in GF and with reason to believe that the information
shows an impropriety.
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The disclosure need not necessarily be true – a belief can still be reasonable
even if inaccurate.
If the disclosure is protected and is the proximate cause of the dismissal =

AUD. Therefore:
• There must have been a protected disclosure; and
• There must be a link between the protected disclosure and the
dismissal.
In Goldgro (Pty) Ltd v McEvoy: The court found that the information was not
disclosed in GF but with an ulterior motive and that the employee had acted
exclusively out of self-interest. Therefore, the court held that there was no
protected disclosure and that the dismissal was not AUD.
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DISCIPLINE IN THE WORKPLACE & DISMISSAL FOR MISCONDUCT

The employers right to maintain and enforce discipline in the workplace has
its origin in common law, in the employer’s common law right to control over
an employees work performance.
In terms of the common law an employer may dismiss an employee on the
basis of misconduct.
Misconduct = the willful or negligent breach of contractual duties imposed on
employees and if serious enough the employer may summarily dismiss the
employee.
Dismissal is not the only option available to the employer who may prefer to
impose less serious penalties e.g. suspension (without pay) and warnings.
The LRA and the Code of Good Practice - Dismissals:
S188 LRA allows for the dismissal of an employee based on the conduct of an
employee.
The principal requirements for a fair dismissal are regulated by S188 LRA.
1. a fair reason (substantive fairness) and
2. a fair procedure (procedural fairness).
In a dismissal for misconduct, procedural fairness entails a fair disciplinary

enquiry. Section 188(2) requires that any person considering whether or not
a dismissal for misconduct is substantively and procedurally fair must take
into account any relevant Code of Good Practice as issued in terms of the LRA,
namely the Code of Good Practice: Dismissal, which is contained in Schedule
8 of the LRA and provides a set of guidelines pertaining to the dismissals.
Item 3(1) requires that all employers adopt ‘Disciplinary Codes’ which set out:
1. the type of conduct the employer regards as unacceptable (i.e the
‘Workplace rules’);
2. the sanctions that may be imposed for contravention of the rules; and
3. the disciplinary procedure to be followed if a transgression takes place.
The rules must be clear and made available to all employees in a language
that the employee understands.
If the employee is not aware of the existence of the rule, the employee cannot
be disciplined for the breach thereof.
A disciplinary code may:

1. take the form of a collective agreement between the employer and trade
union;
2. be in the form of a unilaterally imposed policy by the employer; or
3. It may be incorporated into the T’s and C’s of employment.
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When it comes to the interpretation of disciplinary codes, the courts are

generally reluctant to interfere with the employer’s ‘standard industrial
justice’ unless the disciplinary code fell short of the standard which the court
thought should have applied in respect of the circumstances.
The Code and Corrective/Progressive Discipline:

The LRA supports the principle of progressive discipline, which means that
disciplinary action should be used to make employees aware of the standards
of conduct required of them and dismissal should be reserved for cases of
serious misconduct or repeated offences. The employer should consider
alternatives to dismissal, inter alia:
• counseling;
• warnings, and
• informal correction
Examples of serious misconduct incl:

• Gross dishonesty
• Willful damage to company property
• Willful endangering of the safety of others
• Physical assault on the employer, fellow employee client/customer
• Gross insubordination
It is sometimes possible for an employee to challenge a lesser sanction such
as a written or final warning or suspension without pay as an unfair labour
practice in terms of S186(2) LRA.
An overview of the Disciplinary Process:
The disciplinary process starts when the employer becomes aware of the
alleged misconduct by the employee/s. The employer the start an
investigation to gather information about the incident, to be used as evidence
during the disciplinary enquiry/subsequent arbitration.
During the initial stages of the investigation, the employer may decide to
suspend the employee (precautionary suspension) to remove him from the
workplace to ensure an unhindered investigation. It is important that the
suspension itself is fair – if not, it may be challenged as an unfair labour
practice.
Once the investigation is complete, the employer must decide whether to use
formal/informal measures to deal with the incident. Informal measures are
used in cases of minor misconduct while formal measures are used in cases
of serious misconduct and involves a disciplinary enquiry.
Prior to the enquiry:

1. The employer must formulate the charges;
2. Timeously notify the employee of the enquiry and the charges against
him.
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The employer is bound to the reasons for dismissal and if the employee
decides to challenge the fairness thereof at the CCMA, the employer may not
introduce a new reason for dismissal during subsequent proceedings at the
CCMA.
After the hearing, the chairperson will make a finding regarding whether or
not the employee did in fact transgress the rules and if so, determine the
appropriate sanction.
In the event of dismissal:

• The employee has 30 days to refer the dispute to a bargaining council
or CCMA for conciliation alleging that the employer’s decision was
either procedurally/substantively unfair;
• If conciliation is successful a settlement agreement is concluded;
• If unsuccessful, the employee may refer the matter to arbitration and
the matter commences a fresh.
The LRA provides for a S188A procedure known as an ‘inquiry by arbitrator’

in terms of which the employer and employee may agree to refer the decision
as to what disciplinary action, if any, should be taken against an employee to
arbitration.
• This procedure substitutes the employer’s own disciplinary enquiry and
is conducted by a CCMA commissioner or arbitrator.
• The outcome of the enquiry therefore has the status of an arbitration
award.
• If the finding is one that the dismissal was procedurally unfair but
substantively fair, the employee may not be re-employed/reinstated
through an arbitration award and therefore only compensation may be
awarded. However,
• If the dismissal is found to be substantively unfair, the preferred remedy
is reinstatement/re-employment (often with retrospective effect).
Types of Misconduct
1. Misconduct relating to Poor Time-Keeping & Absence from Work:

The first duty of the employee is to enter and remain in the service of the
employer – this requires that employees:
• Come to work on time;
• Remain at their workstations;
• Not loiter;
• Respect the hours of work imposed by the employer (e.g. start of shift,
tea time, lunch times, knock of times etc.)
GR: breach of these rules calls for corrective discipline while dismissal is
warranted in cases of repeated/serious breach.
Disciplinary Codes distinguish between 3 types of impermissible absences

from work:
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1. Absence without leave/permission = the employee is absent from work

on an ad hoc basis but still works for the employer;
2. Abscondment = the employee disappears for some time and the
employer is unaware of his whereabouts;
3. Desertion = the employee leaves employment with no intention of
returning.
Absence without Leave

An employer is entitled to discipline and employee who is absent without leave
but may not necessarily dismiss him.
S23 BCEA provides that an employer does not have to pay an employee who
has been absent for more than 2 consecutive days or on more than 2
occasions during an 8 week period unless on request, the employee provides
a valid medical certificate.
• If the employer has evidence that the employee’s absence from work for
less than 2 days was not due to illness, the employer can take
disciplinary action against the employee.
• An employee is not entitled to paid sick leave if evidence shows that he
was not ill.
• If the employee does provide a medical certificate, the employer is
entitled to investigate the validity of the certificate.
o If the certificate proves to be fraudulent, disciplinary action may
be taken on the basis of fraud/dishonesty.
• S23(2) BCEA – medical certificate must be signed by a medical
practitioner or any other person certified to diagnose and treat patients
and who is registered with a professional council established by an Act
of Parliament. If these requirements are met, a certificate from a
traditional healer = valid medical certificate. (Kievits Kroon Country
Estate (Pty) Ltd v Mmoledi)
Abscondment
The employer may do one of 2 things:
1. Regard the employment as terminated after reasonable unsuccessful
attempts to contact the employee; and/or
2. Ensure payment to the employee is stopped.
However, if the employee returns to work, the employer must investigate the
reason for absence with an open mind and if need be, continue with the
employment relationship (= the flexible approach adopted in Tubatsi Chrome
(Pty) Ltd).
Prolonged absence may be because for example the employee was seriously ill
or locked up in jail – if the employer was unaware of this – it could be grounds
for dismissal for incapacity
Desertion
Q: Does desertion lead to the termination of employment?
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Some decisions have held that although the desertion = breach of contract,
the contract only terminates if the employer accepts the breach. Therefore,
the employer terminates the contract and bears the onus of proving the
fairness of the dismissal – if the employer is aware of the employee’s
whereabouts, the employer must make a reasonable attempt to convene a
disciplinary enquiry on the basis of absence without permission to determine
the reason for the employees absence.
However, of the employer is left with no choice because the employee clearly
has no intention to return, the employer could argue that it was the employee
who terminated the employment and therefore was not a dismissal (Dyasi)
2. Types of Misconduct showing Poor/Unacceptable Attitude to the

Performance of Work:
The employee’s common law duty to perform his duties diligently and
competently = the basis for an employer’s right to take steps against
employees who do not display the requisite attitude to performing their work
(either because the employee is negligent in the performance of his duties or
because he deliberately refuses or fails to perform his duties) or employees
who are incapacitated.
This is often referred to as: ‘derelection of duties’, ‘unacceptable performance’,

or ‘breaches of policy’
‘Sleeping on duty’
• the employer must prove that the employee actually slept while
contractually obliged to render services.
• In some cases, sleeping on duty is more serious than others and may
justify dismissal e.g. a nurse in ICU of a hospital or a security guard.
• Dismissal may in some cases be considered unfair if:
o the employer is requiring employees to work unreasonably long
hours in breach of the BCEA; or
o the sleeping is caused by circumstances beyond the employee’s
control e.g. the employee takes medication and is unaware of the
effects of the medication
‘Derelection of Duties’
Usually requires an intentional failure/refusal by an employee to discharge
his duties/functions/responsibilities
‘Negligence’
• = the failure to exercise the care one may objectively and reasonably
expect of an employee in similar circumstances.
• Negligence is one of the most encountered types of misconduct in the
workplace e.g. a nurse gives a patient the incorrect medication
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‘Breach of Policy’
• = the generic type of misconduct aimed at ensuring that the work is
done according to the employer’s orders e.g. policies designed to ensure
the safety of the employees.
• Policies such as these are often strictly enforced and breach thereof may
lead to fair dismissal.
• To discipline employees for breach of policy – the employer must show:
o The policy exists; and
o Which provision thereof was breached by the employee.
• Whether the breach was intentional or negligent = relevant when
determining the appropriate sanction.
• A deliberate breach may be considered as a form of insubordination
3. Insolence & Insubordination:
‘Insolence’ = cheekiness, disrespect/rudeness aimed at managers acting on

behalf of the employer and is generally less serious than insubordination.
‘Insubordination’ = the deliberate failure or refusal by an employee to carry

out a lawful and reasonable instruction and includes any conduct that shows
a deliberate and serious disregard for or defiance of an employer’s authority
There are number of factors to be considered to determine whether the

employee transgressed the rule against insubordination:
1. There must be an instruction;
2. The instruction must be lawful;
3. The instruction must be reasonable.
Lawful instructions may still = unreasonable.
Even if there is a lawful and reasonable instruction, there are 2 further

requirements to be met:
1. There must be a failure/refusal to carry out the instruction and such
failure/ refusal must be deliberate; and
2. The refusal must be deliberate in that the employee was aware of the
instruction, understood it and understood the employer’s authority to
issue the instruction but nevertheless still disobeyed the instruction.
Where an employee genuinely attempts to carry out an instruction but

fails/only partially succeeds does not amount to insubordination.
4. Dishonesty Related Types of Misconduct:
The most obvious way in which an employee may breach his duty of good faith
is through dishonest conduct and it is generally accepted that dishonest
conduct warrants dismissal.
Dishonesty presents itself in theft and fraud:

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Theft
= the unlawful appropriation of someone else’s moveable property with the
intent of permanently depriving the owner of possession and use of the
property.
Before an employee may be guilty of theft, the following factors must be

established:
1. The stolen property must = moveable property;
2. The property must belong to someone else;
3. There must be effective appropriation of property;
4. The person who appropriated the property must be identified;
5. The appropriation must be unlawful; and
6. There must be intent to appropriate the property permanently.
Dishonesty
= any conduct which shows an intent to deceive.
Other ways in which the employer may address theft in the workplace is
through rules such as:
1. Implementing periodic/ad hoc lie detector tests;
2. Requiring employees to declare any goods brought onto the premises;
3. Obligating employees to submit to searches;
4. Rules against concealment.
What ever rules imposed by the employer, the employer must:
• Justify the rule with reference to its operational requirements of the
business; and
• Ensure that all employees are aware of the rules.
‘Team Misconduct’
In Foshini Group v Maidi: 5 employees who worked in a small store
belonging to the employer, were dismissed after an investigation showed stock
losses approached 28% and the employer dismissed those employees based
on gross negligence due to their failure to take proper care of the employer’s
assets.
In cases where the employer cannot identify the individual perpetrators 2

other possibilities present themselves. Namely:
1. Common purpose; and
2. Derivative misconduct.
Fraud
= the intentional misrepresentation by an employee through conduct/words
which causes/has the potential to case a loss to the employer e.g. submitting
a false sick note; applying for family responsibility leave and working for
another employer during the leave; claiming travel expenses where the
expenses were not incurred or using a company credit card for personal
expenses.
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‘CV Fraud’
= presents itself in 2 ways:
1. Where the employee lies on his CV about qualification/experience he
does not have; or
2. The employee conceals information that he feels may be detrimental to
his chances of being appointed e.g. a criminal record
‘Fraudulent non-disclosure’
= employees who are not asked specific questions but who conceal
information from a prospective employer.
Q: does an employee have a duty to disclose?

In Eskom Holdings Ltd v Fipaza: the court suggested that the general
principle is that all information that the employee provides must be true and
correct, but an employee does not have to go further than what may
reasonably ne expected of him in disclosing information to the employer. What
is reasonable depends on the circumstances.
In Mgiijima: the court held that an employee is under a duty to disclose

information that the employer may legitimately need and which may have
bearing on the new employer’s decision to employ the applicant but whether
that duty exists in a given case depends on the circumstances of the case
taking into account:
1. The nature of the information;
2. Whether the information is readily accessible to the employer; and
3. The nature and level of the job in question.
Corruption, Bribery & Extortion

These forms of misconduct are often seen at higher levels in organisations
where employees have the ability to take decisions that may benefit others.
Corruption
= an employee receiving or being offered some advantage (e.g. gifts, money or
sponsorships) in order to perform some act in connection with the employer’s
business activities in circumstances where this undermines the employee’s
objectivity in making business decisions in the employer’s best interest.
Bribery
= takes place if the employee is bribed by a person so that the employee will
provide that person with some sort of advantage.
Extortion
= the act of obtaining a benefit through coercion i.e. unlawfully and
intentionally obtaining some advantage or benefit from another by subjecting
him to pressure and which induces him to agreeing to provide the
benefit/advantage
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5. Breach of Duty to Act in Good Faith & to Promote the Interests of

the Employer:
Disciplinary codes often prohibit offences such as:
• Derivative misconduct
• Conflicts of interest
• Competing with the employer
• Moonlighting
• Failure to act in the best interest of the employer
Derivative Misconduct
In these cases, employers often find it difficult to identify the individual
perpetrators of misconduct as in the case of systemic theft or mass violence
during a strike.
The duty of good faith obliges employees who are aware of the serious
misconduct to share that information with the employer.
In Western Platinum Refinery Limited: the court held that the following
considerations are relevant to derivative misconduct:
• The employee must have actual knowledge of the wrongdoing for the
blameworthiness to be attributed to him;
• Non-disclosure must = deliberate;
• The gravity of the non-disclosure must = proportionate to the gravity of
the primary conduct;
• The rank of the employee may affect the gravity of the non-disclosure;
• There = a general duty to disclose wrongdoing - the non-disclosure may
be affected by whether the employee was specifically asked for the
information;
• The employee needs not have acted in common purpose with the
perpetrator;
• An employee cannot be guilty of derivative misconduct on the basis of
negligently failing to take steps to acquire knowledge of the primary
wrongdoing
The onus is on the employer to prove on a balance of probabilities that each

and every employee was in possession of information or ought reasonably to
have possessed information that could assist the employer in its
investigations
Competing with the Employer

= requires actual competition e.g. the employee offers the same service as the
employer to clients at a cheaper rate after hours.
Moonlighting
= en employee has a second job which gives rise to a conflict of interest
between the primary employer and employee e.g. working for a competitor or
supplier of the employer.
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Disclosure of Confidential Information

Includes information that could severely prejudice the employer if disclosed
such as:
• Financial information relating to the employer’s business;
• Details relating to clients and customers
• Marketing strategies
• Production processes
GR: the employer will decide what information= confidential information and
must clearly communicate this to the employees as well as formulate rules
regulating the acquisition, possession and use of such information.
Conduct that brings the name of the employer into Disrepute

= unbecoming conduct/ failing to act in te best interest of the employer.
In these cases, the conduct complained of often constitutes one or more of the
other types of misconduct and often takes place away from the workplace or
afterhours such as posting negative comments about the employer on social
media; being drunk which representing the employer.
The employer must establish a causal link between the employees conduct
and the workplace in order to take disciplinary action against employee.
6. Violence and Related types of Misconduct:
Employers often have a number of rules prohibiting violence, threats of

violence, sabotage and damage to property in the workplace. This includes
the prohibition of assaults, fighting, ‘horseplay’ and the possession of
dangerous weapons in the workplace, intimidation and threatening behavior.
All of these acts amount to serious misconduct which may lead to dismissal,
but employers must ensure that their evidence supports the different
elements of each type of misconduct.
Assault
= the unlawful, intentional application of physical force to another person or
threat of immediate physical force.
‘Horseplay’
= less serious than assault/fighting which typically involves physical contact
between employees such as pushing and shoving, hitting, wrestling or
throwing things and often involves 2 or more participants.
In these cases, the employer is advised to apply corrective discipline (Nelson

Mandela Metropolitan Municipality).
In cases of mass violence where an employee’s participation cannot be

ascertained, employers often rely on the doctrine of common purpose, which
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results in a non-participating employee who actively associates himself with

the primary misconduct, becoming as guilty as the actual perpetrators.
In Association of Mineworkers and Construction Union: The court

restated the requirements for liability based on Common Purpose:
1. The individual must have been present at the scene where the violence
was committed;
2. The individual must have been aware of the assault on the victim;
3. The individual must have made common cause with those who actually
perpetrated the assault by performing some act of association with the
conduct of the others
4. The individual must have possessed the knowledge of the wrongdoing.
Sabotage and Damage to Property

= involve the intentional destruction of property and are serious and may
justify dismissal.
7. Misconduct Infringing on the Dignity of other Employees/Persons
This includes the use of abusive language/conduct; sexist/racial abuse and

sexual harassment.
Abusive Language/conduct
= includes excessive swearing in the workplace, that may be directed at an
individual, and bullying.
To discipline swearing in the workplace depends on:
1. The workplace in question;
2. The effect on the addressee.
Bullying in the workplace

= a persistent pattern of mistreatment of an employee by another
employee/group and may take on various forms such as verbal, non-verbal
and/or physical harm to the victim.
Sexist Abuse (Sexual Harassment) & Racist Abuse

= the most common forms of abuse in the workplace.
The courts have formulated the following principles with regards to racist
abuse:
1. Objective test – to determine whether a reasonable, objective, informed
person would on the correct facts perceive it to be racist/derogatory;
2. All employees (incl white employee) are protected against racist abuse;
3. Calling an employee, a racist without any foundation = serios insult
which may result in dismissal;
4. Racial abuse does not need to be directed at a specific person and can
take the form of a general comment;
5. Racial comments/abuse will usually justify dismissal.
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Sexual Harassment
= any unwelcome conduct of a sexual nature that impacts the dignity of the
victim – in serious cases may warrant dismissal.
Sexual Harassment = a form of unfair discrimination.
The Code of Good Practice on the Handling of Sexual Harassment Cases =

designed to deal with sexual harassment as discrimination (fault is not a
requirement) and not as misconduct (fault/individual blameworthiness is
required) – requires that employers must have a clear and effective policy on
sexual harassment in the workplace and spread that policy throughout the
workplace which will make it very difficult to successfully argue lack of
knowledge and lack of blameworthiness.
Harassment may take on various forms depending on the basis upon which
it is established for e.g.:
• race
• sexual orientation
• religion
• culture
8. The Abuse of Alcohol / Drugs
Workplace rules prohibiting the use and abuse of alcohol and drugs include
the following:
1. Against the possession /use of drugs in the workplace
2. Being under the influence of drugs while at work
3. Failing a drug test
4. Refusing to subject oneself to a test
Each specific rule determines what the employer must prove/. For e.g.
‘Possession’ = knowing possession; ‘use of drugs’ = proved through direct
evidence.
The decriminalization of the cultivation, possession and use of cannabis does

not mean that an employer cannot prohibit it in the workplace if it impacts
on the workplace in some way or another.
Disciplinary rules relating to alcohol typically prohibit the use/possession of

alcohol; being under the influence of alcohol while at work or failing/refusing
to undergo a test designed to establish the amount of alcohol in an employees
system.
‘Zero Tolerance’ rules prohibit an employee from having any alcohol or an

amount of alcohol in excess of a defined limit when reporting for work or whist
at work. This rule is usually enforced through testing and the obligation to
undergo testing is often contained in the employee’s employment contract.
• The tests must be:
o Accurate,
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o The device must be properly calibrated; and

o Administered in such a way that there is evidence of its proper
utilization.
Proving an allegation that an employee is under the influence of alcohol is
usually done through observation and by relying on facts such as the
employee:
1. smells of alcohol
2. is unsteady on his feet
3. has bloodshot eyes
4. is slurring his speech etc.
If an employee abuses alcohol/drugs as a result of an addiction, the employer

should deal with this as medical incapacity and try to assist the employee
through a process of rehabilitation.
Substantive Fairness of a Dismissal for Misconduct
S188(1) LRA provides for substantive fairness. Therefore, Dismissals for

misconduct must be for a fair reason.
Item 7 of the Code of Good Practice provides 5 guidelines as to when

misconduct will constitute a fair reason for dismissal:
1. Did the employee contravene a rule or standard regarding conduct

in, or of relevance to, the workplace?
It must first be established whether or not the rule which the employee is
alleged to have contravened existed. This is a factual question and one must
look at the circumstances surrounding the matter to determine whether or
not the rule existed. If the facts indicate that the rule did exist, it must then
be determined whether or not the employee contravened this rule.
The most important source of rules of conduct in the workplace is the

disciplinary code. If there is a disciplinary code for the workplace and if it does
not contain the particular rule, this may be an indication that the rule does
not exist in the workplace. There are a number of other sources which may
contain the rule, for example, the common law. The employee's common-law
duties include a duty to act in good faith; the employment contract and
legislation e.g. The Occupational Health and Safety Act
The employer can act against the employee if the latter is guilty of misconduct
in the workplace and during working hours. However, item 7(a) provides that
the employer can also act against the employee for misconduct which took
place outside the workplace and/or after working hours but the contravention
must in some way affect the employment relationship or the employer’s
business before disciplinary action may be taken for such misconduct.
Q: was there a contravention of a rule?
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S192 LRA regulates the incidence of onus of proof in dismissal disputes.

• The employer must prove that the dismissal was both procedurally and
substantively fair.
• The standard of proof = beyond reasonable doubt which means that the
employer’s version of events is more probable than the employees
version
2. If so, was the rule valid and reasonable?

This is determined with reference to the needs of the workplace and business.
Whether the rule is valid or reasonable is a factual question. Generally, a rule
will be valid or reasonable if it is lawful and can be justified with reference to
the needs and circumstances of the business. There are a number of factors
which may determine whether or not a rule is justified, for example:
• the nature of the employer’s business,
• the circumstances under which the business operate,
• the type of work which an employee does,
• whether the rule was included in a disciplinary code that is contained
in a collective agreement between the employer and a trade union,
• the employer’s willingness in the past to enforce it.
3. Was the employee aware of the rule, or could he reasonably be

expected to have been aware of the rule?
An employee should only be punished for actions which he knew were
unacceptable and he must have known that a transgression of this rule may
lead to dismissal. Some types of misconduct are so well known that it is not
necessary to advise an employee of such rule, for example, rules that have
their origin in the common law (theft).
4. Was the rule consistently applied by the employer?

An employer must as far as possible, treat all employees who have committed
the same the same or similar offences the same.
Historical inconsistency occurs where the employer has in the past not
proceeded against employees when they have contravened a certain rule, but
then suddenly decides to proceed against an employee for contravening that
rule. An employer cannot enforce a rule which has previously been ignored,
as the conduct is inconsistent with past conduct.
If a rule is to be enforced in the future, the employer must inform the

employees before, and the employer must ensure that all employees will know
the penalty for breaking the rule. He could for example draw up a document
or notice or inform the union.
Knowledge may be ensured through meetings, written briefs, notices on notice

boards, through induction programmes for new employees, etc.
Another factor which may indicate that the employee was aware of the rule is
previous warnings which the employee may have in respect of the rule.
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Contemporaneous inconsistency occurs where employees who breach the

same rule contemporaneously or at roughly the same time, are not all
disciplined. An employer’s treatment of several employees who are guilty of
the same offence is inconsistent.
This may create the impression that the employer is administering

punishment in an arbitrary or discriminating way, however, the employer may
be able to justify inconsistency through factors such as the employees’
different circumstances (such as their length of service or their disciplinary
record).
5. Is dismissal an appropriate action for contravention of the rule?

The question whether dismissal is appropriate with regards to misconduct is
a factual question and the employer would have to support the decision to
dismiss through evidence.
Dismissal should be seen as a matter of last resort and it will not be

appropriate for first offences unless the misconduct is so serious that it
renders the employment relationship intolerable. Whether or not dismissal is
appropriate will depend on:
• The gravity of the misconduct;
• the employee’s circumstances, including length of service, previous
disciplinary record and personal circumstances;
• the nature of the job;
• the circumstances of the infringement itself; and
• whether other employees have been dismissed for the same offences
1. The gravity of the misconduct:

The more serious the misconduct, the more likely the possibility of dismissal.
To determine the gravity of the offence the following factors must be
considered:
• The circumstances surrounding the commission of the offence;
• The nature of the work performed by the employee;
• The nature and size of the employer’s work force;
• The position the employer occupies in the marketplace;
• The relationship between the employee and the victim (assault of a
senior = more serios than an assault of a co-worker);
• The impact of the misconduct on the workforce as a whole.
2. The circumstances of the infringement itself:

Dismissal should not be a ‘knee jerk’ response to all serious offences (Toyota
Manufacturing (Pty) Ltd v Radebe). The employer should all surrounding
evidence into consideration when deciding the penalty to be imposed as well
as factors such as:
• The consequence/potential consequences of the misconduct;
• The employee’s insight into the fact that he did wrong and his
commitment to rectifying matters.
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3. The nature of the employee’s job:

Examples of conduct that could justify dismissal:
• A teller in a supermarket whose will shows discrepancies;
• A legal advisor in the SAPS who falsifies documentation;
• Intoxication and use of alcohol during working hours in a brewery;
• A nurse sleeping while on duty, especially in a high care facility.
4. The employee’s circumstances:

• length of service,
• status within the business,
• previous disciplinary record,
• personal circumstances such as:
o marital status;
o age;
o number of dependents.
5. Whether or not other employees have been dismissed for the same
offence:
GR: employers should as far as possible treat employees the same if they have
breached the same/similar rules provided that the employee’s are ‘similarly
situated’.
Procedural Fairness of a Dismissal for Misconduct
S188(1) LRA requires that dismissal for misconduct must be affected in

accordance with fair procedure.
Fair procedure entails a fair disciplinary investigation (usually in the form of

a disciplinary enquiry) during which the employee will have the opportunity
to state his side of the story.
Item 4 The Code provides guidelines for the procedure to be followed in a

misconduct dismissal:
1. The employer must conduct an investigation to determine whether there
are grounds for dismissal.
2. The employer must notify the employee of the allegations (in a form and
language that the employee can reasonably understand)
• if the employee is illiterate, the employer must read and explain the
notice to the employee and the charge must clearly explain which rules
have been broken and set out the fact surrounding the offence.
• Employer’s should avoid splitting charges or charging employees with
the same offences over and over again.
• GR: employers are not allowed to charge an employee for a second time
with the same offence for which he was previously found not guilty.
3. The employee must be given a reasonable time to prepare:

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• Whether the employee was afforded sufficient time to prepare is a

factual question taking into account the following:
o The nature and complexity of the charges;
o Whether the employee had assistance to prepare his responses
• What is reasonable depend on the facts and circumstances.
4. The employee must be allowed to state a case in response to the

allegations:
• This is the core of procedural fairness.
• The employee may dispute the facts upon which the charges are based
or may plead guilty to the charges but argue that dismissal is not an
appropriate sanction.
• Whether or not and how evidence is presented at the enquiry = usually
regulated in the disciplinary code and if not, the chairperson may
exercise his discretion.
5. The employee must be allowed the assistance if a union representative or

co-employee:
• Trade union reps/shop stewards = a member of a trade union who is
elected to represent employees in a workplace (S213 LRA)
• Fellow employee may be a colleague, supervisor, director of the
company (who is an employee of the company)
• Assistance includes:
o Assistance with the presentation of the employees response to the
charges;
o Ensuring that fair procedure is being followed
• Item 4(1) does not provide for legal assistance but
o some disciplinary codes provide for legal representation under
certain circumstances; or
o at the discretion of the chairperson in complex or difficult cases
relating to serious charges.
6. The decision:
• Usually the decision whether or not an employee is guilty and what
penalty should be imposed is the responsibility of the chairperson of
the enquiry in terms of a collective agreement and which may be subject
to review; or
• The disciplinary codes of the employer may provide that the chairperson
may only make a recommendation to senior management in which case
the latter must take the final decision (which may be different from that
of the chairperson’s recommendations).
7. The employer must communicate the decision taken and provide the
employee with written notification of the decision as well as the reasons
for the decision.
8. If the employee is dismissed, the employer must remind him of his rights
to refer the matter to a bargaining council or the CCMA.
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Appeal
Item 4 does not provide for an employee to appeal to a higher level of

management against the outcome of the enquiry therefore if an employee is
dissatisfied with the finding of the chairperson the employee must implement
dispute settling procedures set out in the LRA unless provision is made for
appeal in terms of the disciplinary codes of the employer
Pre-dismissal Hearing
An employer can dispense with a pre-dismissal hearing only under

exceptional circumstances, namely in crisis-zone situations (where there is a
danger to life or property), and if the employee waives his right to a hearing.
In which case, the employer must ensure that the employees failure to attend
was the employees decision and not because he was not notified or because
he was unable to attend due to illness or the like.
If the reason for the employee’s absence was because he had been imprisoned
for a lengthy period for work related conduct, the employer is entitled to
institute steps against the employee but is required to provide some form of
hearing for e.g. by requesting written submissions from the employee.
However, if the employee is imprisoned for conduct unrelated to the workplace

and the term of imprisonment is such that the employer cannot be expected
to wait for him to return to work, the employer may terminate on the basis of
incapacity.
Note that while imprisonment does suspend the employer’s obligation to

remunerate the employee, it does not automatically terminate the
employment relationship.
Agreement to an Enquiry by an Arbitrator
S188A(1) LRA provides that the employer and employee may agree to or for a
collective agreement to provide for arbitration instead of a disciplinary enquiry
about the alleged misconduct of the employee.
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DISMISSAL FOR INCAPACITY
Incapacity is regulated by S188 LRA and is considered to be a valid reason for

dismissal, provided that the employer can show that the dismissal was for a
fair reason and that a fair procedure was followed.
Incapacity refers to some form of behavior, conduct or inability which is not

the fault of the employee – there is no intent or negligence by the employee
and it is therefore known as a no-fault dismissal.
The Code of Good Practice in Schedule 8 LRA recognises 2 forms of Incapacity:

1. Poor work performance;
2. Ill health/injury
Poor work performance is where the employee cannot do the work he is

expected to because he does not have the necessary skills/ability to do the
work
Ill-health means that the employee is too ill to do his work. This illness can
be temporary or permanent, for example where a typist has broken her arm
it will be temporary ill-health. If her arm is amputated it will amount to
permanent disability.
Incapacity may also include incompatibility (= where the employee does not
fit into the culture of the business or fellow employees) and supervening
impossibility of performance (e.g. the employee’s imprisonment).
The difference between incapacity, misconduct and operational

requirements of the business
Incapacity Misconduct Operational

requirements
• requires a more • entails that an employee • must be preceded
sympathetic, be subjected to a by a consultation
consultative disciplinary process process as
approach • the employee is able to prescribed by
• has to do with the do perform his duties S189/S189A LRA.
employee’s ability but • The focus is on the
to do the job and it intentionally/negligently employer and its
is through no fault fails to comply with the decisions relating
of the employee workplace rules to the business
that he is unable
to do the job
1. Poor Work Performance

= the employee lacks the necessary skills/ability to do the work and which is
due to no fault of his own.
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Substantive Fairness
S192 LRA – the onus is on the employer to prove on a balance of probabilities
that the dismissal due to incapacity = fair by showing that the following
requirements have been met:
1. Whether or not the employee failed to meet a performance standard:

• The employer must set a reasonable standard of performance against
which the employee’s performance can be measured. In Eskom v
Mokoena: The LAC stated that
i. an employer can set standards it requires its employees to meet
and the court will not intervene unless the standard is grossly
unreasonable; and
ii. it is the employer’s duty to assess whether or not those standards
have been met and the court will only intervene if such
assessment is grossly unreasonable.
• Poor work performance = objectively determined and may include for
e.g. independent evaluations, complaints from customers or other
employees
2. Whether the employee was aware of the performance standard required of

him or could reasonably be expected to have had knowledge thereof:
• This is a question of fact
• The existence of the performance standard may be evident from for e.g.
the contract of employment or may be implied by virtue of the common
law duty to protect the interests of the employer (SA Commercial
Catering and Allied Workers Union v Pep Stores).
3. Whether the employee was given a fair opportunity to meet the required
performance standard:
• This includes creating conditions to enable the employee to carry out
his duties satisfactorily including proper support and a satisfactory
work environment.
• The period to allow for reasonable opportunity to meet the required
standard depends on the circumstance of each case:
o The nature of the job
o The complexity of the job
o The qualifications and experience of the employee
o The extent of training/induction that may be required.
4. Is dismissal the appropriate sanction?

• Dismissal must always be the last resort and the employer is obliged to
show that reasonable alternatives were considered. (General Motors
(Pty) Ltd v National Union of Metal Workers of SA obo Ruiters)
• If no suitable alternatives are available, an employer is not obliged to
create a new position for an incompetent employee.
• If an employee remains unable to meet the required standards even
after proper evaluation, instruction, training, guidance and counselling
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and the absence of any suitable alternatives the parties will have to
accept that dismissal may be the only appropriate sanction.
Procedural Fairness – Poor Work Performance After Probation (Item 8(2)-

(4) of the Code)
1. Appraisal/Investigation to establish the reason for the unsatisfactory

performance:
• This process may consist of a number of meetings between the employer
and the employee.
• The employee is entitled to representation by a fellow employee or trade
union representative.
• The investigation usually starts with a performance appraisal to identify
in what way or to what extent the employee is not meeting the set
standard.
• The employee must then be informed of his poor work performance and
how he is failing to meet the required standard
• The employee may argue that his poor work performance is not due to
incompetence but rather due to factors beyond his control and the
employer must address these reasons.
• The employer should discuss its criticisms with the employee, warn him
of the consequences if there is no improvement and give the employee
reasonable opportunity to improve.
2. Counselling and Assistance (Improvement Plan):

• The code provides that an employee should not be dismissed for poor
work performance unless the employer has given him appropriate
evaluation, instruction, training, guidance and counselling.
• The nature and size of the employer’s business must be taken into
account during the investigation because small businesses may not be
able to cope with and support non-productive employees.
• The employee should participate in the counselling process, to provide
possible solutions or ways in which the employer may assist him to
improve.
• In cases where the employer appoints an employee to a position in
respect of which it knows the employee does not meet the requirements,
it is under a greater obligation to provide the employee with the
necessary assistance and to adhere to its remedial plans for that
employee (Buthelezi v Amalgamated Beverage Industries).
• However, if a job applicant misrepresents his qualification or experience
and is appointed on the basis of such misrepresentation, it would
amount to misconduct and there is no duty on the employer to provide
the employee with counselling, training and guidance.
3. Reasonable Time to Improve:

• The investigation process may result in measures being implemented
to assist the employee to improve his performance.
• What is reasonable depends on the circumstances of each case.
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• During this time, the employee should be monitored and informed if

and how he still falls short of the required performance standard and
should be informed of the period of time remaining and warned that
failure to improve may result in a final incapacity enquiry which may
lead to dismissal.
4. Incapacity Enquiry:
• This is not expressly required in terms of the Code, but employers often
convene a final meeting to consider the employee’s performance and
continued employment.
• Employees should be notified of the meeting in order to prepare a
response.
• The employee should be informed of his right to assistance by a trade
union representative or fellow employee.
• The employee should be given proper opportunity to make
representations and deal with any unfavourable conclusions regarding
his work performance before the final decision to dismiss.
Poor Work Performance During Probation
An employer may require a newly hired employee to serve a period of probation

before his appointment is confirmed. The purpose of which is to give the
employer the opportunity to evaluate the employee’s performance and
suitability for continued employment before confirming the appointment.
The abuse of the probation is prohibited and may constitute an unfair labour
practice.
Examples of abuse:
• Contracting with new workers on successive fixed term contracts under
the guise of probation; or
• The extension of the probationary period when it is not justified.
The probationary period must be:
• limited to what is reasonable; and
• determined in advance depending on the nature of the job
If the employer is of the opinion that the employee is incompetent he must
inform the employee of the areas in which he is incompetent.
The employer has the following options:
1. to extend the probationary period to allow the employee to improve; or
2. to dismiss the employee after following a fair procedure.
The requirements for the fair dismissal of a probationary employee

= the same as those for a tenured employee but for 2 differences:
1. the employer has a greater duty to evaluate and investigate the
performance of the employee and to give appropriate training,
counselling and time for improvement once the employee is tenured but
the Code provides for no more than reasonable evaluation, instruction,
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training, guidance and counselling with regards to probationary

employees;
2. the reasons for dismissal of a probationary employee may be less
compelling than in the case of dismissals effected after completion of
the probationary period.
Senior Managers & Highly Skilled Employees
The status of an employee may play a role in the performance standards that
the employee is expected to reach and the extent to which the employee will
be given an opportunity to improve his performance. Therefore, senior
managers may not be entitled to the same level of guidance, counselling and
training as well as time and opportunity to improve as may be the case with
more junior employees.
2. Ill Health/Injury:
Items 10-11 of the Code set out the requirements for dismissal on the grounds
of incapacity due to ill health /injury such as physical illness, mental illness
or spiritual illness.
1. Incapacity due to ill health or injury

• = may be temporary or permanent.
• If the employee is temporarily unable to work, the employer should
investigate the extent of the incapacity or injury.
• If the employee is likely to be absent for an unreasonably long time, the
employer should investigate all the possible alternatives short of
dismissal taking into account the following factors:
o The nature of the job
o The period of absence
o The seriousness of the illness or injury
o The possibility of securing a temporary replacement for the ill or
injured employee
• In the case of permanent incapacity, the employer should ascertain:
o The possibility of securing alternative employment; or
o Adapting the duties or work circumstances of the employee to
accommodate the employee’s disability.
2. During the investigation, the employee should be given the opportunity to
state his case in response and be assisted by a trade union representative
or fellow employee.
3. The degree of incapacity = relevant to the fairness of any dismissal and
the cause of the incapacity may also be relevant.
4. Particular consideration should be given to employees who are injured at
work or incapacitated by work related illness – in these cases, the
employer has a greater duty to accommodate such employees.
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Dismissals arising from ill health or injury

To determine whether a dismissal due to ill health or injury is unfair, the
following factors should be considered:
1. Whether or not the employee is capable of performing the work;
2. If the employee is not capable:
a. The extent to which the employee is able to perform the work;
b. The extent to which the employees work circumstances can be
adapted to accommodate the disability or where this is
impossible, the extent to which the employee’s duties may be
adapted
3. The availability of any suitable alternative work.
1. Ascertaining whether or not the employee is capable of performing the

work:
• If the employee is not capable, determine the extent to which the
employee is able to perform the work and how long the incapacity will
endure.
• The employer must assess the nature, degree and duration of the ill
health or injury and the extent to which it impacts on the employee’s
ability to perform his work.
• The employer must ascertain the employee’s medical condition and
prognosis through consultation with the employee, medical
practitioners and occupational therapists.
• Not all disabilities incapacitate the employee and dismissing an
employee who is disabled but not incapacitated = Automatically Unfair
Dismissal.
2. Intermittent Absenteeism:
• Persistent, intermittent absence from work due to ill health = ground to
terminate employment on the grounds of incapacity and not the
conduct of the employee.
• Abuse of sick leave = misconduct.
• Substantive fairness in these circumstances requires an assessment of
whether the employer could fairly be expected to continue the
employment relationship taking into account:
o The nature of the incapacity
o the cause of the incapacity
o prospects of recovery, improvement or recurrence
o period of absence
o the effect on the employer’s operations and other employees
o the employee’s work record
o length of service
3. Reasonable Accommodation:
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• the employer is obliged to try to accommodate an

incapacitated/disabled employee provided that it does not cause the
employer unjustified hardship.
• Unjustified hardship = significant/considerable difficulty or expense to
the employer.
• Reasonable Accommodation = determined by the nature and extent of
the medical condition or injury and can take on various forms:
o Changing the employees work circumstances e.g. providing him
with tools/equipment or moving him to an office that is more
accessible;
o Changing his working hours to enable him to receive medical
treatment
o Adapting the employee’s duties
o Offering alternative employment that his incapacity would permit
him to do.
• Employers have a greater duty to accommodate the employee if the
incapacity is due to work related illness/injury sustained at work
(Parexel International (Pty) ltd v Chakane).
• Onus = on the employer to show that it has made every reasonable effort
to accommodate the employee and properly motivate whatever
accommodation it provides or refuses
4. Alcohol/Drug dependency:
• = recognized as a form of incapacity and the employer is required to
attempt to accommodate dependent employees by enabling them to
undergo counselling and rehabilitation rather than disciplinary action.
• In the case of abuse of alcohol and drugs but no dependency, the
employer is not obliged to accommodate the employee and such
employee may be held accountable for the misconduct.
• An employee displaying symptoms of alcoholism is to be afforded the
same consideration before dismissal as any other ill employee (Naik v
Telkom SA).
5. The Availability of any suitable Alternative Work
Procedural Fairness
Item 10 of the Code sets out the procedural requirements focusing on:
1. An investigation of the illness or injury
2. Consultation with the employee
3. Giving the employee the opportunity to state a case as to why he should
not be dismissed
The Interaction between Incapacity and Disability
Disabled people = “people with disabilities” = people who have a long-term or

recurring physical or mental impairment which substantially limits their
prospects of entry into, or advancement in, employment.
105
The following possibilities are applicable in cases where an employer is faced

with a claim of AUD based on disability discrimination:
1. The employer may argue that the real reason for the dismissal was the
employee’s incapacity to do the job and not the existence of a disability;
2. The employer may argue that the dismissal = justified in terms of the
inherent requirements of the job.
Not all disabilities completely incapacitate an employee.
An employer may be confronted with different cases arising form incapacity

or disability such as:
• A claim that the dismissal for incapacity = unfair (@CCMA)
• A claim that the dismissal = AUD (@Labour Court)
• A claim that the employer unfairly discriminated against the employee
on the grounds of disability (@CCMA/Labour Court)
Medical Boarding or application for Ill health Retirement Benefits
Employees who suffers permanent disabilities such that they are unable to
continue doing their work are usually medically boarded. This position is
regulated in terms of the retirement funds rules or an insurance company,
which pays benefits to the affected employee.
Doctors appointed by the insurer will assess whether the employee suffers
from a permanent disability.
Sometimes the employers may be of the opinion that the employee is

permanently incapable of performing his duties, but the doctors appointed by
the insurer are of the opinion that the incapacity is not permanent. The
difference of opinion between the employer and the doctors does not preclude
the employer from dismissing the employee on the grounds of permanent
incapacity provided that the dismissal = procedurally and substantively fair.
Medical Certificates
In terms of the BCEA an employee, who has been absent from work for more
than two consecutive days must on his/her return produce doctor’s note
justifying his/her absence from work. In this regard, the doctor’s note
includes a doctor registered with a professional council or traditional healer
so registered in terms of the relative professional body as required by the Act
of Parliament (Kievits Kroon Country Estate (Pty) Ltd v Mmoledi)
Enquiry into Conduct/Capacity
The employer is required in terms of S188 LRA to investigate any case of

incapacity due to illness, injury which result in poor work performance.
3. Other forms of Incapacity:

a. Incompatibility
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= an employee’s inability to work reasonably harmoniously with other

employees or to fit in with the corporate culture of the organization.
In Jabari v Telkom SA (Pty) Ltd: the LC held that the employer has the
prerogative to set reasonable standards pertaining to harmonious
interpersonal relationships in the workplace and where an employee creates
disharmony, to take remedial action.
• The test for Substantive fairness of such a dismissal includes

determining whether the disharmony is serious and irremediable.
• The golden rule = the employer must make sensible, practical and
genuine efforts to improve interpersonal relationships when dealing
with an employee whose work is otherwise perfectly satisfactory.
• A reasonable time period should be allowed for the employee to make
amends and dismissal should not take place until the incompatibility
has so impacted on the business that it can no longer be tolerated.
• Onus = on the employer to prove incompatibility.
• Odd/eccentric behavior of the employee is not sufficient to give rise to
a ground for dismissal unless the employees behavior is of such gross
nature that it disrupts to workplace and only after such employee has
been counselled/warned.
• The employee must be counselled and advised of the following:
o What conduct allegedly causes disharmony
o Who is upset by the employee’s conduct
o What remedial action will be taken
• The employee must be given the opportunity to meet the required
standard and be presented with alternatives short of dismissal
• The employee must be given the opportunity to state a case in response
and be represented by a trade union representative or fellow employee.
Dismissal should = last resort.
Dismissal at the request of a 3rd Party
In cases where the conduct of the employee has lead to a demand by a 3rd
party that the employee be dismissed and en employer does not have
sufficient evidence to justify dismissal on the basis of misconduct or
operational requirements of the business, it may be possible to justify the
dismissal on the grounds of incapacity.
In Lebowa Platinum Mines Ltd v Hill: the LAC held that certain principles
have to be taken into account:
1. The mere fact that such a demand was made is not enough to justify
dismissal;
2. The demand must have sufficient foundation.
3. The threat of action by a 3rd party if the demand is not met must be real
and serious
4. The employer must have no other reasonable option but to dismiss
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5. The employer must make a reasonable effort to dissuade the 3rd party
from carrying out its threat
6. The employer should investigate and consider alternatives to dismissal
and consult with the employee
7. The extent of the injustice to the employee must be considered
8. The blameworthiness of the employee should be taken into account
b. Supervening Impossibility of Performance

Incapacity due to impossibility of performance must relate to a change in
circumstances of the employee that renders him incapable of performing his
duties e.g. incarceration or failure to acquire/loss of certain qualifications to
do the job.
Incarcerated Employees
• Incarceration of an employee does not automatically terminate the

employment relationship (National Union of Mineworkers v CCMA)
• Dismissal for incapacity of an employee incarcerated for a considerable
period of time may = substantively fair depending on the facts of the
case and the employer must consider the following:
o The reason for the incapacity
o The extent of the incapacity
o Whether permanent or temporary
o Whether any alternatives to dismissal exist (e.g. unpaid leave
and/or the appointment of a temporary employee in the post of
the jailed employee.
• If no such alternatives exist, the employee may be dismissed subject to
the use of fair procedure:
o Allow the employee the opportunity to be heard by way of an
incapacity hearing:
§ to be held either at the place of imprisonment, or
§ through written representations by his legal representative,
trade union rep or fellow employee.
Dismissal for incapacity because the employee does not have the
requisite qualifications
Examples: no drivers license or permit or necessary security clearance.
In FNB V CCMA: a statutory provision required the employee to obtain a

qualification, which he failed to do therefore the employer was not permitted
to employ the employee.
• The employee tried on 15 occasions to pass the required exam and failed
every time despite the bank providing various forms of training.
• Following an incapacity enquiry and in the absence of any alternative
employment, the employee was dismissed.
• The labour court found the dismissal for incapacity as substantively
and procedurally fair.
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DISMISSAL FOR OPERATIONAL REQUIREMENTS
A dismissal based on operational reasons does not result from the actions or
faults of the employee but rather, the needs of the employer and it is
accordingly a no-fault dismissal.
S213 LRA defines “operational requirements” as the

1. economic,
2. technological,
3. structural, or
4. similar needs of the employer
“Economic needs” relates to the financial management of the company. This

includes situations experienced by the business as a result of changes in the
market, a decrease in the demand for products, a decrease in production, cost
implications in compliance with the BCEA.
“Technological needs” introduction of new technology which leads to

redundancy of employees.
“Structural needs” redundancy of posts consequent to the restructuring of

employer’s organization, for example – a merger.
“Similar needs” is a broad concept and one must look at the facts of each
case to determine whether or not a similar need exists (to justify the dismissal
of employees). For example, incompatibility/the breakdown of the trust
relationship.
The employer’s similar needs must be determined with reference to the

circumstances of the case. For example:
1. the employee’s incompatibility impacts on the efficient/profitable
running of the employer’s business;
2. the employee's conduct has led to a breakdown of the trust relationship,

An employee must act in good faith towards the employer – he must be honest
with regard to the employer's affairs. If the employee steals from the employer
or commits fraud against the employer, the employee will breach the duty to
act in good faith and the employer may hold a disciplinary enquiry and, if the
misconduct can be proved, the employee can be dismissed for the misconduct.
BUT, where an employer cannot prove that an employee has committed
misconduct (such as theft), the employee cannot be dismissed for misconduct.
Although the employer cannot prove that the employee is guilty of the
misconduct, it no longer trusts the employee, and this could damage the
employment relationship and may impact negatively on the operational
success of the business. In such circumstances, the employer may be able to
dismiss the employee for operational reasons.
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In Chauke v Lee Services Centre CC: Acts of sabotage and malicious damage
to property occurred within a department of the employer’s business – the
employer was unable to determine which of the employees were guilty and
after various unsuccessful steps were taken to resolve the issue, all the
employees in the department were dismissed.
3. Special operational needs of the business:
This concept could include working over-time, working on Sundays, public
holidays or according to a specific shift system.
In SA Transport & Allied Workers Union v Khulani Fidelity Security

Services: the employer and the trade union concluded an agreement in terms
of which they agreed that:
• only employees with proven integrity could be employed in certain
positions;
• that the employer would be entitled to subject employees to quarterly
polygraph testing; and
• those employees who failed the test could be removed from those
positions and put into alternative positions after a consultation process.
Following a quarterly polygraph test, those employees who failed were
consulted and offered alternative positions, which they rejected and were
thereafter retrenched for operational reasons. The court held found those
dismissals to be fair.
Distinction between Small-Scale and Large-Scale Retrenchments
If a dismissal = large-scale dismissal as described in S189A LRA then the

provisions of this section as well as S189 apply.
The application of S189A depends on 2 factors:

1. The number of employees employed by the employer; and
2. The number of employees the employer contemplates dismissing.
S198A only applies to employers who employ more than 50 employees.
There will be a large-scale operational requirements dismissal and S189A will

apply if the employer is dismissing:
• 10 employees, if the employer employs more than 50, and up to 200
employees;
employees;
• 30 employees, if the employer employ more than 300, and up to 400
employees;
employees;
• 50 employees, if the employer employs more than 500 employees
A dismissal by a big employer of fewer employees than the prescribed

minimum could still constitute a large-scale dismissal. This will occur where
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the number of the employees to be dismissed, added to the number of

employees that have been dismissed (for operational requirements) in the 12
months prior to this dismissal, is equal to or exceeds the numbers as
specified.
This 12-month period is a so-called 12-month rolling period and is always

calculated backwards from the date on which the employer gives notice of the
latest proposed dismissal for operational reasons. The purpose of the 12
month provision is to ensure that employers do not manipulate the number
of employees to be dismissed so that the dismissal always falls outside the
ambit of S189A.
There is no statutory definition of Substantive fairness in the case of

operational requirements dismissals and the question of substantive fairness
in this regard is a factual question.
The employer must prove the following:

1. The dismissal was to give effect to the employer’s operational
requirements – the employer must prove that the reason is based on
one of the operational requirements as defined in S213 LRA;
2. The operational reason given was the real reason for the retrenchment
– the employer must prove that the operational reason actually exists
and that it was the real reason for the dismissal and not merely a cover
up for another reason for dismissal.
3. A dismissal to increase profits – a profitable business is entitled to
retrench employees in order to increase profits or to gain some
advantage (Fry’s Metals (Pty) Ltd)
4. Assessing the employer’s operational requirements:
• The reason must be justifiable and based on rational grounds.
• An objective test must be applied when determining the rationality
of the reason.
• There must have been a proper consideration of alternatives – the
employer must have applied its mind and be able to give reasons
why there was no alternative to dismissal.
• The employer must be able to show that the dismissal was a measure
of last resort.
• Selection criteria must be fair and objective.
Procedural Fairness
S189 LRA provides a checklist in respect of procedural fairness:
1. Prior Consultation:
Notice of consultation must be given to the other consulting party/parties
inviting them to consult on the contemplated retrenchments.
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The notice must disclose all relevant information such as:

• The reasons for the proposed dismissals;
• The alternatives that the employer considered before proposing
dismissals and the reasons for rejecting the alternatives;
• The number of employees likely to be affected;
• the proposed method of selecting employees to dismiss;
• The time when the dismissals are likely to take effect;
• Severance pay proposed.
Who must be given notice and consulted with?

• First, the employer must consult with any person or group named in a
collective agreement must.
• If there is no collective agreement, a workplace forum must be
consulted.
• If there is no workplace forum, the employer must consult with any
registered trade union whose members are likely to be affected by the
proposed dismissals.
• If there is no union, the employer must consult the employees (or their
nominated representatives) who are likely to be affected by the proposed
dismissals.
The nature of the consultation

S189(2) LRA – ‘the employer and the other consulting parties must engage in
a meaningful joint consensus-seeking process and attempt to reach
consensus’.
The employer must consult in good faith and must not have made up its mind
to dismiss prior to consultation.
The employer must allow the consulting party the opportunity to make
representations re:
• Reasons for dismissal
• Alternatives to dismissal
• Measures to minimize the number of dismissals
• The timetable for dismissal
• Assistance to the dismissed employees
• Selection criteria
• Severance pay
S189(5) requires the employer to allow representations about the disclosure

of information and any other matter relating to the proposed dismissals.
S189(6) compels the employer to consider representations made by the
consulting party and to give suggestions/recommendations careful and
serious consideration and respond to the representations.
If the employer disagree with the representations, he must give reasons in

writing.
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The consulting party must:

• Also ensure that the process is meaningful
• Act in good faith
• Engage properly
• Make representations that are well sounded and substantiated
• Not prolong consultations
• Not prevent possible dismissals.
If the process fails to meet the standards set in terms of S189 due to the
attitude or action of the consulting party – any ensuing dismissals will not be
regards as being procedurally unfair.
In the case of large-scale operational requirements dismissals, the employees

may embark on a protected strike in an attempt to force the employer not to
dismiss/reinstate persons who were dismissed.
If an agreement is reached between the employer and the trade union on the
need to retrench and how it will be regulated, same can be reflected in a
collective agreement and the employees who are member of the trade union
will be bound by this agreement.
Timing of the Consultation

S189(1) requires that the consultation must take place when the employer
‘contemplates dismissal’ therefore, the final decision to dismiss must not have
been reached yet but merely foreseen.
The actual timing of the consultation depends on the circumstances of each

case and the interests of both the employer and employees should be taken
into consideration.
The duration of the Consultation

• Item 5 of the Code – the circumstances surrounding the consultation
process are relevant to determine a reasonable period.
• Item 6 of the Code – the more urgent the need by the employer to
respond to the factors giving rise to any contemplated termination, the
shorter the consultation period might be.
• In the case of large-scale retrenchment – S189A(7) and (8) prescribes a
minimum period of engagement i.e. 60 days
2. Consultation Topics
S189(2) requires the parties must attempt to reach consensus on:
a. Measures to avoid dismissals and minimise dismissals
b. Measures to change the timing of the Dismissals
c. Measures to Mitigate the adverse effects of the dismissals
d. Selection Criteria
e. Severance Pay
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a. Measures to avoid dismissals and minimise dismissals:

Examples - measures to avoid the need to dismiss or minimise dismissals:
• The introduction of overtime work to improve production
• The elimination of overtime work to reduce costs
• Introduction of a new shift system
Dismissal must be the last resort and employers must consider alternatives,
apply its mind to any proposals made by employees/unions and provide
defendable reasons for rejecting proposals.
b. Measures to change the timing of the dismissals:
At this stage, dismissal is unavoidable and parties must consider possibilities
to spread the dismissals over a period of time or to postpose them to a later
stage.
c. Measures to mitigate the adverse effects of the dismissals:
Examples:
• Assisting employees to find alternative work by giving them time off to
search for alternative work or go for interviews;
• Approaching other employers to enquire whether they have any job
vacancies
• Providing training to assist employees to acquire new skills
• Providing employees with information and guidance as to how to deal
with monies accrued in retirement funds and how to apply for
unemployment insurance payments
d. Selection Criteria:
The selection criteria must = objective and fair.
e. Severance Pay:
A retrenched employee is entitled to severance pay in terms of S41 BCEA. i.e.
1 week for every full year worked = the minimum but the parties may agree
to more.
3. Written Disclosure of Information

The employer must disclose relevant information, in writing, to the other
consulting parties which includes:
• Reasons for the proposed dismissals
• Alternatives considered by the employer
• The number of employees likely to be affected
• The proposed method of selecting which employees to dismiss
• The time when the dismissals are likely to take affect
• Any assistance the employer proposes to offer the employees.
Consulting parties may invoke S16 LRA to force an employer to provide any
information that is relevant to the consultation process.
In National Union of Metalworkers of South Africa v Comark Holdings

(Pty) Ltd: the LC held that if the reason for the retrenchment relates to the
financial difficulties of the employer, it may be required to make financial
statements available to the other party.
4. Selection Criteria:
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Employers must consult on the criteria to be used to select the employees

who will be retrenched and if an agreement is reached as to the criteria to be
used, same must be applied even if it is subjective.
If no such agreement is reached, a selection criterion must be fair and

objective.
An unfair selection criteria may render the dismissal substantively unfair.
Fairness entails that the criteria must not be arbitrary but relevant in that it
relates to the attributes/conduct of the employees such as:
• Length of service
• Ability
• Capacity
• Productivity
• Needs of the business
Objectivity means that the criteria should not depend on subjective prejudices
of the person making the selection.
The following Criteria are commonly used:
1. LIFO – Last in First Out

• = the most preferred criteria by the unions, in terms of which long
serving employees are retained at the expense of those with shorter
service.
• The Code recognises LIFO as a fair and objective criterion
• LIFO should not operate to undermines an agreed affirmative action
programme
• Exceptions may also include the retention of employees based on
special skills needed for the continued operation of the business.
2. Employees conduct, skills, efficiency, capacity, experience,

attitude to work and productivity:
The criterion is most preferred by employers as they feel that this would assist
in retaining the most productive workplace and is both fair and objective
(National Union of Metalworkers of SA v Columbus Stainless (Pty) Ltd).
3. Bumping:
This arises when an employee, who faces dismissal because of the application
of the LIFO principle, argues that he is entitled to be placed in another
position filled by another employee falling outside the selection pool and who
has fewer years of experience with the employer. That employee who would
otherwise not be considered for retrenchment because he falls outside to
selection pool is then ‘bumped’ and faces retrenchment.
• Vertical Bumping = the employee argues that he should be placed in a
lower position currently filled another employee because he has longer
service with the employer
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• Horizontal Bumping = an employee argues that he should bump

another employee in a similar position in another part of the business
who has less years of service.
• In Porter Motor Group v Karachi: the LAC accepted that bumping
should be applied where appropriate and set out the principles that
should regulate bumping:
o Take into account the interests of both employer and employee;
o An employer is obliged to consult about the possibility of bumping
o Bumping usually follows from the application of the LIFO criteria
favouring longer service over shorter service employees
o Horizontal bumping should take place before vertical bumping
o Consideration should be given to the effect of bumping on the
employers operations and disruption that this may cause
o Geographical limitations can be placed on bumping
o The pool of possible candidates to be bumped should be
established
o The retention of skills and ability of the employees who seek to
bump another employee to do the job in which he will be placed
is relevant.
4. FIFO – First in first out

• = the opposite of LIFO and should be approached with caution
especially when considering whether it is fair and objective.
• It impacts negatively on employees with long service records and proven
loyalty.
5. Severance Pay:
• The payment of severance pay is regulated in terms of S41 BCEA.
• S41(2) – an employee is entitled to 1 week’s remuneration for every full
year of continuous service.
• S84 states that for the purpose of determining length of an employee’s
service, previous employment with the employer must be taken into
account if the break between periods of employment was less than a
year.
• S41(4) – an employee who unreasonably refuses an alternative position
with that employer or any other employer, loses the right to severance.
o The reasonableness of the employee’s refusal = a question of act
that must be determined by a consideration of the
reasonableness of the offer of alternative employment vs the
reasonableness of the employee’s refusal (taking into account
objective factors such as remuneration, status and job security).
o Even if a reasonable offer is made, the employee’s refusal to
accept the offer may not necessarily be unreasonable as the
employees personal circumstances for example, may justify a
refusal.
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Procedural Fairness in the case of Large-Scale Retrenchment by a Big

Employer
In addition to the requirements set out in S189, S189A introduces further

procedural requirements such as:
1. Affording the employer or consulting parties the right to ask the CCMA
to appoint a facilitator to assist the parties in the consultations;
2. A moratorium of 60 days during which the employer may not dismiss.
Facilitation Option
Either the employer or a representative of the majority of the employees who
are facing dismissal may request a facilitator, within 15 days of the employer’s
notice of the proposed retrenchments. If neither party requests a facilitator
within the 15 days, they may still agree to request a facilitator during the
consultation process.
The facilitator will:

- chair the meetings between the parties;
- decide any issue of procedure that arises in the course of meetings
between the parties;
- arrange further facilitation meetings after consultation with the parties,
and
- direct the parties to engage in consultations without the facilitator being
present.
The facilitator’s decision is final in respect of any matter relating to the

procedure for conducting the facilitation, including the date and time of
meetings. The parties may also agree that the facilitator may perform any
other function.
If a facilitator is appointed, the employer may not dismiss the employees until
60 days have lapsed from the date on which the appointment of a facilitator
was requested. The employer must also still give proper notice of the
retrenchments in accordance with S37(1) of the BCEA.
Non-facilitation Option
If no facilitator is appointed, a minimum of 30 days must lapse before a
dispute about the contemplated dismissal can be referred for conciliation to
the CCMA or a bargaining council. The employer may not dismiss employees
during this period, nor may he dismiss during the conciliation period of at
least 30 days. This means that the earliest that an employer would be allowed
to dismiss, will be after the expiry of both 30-day periods (after 60 days of
giving notice of the contemplated large-scale dismissal). The notice must
comply with S37 BCEA and S38 BCEA may also be used.
In Steenkamp v Edcon Ltd: the CC held that the failure to comply with the
time period could render the retrenchment unfair but not invalid.
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If notice of termination of employment is given in terms of S37 BCEA

employees may embark on a protected strike.
Resolution of Disputes
S191(12) LRA provides that an individual employee has the option:
1. referring a dispute regarding an alleged unfair operation requirements
dismissal to the CCMA or Bargaining Council for arbitration; or
2. referring the matter to the Labour Court if:
a. the employer followed a consultation process that applied to that
employee only;
b. the employer’s operational requirements led to the dismissal of
that employee only;
c. the employer employed less than 10 employees, irrespective of the
number of employees dismissed
If S191(12) and S189A do not apply, the dispute must be referred to the
Labour Court to determine whether the dismissal is
procedurally/substantively fair.
Where retrenchments fall within the ambit of S189A distinguish between a

challenge to the procedural fairness vs substantive fairness of the dismissal:
Procedural Fairness Substantive Fairness

• employees are entitled to The employees have a choice, once
approach the LC for one of the the employer has given them notice
remedies mentioned in S189A(13) of termination of employment, the
• this must be done within 30 days employees may:
after the employer has given the 1. Embark on a protected strike in
notice of dismissal opposition to the dismissal –
• If dismissal has already taken provided that 48 hours’ notice
place, the court may: of the strike is given; or
o Order the reinstatement of the 2. The consulting party can elect
employees until such time that to refer the dispute to the LC –
fair procedure is followed; or referral must be made within
o Order the payment of 90days of the date on which the
compensation employer gave notice of
• If the consultation process is still dismissal.
proceeding or has finalized but
no dismissals have taken effect
yet, the court can Issue an order:
o compelling the employer to
follow a fair procedure; or
o interdicting the employer from
dismissing employees until
such time as fair procedure is
followed
In Steenkamp v Edcon Ltd: the
CC stated that the process provided
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in S189A(13) allows for urgent

intervention of the LC to correct
procedural irregularities to restore
the consultation process – the LC =
the guardian of the consultation
process
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UNFAIR LABOUR PRACTICES
• An employee cannot commit an unfair labour practice against the

employer.
• Unfair labour practices occur during actual employment.
• Employees are afforded legal protection against unfair labour practices
that might occur.
• Unfair labour practices can relate to:
o promotion,
o demotion,
o probation,
o training,
o the provision of benefits,
o suspension,
o refusal to reinstate or re-employ an employee in terms of any
agreement and
o unfair conduct of the employer that causes an employee to suffer
an occupational detriment on account of a protected disclosure.
• The Constitution, together with the LRA, affords employees protection
against unfair labour practices perpetrated by employers against
employees. It is important to note that the right to protection against
unfair labour practices in terms of the Constitution is wide, while
protection against unfair labour practices in terms of the LRA is capped.
This means that the LRA provides a limited list of actions that are
included in the definition of an unfair labour practice.
• Fairness is an essential element of ubuntu, the Constitution and labour
law. By protecting employees against unfair practices by employers,
both the Constitution and the LRA give effect to the principles of
fairness. Traditional African values support the principle that no one
should be treated unfairly, and should such treatment take place, the
wronged person should get the opportunity to speak to the wrongdoer
so that they may work towards a solution together. In the context of
unfair labour practices, ubuntu presupposes that the employer ought
to treat all employees with respect, acknowledging their human dignity
as protected by the Constitution.
The Relevance of Unfair Labour Practices

The Constitution, 1996 includes (in section 23(1)) provides for the broad right
to fair labour practices and extends this right to ‘everyone’. There is therefore
a need to protect employees against possible unfair conduct by the employer
during employment.
The Definition of Unfair Labour Practices
S186(2) LRA defines an unfair labour practice as any unfair act or omission
that arises between the employer and an employee involving –
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(a) unfair conduct by the employer relating to the promotion, demotion,

probation or training of an employee or relating to the provision of
benefits to an employee;
(b) the unfair suspension of an employee or any other unfair disciplinary
action short of dismissal in respect of an employee;
(c) the 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, on account of the employee having made
a protected disclosure defined in the Act.
Who is Protected?
• Unfair labour practices operate in one direction - They are the actions
of an employer against an employee - an employee cannot commit an
unfair labour practice against his employer.
• A trade union cannot commit an unfair labour practice against an
employer or a member, but as employer, a TU could do so against its
employees.
• S186(2) also covers former-employees: where an employer refuses or
fails to re-employ a former employee in terms of agreement.
• If an employer commits an unfair labour practice against a number of
employees, they may act as a group against the employer, when
approaching the CCMA for relief, because they all have been the victims
of the same unfair labour practice (notwithstanding the fact that
S186(2) only refers to an employee in the singular).
A Closed List relating to Disputes of Rights

The list of unfair labour practices contained in section 186(2) is exhaustive or
a closed list. The use of the word ‘involving’ prior to the actual types of conduct
listed in section 186(2), indicates that unfair labour practices are limited to
those mentioned in the list. This means that unless the conduct of the
employer falls within the scope of one of the types of conduct listed in section
186(2), it would not amount to an unfair labour practice and a bargaining
council or the CCMA would not have jurisdiction to hear the matter.
E.g. Unfair conduct of an employer relating to the transfer of an employee

does not constitute an unfair labour practice in itself because, ‘transfer’ is not
on the list in terms of S186(2). However, if the employee can show that the
transfer amounted to disciplinary action short of dismissal or amounted to a
demotion – The CCMA or Bargaining Council would have jurisdiction.
1. Unfair Conduct – Promotion and Demotion

Section 186(2)(a) protects employees against unfair employer conduct in
respect of promotion and demotion.
Promotion:
The Meaning of Promotion

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Employers usually use different mechanisms to advance employees in the

workplace whether by design, focusing on the merits of the individual, or as
a result of workplace changes.
In each case, the first question is to determine whether the employer’s

conduct constitutes a refusal or failure to promote an employee.
A council or the CCMA will only have jurisdiction if there is a dispute about
promotion. These mechanisms include:
1. Level progression – current employees are evaluated on a regular basis
and progress to a higher level within the parameters of the job in
question;
2. Application for vacancies system – certain vacancies are advertised and
both current and external applicants are invited to apply for these
posts;
3. A significant elevation in an employee’s rank/status irrespective of the
name given to the process by the employer;
4. The upgrading of a post;
5. A change in status from casual worker to part-time employee to
permanent employee – these changes amount to a promotion (Joint
Affirmative Management Forum v Pick n Pay Supermarket);
6. A change in status as an alternative to retrenchment.
The legal meaning of Promotion – the underlying principles

For promotion to exist there are 2 requirements:
1. an employment relationship must exist between the employee raising a
dispute relating to promotion and his/her employer; and
2. comparing the current job held by the employee with the job or the
upgraded post aspired to.
It does not matter, for example, that the existing employee has to compete
with outside applicants (who are not employees) or that we call this process
an ‘application procedure’. The comparison between posts is necessary to
determine whether there was in fact a promotion at stake. In making this
determination, one should look at a number of factors such as:
• differences in remuneration levels,
• fringe benefits,
• status,
• levels of responsibility or authority or power; as well as
• the difference in levels of job security (consider the difference between
a casual employee, a part- time employee or a permanent employee).
Acting Appointments
At times, an employer may expect employees to act in other (higher) positions
for a certain period of time, however, this does not entitle him/her to be
appointed to the post. Even where the employee has a ‘legitimate expectation’
of promotion, based on a promise of being permanently appointed to the post
in which he/she is acting, this only means that the employee must be heard
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before the final decision is made and the fact that he/she acted in the higher
position is one factor that may be relevant in determining the decision not to
promote him/ her. Some employees in acting positions have succeeded in
challenging the conduct of the employer as unfair conduct relating to
promotion.
Overlap between unfair labour practices and unfair conduct relating to
the provision of benefits
Unfair conduct relating to promotion extends to the benefits attached to a
higher post – the CCMA held that it would be unfair for an employee to occupy
a higher post, in which they are acting, do extra work and bear the additional
responsibilities but not be compensated accordingly.
Many employers provide in their policies for an ‘acting allowance’ and if the
employer fails to fulfil its undertaking to pay such an allowance amounts to
unfair conduct relating to the provision of benefits.
Demotion:
= the diminution of remuneration levels, status, levels of

responsibility/authority or power or even diminution in levels of job security.
Even if an employee’s salary level is maintained, a transfer/appointment to a

lower post of lower status and/or fewer responsibilities = demotion.
Unfairness of the employer’s conduct relating to Promotion and

Demotion
Promotion Demotion
• Promotion must = procedurally • = generally entails the taking away
and substantively fair of existing substantive rights
• Substantive fairness deals with which means that demotion may:
the merits of the decision to o constitute a breach of
promote or not to promote a contract; or
person and usually involves o where an employee resigns, it
choosing between one or more may constitute constructive
candidates. dismissal
• The courts are reluctant to • For the demotion to be fair,
interfere with these decisions employers must have good
unless it is clear that the decision reasons and follow fair procedures
maker acted in bad faith or with • Demotion will be fair only where it
an ulterior motive because the is used as an alternative to
decision to promote is within dismissal for reasons related to
managerial prerogative. misconduct, incapacity or
• With regard to procedural operational requirements.
fairness, a failure to comply with
procedures and requirements set
by an employer for dealing with
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promotions could lead to a

finding of procedural unfairness
• Examples may include failing to
advertise a post, promoting a
person who did not meet the
requirements set for the
promotion and the incorrect
composition of a selection
committee; etc.
• an employer is entitled to take
account of affirmative action
considerations when deciding
whether or not to promote an
employee, provided that this
decision is taken in accordance
with a properly considered and
rational affirmative action policy.
• GR: there is no right to be
promoted
Remedies
A wide range of remedies to promotion and demotion have been developed by
the courts or CCMA such as:
1. Declaratory orders
2. Protective promotions (where the post has already been filled by another
employee but the applicant is given a salary and benefits and grade of
a higher post)
3. Compensation awards (max 12 months)
4. Referring the matter back to the employer for reconsideration
5. Reinstatement to a previous position (in the case of demotion)
For an employee to be promoted as a remedy, the employee must prove:

1. The employer acted unfairly; and
2. That he would have been promoted if not for the unfair conduct of the
employer.
In Letsogo v Department of Economy and Enterprise Development: the

LC held that the employee had to be promoted. In this case, the selection
panel had changed the advertised requirements for the post to enable an
unqualified person to apply and thereafter shortlisted and appointed that
person at the expense of the only qualified person for the position.
GR: an employee is entitled to relief if he actually applied for the promotion

and did not get it.
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2. Unfair Conduct – Probation
• In terms of section 186(2)(a) an unfair conduct relating to probation

(excluding dismissal) is an unfair labour practice.
• The purpose of probation is to put the employer in a position to take an
informed decision about the capacity and suitability of an employee to
do a certain job. This means that in identifying possible unfair labour
practices, guidance may be obtained from the rules which govern the
obligations of an employer before a fair decision to dismiss on the
grounds of poor performance of a probationer is reached (Item 8 of the
Code of Good Practice: Dismissal (Schedule 8 to the LRA).
• Unfair labour practices by an employer in this context may include:
o the setting of an unreasonably long probationary period,
o the setting of unreasonable performance standards,
o the failure to inform the employee properly about required
performance standards,
o the failure by an employer to afford the employee reasonable
guidance, evaluation, training, counselling and instruction as
required by the Code during probation.
• The Code allows the employer the following options at the end of the
probationary period:
o to extend the probationary period to enable the employee to
improve his performance (only if such extension is justified),
o to dismiss the employee, or
o to confirm the appointment of the employee.
• Before an employer may dismiss an employee or extend the
probationary period,
o the employee may be assisted by a trade union representative or
a co-worker,
o the employee must be given an opportunity to make
representations,
o the employer must consider the representations.
• In the event of a dispute about probation, a council/CCMA = bound in
terms of S191(5A) LRA, to follow a con-arb process.
3. Unfair Conduct – Training
• An employer’s obligation to provide training may arise from a contract

of employment or a collective agreement.
• Labour legislation also places specific training obligations on employers
through the provisions of the EEA and the Skills Development Act 97
of 1998.
• If the employer does not comply with the obligations it may amount to
an unfair labour practice, especially where:
o such training is a prerequisite for advancement in the workplace,
or
o where a legitimate expectation to be provided with such training
was created, and
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o it furthermore can be shown that the employer acted

‘inconsistently, arbitrarily or irrationally’ in denying the training.
• Where training is necessary for the advancement of the employee: In
Mdluli & SA Police Service: the employee was removed from a training
course which would have made it possible for him to be promoted. The
reason for his removal was because of an allegation of misconduct
relating to misuse of an official vehicle, which was later withdrawn. The
arbitrator ordered the employer to re-nominate the employee for the
next training course.
4. Unfair Conduct – Provision of Benefits
• An employer may commit an unfair labour practice through unfair

conduct relating to the provision of benefits.
• There are often issues regarding the term ‘benefits’. The CCMA has in
some decisions attached a wide meaning to the scope of benefits,
including:
o the provision of free transport,
o deductions of amounts from the remuneration of employees, and
o the option given to an employee of a reduction of his/her salary
as an alternative to termination of employment.
• S65(1) LRA provides that employees cannot strike over issues that may
be referred to arbitration in terms of Labour Legislation, including LRA.
• A dispute of ‘Benefits’ may be referred to arbitration in terms of S191
LRA.
• The courts have taken a 2-pronged approach to determine the meaning
of ‘benefits’ in terms of S186(2) (a) LRA:
1. Try to define the meaning of ‘Benefits’ –
In Schoeman v Samsung Electronics: the LC held that ‘benefit’ in S186(2)(a)
LRA does not include remuneration.
Ø This is somewhat problematic because, excluding the concept of
remuneration form the concept of benefits let to the non-existence of
benefits in practice and consequently the absence of jurisdiction of the
Bargaining Councils and CCMAs to hear cases:
Ø The following were all found to constitute remuneration and therefore
were not benefits:
o A claim for unpaid commission;
o Payment of accumulated leave and overtime;
o Discretionary performance bonuses;
o A claim for housing allowances;
o The provision of housing at a rental rate below market rate
o A cell phone allowance;
o A motor vehicle benefit scheme at the discretion of management
(SAMRA v Toyota of SA Motors)
2. To determine the meaning of benefits through the distinction between

Disputes of Rights (= the disputes about the existance, interpretation
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and application of a right that already exists) and Disputes of Interest

(= disputes about the creation of a new right).
• Employees are still able to bargain about higher wages because it
amounts to a dispute of interests;
• It has been held that only disputes about already existing rights could
be considered by the BC/CCMA.
• If the dispute is about the application of a pre-existing right such as the
right to leave or a transport allowance, it is a dispute of right and would
fall within the scope of ‘benefit’. If a dispute related to the creation of a
new right would therefore amount to a dispute of interest, it is not a
benefit and parties could strike/lockout over a matter but not refer it
to arbitration.
• In Apollo Tyres: the LAC held that accumulated leave = a benefit
• In Caledon Tunnel Authority v CCMA: the LC held that the CCMA
had jurisdiction to consider a dispute concerning the employer’s refusal
to pay the employee a performance bonus.
• In SA Revenue Service v Ntshintshi: the LC held that vehicle and
travel allowances = benefits
• Once an arbitrator/commissioner is satisfied that a dispute concerns a
‘benefit’ in terms of the Apollo Tyres case, the attention shifts to the
question whether the employer’s conduct was unfair.
• The onus of proving unfairness rests with the employee to prove that
the employer’s conduct was arbitrary, irrational or in bad faith.
5. Unfair Suspension
Section 186(2)(b) of the LRA protects employees against unfair suspension. In

practice, a distinction is normally made between —
• The precautionary (sometimes called preventative) suspension:
This is where disciplinary charges are being investigated against an
employee and the employer wants to suspend the employee pending the
outcome of the disciplinary enquiry.
• The punitive suspension: In this case, a suspension is imposed as a
disciplinary measure short of dismissal after the disciplinary hearing
has been held and the employee found guilty.
Suspension and Unfair Labour Practice

Section 186(2)(b) of the LRA refers to ‘the unfair suspension of an employee
or any other unfair disciplinary action short of dismissal . . .’ The wording
implies that the provision only covers punitive suspensions as disciplinary
actions short of dismissal. However, the courts and arbitrators have
consistently accepted that precautionary suspensions also fall within the
ambit of this provision. (Long v South African Breweries (Pty) Ltd).
Fair Suspension
With regard to substantive fairness the employer must have a justifiable
reason for suspension. For example:
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• where the seriousness of the misconduct may create a state of affairs

such as rumours and suspicion, necessitating a suspension of the
employee in order for work to carry on smoothly;
• where the employer has a reason to fear that the employee in question
may interfere with the investigation or the witnesses;
• where the employer fears a recurrence of the misconduct; or
• where the seniority and authority of the employee in question has a
bearing on the matter.
The question whether a suspension has to be procedurally fair and whether
some form of hearing has to be given to an employee prior to a precautionary
suspension was answered in the negative by the Constitutional Court.
However, Applicable regulations, collective agreements, and policies
sometimes require employers to follow certain procedures prior to a
suspension.
• The failure to follow these procedures may render the suspension
procedurally unfair or perhaps even unlawful.
Precautionary suspension (suspension pending an inquiry) may be used to

give the employer an opportunity to investigate allegations of misconduct by
an employee, so as to decide whether or not to take disciplinary action against
the employee. An employee should, however, not be suspended unless:
• there is a prima facie reason to believe that the employee has committed
serious misconduct, and
• there is some objectively justifiable reason for excluding the employee
from the workplace, and
• the employees has been offered an opportunity to be heard before being
suspended.
A precautionary suspension must, as a rule, be with pay unless:
• the employee consents to suspension without pay;
• if it is provided for by legislation;
• a collective agreement authorises suspension without pay; or
• the contract of employment itself
Because suspension has a damaging impact and may prejudice an employee’s
reputation, advancement, job security and fulfillment, an employer must have
substantively valid reasons and must follow a fair procedure before an
employee is suspended.
Punitive suspension (suspension imposed as a sanction for misconduct

following disciplinary action). A suspension without pay may possibly be
imposed as a fair alternative to dismissal (and therefore a form of progressive
discipline) in an attempt to correct an employee’s behavior (corrective
discipline).
6. Disciplinary Action Short of Dismissal

Written and final warnings and transfers could constitute unfair conduct by
an employer, for example, where the employer transfers the employee without
good cause and without following fair procedure.
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Employees may dispute the substantive and procedural fairness of any

disciplinary sanction short of dismissal, on the same principles that an
employee may use to dispute the fairness of a dismissal for misconduct
(substantive and procedural fairness). There are, however, three important
differences:
1. the employee must show that the sanction actually imposed was
inappropriate;
2. it is easier for employers to justify sanctions lesser than dismissal; and
3. as far as procedure is concerned, the lesser the sanction, the more
informal the procedure an employer may follow before the sanction is
imposed.
7. Failure or refusal to reinstate

Ex-employees are protected against a refusal by the employer to reinstate or
re-employ them in terms of any agreement. Unfairness is not a requirement
for this type of unfair labour practice – the mere failure or refusal in itself is
enough to constitute an unfair labour practice.
This type of unfair labour practice usually arises in the case of re-hiring
agreements which are entered into as part of a retrenchment exercise (ie
where the employer undertakes to rehire ex-employees from the pool of
retrenched employees should vacancies arise after the retrenchment and, it
was agreed (for example, in a collective agreement or a settlement agreement)
to recall and consider the ex-employees, for such position).
8. Protected Disclosures
This type of unfair labour practice arises where an employee suffers an
occupational detriment (short of dismissal) in contravention of the PDA, on
account of having made a protected disclosure in terms of the PDA.
The PDA regulates disclosure by employees of information on suspected

criminal and other improper conduct by employers and provides the employee
with certain remedies. The purpose of this protection is to prevent fear of
reprisal once the disclosure is made. The point is to promote a culture of
openness.
The following three requirements must be satisfied before an employee can

allege an unfair labour practice based on an occupational detriment:
1. The employee must have made a protected disclosure.
2. The employer must have taken some retaliating action against the
employee which results in the employee suffering from an occupational
detriment.
3. The detriment suffered must be on account of, or partly on account of,
the making of the protected disclosure. This means that there must a
causal link between the disclosure and the retaliating action by the
employer.
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An occupational detriment occurs when an employee is subjected to any of

the following, as a result of having made a protected disclosure:
• any disciplinary action;
• dismissal, suspension, demotion, harassment or intimidation;
• being transferred against the employee’s will;
• refusal of a transfer or promotion;
• subjection to a term of employment which is altered or kept altered
to the employee’s disadvantage;
• subjection to a term of retirement which is altered or kept altered to
the employee’s disadvantage;
• refusal of a reference, or being provided an adverse reference;
• denial of appointment to any position or office;
• being threatened with any these actions;
• being otherwise adversely affected in respect of employment,
employment opportunities and work security.
A general protected disclosure covers a wide range of disclosures including

disclosures to the media. A protected disclosure is a disclosure of
information, to specific persons or bodies, namely: legal advisors, employers,
members of Cabinet, the Public Protector or the Auditor-General. The
employee must make the disclosure:
• in good faith, and
• must reasonably believe that the information disclosed is
substantially true (suspicions, rumours and personal opinion do not
constitute information).
•
In Theron: the disclosure by a prison doctor relating to the poor health care
of prisoners to the Inspecting Justice of Prisons and the relevant
Parliamentary Committee, was found to be a protected disclosure.
In Young: the court stated that an employee has a choice of approaching the
Labour or the High Court regarding matters relating to the PDA.
In Engineering Council of South Africa v City of Tshwane: a managing

engineer, employed by the Municipality, informed the employer, and cc’d the
Engineering Council and the Department of Labour, that the employer wanted
to appoint unskilled and inexperienced people who were unable to perform
the duties in the electrical control section. The court found that the copying
of the letter to the Engineering Council and the Department of Labour
complied with a protected disclosure. The municipality was therefore not
allowed to discipline him or to impose any sanction on him for having made
the disclosure.
The Resolution of Unfair Labour Practice Disputes

1. Alleged unfair labour practice by employer
2. The first step is for the Employee to refer the dispute to a BC/the CCMA
for conciliation (90 days) (ULP disputes MUST be referred to the CCMA)
3. If conciliation is successful, the matter is resolved
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4. IF UNSUCCESSFUL – the dispute must be arbitrated by the bargaining

council or the CCMA at the request of the employee.
Exceptions to the Dispute Resolution

1. When instituting a dispute resolution for Probation, the LRA makes
provision for con-arb process. This makes provision for the conciliation
process, that if it fails, the commissioner will immediately continue with
arbitration.
2. S191(13)(a) LRA – the employee may refer an unfair labour practice
dispute based on an alleged Occupational Detriment Based on a
Protected Disclosure to the LC for adjudication.
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EMPLOYMENT EQUITY AND AFFIRMATIVE ACTION
Employment Equality and the Constitution

The Employment Equity Act (EEA) aims to counter and eliminate
discrimination and to promote affirmative action in the workplace.
S9 of the Constitution provides for employment equality and indicates that
the promotion of equality relies on two bases:
1. Formal equality = Equality in treatment - focuses on protecting
individuals against discrimination. It regards individual ability and
performance as the only factors which relevant to achieve success in
society. Formal equity is protected through the prohibition against
unfair discrimination;
2. Substantive equality = Equality in outcome - recognises that
opportunities are determined by an individual’s status as a member of
a group. Discriminatory acts are part of patterns of behaviour towards
groups, which result in disadvantage for those groups. The prohibition
of unfair discrimination is insufficient to achieve true equality, and
therefore affirmative action measures are required to correct
imbalances where disadvantage and inequality exist. Substantive
equality is protected through the adoption of protective measures or
affirmative action to empower previously disadvantaged groups in
society.
There is a third dimension to equality often referred to as ‘equality of

opportunity’, which extends the divide between formal equality (which
requires equal treatment) and substantive equality (which allows for ‘unequal
treatment’ in certain circumstances). It recognises that there may be hidden
barriers to the advancement of protected groups in employment.
The EEA has a twofold purpose namely:
1. to protect employees against unfair discrimination; and
2. to ensure the implementation of affirmative action measures by
designated employers for designated employees.
Affirmative action is aimed at remedying the injustices of the past that were
caused by the apartheid system. It requires that suitably qualified people from
the designated groups be given equal employment opportunities and be
equitably represented at all levels. This promotes fairness and ubuntu, in that
social justice and human dignity are restored to those who were previously
disadvantaged.
The purpose & structure of the EEA is “to achieve equality in the workplace
by –
(a) promoting equal opportunity and fair treatment in employment
through the elimination of unfair discrimination; and
(b) implementing affirmative action measures…”
The Prohibition of Unfair Discrimination

Section 6 of the EEA gives content to the Constitution and states as follows:
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“every employer must take steps to promote equal opportunity in the workplace
by eliminating unfair discrimination in any employment policy or practice.
Prohibition of unfair discrimination:
1) No person may unfairly discriminate, directly or indirectly against an
employee, in any employment policy or practice, on one or more grounds;
including race, gender, sec, pregnancy marital status, family
responsibility, ethnic or social origin, colour, sexual orientation, age,
disability, religion, HIV status, conscience, belief, political opinion,
culture, language, birth or any other arbitrary ground;
2) It is not unfair discrimination to –
a) Take affirmative action measures consistent with the purpose of this
Act;
b) Distinguish, exclude or prefer any person on the basis of an inherent
requirement of a job
3) Harassment of an employee is a form of unfair discrimination and is
prohibited on anyone, or a combination of grounds of unfair
discrimination listed in subsection (1).
Section 5 of the EEA places a positive duty on every employer to take steps to
promote equal opportunities in the workplace by eliminating unfair
discrimination in any employment policy or practice. This duty compels an
employer to take measures to reasonably accommodate certain groups of
employees. For example:
• the Code of Good Practice: Key Aspects of HIV/AIDS and Employment;
and
• the Code of Good Practice on the Employment of People with Disabilities
provide guidelines as to how HIV/AIDS and disability should be dealt
with and accommodated in the workplace.
• The Amended Code of Good Practice on the Handling of Sexual
Harassment Cases in the Workplace (see Government Notice 27865 in
Government Gazette No 482 of 4 August 2005 places an obligation on
employers to be pro-active in preventing and addressing sexual
harassment in the workplace.
Who is Protected?
• Section 6 of the EEA protects an ‘employee’ against unfair
discrimination and section 9 extends the protection to applicants for
employment.
• Note: Section 6 provides that ‘no person’ (and not ‘no employer’) may
unfairly discriminate. This means that other persons such as fellow
employees or the employees of contractors working in the workplace
may be included.
• S60 EEA provides that an employer may be held liable for
discriminatory actions of its employees.
o If it is alleged that an employee is guilty of unfair discrimination,
it must be brought to the attention of the employer;
o The employer must consult with the relevant parties and take
steps to eliminate unfair discrimination;
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o Failure to do so will result in the employer being held liable.

o This section generally arises in the context of sexual harassment.
The meaning of Employment Policy or Practice:

Section 6 of the EEA prohibits unfair discrimination against an employee ‘in
any employment policy or practice’.
Section 1 of the EEA states that employment policy or practice’ includes the
following:
• recruitment procedures, advertising and selection criteria;
• appointments and the appointment process;
• job classification and grading;
• remuneration, employment benefits and terms and conditions of
employment;
• job assignments;
• the working environment and facilities;
• training and development;
• performance evaluation systems;
• promotion;
• transfer;
• demotion;
• disciplinary measures other than dismissal; and
• dismissal.
The definition is non-exhaustive and makes it clear that employees are

protected against unfair discrimintation in all policies and practices engaged
in by employers and this protection relates to all stages of employment.
However, S10 EEA clearly states that disputes about discriminatory
dismissals should be dealt with in terms of Chapter VIII of the LRA as
automatically unfair dismissals in terms of which the LRA provides the
employer with 2 defences:
1. inherent requirements of the job;
2. the employee has reached the normal/agreed age of retirement.
While defences available to discrimination claims in terms of the EEA are:
1. Inherent requirements of the job;
2. Affirmative action.
What is the meaning of Discrimination?

The EEA prohibits unfair discrimination but does not define the concept
therefore, it has been left to our courts to define the concept of ‘unfair
discrimination’
In Harksen v Lane: the CC distinguished between differentiation and

discrimination. Differentiation (treating people differently) does not
necessarily constitute discrimination and will be acceptable where it is based
on a valid ground and serves a legitimate purpose.
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In order to understand the meaning of this concept it is important to be able

to distinguish between:
• differentiation,
• discrimination and
• unfair discrimination.
Differentiation could take the form of:

• the employer including some employees and excluding others (for
example, during an appointment procedure),
• preferring some employees over others (for example, during a promotion
or eligibility for training),
• paying one employee more than another,
• extending certain benefits to some employees and not to others, etc.
Note: differentiation itself is not prohibited by the EEA – it is only when the
differentiation is linked to an unacceptable reason (called a ground of
discrimination) that the differentiation constitutes discrimination.
There may be a number of reasons for differentiation between people, namely:

• educational qualifications
• experience
• seniority
• operational requirements
• safety considerations
Discrimination is a specific form of differentiation, which is based on

illegitimate/unlawful grounds (even where there was no intention to
discriminate). As to what would constitute illegitimate grounds (thus elevating
differentiation into the realm of discrimination), there are two possibilities:
1. listed grounds, and
2. unlisted grounds
The EEA provides a list of prohibits against unfair discrimination in any

employment policy or practice. The specified grounds in the list have the
potential to demean people. These grounds often relate to an individual’s
personal attributes such as biological characteristics (race, age, sex) or their
associational, intellectual, or religious beliefs.
It is, however, possible for other grounds of discrimination, which are not
contained in the list, to exist (i.e. unlisted grounds). If an employee or job
applicant alleges that he has been discriminated against on the basis of an
unspecified ground, the court will consider whether the differentiation is
based on attributes or characteristics which impair a person’s dignity as a
gauge to establish whether the claimed unspecified ground could form the
basis for discrimination.
Examples of unlisted grounds on which cases have been based, include:

qualifications, tertiary teaching and research expertise, professional ethics,
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mental health/illness, political or cultural affiliation, citizenship and being a

parent.
An objective test must be applied to ascertain whether differentiation is based

on a listed or unlisted ground. Only once discrimination is found to exist can
it be established whether or not the discrimination was unfair.
S6(1) of the Amendment Act has specifically included “Any other arbitrary
ground” on which one can discriminate. There is however debate on the
addition to this section the specific definition of arbitrary. On one hand,
arbitrary would be included in the definition of specified or unspecified
grounds. On the other hand, it could be argued, as from Harksen v Lane, that
arbitrary grounds would specifically exclude the impairment of dignity. In a
case such as this, if an employee or applicant for employment alleges, for
example, discrimination on an unlisted or arbitrary ground, the court will
investigate whether the dignity of the person has been affected.
The meaning of Unfair Discrimination
Neither the Constitution nor the EEA prohibits discrimination, but both
prohibit ‘unfair’ discrimination. Accordingly, not all acts of discrimination (ie
basing decisions on listed or unlisted grounds of discrimination) are unfair.
Section 6(2) of the EEA provides two defences to discrimination claims
namely, affirmative action and an inherent requirement of a job.
S6(1) EEA: no person may unfairly discriminate against an employee in any

employment policy or practice.
To prove differentiation on a specified/unlisted/unspecified/arbitrary

ground, one must prove the link between such ground and the differentiation
(or that the ground is the reason for the differentiation).
S11
1. If unfair discrimination is alleged on a ground listed in Section 6(1), the
employer against whom the allegation is made must prove, on a balance
of probabilities that such a discrimination –
(a) Did not take place as alleged;
(b) Is ration and not unfair, or is otherwise justifiable
2. If unfair discrimination is alleged on an arbitrary ground, the

complainant must prove, on a balance of probabilities that –
(a) The conduct complained of is not rational;
(b) The conduct complained of amounts to discrimination; and
(c) The discrimination is unfair
The person alleging discrimination on a listed ground does not bear the
burden of proving either discrimination or its unfairness but does bear the
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evidential obligation to allege unfair discrimination properly therefore, the

onus rests with the employer.
In Sasol Chemical Operations (Pty) Ltd v CCMA: the LC held that the
employee must produce sufficient evidence to cast doubt on the reason put
forward by the employer for its actions. Thereafter, the employer must prove
the contrary.
Where a discrimination case is based on an unlisted(arbitrary) ground, the

applicant employee must prove both discrimination and the unfairness
thereof.
Direct and Indirect Discrimination
Direct Discrimination
= Occurs where the differential treatment of employees is clearly and expressly
based on one or more of the prohibited grounds of discrimination, be they
listed or unlisted (section 6).
Example: a female employee not being granted certain benefits, or being paid
less because she is a woman, or an employee not being promoted because he
is disabled.
Indirect Discrimination
= Occurs where an employer applies a policy, a requirement or a condition
that appears to be neutral (in the sense that it does not clearly and directly
discriminate on one of the grounds of discrimination) equally to all employees.
However, the application of that policy, requirement or condition has a
disproportionate negative or exclusionary effect on a certain group of
employees.
Example: a requirement that an applicant for employment must weigh 80kgs

and be 6 foot tall. In such instance more men than women will qualify. Unless
this can be justified by the inherent requirements of the job, it will constitute
indirect discrimination.
Justifying Discrimination
An employer may argue that the discrimination is justified because of an
inherent requirement of a job. It may argue that the physical requirements of
the job make it necessary for employees to have certain physical
characteristics. But it is the employer who will have to prove that certain
characteristics are indeed an inherent requirement of a job.
S6(2) EEA: there are two grounds of justification for alleged unfair
discrimination, namely:
1. the inherent requirements of the job or
2. affirmative action measures.
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Section 6(2) expressly states that affirmative action is ‘not unfair

discrimination’. Every affirmative action decision is expressly based on
(typically) race or sex/gender (i.e. all listed grounds). Put differently, whenever
an employer applies affirmative action, there expressly will be differentiation
based on race or sex/gender.
Note: that there is also a ‘general fairness’ defence.
1. Inherent Requirements of the Job

The employer may argue that the physical requirements of the job make it
necessary for employees to have certain physical characteristics
• The onus = on the employer to prove that certain characteristics are
indeed the inherent requirements of the job.
• An inherent requirement of the job must be established with reference
to what is reasonably necessary to the normal operation of that
business and only those qualifications that affect an employee’s ability
to exercise the essential duties pertaining to a job.
• Sex may be an inherent requirement of the job for reasons such as:
o authenticity purposes for e.g. a male actor is required for a male
role in a soap opera. The exclusion of females for this job will not
amount to unfair discrimination;
o privacy and intimacy for e.g. a female nurse required to work in
a maternity ward or a female counsellor to work with female rape
victims
• What ultimately determines whether the defence is successful is not the
context itself but rather the essence of the business and the essence of
the job in question.
2. Affirmative Action
• Every Affirmative action decision is expressly based on listed grounds
such as race/sex/gender
• The Constitutional Court has pointed out that Affirmative action is not
an exception to equality but rather an integral part of it.
• The EEA gives effect to S9(2) of the Constitution (substantive equality).
• Affirmative action measures
o must be applied by designated employers
o to ensure that suitably qualified people
o from designated groups
o have equal employment opportunities and
o are equitably represented
o in all occupational categories and levels in the workplace
• If an employer raises affirmative action as a defence against unfair
discrimination, the affirmative action measures must be consistent with
the purpose of the EEA.
The General Fairness Defence

From the wording of the EEA it does not appear that affirmative action and
the inherent requirements of the job are the only defences to a charge of
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discrimination and in the absence of these defences an employer may argue

that the discrimination was fair.
Case law suggests that the ‘General Fairness’ defence depends on proper
consideration of the following factors in the context of every case:
1. The impact of the employer’s conduct on the dignity of the complainant;
2. The legitimacy of the employer’s goal;
3. The rationality of the employer’s conduct whether there is a logical
connection between the employer’s conduct and the legitimate goal the
employer seeks to achieve;
4. The proportionality of the employer’s conduct – whether there are less
discriminatory/non-discriminatory measures available to achieve the
same goal;
5. Even if there were no less discriminatory/non-discriminatory
alternatives available, whether the employer could reasonably
accommodate the employee in question by for e.g. reorganising the
work/adapting the employee’s duties/place of work.
In TFD Network Africa (Pty) Ltd v Faris: the LAC held that the general
fairness defence to a discrimination claim is not an open ended and
irresponsible dilution of protection against discrimination. It remains subject
to strict legal requirements.
Harassment as Unfair Discrimination

Section 6(3) of the EEA provides that harassment amounts to ‘a form of unfair
discrimination’ and is also prohibited. The most prevalent forms of
harassment encountered in the workplace are sexual harassment, racial
harassment, sexual orientation harassment and religious harassment. Of
these, sexual harassment, particularly is the most prevalent.
Definition of Sexual Harassment

The term ‘sexual harassment’ refers, in the first instance, to unwelcome
conduct of a sexual nature.
There are a number of ways in which sexual harassment may be defined.

Often, the term is defined or described with reference to the type of conduct
involved or the effect of the conduct on the victim. The following types of
conduct may amount to sexual harassment:
• physical conduct = touching, sexual assault, rape and strip searching
in the presence of the opposite sex.
• verbal conduct = sexual innuendoes, suggestions, hints, sexual
advances, sex related jokes, insults, graphic comments about a
person’s body made to the person or in their presence, enquiries about
the person’s sex life.
• non-verbal conduct = gestures, indecent exposure or display of
sexually explicit pictures/objects
139
Forms of Sexual Harassment

• Quid pro quo harassment = Employment circumstances, for example,
promotion or an increase, are influenced by the employer, manager or
a co-employee to coerce an employee to surrender to sexual advances
• Sexual favouritism = a person in a position of authority rewards only
those who respond to his sexual advances
• Victimisation = An employee is victimised or intimidated for failing to
submit to sexual advances.
• Hostile Working Environment harassment = when an abusive
working environment is created by for e.g. jokes, sexual propositions,
sexual innuendoes which are offensive to an employee, pornographic
pictures on office walls etc. which make the environment difficult for
the employee to work in.
o This form of harassment does not depend on the relationship of
actual power in the workplace but commonly takes place
between employees at the same level in the organization.
What conduct constitutes harassment in the legal sense?

• In order to become harassment, the conduct must also attain a certain
level or degree of unacceptability.
• However, the question is which test should be applied; whether a
subjective or an objective test.
o A subjective test relies exclusively on the perceptions of the
victim. i.e. if the victim experienced conduct as unwelcome or
offensive, the conduct would constitute harassment. But the
victim may be over-sensitive, and a subjective test may very well
cast the net of harassment too wide. A purely subjective test
would mean that one would have to take the complaining
employee’s word even though there is no fault (intention or
negligence) on the part of the employer or perpetrator seen in the
context of the nature of the conduct and surrounding
circumstances.
o An objective test would look at all the circumstances of the case
and the values of society, and, using a standard ‘reasonable
person’ test, try to determine whether the perpetrator foresaw,
or should reasonably have foreseen, that his/her conduct would
constitute sexual harassment.
• In terms of the Code, sexual harassment is:
o unwelcome conduct of a sexual nature that violates the rights
(such as dignity and privacy) of an employee;
o conduct that constitutes a barrier to equity in the workplace, and
o action based on sex and/or gender and/or sexual orientation,
whether the conduct was unwelcome or not.
• The test for harassment moves away from the standard objective test
and towards a more subjective approach – In Motsamai v Everite
Building Products (Pty) Ltd:
o Sexual harassment = the most heinous misconduct that plagues
the workplace;
140
o It is demeaning and undermines the victim’s dignity, integrity

and self-worth;
o Sexual harassment goes to the root of one’s being and must
therefore be viewed from the point of view of a victim:
§ How does she perceive it; and
§ Whether or not the perception is reasonable.
Employer liability for Sexual Harassment and the importance of a

Harassment Policy
In Liberty Group Ltd v M: the LAC approved the requirements to be met for
the employer’s liability in terms of S60 EEA:
• The sexual harassment conduct complained of was committed by
another employee.
• It was sexual harassment constituting unfair discrimination.
• The sexual harassment took place at the workplace.
• The alleged sexual harassment was immediately brought to the
attention of the employer.
• The employer was aware of the incident of sexual harassment.
• The employer failed to consult all relevant parties or take the necessary
steps to eliminate the conduct [and] otherwise comply with the
provisions of the EEA.
• The employer failed to take all reasonable and practical measures to
ensure that employees did not act in contravention of the EEA.
Employees have a choice to either rely on:

• section 60 to hold employers liable or
• on the common law principles of vicarious liability, or
• on both in the alternative.
It is not possible to hold an employer liable in terms of section 60 where the

perpetrator is not an employee, but, for example, a customer.
For the employer to be held liable for discrimination by employees in terms of

section 60 of the EEA:
1. the employer must have been made aware of the conduct and
2. then did nothing or
3. did not do everything that could be expected of a reasonable employer.
Employers are required to adopt a sexual harassment policy and to

communicate the policy effectively to all employees - The policy should contain
clear procedures dealing with instances of sexual harassment in a sensitive
(including confidential) efficient and effective way.
Once the employer is informed of the harassment it should:

• consult all relevant parties;
• take the necessary steps to address the complaint in accordance with
the Code and the policy; and
141
• take the necessary steps to eliminate the sexual harassment.

o This, in turn, should include:
§ providing advice to the complainant about the informal
and formal procedures available to deal with the sexual
harassment;
§ offering the complainant advice, assistance and
counselling during the process (including during any
disciplinary enquiry that may be instituted) as well as
§ implementing the chosen procedure in a manner that is
procedurally and substantively fair.
• The advice and counselling should be dispensed by a person who is
designated by the employer.
• In terms of the Code either of the two ways may be used to deal with
instances of sexual harassment.
1. Try and resolve the problem on an informal basis; or
2. A more formal procedure may be embarked upon.
• The employer must deal with grievances and inquiries on a confidential
basis. The names of the victims must be kept confidential.
If the victim is not satisfied with the outcome of the internal procedures she
may refer the dispute, within 30days after the dispute has arisen, to the
CCMA for conciliation and if unresolved it may be referred to arbitration.
Employers are entitled to institute disciplinary proceedings where there is

significant risk of harm to other employees.
Other Remedies of Sexual Harassment

At times victims of sexual harassment choose to resign rather than to be
subjected to further harassment. The employee who resigns may argue that
there was a constructive dismissal. If the employee can prove that there was
a constructive dismissal and can show that discrimination in the form of
harassment gave rise to that constructive dismissal, the employer’s conduct
may constitute an automatically unfair (constructive) dismissal. Courts may
also order compensation on the basis of an automatically unfair dismissal
arising from discrimination.
It may also be possible to institute claims for:

1. Compensation on the basis of an automatically unfair dismissal; and
2. Compensation and/or damages arising from discrimination where both
causes of action arose from the same set of facts.
In Ntsabo v Real Security CC: the employee resigned following sexual
harassment by a superior and the failure by her employer to take steps
against the harasser. She claimed:
1. Unfair dismissal (constructive Dismissal) in terms of the LRA; and
2. Unfair discrimination in terms of the EEA
She was awarded both compensation and damages in terms of S50 EEA.
142
A victim of harassment may also institute a civil claim against the perpetrator
based on delict and/or the employer either based on the common law
principles of vicarious liability for delict or possibly, arising from a breach of
the common law contractual duty to provide a safe (including psychologically
safe) working environment.
Medical and Psychological Testing

Testing may be used to evaluate applicants for employment to determine
whether they are suitable for the job, and to evaluate existing employees. The
EEA regulates medical testing in general, HIV/AIDS testing, psychological and
other similar assessments. Such testing does not in itself constitute
discrimination, but the manner in which it is carried out may be
discriminatory.
1. Medical Testing
Section 7 of the EEA prohibits the medical testing of an employee unless
• legislation requires the testing, or
• if testing is justifiable in the light of medical facts, employment
conditions, social policy, the fair distribution of employee benefits or
the inherent requirement of the job.
2. Psychological Testing
Section 8 of the EEA prohibits ‘psychological and other similar assessments’
of employees unless:
• it has been scientifically shown that the test used is valid and reliable,
• can be applied fairly to all employees and
• is not biased against any employee or group
• has been certified by the Health Professions Council or another body
authorized by law.
3. HIV/AIDS Testing
• S6(1) of the EEA lists HIV/AIDS status as one of the grounds on which
an employee may not be discriminated against. This means all the
general principles of discrimination law apply to conduct by an
employer which may constitute discrimination on the basis of the
HIV/AIDS status of an employee or prospective employee.
• S7(2) of the Act provides that the testing of an employee to determine
that employee’s HIV status is prohibited unless the testing is held to be
justifiable by the Labour Court.
• S7(2) does not prohibit all kinds of HIV/AIDS testing – some major
employees make HIV testing available as part of their ‘wellness
programmes’ in terms of which:
o Testing must be confidential; and
o Based on informed consent – the patient must appreciate and
understand the object and purpose of the test and entails
counselling before and after testing.
143
In Joy Mining Machinery: the following factors were specified as

circumstances under which HIV testing would be allowed
• to prevent unfair discrimination;
• if the employer needed HIV testing to determine the extent of HIV in the
workplace in order to place itself in a better position to evaluate its
training and awareness programmes, and in order to formulate future
plans based on the outcome of the tests;
• if the purpose of the testing was that the employer needed to know the
prevalence of HIV at its workplace in order to be pro-active in its
prevention amongst employees, and in order to treat the symptoms and
to plan for contingencies, including the fair distribution of employee
benefits, medical aid and training of replacement labour;
• if medical facts indicated the need;
• if employment conditions required testing;
• if social policy required testing;
• if the inherent requirements of the job necessitated it, or
• if particular categories of employees/jobs required such testing.
In Irvin & Johnson v Trawler & Line Fishing Union: the court stated that
the employer did not need to approach the Labour Court for authorisation to
test if the testing was voluntary and anonymous, as there could be no unfair
discrimination in which circumstances.
The Code of Good Practice on HIV and AIDS and the World of Work
= provides guidelines to employers and employees on how to deal with
HIV/AIDS in general, part of which is the provision of guidelines relating to
the testing of employees. However, the Code remains subject to the provisions
of the EEA itself.
HIV/AIDS & Disability

An employee who is too sick can be dismissed, not because of HIV/AIDS but
because of (medical) incapacity to perform the job. However, employers will
have to ensure that they do not dismiss prematurely or on generalised
assumptions about the abilities of HIV positive and AIDS infected employees
to do their jobs.
Equal Pay
Section 6(4) of the EEA states that a difference in terms and conditions of
employment between employees of the same employer performing the same
or substantially the same work or work of equal value that is directly or
indirectly based on any one or more of the grounds listed in subsection (1), is
unfair discrimination.
To give content to section 6(4) of the EEA, the Minister of Labour issued the
Employment Equity Regulations, 2014 as well as a Code of Good Practice on
Equal Pay/Remuneration for Work of Equal Value.
144
The regulations provide for the meaning of the ‘same’ work, ‘substantially’ the
same work or ‘work of equal value’ and provides for specific defences against
these types of claims.
Same Work:
• one employee does the same work as another for the same employer
• identical/interchangeable
• sufficiently similar (they should be able to do the same job as each
other)
• substantially the same
All of the above, if satisfied, will be regarded as the “same” work
Equal Value
• the same value of work of another employee in a different job
• assessed objectively, excluding any bias of race/gender/disability etc,
looking at:
o responsibility
o skills and qualifications
o physical/mental/emotional strain
o conditions of work
o any other relevant factor
An employer may justify differences under the following circumstances:

• sectorial determination determines the value
• Other fair and rational factors:
o Seniority
o Length of service
o Qualifications
o Ability
o Competence
o Performance and quality thereof
o After a demotion of an employee without a salary drop
o Employed temporarily to gain experience
o Shortage of relevant skills
Disputes about Discrimination

• Section 10 of the EEA provides that a dispute about unfair
discrimination must be referred to the CCMA for conciliation within six
months after the alleged discriminatory act or omission.
• In the reference to the CCMA, the referring party must indicate that it
has ‘made a reasonable attempt to resolve the dispute’. This may
include getting help from a fellow employee, a trade union, or utilising
the internal grievance procedure.
• If conciliation fails, the jurisdiction to hear discrimination disputes is
divided between the CCMA and the Labour Court as follows:
o all cases of unfair discrimination based on the grounds of sexual
harassment may be referred to the CCMA;
145
o all other cases of unfair discrimination may be referred to the

CCMA if the employee earns below the threshold amount
determined by the Minster of Labour in terms of the section 6(3)
of the BCEA;
o all cases of unfair discrimination other than sexual harassment
where the employee earns more than the threshold amount
determined in terms of section 6(3) of the BCEA must be referred
to the Labour Court unless all the parties to the dispute consent
to arbitration of the dispute).
• A ‘reasonable attempt’ = no more than an effort on the part of the
employee to resolve a dispute internally up to the point where it is clear
the employer does not intend to provide relief.
• If a discrimination case is heard by the CCMA – the award may be taken
on review to the LC or on appeal to LC.
o Unlike a review, an appeal constitutes a full reconsideration of
the merits of the case
• In discrimination cases the LC may make an appropriate order that is
just and equitable which include:
o Compensation;
o Damages; or
o Orders directing the employer to take preventative steps.
• Where discrimination cases are heard by the CCMA the commissioner
may make an appropriate award which may include:
o Compensation;
o Damages limited to the threshold amount determined in terms of
S6(3) BCEA; or
o An order directing the employer to take steps to prevent similar
discrimination against other employees in the future.
Burden of Proof
the EEA distinguishes between cases based on listed and unlisted grounds.
Listed grounds Unlisted grounds

• The employee must allege the The employee must prove:
unfair discrimination; • There was discrimination; and
• The employer must then prove: • The discrimination was unfair
o There was no discrimination; or
o The discrimination was fair
146
AFFIRMATIVE ACTION
The Concept of Affirmative Action

Section 9(2) of the Constitution allows for ‘legislative and other measures
designed to protect or advance persons, or categories of persons,
disadvantaged by unfair discrimination’ such as affirmative action.
In the Minister of Finance v Van Heeden: the CC held that - Affirmative

action measures have to meet three requirements in order to pass the
constitutional muster.
1. the measures must target people or categories of people who had been
disadvantaged by unfair discrimination.
2. the measures must also have been designed to protect or advance these
people or categories of people.
3. the measures must promote the achievement of equality.
The EEA regulates affirmative action in employment:

1. It gives a description of the goal of affirmative action in employment;
2. it seeks to ensure that affirmative action takes place in a rational
manner in that it gives effect to the constitutional requirement that
affirmative action must be ‘designed to protect or advance’ previously
disadvantaged persons.
The Goal of Affirmative Action & the Key concepts underlying

Affirmative Action
In terms of section 2(b) of the EEA, the goal of affirmative action is that
‘affirmative action measures’ should be taken by ‘designated employers’ to
ensure the ‘equitable representation’ of ‘suitably qualified’ persons from the
‘designated groups’ ‘in all occupational levels’ in the workplace.
The Beneficiaries of Affirmative Action – ‘Suitably qualified persons form

the designated groups’
The following people form part of designated groups: ‘black people, women
and people with disabilities’:
• ‘black people’ is defined to include Africans, Coloureds and Indians;
• ‘people with disabilities’ are ‘people who have a long-term physical or
mental impairment which substantially limits their prospects of entry
into, or advancement in, employment’, and
• a ‘suitably qualified person’ is a person who may be qualified for a job
as a result of any one (or a combination) of that person’s formal
qualifications, prior learning, relevant experience or his/her capacity to
acquire, within a reasonable time, the ability to do the job.
Take note that persons may only be beneficiaries of affirmative action if they
are, in fact, South African citizens and that the term ‘black people’ also
includes people of Chinese descent.
147
Q: Does a person have to show actual past discrimination in order to qualify

or is membership of one of the aforementioned groups enough?
A: it has been accepted that mere membership of one of those groups is
sufficient for the purposes of the EEA.
Q: who may decide to which of the designated groups a person belongs to?
A: Item 5.3.10 of the Code of Good Practice on the Integration of Employment
Equity into Human Resources Policies and Practices – provides that it is
preferable, for employees to define themselves to enable an employer to
allocate them to a designated group and in the absence of such self-
identification will the employer rely on existing or historical data to determine
the employees designated group status.
Regulation 8 of the Employment Equity Regulations authorizes employers to

request employees to complete a written declaration as to the designated
group he belongs to and to indicate whether he has a disability.
• Where 2/more people from the same designated groups compete for the
same position – merit alone should remain the decisive factor;
• When people from different designated groups compete for the same
position (e.g. coloured man vs white woman or Indian woman vs African
Man):
o In the past: the court’s/tribunals accept that different groups
did not experience the same degree of discrimination and
therefore afforded preference to those who suffered the most (e.g.
Fourie v Provincial Commissioner of SA Police Services (Western
Province))
o Today: Rules of preference based on degrees of past disadvantage
remain subject to actual levels of under representation of
different groups at a particular job level in the workplace.
‘People with Disabilities’ - The Code of Good Practice on the employment of

People with Disabilities:
• A physical impairment = a partial /total loss of bodily function or part
of the body;
• A mental impairment = a clinically recognized condition or illness that
affects a person’s thought process. Judgement or emotions;
• Long term = persistence or likely persistence of the impairment for 12
months;
• Recurring = it is likely to happen again in a substantially limiting way;
and
• ‘Substantially limiting’ = the nature, duration or effect of the
impairment substantially limits a person’s ability to perform the
essential functions of the job.
Certain conditions are not regarded as a disability such as:

• Sexual behaviour disorders (e.g. paedophilia)
• Self-imposed body adornments (e.g. tattoos)
• Compulsive gambling
148
• Kleptomania
• Pyromania
• Normal deviations in height, weight and strength.
‘Suitability Qualified Persons’

= is a person who may be qualified for a job as a result of anyone (or a
combination) of:
• that person’s formal qualifications (degrees/diplomas),
• prior learning (diplomas not completed),
• relevant experience or
• his capacity to acquire, within a reasonable time, the ability to do the
job (the potential of the person).
• The EEA rejects tokenism.

• When determining whether a person is suitably qualified for a job, an
employer must review all these factors and determine whether the
person has the ability to do the job.
• The employer may not unfairly discriminate against someone solely on
the ground of that person’s lack of relevant experience.
• People who are not suitably qualified cannot be considered for
affirmative action.
Who has to Implement Affirmative Action measures?
‘Designated Employers’
Only designated employers are required to apply affirmative action measures.
• An employer that does not fall within any one of these categories may
voluntarily indicate that it intends to comply with the Act.
• An employer who deliberately takes steps to avoid becoming a
designated employer is guilty of an offence.
Designated employers include:

• Larger enterprises, with 50 or more employees
• Employers who employ fewer than 50 employees, but whose annual
turnover in any given year exceeds that specified in Schedule 4 of the
EEA
• Municipalities
• Organs of state (ACSA, The Central Energy Fund, the Development
Bank of SA, Telkom, Eskom, the SABC and the SA Post Office)
• Employers that are designated as such in terms of a collective
agreement
National Defence Force, State Security Agency are specifically excluded and
are therefore NOT designated employers.
149
Affirmative Action Measures

In terms of section 15 of the EEA designated employers have an obligation to
implement affirmative action measures.
An affirmative action measure = ‘any measure aimed at ensuring equal
employment opportunities and equitable representation of suitably qualified
persons from designated groups in all occupational levels of the workforce’.
This does not only cover preferential appointment of members of designated

groups to vacant positions, but includes:
• preferential promotion;
• the development and training of employees in order to increase their
prospects of advancement;
• a duty on the employer to inspect employment policies and practices in
order to remove any employment barriers;
• measures to further diversify the workplace; and,
• a duty on the employer to make ‘reasonable accommodation’.
‘Reasonable accommodation’ means the modification or adjustment of a job

or the working environment that will enable a person from a designated group
to have access to, or participate or advance in, employment – such as:
• job restructuring
• the availability of the employer to provide transport
• personal assistants
• reserved parking spaces
All measures are subject to the notion of ‘unjustified hardship’.
S15 EEA provides that the measures implemented by employers may include
• preferential treatment and numerical goals (targeted recruitment),
• but not quotas (which require the attainment of fixed numbers over a
specified period of time).
‘Equitable Representation’ in all occupational levels

= determined by comparing an employer’s workforce and the demographic
profile of the national and regional economically active population.
When measuring the employer’s compliance with the provisions of the EEA,
the following factors must be considered:
The extent to which suitably qualified people are equitably represented in a

workplace, with regard to:
• the demographic profile of the national and regional economically active
population,
• the pool of suitably qualified people from designated groups, from which
the employer may reasonably be expected to promote or appoint
employees,
• present and anticipated economic and financial factors relevant to the
sector, and
150
• the employer’s present and planned vacancies in the various categories

and levels
• the employer’s turnover of labour;
• the employer’s progress in implementing employment equity in
comparison with other employers in comparable circumstances and in
the same sector;
• reasonable efforts made by the employer to implement its plan, and
• the extent to which an employer has made progress in eliminating
employment barriers that adversely affect people from designated
groups.
The Scheme of the Employment Equity Act

The EEA sets requirements in order to ensure both substantive and
procedural fairness. It places an obligation on every ‘designated employer’ to
implement affirmative action measures and sets out which affirmative action
measures can and may be taken in order to achieve the goal of equitable
representation. The Act also requires designated employers to draw up and
implement employment equity plans and to report on progress made while, it
provides for various enforcement mechanisms to ensure compliance.
The Employment Equity Plan

The employment equity plan is the focus in the implementation of affirmative
action in the workplace. More detailed guidelines are contained in the Code
of Good Practice on the Preparation, Implementation and Monitoring of the
Employment Equity Plan.
1. Consultation
With representative trade unions and/or the employees, or representatives
nominated by them. The interests of employees from across all occupational
categories and levels at the workplace, from both the designated as well the
non-designated groups, must be represented when consultation takes place.
The employer must consult on the following topics:

• the conducting of an analysis of its employment policies and practices,
procedures and the working environment;
• the preparation and implementation of the employment equity plan;
and
• the submission of reports to the Department of Labour.
2. Analysis
Collect information on and analyse:
1. All of its policies and procedures in order to identify employment
barriers that adversely affect people from designated groups.
2. A profile of the workforce in each occupational category and level
must reflect the degree of under-representation to enable the
employer to set targets as part of its employment equity plan.
3. Prepare and Implement and Employment Equity Plan

151
The plan must include inter alia:

• objectives to be achieved for each year of the plan;
• strategies and timetables
• duration of the plan;
• procedures to monitor and evaluate the implementation of the plan;
• internal procedures to resolve any dispute about the plan, and
• people in the workforce responsible for monitoring and implementing
the plan.
• The affirmative action measures to be implemented
4. Reporting
Designated employers must submit reports to the Department of Labour in
terms of S21 by completing Form EEA2 prescribed by the Regulations.
Reports are to be submitted annually by 1 October or 15 January (if submitted

electronically)
5. Income Differentials
S27 EEA requires all designated employer to submit statements (Form EEA4)
to the Employment Conditions Commission which is now the National
Minimum Wage Commission, about the remuneration and benefits received
by employees in each occupational level.
If the statement reflects disproportionate income differentials, the employer

must take steps to reduce such differentials – this can be done through for
e.g. collective bargaining.
Enforcement
The EEA provides for the following methods to enforce compliance with its
affirmative action provisions:
• Self-regulation
• Administrative procedures
• Court action
• State contracts
1. Self-Regulation:
Every employment equity plan must contain dispute resolution procedures
regarding the interpretation and application of the plan.
Employees or their nominated representatives therefore first have to try to

enforce compliance with the Act’s affirmative action provisions using such
procedures.
2. Administrative Procedures:
a. A labour inspector who has reasonable grounds for believing that an
employer is not complying with the EEA may try to obtain a written
undertaking from the employer that it will comply with the EEA.
152
b. If the employer refuses/fails to comply – the inspector may issue a

compliance order.
c. The Director General of Labour may also apply to have the compliance
order made an order of the Labour Court.
d. The Director General may also undertake a review to determine whether
the employer is complying with the EEA and may issue
recommendations to comply.
e. If the employer does not comply – the matter may be referred to the
Labour Court.
3. Court Action:
The ultimate jurisdiction to ensure compliance with the EEA rests with the
Labour Court.
The Labour Court has the power to:

• Make a compliance order an order of court;
• Direct the CCMA to conduct an investigation to assist the Court;
• Order compliance with any provision of the EEA;
• Impose fines on employers if they fail to comply with the EEA.
4. State Contracts:
Designated employers who want to enter into commercial contracts with
Organs of State must comply with the EEA and must attach to their tender
either:
a. a certificate of compliance issued by the Minister of Labour; or
b. a statement that it does comply.
If the requirements are not met:
a. the Organ of State may reject the offer made by the designated
employer; or
b. constitute grounds for the cancellation of a contract already concluded.

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1

Critical Law Studies CC ©

THE CONTRACT OF EMPLOYMENT AND ITS RELATIONSHIP WITH

Definition of The Employment Contract

perform their obligations to render their services to the employer (no-work,

1. There must be consensus/agreement between the parties

acknowledged that he understood and accepted that he was not an employee

3. Performance under the agreement must be physically possible.

4. The agreement must be legally possible and its conclusion must be

Negotiation and Formalities - The Balance of power in concluding the

Must the Contract be in Writing?

The Common Law Contractual Duties of the Parties:

1. To Tender Services To The Employer

2. To work competently and diligently:

• The employee is capable of doing the work but negligently fails to

3. To Obey Lawful and Reasonable Instructions Of The Employer

4. To Serve The Employer’s Interests And To Act In Good Faith

4. A general duty of fair dealing with employees?

1. To remunerate the employee

Other Terms and Conditions of Employment:

• Other duties of the employer and employee

employment has been terminated, regardless of the reason for that

It would be unreasonable to restrain a former employee from using his

Breach of the Employment Contract

E.g. if an employer fails/refuses to remunerate the employee or if an employee

Compensation = generally limited by legislation and a lump sum is awarded

Termination of the Employment Contract

1. Completion of the Contract:

A liquidator/trustee is appointed to wind up the affairs of the employer, who

carry on or be employed in any capacity or have any direct or indirect interest

An employee may terminate the contract summarily if the employer is guilty

Determining whether the breach is serious enough to warrant summary

It is possible that the conduct of the employer results in a breach thereby

In SA Music Rights Organisation Ltd: The court had to determine the

The employees letter of appointment provided that notice of termination would

The employee gave notice of termination on 8 January 2008 indicating that

The BCEA sets minimum standards relating to notice periods.

Notice given by an employee = resignation. In Lottering: the court

THE MEANING OF EMPLOYEE

It is important to be able to identify who is an employee. It is also important

Labour legislation and rights contained therein are only available to

Statutory definition of Employee

Part (a) of the definition

The absence of an employment contract does not necessarily exclude a person

In Discovery Health the Court had to determine whether foreign workers

Example – if a person works for a non-profit organization and he is paid by

that assistance in terms of a contractual agreement and whether that

Statutory and Judicial Exclusions and Inclusions

When does Employment commence?

The distinction between employees and independent contractors — the

1. The control test considers whether or not there is control over:

Control and subordination are important characteristics of the employment

2. The Organisation (integration) test considers whether or not

3. The Multiple or Dominant Impression test: It is often seen as the

All the factors together create what is called a ‘dominant impression’.

4. The Reality test looks at the “substance of the relationship as opposed

5. The Economic capacity Test looks at whether the employee’s income-

1. What the parties choose to call their relationship in their agreement is

While aimed at making it easier to establish a person’s status as an employee,

apply and the onus is on the person claiming to be an employee to prove

In Sibiya the Labour Court emphasised that whether an employee is casual

1. Fixed Term Employees

Secondly, employers often distinguish between different categories of

Section 198B(5) holds that any contravention of the aforementioned