Critical Law Studies CC © Labour Law Summary - Semester 2 2018 1

Critical Law Studies CC © 1
Labour Law Summary – Semester 2 2018
INDIVIDUAL LABOUR LAW
Who is an Employee?
The LRA defines an employee, in terms of S213 as:-

(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
If a person works for a non-profit organization and is paid by that organization,

he is considered an employee of that organization, however a volunteer charity
worker who is not paid, or a family member who helps out in a family business
without remuneration, will fall outside the scope of the definition.
5 TESTS DEVELOPED BY THE COURTS
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.
The Code and the control test:

- control includes the right to determine what work the employee will do, in
what manner the employee will work and what the employee’s working hours
will be, and
- control can be a term of the contract, but if it is not, this does not mean it is
not an employment contract.
2) The organization test considers whether or not

- the person is part and parcel of the organisation
- the person’s work is integrated into the organisation of the employer and not
just an accessory to it.
The Code and the organization test:

- an employee does not have to work from the employer’s building to show that
there is an employment relationship, and
- the tools of trade provided by the employer should be given a wide meaning
and may range from a computer or cell phone to building tools.
3) The dominant impression test is preferred by our courts due to its

“expansive” and “purposive” approach, and it looks at
- the employment relationship as a whole,
- it does not concentrate on only one factor.
- The factors which the court will consider when applying the dominant
impression test include:
1) The right to control or supervision
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or form is strictly prohibited and constitutes a breach of copyright.
2) The extent to which the worker depends on the employer in the

performance of his duties
3) Whether the worker is prohibited from working for another employer as
well
4) Whether the worker is required to devote a specific time to his work
5) Whether the worker is obliged to perform his duties personally
6) Whether the worker is paid according to a fix rate or by commission
7) Whether the worker provides his own tools or equipment
In terms of this test, the court will weigh up all the factors listed above and
consider whether the person is then more an employee than an independent
contractor.
The Code and the dominant impression test:

- the Code confirms the importance of this test and confirms that there is not
just one decisive factor to determine whether or not an employment
relationship exists.
- All factors should be taken into account when determining the relationship.
4) The Economic capacity Test looks at whether the employee’s income-

earning capacity is solely dedicated to the employer.
5) The Reality test looks at the “substance of the relationship as opposed to

the form thereof”.
LEGISLATIVE PRESUMPTION:
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:
a) the manner in which the person works is subject to the control or direction of
another person;
b) the persons hours of work are subject to the control or direction of another
person;
c) in the case of a person who works for an organization, the person forms part
off that organization;
d) the person has worked for the employer for an average of at least 40 hours
per month over the last 3 months;
e) the person is economically dependent on the other person for whom he
works/renders a service;
f) the person is provided with tools of the trade or equipment by the other
person;
g) the person only works for, or renders services to, one person.
The presumption does not apply to those employees who earn in excess of the
amount determined by the Minister, from time to time.
The Code also contains the following table in which an employee and
independent contractor are compared:
Employee Independent contractor

The object of the contract is to The object of the contract is to perform
render personal services a specified job or to produce a specified
result
The employee must perform the An IC may usually perform through
services personally others – he does not have to perform
personally
The employer may choose when to An IC must perform the work (or
make use of the services of the produce the required result) within a
employee period fixed in the contract
The contract terminates upon the The contract will not necessarily
death of the employee terminate upon the death of the IC
The contract will terminate upon The contract terminates on completion
the expiry of a specified period for of the work or the production of the
service in terms of contract required result
When does the employment relationship start?
Wyeth: The problem in this case was that the employer and employee had
concluded a contract of employment, however before the start of his
employment, the contract was terminated. The employee then claimed unfair
dismissal. The court in this case had to determine whether such termination
did in fact constitute a dismissal. The Court held that the definition of an
employee in terms of S213 of the LRA can be read to include a person who has
concluded a contract of employment and where the commencement is deferred
to a future date.
3 CATEGORIES OF EMPLOYEES
NON-STANDARD EMPLOYEES: chapter IX of the LRA was added to protect

vulnerable workers and promotes decent work. The Act creates 3 non-standard
employees namely, employees provided by a temporary employment service
(TES/Labour Brokers) or temporary employees; fixed-term employees; and part-
time employees.
1) Temporary Employment Services (TES/Labour Brokers):

• A temporary employee is employed by the TES.
• The Act defines TES as: “any person who, for reward, procures for or
provides to a client other persons who render services to, or perform work
for, the client, and who are remunerated by the temporary employment
service”.
• This creates a triangular relationship between the TES, temporary
employee and the client.
• The employee is supplied to the client by the TES on a temporary basis
or to render temporary service to the client.
• The TES is the employer of the placed employee but the employee
renders performance/ works for the client at the client’s workplace.
• An employee may be appointed to a client for a period of 3 months or less
or, for a longer period, as a substitute for an employee of a client who is
temporarily absent (eg. Maternity leave or sabbatical).
• The LRA provides that certain services may be declared as temporary
services and then the client would be allowed to appoint employees on
fixed terms for longer than the 3 month even though they would earn
less than the BCEA threshold. This however, may only be done in terms
of a collective agreement concluded in a bargaining council, a sectoral
determination or a notice published by the MOL.
• Employees earning more than the BCEA threshold of R 205433 are
excluded from the protection provided to non standard employees in
terms of the LRA.
• The temporary employee is regarded as the employee of the TES who is
responsible for all statutory obligations regarding the placed worker
provided that there is proper compliance with the provisions of the Act
and the appointment of temporary employees is for the right reasons (for
limited and unlimited periods of time)
• If there is non-compliance by the client (where the employee is not or no
longer performing a temporary service to the client) or in instances where
the client abuses the use of TES, the employee will be “deemed” to be the
employee of the client on an indefinite basis. This has created some
confusion because, for purposes of the LRA, it must be determined who
the employer is (the client? the TES? or are they considered joint
employers of the employee?).
• In Assign Services (Pty) Ltd v CCMA and Others, The LC stated that
the deeming provision makes, for purposes of the LRA, the client with
whom the employee is placed the employer. This does not affect the
existence or continuation of the contract of employment between the TES
and placed employee. Therefore, according to this view, both the TES and
the client become employers of he placed employee for the purposes of
the LRA.
• In NUMSA v Assign Services and Others, the LAC subsequently set
aside the decision of the LC by interpreting the deeming provision by
determining that the term ‘deemed’ means that the client becomes the
sole employer of the employee as soon as the three month period comes
to an end. Therefore, in order to determine who becomes the employer
one must NOT look at the person who performs the work or at who
places the employee or at the person who receives the service but rather
look at the nature of the service that is being performed.
o The aim of the deeming provision is to restrict the employment of
vulnerable workers by the TES to genuine ‘temporary work’;
o It does not create dual or parallel employers;
o It does not transfer the contract of employment between the TES
and worker to the client but rather creates a statutory relationship
between the client and the placed worker.
• The court held that there were no ground to keep the TES as the
employer once the client assumes all the responsibilities that lay with the
TES before the 3 month period expires.
o This is aimed at preventing the exploitation of placed workers;

o The ‘deemed’ employee of the client must be treated not less
favourably than an employee of the client performing the same or
similar work unless there is a justifiable reason for the different
treatment.
o The employee is therefore integrated into the business of the
employer in the same was as the other permanent employees of
the client
o The client will assume all the responsibilities that the TES had
before the expiration of the 3 month period.
ISSUES INVOLVING TES/LABOUR BROKERS:

• Trade unions have been calling for a complete ban on labour brokers in
order to increase protection of workers against abuse, exploitation and
low wages. The legislature has therefore made changes in order to extend
protection to vulnerable workers.
• Before commencing with its business, a TES must register in accordance
with the regulations published by the Minister of Labour thereby
preventing abuse of employees by dodgy labour brokers.
• In terms of the current LRA, an employee placed by a labour broker may
hold the employer and the client jointly and severally liable if the TES
contravenes:
o A collective agreement concluded in a bargaining council that
regulates the terms and conditions of employment,
o a binding arbitration award that regulates terms and conditions of
employment,
o the BCEA, or
o a determination made in terms of the BCEA
• Joint and several liability = the employee can take action against either
the TES or the client or both and the labour inspectors can enforce the
provisions or compliance with the BCEA against either or both parties.
• The Act provides further protection by:
o Compelling the TES to provide the employee with written
particulars of employment in line with the BCEA,
o Prohibiting the TES from employing and employee on terms and
conditions of employment in contravention of the LRA, any
employment law, sectoral determination or collective agreement
concluded in the bargaining council to which the client belongs.
PRIVATE AND PUBLIC EMPLOYMENT AGENCIES:

Private employment agencies:
• May not charge a job applicant a placement fee unless lawfully permitted
(the BCEA prohibits a fee in exchange for employment)
• May not deduct any money from the employee’s salary for her/his
placement with a client
• The agreement between the TES and the client must specify the
remuneration and the TES’ fee
• The TES must keep a register of work seekers and the clients where they
were placed
• Any provision in breach of the above will be invalid and unenforceable
Public Employment Services:

• Match work seekers with work opportunities;
• Register work seekers, vacancies and other work opportunities;
• Advise work seekers on relevant education and training;
• Offer vocational and career counseling;
• Assess work seekers to determine suitability, place work seekers,
exchange information among labour market participants.
2) Fixed Term Contracts:
• A fixed term contract is held by an employee whose contract is

terminated:
o at the occurrence of a specific event
o completion or task of a project
o on a specific date (this does not include retirement age)
• A fixed-term contract, or renewal thereof must be in writing and include
the reasons thereof.
• Fixed term contracts only apply with an employee employed for 3
months. An employer make use of these contracts successively for longer
than three months only if:
o The nature of work has a definitive time period
o Any justifiable reason.
• 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, continues to work for employer
• If employee is appointed for more than three months, the employer must
treat them like the same as a permanent employee performing the same
or similar work, unless there is a justifiable reason, for example,
seniority, experience, merit etc.
• If an employee has been employed for longer than 24 months, he/she
will be entitled to severance pay on termination of employment.
• the following employees are excluded from restrictions of fixed term
contracts:
o employees who earn more than R205 433 per year, set in terms of
the BCEA
o Employers with less than 10 employees
o An employer with less than 50 employees whose business has
been in operation for less than 2 years. However if the employer
conducts more than 1 business, or if the business was formed by
dissolution or division of another business, these restrictions will
then apply.
o If the employee is employed in terms of a fixed term contract

which is permitted in terms of statute/sectorial
determination/collective agreement.
• If there is non-compliance with the LRA:
o the contract is not a fixed term contract
o the employment is for an indefinite or permanent period and the
fixed term contract worker will become a permanent employee of
the employer
o the employee must be treated as a permanent employee
• Same work = the work is identical or interchangeable
• Similar work = the work is sufficiently similar that the workers may be
reasonably considered to be performing the same job even if the work is
not identical or interchangeable.
3) Part-Time Employees:
• 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 above provisions 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
STATUTORY EXCLUSIONS
The LRA (s2) and BCEA (ch4) specifically exclude the following categories of
employees from the definition of ‘employee’:
- Members of the National Defense Force
- Members of the State Security Agency (SSA) (the SSA consists of the National
Intelligence Agency, the South African Secret Service, the South African
National Academy of Intelligence, the National communications Centre and

Comsec)
Note: The exclusions of the SANDF only relate to uniformed members therefore,
the LRA does still apply to supporting staff members such as administrative
employees and cleaning staff.
EMPLOYMENT TAX INCENTIVE ACT (‘ETIA’)

This Act has provided subsidies and grants to employers to encourage them to
employ people between 18 and 29.
This focuses on employment “activation”, promoting employment growth.
This Act “proposes” the definition of an employee as, “natural person who works
directly for another person; and who receives or is entitled to receive remuneration
from that other person nut does not include and independent contractor”.
THE EMPLOYMENT SERVICES ACT:

Introduces the following important bodies:
1. The employment Services Board: To advise the MOL on various issues
regarding TES and protected work for people with disabilities;
2. Productivity South Africa: the objective will be to promote a culture of
productivity in the workplace;
3. Protected Employment Enterprises: responsible to promote work and
employment opportunities for people with disabilities.
THE EMPLOYMENT CONTRACT

An employment contract is
- a voluntary agreement
- between two parties
- in terms of which one party (the employee) places his labour potential at the
disposal and under the control of (works for) the other party (the employer)
- in exchange for some form of remuneration which may include money and/or
payments in kind.
REQUIREMENTS FOR A VALID EMPLOYMENT CONTRACT
1) There must be consensus/agreement between the parties

2) Both parties to the contract must have the necessary capacity to contract.
3) Performance under the agreement must be physically possible.
4) The agreement must be legally possible and its conclusion must be lawful.
5) If formalities are prescribed for the formation of the particular type of
contract, then these formalities must be complied with.
The existence of contract of employment may depend on an external fact such

as a particular condition. Any such condition must be lawful and free of unfair
discrimination:
• Suspensive conditions – must first be met before the contract of
employment can come into existence e.g. obtaining a valid work permit or
drivers licence.
• Resolutive Conditions – the contract of employment will commence
immediately but its continuation will depend on the fulfillment of the
condition e.g. the positive outcome of a particular process that has to

take place before a person can be considered fully appointed.
The employer must also display a statement of the employees’ rights in terms of
the BCEA in the official language spoken in the workplace.
UNPROTECTED ILLEGAL AND FOREIGN WORKERS

(Specifically focuses on the legal aspect)
In terms of the common law, illegal employment contracts or contracts in terms

of which people are employed to do illegal work (to steal, to be a prostitute or
employment of a child under the age of 15) are void and unenforceable.
In the Kylie case, the LC found that Kylie, a prostitute, was not entitled to the
LRA’s protection against unfair dismissal, as the courts (and the CCMA) could
not sanction or encourage illegal activities. The LC’s decision was overruled by
the LAC which held that the Constitutional right to fair labour practices extends
to ‘everyone’, including sex workers, and that although such workers may not
claim the remedies in terms of the LRA, they will be protected in terms of the
Constitution namely in terms of S23 (the right to fair labour practices) and S10
(dignity). A claim for fair labour practices will have to be brought in terms of
S23 Constitution and not in terms of the LRA, because there is no valid
employment contract, and she will not be protected against unfair dismissal. A
prostitute consequently now has a right to fair labour practices as a result of
the employment relationship, which exists irrespective of the illegality of the
type of work performed.
The court decided to award Kylie and amount of money, not in terms of the
principles of unfair dismissal found in terms of the LRA but in terms of the
Constitution. The reason was to compensate her for the fact that her dignity
was negatively affected because the ‘employer’ failed to follow a fair procedure in
terminating her services.
In the Discovery Health case, the court had to decide whether or not an
employee who did not have a valid work permit could claim unfair dismissal.
The court considered the Immigration Act, which prohibits employment of
illegal foreigners and which states that any employer who knowingly employs
an illegal foreigner in contravention of the Act commits an offence, and found
that the intention was to deter employers from intentionally hiring persons in
contravention of the Act. An employer should not be permitted to escape its
obligations, through criminal conduct by employing unauthorized persons. An
employer who employs an illegal foreigner may accordingly not refuse to pay a
worker on the basis that he is an illegal foreigner – such illegal foreigner may
still be able to enforce his contractual rights against the employer. The court
held that although an illegal foreigner is not protected by labour legislation,
such workers are protected by the Constitution which guarantees everyone the
right to fair labour practices and to dignity. The LAC accepted that although an
employment contract is needed for a claim of labour rights in terms of the LRA,
S23(1) Constitution provides wider protection than labour legislation and if a
person is in a relationship similar to that of an employment relationship, he
enjoys the protection of the right to fair labour practices.
In conclusion,
- If the employment contract is valid, it will be enforceable and the worker will
be protected by the LRA against unfair dismissal.
- If the contract is not valid, the worker is not protected by the LRA, but is still
protected by the S10 (right to dignity) and S23 (right to fair labour practices)
rights in the Constitution.
EMPLOYMENT SERVICES ACT (ESA) AND FOREIGN WORKERS:
The main objectives of this act are to:

• Promote employment;
• Regulate the employment of foreign nationals;
• Reduce unemployment; and
• Provide education and training to unskilled workers and work-seekers.
1) Protecting foreign employees: the Act protects foreign employees from

being forced by their employer to:
• Perform acts or duties which their permit does not authorize
• Any work contrary to their permit
NB: No employee may be forced to perform acts or duties against their will.
2) Regulation of employment of foreigners: The definition for “foreign
national” in terms of the ESA is as follows, “an individual who is not a South
African citizen or does not have a permanent residence permit issued in terms
of the Immigration Act”. The Act therefore regulates the employment of
foreign nationals by specifying that their employment must:
o Give effect and comply with S23 of the Constitution
o Not negatively impact the rights, expectations and labour standards of
South African workers
o Promote training of SA citizens and permanent residents.
o Employers may only employ workers with a valid work permit
o The employer may also be required to utilize the services of a Public
Employment Service.
The MoL will make regulations which will put a duty on the employers to
make sure that there are no other employees within the Republic which
satisfies the qualifications and skills needed, before recruiting a foreign
national. The employer must also prepare for skills transfer planning in
respect of any position in which a foreign national is employed.
THE EMPLOYER
An employer is not defined in any SA labour legislation, but can be described as
- any person or body which employs any person in exchange for remuneration,
(formal employment) and
- any person who permits any person to assist him in conducting his business
(labour brokers or temporary employment services).
DUTIES OF THE EMPLOYEE (Rights of the employer)
1) To render services to the employer

2) To work competently and to exercise due care and diligence
3) To obey lawful and reasonable instructions of the employer

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.
- NB: This is also known as the fiduciary duty of the employee toward the
employer.
- A disclosure of confidential information by the employee will amount to a
breach of this duty
DUTIES OF THE EMPLOYER (Rights of the employee)
1) To remunerate the employee

2) To provide work
3) Duty to provide safe working conditions
4) A duty of fair dealing with employees
VICARIOUS LIABILITY
In terms of the common-law doctrine of vicarious liability an employer liable for
the unlawful or delictual acts of an employee which are committed during the
course of business, and is based on the principle that the employer must
compensate those who suffer prejudice as a result of the wrongful conduct of its
employees.
Vicarious liability protects third parties, however, an employer will have

recourse against the offending employee and may discipline the employee for
misconduct and even claim repayment.
Before an employer can be held liable for the acts of its employees, the following
requirements must be met:
1) there must be a contract of employment – an employer-employee
relationship;
2) the employee must have committed a delict (a delict is an act or omission,
which is unlawful and culpable, and which causes damage to a third party),
and
3) the employee must have acted in the course and scope of employment
(Cases: Bezuidenhout v Eskom)
However, if the employee is expressly forbidden from acting in a particular way

by the employer, or if his act constitutes a criminal act, this will not necessarily
absolve the employer from being held vicariously liable for the employee’s
wrongful actions. For example: Richard is a maker of fine and expensive pens of
INK IT LTD. While fixing an expensive pen, Richard switches the expensive one
for a fake. After the client discovers this, they claim damages from INK IT. The
employer will be liable for damages of the client. The fraudulent action does not
affect the fact that the employer is vicariously liable. Richard may however be
formally disciplined by INK IT and may also face criminal charges.
REMEDIES FOR BREACH OF CONTRACT

If either party breaches the contract, the innocent party has a choice to
- accept the repudiation and to terminate the contract immediately (serious
breach = termination) or
- enforce the contract (not a serious breach = specific performance), and
- claim damages.
In terms of the LRA,

- a breach by the employer would amount to an ULP, unfair discrimination or
an unfair dismissal, and
- a breach by the employee would probably amount to misconduct.
RESTRAINT OF TRADE
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, 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?
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. 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. An employer seeking to enforce a
restraint of trade on the grounds of protecting certain information (such as
trade secrets/ business connections) has the onus of proving that the
information is capable of being applicable in the trade industry.
An employer who unlawfully terminates a contract of employment containing a

restraint clause should not be allowed to benefit from that restraint. If an
employee is dismissed for operational reasons, it would be a factor to be taken
into consideration when determining the reasonableness of the restraint.
CHANGES TO CONTRACTUAL TERMS AND CONDITIONS OF EMPLOYMENT

An employer may not unilaterally change terms and conditions of employment
as that would amount to repudiation and breach of contract. The only 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.
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.
BASIC CONDITIONS OF EMPLOYMENT ACT
The BCEA lays down minimum terms and conditions of employment.
Where minimum terms and conditions of employment are included in sectoral

or ministerial determinations or collective agreements, the BCEA must be read
in conjunction with such determinations or collective agreement to determine
the particular employee’s terms and conditions.
Generally, the parties may deviate from these minimum terms and conditions
only to improve them for employees and not to decrease them.
A basic condition of employment in the BCEA will constitute a term of any

contract of employment, unless:
- another law or the contract provides a more favourable term to the employee;
or
- the basic condition has been replaced, varied or excluded in terms of the
BCEA.
Generally the parties may not contract out of the BCEA and employers will only
be able to agree to terms and conditions less favourable than those prescribed
by the BCEA in limited circumstances.
The BCEA gives effect to and regulates the constitutional right to fair labour
practices by:
• establishing and enforcing basic conditions of employment, and
• regulating the variation of such conditions by way of various mechanisms
and within a framework of regulated flexibility.
The following workers are excluded from protection of the BCEA:

• independent contractors;
• members of the National Defence Force
• members of the State security agency
• unpaid volunteers working for charitable organisations or organisations with
a public purpose;
• people undergoing vocational training except to the extent that any term of
their employment is regulated by the provisions of any other law;
• persons employed on vessels at sea.
Partial exclusions
Chapter 2 - the provisions which regulate working hours DO NOT apply to:
o senior managerial employees;
o sales staff who travel and regulate their own hours, and
o employees who work for less than 24 hrs a month for one employer
o employees who earn more than R205 433 per year.
Chapter 3 - the provisions which regulate leave do not apply to employees who
work for less than 24 hrs a month for one employer.
Only employees who have been employed with an employer for longer than 4
months and who work for at least 4 days a week are entitled to family
responsibility leave.
WORKING TIME:
The ordinary hours of work

• Maximum: 45 hrs / week & 9 hrs / day – if employee works 5 days a week.
• Employees who work more than 5 days a week may only work 8 hrs 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.
Meal intervals and rest periods

• If the employee works for more than 5 continuous hours, he is entitled to a
meal interval of at least one continuous hour.
• The meal interval can, by agreement, be reduced to 30 minutes, or be done
away with, if the employee works fewer than 6 hrs a day.
• An employee must be given a daily rest period of at least 12 hrs between
ending and recommencing work.
• The employee must be given a weekly rest period of at least 36 consecutive
hrs that, unless otherwise agreed, must include Sunday.
Overtime
• Maximum 10 hrs’ overtime a week.
• Overtime may be increased to 15 hrs a week by collective agreement.
• An employee may work overtime only by agreement.
• Overtime is paid at one-and-a-half times the employee’s normal pay or get
one and a half hours time off for every hour worked.
• An agreement to work overtime may not be for more than 12 hours (ordinary
plus overtime) on any particular day.
Sundays
• The employee must be paid double his normal rate to work on a Sunday if he
does not normally work on a Sunday.
• If the employee does normally work on a Sunday, he must be paid one-and-
a-half times his normal rate.
Public Holidays
• If the employee does not work, he gets paid his normal hourly wage.
• If he is asked to work, and agrees, he must be paid at least double his
normal rate.
• In terms of the Public Holidays Act, an employee can exchange a public
holiday for any other working day that is agreed to by the employer. An
employer may elect to give the employee 2 hours off for every hour worked
instead of double pay.
Night work
• Work done after 18h00 and before 06h00 the next day.
• Night work is only allowed if there is an agreement to this effect and the
employee is compensated by
- an allowance or
- a reduction in working hours, and
- the employee must be provided with transport between his place of
residence and the workplace.
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,
- more than 10 hrs overtime a week, or
- on more than 5 days in any week.
• 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.
• This is to cater for peak periods in certain sectors, for example agriculture,
where during harvest time employees may agree to extended hrs of overtime
to a max of 15 hrs per week, but after harvesting time this will no longer be
necessary.
LEAVE:
The BCEA makes provision for 4 types of leave, which the employer must allow
the employee to take namely, annual leave, maternity leave, sick leave and
family responsibility leave.
In Kievits Kroon Country Estate en employee requested 1 months unpaid leave to
attend sangoma training, which the employer refused. In spite of the employer’s
refusal, the employee, followed the calling to attend the training and stayed
away from work for 5 weeks without permission. She was subsequently
dismissed. The court held that her dismissal was unfair as the employer should
have accommodated the employee instead of trivializing her beliefs.
Annual vacation leave

• Minimum 21 consecutive days / 15 working days paid leave per year.
• The parties may agree on additional leave, paid or unpaid.
Sick leave
• 6 weeks paid sick leave for every 3 year cycle worked.
• If employee has been absent for more than 2 consecutive days or on more
than 2 occasions in an eight-week period, the employer may request a
medical certificate issued by a medical doctor or a person registered with a
professional council.
• A leave cycle is calculated as the number of days that an employee would
normally work during a 6-week cycle.
• If an employee works 5 days a week, he would work 30 days in 6 weeks,
which would entitle him to 30 days’ sick leave in 3 years.
Maternity leave
• 4 consecutive months unpaid maternity leave, which may commence at
- anytime from 4 weeks before the expected date of birth, or
- on a date that a medical practitioner of midwife certifies is necessary for
the employee’s health/her unborn child
- an employer may decide to pay an employee during maternity leave but if

not, the employee may claim maternity benefits from the UIA
- An employee may not work for 6 weeks after the birth of her child.
- If an employee miscarries in the third trimester or has a still born child, she
is entitled to 6 weeks’ leave after the miscarriage or still birth.
- The employee must notify the employer, in writing, of the dates of the leave
she intends to take.
Family responsibility leave

• 3 days paid family responsibility leave per year.
• For the birth, illness of a child; or
• For the death of (adoptive) child/ spouse/ life partner/ (adoptive)parent/
grandparent/ grandchild or sibling.
• Only for employees who have worked for longer than 4 months and who work
at least 4 days a week.
• Does not include death/illness of, for example, in-laws or members of the
extended family – the interpretation of family responsibility leave is therefore
very narrow.
• NB: Leave for illness is limited to that of a child.
Wages
The BCEA does not prescribes a minimum wage!!!
• Collective agreements concluded in bargaining councils and ministerial and
sectoral determination may set out a minimum wage for certain categories of
employees.
• On 7 February 2017 a national minimum wage was agreed upon and is said
to come into effect May 2018.
• The national minimum wage is set as R20/hr or R3500 for employees
working 40hr/wk and R3900 for those working 45hrs/wk
• Employees must be paid in South African currency, weekly, fortnightly or
monthly, in cash, by cheque or direct deposit into the employee’s bank
account.
• The employer must provide the employee with information, in writing,
regarding the period for which the payment is made, the amount of pay, the
amount and reason for any deduction and the calculation of the employee’s
pay in general
Notice periods
A contract of employment for an indefinite period, may be terminated by either
party by giving notice of intention to terminate the contract.
• Notice must adhere to the notice periods required in terms of the contract.
• If the contract does not make any provision for a notice period, the BCEA
lays down that notice must be in writing and the minimum notice period
which both parties must comply with are:
§ 1 week, if the employee has worked for 6 months or less.

§ 2 weeks, if the employee has worked for longer than 6 but less than 12
months.
§ 4 weeks, if the employee has worked for more than 1yr, or a domestic or
farm worker who has worked for more than 6 months. (This may be
shortened by a collective agreement to 2 weeks).
Payment in lieu of notice

An employer may, instead of giving an employee notice, give the employee
wages/salary in lieu of notice.
Severance pay
When an employee is fairly dismissed by the employer due to operational
requirements, the employer must pay to the employee, a minimum of one weeks
pay for every completed year of continuous service, BUT an employee who
unreasonably refuses to accept an offer of alternative employment with that, or
any other, employer, is not entitled to severance pay.
NB: In terms of the Amendment, it is important to remember that employees
with fixed-term contracts, who have been working for the employer for over 24
months will received a severance package, the same as a permanent employee –
1 week per every full and completed year worked.
Certificate of service
On termination of employment, the employee is entitled to a certificate of
service stating: 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.
Payments of contributions to benefit funds

An employer may not make any deductions from an employee’s salary unless an
employee agrees thereto or the deduction is justified in terms of a law, collective
agreement, court order or arbitration award.
The BCEA compels an employer who deducts a contribution from an employee

for a benefit fund (pension, provident, retirement or medical aid) to pay the
amounts to the fund within 7 days after the deduction has been made.
An employer may deduct money from the employee’s salary to reimburse the
employer for loss or damage if:
• the loss or damage occurred in the course of employment and was due to
the fault of the employee;
• the employer has followed fair procedure and has given the employee a
reasonable opportunity to show why deductions should not be made;
• the total amount of the debt does not exceed the actual amount of the
loss or damage; and
• the total deductions from the employee’s remuneration do not exceed one
quarter of the employee’s remuneration in money
CHILDREN AND FORCED LABOUR
The BCEA prohibits the employment of children under the age of 15 years and
contravention of this constitutes a criminal offence.
Therefore, no person may permit a child to perform or provide services that:
• Are inappropriate for his/her age
• Place at risk the child’s wellbeing, education or physical/mental state
risk their spiritual/moral/social development
Children younger than 15 years are allowed to:

• perform in advertising, sporting, artistic and cultural activities;
• collect contributions of behalf of a fund raising organization;
• perform voluntary work for a church, charitable organization or amateur
sports club; and
• do work that is appropriate for a person of that age as part of his/her
schooling.
Sectoral Determination 10: Children in the Performance of Advertising,

Artistic and Cultural Activities, provides that:
- remuneration must be paid to the parent or guardian of the child;
- the maximum hours of work per day are 4 hours a day for a child aged over
10 years and 3 hours a day for a child younger than 10 years;
- rest periods must be provided after 2 hours of continuous work for children
older than 10 years, or after 1½ hours of continuous work for children
younger than 10 years;
- nutritious food and drink must be provided;
- safe areas must be provided for the children to rest and play, and
- safe transport must be provided between the child’s home and the workplace.
Forced labour is prohibited under the BCEA and contravention of this

constitutes a criminal offence.
EXPLOITIVE PRACTICES BY EMPLOYERS

Taking advantage of employees is prohibited. Examples of exploitive acts
include:
• accepting or requiring an employee to pay the employer in respect of
employment or allocation of work
• where the employer treats and employee badly or takes advantage of the
employee
• forcing the employee to buy goods/services or products from the
employer to secure work
ENFORCEMENT OF THE BCEA

Courts
The Labour Court has exclusive jurisdiction in ALL matters relating to the
BCEA. The Labour Court may also grant civil relief in certain circumstances
such as:
• employers force employees/potential employees to purchase
goods/services/products
• employers breach the terms set out in child labour and engage in forced
labour
• breached confidentiality/obstruction/undue influence/fraud
Ways the Labour Court can enforce the terms set out in the BCEA:
• Compliance order
• Order payment of outstanding amounts owing to employees
• Requesting payment of fines
INSPECTORS
The BCEA provides for the appointment of labour inspectors to monitor and
enforce compliance with the BCEA. Inspectors may, inter alia, enter
workplaces, require a person to disclose relevant information, question
employers and employees, and inspect documents and records. These
inspectors may obtain a written undertaking from an employer who is in default
that such employer will comply with the provisions of the BCEA and if the
employer refuses/neglects to comply with such undertaking, a compliance
order may be issued. If the employer still does not comply, the Director-General
may apply for an order from the Labour Court, for the written compliance to be
made a court order.
The following circumstances do not allow for compliance orders to be issued:

• Collective agreement’s procedure enforces the use of arbitration to claim
outstanding payments
• Employee cannot enforce the BCEA as it’s not applicable to him/her
• The employee earns more than the threshold, therefore the BCEA does
not apply
• Proceedings already instituted
• The amount claimed was outstanding for more than 12 months before
complaint instituted.
VARIATION OF BASIC CONDITIONS

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.
Core terms which CANNOT be varied:

- maximum working hours;
- provisions relating to sick leave;
- 4 months’ maternity leave;
- not less than 2 weeks’ annual leave;
- provisions relating to night work.
The BCEA allows for changing, replacing or excluding other rights by way of:
1. A collective agreement
2. A ministerial determination
3. A sectoral determination
DISMISSAL
S185(a) LRA: every employee has the right not to be unfairly dismissed by the
employer.
If an employee alleges 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)
DEFINITION DISMISSAL INCLUDES:
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 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
• 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.
1. Termination of a contract 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.
In SA Post Office v Mampeule - a contract cannot provide for the automatic

termination of a contract of employment.
NB: The LRA allows for the definition of dismissal implies “termination of
employment” not “termination of employment contract”. This means that an
employee can be dismissed with or without a formal contract of employment.
NB: The LRA also clarifies the official date of termination. If the employer gives
the employee notice, the date of dismissal is the last date of the notice period
given OR the date on which the employee is paid all outstanding salaries.
2. Refusal or failure by the employer to renew a fixed term contract

The employer’s conduct must have created a reasonable (and justified)
expectation that the fixed-term contract would be renewed. Ways in which this
impression might have been created include:
- past renewals of fixed term contracts
- assuring the employee that the contract would be renewed, or
- by making representations to the employee that the fixed term contract
would be renewed
In Black v John Snow Public Health Group, the court stated that although
previous renewals were relevant to determine whether there was a reasonable
expectation, they were not decisive.
3. Refusal to allow an employee to resume work after maternity leave

The BCEA provides that an employee is entitled to four consecutive months’
(unpaid) maternity leave. If an employer refuses to allow an employee to resume
work after having taken maternity leave, the refusal (termination) will constitute
dismissal.
The LRA provides strong protection to female employees whose job security is
jeaopardised during maternity leave.
Any dismissal relating to pregnancy will be automatically unfair.
In Heath v AN Paneelkloppers The court held that the law clearly protects
employees for reasons relating to pregnancy and that the real reason for the
dismissal was because the employer did not want pregnant employees because
they are inconvenient and the employer acted and behaved in such a manner as
to effectively cause the termination of the employment.
4. Selective re-employment
This form of dismissal has a number of implied requirements:
- there must have been a dismissal of a number of employees
- the employees must have been dismissed for the same or similar reasons
- the employer must have offered to re-employ one or more of the previously
dismissed employees and
- at the same time refuse to re-employ one or more of the other previously
dismissed employees
- the offer to re-employ must have taken place at the same time, or within a
reasonable time.
This type of dismissal is not always unfair: if an employer retrenches a number

of employees, and the financial position of the business improves, the employer
may re-employ some of the employees. It will not be unfair if the employer
follows a fair procedure and can justify the selection for re-employment.
(Cases: NUM & Others v MCC Group of Companies

Chevron Engineering (Pty) Ltd)
5. Constructive dismissal
In the case of a constructive dismissal, it is the employee who terminates the
employment contract, however his resignation is not voluntary, but is caused
by the actions or omissions of the employer and which made it impossible for
the employee to continue working for the employer.
According to the Copeland case the following elements must be present to

succeed with a claim for constructive dismissal: The employee must show
- that he has resigned
- that the reason for the resignation was that continued employment became
intolerable;
- that it was the employer’s conduct that created the intolerable circumstances
- that he resigned as a result of the intolerable behaviour of the employer.
• Nilandi: The Court held that it was not a constructive dismissal and that the
true reason for the resignation was the fact that the employee had secured
alternative employment at a competitor.
• Vermeulen: NOT ALL CONSTRUCTIVE DISMISSALS ARE UNFAIR
6. Transfer of employment contracts (S197)

- This is a form of constructive dismissal
- If an employee’s employment contract is transferred from the old employer to
a new employer in terms of S197/S197A (where a business is sold as a going
concern, in the ordinary course of business, or in cases of insolvency)
- and the new employer provides the employee with new terms and conditions
of employment which are ‘substantially less favourable’ than those provided
by the old employer,
- the employee may terminate the contract and claim (constructive) dismissal.
- In Almazest – The court held that where an employee’s gross income is
reduced by about 45% after a transfer of the business as a going concern, it
is unreasonable and it did not amount to the requirements set out in the Act,
namely, that of “similar conditions of service”
Fairness of a Dismissal:
The LRA forbids unfair and automatically unfair dismissal.

A dismissal will be substantively fair if it is done for one of the following
reasons:
1. Misconduct of the employee;
2. Incapacity of an employee (poor work performance/ temporary or
permanent illness;
3. Operational reasons of the employer (financial, technological, structural
or similar needs)
A dismissal will be procedurally fair if it is done in terms of the process
prescribed in the ACT.
For a dismissal to be fair, both procedural and substantive requirements must
be met.
A Dismissal will be unfair if:
• It is for the wrong reason but fair procedure was followed;
• If it was for the right reason but the wrong process was followed; or
• If it was for the wrong reason and the wrong process was used.
AUTOMATICALLY UNFAIR DISMISSALS
If an employee alleges that he has been automatically unfairly dismissed, he

must prove that he:
- is an employee (only employees can be dismissed and are protected by the
LRA)
- has been dismissed (ito S186(1))
- the reason for dismissal was an automatically unfair reason (ito S187(1)).
The employer cannot defend the termination by proving that it was for a fair
reason. The only reasons that may justify the infringement of a basic right of
the employee will be:
- if it is an inherent requirement of the job, or
- an employee was dismissed because he had reached the normal or agreed
retirement age.
An automatically unfair dismissal carries a more severe maximum penalty than

an ordinary unfair dismissal, namely 24 months’ salary
S187 of the LRA defines automatically unfair dismissals:
(1) A dismissal is automatically unfair if the employer, in dismissing the

employee, acts contrary to S5 or, if 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 4 (protected strike)
(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 Chapter 4, unless the work is necessary to
prevent actual danger to life
(c) to compel an employee to accept a demand in respect of any matter of
mutual interest between the parties (dismissal lockout)
(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 relating to
her pregnancy
(f) that the employer unlawfully discriminated against the employee,
directly or indirectly on the grounds of, but not limited to race, sex, age,
gender, religion, sexual orientation, HIV, etc
(g) a transfer, or any reason relating to transfer
(h) a contravention of the Protected Disclosures Act.
1. Infringement of freedom of association (S5 LRA)

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.
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.
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.
Cases: IMATU & others v Rustenburg Transitional Council)
2. Participation in a protected strike

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.
(Cases: SATAWU & Others v Collett Armed Security Services)
3. Replacement labour
A dismissal will be automatically unfair if the reason is that the employee
refused or indicated an intention to refuse to do any work normally done by
another employee who is taking part in a protected strike, unless the work is
necessary to prevent an actual danger to life, personal safety or health. If the
employee, however, refuses to do his own work while the other employees are
on strike, it will amount to insubordination.
4. The refusal by employees to accept a demand in respect of matters

of mutual interest between the employee and employer
This type of dismissal occurs where
- an employer dismisses an employee
- because the employee would not accept a demand made by the employer.
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.
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 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.
Now: The LRA now not only looks at the intention of the employer, but
rather the reaction of the employees.
5. Exercise of rights
Employees may not be victimised by their employers for exercising their rights
or participating in any proceedings in terms of the LRA.
6. Pregnancy
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
(3) that the dismissal was related to her pregnancy or intended pregnancy.
(Cases: Mashava; Swart)
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.
7. Unfair discrimination
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:
- the inherent requirements of the particular job, or
- age, if the employee has reached the normal or agreed-to retirement age for
persons employed in that capacity.
(Cases: Allpass; Dept of Correctional Services & another v Police & Prisons Civil
Rights Union and Others)
8. Transfer of a business
Where employees are dismissed as a result of a transfer of a business as a going
concern it will amount to an automatically unfair dismissal. A new employer is
entitled to restructure the business, but, where all the employees who have
been transferred are dismissed for it will be found to be automatically unfair.
(Viney)
9. Protected disclosures
The Protected Disclosures Act protects employee’s who blow the whistle on
corrupt activities or criminal offences.
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
Sekgobela
Dispute resolution for automatically unfair dismissal

1. Employee dismissed by employer
2. Employee has 30 days, from date of dismissal, within which to refer the
dispute to a BC / the CCMA for conciliation.
3. If conciliation is successful, the matter is resolved, IF NOT SUCCESSFUL
4. Matter is referred to the LC for adjudication
5. LC makes a ruling
6. Either party may appeal to the LAC
NB: The Employment Equity Amendment Act allows or the referral of a dispute
regarding sexual harassment to the CCMA instead of to the Labour Court.
Regarding any other discrimination where the employee earns less that
threshold set in terms of the BCEA, the dispute may be referred to the CCMA
instead of the Labour Court – this therefore includes disputes regarding AUD.
The Amendment Act also makes provision for the appointment of an arbitrator
in a pre-dismissal enquiry relating to protected disclosures – therefore the
employees suspension pending an investigation hereto, will not amount to an
Occupational Detriment.
DISMISSAL FOR MISCONDUCT
DISCIPLINE IN THE WORKPLACE
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
Department of Labour v General Public Services Sectoral Bargaining Council

NUM & others v Martin & East (Pty)Ltd
FAIR DISMISSAL FOR MISCONDUCT IN TERMS OF THE LRA
The principal requirements for a fair dismissal are regulated by S188 LRA.
There are two requirements for a fair dismissal for misconduct:
- a fair reason (substantive fairness) and
- a fair procedure (procedural fairness).
SUBSTANTIVE FAIRNESS OF A DISMISSAL FOR MISCONDUCT
In cases of dismissal based on misconduct, the employee is at fault for breaking

a workplace rule, but though misconduct is a recognised reason for dismissal,
it still needs to be substantively fair. The workplace rules can be found in the
disciplinary code of a workplace. If the employee breaks this code, the employee
must be dismissed.
Examples of these well-known rules are:

• duty not to steal
• not to assault a co-worker
• duty to act in the best interest of the employer
The Code: Dismissal requires all employers to adopt disciplinary rules to ensure
that their employees know and understand the required standard of conduct.
The LRA, does not set out the requirements for a substantively fair dismissal,
but the Code: Dismissal sets the following requirements for substantive
fairness:
1. Did the employee contravene a rule or standard regarding conduct in, or of

relevance to, the workplace?
2. If so, was the rule valid and reasonable? This is usually determined with
reference to the needs of the business and the workplace.
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 that he knew were
unacceptable and he must have known that a transgression of this rule
may lead to dismissal.
4. Was the rule consistently applied by the employer?
• 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.
• 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?

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 employee’s circumstances, including length of service, previous
disciplinary record and personal circumstances;
- the nature of the job, and
- the circumstances of the infringement itself
Edcon Ltd v Pillemer NO & others.

Impala Platinum Ltd v Jansen & others - The court held that ‘no employer can be
expected to retain a delinquent in employment and dismissal in terms thereof
would be justified.
Substantive fairness for different types of misconduct:
1. Unauthorised absence from work, abscondment, desertion & time-

related offences: An employee has a duty to make his services available to
his employer and if he does not arrive at work, he will breach this duty. The
circumstances of the employee’s absence will determine whether or not the
employee can be disciplined and dismissed: an employee cannot be
dismissed for one incident of tardiness, but dismissal may be appropriate for
repeated incidents.
Abscondment/AWOL Desertion
= the employee does not want to = the employee, without resigning,
terminate the employment contract, stays away from work with the
but stays away from work without intention of terminating the
leave this would warrant a dismissal employment contract it will amount
if the period of absence is to a desertion. The employer must
unreasonably long. If the employee terminate the employment contract
returns after a few days with a letter by holding a disciplinary hearing in
to show that he had a reason for the the employee’s absence. If the
absence, for example having been employee later returns, the employer
hospitalized or imprisoned, a must give him an opportunity to be
dismissal will not be appropriate. heard.
2. Attitudes of hostility, abusive language, racism & insubordination: An

employer is allowed to expect its employees to work together in harmony. If
an employee acts with hostility or uses abusive language, such as swearing
or racist remarks, or any other discriminatory action, the employee is guilty

of misconduct.
Lithotech Manufacturing Cape - The Labour Court found that the dismissal was
not appropriate and the use of abusive language by an employee does not
always justify dismissal.
SA Commercial Catering & Allied Workers Union obo Sikhundla and Radisson Blu
Hotel Waterfront
NUMSA obo Smith and Hilfort Plastics – A Division of Astrapak Manufacturing
Holdings (Pty)
3. Theft (including petty theft & stock losses), team misconduct,

dishonesty and breach of the trust relationship: the employment
relationship is based on trust and confidence and theft by an employee will
breach this trust and is a fair reason for dismissal.
Circumstances where the value of the property stolen was minimal:

- In Miyambo, an employee who stole a piece of scrap metal was dismissed
and the court held that even though the value of the property was minimal,
the act of stealing impacted on the trust relationship and had significant
economic repercussions.
- In SA Commercial Catering & Allied Workers Union obo Bolashe and Pinzon
Traders, an employee who worked at a confectionary ate some bread
returned by a customer. Workplace policy provided that perishable stuff
should not be resold or given to staff, and the bread would have been given
to the pigs. Dismissal as a sanction was found to be too harsh in the
circumstances and the employee was reinstated by the court. The
In cases of petty theft, the court must balance the duty of the employee to act in
good faith with the approach of the LRA (that employers must follow a process
of progressive discipline and use dismissal as a matter of last resort).
‘Team misconduct’: If an employer cannot identify who the guilty party is in a

misconduct case, it may dismiss a group of employees.
- In Foschini Group v Maidi & others, the employer experienced a loss of
clothing stock at one of its branches. The employees at the branch refused
to attend disciplinary enquiries and were thereafter dismissed. The LAC
found that the dismissal of all the employees was fair. If employees in a
small store are unable to explain large stock losses and show that it was out
of their control, the only possible conclusion to be made is that they are
guilty.
- In SACCAWU obo Molele & others/Mr Price, the Commissioner held that team
misconduct may be relied on only of the employer has proved that it had an
effective system such as video cameras and processes for curbing theft to
reduce losses in place.
- In Moloto and Gazelle Plastics Management, an employee stole another
employee’s cell phone and stabbed him outside the premises. The employer
dismissed the employee. The court held the dismissal to be fair for two
reasons:
1. It was closely connected to the working relationship, and the injuries

sustained to the employee, meant that the employee could not perform
his working duties
2. The employee intimidated witnesses before the disciplinary hearing
Other forms of misconduct: The following are common forms of misconduct

which may also warrant dismissal: - assault;
- sexual harassment;
- conflict of interests;
- damage to property;
- alcohol and drug abuse.
- intimidation.
PROCEDURAL FAIRNESS OF A DISMISSAL FOR MISCONDUCT

Item 4 The Code:
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).
3. The employee must be given a reasonable time to prepare.
4. The employee must be allowed to state a case in response to the allegations.
5. The employee must be allowed the assistance if a union representative or co-
employee.
6. 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.
7. If the employee is dismissed, the employer must remind him of his rights to
refer the matter to a bargaining council or the CCMA.
In informal working environments, if a less formal procedure is followed, it will

still constitute a fair process. The main requirement is that the employer must
give the employee an opportunity to be heard and to defend himself against
allegations.
Discipline against a union representative or an employee who is an office bearer

or official of a union, should not be instituted without first informing and
consulting with the union.
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.
Dispute resolution for misconduct dismissal

3. If conciliation is successful, the matter is resolved, IF NOT SUCCESSFUL
4. Matter is set down for arbitration, within 90 days, at a BC / the CCMA
5. Commissioner makes award
6. Review by LC possible in limited circumstances
NB: The Amendment Act states that a maximum of 12 month salary can be
awarded as compensation to an employee whose dismissal was found to be
substantively and procedurally unfair.
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.
- Poor work performance is where the employee cannot do the work he is
expected to because he does not comply with the required standard of
performance.
- Ill-health means that the employee is too ill to do his work. This illness can
be temporary or permanent.
- Incompatibility is a possible third type of incapacity.
Misconduct or Incapacity?
In Boss Logistics v Phopi & others, the employee misrepresented in his interview,
to be an expert sales person, but this later proved incorrect. The employer
chose not to provide the employee with counseling, training or assistance,
because the employee’s deception had seriously breached the trust relationship.
The court found that where a senior employee misrepresents his experience and
qualifications, there is no duty on the employer to provide the employee with
counseling or training.
If an employee is found to be drunk on duty, it would amount to misconduct

and warrant dismissal. However, if the employee alleges that he is an alcoholic
and therefore drunk at work, the employer should rather consider incapacity as
the ground for dismissal. The Code: Dismissal regards alcoholism and drug
abuse as incapacity and recommends counseling and rehabilitation rather than
dismissal.
1. DISMISSAL FOR INCAPACITY / POOR WORK PERFORMANCE DURING

PROBATION
Substantive Fairness:
The Code of Good Practice confirms that a newly hired employee may be placed
on probation for a reasonable period of time. Although one of the purposes of
probation is to ascertain whether or not the employee can do the work, the
employer must still treat a probationary employee fairly: an employer must give
the probationary employee the following assistance before a dismissal for poor
work performance:
1. Evaluation, instruction, training, guidance or counselling to help him
perform his duties.
2. The employer must make it clear to the employee what the performance
standard is, and where he is not meeting it.
3. The employer must give the employee assistance and an opportunity to

improve.
4. The employer should measure the progress and give feedback.
5. The required assistance and period of probation will be determined by the
nature of the job
The required assistance and the period of probation will be determined by the
nature of the job.
Procedural Fairness: If an employee is dismissed during the probationary

period, the employee should
- be given an opportunity to respond to the allegations, and
- be allowed to be assisted by a union representative or co-employee.
Some employers believe that a probationary employee can be dismissed with 24

hours’ notice and without regard to procedure – this is incorrect. A
probationary employee is protected against unfair dismissal and enjoys the
protection under the LRA and the BCEA.
The reasons for dismissing a probationary employee can be ‘less compelling’

than those for dismissing an employee whose appointment has been confirmed.
2. POOR WORK PERFORMANCE AFTER PROBATION

Once an employee is permanently appointed, the employer should consider
other ways, short of dismissal, to remedy an employee’s poor work performance.
Substantive and Procedural Fairness: Before an employer can dismiss an
employee on this basis, the employer should:
1. give appropriate evaluation, instruction, training, guidance or counselling;
2. give the employee a reasonable period of time to improve;
3. investigate, to determine the reasons for the unsatisfactory performance and
the employer should consider other ways, short of dismissal, to remedy the
matter;
4. during this process the employee has the right to be heard and to be assisted
by a union representative or a co-employee.
If the employee then continues to perform unsatisfactorily, he can be dismissed

for poor work performance.
3. SUBSTANCE ABUSE: Alcoholism / Drug abuse

If an employee is found to be drunk on duty, it will amount to misconduct and
would warrant dismissal. If the employee, however, alleges that he is an
alcoholic, the employer should rather consider incapacity as the ground for
dismissal, because the Code: Dismissal requires employers to regard alcoholism
and drug abuse as incapacity, and recommends counseling and rehabilitation
rather than dismissal.
4. ILL HEALTH OR INJURY

Where either ill health or injury is an issue, it is necessary to establish if the
incapacity is temporary or permanent. The Code distinguishes between
temporary and permanent illness or injury.
Although the LRA does allows for dismissal of ill or injured employees, it aims
to provide job security by requiring an employer to
- consider alternatives before dismissal, and
- get input from the employee on alternatives before the employee is dismissed.
In terms of the Code, an employer should attempt to accommodate an employee

who is injured on duty. Employers may adopt a cost-effective means to
effectively remove the barrier to a person being unable to perform the work. The
employer should
1) adapt existing facilities to make them accessible or reorganising work
stations;
2) securing alternative employment;
3) adapting the duties or work circumstances to accommodate the injury or
disability.
The employer does not have to accommodate an employee with a disability if

this would impose an unjustifiable hardship on its business. Unjustifiable
hardship = action which requires significant or considerable difficulty or
expense, and would substantially harm the viability of the employer’s business.
In cases of temporary illness, whether an employee can be dismissed, and after

what period of absence, is a difficult question because the illness is temporary,
the possibility exists that the employee can return to work.
Substantive fairness
1. The employer must make an informed decision;
2. the employer must determine whether or not the employee is capable of
performing the work; and
3. if the employee is not capable the employer must
- determine the extent to which the employee is able to perform the work;
- the extent to which the employee’s work circumstances might be adapted
to accommodate the disability, or
- where this is not possible, the extent to which the employee’s duties might
be adapted.
Procedural fairness
1. The employee must be given an opportunity to respond and make
suggestions (the employee may be assisted by a union representative or co-
employee),
2. the employer must consult with the employee,
3. the employer must consider the available medical information, and
4. the employer must attempt to accommodate the employee where reasonably
possible.
The following checklist can be used to ensure procedural fairness in cases of

permanent or temporary illness or injury:
Did the employer take the following into account?
1. the nature of the job
2. the period of absence
3. the seriousness of the illness or injury
4. the possibility of securing a temporary replacement for the ill or injured

employee
5. the degree of incapacity
6. the cause of the incapacity - if the employee is incapacitated as a result of a
work-related illness or injury, the obligation on the employer to accommodate
the incapacity of the employee is more onerous
7. the availability of any suitable alternative work or the adaptation of duties or
work circumstances to accommodate the employee’s disability
Employees who become disabled during employment should be reintegrated

into the business.
(Cases: Tshaka and Vodacom; Bhengu & another and Transnet Freight Rail:
Williams and Diesel-Electric Cape (Pty) Ltd: Rosh Pinah Zinc Corporation (Pty) Ltd)
5. 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.
Reasonable accommodation of a disabled employee = any modification or
adjustment to a job or to the working environment that will enable a person
from a designated group to have access to or participate or advance in
employment. Only reasonable accommodation is expected.
DISPUTE RESOLUTION FOR INCAPACITY DISMISSALS

3. If conciliation is successful, the matter is resolved,
4. IF NOT SUCCESSFUL the matter is set down for arbitration, within 90 days,
at a BC / the CCMA
5. Commissioner makes award
6. Review by LC possible in limited circumstances
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 = 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.
2. Technological = introduction of new technology which leads to redundancy
of employees.
3. Structural = redundancy of posts consequent to the restructuring of
employer’s organization, for example – a merger, or
4. Similar needs of the employer = 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 following similar needs of an employer would justify retrenchment:
- the special operational needs of the business,
This concept could include working overtime, or working on Sundays or public

holidays or working shifts. (Elliot Bros)
- the employee's actions or presence has a negative effect on the

business,
Here one must distinguish between two scenarios: In the first scenario the
particular employee's actions create disharmony, whereas in the second
scenario, the employee's mere presence causes dissatisfaction.
In Joslin, the court held that incompatibility must be clearly distinguished from
eccentricity. Only eccentric behaviour which is of such a serious nature that it
causes disquiet and disruption at the workplace would justify dismissal for
operational reasons
- the employee's conduct has led to a breakdown of the trust relationship,
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.
- the enterprise's business requirements are such that changes must be

made to the employee's terms and conditions of employment.
This could occur where a business is restructured to function more effectively

or, after a merger which necessitates changes to the employee's terms and
conditions of employment, for example, a company decides to close one of its
factories (which is running at a loss) and it offers new positions in its other
factories to the employees. If these employees refuse to be transferred, they may
be dismissed for operational reasons. They have become redundant, not as a
result of the original restructuring of the company, but as a result of their
refusal to accept the new positions offered to them.
This category of reason must be distinguished from dismissal for “structural

needs” listed in the definition of operational requirements. Dismissal based on
the “structural needs” entails that there has been a restructuring of the
business and that the employee has become redundant because of the
restructuring.
Changes to the terms and conditions of the employee are not always
necessitated by changes in the enterprise. Changes may also become necessary
as a result of a change in the employee's circumstances or attitude towards the
employer which may have serious economic repercussions for the enterprise.
(Cases: Fry’s Metals)
Substantive Fairness
Previously, the courts were averse to interfere in the business decisions of an
employer. (Kotze v Rebel Discount Liquor Group & Welch v Kulu Kenilworth (Pty)
Ltd & others)
Substantive fairness relates to the reason for dismissal. In the case of dismissal
for operational reasons, the employer must prove a number of things to
substantiate its substantive fairness. S189A, sets the following requirements
for a dismissal for operational reasons to be substantively fair:
1. The reason for the dismissal must fall within the definition of `operational
reasons' defined in S213 LRA (economic, technical, structural or similar
needs).
2. The reason must be justifiable and based on rational grounds.
3. 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.
4. Selection criteria must be fair and objective.
This definition in S189A, deals with ‘large-scale’ retrenchments and is not

repeated in S189 which deals with small-scale dismissals, however, similar
guidelines can be used to determine the substantive fairness of a dismissal for
operational reasons under S189.
Procedural Fairness in terms of S189
In Maritz, the court held that employees are entitled to a ‘high degree’ of fairness
when they are retrenched.
In terms of S189 there are seven requirements for a dismissal by a small

employer or a small-scale dismissal by a big employer:
1) Prior consultation with the following:
- 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.
2) Attempt to reach consensus
• appropriate measures to avoid dismissals,
• appropriate measures to minimise the number of dismissals,
• appropriate measures to change the timing of the dismissals,
• appropriate measures to mitigate the adverse effects of the

dismissals,
• the selection criteria, and
• severance pay
3) Written disclosure of information
4) Allow other parties to make representations
5) Consider and respond to representations
6) Select employees according to fair & objective selection criteria
7) Pay severance pay
(Cases: Astrapak Manufacturing Holdings)
LARGE SCALE DISMISSALS BY A BIG EMPLOYER

S189A distinguishes between the size of employers and the size of dismissals
when regulating substantive and procedural fairness of dismissal for
operational reasons.
A small employer is an employer that employs 50 or fewer employees and a big

employer is one that employs more than 50 employees. S189A applies to big
employers undertaking large-scale retrenchments. A large-scale dismissal is
determined in relation to the number of employees dismissed and the size of the
business. In terms of S189A, a large scale dismissal would entail the employer
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 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.
Procedural fairness for a large scale dismissal by a big employer:-

A big employer must also comply with the seven requirements set in S189, and,
in addition, he must comply with S198A:
- the parties may request the assistance of a facilitator to help out with the
resolution of retrenchment issues;
- the employer can request facilitation at the time that it starts with
consultation
- the employees’ representatives can also request facilitation if they represent

the majority of employees
If a facilitator is appointed and conciliation fails 60 days must elapse before:

1. employer can dismiss;
2. employees can strike;
3. employees can refer the matter to the Labour Court
If no facilitator is appointed and conciliation fails a minimum of 30 days must

lapse before:
1. employees can lodge a claim for substantive unfair dismissal; or
2. employer can dismiss;
3. employees can strike;
4. employees can refer the matter to the Labour Court
Dispute resolution for unfair large-scale retrenchments:
1. If facilitation and conciliation are unsuccessful the parties can chose to refer
a dispute about substantive fairness of the dismissal to the Labour Court or
to embark on a strike. Once the employees have made their choice regarding
the course of action, they may not change it later!
2. Employees may also challenge the procedural fairness of the dismissal. This
claim must be brought within 30days of the employer giving notice of its
intention to retrench. The employees may approach the Labour Court by
way of application for any of the following:
a. Compelling the employer to comply with fair procedure
b. Directing the employer to reinstate an employee until it has complied
with fair procedure
c. Interdicting or restraining the employer from dismissing an employee
prior to complying with fair procedure
d. Making an award of compensation
3. The Act sets certain time limits for retrenchments where facilitation is
allowed
- In Steemkamp & Others v Edcon Ltd – The constitutional court had to
decide what the position was where no facilitator was appointed in a case
of a large-scale dismissal and where the employer issued the employees
with notices of termination of employment before the expiration of the
minimum time periods set by the LRA. The court held that non-
compliance with the LRA may impact on the procedural fairness of the
dismissals.
Dispute resolution for unfair small-scale retrenchments:

1. The employee is dismissed;
2. the employee must refer the matter for conciliation at the CCMA/Bargaining
council within 30 days;
3. if conciliation is successful the matter is resolved;
4. if unsuccessful:
a. the employees can embark on a strike; or
b. refer the matter to the labour court for adjudication. The labour court
will make its ruling and thereafter, the aggrieved party may appeal to
the LAC
OTHER ASPECTS OF DISPUTE RESOLUTION
The LRA aims to create a fast, efficient and simple dispute-resolution system.
Some aspects aimed at simplifying this process are:
1. The prescription periods are shorter:

- An unfair dismissal dispute must be referred within 30 days after
dismissal,
- An unfair discrimination dispute must be referred within 90 days after
the alleged discrimination.
- An unfair labour practice dispute must be referred within 60 days after
the action by the employer.
- In a normal civil case, the prescription period is 3 years.
2. The manner in which cases may be referred is simpler:
- The referring party must complete a short form and must fax or post it to
the other party (and keep proof that it has been sent).
- In a civil claim, where summons is issued, it must be served on the other
party by the sheriff of the court.
3. The limited involvement of legal representatives:
Rule 25 of the CCMA – a party to a dispute may in arbitration proceedings
appear in person or be represented by a legal practitioner. This right is
restricted if the dispute being arbitrated is about the fairness of a dismissal
as a result of the employee’s conduct or capacity. This restriction can be
relaxed if:
- The commissioner and all of the other parties consent; or
- If the commissioner concludes that it is unreasonable to expect any party
to deal with the dispute without legal representation, after considering
relevant factors, such as:
- The nature of the dispute;
- Public interest;
- The complexity of the dispute; and
- The comparative ability of the opposing parties or their
representatives to deal with the matter
Conciliation
If, after the internal processes have been followed and completed, the employee
wants to challenge the fairness of a dismissal, the reason for the dismissal will
determine the dispute resolution route:
- In most cases of alleged unfair dismissal, the LRA requires that the matter
must first be referred for conciliation
- If conciliation is unsuccessful,
• a dispute about a dismissal based on misconduct, incapacity or will go for
arbitration. However, if a dispute based on operational requirements is not
conciliated successfully, it may then be referred to the labour court for
adjudication. This is subject to the exceptions regarding small and large
scale dismissals.
• a dispute about an automatically unfair dismissal must go for
adjudication to the Labour Court.
The commissioner must assist the disputing parties to bring them to a

settlement. He/she must determine the process to be followed, which can
include mediation, fact-finding, recommendations, advisory arbitration. If
conciliation is unsuccessful, the commissioner must issue a certificate stating
that the dispute was not conciliated and the parties can then apply for
arbitration of the dispute.
Arbitration
Arbitration by the CCMA is not a stop-over on the way to the Labour Court.
The CCMA is a separate dispute-resolution body with jurisdiction to conduct
arbitration. The LRA specifically determines when a dispute must go for
arbitration and when for adjudication. The following must be referred to
arbitration:
• unfair dismissal based on misconduct/incapacity
• constructive dismissal as a result of a transfer of a business as a going
concern
• where the employee does not know the reason for dismissal
Arbitration can take place at a bargaining council (if there is one registered for
the area and sector in which the employee works) or to the CCMA (if there is no
council).
The award by the arbitrator is final, which means that it can only be taken on
review.
If a commissioner has issued a certificate stating that a dispute is unresolved, a
party can, within 90 days, refer the dispute to arbitration. In this case, the LRA
gives wide powers to the arbitrator to conduct the arbitration in a manner that
he/she considers appropriate in order to determine the dispute quickly and
fairly.
Reviews and appeals

The main difference between a review and an appeal:
Appeal: request to a higher court to modify result
Review: Concerns the correctness of a legal matter and the decision thereof (one
may only appeal a ruling of a labour court)
NB: Review in terms of the LRA is not the same as Common Law and has a
much wider meaning due to compulsory arbitration in certain circumstances.
In Sidumo the test for review was formulated as follows: “is the decision reached
by the commissioner, one that a reasonable decision-maker would not reach?”
This view was confirmed in Herholdt v Nedbank Ltd.
Arbitrators award: If a party alleges a defect in an arbitrator’s award (for

example, commissioner committed misconduct, succeeded his powers, an
award improperly obtained), he/she can go to the Labour Court to set aside
such an award. The application must be filed within 6 weeks from the date of
the award and the party must then apply for a court date within 6 months of
the application.
S157 of the LRA allows for an appeal to the Labour appeal court against an
order or ruling of the Labour Court (Except on Constitutional matter).
S145(7) of the LRA provides specifically that the institution of review

proceedings does not suspend the operation of an arbitration award, unless the
applicant furnishes security to the satisfaction of the Court. In the case of an
order of reinstatement or re-employment the security to be furnished should
equate that of 24 months’ salary or in the case of an order of compensation it
must equate the amount of compensation awarded. These provisions seek to
protect employees against employers who take matters on review with the
intention to delay the implementation of arbitration awards.
Remedies
The primary remedy for unfair dismissal is reinstatement, which must be
ordered EXCEPT in the following circumstances, in which case compensation
will be awarded:
- The employee does not wish to be reinstated or re-employed;
- The circumstances surrounding the dismissal are such that a continued
employment relationship would be intolerable;
- It is not reasonably practicable for the employer to reinstate or re-employ the
employee, or
- The dismissal is unfair only because the employer did not follow a fair
procedure.
Pre-Dismissal Inquiries:
The employer in this instance, asks the consent of an employee to hold a pre-
dismissal enquiry. This saves time and money by holding both and internal
disciplinary and then arbitration.
JURISDICTION OF COURTS
Specifically focusing on Labour Disputes in the three courts:
1) CCMA
2) Labour Court:
a. Has the same status as that of a high court;
b. Must hear the reviews of Arbitration awards;
c. Automatically unfair dismissals, dismissal due to strikes or lock-
outs and dismissals for operational requirements
3) Labour Appeal Court
In terms of the Constitution and the Constitution Seventeenth Amendment Act

2012, the Constitutional Court is the highest court in all matter, not just
Constitutional Issues, therefore the SCA is no longer the highest appeal. Due to
this, the Labour Appeal Court is the highest court of appeal in all Labour
issues.
OTHER WAYS OF TERMINATING THE EMPLOYMENT CONTRACT
1. Resignation by the employee

2. Termination on completion of an agreed period or task
3. Termination by mutual agreement
4. Termination on grounds of impossibility of performance
5. Termination on death
6. Termination as a result of insolvency of the employer
7. Termination as a result of retirement
UNFAIR LABOUR PRACTICES
Employers are required to treat their employees fairly during the employment
relationship and S186(2), relating to the unfair labour practice provides
employees with certain remedies when the employer’s conduct towards them is
unfair.
S186(2) LRA DEFINES AN UNFAIR LABOUR PRACTICE as any unfair act or

omission that arises between the employer and an employee involving –
(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.
The case of Gebhardt is a good example of ULP – In this case, Gebhardt was a
white female with a hearing impairment. She applied for a promotion in the
company and was recommended for the post, however was turned down. The
employer instead hired a coloured woman, claiming that he had to follow EEP.
The court in this case held that Gebhardt’s hearing impairment was a disability
which meant that she would’ve complied with the regulations in the EEP, and
thus not promoting her amounted to an ULP.
Limitations of the unfair labour practice protection:

• an employee cannot commit an unfair labour practice;
• ULP can only be committed during the employment relationship; and
• the list of unfair labour practices, as set out in S186(2) is a closed list,
and unless the conduct of the employer complies with one of the
situations listed in S186(2), it will not amount to an unfair labour
practice.
An employee claiming an unfair labour practice must show:

1) that the employer’s conduct falls within the definition of an unfair labour
practice in S186(2); AND
2) that he is rely on a pre-existing right (or at least a legitimate expectation)
that was compromised by the employer through the employer’s
interpretation, application, withdrawal or variation of that right.
a) PROMOTION
The courts will only interfere in disputes about promotion where the employer
acts mala fide and when claiming of an unfair labour practice in respect of
promotion, the employee must shown that:
- the employer exercised its decision arbitrarily,
- the reasons provided cannot be substantiated,
- the decision was taken on a wrong principle, or
- the decision was taken in a biased manner.
• An employee does not have a legal right to be promoted, however, the

circumstances could possibly show that an employee had a reasonable
expectation of promotion. (This could be as a result of assurances or
representations by the employer that the employee was to be promoted.)
• Promotion is generally a matter of managerial prerogative.
• The employer must, however, act procedurally and substantively fairly,
when deciding whether or not to promote an employee.
• When considering promotion of an employee, an employer may consider
subjective factors such as performance, however, the employer must still be
able to provide good and sufficient reasons for its decision.
• An employee may challenge the composition (and the competency) of a
selection panel, where an employee reasonably suspects that a person on
the panel will not be objective.
(Cases: Ncane v Lyster NO & Others)
b) DEMOTION
Demotion means that an employee
- is transferred to a lower level,
- receives less remuneration,
- loses benefits, or
- experiences a loss in status.
• Demotion may be used as a fair disciplinary action where it is used as an

alternative to dismissal where an employee is found guilty of misconduct
(this would be in line with the principle of progressive discipline).
• Demotion can occur when businesses are restructured or merged, in which
case, the employer would be able to justify the demotion based on
operational reasons, provided a fair procedure has been followed. The
employer must consider the best feasible alternative to avoid dismissing
employees; and demotion could be such option.
(Cases: Nxele and Salukazana)
c) PROBATION
• Probation must be used in accordance with proper standards and
regulations, in order to prepare the employee for his future employment
relationship. If the employer misuses probation for any reason, for example –
a reason not to give employees a permanent employment status, this then
would amount to unfair labour practice.
This type of unfair conduct by an employer could occur where an employer:

- sets an unreasonably long probationary period
- sets unreasonable performance standards,
- fails to inform the employee properly what the required
performance standards are,
- does not give the employee reasonable evaluation, instruction,
guidance, , training or counselling,
- extends the probationary period to deprive employees of
permanent employment,
- dismisses probationers at the conclusion of the probationary

period and replaces them with newly hired employees.
• The purpose of probation is to give the employer the chance to see whether
an employee is capable of doing the required work. The Code prescribes the
following requirements for a fair probationary period:
- the period should be determined in advance, and
- the period should be of a reasonable duration, determined with
reference to the nature of the job, and the time it would take to
determine the employee’s suitability for continued employment.
• The Code allows the employer the following options at the end of the
probationary period:
- to extend the probationary period to enable the employee to
improve his performance (only if such extension is justified),
- to dismiss the employee, or
- to confirm the appointment of the employee.
• Before an employer may dismiss an employee or extend the probationary
period,
- the employee may be assisted by a trade union representative or a
co-worker,
- the employee must be given an opportunity to make
representations,
- the employer must consider the representations.
(Cases: Mediterranean Woollen Mills)
d) TRAINING
• This type of unfair conduct may occur where:
- an employee is denied training and training is a prerequisite for
advancement in the workplace, or
- where a legitimate expectation to training has been created, or
- where the employer acts inconsistently, arbitrarily or irrationally
in denying training.
• Where an employer has an established practice of training employees, an

employee could allege a legitimate expectation to such training, but only
where the employer acts arbitrarily, capriciously (randomly) or
inconsistently in denying the employee training.
• Where training is necessary for the advancement of the employee
(Cases: Mdluli & SA Police Service)
e) PROVISION OF BENEFITS
• The LRA does not define ‘benefits’ and a debate has accordingly arisen as to
its correct interpretation. In some cases, transport allowances and provident
funds have been accepted as being benefits, and in other cases, not.
• In Schoeman, the employer changed the employee’s commission structure
and she claimed that it was an unfair labour practice. The court held that
the commission was not a benefit but was part of her remuneration. A
dispute regarding an unfair labour practice must amount to a dispute of
right and disputes about remuneration are considered to be disputes of
interest because a right has not yet been created and such disputes must be
resolved by way of industrial action, not by court process. The problem here
is that one person cannot strike, therefore Schoeman had no remedy.
• In Apollo Tyres South Africa (pty)ltd v Commission for Concilliation, Mediation
and Arbitration and others the SCA held that an early retirement scheme did
not constitute a benefit. The court held that a benefit in the context of ULP
should be interpreted to include any benefit to which the employee is
entitled regardless of the fact that that the benefit results from the contract
of employment, or is judicially created, or is granted in terms of a policy or
practice subject to the employer’s discretion.
This means that employees who wish to claim that the employer committed an
ULP by denying them benefits, do not need to prove a right if they challenge
the fairness of the employer’s conduct. In this case, the employer failed to
provide a valid reason for the exclusion of the employee from the early
retirement scheme and therefore his conduct amounted to an ULP.
• In United Association of South Africa obo Members/De Keur Landgoed (EDMS)
Bpk, it was held that the discontinuation of transport that the employer had
provided for 15 years was an ULP. The CCMA held that due to the length of
time the benefit was given, and the fact that it constitutes a benefit, it was
considered a contractual obligation.
• It is therefore extremely difficult to define the difference between a benefit
and a right since most benefits form part of remuneration. Apollo Tyres has
complicated the situation more by including an entitlement into a right,
which is withheld or taken away, will amount to a benefit and therefore an
ULP.
• The debate between remuneration and benefit has been decided in more
cases and the results are as follows:
- Free transport to and from the workplace has been held to be a
benefit.
- Payment for unpaid commission was held to be remuneration and
not a benefit.
- Payment for accumulated leave constitutes remuneration and not
a benefit.
- Payment for overtime constitutes remuneration and not a benefit.
- A motor vehicle benefit scheme which is granted at the discretion
of management is remuneration and not a benefit.
f) SUSPENSION
• Precautionary suspension (suspension pending an inquiry) = 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 agrees to suspension without pay,
- a law authorises suspension without pay, or
- a collective agreement authorises suspension without pay.
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.
(Cases: Sappi Forests (pty)ltd v CCMA and others; Mogothle; Tungwana)
• 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). In County Fair v CCMA and SAB v Woolfrey it was
found that suspension without pay is an acceptable disciplinary action
where appropriate.
g) OTHER UNFAIR 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.
• 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:
- the employee must show that the sanction actually imposed was
inappropriate;
- it is easier for employers to justify sanctions lesser than dismissal;
and,
- as far as procedure is concerned, the lesser the sanction, the more
informal the procedure an employer may follow before the
sanction is imposed.
• Magson and Speed Wave Manufacturing (pty) ltd; SA Revenue Services v
CCMA
h) FAILURE OR REFUSAL TO REINSTATE OR RE-EMPLOY AN

EMPLOYEE IN TERMS OF ANY AGREEMENT
• Ex-employees are protected against a refusal by the employer to reinstate or
re-employ them in terms of any agreement.
• 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).
i) SUFFERING AN OCCUPATIONAL DETRIMENT ON ACCOUNT OF A

PROTECTED DISCLOSURE (‘WHISTLE-BLOWING’)
• 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 Protected Disclosures Amendment Act broadens the scope of the PDA
from the employment relationship and includes disclosures made by
Independent contractors, consultants and agents.
• 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 retaliated against the employee which
resulted in the employee suffering 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.
• 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).
• Theron; Young; Engineering Council of South Africa v City of Tshwane
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
4. IF UNSUCCESSFUL – the dispute must be arbitrated by the bargaining
council or the CCMA at the request of the employee (within 30 days).
Exception to the Dispute Resolution:

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.
Arbitrators and commissioners have wide powers to grant relief to employees,

which may include:
- re-employment
- compensation of not more than the equivalent of 12 months’ remuneration.
- declaratory orders,
- protective promotions,
- remitting the matter back to the employer for reconsideration and
- reinstatement to a previous position in the case of demotion.
Although the LRA does not place the onus of proof on either party, the employee
who alleges an unfair labour practice must prove all the allegations, where after
the onus will be placed on the employer to show that the conduct was not
unfair.
EMPLOYMENT EQUITY AND AFFRIMATIVE ACTION
EMPLOYMENT EQUALITY AND THE CONSTITUTION
FORMAL AND SUBSTANTIVE EQUALITY

1) Formal equality 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 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.
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…”
DIFFERENTIATION VS 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.
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. specified grounds, and
2. unspecified grounds
SPECIFIED AND UNSPECIFIED GROUNDS OF DISCRIMINATION

The EEA prohibits 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 (ie unspecified 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 unspecified grounds on which cases have been
based, include: qualifications, tertiary teaching and research expertise,
professional ethics, mental health/illness, political or cultural affiliation,
citizenship and being a parent.
DIRECT AND INDIRECT DISCRIMINATION

Direct discrimination occurs where someone is clearly treated differently
because of a certain characteristic, for example, race or gender. Examples of
direct discrimination: 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 when criteria that appear to be prima facie

neutral, negatively affect a certain group of persons disproportionately, for
example persons of Chinese descent or women. Example of indirect
discrimination: 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.
In the case of Kadiaka, the court referred to the tests for determining indirect
discrimination suggested by C Bourne and J Whitmore in Race and Sex
Discrimination, namely:
1. Has a requirement or condition been applied equally to both sexes and all
racial groups?
2. Is that requirement or condition one with which a considerably small
number of women (or men) or persons of the racial group in question can
comply than those of the opposite sex or persons not of that racial group?
3. Is the requirement or condition justifiable irrespective of the sex, colour,
race, nationality, ethnic or national origins of the person in question?
4. Has the imposition of the requirement or condition operated to the
detriment of a person who could not comply with it?
EXCLUSIONS - EEA
- members of the National Defence Force
- members of the National Intelligence Agency
- members of the South African Secret Service
- members of the South African National Academy of Intelligence, and
- the directors and staff of Comsec
PURPOSES OF THE EEA

The EEA applies
- to all employees (in respect of the prohibition against unfair discrimination,)
- to designated employers only (in respect of affirmative action)
THE PROHIBITION AGAINST UNFAIR DISCRIMINATION

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).
IF AN EMPLOYEE WANTS TO PURSUE A CLAIM FOR UNFAIR

DISCRIMINATION:
There are certain stages in the claim for both listed and unlisted grounds which
the courts will look at. These are discussed below:
Listed Ground:
STAGE 1 (the Claimant/employee):
• The employee must show that there was a differentiation between himself
and another person was on a listed ground which impaired his/her
dignity
• The employee must show that there is a factual foundation for the claim
by showing that the listed ground is the reason for the differentiation
STAGE 2: (the other party/employer)

• Onus shifts to the employer to prove (on a balance of probabilities) that
the discrimination:
o did not take place (in other words, that the link does not exist); or
o was rational and not unfair for another reason; or
o was justified
(the problem is that there exists no definition of rational and justifiable other
than inherent job requirement/retirement age).
Unlisted/Arbitrary Ground:
STAGE 1(The Complainant/employee):
• Complainant must prove that his/her dignity was impaired and compare
the unlisted/arbitrary grounds to the listed/specified grounds.
• Establish factual foundation for his claim by proving a link between the
ground and the differentiation
• If prima facie differentiation is proven, the differentiation becomes
discrimination.
STAGE 2 (the Complainant/employee):
• Complainant must prove on a balance of probabilities (note that this is a

heavier burden on the complainant than that of prima facie proof) that
the conduct complained of:
o was irrational,
o amounts to discrimination (the reason for differentiation is the
ground proven), and
o was unfair
STAGE 3 (the other party/employer):
• The onus is then on the employer to prove that the conduct is therefore
fair.
JUSTIFYING DISCRIMINATION
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.
1. INHERENT REQUIREMENTS OF THE JOB:

If the job requires a certain attribute, it will not be unfair to exclude a class of
persons without that attribute.
It is an inherent requirement of the job that 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.
It is not an inherent requirement that a cashier in a grocery store must be male

or that a police officer must weigh more than 65kgs.
The EEA does not define inherent requirements of the job and the courts have
given this concept a narrow meaning: only requirements which cannot be
removed from the job description (without changing the nature of the job), are
regarded as inherent requirements.
2. AFFIRMATIVE ACTION
• The EEA gives effect to S9(2) of the Constitution (substantive equality).
• Affirmative action measures
- must be applied by designated employers
- to ensure that suitably qualified people
- from designated groups
- have equal employment opportunities and
- are equitably represented
- 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.
HARASSMENT AS UNFAIR DISCRIMINATION:

• Any type of harassment will constitute unfair discrimination in terms of the
EEA. The most common form of harassment found in the workplace is
sexual harassment.
• In terms of the Code, sexual harassment is

- unwelcome conduct of a sexual nature that violates the rights
(such as dignity and privacy) of an employee;
- conduct that constitutes a barrier to equity in the workplace, and
- action based on sex and/or gender and/or sexual orientation,
whether the conduct was unwelcome or not.
• The Code: Sexual Harassment provides guidelines on how to deal with
sexual harassment and how to curb such conduct in the workplace.
Conduct constituting sexual harassment includes
- physical conduct,
- verbal conduct, and
- non-verbal conduct
Forms of sexual harassment

(1) 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
(2) Sexual favouritism: a person in a position of authority rewards only those
who respond to his sexual advances
(3) Victimisation: An employee is victimised or intimidated for failing to
submit to sexual advances.
• UASA obo Zulu and Transnet Pipelines, the court stated that sexual
harassment has no place in a civilized society.
• Grobler: A claim for sexual harassment can be based on three possible legal
bases, namely:
- vicarious liability;
- the EEA, and
- the LRA
• In terms of the EEA

- an employee who alleges sexual harassment must bring this to the
employer’s attention;
- the employer must then consult all relevant parties and take the
steps necessary to eliminate the conduct
- the employer will be deemed to be liable for a contravention by its
employees if the employer:
1. did not follow this procedure, and
2. cannot prove that it did all that was reasonably practicable to ensure
that an employee would not contravene the EEA.
The EEA requires every employer to take steps to attempt to eliminate unfair
discrimination in any employment policy or practice. The employer must do
what is necessary to eliminate existing unfair discrimination in an effort to
promote equal opportunities in the workplace. To further prevent harassment
in the workplace, the Code: Sexual Harassment makes it compulsory for
employers to develop sexual harassment policies which should stipulate the
following:
• sexual harassment is a form of unfair discrimination.
• Sexual harassment in the workplace will not be permitted or condoned.
• Formal and informal procedures may be used to address a complaint of

sexual harassment in a sensitive, efficient and effective way.
• Confidentiality is of the utmost importance in dealing with allegations of
sexual harassment.
• It is a disciplinary offence to retaliate against an employee who in good faith
lodges a complaint of sexual harassment.
• Disciplinary sanctions may be imposed on a perpetrator, ranging from
warnings for minor instances of sexual harassment to dismissal for
continued minor instances after warnings, or for serious instances of sexual
harassment.
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.
Medical testing is prohibited 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.
- EWN v Pharmaco Distribution (Pty) Ltd
Psychological testing is prohibited 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.
HIV/AIDS testing is prohibited unless

- the testing is considered to be justifiable by the Labour Court.
- The EEA does not stipulate the grounds upon which the Labour Court may
authorise the testing of an employee to determine his HIV status.
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.
Equal pay for equal work or work of equal value

The Amendment Act has introduced equal pay for the same or equal work.
Before, disputes regarding equal pay were argued on the basis of less
favourable treatment for employee performing the same/similar work. The same
principle applies with regard to pay for work of equal value.
Mangena & others v Fila SA
To claim equal remuneration for work that is the same /similar, the Claimant
must:
• identify a comparator
• establish that the work done by the comparator is more or less the same
or similar than that of the complainant
Where the claim is one for equal pay for work of equal value, the Claimant
must:
• identify a comparator,
• establish that the jobs of the comparator and he Claimant, while
different, are of equal value ( taking into account the degree of skill,
physical and mental effort, responsibility etc),
• lay a proper factual foundation to enable the court to make an
assessment of the value to be attributed to the work in question and the
tasks associated with it.
Thereafter, the Claimant must establish a link between the differentiation and a
specified or unspecified ground. Once the ink has been established, S11 of the
EEA
The Amendment Act:

- An employee cannot compare his job to that of another employee at
another employer and a comparison can only be done using another
person at the same employer.
- Makes provision for the MOL to prescribe the method and criteria for
assessing work of equal value and the method and criteria for assessing
work of equal value and work that is the same. These assessment
guidelines were established by way of Regulations and also by publishing
the Code of Good Practice on Equal Pay/Remuneration for Work of Equal
Value.
The EEA Regulations on the following:

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
Work of Equal Value
• When the work of 2 employees at the same employer do different jobs,
but their respective jobs are objectively accorded the same value in terms
of certain factors, namely:
o Responsibility demanded of the work, including people, finances
and material;
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:

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 Employee is employed temporarily to gain experience
o Shortage of relevant skills
The Code: Equal pay for equal work provides a process for evaluating jobs as
follows. The Employer Must:
• undertake an audit to identify inequalities in pay/remuneration between
gender, races, disability etc;
• identify the jobs that would be subject to the audit;
• ensure that job profiles exist and are current before evaluating jobs;
• utilize job evaluation and/grading systems that are fair and transparent
and do not have the effect of unfairly discriminating on listed/arbitrary
grounds;
• compare jobs that are the same/similar/of equal value in the employers
own organization;
• select a method of comparing pay/remuneration in the relevant jobs by
using either the average or median earning of employees in the relevant
jobs a the basis for the comparisons;
• identify any reasons for differentiating in pay/remuneration and
determine whether they are justifiable;
• where differentiation is found not to be justifiable, determine how to
address inequalities identified without reducing the pay/remuneration of
employees to bring about equal remuneration;
• monitor and review the process annually.
Resolution of unfair discrimination disputes

1. If there alleged discrimination against employee
2. The Employee must make a reasonable attempt to resolve the dispute

internally before refer to CCMA (‘reasonable attempt’ may be interpreted to
mean having at least exhausted the internal grievance procedures)
3. If unsuccessful: The employee must refer the dispute to CCMA for
conciliation within 6 months from date of alleged unfair discrimination.
4. If conciliation is unsuccessful, the dispute must be referred to the Labour
Court, unless the parties to the dispute agree to have their dispute
determined by arbitration.
5. Anyone affected by an award by the CCMA may appeal to the appeal court
within 14 days.
The Labour Court has wide discretion to determine the dispute. It may, for
example, grant compensation or issue an interdict to prohibit the employer
from continuing with its discriminating actions.
The CCMA may make an award in line with that of the Labour Court but an
award of damages cannot exceed the amount stated in S6(3) of the BCEA.
NB: A dispute must be determined by arbitration for the following:

• Sexual harassment
• If the employee earns above the amount determined by the BCEA (it gives
the lower paid employees the opportunity to use the CCMA).
• Both parties consent to the matter being heard in arbitration by the
CCMA.
AFFIRMATIVE ACTION
The second purpose of the EEA is to redress past disadvantage and to achieve
employment equality in the workplace through the implementation of
affirmative action measures. Examples of these measures are:
• Identifying and eliminating barriers in the workplace adversely affecting
members and groups
• Reasonably accommodating members of designated groups
• Promoting diversity
• Developing, training, evaluating, retention of members of designated
groups
• Preferential treatment and numerical goals to ensure equitable
representation.
NB: Affirmative Action measures do not create a right to be appointed or

promoted, but may only be used a defence against a claim for unfair
discrimination.
The Constitutional Court used the “rationality” test when using the measures
above:
1. The measures must target previously disadvantaged people
2. The measures must have been designed to protect/advantage people
3. Promote the achievement of equality
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 designated groups in all occupational categories

and levels in the workplace.
(Cases: Barnard; Van Heerden)
The contents of affirmative action

Affirmative action measures must be designed to:
- identify and eliminate employment barriers that adversely affect people from
designated groups;
- further diversity in the workplace;
- reasonably accommodate people from the designated groups to enable them
to have access to and advancement in employment;
- ensure equitable representation of suitably qualified people from designated
groups;
- retain and develop people from designated groups, and
- implement appropriate training measures, including skills development.
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).
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:
o Larger enterprises, with 50 or more employees
o Employers who employ fewer than 50 employees, but whose annual
turnover in any given year exceeds that specified in Schedule 4 of the EEA
o Municipalities
o Organs of state (ACSA, The Central Energy Fund, the Development Bank of
SA, Telkom, Eskom, the SABC and the SA Post Office)
o Employers that are designated as such in terms of a collective agreement
Every designated employer must implement affirmative action measures for

people from designated groups to achieve employment equity. The employer
has specific duties in designing and implementing an Employment Equity
Plan:
• 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.
• Disclosure of relevant information to the consulting parties to allow for
effective consultation.
• Collect information on, and analyse all its policies and procedures, in
order to identify employment barriers that adversely affect people from
designated groups. A profile of the workforce in each occupational category
and level must reflect the degree of under-representation.
• Prepare and implement an employment equity plan, including inter alia,

- objectives to be achieved for each year of the plan;
- numerical goals for under-represented people from designated groups;
- 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
• Reporting to the Director-General of the Department of Labour, on the
progress made (annually in the case of employers with more than 150
employees and bi-annually for employers with fewer than 150 employees.
• The employer must display a summary of the EEA in the workplace,
• Establishing and keeping records of the workforce
• Provide a copy of its Employment Equity Plan (EEP) to employees, and
• Submit a statement to the ECC on its employees’ income, in each
category of the workforce, with a view of reducing disproportionate income
differentials.
(Failure to comply with these duties may lead to fines for employers and state
contracts being refused or cancelled.)
BENEFICIARIES OF AFFIRMATIVE ACTION
Citizenship in respect of the designated groups:

Designated Groups are black people, women, and people with disabilities who
are:
• SA citizens by birth/decent
• Became citizens through naturalization after apartheid (people who couldn’t
get citizenship before apartheid, but should’ve been able to
• ‘Black people’ = includes Africans, Coloureds and Indians and People of
Chinese decent who were permanent residents of SA prior to 27 April 1994
• The Amendment Act includes temporary employees (TES) employed by a
client for a period exceeding 3 months
Is personal Disadvantage A requirement to benefit in terms of AA?

In Van Heerden it was held that personal past disadvantage was not a
requirement for a person to be a beneficiary of affirmative action. The reason
for this was that apartheid categorised people into groups, and consequences
resulted from group membership, without any reference to the circumstances of
individuals. The system meted out disadvantages and afforded advantages
according to a person’s membership of a group.
Degrees of Disadvantage:
In Fourie the Labour Court found that there were different degrees of
disadvantage between black people and white women in the workplace. In this
case, the applicant (a highly qualified and experienced white woman)
complained that she was unfairly discriminated against by being refused
promotion. While the court accepted that the white woman had been
discriminated against under apartheid, it held that the degree of discrimination
was lower than that suffered by African people, who bore the brunt of
apartheid. The court held that in deciding on degrees of disadvantage, the

following should be taken into account:
• South African history;
• the imbalances of the past;
• the fact that the apartheid system was designed to protect white people;
• the fact that black, particularly African, employees suffered the brunt of
discrimination, and
• the purposes and objectives of the EEA.
What does ‘suitably qualified’ mean?

Only members of designated groups who are ‘suitably qualified’ can benefit in
terms of AA. A person who may be suitably qualified for a job as a result of any
one (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).
MONITORING AND ENFORCEMENT OF AFFIRMATIVE ACTION

Informal measures: EEA provides that any employee or trade union
representative may bring an alleged contravention of the EEA to the attention of
any of the following persons:
- another employee;
- an employer;
- a trade union;
- a workplace forum;
- a labour inspector; or
- the Director-General of the Department of Labour or
- the Commission for Employment Equity.
Formal measures: the EEA is enforced by labour inspectors by obtaining

written undertakings from employers that they will comply with the Act; by
issuing compliance orders; by requesting reviews by the Director-General, or by
the Director-General referring cases of persistent non-compliance to the Labour
Court.
The DG may conduct a review in order to determine whether or not the

employer complies with the EEA and if not, may make recommendations. If the
employer continues non-compliance, the DG may refer the matter to the Labour
Court to make the recommendation an order of court, or to impose a fine on
such an employer. However these fines have been known to be disproportionate
to the offence committed.
Labour Court has wide powers, which include orders requiring the employer to
comply with a compliance order issued by an inspector; ordering compliance
with any provision of the Act, and imposing fines for a contravention of certain
provisions of the Act.
When measuring the compliance of employers 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,
- reasonable steps taken by a designated employer to train suitable
qualified people from the designated groups;
- reasonable steps taken by designated employers to implement its EEP;
- the extent to which the employer has made progress in eliminating
employment brriers that adversely affect people of the designated groups;
- reasonable steps taken to appoint and promote suitably qualified
designated people; and
- any other prescribed factor
If the employer contravenes the following, the DG may implement a fine:

• Section 20 (prep and implementation of EEP’s)
• Section 21 (prep and submission of reports)
• Section 23 (successive EEPS’s)
• Section 44 (refusing to comply with DG’s recommendations)
There are no longer straightforward fines implanted – therefore AA will be “more

aggressively enforced”.
COLLECTIVE LABOUR LAW
FREEDOM OF ASSOCIATION
FREEDOM OF ASSOCIATION AND COLLECTIVE BARGAINING
Freedom of Association means that people have the right to associate with
others in order to defend and protect their common interests. In the workplace,
freedom of association enatails the right of workers to:
• Form and join trade unions of their choice;
• To participate in the lawful activities of the union;
• To organise and bargain collectively with the employer;
• To strike.
S18 Constitution:
Provides that everyone has the right to freedom of association.
S23 Constitution:
(1) protects freedom of association of employees, employers, trade unions and
employer’s organisations.
(2) every employee can join, participate in activities of the trade union, strike
(3) every employer can join and form an employer’s organization
(4) trade unions and employers organisations have a right to determine their
own administrative programs and activities, and to form and join a trade union
and to organize and form a federation.
(5) every employer, trade union and employers organization has the right to
engage in collective bargaining.
PROTECTION OF FREEDOM OF ASSOCIATION
Purpose of the LRA:

The LRA must give effect to the Constitution and International Law when
interpreted
• Gives effect to S23 and the rights therein
• Gives effect to obligations imposed on SA in terms of their membership of
the ILO
• Promotes social justice, labour peace, workplace democracy
• Promotes Orderly Collective Bargaining
Specific Protection:
The LRA protects trade unions, employers and employers organisations as
follows:
• Everyone has the right to form or join a trade union, however the
activities of such membership is subject to the Constitution of the trade
union
• Every member of the trade union may also stand for election and be
appointed as union representative or officer
• Employer cannot discriminate against an employee due to his
membership, and if he is an applicant for a job, the employer may not
force the employee not to be a member, or to give up his membership, or
prejudice an employee due to his membership.
• No one may give an employee, or offer him an incentive to join a trade

union or exercise any of his rights hereof.
• Every trade union can:
o Form its own Constitution
o Hold elections
o Organize and plan activities
o Join federations
o Associate with International Organisations.
NB: Any employee which is dismissed due to his association with a trade union
can claim for Automatically Unfair Dismissal.
EXTENSION OF FREEDOM OF ASSOCIATION TO WORKERS EXCLUDED

FROM THE PROTECTION OF THE LRA
The CC has found that although uniformed members of the SA Defence Force,
Secret Service and Intelligence Service are excluded from the protection of the
LRA, they can claim the right to freedom of association under S23 of the
Constitution – however, non-uniformed members of the Defence Force are
public servants and fall under the LRA.
FREEDOM OF ASSOCIATION AND SENIOR MANAGERS

Managerial employees have limited freedom of association: They must be
cautious to balance their right to freedom of association with their common law
fiduciary duty to act in good faith towards their employers. If a senior manager
were to divulge information which he acquired as a result of his position, to the
trade union, the employer will be entitled to take disciplinary action against
him. In IMATU & Others v Rustenburg Transitional Council: The Court held that a
senior manager can join a trade union but must be mindful of his/her fiduciary
duty towards the employer.
TRADE UNIONS, EMPLOYERS' ORGANISATIONS AND FEDERATIONS OF

TRADE UNIONS OR EMPLOYERS' ORGANISATIONS
Trade unions and employers' organisations may join together in order to
strengthen their position, particularly when affecting the political processes in
society via the joint undertaking of research, the formulation of joint strategies
and the lobbying of political role players (and through representation on bodies
such as NEDLAC).
EMPLOYERS ORGANISATIONS:
Rights of Employers organisations:
• Determine its constitution and rules
• Hold elections
• Organize activities
• Join federations
• Associate with International Organisations.
TRADE UNION SECURITY ARRANGEMENTS: (EXCEPTION TO FREEDOM OF

ASSOCIATION) – INFRINGEMENTS ALLOWED
The Constitution allows for the conclusion of ‘agency-shop’ and ‘closed-shop’
agreements which infringe on an employee’s right to freedom of association.
The Constitution does, however, limit these agreements by requiring that they
must:-
1. be contained in a collective agreement, and
2. comply with the general limitations clause of the Constitution (S36(1)).
RESOLUTION OF DISPUTES ABOUT FREEDOM OF ASSOCIATION

1. Disputes about the interpretation or application of the right to freedom of
association are referred to a bargaining or statutory council, or to the CCMA
(if no council exists) for conciliation.
2. If the dispute remains unresolved, it should be referred to the Labour Court
for adjudication (unless the parties agree to arbitration).
ILO CONVENTION:
The two most important ILO (International Labour Organisations) South Africa
signed in:
• Convention 87 in 1996 - guarantees all employers and workers,
including supervisors, the right to freely establish and join organisations
of their own choice, subject only to the rules of the organization.
• Convention 98 in 1996 deals with the right to organize and bargain
collectively. This Convention protects workers against acts of
discrimination and victimization by their employers on account of their
trade union membership/activities. The Convention also protects unions
and employers organisations against any acts of interference by each
other or each other’s agents.
ORGANISATIONAL RIGHTS
The LRA grants organisational rights to registered trade unions for the purpose
of making it possible for trade unions to function more effectively and to build
support at the workplace by establishing a sound collective bargaining
relationship with an employer or employers’ organisation.
ORGANISATIONAL RIGHTS ITO THE LRA
S12 LRA: The right of access to the premises of the employer

The purpose of this right is to allow the union to access to the employer’s
premises to
- recruit new members, to communicate with existing members and to serve
the interests of members;
- hold meetings with employees at the workplace (outside working hours); and
- let members vote at the employer’s premises in union elections or ballots.
S13 LRA: The right to have trade union membership fees deducted by way
of a stop order
- Authorisation to implement stop orders must be given by the employees, in
writing;
- The employer should start with deductions as soon as possible and pay the
money over to the union no later than the 15th day of the month;
- An employee may revoke his stop order authorisation by giving the employer
and the union written notice to this effect.
S14 LRA: The right to elect trade union representatives (shop stewards)
- The number of shop stewards to be elected depends upon the size of the
workforce: the number of shop stewards increases on a sliding scale in
accordance with the number of union members who are employed in the
particular workplace.
- Shop stewards have the right to assist and represent employees, and monitor
the employer’s compliance with the law.
- Shop stewards are entitled to reasonable time off with pay during working
hours to perform union functions.
- Shop stewards are employed by the employer, not the union.
Trade union representative’s vs trade union officials
• Officials = employees of the trade union who perform various duties for the
union as employees;
• Representatives = employees of the employer; but also represent the union in
the workplace in which they (the representatives) are employed.
S15 LRA: The right of shop stewards (office bearers) to get time off for
trade union activities
Shop stewards are entitled to paid leave to perform their functions on behalf of
the union. (Details are normally arranged between the employer and the union).
S16 LRA: The right to disclosure of information
Only relevant information must be disclosed – ie, information that will allow
shop stewards to perform union functions effectively and engage in collective
bargaining. The employer is not required to disclose the following information
1) information which is not relevant to the issue(s) under discussion;
2) information which is not available,
3) information is legally privileged;
4) information that could harm the employer’s business interests if disclosed,
5) information which is private personal information relating to an employee
(unless the employee has consented to disclosure of such information).
Dispute resolution in respect of disclosure of information

1. Dispute about disclosure of information
2. Either party may refer the dispute to the CCMA for conciliation
3. If conciliation is successful, the matter is resolved.
4. If conciliation is unsuccessful, either party may refer the dispute to the
CCMA for arbitration.
5. Commissioner makes a binding award by balancing the employer’s right to
privacy against the interests of the union for sound collective bargaining.
LEVELS OF REPRESENTATION
Whether or not a trade union is entitled to organisational rights depends on the
level of representation of the trade union in the workplace.
S21 of the LRA provides that the commissioner, in determining the

representativeness of a trade union, must have regard to the composition of the
workforce, including:
• A temporary employment service,
• Employees,
• Employees employed on fixed term contracts,
• Part-time employees, or
• Employees in other categories of non standard employment categories
Majority representation (union represents 51% or more of all the employees in

the workplace) = entitled to all 5 organisational rights.
Sufficient representation (union represents less than the majority but more
than minority representation of employees in the workplace - sufficiently
representative is not defined, but the LRA gives guidelines of approximately
30%) = entitled to S12: access to the workplace; S13: membership fees
deducted from wages, and S15: shop stewards get leave for trade union
activities.
Union is a member of a bargaining council = automatically entitled to S12:
access to the workplace, and S13: membership fees deducted from wages.
Minority union = may enforce rights through collective bargaining and
industrial action (two or more unions may also act jointly to acquire rights).
ACQUISITION OF ORGANISATIONAL RIGHTS
1. In terms of a collective agreement

The LRA allows for a registered trade union and an employer/employers’
organisation to conclude a collective agreement that will regulate organisational
rights. (Even if the union is not representative, it could acquire organisational
rights by concluding a collective agreement with the employer/employers’
organisation).
2. Membership of a bargaining council
A registered trade union that is party to a bargaining council automatically
acquires the right of access to the premises of the employer (S12) and the right
to have trade union subscriptions deducted by stop orders (S13), in respect of
all workplaces falling within the jurisdiction of the bargaining council,
irrespective of whether or not it is sufficiently representative.
3. Through strike action
Any trade union may strike in support of a demand for organisational rights,
even if the union is a minority union or does not have the required level or
representation.
A majority union which choses not to follow the S21 procedure may elect to
obtain organizational rights through strike action if so, they are precluded from
referring back to use the S21 process.
4. The S21 procedure:
1. The registered trade union must notify the employer, in writing, that it seeks
to exercise organisational rights. This notice must be accompanied by a
certified copy of the union’s registration certificate, and must contain the
following information:
- the workplace in which the union seeks to exercise the rights,
- the representivity of the trade union in that workplace,
- the rights that the trade union wants to exercise, and
- the manner in which the trade union wants to exercise those rights.
2. The employer and trade union must meet, within 30 days of the notice, and
must attempt to conclude a collective agreement.
3. If the parties fail to conclude a collective agreement, either party may refer
the matter, in writing, to the CCMA for conciliation. If conciliation fails:
a) The union may give notice of its intention to strike or the employer may
give notice of its intention to embark on a lock-out. (If either party gives
such notice, that party may not refer the dispute to arbitration for a
period of 12 months from the notice).
(A union may not strike in support of a demand for disclosure of
information)
OR
b) Either party may request that the dispute be arbitrated. The arbitration
award will be binding on the parties. According the Amendment Act, an
arbitrator’s award is binding on employers, clients of TES, and any
person other than the employer who controls access to the workplace if
the person has been given an opportunity to participate in such
arbitration proceedings.
4. The duties of the Commissioner:

The Commissioner, in making a decision,
- MUST seek to minimize the proliferation of trade union representation
in a single workplace, and where possible, encourage a system of
representative trade union in a workplace;
- MUST seek to minimize the financial and administrative burden of
requiring an employer to grant organisational rights to more than one
registered union;
- MUST consider the
§ nature of the workplace,
§ the nature of the organisational rights that the registered trade
union seeks to exercise,
§ the nature of the sector in which the workplace is situated, and
§ the organisational history at the workplace or any other workplace
of the employer
§ Composition – looking at employees employed by TES, fixed-term
contracts, part-time employees, or other non-standard employees.
- MAY withdraw any of the organisational rights, once conferred, which
are exercised by any other registered trade union in respect of that
workplace, if that other union has ceased to be a representative union.
- MAY grant certain rights only available to majority representative trade
unions, to a non-majority trade union. This is governed by S21 of the
Amendment Act but only applies if:
§ No majority trade union in the workplace exists
§ The non-majority union already has the rights to access the
workplace, membership fees deducted, leave for union activities.
- In order to determine the membership or support of the registered
trade union, the commissioner MAY:
§ Make necessary inquiries,
§ Conduct a ballot of the relevant employees, and
§ Take into account any other relevant information.
- MAY in arbitration, grant to registered trade unions:
§ Access to the workplace
§ Deduction of membership fees
§ Leave for trade union representatives
NB: The employer must make available, all facilities to the commissioner
reasonably necessary to obtain organizational rights.
If the trade union is no longer a representative trade union, the employer may
approach the CCMA to withdraw the rights previously granted.
NB: If an employee is appointed by a TES and part of a trade union, that union
may exercise the rights of the employee at the workplace of that TES or the
client of the TES.
THE UNION AND ITS MEMBERS:

The members of the union and the relationship they have with the union is
governed by the constitution of the union, which governs the activities,
procedures and rules and must:
• Show the trade union is not established for gain
• Have no provision which discriminates against members
• Show the procedures for:
o Membership qualification
o Termination/removal of members
o Fees and payments
o Procedure for decisions
COLLECTIVE BARGAINING
Collective bargaining is not defined in the Constitution or the LRA, but it can be
described as a process through which employers or employers’ organisations
and trade unions negotiate and bargain about terms and conditions of
employment and matters of mutual interest.
Collective bargaining assumes a willingness by the parties to listen to and

consider representations, and to abandon their own fixed positions where
possible, in order to find common ground. If this is successful, they will then
conclude a collective agreement. If unsuccessful – options available to trade
unions are, for example, strike action (the strike action or any other decision
taken, must comply with the LRA).
DUTY TO BARGAIN
The Constitution and the LRA do not place a duty on the parties to bargain with
each other. They also do not regulate what employers and trade unions may or
may not do during the bargaining process (ie the tactics that they use).
The LRA does, however, support the role of collective bargaining as a

mechanism for regulating terms and conditions of employment and resolving
disputes. The LRA encourages and promote collective bargaining by:
o protecting the right of employees to form, join and participate in the activities
of a trade union;
o enabling trade unions to obtain organisational rights;
o permitting employees to strike in an attempt to force an employer to
negotiate with the trade union;
o regulating the legal status and enforceability of the product of collective
bargaining (collective agreements), making collective bargaining more
effective;
o making provision for closed-shop and agency-shop agreements, and
o granting the parties the right to establish bargaining institutions.
REFUSAL TO BARGAIN
If an employer refuses to bargain with a trade union, the LRA allows for the
employees to embark on strike action to persuade the employer to bargain: A
refusal to bargain includes:
- the employer’s refusal to recognise a trade union as a bargaining agent;
- the employer’s refusal to establish a bargaining council;
- the employer’s withdrawal of recognition of a collective bargaining agent;
- the employer’s resignation as a party to a bargaining council, and
- the employer’s disputing appropriate bargaining units, levels and topics.
Disputes regarding a refusal to bargain

Must be referred to the CCMA for an advisory award before any notice in terms
of S64(1)(b) or (c) may be given.
An advisory award made provides guidance only and is not binding on the
parties.
BARGAINING AGENTS: THE PARTIES TO COLLECTIVE BARGAINING

Collective bargaining is performed by bargaining agents = trade unions,
employers and employers’ organisations. To engage in collective bargaining, the
trade union should be recognized by the employer.
Only trade unions can engage in collective bargaining on behalf of employees;

an individual employee cannot. A single employer may, however, engage in
collective bargaining.
A trade union “is as an association of employees whose principal purpose is to

regulate the relations between employers/employers’ organisations and
employees.” (Only employees may be members of a trade union, job-seekers and
ex-employees may not).
An employer’s organization “any number of employers associated together for
the purpose, whether by itself or with other purposes, of regulating relations
between employers and employers or the trade union.
REGISTRATION
The LRA does not compel trade unions and employers organisations to register,
but encourages registration by granting most of the rights set out in the LRA
only to registered unions:
Only registered trade unions may:

- acquire and exercise organisational rights,
- conclude collective agreements which are enforceable under the LRA,
- be a member of a bargaining council, statutory council or workplace forum,
- conclude closed-shop and agency-shop agreements,
- authorise a picket, and
- represent members at CCMA proceedings.
A specific procedure must be followed when registering a trade union:

- the name must not be confused with another trade union
- must create a constitution
- have an address in South Africa
- no influence by the employer
Once registered the trade union becomes juristic person with a separate legal
personality. (Registration is not a prerequisite for protected strike action).
To participate in collective bargaining as a bargaining agent, a union should be

recognized by the employer. An employer recognizes a trade union by granting it
certain organizational rights.
STATUTORY BARGAINING COUNCILS:

• These are created by the LRA and are created together with the bargaining
councils mentioned above. Refusal to form a council can result in the
members of the trade union striking.
• This may be established by a representative trade union (which is registered,
or two trade unions representing more 30% of the employees employed in
that sector) or employer’s organization (which is registered and represents at
least 30% of employees in the sector), in a sector/area where there is no
bargaining council registered.
• Registering a Statutory Council and the powers of a Statutory Council is the
same as that of a Bargaining Council.
BARGAINING COUNCILS:
Registered trade unions and employers organisations can establish bargaining
councils for a specific sector or area. They will have to create a constitution and
register the council, giving the council jurisdiction in the area.
The state may only be a party to a council if it is an employer within that area
or sector.
Constitution of a Bargaining Council

Governed by S30 of the LRA:
- appoint representatives
- representation of small and medium enterprises
- removal and replacement of representatives
- rules for meetings
- decision making processes
- exemption from collective agreements
- changing the constitution
- winding up of the council
Registration of Bargaining Council

1. The parties agree to establish a bargaining council and adopt a constitution;
2. Apply to the Registrar of Labour for registration by submitting:
- Registration form
- Proposed constitution
- Any other information required
3. The Registrar must publish a notice in the Government Gazette and send a
copy of the notice to NEDLAC;
4. Any objections to the establishment of the Bargaining Council may be made
if:
- The applicant has not complied with the LRA; or
- Any reason relating to the sector or area.
5. The applicants are allowed to respond to the objections and NEDLAC will
also be involved in the application, demarcation and objections.
6. If the Registrar is satisfied that the applicant has complied with the
requirements for registration, the council will be registered.
Powers of the Bargaining Council:

- Conclude collective agreements
- Enforce collective agreements
- Resolve labour disputes
- Prevent labour disputes
- Govern training and education schemes
- Govern pension/provident/medical aid/holiday/unemployment/sick
pay/unemployment
- Govern proposals by NEDLAC
- Govern collective agreement issues not considered by industrial action
COLLECTIVE AGREEMENTS
The purpose of collective bargaining between an employer/employers’
organisation and a trade union is to reach agreement on terms and conditions
of employment and matters of mutual interest and to formalise their
relationship in a collective agreement. (A collective agreement regulates the
rights and duties of the parties, as well as the terms of conditions of
employment of employees).
THE DEFINITION OF A COLLECTIVE AGREEMENT

S213 of the LRA defines a collective agreement as ‘a written agreement
concerning terms and conditions of employment or any other matter of mutual
interest concluded by one or more registered trade unions, on the one hand
and, on the other hand –
(a) one or more employers;
(b) one or more registered employers’ organisations; or,
(c) one or more employers and one or more registered employers’
organisations.’
Elements of a collective agreement:

1. a collective agreement must be in writing (but does not have to be signed by
the parties, or even be contained in one document);
2. only a registered trade union can be a party to a collective agreement, and
3. a collective agreement must regulate terms and conditions of employment or
any other matter of mutual interest between a trade union and the
employer/employers’ organisation.
(Cases: Chamber of Mines v AMCU, AMCU)
AGENCY SHOP AND CLOSED SHOP AGREEMENTS (TRADE UNION

SECURITY ARRANGMENTS)
An agency-shop agreement is
• a collective agreement
• which is concluded by a majority union and an employer/employer’s

organisation;
• in terms of which the employer is required to deduct an agreed agency fee
from the wages of the employees who are identified in the agreement, subject
to the following:-
- the employer may only deduct the agency fees from wages of employees
who are non-union members and who are eligible for membership;
- the fee payable by non-members may not be more than the subscription
fee payable by the members of the union;
- the agency fees must be paid over to a separate account and may be used
only for the benefit of all employees at the workplace;
- the agency fees may not be used for political purposes;
- the agency fees may not be used for any purpose other than advancing or
protecting the socio-economic interests of employees;
- the employer may deduct the agency fees from the wages of employees
without authorisation, and
- conscientious objectors to the policies of the union (on moral or religious
grounds) must still pay the fee, which must be paid to a fund administered
by the Department of Labour.
Here, the employer agrees, in the collective agreement to deduct the agency fees
from the wages of certain employees who are not members of the trade union
that entered into the agency shop agreement, but they are eligible for
membership of this union.
A closed-shop agreement is
• a collective agreement
• which is concluded by a majority union and an employer/employer’s
organisation;
- the employees to be covered by the agreement must hold a ballot before a
closed-shop agreement is concluded and a two-thirds of the employees
who vote, must vote in favour of the agreement;
- the union subscription fees may not be used for political purposes;
- the union subscriptions may not be used for any purpose other than
advancing or protecting the socio-economic interests of employees;
- it is not unfair to dismiss an employee for refusing to join a union which is
a party to a closed-shop agreement, or who is refused union membership,
has been expelled from such union, provided that the refusal or expulsion
is in accordance with the union’s constitution and the reason therefore is
fair;
- employees who are already employed when the closed-shop agreement
comes into effect, as well as conscientious objectors, may not be dismissed
for refusing to join the union which is a party to the closed-shop
agreement;
- an employee may not be required to be a member of the union before
commencing employment; only post-entry closed shop agreements are
allowed in SA, not pre-entry closed-shop agreements are.
- closed shop agreements may be terminated if a majority of the employees
vote for its termination;
NB: Disputes regarding ASA/CSA and the interpretation of the Agreements, can
be referred to the CCMA for conciliation, failure thereof can lead to Arbitration.
A bargaining council does not have jurisdiction over these matters.
BINDING EFFECT OF A COLLECTIVE AGREEMENT
A collective agreement will bind:

1. the parties to the agreement;
2. each party to the agreement and the members of every other party to the
agreement insofar as the provisions are applicable to them
3. members of a registered trade union and employers who are members of a
registered employers’ organisation that are party to the collective agreement
if it regulates –
- terms of conditions of employment,
- the conduct of the employer in relation to their employees or the conduct
of the employees in relation to their employer
4. employees who are not members of the registered trade union(s) party to the
agreement, if –
- the employees are identified in the agreement,
- the agreement expressly binds the employees, and
- the trade union(s) represent the majority of all the employees employed
in the workplace.
A collective agreement varies any contract of employment between an employee

and an employer if they are both bound by the collective agreement. This
means that the collective agreement becomes part of every individual
employment contract of those employees who are bound by the collective
agreement
Collective Agreements and Bargaining Councils:

Collective agreements concluded by Bargaining Councils are based on:
- Parties to the bargaining council who are also parties to the collective
agreement: this collective agreement is binding on a union and
employer’s organization who are also parties to the bargaining council
who were involved in drafting the collective agreement and their
members.
- Parties to the council who are not parties to the agreement: parties who
are not parties to the agreement may be bound due to the provision
provided for in the constitution of the council.
- Parties who are not members of the council and not parties to the
agreement: if the parties fall within the sector and area jurisdiction of
such council may be bound by the council’s collective agreement.
Extension of Bargaining Council’s Agreements to Non-Parties:

S32 states that non-parties may be bound by the collective agreement of the
bargaining council if it’s within the registered scope, therefore it is binding on
employers and employees to whom it’s extended even though they are not
members. However, to make this extension valid, the following procedures must
be followed:
• Extension must be authorized by the MoL provided one/more of the
trade unions that represent the majority of unions, being a party to the
bargaining council, or employer’s organization whose members employ

the majority of all employees, vote in favour of such extension.
• Request must be in writing
• MoL must publish the request in the Government Gazette within 60
days.
• The notice must specific date and time the extension will come into
effect.
THE ESTABLISHMENT OF BARGAINING COUNCILS

There are two requirements for the establishment of a bargaining council:
1. The parties must adopt a constitution (which presupposes that the parties
agree to establish a council and agree on the content of the constitution).
2. An application must be made for registration (if the application is successful,
the council is registered).
PLACES AND LEVELS OF BARGAINING

Collective bargaining may take place at the following levels:
1. Plant level where bargaining is limited to a single workplace and can take
place at the level of an individual or single factory in respect of a specified
category of employees.
2. Enterprise level where the operations of one employer are spread across
different workplaces and bargaining takes place with reference to all the
different workplaces that constitute the enterprise;
3. Industry (sector) level where one or more trade unions bargain with one or
more employer/employers’ organisations about terms and conditions for a
whole industry (an industry is a number of different employers, companies or
firms which are active in the same economic sphere). Most of this industry
bargaining takes place within bargaining councils, or
4. a combination of the above (collective bargaining can take place at more than
one of the above levels simultaneously.)
Centralised bargaining = Takes place in a defined geographical area (eg.

Gauteng) across a whole sector (eg. The metal industry) and amounts to
sector/industry level bargaining.
Decentralised bargaining = takes place between an individual employer and

one/more unions with reference only to employees in the employer’s workplace
and constitutes plant level bargaining.
INDUSTRY-LEVEL BARGAINING AND THE IMPORTANT ROLE OF

BARGAINING COUNCILS
S28 LRA: A bargaining council has three main functions:
1. to conclude collective agreements;
2. to enforce those collective agreements, and
3. to prevent and resolve labour disputes.
Membership of a bargaining council automatically gives the trade union a right

to two organisational rights in the LRA (S12 access & S13 stop-order facilities).
Collective bargaining is not the only function of bargaining and councils. One of
the most important of the other functions of these institutions is dispute
resolution.
DISPUTE RESOULTIONS FOR COLLECTIVE AGREEMENTS:

S24 of LRA states that every collective agreements (not including a CSA/ASA)
must contain its own dispute resolution. If no resolution exists, if the procedure
is not operative, or the parties frustrate the process, it can be referred to the
CCMA.
• Parties must first conciliate
• If conciliation is unsuccessful, arbitrate
A dispute relating to the interpretation or application of a collective agreement
may not be resolved through strike or lockout action because such disputes
must be resolved through arbitration.
Disputes that the LRA requires a bargaining council to resolve
Type of dispute Bargaining Council jurisdiction

Disputes about freedom of association A BC only can conciliate these
disputes, failing which they should be
referred to the LC for adjudication
Disputes of interest in an essential A BC can conciliate and arbitrate
service these disputes
Disputes about severance pay A BC can conciliate and arbitrate
these disputes
Disputes about unfair labour practices A BC can conciliate these disputes
provided that they do not relate to
discrimination, which disputes must
be referred to the CCMA for
conciliation, failing which they must
go to the LC for adjudication
Disputes that may lead to a strike or A BC only can conciliate these
lock-out disputes
Dismissal disputes, if the reason is A BC only can conciliate these
1. based on operational requirements, disputes
2. for participating in an unprotected
strike,
3. connected to a closed-shop
agreement, or
4. automatically unfair
Disputes based on misconduct A BC may conciliate and arbitrate
these disputes by way of the con-arb
procedure
WORKPLACE FORUMS
The purpose of a workplace forum is to encourage collective bargaining, by
encouraging workers’ participation in joint decision-making at the workplace.
These forums generally deal with non-wage related issues such as
restructuring, introduction of new technology, new work methods, etc.
Trade union vs workplace forum

• A trade union is a juristic body which deals with wage related and non-wage
related issues and which may embark on industrial action.
• A workplace forum is not a juristic person. It deals non-wage related issues
and may not embark on industrial action.
• All employees, other than senior managerial employees, and including non-
union members, may be members of a workplace forum. Employee in this
instance is defined as “any person who is employed in a workplace, except a
senior managerial employees whose contract of employment or status
confers the authority to do any of the following in the workplace:
• represent the employer in dealing in the workplace forum
• determine policy and take decision on behalf of the employer that may be
in conflict with the representation of employees of the workplace.
The establishment of a workplace forum

A workplace forum may be established
1. only by a registered trade union, which represents the majority of all
employees
2. in any workplace of employers with more than 100 employees,
3. through a collective agreement or
4. through the intervention of the CCMA.
5. By way of collective agreement:
• CCMA will, upon all the requirements being met, appoint a
commissioner to assist the parties
• Commissioner convenes a meeting with the applicant, employer and
registered trade unions
• If collective agreement concluded, the provisions of the LRA will not
apply, only that of the collective agreement.
Establishment of a Workplace Forum if no Collective Agreement is

Concluded:
- Commissioner must meet with the applicant, employer and registered trade
unions to facilitate an agreement between them on the provisions of the
constitution of the workplace forum
- If there’s no agreement based on the provisions of the constitution, an
agreement is then formed on the basis of the LRA.
- If forum is then established, the commissioner sets the date for election of
members, and appoint an election officer.
Meetings of Workplace Forums:

- Workplace forums must meet regularly
- The employer must meet with the workplace forum regularly (unless the
constitution provides otherwise). At these meetings the employer must:
o Report on financial and employment situation, its performance
and future performance,
o Consult with the work place forum on any matter arising from the
report that may affect the employees
- The workplace forum must meet with the employees regularly, reporting
on activities and other matters needed.
- Must be held during working hours, at a place and time agreed to by the
forum and the employer, without loss of pay of the employees.
VOLUNTARY AND COMPULSORY STRUCTURES:
A voluntary structure is a body which is set up by agreement between an

employer and the trade union in which employees will be able to participate in
managerial decision-making. This allows the parties to model their own
structures by agreement.
A compulsory system is a body which the law compels an employer to establish
a structure. Such compulsory structure ensures that employers have to make
constructive efforts to participate within it.
The LRA provides for a structure that is neither compulsory nor entirely
voluntary, by emphasising the primacy of a collective agreement to establish a
workplace forum. A statutory model may be imposed by the CCMA only if the
parties are not able to reach consensus on the establishment of a workplace
forum.
The primacy of collective agreements extends beyond the formation of a

workplace forum and parties may vary the subject matter for consultation and
joint decision-making in terms of a collective agreement.
Employers and unions are entitled to conclude other agreements to establish a

body similar to a workplace forum through which communication between the
employer and employee can take place or in which participation in managerial
decision making is made possible outside the ambit of the Act.
A forum must meet regularly and its functions are to consult on certain matters
and to have joint decision-making on other matters.
What is consultation?
Consultation in terms of S85 LRA involves more than simply affording the
workplace forum an opportunity to take part in a discussion about a proposal,
but to reach consensus with the employer. When an employer wants to
introduce a proposal concerning a matter which the forum is entitled to be
consulted about in terms of the LRA, consultation must take place before the
employer implements any proposal.
Consultation means that the employer:

1. allows the forum to make representations and to advance alternative
proposals, and
2. consider and respond to these and, if the employer disagrees with them, that
it must state the reasons for disagreeing
If the employer and the forum do not reach consensus, the employer must use
any agreed procedure to resolve differences, before implementing the employers
proposal.
Forum Functions:
- promote interests of employees

- enhance efficiency
- consult on matters
- jointly making decisions on certain matters
JOINT DECISION-MAKING
• Joint decision-making requires the employer to consult and reach
consensus with a workplace forum.
• Matters for joint decision-making are matters which cannot be regulated by
a collective agreement, for example, matters relating to:
- disciplinary codes and procedures,
- the proper regulation of the workplace (except for work-related
performance),
- measures designed to protect and advance persons disadvantaged by
unfair discrimination, and
- changes by employer-representatives on boards of employer-controlled
schemes with regard to social benefits.
• A representative union and the employer may enter into a collective

agreement which will grant the forum joint decision-making in respect of
further matters, or removing matters.
• An employer is required to disclose all relevant information that will allow
the forum to participate in effective consultation and joint decision-making,
however, the employer is not obliged to disclose information which is
irrelevant, privileged, confidential, the employer may not disclose in terms of
a law or court order, or private personal information of an employee. Any
dispute regarding the disclosure of information must be referred to the
CCMA for conciliation. If conciliation fails, any party to the dispute may
request arbitration. The commissioner will not compel the employer to
disclose irrelevant information.
Matters for consultation

Unless regulated by a collective agreement, proposals relating to the following
are matters for consultation, namely:-
1. restructuring the workplace (for example, the introduction of new
technology and new work methods),
2. changes in the organisation of work,
3. total or partial plant closure,
4. mergers and transfers of ownership insofar as they have an impact on the
employees,
5. the retrenchment of employees,
6. exemption from any collective agreement or law,
7. job grading,
8. criteria for merit increases or the payment of discretionary bonuses,
9. education and training,
10. product development plans, and
11. export promotion.
A bargaining councilor, a union and an employer may conclude a collective

agreement which will grant a forum the right to be consulted about additional
matters that fall within the council’s registered scope.
Organisational Rights of Workplace Forums:

An employer must:
- allow members time off to perform their duties
- provide facilities to perform their functions
- provide designation of full-time members of the forum if there are more
than 1000 employees is such a workplace
- allow office bearers or officials of trade unions to attend meetings.
If the workplace forum is established in terms of a collective agreement, the

terms agreed to therein will apply.
DISPUTE RESOLUTION FOR WORKPLACE FORUMS:

If there is no collective agreement, regarding disputes in interpretation and
application of the forum:
- refer dispute to CCMA
- in writing
- CCMA attempts to resolve the dispute through conciliation
- If conciliation fails, any party to dispute can request it’ resolved through
arbitration
INDUSTRIAL ACTION
STRIKES: to remedy a grievance or resolve any matter of mutual interest

between employers and employees.
LOCK-OUT: to compel employees to accept a demand in respect of any matter
of mutual interest between an employer and employees.
SECONDARY STRIKES: to strike in support of another (primary) strike in order
to put pressure on the primary employer to accede to the demands of its
striking employees.
PICKET: to peacefully demonstrate support for any protected strike or
opposition against any lock-out.
PROTEST ACTION: to promote or defend the socio-economic interests of
workers.
REQUIREMENTS/HURDLES FOR A PROTECTED STRIKE/LOCK-OUT

No right is absolute and the LRA which accepts that the right to strike and the
right to recourse to a lockout may be limited in the interest of employers and
employees and in the public interest.
1. The action undertaken must comply with the definition of a strike or lock-
out.
2. The procedural requirements prescribed by S64 LRA must be complied with.
3. The action must not be prohibited by S65 LRA.
DEFINITION OF A STRIKE
Section 213 of the LRA defines a strike as ‘the partial or complete concerted
refusal to work, or the retardation or obstruction of work, by persons who are
or have been employed by the same employer or by different employers, for the
purposes of remedying a grievance or resolving a dispute in respect of any
matter of mutual interest between employer and employee, and every reference
to ‘work’ in this definition includes overtime work, whether it is voluntary or

compulsory.’
To qualify as a strike, the following three elements must be present,

simultaneously:
1. A refusal to work (a complete or partial refusal, obstruction or retardation of
work) NB: Under normal circumstances, refusal to work amounts to
misconduct.
2. A concerted refusal by persons (employed by the same or different
employers)
3. Refusal for a specific purpose (of remedying a grievance or resolving a
dispute in respect of any matter of mutual interest between the employer
and employees)
The first element: Refusal to work

Must be:
- in relation to work which the employees are contractually obliged to perform;
and
- not contrary to the law or a collective agreement
The refusal to work does not necessarily require a complete stop of work or
activities - a partial work stoppage is sufficient. The refusal may be
- partial (where employees only perform some of their duties/ only work during
certain hours)
- complete (where employees do not perform any of their duties)
- a retardation (where employees work, but at a reduced pace – go-slow; or
where the employees perform their duties strictly in accordance wit their
contracts – work-to-rule), or
- an obstruction (where employees disturb production through their actions).
Overtime
A refusal to work overtime will also constitute a strike, whether the overtime is
voluntary or compulsory, but not overtime work which amounts to a
contravention of the BCEA.
The second element: a concerted or collective action

• Although the right to strike is extended to the individual worker by S23 of
the Constitution, this right cannot be exercised individually. For an action to
qualify as a strike, more than one person must combine their efforts - a
single employee cannot strike.
• Collective action = acts or omissions undertaken by more than one employee
acting together, who are or have been employed by the same or by different
employers, in order to achieve a common goal.
• The collective action must be for a common purpose which binds the
strikers together. If a number of employees go on strike but each of them
has a different reason for striking, it will not amount to collective action.
• Therefore, the action must
o be concerted
o by persons, and
o constitute collective action
Strikes, pickets and protest action require collective action.
A pre-strike ballot is not required as a precondition for a protected strike,

however, such ballot may still be important in circumstances where trade union
members refuse to partake in strike action and the union intends to discipline
them.
The third element: the purpose of the strike

• The third element of a strike requires that there must be a purpose, and also
that the purpose must fall within the ambit of S213 LRA.
• The concerted action or omission and the nature thereof must be for a
common purpose (remedying a grievance or resolving a dispute in respect of
any matter of mutual interest between the employer and the employees).
• There must therefore be a grievance or a dispute in respect of a matter of
mutual interest before the action will constitute a strike.
• If the collective action by the employees has no purpose, the action will not
constitute a strike and the employees may be dismissed for misconduct
because they are in breach of their employment contracts.
• Where there was a purpose for the strike, which has fallen away, ie, the
parties settle the dispute or the employer agrees to the employees’ demand,
the strike terminates and so does its protection.
Matters of mutual interest

The concept ‘matters of mutual interest’ includes matters concerning the terms
and conditions of employment, as well as matters of direct relevance to the
workplace and the job security of employees, such as disputes about health and
safety issues, the dismissal of workers, and the negotiation of disciplinary,
grievance and retrenchment procedures, and wage increases.
Where the issue can be regulated by a collective agreement (through collective

bargaining), it is usually assumed to be a matter of mutual interest.
Matters of mutual interest must be matters between the employer and the
employee – political issues (refusal to work in protest over the State’s decision
to increase VAT, a demand to reform the Judiciary or the Reserve Bank, or the
contents of proposed legislation) is not a matter of mutual interest between the
employer and the employee. (The demand is against the State).
THE DEFINITION OF A LOCK-OUT

Section 213 of the LRA defines a lock-out as ‘the exclusion by an employer of
employees from the employer’s workplace, for the purpose of compelling the
employees to accept a demand in respect of any matter of mutual interest
between employer and employee, whether or not the employer breaches those
employees’ contracts of employment in the course of or for the purpose of that
exclusion.
The definition consists of two elements, both of which must be present

simultaneously in order to constitute a lock-out:
1. the employer must exclude employees from the workplace, and
2. the exclusion must be for the purpose of compelling employees to accept a
demand in respect of any matter of mutual interest between the employer
and the employees.
The first element: the action taken

Only one form of action – the exclusion of employees from the workplace –
amounts to a lock-out. This usually occurs by the employer simply closing the
workplace entrance and not permitting its employees to access the premises.
This exclusion is normally accompanied by the employer refusing to pay the

employees, which would amount to a breach of contract by the employer,
however, the LRA provides that an employer is not obliged to remunerate an
employee for services that the employee did not render during the protected
strike or protected lock-out (no-work, no-pay principle).
A lock-out cannot be effected against a single employee – this would amount to

a breach of contract!
The second element: the purpose of the action

The purpose for which the exclusion must take place is to compel employees to
accept a demand in respect of any matter of mutual interest between employer
and employee only.
Offensive and defensive lockouts

An offensive lockout occurs where the employer first decides that he wants to
lock the employees out. (Since the rule of no work no pay applies the employees
will not be able to work and will forfeit their remuneration).
A defensive lock-out is where the employees first decide to go on a strike and in

response to that strike the employer locks them out (Partial strikes (go-slow or
work-to-rule) are very effectual for the employees, in that the employer suffers
harm, but the employees still get paid because they are on the employer's
premises and they are doing their jobs. The best way for the employer to
counter this type of strike action is to institute a defensive lockout).
PROHIBITIONS ON STRIKES AND LOCK-OUTS
The right to strike is not unlimited. S65 states that a strike or lock-out will be
unprotected, in certain circumstances, even where the procedures in S64 have
been followed.
1. Prohibition in a collective agreement

If the parties to a dispute have previously agreed (in a collective agreement, to
which they are bound) that they will not strike/lock-out over certain issues,
they are not allowed to do so.
The collective agreement must be an agreement defined as such in the LRA and
it binds the parties only for the duration of the collective agreement.
2. Arbitration is prescribed by an agreement

If a person is bound by an agreement in terms of which the issue in dispute
must be referred to arbitration, a strike or lock-out about the issue will be
prohibited (any agreement, not just collective agreements).
3. Disputes that must be referred to arbitration or the Labour Court

If either party has a right to refer a dispute to arbitration or to the Labour Court
for adjudication in terms of the LRA, that party may not resort to a strike or
lock-out to resolve the dispute.
TWO EXCEPTIONS
1) Organiational rights disputes – the employees may choose whether to resort

to a strike or to refer the dispute to arbitration. If they refer the issue to
arbitration, the arbitrator’s decision is final and binding. If they elect to
strike, they lose the right to refer the dispute to arbitration for 12 months.
(Even unions which do not have the required degree of representativity to
acquire organisational rights through arbitration may strike in support of a
demand for such rights)
2) Operational requirements dismissals – employees may strike in opposition to
a large-scale retrenchment by a large employer, where they want to challenge
the fairness of the dismissal. Once the employees elect to strike, they cannot
take the matter of adjudication.
4. Essential and maintenance services
Essential Services = a service, of which the interruption endangers the life,

personal safety or health of the whole or any pert of the population and also
includes the Parliamentary service and the South African Police Service.
The following are examples of services which have been designated as essential
services by the Essential Service Committee:
- the regulation and control of air traffic
- the Weather Bureau
- municipal traffic services and policing
- public health services
- correctional services
- the supply and distribution of water
- the generation, transmission and distribution of power
- fire fighting
Maintenance Services = a service of which the interruption of that service has

the effect of material physical destruction to any working area, plant or
machinery. E.g. the bottle-washing machinery in a brewery, which can be
damaged if it stops for more than 30 minutes. The brewery does not perform
essential services, but the washing machinery operators perform a maintenance
service.
Employees who are engaged in the provision of essential or maintenance

services are prohibited from striking, as these services are regarded as
important to the employer or society.
The LRA does provide for an exception, where employees engaged in essential
services may strike: the employer and the trade union may conclude a collective
agreement which provides for maintenance of minimum services.
S72 LRA: employers and trade unions can conclude a collective agreement
which provides for the maintenance of certain minimum services in a service
designated as an essential service and the employees in an essential service,
but who do not provide minimum services, may strike or be locked out. The
employees who provide the minimum services will not be able to strike. Once
part of the business has been designated as a maintenance service, the
employer may not make use of replacement labour during a strike in that part
of the business.
NB: There is a difference between a maintenance service and a minimum

service.
A minimum service is a part of an essential service, which is governed by a
collective agreement.
A maintenance service is also governed by a collective agreement but doesn’t
necessarily form part of an essential service.
In terms of the new Amendment Act however, a service designation will not
apply if the majority of employees voted against it.
5. An award or a collective agreement regulates the issue

No-one may embark on a strike or institute a lock-out if that party is bound by
an arbitration award which regulates the issue since arbitration awards are
final and binding.
If a collective agreement already regulates the issue in dispute, the parties are
bound by that agreement
6. The issue in dispute is regulated by a determination

A person may not take part in a strike or lock-out if that person is bound by a
determination made by the Department of Labour.
The existence of a dispute
In several decisions, the courts have found that there is an additional

requirement for participation in a protected strike – there must actually be a
dispute in existence.
For example, where a union embarks on a protected strike in support of a

demand that a certain grievance be resolved, and the employer then concedes
these demands and the matter becomes settled, there can no longer be a
dispute and therefore no strike.
Further, if a dispute is not referred to an employer and no deadlock has in fact

been reached on the issue, there can be no dispute in existence.
PROCEDURAL REQUIREMENTS (S64):
The following procedural requirements must be complied with for a strike/lock-

out to be protected:
1. the issue in dispute must be referred for conciliation,
2. a certificate of outcome must be issued / 30 days must pass from date of

referral to conciliation, and
3. at least 48 hours’ prior written notice must be given to the other party.
The issue in dispute
The LRA defines an issue in dispute as ‘the demand, grievance, or the dispute
that forms the subject matter of the strike or lock-out.
The issue must fall within the definition of a strike or lock-out – it must be a
matter of mutual interest
For a strike or lock-out to be protected, the issue in dispute must first be

referred to a bargaining council (or the CCMA if there is no council).
Referral of the dispute to conciliation
Once the issue in dispute has been referred to a council or the CCMA, the
council or CCMA must attempt to resolve the dispute through conciliation
within 30 days.
Conciliation fails if the issue has not been settled within 30 days from referral
to the council or CCMA, or if a certificate is issued by the council or CCMA
stating that the dispute has not been settled.
Prior notice
Once conciliation has failed, or 30 days have lapsed, at least 48 hours’ written
notice must be given before the commencement of the strike or lock-out.
Where the State is the employer, at least 7 days’ notice must be given.
This notice allows the employees/employer to prepare for the impending strike
or lock-out.
In the case of a proposed strike, notice must be given to the employer unless
the dispute relates to a collective agreement to be concluded in a bargaining or
statutory council, in which case notice must be given to that council. If the
employer is a member of an organisation that is a party to the dispute, notice
must be given to the employers’ organisation.
In the case of a proposed lock-out, notice must be given to any trade union that
is a party to the dispute, or, if there is no such union, to the employees
concerned.
If the dispute relates to a collective agreement to be concluded in a bargaining

or statutory council, notice must be given to the council.
The LRA does not stipulate what information must be contained in the notice, it
only requires that the notice be in writing and must be issued 48 hours before
the intended action.
WHEN THE PROCEDURES NEED NOT BE COMPLIED WITH
1) The procedures need not be followed if the parties to the dispute are
members of a council and the dispute has been dealt with by that council in
accordance with its constitution;
2) The parties need not comply with the LRA’s procedural requirements if they
are covered by a collective agreement which contains its own procedural
requirements for strikes and lock-outs.
3) If an employer embarks on a lock-out that is not protected in terms of the

LRA, its employees will be able to strike in response to that unprotected lock-
out without complying with the procedures set out in S64, and vice-versa.
4) The procedures need not be followed if the strike takes place after the
employer has unilaterally changed the terms and condition of employment,
and the employed does not rectify this despite prior warning, and
5) In the case of a refusal to bargain dispute, the matter must be referred to

conciliation, and then to advisory arbitration before a notice of strike may be
given.
SECONDARY STRIKES
The definition of a secondary strike

S66(1) of the LRA defines a secondary strike as ‘a strike, or conduct in
contemplation or furtherance of a strike, that is in support of a strike by other
employees against the employer, but does not include a strike in pursuit of a
demand that has been referred to a council if the striking employees, employed
within the registered scope of the council, have a material interest in that
demand.’
A secondary strike (sympathy strike) occurs where employees from a second

employer (the secondary employer) strike in support of a strike by other
employees against their employer (the primary employer). The employees of the
secondary employer are not in dispute with their own employer. They take
action which affects their employer in support of the dispute which the
employees of the primary employer have with their employer.
• A secondary strike involves employees of one employer attempting to place

pressure on another employer.
• S66(1) provides that the definition does not include a strike in pursuit of a
demand that has been referred to a council if the striking employees,
employed within the scope of the council, have a material interest in that
demand.
• Where a strike occurs as a result of a dispute at one branch of an employer,
and then spreads to the other branches of the same employer (in support of
the same dispute), the extension of the strike will constitute the same strike
and not a secondary strike.
Requirements for a protected secondary strike
1) A secondary strike will only be protected if the primary strike is protected.

2) The secondary employer must be given 7 days, prior written notice of the
secondary strike.
This period of notice will give the employer the opportunity to exert pressure
on the primary employer to accede to the demands of its strikers.
If the secondary strike forms part of strike action about dismissal for
operational requirements or the secondary employer is the state, 14 days’
notice must be given.
3) The nature and extent of the secondary strike must be reasonable in relation
to the possible direct or indirect effect it may have on the business of the
primary employer = proportionality
This requirement ensures that the secondary employer does not suffer
significant harm without the secondary strike having any effect on the primary
employer. The purpose of a secondary strike is to put additional pressure on the
primary employer and the secondary strike is thus based on the assumption
that it will, in some way, be able to affect the outcome of the primary strike.
The Labour Court may consider the ‘proportionality’ of the secondary strike by
weighing up the potential effect of the secondary strike on the primary employer
against the potential effect on the secondary employer. The Labour Court has
held that there must be some nexus or link between the primary and the
secondary employer for the secondary strike to have a possible effect on the
business of the primary employer in such a way as to make the secondary
strike reasonable
Should a secondary employer feel that the requirements for a secondary strike
have not been met, he may approach the Labour Court for an interdict to
prevent or limit the secondary strike.
LEGAL CONSEQUENCES OF PROTECTED STRIKES AND LOCK-OUTS

1. No dismissal (except for misconduct/operational requirements)
2. No breach of contract / delict
3. No interdict
4. No compensation
5. No discrimination
6. No remuneration
Protection against dismissal

At common law an employer would be entitled to summarily dismiss striking
employees, however, this would undermine the role of strikes in the collective
bargaining process.
The rationale for protecting strikers against dismissal was explained in Black
Allied Workers Union v Prestige Hotels, where the Labour Appeal Court held that
if an employer facing a strike could merely dismiss the strikers from
employment by terminating their employment contracts then the strike would
have little or no purpose. The strike would cease to be functional to collective
bargaining and instead it would be an opportunity for the employer to take

punitive action against the employees concerned.
S67(4) therefore provides that an employer may not dismiss an employee

participating in a protected strike and S187(1)(a) states that if the reason for
dismissal is that the employee participated in or supported a protected strike,
the dismissal would be automatically unfair.
S67(5) limits the rights of the strikers not to be dismissed by providing that
even where employees are participating in or supporting a protected strike, the
employees may still be dismissed for misconduct or on the basis of the
employer’s operational requirements.
Dismissal for misconduct

An employer may dismiss employees who, during a protected strike, commit
acts of misconduct such as assault, intimidation or malicious damage to
property. If the employer wants to dismiss for misconduct, he must ensure that
the dismissal is fair in accordance with the statutory requirements for a fair
dismissal for misconduct.
Dismissal on the basis of operational requirements

Although the primary purpose of a strike is to place economic pressure on an
employer, a strike should not have the effect of jeopardizing the economic
viability of the employer. The LRA therefore permits the employer to dismiss its
employees on the basis of its operational requirements. Here, the employer
would have to comply with S189 LRA – it must comply with the definition, be
the real reason, etc.
Protection against civil liability

In terms of the common law, employees who strike are guilty of serious breach
of contract and the employer is entitled to summarily dismiss them.
Today, a person does not commit a delict or a breach of contract by taking part
in a protected strike or protected lock-out. No civil proceedings may be
instituted against any person because of that person’s participation in a
protected strike or lock-out.
Protection against claims for compensation

An employer may not institute action to recover any loss caused by the strike
Protection against discrimination

An employer may not discriminate against or prejudice employees who are n
strike, for example by offering some advantage to non-striking employees, or by
withdrawing discretionary bonuses from striking employees.
Payment of remuneration
The common law rule of ‘no work, no pay’ applies to strikes and lock-outs. The
LRA states that an employer is not required to remunerate employees for
services that have not been rendered (during a strike/lock-out).
Remuneration includes benefits afforded to employees such as housing

subsidies and medical aid or provident fund contributions. If the employees’
remuneration includes payment in kind in the form of accommodation, food or

other basic amenities of life, the employer may not stop this payment in kind
during the strike or lock-out if the employees request that it continues. After
the strike or lock-out the employer may recover the monetary value of the
payment in kind from the employees by way of legal proceedings in the Labour
Court.
The use of replacement labour

Employers may use replacement labour in a protected strike, unless a whole or
a part of the business has been designated as a maintenance service.
Employers cannot use replacement labour during a lock-out (offensive) unless

the lock-out is in response to a strike (defensive). This also prevents the
employer from making use of temporary employment services or outside
contractors.
LEGAL CONSEQUENCES OF UNPROTECTED STRIKES OR LOCK-OUTS:

1. Interdict
2. Employer may claim compensation for loss suffered
3. Dismissal
1. Interdict
The LC has exclusive jurisdiction in this regard and may grant an interdict or
order restraining the action.
2. Compensation
The LC may order payment of ‘just and equitable compensation’ for any loss
suffered as a result of the action. It must be proven that there was a loss and
that the loss was caused by the strike/lock-out.
When deciding whether or not to grant compensation, the LC must consider:

- whether attempts were made to comply with S64 & S65;
- the extent of those attempts, and
- whether the action was premeditated,
- whether the action was in response to unjustified conduct by the other party,
- whether there has been compliance with any interdict
- the interests of orderly collective bargaining
- the duration of the action, and
- the financial position of the employer, union or employees.
3. The dismissal of strikers

Participation in an unprotected strike amounts to misconduct which may
constitute a fair reason for dismissal, however such participation does not
necessarily justify dismissal.
The dismissal must be both procedurally and substantively fair.
Substantive fairness
The substantive fairness of dismissal in these circumstances must be
determined in the light of the facts of the case, including:
1) the seriousness of the failure to comply with the LRA
If there is a serious or deliberate failure by a party to comply with the

prescribed procedures for a protected strike or if there is a serious deviation
therefrom, dismissal of strikers might be fair. Minor technical factors such
as non-compliance with the time limits/incorrectly completing forms may be
condoned.
2) any attempts made to comply with the Act:

Attempts made to comply with the LRA are also take into account and where
employees genuinely believe that the strike is protected, this may mitigate
against dismissal or where the dispute has been formulated incorrectly. The
onus of justifying the non-compliance rests on the striking employees.
3) whether or not the strike was in response to unjustified conduct by the

employer:
Any unfair conduct by an employer may influence substantive fairness. For
example, where employees strike in response to the employer’s unfair
bargaining tactics or in response to unfair practices against individual
employees
Procedural fairness
1) The employer must make contact with the trade union to discuss the
course of action that it proposes to take.
If the striking employees belong to a union, the employer must make

contact with the union at the earliest opportunity to discuss the course of
action it intends on taking (the dismissal) before dismissing the employees.
The purpose of this is to enable the union to persuade the employer not to
dismissal the employees, and for the employees o return to work.
2) The employer must issue an ultimatum.
The employer must issue an ultimatum to the employees to return to work

before dismissing them.
The purpose of the ultimatum is to convince the employees to return. This

ultimatum must be communicated to the strikers in a medium they
understand.
It must be clear and unambiguous leaving no doubt as to what is expected

of the employee, and the time set for the ultimatum must not be
unreasonable (there must be sufficient time for the employees to consider
the ultimatum and to discuss same with their union).
If the strikers comply with the ultimatum, the employer cannot take
disciplinary action against them.
Where the employer cannot reasonably be expected to issue an ultimatum,

the employer may dismiss the employees summarily.
PICKETING
What is a picket?
A picket is conduct in contemplation or furtherance of a strike and occurs
where striking employees, or supporters, station themselves at or near their
place of work and attempt to persuade other parties such as non-strikers,
customers and suppliers of the employer, not to enter the premises, not to work
there and not to do business with the employer.
The purpose of a picket is to peacefully encourage non-striking employees and

members of the public to oppose a lock-out or to support strikers involved in a
protected strike.
Requirements for protected pickets
For a picket to be protected, it must comply with S69(1) of the LRA:
1) It must be authorised by a registered union:

Unregistered trade unions may not authorise a picket.
The authorisation of a picket must be done in accordance with the union’s
constitution, it must be formal and in writing, and must be accompanied by
a resolution authorising the picket, and must be served on the employer
prior to the commencement of the picket.
2) It must be for the purpose of peacefully demonstrating:

A picket must be peaceful. Intimidation and violent conduct will result in
civil and criminal liability. Therefore, for a picket to be peaceful it must
comply with the definition set out in terms of the LRA.
3) It must be
- in support of any protected strike or
- in opposition to any lock-out
- in support of secondary strikes are also allowed.
The picketers may carry placards, chant slogans, sing and dance. The
picketers may not physically prevent members of the public, including
customers, other employees and service providers from gaining access to or
leaving the employers premises and they may not take any action which is
unlawful.
S69(2): a picket may take place in any place where the public has access but
outside the employer’s premises, or, if the employer consents thereto, on the
employer’s premises. The employer may not unreasonably withhold such
consent.
NB: The Amendment Act adds that the CCMA may grant that the picket may be
held someplace other than that of the employer if that person had an
opportunity to make representations at the Commission before the rules were
established.
The Code sets out certain factors which should be considered when determining
the reasonableness of an employer’s refusal to allow the picket to take place on
the employer’s premises:
- the nature of the workplace and its situation,

- the number of employees proposed to take part in the picket on the
employer’s premises, and
- the undertaking by the union to exercise control over the picket.
If the CCMA authorises a picket on the employer’s premises, and the employer
refuses the picketers access, the trade union may refer a dispute to the CCMA
for conciliation and if this fails, to the LC for adjudication.
Picketing rules and conduct

S69 LRA does not regulate rules of conduct in respect of picketing, this must be
agreed upon by the employer and the trade union. If the parties cannot agree,
either party may refer the matter to the CCMA and who will secure an
agreement on the rules for the picket.
The following must be done by the registered trade union for a picket:
• The registered trade union must appoint a convenor, who must be a member
or official of the trade union, to oversee the picket.
• The convener must always have a copy of S69 LRA, the guidelines, any
collective agreement or rules regulating pickets, the resolution, and formal
authorisation of the picket by the trade union.
• The convener must notify the employer, the responsible person appointed in
terms of the Regulation of Gatherings Act, the police and public officials of
the intended picket;
• This notice should contain confirmation that the picket complies with S69 of
the LRA; as well as the name, address and telephone number of the trade
union and the convener; details of the picket, including details of the
employer; the date of commencement of the picket and the location of the
picket.
• On receipt of the notification, the employer must provide the convenor with
the name, address and telephone number of the person appointed by the
employer to represent it in any dealings arising from the picket.
• The registered trade union that has authorised the picket should appoint
marshals to monitor the picket. These marshals should have the telephone
number of the convenor, the trade union officer and any persons appointed
to oversee the picket in the absence of the convener and they should wear
armbands to identify themselves as marshals.
• The police should not become actively involved in the picket, except to
uphold the law, preserve peace and enforce the law.
LEGAL CONSEQUENCES - Protected picket

- No delict or breach of contract
- No civil claim for damages
- No criminal liability
- No disciplinary action may be taken against employees, unless the picketers
misconduct themselves, for example by threatening or intimidating others to
join the picket.
If either party breaches the picketing rules, the dispute may be referred for
conciliation, and should this fail, for adjudication by the LC.
LEGAL CONSEQUENCES - Unprotected picket

The court may grant an interdict or order to stop a picket that does not comply
with provisions of the Act.
PROTEST ACTION
The right to protest
Trade unions play an important role in wider society – they take part in, and
influence, debates and policy decisions that impact on society in general.
One of the aims of the LRA is ‘to advance economic development, social justice,
labour peace and the democratisation of the workplace.
S77 of the LRA regulates protest action, and grants employees the right to
participate in protest action where it is instituted to promote or defend the
socio-economic interests of workers, provided that certain requirements are
met. If the requirements are met, the protest action will be protected and
employees participating in such action will be protected in the same way as
employees engaged in protected strike action.
The nature of protest action
S213 LRA, protest action is ‘the partial or complete concerted refusal to work,
or the retardation or obstruction of work, for the purpose of promoting or
defending the socio-economic interests of workers, but not for a purpose
referred to in the definition of a strike’.
The types of action which would constitute protest action are the same as in the
case of a strike, however, the significant difference relates to the purpose of the
action.
What would constitute socio-economic interests is not defined - The Labour

Court has held that educational reform is a socio-economic matter.
Protest action in support of political matters is not authorised by the LRA: It is

one thing to embark on protest action in support of changes to educational
policies or in support for a demand that State pensions be increased; it is
another to embark on such action in an attempt to bring about a change in
government.
Protest action is the successor of “stay-aways” which were used when people
wanted to bring about political change.
Procedural requirements for protected protest action

Due to the fact that protest action can affect the economy negatively, it must be
regulated.
S77 LRA: “Every employee who is not engaged in an essential or maintenance

service has the right to take part in protest action if:
(a) the protest action has been called by a registered trade

union/federation of unions;
(b) the registered trade union has served a notice on NEDLAC stating-
(i) the reason for the protest action; and
(ii) the nature of the protest action
(c) the matter giving rise to the intended protest action has been
considered by NEDLAC or any other appropriate forum in which the
parties concerned are able to participate in order to resolve the matter;
and
(d) at least 14 days before the commencement of the protest action, the
registered trade union has served a notice on NEDLAC of its intention to
proceed with the protest action.”
CONSEQUENCES of protected protests:

If these requirements have been met, the protest action will be protected and
there will be protection against civil claims and against dismissal. Even if all
requirements are met though, the Labour Court can still prohibit such action. If
the protest action continues, it will become unprotected.
CONSEQUENCES of unprotected protests:

If the procedural requirements are not complied with, the protest action will not
be protected and the action may be prohibited by interdict, damages may be
claimed from the participating employees and they may be dismissed.
The consequences can apply to employees who participate in the protest action
OR contemplate such action and are therefore in breach of a court order.
Employees may not act n breach or contempt of a court order by the LC.
ADDITIONAL MATTERS RELATING TO DISPUTE RESOLUTION
Disputes of interest
A dispute of interest is a dispute about the creation of new rights – they arise
where employees, or trade unions acting on behalf of employees, seek to further
their interest where there are no currently existing rights in the contract or
legislation, which they may enforce.
An example of a dispute of interest is where employees seek higher wages or

new or improved conditions of employment in general (more leave, less
overtime, shorter working hours for the same pay, the introduction of day-care
facilities and the like). An employer may also demand that employees accept a
downward adjustment in their existing terms and conditions of employment.
Disputes of interest are best resolved through collective bargaining and the law
generally does not prescribe what the outcome of an interest dispute should be,
but it does regulate what the parties may and may not do during the bargaining
process.
Disputes of rights
A dispute of right usually is defined as a dispute about the interpretation or
application of a right that already exists - where the parties do not seek to
create a new right, but rather seek to enforce an already existing right where it
is felt that the other party to the employment relationship breached that right.
In such a case, the dispute will not be about the entitlement to the right, but
rather how the right should be interpreted and applied.
Examples of disputes of right include disputes about unfair dismissal (the right
not to be unfairly dismissed already exists in the LRA), disputes about unfair
labour practices (the right to fair labour practices already exists in the LRA),
disputes about unfair discrimination (the right not to be unfairly discriminated
against already exists in the EEA) and disputes about a breach of contractual
rights (the contract is a source of rights).
Disputes of right should be resolved through arbitration or adjudication.
The resolution of rights disputes - sources of rights and causes of action

Although much uncertainty exists in the law about this issue, after the
Constitutional Court decision in Chirwa, the following general principles may be
identified:
- A party may not rely directly on a Constitutional right where there is
ordinary legislation giving effect to and interpreting such Constitutional
right.
- The SCA has held that employees and employers retain the choice to rely on
contractual rights rather than the rights contained in legislation, in which
case the High Court retains jurisdiction to hear contractual disputes. In
Murray v Minister of Defence the SCA held that employers now have a general
duty of fair dealing with employees.
S77(3) BCEA gives the High Court and the Labour Court concurrent jurisdiction
in all matters arising from a contract of employment – that this choice (between
contract and legislation) remains intact.
With regard the choice between labour legislation and administrative law –
which only applies in case of public servants – there are different views.
The majority ruling in Chirwa eliminated this choice (forcing employees to use
labour legislation), however, some lower courts have declined to follow Chirwa
thereby maintaining the choice between legislation and administrative law.
HISTORY OF FREEDOM OF ASSOICIATION
17th Century:
During the colonization of the tip of Africa, there was no such thing as
unionism.
1800 and 1900:
• Mineworkers and Artisans from Britain brought the idea of unionism.
However, their unions did not include black workers.
• First union in SA – Carpenters and Joiners Union which represented skilled
white workers from Australia and Europe.
• In 1908, Government passed the Railway Regulations Act due to a

continued strike by white and black workers. This was due to the reduction
of black workers’ wages.
• From 1910, even after the Unionization of South Africa, government refused
to recognize rights of black workers.
• 1919 saw the first black workers union, Industrial and Commercial Workers
Union. The same year, the ILO was established.
• 1920 saw vast labour unrest with massive strikes, mostly due to difference
in wages between black and white workers. This lead to the introduction of
the Industrial Conciliation Act which legally recognized Unions and therefore
strikes, lockouts, bargaining councils but STILL excluded black workers.
The Wage Act was also introduced which did make provision that all wage
determinations, regardless of race, be equal.
• In 1926 the South African Trade and Labour Council was formed which
allowed for trade unions for black workers separate from white workers. This
allowed for the replacement of the ICA by Consolidated Industrial
Conciliation Act but still separated the races.
• 1946 led to Government amending the Act to prevent black workers from
striking due to a major strike that broke out.
• 1948 white workers therefore prospered. This led to the Botha Commission
of Inquiry. The Suppression of Communism Act was passed which divided
black trade unionism. Eventually it was proposed by the commission, that
black trade unions were allowed to strike, but only in certain circumstances,
however they were prohibited from participating in political activities.
• In 19454, the formation of the South African Trade Union Council was
formed, which later became the Trade Union Council of South Africa
(TUCSA) where members came together with the Council of Non-European
Trade Unions in mid-1950 to form a new body called South African
Congress of Trade Unions (SACTU) which were linked to the ANC.
• A new ICA came into effect which saw the first legislative freedom of
association, however it still excluded black workers specifically from the
definition of employee.
• 1948 United Nations Universal Declaration of Human Rights was formed –
however South Africa continued its segregation.
• 1962 the UN General Assembly passed a resolution requesting all UN
members to cease relations with South Africa.
• 1960 saw the Sharpeville massacre and many SACTU leaders were exiled.
• 1961 The Republic of South Africa was born and a new Constitution
established. It still however, kept black and white people separate in law.
• 1970 Black workers formed and join difference trade unions
• 1973 Bantu Labour Relations Act was passed and specifically prevented the
growth of trade unionism. People working in the mining (coal and gold)
industry and government services were specifically excluded from the Act,
• 1976 there was a higher demand not to invest in South Africa
internationally.
• 1977 government appointed the Wiehahn Commission of Enquiry to Labour
Legislation and proposed changes such as:
o Freedom of Association should be exercised regardless of race, gender,
creed
o Trade unions should be allowed to register regardless of their

composition
o Trade unions should be allowed to draw their own rules
o If the employee’s contract specifically disallows trade unions, it should be
considered an unfair labour practice.
o The commission called for the establishment of an Industrial Court and
abolition of job reservations.
o Most of the recommendations were accepted such as:
§ Freedom of association regardless of race or origin
§ Trade unions could decide on their members
§ Definition of employee did not include any reference to race
§ Requirements of registering a trade union were also revised
• 1980 outdoor trade union meetings were only allowed with special
permission from the Minister of Law and Order
• 1983 New Constitution of South Africa was adopted, still entrenching racial
discrimination. Black people were still denied political rights.
• 1985 Congress of South African Trade Unions (COSATU) was formed. It
supported the political calls against apartheid.
• 1986 New federations, such as United Workers Union of South Africa was
formed under the “umbrella” of the Inkatha Freedom Party and the Nation
Council of Trade Unions.
• 1990 Nelson Mandela’s release, along with other prisoners, saw the lifting of
the ban on political organisations. Meetings between the State, business and
labour resulted in the Laboria Minutes, which were translated into law by the
Labour Relations Amendment Act.
• The interim Constitution and the Final Constitution contained labour rights.
• 1993 NEDLAC was formed.
• 1994 the Labour Relations Act was passed after the MoL formed a task team
to review the labour laws. All employees were now governed, for the first
time in history, by one labour system which integrated the Constitutional
rights to join and form trade unions, organizational rights and the right to
strike.

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Labour Law Summary – Semester 2 2018

INDIVIDUAL LABOUR LAW

The LRA defines an employee, in terms of S213 as:-

If a person works for a non-profit organization and is paid by that organization,

5 TESTS DEVELOPED BY THE COURTS

1) The control test considers whether or not there is control over

The Code and the control test:

2) The organization test considers whether or not

The Code and the organization test:

3) The dominant impression test is preferred by our courts due to its

1) The right to control or supervision

2) The extent to which the worker depends on the employer in the

The Code and the dominant impression test:

4) The Economic capacity Test looks at whether the employee’s income-

5) The Reality test looks at the “substance of the relationship as opposed to

Employee Independent contractor

When does the employment relationship start?

NON-STANDARD EMPLOYEES: chapter IX of the LRA was added to protect

1) Temporary Employment Services (TES/Labour Brokers):

o This is aimed at preventing the exploitation of placed workers;

ISSUES INVOLVING TES/LABOUR BROKERS:

PRIVATE AND PUBLIC EMPLOYMENT AGENCIES:

Public Employment Services:

2) Fixed Term Contracts:

• A fixed term contract is held by an employee whose contract is

o If the employee is employed in terms of a fixed term contract

• Examples: Domestic/casual piece worker.

National Academy of Intelligence, the National communications Centre and

EMPLOYMENT TAX INCENTIVE ACT (‘ETIA’)

THE EMPLOYMENT SERVICES ACT:

THE EMPLOYMENT CONTRACT

REQUIREMENTS FOR A VALID EMPLOYMENT CONTRACT

1) There must be consensus/agreement between the parties

The existence of contract of employment may depend on an external fact such

condition e.g. the positive outcome of a particular process that has to

UNPROTECTED ILLEGAL AND FOREIGN WORKERS

In terms of the common law, illegal employment contracts or contracts in terms

EMPLOYMENT SERVICES ACT (ESA) AND FOREIGN WORKERS:

The main objectives of this act are to:

1) Protecting foreign employees: the Act protects foreign employees from

DUTIES OF THE EMPLOYEE (Rights of the employer)

1) To render services to the employer

3) To obey lawful and reasonable instructions of the employer

DUTIES OF THE EMPLOYER (Rights of the employee)

1) To remunerate the employee

Vicarious liability protects third parties, however, an employer will have

(Cases: Bezuidenhout v Eskom)

However, if the employee is expressly forbidden from acting in a particular way

REMEDIES FOR BREACH OF CONTRACT

In terms of the LRA,

A restraint of trade clause is lawful and enforceable unless it is unreasonable

In determining whether or not a restraint of trade is enforceable, a court must

Reasonableness must be determined with reference to the interests of both

- Is the restraint wider than is necessary to protect the protectable interest?

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

An employer who unlawfully terminates a contract of employment containing a

CHANGES TO CONTRACTUAL TERMS AND CONDITIONS OF EMPLOYMENT

These could, for example, relate to an agreement whereby an employee is

BASIC CONDITIONS OF EMPLOYMENT ACT

The BCEA lays down minimum terms and conditions of employment.

Where minimum terms and conditions of employment are included in sectoral

A basic condition of employment in the BCEA will constitute a term of any