Law@work

Fifth Edition
Law@work
Fifth Edition

André van Niekerk (Managing Editor)

BA LLB MA (Applied Ethics) (Witwatersrand) LLM (Leicester)
Judge of the Labour Court of South Africa

Nicola Smit (Managing Editor)

BLC LLB (Pret) LLD (RAU)

Marylyn Christianson
BA (UCT) GRAD CE (Zim) LLB LLM (Natal)

Marié McGregor
BLC (Pret) LLB (UNISA) LLM (Pret) AIPSA Dip (Pret) LLD (UNISA)

Stefan van Eck

BLC LLB LLD (Pret)
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Preface

This fifth edition of Law@work was largely prompted by the amendments to the
Labour Relations and Basic Conditions of Employment Acts and the introduction
of the National Minimum Wage Act, all with effect from 1 January 2019. We
have also incorporated the Code of Good Practice: Collective Bargaining, In-
dustrial Action and Picketing that was published on 19 December 2018. A num-
ber of key judgments have emerged since the last edition. These have been
incorporated into the text where there has been a substantive change to or
advancement of the law, or into the footnotes where a reference is warranted.
The book continues to be intended primarily as a teaching tool and a first
point of reference for practitioners. The structure of the book remains as it was in
the fourth edition. As far as possible, we have attempted to avoid a degree of
overlap, but this is inevitable when chapters are designed, as they are, to be
read on a ‘stand-alone’ basis. We trust though that the whole is coherent, and
represents a snapshot of current South African labour law in its social, economic
and constitutional context.
We have incorporated the amending legislation, regulatory material, judg-
ments and arbitration awards using material available to us as at 31 October
2019.
THE AUTHORS
November 2019

v
Contents

Page
Preface .................................................................................................................. v
CHAPTER 1 Introduction .................................................................................... 1
CHAPTER 2 International labour standards .................................................... 21
CHAPTER 3 The constitutional framework ....................................................... 37
CHAPTER 4 The elusive employee and non-standard employment ........... 57
CHAPTER 5 Common-law and statutory conditions of employment .......... 87
CHAPTER 6 The right to equality in employment: non-discrimination
(Chapter II of the EEA) .................................................................. 117
CHAPTER 7 The right to equality in employment: employment equity
and affirmative action (Chapter III of the EEA) ......................... 161
CHAPTER 8 Unfair labour practices ................................................................. 195
CHAPTER 9 Unfair dismissal – preliminary topics ............................................. 233
CHAPTER 10 Automatically unfair reasons for dismissal .................................. 269
CHAPTER 11 Conduct and capacity ................................................................ 293
CHAPTER 12 Dismissal for reasons based on the employer’s operational
requirements .................................................................................. 337
CHAPTER 13 The transfer of undertakings ......................................................... 363
CHAPTER 14 Freedom of association and the right to organise .................... 393
CHAPTER 15 Collective bargaining and worker participation ....................... 415
CHAPTER 16 Strikes and lock-outs ...................................................................... 447
CHAPTER 17 Dispute resolution .......................................................................... 477
CHAPTER 18 Employment and social protection............................................. 507

vii
viii Law@work

Page
Bibliography ........................................................................................................... 545
Table of cases ....................................................................................................... 559
Table of statutes .................................................................................................... 589
Index ....................................................................................................................... 601
1
Introduction

Page
1 The discipline of labour law ............................................................................ 3
2 Perspectives on labour law in a South African context .............................. 8
2.1 The libertarian perspective ...................................................................... 8
2.2 A social justice perspective ..................................................................... 10
3 The evolution of employment law in South Africa ....................................... 12
3.1 Pre-1995 labour legislation ....................................................................... 12
3.2 The post-1994 era ..................................................................................... 14
4 Key labour market institutions: A brief overview .......................................... 16
5 The future .......................................................................................................... 17

1
Introduction 3

1 The discipline of labour law

What is labour law, and what is its claim to existence as an independent discip-
line? A moment’s reflection will reveal that labour law cannot assert a right to
existence in the same way that the law of contract, delict, or criminal law
might. All of these subjects are based and rely for their coherence on a single
legal concept. For example, criminal law concerns the relationship between the
individual and the state and the kinds of conduct that should be punishable;
the law of delict is primarily concerned with obligations between individuals, the
concept of fault and the manner in and extent to which harm should be com-
pensated. Labour law, on the other hand, has been described as less of a
concept than a ‘dimension of life’.1 The dimension of life with which we are con-
cerned is the world of work and people’s engagement in it.
However, this does not detract from the significance of labour law, nor is it a
negative reflection on the status of labour law as a discipline either in its own
right or as one worthy of study. While the focus of labour law is the workplace, its
subject matter is a complex and intertwined body of law drawn from a number
of diverse legal sources. Contract, delict, criminal law, administrative law, com-
pany law, constitutional law and international law are all areas of law with
which labour law to a greater or lesser degree intersects. The relationship of
these concepts to work and how they are drawn together to regulate the terms
on which work is performed is what gives labour law conceptual coherence as
a subject, and what justifies its study as a discrete discipline.
Conceptual coherence aside, there are at least two other reasons why la-
bour law warrants consideration as a stand-alone topic. The first is that work is
fundamental to definitions of self and provides status, esteem and meaning to
those persons sufficiently fortunate to be engaged in it. The loss of employment,
especially in economies with high levels of unemployment (South Africa’s is such
an economy), will most often have devastating personal consequences for a
worker and a worker’s family. Work is a means to sustain material needs and
escape poverty, and a lack of it can result in social exclusion. Secondly, at a
social, political and economic level, work remains the principal means through
which economic activity is conducted.2
The nature and extent of the regulation of the labour market in general, and
the organisation of work in particular, are inevitably contentious political issues.

________________________

1 Langille ‘Labour Law’s Back Pages’ in Boundaries and Frontiers of Labour Law Davidov
and Langille (eds) (2006). This chapter draws from the perspective on labour law offered
in this essay.
2 This despite predictions of the demise of work. See Rifkind ‘The End of Work’ (1996).
Rifkind’s theory is that human labour ‘is being systematically eliminated from the produc-
tion process’ (at 3). More recent studies have focussed on the impact of technological
advances on work. This is an element of what is termed the ‘fourth industrial revolution’ –
the emerging technologies in robotics, automation and artificial intelligence – and their
impact on the nature of work. (See Schwab The Fourth Industrial Revolution (2016) and In-
ternational Labour Organization Work for a Brighter Future – Global Commission on the Fu-
ture of Work (2019).)
4 Law@work

This is especially so in an environment where government seeks to provide de-

cent work for all but where assertions are made, as they have been in South
Africa, that in comparative terms the labour market is overly rigid and that
labour legislation inhibits economic development and the creation of jobs.
Legislative intervention in the employment relationship was originally motivated
by the recognition that contractual rules ignore the fact that the bargaining
power between employer and employee is inherently unequal. Few employees
are in a position to bargain on equal terms with their employers; the employer is
usually in a position to dictate the terms of the relationship.3
The traditional function of labour law has been to address this imbalance.4
Labour law has sought to serve as a countervailing force in two ways. The first is
intervention in a substantive sense, by imposing minimum standards below
which an employer and employee may not contract. In South Africa, the Basic
Conditions of Employment Act5 (BCEA) adopts this mechanism by fixing statutory
basic conditions of employment that constitute a term of any contract of em-
ployment, unless more favourable terms are either agreed to or imposed by
another regulatory measure.6 The National Minimum Wage Act7 (NMWA) estab-
lishes a national minimum wage which cannot be waived, and the mechanisms
to review that wage on an annual basis. The Labour Relations Act8 (LRA) estab-
lishes protection for individual employees against employer action in the form of
unfair dismissal and unfair labour practices.
The second and more procedural form of intervention is to improve the bar-
gaining position of employees by creating rights, institutions and structures (for
example, the rights to freedom of association and to bargain collectively) to
act as a countervailing force to the employer’s economic power. Thus, the LRA
guarantees employees the right to join trade unions and participate in their activi-
ties, affords representative trade unions a set of organisational rights, establishes

________________________

3 Perhaps senior executives and highly skilled professional employees are potential excep-
tions. Even then, this must be an insignificant number of employees. Most employees, par-
ticularly in a society such as South Africa’s, with the official unemployment rate at 29 per
cent, have no bargaining power and are hardly in a position to negotiate the terms of
their employment contracts.
4 The classic statement of this perspective remains this often-quoted passage: ‘The main
object of labour law [is] to be a countervailing force to counteract the inequality in bar-
gaining power which is inherent and must be inherent in the employment relationship’
(Davies and Freedland Kahn Freund’s Labour and the Law (1983) at 18). Some South Afri-
can scholars disagree with the application of this perspective in South Africa and argue
that historically the collective bargaining system perpetuated power imbalances by seek-
ing to control White workers while simultaneously excluding Black workers. See Le Roux
‘The Purpose of Labour Law: Can it Turn Green?’ in Malherbe and Sloth-Nielsen (eds)
Labour Law into the Future: Essays in Honour of D’Arcy du Toit (2012) at 237. Le Roux also
develops a concept of ‘sustainable labour law’.
5 Act 75 of 1997.
6 S 4 of the BCEA.
7 Act 9 of 2018. This Act will be discussed in more detail below in para 3.2 ‘The post-1994
era’ and in chapter 5 below.
8 Act 66 of 1995.
Introduction 5

collective bargaining structures, recognises and gives effect to collective agree-

ments, and upholds the right to strike.
The form of these interventions, both to fix minimum terms of employment con-
tracts and to establish the framework within which collective bargaining might
be conducted, suggests that ascertaining the applicable law in an employment-
related dispute will often be difficult. Unlike contracts that are concluded in
most other forms of commercial engagement, the express terms of the employ-
ment contract are usually not definitive of the relationship between the parties,
nor do they seek to be. It may be necessary to look beyond the terms of the
contract to legislation (including the Constitution), wage-regulating measures,
collective agreements, work rules and practices and the like, in order to estab-
lish the applicable law.
However, the contemporary challenge to labour law is not the complexity of
the individual employment relationship. At an external level, the standard con-
tract of employment is increasingly no longer the primary means through which
work is performed. The traditional foundation of labour law – an indefinite con-
tract with a single employer arranged around a core concept of permanent
employment where the employee is engaged in a workplace over which the
employer exercises physical control, organises work and directs how employees
should do it – is being eroded. Nowadays, it is as likely that work is performed by
someone who works from home, receives instructions on-line, performs work with
full autonomy, delivers the agreed product or services on-line, and is paid on-
line. In this instance, there is no workplace (except in some virtual sense) and
the worker rarely, if ever, sees the employer.9 These more contingent forms of
engagement may have advantages for those employees seeking maximum
flexibility, but they generally offer less protection to workers than does the trad-
itional model of employment.10
The erosion of the standard contract of employment as the primary means by
which work is performed has extended to the essentials of the employment re-
lationship itself. Many employers seek to have work performed in terms of agree-
ments that on their face are not employment contracts but rather contracts
between a client and a service provider. While the legal distinction between
________________________

9 An ILO report on the employment relationship refers to these persons as ‘e-lancers’.

10 See Thompson ‘The Changing Nature of Employment’ (2003) 24 ILJ 1793. Thompson argues
that ‘Work has changed and is changing for both better and for worse. On the positive
side, there are now many more options open to employees, allowing them to work in
more flexible ways and to better match their work obligations with their lifestyle aspir-
ations. And the expanded modes of employment and the general competition for skills
have promoted gender equity in the workplace. On the downside, however, a restruc-
tured workplace has meant that some employees have been placed under considerably
more workplace pressures while others have been displaced into more precarious and
less well-rewarded job roles’ (at 1815). The International Labour Organization’s recently
published Work for a Brighter Future – Global Commission on the Future of Work (fn 2) sug-
gests that technological advances will create new jobs, but those who lose their jobs in
the transition may be the least equipped to seize new job opportunities. Today’s skills will
not match the demands of tomorrow’s jobs, and newly acquired skills will quickly become
obsolete.
6 Law@work

employee and independent contractor has been drawn since Roman times,
this divide has become increasingly blurred as work-related relationships have
become more diversified. Engagement through intermediaries in the form of
temporary employment services or other agencies has further complicated the
nature of the legal relationship through which work is performed. In these cir-
cumstances, it has been argued that the legal scope of employment and
employment protection is increasingly out of step with the reality within which
working relationships exist.11 The emergence of what has been described as the
‘gig economy’, ‘pop-up economy’ or the ‘platform economy’ in which services
are app-mediated and provided on demand, on a job-by-job basis (Uber is a
good example), has brought the debate on contingent forms of engagement
into sharp focus. Whether those who participate in the gig economy are en-
gaged in employment relationships and the extent of any coverage of labour
rights has been the subject of litigation in labour courts and tribunals around the
world.12
The individual employment relationship aside, the institution of collective bar-
gaining, the centre piece of many traditional approaches to labour law, has
been in decline in most industrialised economies for some years. South Africa is
no exception, and levels of union membership in recent years have exhibited a
consistent downward trend. There are various explanations for this decline (the
changed nature of work, the decline of industries where union membership has
traditionally been high), but it has obvious implications for those who regard the
purpose of labour law as rooted in power relationships and, in particular, the
role of trade unions and collective bargaining in addressing the asymmetrical
distribution of power in society.
Given these developments, traditional conceptions of labour law face some-
thing of a crisis, and recent debates have focused on the need to re-evaluate
the purpose of labour law. One of the proposed solutions is to rethink the con-
tract of employment as the basis for the legal regulation of work and to shift the
focus from contract to a consideration of the nature of protection that should
be afforded to different categories of work. Alan Hyde suggests that ‘Labour
law has a bright future, once it understands itself as a collection of regulatory
techniques, not a sidecar on the motorcycle of subordinate employment’.13

________________________

11 Benjamin ‘Beyond “Lean” Social Democracy: Labour Law and the Challenge of Social
Protection’ (2006) 60 Transformation 32–57. For an overview of the challenges of providing
decent work to non-standard employees and recommendations for legislative reform, see
the Department of Labour’s paper ‘Decent Work and Non-Standard Employees: Options
for Legislative Reform in South Africa: A Discussion Document’ published at (2010) 31 ILJ 845.
12 In Uber Technology Services (Pty) Ltd v National Union of Public Service and Allied Workers
(NUPSAW) & others [2018] 4 BLLR 399 (LC) the Labour Court discussed the Uber business
model at some length but was not called on to decide whether Uber drivers were ‘em-
ployees’ for the purposes of South African labour legislation. See Mokoena ‘Are Uber Driv-
ers Employees or Independent Contractors? A Comparative Analysis’ (2018) 39 ILJ 1453.
13 Hyde ‘What is Labour Law?’ in Davidov and Langille (eds) (fn 1) at 60.
Introduction 7

Others consider a theory of justice as an appropriate basis for labour law; some
regard labour rights as a subset of human rights. This approach has obvious
appeal in a South African context, given the fact that the Constitution provides
for an extensive list of labour rights.14 Indeed, the constitutional dimension of
South African employment law is crucial to an understanding of the nature and
extent of the rights derived from the various sources of employment law and the
complex interplay between them. Section 23(1) of the Constitution provides
that every employee has the right to form and join a trade union, to participate
in the activities of a trade union, and to strike. Employers are afforded the right
to form and join employers’ organisations and to participate in their activities.
Trade unions and employers’ organisations have the right to determine their
own administration, programmes and activities, to organise, and to form and
join federations. Section 23(5) provides that every trade union, employers’ organ-
isation and employer has the right to engage in collective bargaining. However,
‘everyone’ has the right to fair labour practices.15 This formulation suggests that
constitutional rights may apply beyond the traditional conception of the em-
ployment relationship, and that some of these rights are available to persons
engaged in working relationships but who are not parties to a contract of em-
ployment.16
More recently, Amartya Sen’s capability approach (originally formulated in the
context of economic development) has been adapted to propose a frame-
work for labour law founded on what people are able to do and to be; the
capacity to lead a life that they have reason to value. Labour law is seen as a
means to advance human capabilities, understood to mean the substantive
freedom individuals have to achieve desired social and economic goals, or a
set of functional capabilities, ranging from bodily integrity to social affiliation.17
Others have been sceptical of this approach and either sought alternative
accounts or normative approaches18 or insisted that abstract accounts of rights
and justice are not necessary and that at most some adjustment is required to
address new circumstances and challenges. Bob Hepple made the following
comment on the latter perspective: ‘Labour law is not an exercise in applied

________________________

14 See ch 2 below.
15 S 23(3) of the Constitution. See the discussion on this section in ch 3.
16 SA National Defence Union v Minister of Defence & another (1999) 20 ILJ 2265 (CC). In this
case, the Constitutional Court held that members of the South African National Defence
Force were engaged in a relationship akin to an employment relationship and were en-
titled to exercise rights of freedom of association. See also Pretorius v Transport Pension
Fund [2018] 7 BLLR 633 (CC) at para [48] where Froneman J observed that the LRA tabu-
lated the fair labour practice rights of those in formal employment, and that the facts of
the case provided a ‘compelling basis not to restrict the protection of section 23 to only
those who have contracts of employment’.
17 Deakin ‘The Contribution of Labour Law to Economic Reform and Human Development’
in Davidov and Langille (eds) The Idea of Labour Law (2011) at 215.
18 See, for example, Langille ‘Labour Law’s Theory of Justice’ in Davidov and Langille The
Idea of Labour Law (fn 15) at 142 and Bogg ‘Labour Law and the Trade Unions: Autonomy
and Betrayal’ in Bogg, Costello, Davies and Prassl (eds) The Autonomy of Labour Law
(2015) at 87.
8 Law@work

ethics. It is the outcome of struggles between different social actors and ideol-
ogies, of power relationships’.19
What is apparent from the current debate on the purpose of labour law is
that the search has become more introspective, one that increasingly seeks
normative rather than sociological justifications for labour law.20

2 Perspectives on labour law in a South African context

In South Africa, labour law remains at the heart of political, social and economic
debates on the nature and extent of labour market regulation. There are two
broad views which continue to dominate the political debate on the extent to
which the state should intervene in the labour market. The first is a laissez-faire,
free-market model, the second a perspective that emphasises, in a variety of
forms, the need for social justice in the workplace. Of course, there are variants
within each perspective, and what follows is a necessarily broad account.

2.1 The libertarian perspective21

The libertarian or free-market model regards the contract of employment and
the individual bargain that it represents as the only legitimate mechanism to
regulate the employment relationship. Proponents of this view regard labour
legislation with the disdain normally reserved for an alien plant species, an un-
welcome intruder invading the indigenous landscape of the common law and
imposing unwarranted regulation on the freedom to contract on equal terms in
the marketplace. They argue that laws intended for the protection of employees
have the unintended consequence of protecting the employed at the expense
of the unemployed. Any statutory regulation of the labour market is regarded as
inconsistent with what is referred to as a ‘right to work under any conditions’. This
implies that the real choice for policy makers is between allowing employees to
work on any conditions they are willing to accept and forcing them to be un-
employed against their will.
The only legitimate protection for employees, on this view, is afforded by the
effective and adequate common law and the resultant sellers’ market in which
employers will be required to compete for labour by offering ever-improving
terms and conditions of employment.22 Libertarians argue that abolishing labour
legislation will therefore have beneficial consequences for employees and for
the broader society.
________________________

19 Hepple ‘Factors Influencing the Making and Transformation of Labour Law in Europe’ in
Davidov and Langille The Idea of Labour Law (fn 17) at 52.
20 A wide-ranging enquiry into the moral and political principles that underpin labour law
and its existence can be found in Collins, Lester and Mantouvalou (eds) Philosophical
Foundations of Labour Law (2018).
21 The material in this section is drawn from Van Niekerk ‘Regulating Flexibility and Small Busi-
ness: Revisiting the LRA and BCEA: A Response to Halton Cheadle’s Concept Paper’ (2007).
22 See Louw The Right to Work and the Increasing Demand for Labour (2005). Also published
as ‘Labour Laws hinder Employment’ The Star 29 August 2005. See also Brassey ‘Fixing the
Laws that Govern the Labour Market’ (2012) 33 ILJ 1 and Van Niekerk ‘Is the South African
Law of Unfair Dismissal Unjust? A Reply to Martin Brassey’ (2013) 34 ILJ 28.
Introduction 9

A similar but more sophisticated argument for the deregulation of the South
African labour market assumes linkages between lower labour standards and
competitive advantage in the global market. Deregulationists often draw com-
parisons with other economies, particularly those in developing countries, which
seek to compete for access to world markets and investment through a form of
labour market deregulation that entails a significant lowering of labour stand-
ards. This approach emphasises the individual contract of employment (as
opposed to any form of collective agreement) as the best means to ensure the
greatest possible degree of flexibility and competitiveness.
Although deregulation has had a profound effect on labour law in a number
of other jurisdictions,23 there are a number of reasons why this approach is inap-
propriate to any reconsideration of labour market regulation in South Africa.24 It
is increasingly apparent that there is no empirical evidence to support the view
that gains in trade performance or foreign direct investment are associated
with lower labour standards. Core labour standards do not play a significant
role in shaping trade performance.25 In other words, there appears to be no
comparative advantage to be had from the denial or violation of core labour
standards.26 Research indicates that the contrary is true. A study into the linkage
between labour standards and competitiveness came to the following conclusion:
Contrary to the race to the bottom hypothesis, the analysis did not find significant
linkages between export performance or FDI inflows and the measures of labour
standards. In sum, the paper finds no evidence that countries with lower standards
gained competitive advantage in international markets. Poor labour conditions
often signal low productivity or are one element of a package of national charac-
teristics that discourage FDI inflows or inhibit export performance.27
This is not to suggest, however, that there is no linkage between inflexible labour
markets and the stifling of job creation. On the contrary, a co-publication by
the World Bank and the International Finance Corporation quotes a study that
suggests that in OECD countries with flexible labour laws employment rates are
2 to 2.5 percentage points higher.28
________________________

23 Deregulation of the labour market and shifts toward individual contracts as the principal
basis for regulating terms and conditions of employment were evident in Canada and
New Zealand after the election of conservative governments in those countries, and also
in Australia.
24 Flanagan ‘Labour standards and International Competitive Advantage’ in Flanagan and
Gould (eds) International Labour Standards (2003) at 17.
25 Lee ‘Labour Market Regulation and Economic Growth’, paper presented to 11th Annual
Labour Law Conference, Durban, 1998.
26 See Hepple Labour Laws and Global Trade (2005) at 14–15.
27 Flanagan (fn 24) at 17.
28 World Bank ‘Doing Business in 2006 – Creating Jobs’ (2006). See Hepple ‘Is South African
Labour Law Fit for the Global Economy?’ in Rycroft and Le Roux (eds) Reinventing Labour
Law: Reflecting on the First 15 Years of the Labour Relations Act and Future Challenges
(2012) at 1. Hepple rejects the ‘crude reductionism’ of those who blame high rates of un-
employment in South Africa on labour laws. He argues that the task of labour lawyers is to
advance policies and practices, premised on fundamental human rights that aid devel-
opment, employment growth and redistribution by building on South Africa’s comparative
advantages.
10 Law@work

Labour economics aside, there are a number of external limitations on the

nature and extent of any deregulation of the South African labour market. First,
South Africa is a member of the International Labour Organization (ILO). Since
1994, South Africa has ratified all of the ILO’s core conventions. In doing so, it
has incurred international law obligations to uphold the rights to freedom of
association, to promote collective bargaining, to ensure equality at work, and
to eliminate forced labour and child labour. The package of labour law reforms
introduced in South Africa in 1995 was specifically tailored to anticipate the rati-
fication of the core ILO conventions and thus to meet South Africa’s inter-
national law obligations.29 South Africa is also bound by the ILO’s Declaration on
Fundamental Principles and Rights at Work, adopted by the International
Labour Conference in 1998. The Declaration obliges member states, by virtue of
their subscribing to the ILO’s constitution, to observe the principles that underlie
certain core conventions.
Secondly, South Africa is a constitutional state in which the Constitution rec-
ognises labour rights, in particular the right to fair labour practices, as fun-
damental rights.30 The constitutionalisation of labour rights implies that social
justice is a necessary precondition for creating a durable economy and society,
and places obvious limitations on the policy choices open to those who seek to
regulate the labour market. In short, labour market policy is not only a matter of
economics – choices are constrained by the Constitution and the need to justify
any limitation on the rights that it confers.
In summary, empirical evidence suggests that the competitive bidding down
of core labour standards, whether to attract new investment or retain existing
investments, is not a viable policy option. In any event, given international and
domestic legal constraints, this is not the basis on which any fundamental re-
assessment of South African labour market regulation can be premised.

2.2 A social justice perspective

The second broad perspective on labour law is one that regards law as a tool to
further the interests of social justice.31 The social justice perspective focuses on
what Hugh Collins has referred to as the role of labour law in ‘setting the distribu-
tion of wealth and power in society’.32
One of the first models developed within this perspective regarded trade unions
as a primary vehicle through which to achieve social justice. In the 1950s and
1960s, Sir Otto Kahn-Freund developed a conception of labour law as a means
to counteract the inequality of bargaining power between employers and
employees. Kahn-Freund put forward the idea that the purpose of labour law
was to maintain equilibrium between employers and workers, a purpose best
________________________

29 See ch 2 for a full discussion on international standards.

30 See ch 3.
31 Referred to above in the context of a discussion of the inadequacy of contract as a
mechanism to regulate the employment relationship.
32 Davies Perspectives on Labour Law (2004) at 17, quoting Collins ‘The Productive Disinte-
gration of Labour Law’ (1997) 26 ILJ (UK) 295.
Introduction 11

achieved through voluntary collective bargaining.33 In this approach, law plays

a secondary role – it regulates, supports and constrains the power of manage-
ment and organised labour, but leaves the process of bargaining and its out-
comes to be determined by the interests and power of the parties themselves.34
However, the system of British collective labour relations on which Kahn-Freund
had based his framework of labour law soon came under pressure. By the end
of the 1970s, Kahn-Freund himself expressed the view that the system he had
called ‘collective laissez-faire’ was in need of adjustment.35
Since then, in global terms, trade union membership has declined significantly,
and collective bargaining is no longer the significant social institution that it was.
In these circumstances, employees are less likely to have their terms and con-
ditions determined by collective agreements, and are less able to rely on trade
unions as agents to monitor and enforce those agreements.
Darcy du Toit has neatly captured the implications of these developments:
If collective bargaining depends on effective worker organization, and trade
unions have historically emerged as the main form of worker organization, it may
seem to follow that the decline of trade union density, reflected in declining bar-
gaining coverage, spells the demise of collective bargaining. If so, it might seem
that labour law should shift its focus to new forms of worker organization and to
new forms of collective interaction.36
One of the main reasons for the decline in influence of collective bargaining as
a social institution is that bargaining is more effective in a localised market. The
opening up of markets beyond the scope of union organisation and beyond
nation states has meant that collective bargaining has become increasingly
incapable of effectively promoting and protecting workers’ interests.37 A possible
response is to develop collective bargaining at an international level and to
encourage what have been termed ‘framework’ agreements between inter-
national trade union federations and multi-national enterprises.38 How collective
bargaining might evolve to deal with these issues and how trade unions will
adapt their strategies to meet new challenges are questions that will no doubt
increasingly occupy the thoughts of labour lawyers.39
A more contemporary social justice perspective might therefore acknow-
ledge collective bargaining as an important means to define and enforce pro-
tection for workers, but recognise rights as a complementary and perhaps more
significant medium to promote social justice in the workplace. As we noted
above, the Constitution protects not only the right to fair labour practices but

________________________

33 Davies and Freedland (fn 4) at 2.

34 Davies and Freedland (fn 4) at 15.
35 Davies and Freedland (fn 4) at 2–3.
36 Du Toit ‘What is the Future of Collective Bargaining (and Labour Law) in South Africa?’
(2007) 28 ILJ 1405 at 1417.
37 Brown and Oxenbridge ‘Trade Unions and Collective Bargaining’ in Barnard, Deakin and
Morris (eds) The Future of Labour Law Liber Amicorum Sir Bob Hepple QC (2004) at 74.
38 Du Toit (fn 36) at 1429.
39 Du Toit ‘Platform Work and Social Justice’ (2019) 40 ILJ 1 discusses the concept of decent
work in a reconstructed platform economy based on collective self-governance.
12 Law@work

also rights to freedom of association, freedom of expression, privacy and equality,

all of which find application in the workplace through enabling legislation such
as the LRA, BCEA and Employment Equity Act40 (EEA). Much of this book con-
cerns statutory rights, their nature and scope, and how they are implemented
and enforced.
While rights might serve the primary function of protection, they are not abso-
lute and may often need to be balanced against the competing rights of others,
including the employer and third parties. The role of dispute resolution institu-
tions, especially labour courts, is thus fundamental. Courts provide the primary
mechanism through which labour rights are enforced and through which com-
peting rights can be assessed and, if necessary, balanced.
Finally, a further rights-related response to the opening of markets beyond the
boundaries of national states has been the incorporation of human rights, in-
cluding fundamental labour rights, as an important component of corporate
responsibility initiatives, especially by multi-national enterprises. Corporate gov-
ernance and social responsibility programmes are significant vehicles in the
establishment and enforcement of basic labour rights, especially in host coun-
tries that have little in the way of labour market regulation, or where to attract
investment or for want of resources, minimum labour standards are not en-
forced. To the extent that basic labour rights include the rights to organise and
to bargain collectively, these developments may serve to promote collective
bargaining, especially in those environments where the legislative environment
remains hostile.41

3 The evolution of employment law in South Africa42

3.1 Pre-1995 labour legislation
The development of trade unions and employers’ organisations occurred during
a period of rapid industrialisation in the first few decades of the twentieth cen-
tury, after the discovery of gold and diamonds in South Africa in the second half
of the nineteenth century.
Many of the foundations of the LRA were laid in response to events in 1922,
when White workers in the mining industry came out on strike, protesting against
attempts by the industry to reduce wage levels and to break the monopoly
on skilled work enjoyed by White trade unions. One of the consequences of
the strike was the enactment of the 1924 Industrial Conciliation Act.43 The Act

________________________

40 Act 55 of 1998.
41 See Du Toit ‘Self-regulated Corporate Social Responsibility: The Impact on Employment
Relations at European Corporations in South and Southern Africa: A Preliminary Overview’
(2009) 30 ILJ 2227.
42 For a comprehensive history of South African labour law from 1652 to the present, see
Brassey Employment and Labour Law Vol 1: Employment Law (1998) A1: 9–A1: 54; Du Toit,
Godfrey, Cooper, Giles, Cohen, Conradie and Steenkamp Labour Relations Law: A Com-
prehensive Guide (2015) at 6.
43 Act 11 of 1924.
Introduction 13

created a self-regulatory industrial council system, required trade unions, em-

ployers’ organisations and the councils themselves to register, and created the
prospect of voluntary collective agreements, statutorily recognised and en-
forceable by criminal sanction.
But the Act applied only to White workers, an exclusion that was to persist until
1979. In 1934, after a report by the Van Reenen Commission, the Act was re-
vised, and a new Industrial Conciliation Act44 was promulgated in 1937. In 1948,
the year in which the Nationalist government was elected, the Botha Com-
mission was appointed to revise the 1937 Act and other labour legislation. In
1956, the Industrial Conciliation Act45 was passed, retaining the industrial council
system but consistent with the government’s racist policies, the Act entrenched
the exclusion of Black employees from the statutory system, introduced statutory
job reservation and established measures to segregate those unions that were
non-racial.
In 1977, the government appointed a commission of inquiry, chaired by Pro-
fessor Nic Wiehahn, with terms of reference to report on and make recommen-
dations concerning the existing labour legislation. In its report, the commission
noted that consequent on the economic boom of the late 1960s, the increased
rate of industrialisation and the demand for skilled labour had resulted in Black
employees moving into more skilled occupations. This, the commission con-
sidered, had placed strain on the racially exclusive industrial council system and
exposed the limitations in the Black Labour Relations Regulation Act,46 a statute
that conferred limited powers on workplace committees to represent Black
employees.
But the more substantial reason for change lay in what the commission
termed ‘the labour unrest of 1973’. During that year, trade unions representing
mainly Black employees had rejected the racist legislative dispensation and
sought to negotiate non-statutory recognition agreements and establish work-
place bargaining structures in individual enterprises. These initiatives succeeded,
at least to the extent that the commission noted that by the end of the 1970s
there was a disjunctive between the law and industrial relations practice in
South Africa.
In 1979, the commission issued a report that culminated in amendments to
the 1956 Act.47 The most significant of these was the extension of trade union
rights to Black employees, the enactment of a definition of unfair labour prac-
tice, and the establishment of the Industrial Court. While the motives underlying
some of these developments might be questioned,48 after some hesitation the
trade union movement opted to operate within the new statutory system.

________________________

44 Act 36 of 1937.
45 Act 28 of 1956.
46 Act 48 of 1953.
47 See The Complete Wiehahn Report (1982).
48 See Van Niekerk ‘In Search of Justification: The Origins of the Statutory Protection of Secu-
rity of Employment in South Africa’ (2004) 25 ILJ 853.
14 Law@work

The unfair labour practice definition had the consequence of a comprehen-

sive but not always consistent jurisprudence that emerged from the Industrial
Court between 1980 and 1994, creating and defining both individual employ-
ment and collective bargaining rights. The significance of this jurisprudence is
that it developed and applied the concept of fairness to the employment
relationship. The Industrial Court interpreted the unfair labour practice definition
to proscribe labour practices that it considered unjustified and inequitable, and
sought to apply fairness in this sense to the cases that came before it.49 For the
first time, contractual terms in the employment context were directly subordin-
ated to considerations of fairness and employer conduct was subjected to
scrutiny (and to sanction) on this basis.

3.2 The post-1994 era

One of the first legislative initiatives approved by cabinet after the election of a
democratic government in April 1994 was a revision of the 1956 Act. This time,
there was no commission of inquiry to precede a new labour statute. Instead, a
tripartite ‘task team’, working within approved terms of reference, was appointed
to provide the blueprint for a new Act.
The cabinet appointed the task team in August 1994, with Professor Halton
Cheadle as its chair. There were obvious political reasons for the decision to
enact an entirely new statute, but there were also legal and pragmatic reasons.
The enactment of the interim Constitution50 and its incorporation of labour rights
in a Bill of Rights created new imperatives for the regulation of the labour mar-
ket. South Africa rejoined the ILO in 1994, and embarked on a programme of
ratification of the core ILO conventions. The act of ratification created inter-
national law obligations, and required adjustment of domestic legislation to
give full effect to these obligations. Finally, the 1956 LRA, with all of the amend-
ments effected to it after 1979, was a largely unworkable piece of legislation,
and an overhaul was long overdue.51
The brief given to the task team was to draft a ‘negotiating document in draft
Bill form’. The idea was that the team would work independently to produce a
document, in legislative form, for the social partners to debate. This process,
driven by then Minister of Labour, Tito Mboweni, was designed to ensure that, if
possible, the new legislation would enjoy the support and confidence of govern-
ment, business and labour.
In February 1995 the task team released the negotiating document. Not with-
out difficulty, agreement was ultimately reached among the social partners on
________________________

49 See SA Diamond Workers Union v Master Diamond Cutters Association of SA (1982) 3 ILJ 87 (IC).
50 Act 200 of 1993.
51 In Natal Die Casting (Pty) Ltd v President, Industrial Court & others (1987) 8 ILJ 245 (D), Kriek
J said the following: ‘I have on previous occasions, in relation to a variety of problems aris-
ing from the interpretation of various provisions in the Act, expressed dismay at the fact
that the legislature, in 1979, saw fit to cut, trim, stretch, adapt and generally doctor the old
Act in order to accommodate and give effect to the recommendations of the Wiehahn
Commission instead of scrapping the old Act and producing an intelligible piece of legis-
lation which clearly and unequivocally expressed its intentions’ (at 253J–254A).
Introduction 15

the terms of the new law and by November 1995, a Bill was introduced into
parliament. A year later, on 11 November 1996, the LRA came into operation.
The Act was followed by the BCEA in 1997, the EEA in 1998 and the Skills De-
velopment Act52 (SDA) in 1998, thus completing the suite of legislation that
regulates the South African labour market. The LRA, BCEA, EEA and SDA have
been amended over the years and supplemented by regulations and codes of
good practice, but they remain the cornerstone of the statutory regulation of
employment.
The LRA remains the principal labour statute. It regulates collective rights
(such as the right to organise, the right to strike and collective bargaining struc-
tures) and provides protection to individual employees against unfair dismissal
and unfair labour practices. The LRA also regulates trade unions and employer
organisations, provides for the establishment of participative structures in the
form of workplace forums, and establishes the key dispute resolution agencies in
the form of the CCMA and the labour courts.
The BCEA establishes basic conditions of employment (or minimum statutory
terms on which employers and employees may contract) and provides for their
enforcement. The BCEA also establishes mechanisms for the variation of basic
conditions through individual agreement, collective agreements, and sectoral
agreements. The latter are more detailed wage regulating measures that apply
to specific sectors, usually those that are less well organised by trade unions and
in respect of which there is no bargaining council established.
The NMWA, which came into operation on 1 January 2019, establishes a
national minimum wage. The Act also establishes a national minimum wage
commission, which is required to review the national minimum wage and rec-
ommend adjustments. The national minimum wage is fixed at R20 per ordinary
hour worked, with different rates for domestic and farm workers and workers
employed on public works programmes.
The EEA prohibits unfair discrimination in employment, defined to include a
wide range of policies and procedures, including those that regulate access to
employment. The EEA also requires larger employers to formulate employment
equity plans, and to submit reports to the Department of Employment and
Labour (previously the Department of Labour). The SDA establishes industry-
based training organisations (sector education and training authorities, better
known as SETAs) and regulates standard setting, training and development. The
Skills Development Levies Act53 requires employers to contribute a percentage
of payroll (currently fixed at 1 per cent) to fund the infrastructure established by
the SDA.
These statutes aside, a number of Acts regulate health and safety in the
workplace both generally and in respect of specific sectors, while others estab-
lish compensatory schemes for occupational diseases and injuries. Finally, there

________________________

52 Act 97 of 1998.
53 Act 9 of 1999.
16 Law@work

is a limited public social insurance scheme in the form of the Unemployment

Insurance Act54 (UIA).55

4 Key labour market institutions: A brief overview

Some of the key labour market institutions have already been mentioned. The
South African labour market has been described as corporatist, meaning that
employer organisations and trade unions play a significant role in national eco-
nomic and social decision-making.56 One of the unique institutions in the South
African labour market is the National Economic Development and Labour
Council (NEDLAC). NEDLAC came into existence in February 1995, consequent
on the enactment of the NEDLAC Act.57 The Act establishes four NEDLAC cham-
bers – a public finance and monetary chamber, a trade and industry chamber,
a labour market chamber and a development chamber. NEDLAC consists of
representatives of the state, organised business, organised labour, and except
in the labour market chamber, organisations that represent community and
development interests. NEDLAC has a broad brief, but its most important func-
tions are to promote the goals of economic growth, to seek to reach consensus
and conclude agreements on matters of social and economic policy, to con-
sider all proposed labour legislation before it is submitted to parliament, and to
consider all significant changes to social and economic policy before imple-
mentation or introduction in parliament.58
In this sense, NEDLAC represents what has been termed ‘the institutionalisation
of social dialogue’, intended to ‘inaugurate a new era of inclusive consensus-
seeking and ultimately decision-making in the economic and social arenas’.59
The negotiation of the LRA was NEDLAC’s first significant challenge, one that it
met most capably. Labour market issues continued to dominate NEDLAC’s
agenda, with the BCEA, EEA and SDA and amendments to labour legislation all
being broadly agreed in the labour market chamber. More recently, NEDLAC
has played a significant role in development of trade policy and job-creation
initiatives.
The Department of Employment and Labour administers labour legislation and
is responsible, through a labour inspectorate, for its enforcement. In addition,
the department administers programmes concerned with skills development
and employment creation, sound labour relations, equality in employment, and
poverty alleviation.60
________________________

54 Act 63 of 2001.
55 See ch 18.
56 See Barker and Holtzhausen SA Labour Glossary (1996) at 33.
57 Act 35 of 1994.
58 S 5(1)(c).
59 Parsons ‘Investing in Social Capital in South Africa’ in IOE Annual Labour and Social Re-
view (2007).
60 The Department’s website (www.labour.gov.za) is a useful source of information about its
activities. The Department provides free access to pro forma documentation relevant to
employment, to legislation, regulations and codes of good practice.
Introduction 17

The labour courts are key institutions, given their role in the interpretation and
application of labour legislation. The structure, functions and powers of the
courts are discussed in chapter 17. The CCMA is the centrepiece of the LRA – it
serves as the principal statutory dispute resolution body for those employers and
employees who do not fall within the jurisdiction of a bargaining council. The
CCMA has important functions beyond those of conciliation and arbitration: its
statutory functions include conducting research, issuing guidelines, providing
advice and conducting training.61
The LRA promotes collective bargaining at sectoral level. The most important
institution through which this purpose is achieved is the bargaining council.
Bargaining councils are voluntarily established statutory institutions that con-
clude collective agreements for the sectors for which they are registered and
once accredited, resolve certain disputes that arise in that sector.

5 The future
The labour market is dynamic. For that reason, labour legislation is never im-
mune from critical reflection and, when necessary, revision. The LRA was
amended in 1998, in 2002, in 2014 and again in 2019. The amendments effected
in 2002 were significant: they introduced revised procedures for large-scale
retrenchments and a right to strike when the substantive fairness of a retrench-
ment is disputed.62 A key feature of the 2014 amendments was the introduction
of a more detailed regulation of the status of employees not engaged in per-
manent employment relationships and, in particular, the regulation of tempor-
ary work. The 2019 amendments saw the introduction of measures to regulate
the exercise of the right to strike and the right to picket. The amendments have
their roots in the Ekurhuleni Declaration. Signed by the constituent parties to
NEDLAC on 4 November 2014, the purpose of that declaration is to strengthen
the institution of collective bargaining, to recognise the importance of work-
place democracy, to promote the expeditious resolution of disputes, to pro-
mote the peaceful exercise of the right to strike and steps to avoid prolonged or
violent strikes and lockouts.
Shane Godfrey, writing in 2015 in the sixth edition of Labour Relations Law: A
Comprehensive Guide63 lists specific areas of concern. These include the sharp
decline in union membership, the falling number of bargaining councils, the
failure of statutory councils and workplace forums, rising levels of industrial
action, continuing strain on the dispute resolution systems, limited enforcement
capacity, the slow implementation of employment equity and limited skills
development. One of the reasons for this state of affairs is, as he suggests, the
inability of the economy to create formal jobs, a catalyst for both charges of

________________________

61 See s 115 of the LRA and ch 17.

62 See ch 9 below.
63 Fn 42 at 70.
18 Law@work

rigidity directed at the current regulatory framework and challenges for the
burgeoning informal economy. Godfrey argues:
The overriding impression one has . . . is that the labour relations system is in a state
of flux and that much of the pressure on the system is coming from external fac-
tors. Trade union membership remains high but appears to have reached a
plateau; the number of bargaining councils is declining but there are also signs
that centralised bargaining might be strengthening; the data on union member-
ship and centralised bargaining is improved by the weight of the public sector
although the level of centralisation in that sector is problematic; there are very few
workplace forums and relations in the workplace appear to have become more
adversarial; there is no strike wave but strikes have become increasingly violent,
major and very damaging strikes taking place at relatively short intervals; the
CCMA has performed remarkably well in difficult circumstances but has made
little headway in changing practices in firms; sectoral determinations now cover
most sectors where workers are particularly vulnerable but enforcement capacity
remains low and answers appear to be sought in increasing the size of fines; em-
ployment equity continues to move forward slowly; and skills development might
finally be starting to take off even though the primary and secondary education
system is experiencing major difficulties.
At an institutional level, these strains are apparent. The goals of informal, exped-
itious and efficient dispute resolution remain elusive. Levels of industrial action
are reported to be higher than they were in the period immediately following
the passing of the LRA. The ambitious experiment in second-tier engagement
represented by workplace forums has failed to elicit any significant take-up by
employers and trade unions, which appear to remain mutually hostile to the
model. There are fewer bargaining councils now than there were in 1994, and
those that continue to exist remain locked in the adversarial negotiation of
detailed, actual wages and conditions of employment rather than formulating
industry frameworks and policies and minimum conditions of employment for
the sectors they regulate. Unemployment remains as widespread as ever. Low
skills remain one of the more significant inhibitors of economic growth, while
most statutory skills authorities seem unable to manage the funds under their
control for the purposes for which they were entrusted. After more than 20 years,
have we come full circle, and are all or most of the ‘problem statements’ in the
Explanatory Memorandum to the 1995 draft Labour Relations Bill as valid today
as they were then?
What challenges does the fact that the vast majority of workers in Southern
Africa are engaged in the informal economy pose for labour law, or, more
broadly, for labour market regulation? Evance Kalula has argued that ‘the
future of labour law in Southern Africa depends on going beyond “borrowing
and bending,” to embrace the realities of deprivation and social needs’.64 By
this is meant that innovative approaches will have to be developed and
adopted if labour market regulation and labour market institutions are to ad-
dress the needs of the majority in the sub-region, those unaccounted for in the
traditional model of labour law.
________________________

64 Kalula ‘Labour Law and Labour Market Regulation in South Africa’ in Barnard, Deakin and
Morris (fn 37).
Introduction 19

The debate on the future and purpose of labour law outlined earlier in this
chapter has some resonance here. Paul Benjamin, writing about labour law and
labour market regulation, recently said the following:
In this context labour market regulation refers to areas of regulation, both legal
and extra-legal, that impact on the capacity of individuals to work in order to earn
a livelihood. It covers work by both employed and self-employed persons as well
as the processes by which individuals obtain skills to enable them to perform pro-
ductive and remunerative work. It covers the terms under which individuals work,
and the conditions under which they enter or leave work and are provided with
security during stages of transition or unemployment. The overall objective of labour
market regulation is to promote the security of those who work for a livelihood in a
manner that is consistent with the requirements of economic growth.65
Although the Amendment Acts introduced in 2014 sought to extend protection
to employees engaged in atypical forms of employment, labour legislation
continues primarily to reflect the interests of those in formal employment. The
problems that present the most acute challenge for labour market regulation in
South Africa – poverty, unemployment and the shortage of skills – remain mat-
ters on which readers may wish to reflect as they consider the material that is
the primary focus of this work.
The 2019 amendments were introduced at an auspicious time. The initial legis-
lative package crafted in 1995 was introduced soon after the establishment of
a democratic South Africa, with the active participation of employer and union
federations and premised on corporatist values and assumptions. The split in the
country’s major trade union federation and the launch of a rival federation in
April 2017, coupled with the recent emergence of minority (often breakaway)
unions and their assertion of power in key sectors and on the other side of the
divide, the emergence of a strong lobby representing smaller employers op-
posed to centralised bargaining, all conspire to pose a significant challenge to
the conceptual core that underpins the existing regulatory framework.
The introduction of a greater degree of supervision by the Labour Court over
the exercise of the right to picket may have the desired effect of promoting
peaceful industrial action. More fundamentally perhaps, the ‘dual channel’ of
engagement between management and workers envisaged in 1995 (in the
form of structured centralised collective bargaining and workplace-driven
co-operative structures that promote participation and productivity) remains
unrealised. Again, time will tell whether the measures to promote employee
participation and dialogue in the workplace introduced by the 2018 Code of
Good Practice serve to improve workplace relationships. For the present, South
African labour relations remain as adversarial as ever in the face of an econ-
omy in decline and strategies of brinkmanship employed in the course of col-
lective bargaining and industrial action. Whether the legislative framework is
flexible enough to accommodate these stresses and strains remains to be seen.
Finally, the challenges of high rates of unemployment remain as daunting as
they ever were. In May 2019, Statistics South Africa released the quarterly labour
force survey for the first quarter of 2019. The rate of unemployment is reported to
________________________

65 Benjamin ‘Labour Law Beyond Employment’ in Rycroft and Le Roux (fn 28) at 30–31.
20 Law@work

have increased to 29 per cent. Of the 10,3 million persons aged between 15 and
24, in the first quarter of 2019 40,7 per cent were not in employment, education
or training.66 Although linkages between labour laws and levels of employment
remain contested, the sheer number of unemployed persons has obvious impli-
cations for the debate on the nature and extent of labour market regulation in
South Africa.

________________________

66 Media release by Stats SA, dated 14 May 2019.

2
International labour standards

Page
1 Introduction .................................................................................................... 23
2 The International Labour Organization ....................................................... 23
3 The structure of the ILO ................................................................................. 24
4 ILO standards ................................................................................................. 25
5 Core standards .............................................................................................. 26
6 The ILO’s supervisory bodies and mechanisms .......................................... 27
6.1 The Committee of Experts on the Application of Conventions
and Recommendations ...................................................................... 27
6.2 The Conference Committee on the Application of Standards ...... 29
6.3 Article 24 complaints ............................................................................ 29
6.4 Article 26 complaints ............................................................................ 29
6.5 The Committee on Freedom of Association ..................................... 30
7 The ILO in the era of globalisation ............................................................... 30
8 The application of international labour standards in South African
law ................................................................................................................... 32
8.1 Statutory recognition and incorporation of ILO standards .............. 32
8.2 Other statutory injunctions regarding international standards ....... 34
9 Regional instruments ..................................................................................... 35
9.1 South African Development Community (SADC)............................. 35
10 International developments affecting corporate entities ........................ 36
10.1 The UN Global Compact ..................................................................... 36

21
International labour standards 23

1 Introduction
Prior to 1994, international standards played only an indirect role in the develop-
ment of South African labour law.1 This is no longer so, and a meaningful study
of labour law is not possible without at least a rudimentary understanding of the
institutions that shape international labour standards, the basic content of those
standards and the relationship between them and domestic labour legislation.
First, the Constitution of the Republic of South Africa, 1996 expressly recognises
international law as a foundation of democracy. The labour standards generated
by a number of international organisations, in particular the International Labour
Organization (ILO), constitute an important source of customary international
law. Secondly, debates on the social dimension of globalisation have empha-
sised the importance of international labour standards not only as a benchmark
for the evaluation of domestic labour legislation, but also as a basis for regu-
lating global trade2 and establishing norms to guide the action of private com-
panies, especially multinational corporations. Thirdly, international instruments that
give effect to international standards are explicitly recognised by the Constitu-
tion as points of reference for the interpretation of labour and other legislation.
In this chapter, we discuss the structure and role of the ILO and the application
and relevance of international labour standards for South African labour law.
We also discuss the development of regional labour standards, in the form par-
ticularly of the Southern African Development Community (SADC) Charter of
Fundamental Social Rights. Finally, we consider global initiatives directed at
corporations that seek to define labour rights as an element of corporate social
responsibility, or as normative points of reference in relation to fundamental
human and other rights.

2 The International Labour Organization

The ILO was established by the Treaty of Versailles, signed in 1919.3 What was
then the Union of South Africa was a signatory to the Treaty, which also estab-
lished the League of Nations. All members of the League of Nations became
founder members of the ILO. After the Second World War, the United Nations
(UN) replaced the League of Nations, and the ILO became the UN’s first
specialised agency. As a founder member of the UN, South Africa continued to
be a member of the ILO.
In 1959, apartheid became a focal point of debate in the ILO, when the
credentials of the South African delegation to the International Labour Confer-
ence were called into question. This and later challenges were averted by the
________________________

1 Informally, international labour standards were influential during the 1980s when the Indus-
trial Court developed its unfair labour practice jurisprudence. The court frequently referred
to ILO conventions and recommendations when crafting rules in relation to the security of
employment, freedom of association and bargaining rights.
2 Hepple Labour Laws and Global Trade (2005).
3 For an overview of the foundation and formative years of the ILO, see Hepple (fn 2) at
29–33.
24 Law@work

South African government until 1961, when the International Labour Conference
adopted a resolution calling for the withdrawal of South Africa from the ILO on
account of the apartheid policy of its government. After proposals to amend
the ILO’s constitution to provide specifically for suspension and expulsion of
member states from the organisation, as well as a decision by the Governing
Body of the ILO in 1963 to appoint a committee on questions concerning South
Africa, the South African government gave notice in 1964 of its intention to
withdraw from the ILO.
During the 30 years that South Africa was not a member of the organisation,
the ILO played a significant role in the struggle against apartheid. Each year,
the Special Committee on Apartheid (dissolved in 1994) tabled a report to the
Conference on labour-related aspects of apartheid, drawing the attention of
an international audience to the oppression of the Black trade union move-
ment, the denial of basic labour rights to Black workers and broader issues
relating to South African labour market policy.
One of the most significant ILO interventions in South Africa occurred in 1992,
when a Fact-finding and Conciliation Commission visited the country in re-
sponse to a complaint laid by COSATU regarding the amendments to the 1956
LRA introduced in 1988. The Commission filed a report on the state of South
African labour relations and labour law, and made specific recommendations
consistent with ILO standards. The report became a significant point of refer-
ence when the LRA was drafted.4
South Africa re-joined the ILO on 26 May 1994.5 Since 1994, South Africa has
ratified all of the ILO’s core conventions6 and plays a key role in ILO affairs.

3 The structure of the ILO

The ILO comprises three main bodies: the International Labour Conference, the
Governing Body, and the International Labour Office.
The Conference is the highest policy-making body of the ILO. It meets annually
in Geneva, and is attended by the national delegations of member states. The
delegations comprise two government representatives, one employer repre-
sentative and one worker representative, with the employer and worker repre-
sentatives nominated by the most representative national employer and worker
bodies respectively. The most important function of the Conference is to adopt
new labour standards.
The Governing Body is the executive arm of the ILO. It comprises 56 members,
28 from governments, 14 from employer representatives and 14 from worker
representatives. The Governing Body determines which matters are to be put on
________________________

4 See Saley and Benjamin ‘The Context of the ILO Fact-finding and Conciliation Commission
Report on South Africa’ (1992) 13 ILJ 731.
5 For a discussion on the relationship between South Africa and the ILO post-1994, see
Erasmus and Jordaan ‘South Africa and the ILO: Towards a New Relationship’ (1993/4) 19
South African Journal of International Law 65.
6 The core conventions are listed below at para 5 ‘Core standards’.
International labour standards 25

the agenda of the Conference, manages the budget of the ILO, and makes
decisions on policy issues.
The International Labour Office is the ILO’s bureaucracy, and performs the
day-to-day work necessary to give effect to the ILO’s mandate. The Director-
General, who is appointed by the Governing Body for a fixed term, heads the
Office.

4 ILO standards7
ILO standards assume a variety of forms. The most important standards are con-
ventions, adopted by the International Labour Conference. The proposed text
of a convention is generally discussed in a tripartite committee established for
the purpose by the International Labour Conference. More often than not, a
‘double discussion’ is held – the committee meets over two consecutive years,
with the draft text of a proposed convention and recommendation being com-
municated by the Office to governments after the first discussion. During the
second discussion, a drafting committee is usually appointed to prepare the
text of the instruments concerned. These texts are submitted to a plenary session
of the Conference for final adoption. It is possible though for a convention and
a recommendation to be adopted after a single discussion. Proposed conven-
tions and recommendations must secure a majority of the votes cast by two-
thirds of the delegates present to be adopted. By June 2019, 190 conventions
and 206 recommendations had been adopted.
Conventions are not automatically binding, not even on those member states
that voted in favour of the adoption of the convention. The rationale underlying
this provision can be traced back to the formation of the ILO and resistance to
the concept of an ‘international labour parliament’ that would have the power
to bind sovereign member states to standards adopted by a requisite majority.
The ILO’s constitution therefore provides for the voluntary assumption of obli-
gation, so that a convention becomes binding on a member state only once
that state has ratified the convention. Article 19, paragraph 5(d) of the ILO
constitution provides that a member state ratifying a convention is obliged to
‘take such action as may be necessary to make effective’ the provisions of the
ratified convention. Ratification also has the consequence of submission to the
ILO’s supervisory bodies, including the complaints procedures established by the
ILO’s constitution.
A recommendation, as the name implies, is not capable of ratification, and is
not binding on member states. Recommendations provide guidelines on how a
particular matter might be regulated or when adopted with a convention,

________________________

7 For more information on ILO standards, see www.ilo.org. For a candid and contemporary
overview of the ILO and its standard setting functions, see Creighton ‘The Future of Labour
Law: Is there a Role for International Labour Standards?’ in Barnard, Deakin and Morris
(eds) The Future of Labour Law Liber Amicorum: Sir Bob Hepple QC (2004) at 253.
26 Law@work

provide more detailed measures that are supportive of the terms of the conven-
tion itself.
Article 19 of the ILO’s constitution requires member states to submit conven-
tions and recommendations adopted by the Conference to the competent
domestic authority.8 This does not imply any obligation to ratify any convention
so submitted. The idea is that the competent authority, usually the legislature,
has an opportunity to reflect on and debate the standard and the prospects of
its ratification.9
The Conference may also adopt declarations. These are formal instruments,
issued on rare occasions, which seek to enunciate universal and significant
principles. The most significant declarations are the Declaration of Philadelphia
(on freedom of association) adopted in 1944 and the Declaration on Funda-
mental Principles and Rights at Work, adopted by the Conference in 1998. The
latter Declaration was a response to the debate on the social clause (or linkages
between trade and labour rights) and acknowledges that simply by virtue of
membership of the ILO, member states have an obligation to observe and
implement the principles that underlie the core conventions. In 2008, the Con-
ference adopted the Declaration on Social Justice for a Fair Globalisation, a
restatement of the ILO’s mandate in the in the era of globalisation.10
The ILO also issues codes of practice, none of which are binding, but which
can be used in the development of legislation, collective agreements, and
workplace policies and rules.11

5 Core standards12
The ILO’s Governing Body has identified eight conventions that it considers
fundamental.13 The conventions are:
l Freedom of Association and the Right to Organise Convention, 1948 (No. 87);
l Right to Organise and Collective Bargaining Convention, 1949 (No. 98);
l Forced Labour Convention, 1930 (No. 29);
l Abolition of Forced Labour Convention, 1957 (No. 105);
l Minimum Age Convention, 1973 (No. 138);
l Worst Forms of Child Labour Convention, 1999 (No. 184);

________________________

8 Normally, the member state’s legislative body.

9 The obligation to submit is subject to a time limit of one year from the close of the Confer-
ence or, in exceptional circumstances, 18 months.
10 See para 7 ‘The future of the ILO’.
11 See eg the ILO’s Code of Practice on the Protection of Workers’ Personal Data, published
in (1997) 18 ILJ 26.
12 The full text of the core conventions (indeed, all of the ILO’s conventions and recommen-
dations) can be accessed on the ILO’s website www.ilo.org.
13 The Governing Body initiated a campaign in 1995 to secure the universal ratification of the
fundamental conventions, with the result that over 80 per cent of the possible ratifications
have been achieved.
International labour standards 27

l Equal Remuneration Convention, 1951 (No. 100); and

l Discrimination (Employment and Occupation) Convention, 1958 (No. 111).
These conventions respectively establish minimum standards in relation to the
rights of trade unions, employers’ organisations and their members and their
right to conduct their activities and programmes without interference from the
state, the obligation to promote collective bargaining, the minimum age of
work and prohibition against involuntary work exacted under threat of penalty,
the right to equality in employment both in the sense of a right to equal pay for
work of equal value, and a prohibition against discrimination in the workplace.
The Governing Body has also recognised a number of conventions as ‘priority
conventions’, because of their importance for standards generally. Member
states have been encouraged to ratify these conventions. They are:
l Labour Inspection Convention, 1947 (No. 81);
l Labour Inspection (Agriculture) Convention, 1969 (No. 129);
l Tripartite Consultation (International Labour Standards) Convention, 1976
(No. 144); and
l Employment Policy Convention, 1964 (No. 122).

6 The ILO’s supervisory bodies and mechanisms

Ratification of a convention gives rise to an obligation to implement its terms in
national law and practice. The supervisory mechanisms established by the ILO’s
constitution envisage regular supervision, in the form of scrutiny of reports sub-
mitted by member states by the various supervisory bodies. The ILO depends
largely on its influence and status to convince Member States to give effect to
international labour standards.14

6.1 The Committee of Experts on the Application of Conventions

and Recommendations
The Committee of Experts was established in terms of a resolution adopted by
the Conference in 1926. Its mandate is to examine reports made by member
states. Reports are submitted in terms of the following:
l Under Article 22 of the ILO’s constitution, member states are obliged to
report in accordance with the required reporting cycle on measures taken
to give effect to the terms of conventions that they have ratified.
________________________

14 The Standards Initiative: Joint report of the Chairpersons of the Committee of Experts on the
Application of Conventions and Recommendations and the Committee on Freedom of
Association Review of ILO Supervisory Mechanism (GB.326/LILS/3/1, 29 Feb 2016) at viii un-
derlines the need for continuous reflection: ‘Improved coordination of supervision and
technical assistance will also lead to more effective compliance with international labour
standards. It is generally recognized that the ILO’s supervisory system succeeds in promo-
ting the application of labour standards. Bolstering the transparency, accessibility, aware-
ness and coherence of the system nevertheless demands unceasing attention. Moreover,
measuring the impact of international labour standards is essential for the continuous
efforts to strengthen the ILO supervisory system’.
28 Law@work

l Under Article 19, reports may be requested from member states on unrati-
fied conventions, and on recommendations. Article 19 reports deal with the
position of a member state’s national law and practice in relation to con-
ventions that it has not ratified. The purpose of these reports is to reflect on
national law and practice in relation to the subject matter of the convention
and recommendation, and to enable the supervisory bodies to consider
obstacles to the ratification of conventions.
The Committee of Experts meets in Geneva on an annual basis and holds its
meetings in private. The documentation that the Committee has available to it
includes information supplied by member states in their reports, or to the Con-
ference Committee on the Application of Standards. The Committee also has
available to it the texts of legislation, collective agreements, court judgments,
information on the results of inspections furnished by member states, comments
made by employers’ and workers’ organisations and any conclusions reached
by other ILO supervisory bodies, for example, the Committee on Freedom of
Association.
The findings and conclusions of the Committee of Experts take the form of
observations and direct requests, comments and surveys.15 Observations are
usually made in more serious cases or cases of long-standing failure to imple-
ment international obligations and published in the Committee’s report. Direct
requests are not published, but are communicated to the government of the
member state concerned by the International Labour Office on behalf of the
Committee. Direct requests normally relate to technical matters, or seek clarifi-
cation on points on which available information is insufficient.
________________________

15 There was recently a serious dispute between the different social partners about the status
of the Committee’s work, set against the backdrop of the employers questioning the very
existence of an international right to strike. In this regard, see Smit (‘International Develop-
ments regarding the Implementation of the Right to Strike’ 2017 vol 38 Comparative Labor
Law & Policy Journal 101 at 114 and further) who states that in the ILC, Report of the Com-
mittee of Experts on the Application of Conventions and Recommendations (Report
III(1A), 103rd Sess., ILO, Geneva, 2013) the committee reiterated that: ‘35.(a) In stating that
its views are to be considered as valid and generally recognized (absent contradictory
ruling from the ICJ), the Committee is not saying that it regards its views as having any res
judicata or comparable effect. The Committee does not regard itself as a court of law.
Indeed, it has been consistently clear that its formulations of guidance – presented as
opinions or recommendations in the context of observations, direct requests, and General
Surveys – are not binding. Rather, the persuasive validity of the Committee’s formulations
for member countries, social partners, the Conference Committee, and others within the
ILO stems from: (1) their logical relation to the standards application process; (2) the equal
treatment and uniformity that accompanies their implementation; (3) the quality of their
reasoning; and (4) the recognized independence and expertise of the Committee as a
whole. (b) In this respect, the Committee’s guidance is part of the so-called international
law landscape. Like the work of independent supervisory bodies created within other UN
organizations addressing human rights and labour rights, the Committee’s non-binding
opinions or conclusions are intended to guide the actions of ILO member States by virtue
of their rationality and persuasiveness, their source of legitimacy (by which is meant the
independence, experience, and expertise of the members), and their responsiveness to a
set of national realities including the informational input of the social partners’.
International labour standards 29

General Surveys are conducted by the Committee of Experts on the basis of

reports to the International Labour Office on unratified conventions and recom-
mendations, selected for this purpose by the Governing Body. General Surveys
usually present a snapshot of national law and practice on the topic con-
cerned. For example, a General Survey on equality will review the extent to
which national law and practice in member states reflect the terms of Conven-
tions 100 and 111 (the standards relevant to the rights to equality at work and
equal pay). The Committee also examines obstacles to the ratification of any
relevant conventions, with a view to clarifying the nature and scope of the
standards or to indicate means of overcoming these obstacles. Although the
Article 19 procedure is not strictly a supervisory procedure (because it relates to
unratified conventions as well as recommendations), the General Surveys are
an important source of reference on the standards that they cover.

6.2 The Conference Committee on the Application of Standards

The Conference Committee on the Application of Standards is a tripartite
standing committee of the International Labour Conference, and meets in June
each year to discuss cases of non-compliance with ratified conventions included
in the report of the Committee of Experts. It is not possible in the period for which
the Conference Committee meets to discuss all of the cases, and a selection of
cases is made. At the end of each discussion, in which representatives of the
governments concerned are invited to participate, the Committee adopts con-
clusions. More serious cases, usually those involving persistent non-compliance
with international obligations, are noted in a special paragraph in the Commit-
tee’s report to the plenary session of the Conference.

6.3 Article 24 complaints

Any employers’ or workers’ organisation may make a representation to the
International Labour Office under Article 24 of the constitution to the effect that
a member state has failed to secure in any respect the effective observance
within its jurisdiction of any convention that it has ratified.
The Governing Body may communicate the representation to the govern-
ment concerned, and invite the government to respond by making a state-
ment. Article 25 provides that if no statement is received, or if any statement
that is received is unsatisfactory, the Governing Body may elect to publish the
representation, and any response to it.

6.4 Article 26 complaints

Unlike other complaints-based procedures, Article 26 of the ILO’s constitution
establishes a procedure that is legally enforceable. The Article provides that any
member of the ILO has the right to file a complaint with the International Labour
Office if it is not satisfied that any other member is securing effective observ-
ance of any convention that both member states have ratified. The procedure
may also be initiated by the Governing Body of its own motion, or on receipt of
a complaint lodged by a delegate to the Conference.
30 Law@work

The Governing Body may communicate with the government concerned in

the same way provided under the Article 24 procedure, and may appoint a
Commission of Inquiry to consider the complaint and file a report. Article 28
requires the Commission of Inquiry to report and make recommendations on the
steps that it considers should be taken to address the complaint. In terms of
Article 29, the Director-General must communicate the Commission’s report to
the Governing Body and the government concerned, and publish it. The gov-
ernment is then afforded three months to inform the Director-General whether it
accepts the recommendations contained in the report, or whether the matter is
to be referred to the International Court of Justice. The International Court may
affirm, vary or reverse any of the Commission of Inquiry’s findings and recom-
mendations.16 In terms of Article 31 of the ILO constitution, the court’s decision is
final.

6.5 The Committee on Freedom of Association

The Committee on Freedom of Association (CFA) was established in 1951, by
resolution of the Governing Body. The CFA is tripartite, and comprises nine mem-
bers (three government, three employer and three worker representatives) and
an independent chairperson. The CFA was established to examine allegations
of breaches of freedom of association submitted by an ILO member state, an
employers’ organisation or a workers’ organisation. The CFA endeavours to
reach unanimous decisions, and its responsibility is essentially to recommend to
the Governing Body whether cases are worthy of examination by the Governing
Body.
The CFA procedure differs from the procedures established by Articles 24 and
26 in that complaints may be made against member states that have not rati-
fied the conventions that concern rights of freedom of association.

7 The ILO in the era of globalisation

One of the ILO’s original purposes was to provide a mechanism for the protec-
tion of workers against the adverse effect of international competition.17 Global-
isation has brought this purpose into sharp focus and has generated some con-
troversy over whether the ILO is better placed than other international organ-
isations to adopt and supervise international labour standards, and whether
labour standards amount to a form of protectionism by developed economies
seeking to undermine any competitive advantage that may be gained on
account of lower labour costs. Concerns were also raised in the ILO regarding
what were thought to be the inappropriately detailed and inflexible obligations
imposed by conventions, the resulting low rates of ratification of conventions,
and the effectiveness of the supervisory mechanisms.
The ILO has responded to these challenges in a number of ways. First, the ILO
has identified core standards, in the form of the core conventions listed above,
________________________

16 Art 32.
17 Creighton (fn 7).
International labour standards 31

and embarked on a campaign to secure their universal ratification. Secondly,

the approach to standard setting has been changed to encourage a more
selective approach to the choice of standards and the introduction of broadly
framed conventions more easily capable of high levels of ratification. Thirdly,
the use of standards other than conventions (recommendations, codes of prac-
tice and other ‘soft-law’ mechanisms) is being encouraged. All of these mea-
sures are intended to ensure that the ILO and international labour standards
remain relevant in a rapidly changing world.18
In June 2008, the Conference adopted the Declaration on Social Justice for a
Fair Globalisation, perhaps the most far-reaching confirmation of the ILO’s con-
tinued role and relevance in the context of economic globalisation. The Dec-
laration spells out four themes or strategic objectives that inform the ILO’s
‘decent work’ agenda – employment promotion, social protection, social dia-
logue and fundamental rights.19 As part of its centenary celebrations in 2019,
the ILO published the report by its Global Commission on the Future of Work.20
The work of the commission was organised around four ‘centenary conversa-
tions’ – work and society, decent jobs for all, the organisation of work and pro-
duction and the governance of work. The context to the future of work is
described in terms that resonate in South Africa:
Technological advances – artificial intelligence, automation and robotics – will
create new jobs, but those who lose their jobs in this transition may be the least
equipped to seize the new opportunities. Today’s skills will not match the jobs of
tomorrow and newly acquired skills may quickly become obsolete. The greening
of our economies will create millions of jobs as we adopt sustainable practices
and clean technologies but other jobs will disappear as countries scale back their
carbon – and resource – intensive industries. Changes in demographics are no less
significant. Expanding youth populations in some parts of the world and ageing
populations in others may place pressure on labour markets and social security
systems, yet in these shifts lie new possibilities to afford care and inclusive, active
societies.
The report proposes solutions centred on the reinvigoration of the social con-
tract, and increasing investment in people’s capabilities, the institutions of work,
and decent and sustainable work.
International labour standards remain a key component in the ILO's strategy
for meeting the challenges of globalisation, promoting sustainable develop-
ment, eradicating poverty, and ensuring that people can work with dignity and
in safety.

________________________

18 For a debate of these developments, and whether they constitute a retrogressive step,
see Alston ‘Core Labour Standards and the Transformation of the International Labour
Rights Regime’ (2004) 15 (3) Eur J Int Law 457 and the reply by Langille ‘Core Labour Rights
– the True Story (Reply to Alston)’ (2005) 16 (3) Eur J Int Law 409.
19 For a full discussion on the content and context of the Declaration, see Maupain ‘New
Foundation or New Facade? The ILO and the 2008 Declaration on Social Justice for a Fair
Globalization’ (2009) 20 (3) Eur J Int Law 823.
20 International Labour Organization Work for a Brighter Future – Global Commission on the
Future of Work (2019).
32 Law@work

8 The application of international labour standards in

South African law
8.1 Statutory recognition and incorporation of ILO standards
Why should South African labour lawyers be concerned with ILO standards?
There are at least two answers to this question. First, in a substantive sense, the
Constitution accords international law a particular status. Secondly, the Consti-
tution requires the application of international law when interpreting South Afri-
can legislation and in particular, the Bill of Rights. Section 232 of the Constitution
provides that ‘[c]ustomary international law is law in the Republic unless it is
inconsistent with the Constitution or an Act of Parliament’. Section 233 regulates
the application of international law. The section provides:
when interpreting any legislation, every court must prefer any reasonable interpret-
ation of the legislation that is consistent with international law over any alternative
interpretation that is inconsistent with international law.
Finally, the Bill of Rights must be interpreted in accordance with the particular
injunction contained in section 39(1) of the Constitution. That section provides:
When interpreting the Bill of Rights, a court, tribunal or forum –
(a) must promote the values that underlie an open and democratic society based
on human dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.
Section 39 places an obvious premium on the value of international law in
relation to the interpretation of the Bill of Rights. While a court may have regard
to comparable foreign case law, it must have regard to public international law.
One of the issues raised by section 39 is the nature of international law. Are
the courts required to have regard only to those international instruments to
which South Africa has specifically assented, or is the phrase ‘international law’
to be interpreted more broadly?21 The Constitutional Court has affirmed that
section 39(1) requires both instruments that are binding on South Africa and
those to which South Africa is not a party to be used as tools of interpretation. In
S v Makwanyane22 the court stated:
International agreements and customary international law provide a framework
within which . . . [the Bill of Rights] can be evaluated and understood, and for that
purpose decisions of tribunals dealing with comparable instruments, such as the
United Nations Committee on Human Rights, the Inter-American Commission on
Human Rights, and the European Court of Human Rights, and in appropriate cases,

________________________

21 For a discussion on the statutory interpretation with reference to human rights, see Dugard
International Law: A South African Perspective (2011) at ch 4. For a more general discussion
on the reception of international standards, see Cheadle ‘Reception of International
Labour Standards in Common-Law Systems’ in Le Roux and Rycroft (eds) Reinventing
Labour Law: Reflecting on the First 15 Years of the Labour Relations Act and Future Chal-
lenges (2012) at 348. See also Cohen ‘Efficacy of International Standards in Countering
Gender Inequality in the Workplace’ (2012) 33 ILJ 19.
22 1995 (3) SA 391 (CC).
International labour standards 33

reports of specialised agencies such as the International Labour Organization may

provide guidance as to the correct interpretation of particular provisions.
In the first case23 in which section 23 of the Constitution was the subject of a
challenge,24 the Constitutional Court made reference to ILO standards. At issue
was the constitutionality of a provision of the Defence Act25 that prohibited
members of the permanent military force from forming and joining trade unions.
It was argued by the Defence Force that members of the military enlist in the
armed forces, and that in the absence of a contract of employment as ordin-
arily understood between them and the Defence Force, they were not ‘workers’
for the purpose of section 23 of the Constitution.26
In its consideration of the meaning of ‘worker’ in section 23(2) of the Consti-
tution, the Constitutional Court had this to say about the importance of ILO
standards:
Section 39 of the Constitution provides that, when a court is interpreting chap 2 of
the Constitution, it must consider international law. In my view, the conventions and
recommendations of the International Labour Organization (the ILO), one of the
oldest existing international organisations, are important resources for considering
the meaning and scope of ‘worker’ as used in s 23 of the Constitution.27
In its judgment, the court made specific reference to Article 2 of Convention 87
and in particular its provision that workers and employers, without distinction,
have the right to establish and join organisations of their own choosing without
previous authorisation. The court also referred to Article 9 of the convention,
which extends these guarantees to the armed forces and the police, to the
extent determined by national laws and regulations. On this basis, and having
regard to the parallel provisions of Convention 98, the court concluded that the
convention included armed forces within its scope, and that the ILO had there-
fore specifically considered members of the armed forces to be workers for the
purposes of the convention. The court struck down the statutory prohibition on
union activity and membership in the Defence Force as unconstitutional.
In NUMSA & Others v Bader Bop (Pty) Ltd & another28 the Constitutional Court
had to consider the right of a minority trade union to strike in support of a
demand that the employer recognise the union’s shop stewards. The court
referred to section 39(1) of the Constitution and noted:
As has already been acknowledged by the Court, in interpreting section 23 of the
Constitution an important source of international law will be the conventions and
recommendations of the ILO.29
________________________

23 SA National Defence Union v Minister of Defence & another (1999) 20 ILJ 2265 (CC).
24 S 23 of the Constitution establishes labour rights as fundamental rights.
25 Act 44 of 1957.
26 S 23(2) provides: ‘Every worker has the right –
(a) to form and join a trade union;
(b) to participate in the activities and programmes of a trade union; and
(c) to strike’.
27 At 2278B–D.
28 [2003] 2 BLLR 103 (CC).
29 At 117E–F, referring to SA National Defence Union v Minister of Defence & another (fn 23).
See also Police & Prisons Civil Rights Union v SA Correctional Services Union & others [2018] 11
BLLR 1035 (CC).
34 Law@work

The court went on to refer specifically to the supervisory structures established

by the ILO, and emphasised the importance of the jurisprudence developed by
the Committee of Experts and the CFA. The court’s decision to uphold the
appeal and to affirm the union’s right to strike (the Labour Appeal Court had
held that the union could not strike) was based largely on interpretations of
Conventions 87 and 98 by the supervisory bodies, both in relation to the rights of
minority unions and the right to strike.
The Supreme Court of Appeal and the labour courts make frequent reference
to ILO standards in labour disputes and have stressed their importance as points
of reference. In Minister of Defence & others v SA National Defence Force Union
& others 30 the Supreme Court of Appeal made specific reference to sections 39
and 223 of the Constitution and considered in some detail the provisions of ILO
Conventions 87, 98 and 154. At issue was whether the constitutional right to
‘engage’ in collective bargaining meant that national legislation ought neces-
sarily to establish a duty to bargain. Relying heavily on the wording of the con-
ventions and in particular their reference to the obligation to promote voluntary
collective bargaining, the court concluded that the LRA did not infringe the
constitutional right to engage in collective bargaining by failing to incorporate
a compulsion to bargain.
8.2 Other statutory injunctions regarding international standards
The LRA extends specific recognition to the international law obligations incur-
red by South Africa by virtue of its membership of the ILO. Section 1 of the Act
provides:
The purpose of this Act is to advance economic development, social justice, labour
peace and the democratisation of the workplace by fulfilling the primary objects
of this Act, which are . . .
(b) to give effect to obligations incurred by the Republic as a member state of
the International Labour Organization; . . .
Section 3 of the LRA states:
Any person applying this Act must interpret its provisions –
(a) to give effect to its primary objects;
(b) in compliance with the Constitution; and
(c) in compliance with the public international law obligations of the Republic.31
The Labour Court has not limited its points of reference to conventions and
recommendations. In Moslemany v Unilever plc & another,32 for example, the

________________________

30 (2006) 27 ILJ 2276 (SCA).

31 A similar provision exists in s 3 of the EEA, where specific reference is made to Convention
111. For an affirmation of the importance of s 3 and international labour standards, see
Horn v LA Health Medical Scheme 2015 (7) BCLR 780 (CC). Of course, the injunction to
construe provisions of the LRA in compliance with the Constitution includes the discharge
of the obligation imposed by s 39(2) on every court to promote the objects of the Bill of
Rights when interpreting legislation – see Police & Prisons Civil Rights Union v SA Correctional
Services Union & others (fn 29).
32 [2006] 12 BLLR 1167 (LC).
International labour standards 35

Labour Court held that it was obliged to have regard to the ILO Declaration of
Principles Concerning Multinational Enterprises and Social Policy (by definition a
declaration is not binding on member states) in determining a jurisdictional issue
in a dismissal dispute where the employer was a multinational enterprise.

9 Regional instruments33
9.1 South African Development Community (SADC)
In 2003, SADC adopted a Charter of Fundamental Social Rights that seeks to
entrench the institution of tripartism as the preferred means to promote the har-
monisation of legal, economic and social policies and programmes, and to
provide a framework for the recognition of regional labour standards.
Article 4 of the Charter obliges member states to create an enabling environ-
ment, consistent with ILO conventions on freedom of association, the right to
organise and collective bargaining, to give effect to basic labour rights. Article 5
of the Charter requires member states to prioritise ILO conventions on core
labour standards so as to take the necessary action to ratify and implement
these standards.
The Charter further requires member states to create an enabling environ-
ment to ensure equal treatment for men and women, and for the protection of
children and young people. Other obligations relate to the establishment of
enabling environments to improve working and living conditions,34 the protec-
tion of health, safety and the environment,35 employment and remuneration,36
and education and training.37 Article 10 requires members to create an en-
abling environment so that workers may enjoy, without regard to status and
type of employment, adequate social security benefits.
The Charter cannot be directly enforced, and unlike ILO conventions, there is
no independent supervisory mechanism to call members to account for any
breach of the Charter. Responsibility for the implementation of the Charter lies
with national tripartite institutions and regional structures that are specifically
required to promote social legislation and equitable growth in the region. Mem-
ber states are required to submit regular reports to the SADC secretariat. The
most representative national employers’ and workers’ organisations must be
consulted in the preparation of the reports.

________________________

33 In this section, we discuss only the SADC Charter of Fundamental Social Rights. The African
Charter on Human and People’s Rights entered into force in 1986 also has application,
although less directly, to labour issues.
34 Art 11.
35 Art 12.
36 Art 14.
37 Art 15.
36 Law@work

10 International developments affecting corporate entities

10.1 The UN Global Compact
All of the instruments discussed thus far are binding as between states or as
between states and international agencies. None of the obligations established
by these instruments directly bind employers, nor trade unions and employees
for that matter. They become bound by international standards only once these
are translated into domestic legislation or national practice.
It has been argued that multi-national corporations in particular are bound,
ethically at least, to observe minimum labour standards irrespective of the cir-
cumstances or geographic areas in which they operate. The UN Global Com-
pact has played an important role as a significant source of reference in defin-
ing ethical corporate conduct and the nature and extent of corporate social
responsibility. The Global Compact is a voluntary initiative of the UN based on
ten principles in the areas of human rights, labour rights, the environment and
anti-corruption. The first two of these areas are obviously relevant to employ-
ment. The first principle is derived from UN human rights instruments, and asks
companies to undertake to support and respect the protection of internationally
proclaimed human rights and to ensure that there is no complicity in their
abuse.38
The labour rights that companies are asked to observe are the following:
l the freedom of association and the effective recognition of the right to col-
lective bargaining;
l the elimination of all forms of forced and compulsory labour;
l the effective abolition of child labour; and
l the elimination of discrimination in respect of employment and occupation.
Although the Global Compact does not provide for independent monitoring or
establish a complaints-based or any other mechanism of enforcement, it is an
important initiative to define corporate conduct and responsibility so as to
accord with core ILO standards. The overlap between the Compact’s labour
rights principle and the ILO’s core conventions is obvious, and represents an
increasing consensus on fundamental labour rights between the various public
and private initiatives in place.

________________________

38 This request would extend at least to the Universal Declaration of Human Rights (1948), the
International Covenant on Economic, Social and Cultural Rights (1966), and the Inter-
national Covenant on Civil and Political Rights (1966).
3
The constitutional framework

Page
1 Introduction .................................................................................................... 39
2 Section 23(1): The right to fair labour practices ......................................... 42
3 Section 23(2) and (3): The right to form, join and participate in the
activities of a trade union and employers’ organisation .......................... 46
4 Section 23(4): Trade union and employers’ organisation rights ............... 46
5 Section 23(5): The right to engage in collective bargaining .................... 47
6 Section 23(6): Union security arrangements ............................................... 51
7 Limitation of rights .......................................................................................... 52
8 Jurisdictional issues ........................................................................................ 54

37
The constitutional framework 39

1 Introduction
The interim Constitution that came into force on 27 April 1994 introduced the
principle of constitutional supremacy and established a justiciable Bill of Rights.
What this meant, of course, is that the nature and scope of statutory labour
rights were no longer the subject of parliamentary sovereignty: the Constitution
became the supreme law. The provisions of the new LRA, drafted by a team
appointed in August 1994, were thus required to be consistent with the Con-
stitution, in particular to give expression to the labour rights incorporated into
section 27 of the interim Constitution. These included the rights to fair labour
practices and to organise and bargain collectively, subject to an ‘insulation
clause’ to the effect that existing laws promoting fair employment practices,
orderly and equitable collective bargaining and the regulation of industrial
action would remain in force (and thus temporarily immune to constitutional
challenge), until repealed or amended. The purpose of the insulation clause
was to preserve the statutory status quo pending the introduction of the new
LRA. As matters transpired, there was no constitutional attack on either any
existing legislation or the insulation clause itself between the date on which the
interim Constitution came into force and the date on which the LRA was
enacted.
The temporary insulation from constitutional attack notwithstanding, the
interim Bill of Rights heralded a fundamental change in the development of
South African labour law which, until then, had been driven largely by the Indus-
trial Court’s ad hoc interpretation and application of the concept of the unfair
labour practice. An important component of this change was the status
accorded to international law in the interim Constitution, and the consequences
of South Africa’s readmission to the International Labour Organization (ILO).
Indeed, section 1 of the LRA states that one of its purposes is to give effect to
South Africa’s obligations as a member state of the ILO.
The LRA was enacted a month before the final Constitution was signed into
law. Section 23 of the Bill of Rights retains labour rights as fundamental rights,
with some modifications. Section 23 of the Constitution is headed ‘Labour
relations’ and establishes a set of broadly expressed labour rights that accrue to
a variety of parties, including but not limited to employers, workers and their
respective representative organisations. The section reads as follows:
Labour relations
23 (1) Everyone has the right to fair labour practices.
(2) Every worker has the right –
(a) to form and join a trade union;
(b) to participate in the activities and programmes of a trade union; and
(c) to strike.
(3) Every employer has the right –
(a) to form and join an employers’ organisation; and
(b) to participate in the activities and programmes of an employers’ organisation.
(4) Every trade union and every employers’ organisation has the right –
(a) to determine its own administration, programmes and activities;
40 Law@work

(b) to organise; and

(c) to form and join a federation.
(5) Every trade union, employers’ organisation and employer has the right to
engage in collective bargaining. National legislation may be enacted to regulate
collective bargaining. To the extent that the legislation may limit a right in this
Chapter, the limitation must comply with section 36(1).
(6) National legislation may recognise union security arrangements contained in
collective agreements. To the extent that the legislation may limit a right in this
Chapter, the limitation must comply with section 36(1).
Section 23 is obviously central to law at work, but it is not the only section of the
Bill of Rights that has an impact on labour relations. For example, the right to
freedom of association guaranteed by section 18 is directly relevant to the
workplace, and section 22 enshrines the right of all citizens to choose their
trade, occupation and profession freely. The equality clause in section 9 has
had a considerable impact on the development of the right to equality at
work.1 In several important labour-related cases, the Constitutional Court has
highlighted the right to human dignity guaranteed by section 10 of the Consti-
tution. A socio-economic right that has important consequences for those at
work, and those out of work, is the right of access to health services and social
security, including appropriate social assistance where necessary.2 The rights to
privacy3 and access to information4 affect many aspects of the law at work.
The right to administrative action that is lawful, reasonable and procedurally fair
has been highlighted in a number of cases that have examined the intersection
between labour law and administrative law, and forms the basis for the test
applied in review applications.5 Further, and less directly, when interpreting the
Bill of Rights, courts are required to consider international law, and to prefer any
reasonable interpretation of legislation that is consistent with international law
over any interpretation that is not.6 In labour matters, these provisions have
assumed significance on account of the large body of international labour law,
comprising in the main ILO conventions and decisions of the ILO’s supervisory
bodies.
These fundamental rights and their interpretation by the courts have resulted
in the development of a significant constitutional jurisprudence relevant to work-
ers, employers and their representative bodies. Since constitutional rights have
the potential to permeate each aspect of the work relationship, it is difficult to
consider the constitutional framework within which labour legislation operates
without addressing, in a substantive sense, the manner in which each right is
given expression. Instructive as this exercise may be, the inevitable result will be
an overlap between this chapter and others. Consistent with the central theme

________________________

1 See ch 6.
2 S 27 of the Constitution. See ch 18.
3 S 14 of the Constitution.
4 S 32 of the Constitution.
5 S 33 of the Constitution. See Sidumo & another v Rustenburg Platinum Mines Ltd & others
[2007] 12 BLLR 1097 (CC).
6 S 39(1) and s 233 of the Constitution respectively.
The constitutional framework 41

of the book, each chapter incorporates a discussion on the constitutional impli-

cations of the rights under discussion. A full appreciation of the impact and
implications of section 23 of the Constitution will therefore be gained only by
reading and appreciating the text as a whole. In this chapter, we explore, in a
very preliminary way, the nature and extent of the labour relations rights guar-
anteed by section 23.
As a basic point of departure, section 8 of the Constitution provides that the
Bill of Rights binds not only the legislature, the executive, the judiciary and all
organs of state, but also natural and juristic persons if and to the extent that a
right is applicable, taking into account the nature of the right and any duty
imposed by the right.7 This is often referred to as the horizontal application of the
Bill of Rights. Section 8(3) of the Constitution requires that when applying a pro-
vision of the Bill of Rights to a natural or juristic person, a court, in order to give
effect to a right, must apply or if necessary develop the common law to the
extent that legislation does not give effect to that right. A court may develop
rules of the common law to limit the right, provided the limitation is in accord-
ance with section 36(1), commonly referred to as the limitations clause. In add-
ition, section 173 of the Constitution provides that the Constitutional Court, the
Supreme Court of Appeal and the High Courts have the inherent power to
develop the common law, ‘taking into account the interests of justice’.
Constitutional rights therefore have the potential to affect labour law in three
ways.8 They can be used to:
l test the validity of legislation that seeks to give effect to fundamental rights;9
l interpret legislation enacted to give effect to fundamental rights;10 and
l develop the common law.11
With this background, the constitutional framework within which labour laws are
interpreted and applied is discussed, with specific reference to the application
of those constitutional labour rights not dealt with more fully elsewhere in this
book.

________________________

7 S 8(2) of the Constitution.

8 See Cheadle ‘Impact of the Constitution on Labour Law’ 1994 Current Labour Law 94.
9 In SA National Defence Union v Minister of Defence & another (1999) 20 ILJ 2265 (CC)
(SANDU 1999) the Constitutional Court considered whether the absence of a justiciable
duty to bargain in the LRA infringed the constitutional right to engage in collective bar-
gaining. See para 4 ‘The right to engage in collective bargaining’. See also Association of
Mineworkers & Construction Union & others v Chamber of Mines of SA & others [2017] 7
BLLR 641 (CC) where the Court considered the constitutionality of s 23(1)(d) and the ex-
tension of collective agreements concluded with majority unions to non-parties.
10 In Sidumo & another v Rustenburg Platinum Mines Ltd & others (fn 5) the Constitutional
Court relied on the constitutional right to fair labour practices to define the role of CCMA
commissioners when they make decisions on fair sanctions for misconduct.
11 In Old Mutual Life Assurance Co SA Ltd v Gumbi [2007] 8 BLLR 699 (SCA) the Supreme
Court of Appeal held that the common-law contract of employment has been devel-
oped in accordance with the Constitution to include the right to a pre-dismissal hearing.
See ch 5.
42 Law@work

2 Section 23(1): The right to fair labour practices

The right to fair labour practices entrenched in section 23(1) is an unusual consti-
tutional right.12 It is not a right that is found in other constitutions, with the excep-
tion of the constitution of Malawi.13 Other constitutions have entrenched the
rights to freedom of association, collective bargaining and to strike in line with
ILO conventions and other international standards but do not include the broad
right to fair labour practices.14
The wording in section 23(1) and in particular the reference to ‘everyone’
having the right to fair labour practices has generated debate as to whether
this has broadened the scope of the right beyond the employment relationship.
Cheadle has argued that the emphasis ought to be placed on the words
‘labour practices’ rather than ‘everyone’:
Although the right to fair labour practices in subsection (1) appears to be accorded
everyone, the boundaries of the right are circumscribed by the reference in sub-
section (1) to ‘labour practices’. The focus of enquiry into ambit should not be on
the use of ‘everyone’ but on the reference to ‘labour practices’. Labour practices
are the practices that arise from the relationship between workers, employers and
their respective organisations. Accordingly, the right to fair labour practices ought
not to be read as extending the class of persons beyond those classes envisaged
by the section as a whole.15
The reference to ‘everyone’ extends to employers. In NEHAWU v University of
Cape Town & others16 the Constitutional Court held that fairness must be
applied to both employees and employers. Ngcobo J held:
Where the rights in the section are guaranteed to workers or employers or trade
unions or employers’ organisations as the case may be, the Constitution says so
explicitly. If the rights in s 23(1) were to be guaranteed to workers only, the Con-
stitution should have said so. The basic flaw in the applicant’s submission is that it
assumes that all employers are juristic persons. That is not so. In addition, section
23(1) must apply either to all employers or none. It should make no difference
whether they are natural or juristic persons.17
In Pretorius v Transnet Pension Fund18 the Constitutional Court observed that
there was a compelling basis not to restrict section 23 to those engaged in
formal employment – more and more people found themselves in a ‘twilight

________________________

12 See Cheadle ‘Labour Relations’ in Cheadle, Davis and Haysom South African Consti-
tutional Law: The Bill of Rights (2006) at 18-9. Cheadle suggests that the right was included
in the interim Constitution as part of a package of provisions to secure the support of the
public service for the new constitutional dispensation.
13 Ibid at 18-8.
14 See Cooper ‘Labour Relations’ in Chaskalson et al Constitutional Law of South Africa
(2007) at 53-11–53-14.
15 Cheadle (fn 12) at 18-3.
16 (2003) 24 ILJ 95 (CC).
17 Ibid at para 39.
18 [2018] 7 BLLR 633 (CC) at para 48.
The constitutional framework 43

zone’ of employment as supposed independent contractors. The suggestion

here is that the right of ‘everyone’ to fair labour practices extends beyond
formal employment to other forms of engagement in work.
Which practices fall under the heading of ‘labour practices’ for the purposes
of section 23(1): do all labour practices fall under this subsection, or should those
collective labour practices, including the rights of freedom of association, the
right to organise, the right to strike and the right to engage in collective bar-
gaining, entrenched in other parts of section 23, be excluded from the ambit of
‘labour practices’ for the purposes of section 23(1)? In developing an answer to
this question, it has been suggested that instead of looking to ILO conventions
and recommendations and comparative jurisprudence for guidance, a close
examination of our own jurisprudence and legislation is more likely to give an
indication of what the drafters envisaged by entrenching the right to fair labour
practices.19
The Wiehahn Commission first introduced the concept of the ‘unfair labour
practice’ into South African law in 1979.20 The definition was amended in 1982 to
introduce a greater degree of specificity,21 but both definitions remained broad.
Some of the practices that were held to fall within the definition of an ‘unfair
labour practice’ included: dismissals that were substantively unfair or had a pro-
cedural flaw; a failure to renew a fixed-term contract; the dismissal of strikers
during a lawful strike; selective re-employment; discrimination;22 and victimisation
for trade union activities.
Many of these practices have subsequently become the subject of codifi-
cation in the LRA: the definition of dismissal in section 186(1); section 187, deal-
ing with automatically unfair dismissals; section 188, the overarching provision for

________________________

19 Cooper (fn 14) at 53-11.

20 The original definition in s 1 of the 1956 LRA was very wide. It defined an unfair labour prac-
tice as ‘any labour practice which in the opinion of the Industrial Court is an unfair labour
practice’.
21 The definition, as amended in the Industrial Relations Amendment Act 95 of 1982, stated:
‘Unfair labour practice means any act or omission, other than a strike or a lock-out, which
has the effect that –
(i) any employee or class of employees is or may be unfairly affected or that his or their
employment opportunities, work security is or may be prejudiced or jeopardised
thereby;
(ii) the business of any employer or class of employers is or may be unfairly affected or
disrupted thereby;
(iii) labour unrest is or may be created or promoted thereby;
(iv) the labour relationship between employer and employee is or may be detrimentally
affected thereby’.
22 The Employment Equity Act 55 of 1998 (‘EEA’) was enacted to eliminate unfair discrimin-
ation in the workplace and to provide for affirmative action for black people, women and
people with disabilities. S 6(2) of the EEA is similar to s 9(2) of the Constitution, which states
that ‘[t]o promote the achievement of equality, legislative and other measures designed
to protect and advance persons, or categories of persons, disadvantaged by unfair dis-
crimination may be taken’.
44 Law@work

dismissals that may be fair for conduct, capacity or operational requirements;

sections 189 and 189A; and the Codes of Practice: Dismissal23 and Dismissal
based on Operational Requirements.24 The LRA has also introduced section 197
and various subsections in sections 186 and 187 designed to protect those
workers affected by the transfer of a business as a going concern or on the in-
solvency of a business. Sections 186 and 187 have further provisions to protect
workers who have made protected disclosures in terms of the Protected Dis-
closures Act25 (PDA). Section 186(2) comprises a closed list of very specific unfair
labour practices.26
In a discussion on whether the right to fair labour practices established by sec-
tion 23(1) is an overarching right or whether the subsections of section 23 should
be kept distinct, Cooper argues:
The Constitutional Court has held that the right to fair labour practices is incapable
of precise definition. Taking into account the development of the law . . . the scope
of the notion of ‘labour practices’ may embrace at least the practices set out
below. Firstly, the right should provide protection against unfair practices relating
to work security and employment opportunities as codified in the 1995 LRA, both
of a substantive and procedural nature.27 Secondly, it should underwrite the min-
imum standards accorded in the BCEA since one of the BCEA’s objectives is to
give effect to and regulate the right to fair labour practices in FC [final constitution]
s 23(1).28 Whether the right should encompass rights regulated in other labour
legislation, such as health and safety rights at work, is debatable, but there is no
apparent reason why such protection should be excluded. Thirdly, the right should
not engage the wage-work bargain. In other words, it should be concerned with
the adjudication of disputes of rights as opposed to disputes of interest. A further
issue for consideration is whether FC s 23(1) is an overarching right encompassing
the other labour relations rights, or whether it should be viewed as distinct from
them. The structure of FC s 23 suggests that the subsections are distinct, each tra-
versing a different terrain, and militates against an interpretation which sees the
right to fair labour practices as a catchall right, capable of embracing any person
and any matter. This was not, however, the approach of the High Court in South
African Defence Force & another v Minister of Defence & others. Without con-
sidering the scope of the right to fair labour practices, the court assumed that it in-
cluded collective bargaining rights . . . Sachs J, in his minority judgment in SANDU I,
also viewed FC s 23(1) as an overarching right, capable of encompassing trade
union rights (at para 48).29
Whether or not section 23(1) encompasses all labour rights, including collective
rights, remains contentious, and it will no doubt require a constitutional challenge

________________________

23 Sch 8 to the LRA.

24 See GN 1517 in GG 20254, dated 16 July 1999.
25 Act 26 of 2000.
26 See ch 8.
27 See further SA National Defence Union & another v Minister of Defence & others 2003 (9)
BCLR 1055 (T), as quoted in Cooper (fn 14) at 53-13–53-15.
28 See s 2(a) of the BCEA.
29 Cooper (fn 14) at 53-13–53-15.
The constitutional framework 45

or legislative amendment finally to resolve this question. At this point, the bal-
ance is weighted in favour of keeping the subsections distinct. Cheadle has
argued that it is ‘the legislature that should determine the balance of interests
between employer and employee and the public’.30 The concern articulated by
Cheadle seems to be that where the legislation clearly excludes a duty to bar-
gain, for example, the right to fair labour practices in section 23(1) should not be
used ‘to negate the intention behind that design’.31 In support of his argument,
Cheadle cites the Canadian case of Reference re Alberta Public Service Em-
ployee Relations Act:32
Labour law . . . is a fundamentally important as well as an extremely sensitive sub-
ject. It is based upon a political and economic compromise between organised
labour – a very powerful socio-economic force – on the one hand, and the em-
ployers of labour – an equally powerful socio-economic force – on the other. The
balance between the two forces is delicate . . . Our experience with labour re-
lations has shown that the courts, as a general rule, are not the best arbiters of dis-
putes which arise from time to time . . . Judges do not have the expert knowledge
always helpful and sometimes necessary in the resolution of labour problems.33
In the Constitutional Court’s judgment in the NEHAWU case,34 Ngcobo J assessed
the fairness component of the right to fair labour practices, which he defined in
terms of a balancing or accommodation of often competing interests:
In my view the focus of s 23(1) is, broadly speaking, the relationship between the
worker and the employer and the continuation of that relationship on terms that
are fair to both. In giving content to that right, it is important to bear in mind the
tension between the interests of the workers and the interests of the employers that
is inherent in labour relations. Care must therefore be taken to accommodate,
where possible, these interests so as to arrive at the balance required by the con-
cept of fair labour practices. It is in this context that the LRA must be construed.35
Although it is now accepted that the right to fair labour practices applies to both
employers and workers, it is still not exactly clear how, when construing the LRA,
the courts should give effect to the balance that ought to be struck.

________________________

30 Cheadle (fn 12) at 18-15.

31 Ibid at 18-16.
32 (1987) 38 DLR (4th) 161.
33 Cheadle (fn 12) at 232–234.
34 NEHAWU v University of Cape Town & others (fn 16). The Labour Court held that s 197 did not
imply automatic transfer of contracts of employment in a transfer of a going concern. The
majority of the Labour Appeal Court dismissed NEHAWU’s appeal and held that as UCT
and the contractor had no agreement to transfer the workforce, there was no transfer of
a business or a part of a business in terms of s 197. The Constitutional Court was required to
decide whether the Labour Appeal Court’s interpretation of s 197 of the LRA was an in-
fringement of the right to fair labour practices in terms of s 23(1). The Constitutional Court
held that the purpose of s 197 is to balance the interests of both employers and workers.
See further Cooper (fn 14) at 53-15–53-19.
35 Ibid at para 40.
46 Law@work

3 Section 23(2) and (3): The right to form, join and

participate in the activities of a trade union and
employers’ organisation
Section 23(2) establishes the right to form and join trade unions, to participate in
the activities and programmes of a trade union and the right to strike. In relation
to these rights, the Constitution uses the word ‘worker’ rather than the broader
term ‘everyone’ or the narrower term ‘employee’.
In SANDU 199936 the Constitutional Court considered the meaning of ‘worker’.
At issue was whether soldiers enlisted in the Defence Force were ‘workers’ for
the purposes of section 23(2) of the Constitution.37 In finding that members of
the permanent force were ‘workers’, O’Regan J reasoned:
Clearly, members of armed forces render service for which they receive a range
of benefits. On the other hand, their enrolment in the permanent force imposes
upon them an obligation to comply with the rules of the Military Disciplinary Code.
A breach of that obligation of compliance constitutes a criminal offence. In many
respects, therefore, the relationship between members of the permanent force
and the defence force is akin to an employment relationship. In relation to punish-
ment for misconduct, at least however, it is not . . . If the approach of the ILO is
adopted, it would seem to follow that when s 23(2) speaks of ‘worker’, it should be
interpreted to include members of the armed forces, even though the relationship
they have with the defence force is unusual and not identical to an ordinary em-
ployment relationship. The peculiar character of the defence force may well mean
that some of the rights conferred upon ‘workers’ and ‘employers’ as well as ‘trade
unions’ and ‘employers’ organisations’ by s 23 may be justifiably limited. It is not
necessary to consider that question further now.38

4 Section 23(4): Trade union and employers’ organisation

rights
The rights of trade unions and employers’ organisations to determine their own
administration, programmes and activities, to organise and to form and join fed-
erations, is drawn from the ILO’s Freedom of Association and Protection of the
Right to Organise Convention 1948 (No. 87). Section 8 of the LRA gives expres-
sion to these rights in virtually identical wording.39 The LRA establishes organ-
isational rights that may be acquired by trade unions either by agreement or
through a process of arbitration. The rights of minority unions in this context has
been a matter of some controversy, and the subject of a direct challenge

________________________

36 Fn 9 at paras 24 and 30.

37 The LRA in s 2 specifically excludes members of the National Defence Force from the
ambit of the Act.
38 At paras 24 and 27 of the judgment. Provisions of the Defence Act 44 of 1957 that prohib-
ited members of the Defence Force from joining trade unions or participating in ‘any strike
or act of public protest’ were held to be an unjustifiable limitation of s 23.
39 See ch 14.
The constitutional framework 47

to section 23(1)(d) of the LRA. The statutory regulation of organisational rights is

discussed in chapter 14, the challenge to section 23(1)(d) in chapter 15.

5 Section 23(5): The right to engage in collective bargaining

Section 23(5) provides that every trade union, employers’ organisation and em-
ployer has the right to engage in collective bargaining.40 The interim Constitution
was worded differently – it afforded workers and employers the ‘right to organ-
ise and bargain collectively’.41 Section 23(5) of the Constitution mirrors Consti-
tutional Principle XXVIII, which ensured ‘the right of employers and employees to
join and form unions, employers’ organisations and trade unions and to engage
in collective bargaining shall be recognised and protected’.42
The Preamble to the LRA records that the aim of the Act is to change the law
governing labour relations and for that purpose ‘to promote and facilitate col-
lective bargaining’. Section 1 of the LRA notes that one of its purposes is ‘to pro-
vide a framework within which employees and their trade unions and employers
and employers’ organisations can collectively bargain to determine wages,
terms and conditions of employment and other matters of mutual interest’.43
To further this objective, the LRA entrenches the right to freedom of associ-
ation44 and to assemble, demonstrate, picket and petition45 and establishes
organisational rights, promotes collective bargaining and protects the right to
strike.46 But nowhere in the LRA is there a duty to bargain.
________________________

40 Note that in the draft of the final Constitution, s 23 failed to follow the wording in Consti-
tutional Principle XXVIII and neglected to give the right to engage in collective bargaining
to individual employers. The first Certification judgment upheld an objection to the word-
ing. In its final form therefore s 23 states that ‘[e]very trade union, employers’ organisation
and employer has the right to engage in collective bargaining’.
41 S 27(4).
42 In FAWU v Ngcobo [2013] 12 BLLR 1035 (CC) the court examined the scope of a trade
union’s liability to its members. In this case, FAWU attempted to deny liability for claims by
two of its members for damages resulting from ‘the union’s failure to pursue an unfair dis-
missal claim on their behalf’. The court dismissed the union’s argument that it was protected
against such claims by the Constitution, the LRA and the union’s constitution. The court
held that the union’s right to administer itself did not confer immunity from its breaching of
obligations it had assumed by agreeing to process the employees’ claim for unfair dismis-
sal within the time frame set by the LRA. The Constitutional Court dismissed the appeal
against the SCA’s judgment granting each employee damages equivalent to one year’s
salary.
43 S 1 of the LRA.
44 S 23 of the Constitution.
45 S 17 of the Constitution.
46 Confirmed in Concor Projects (Pty) Ltd t/a Concor Opencast Mining v Commission for Con-
ciliation, Mediation and Arbitration & others [2014] 6 BLLR 534 (LAC). The decision of the
Constitutional Court in SATAWU v Garvas & others [2012] 10 BLLR 959 (CC) 2012 (8) BCLR
840 (CC) examined the right to freedom of association, including the right to assemble
peacefully and unarmed, to demonstrate, picket and to present petitions in terms of s 17
of the Constitution. The court further examined the liability for damage arising from such
gatherings and demonstrations in terms of s 11 of the Regulation of Gatherings Act 205 of
continued on next page
48 Law@work

Does the right to engage in collective bargaining in section 23(5) encompass a

duty to bargain?47 If the right is interpreted generously to give protection to all
workers, including those excluded from the ambit of the LRA, it is possible that a
duty to bargain may be construed. In NUMSA & others v Bader Bop (Pty) Ltd &
another 48 the Constitutional Court recognised the important role of collective
bargaining in ‘ensuring fair labour relations’ but in acknowledging the ‘dynamic
nature of the wage-work bargain’ the court stressed that ‘[c]are must be taken
to avoid setting in constitutional concrete, principles governing that bargain
which may become obsolete or inappropriate as social and economic con-
ditions change’.49
The Explanatory Memorandum to the Labour Relations Bill50 records that a
‘notable feature of the draft Bill is the absence of a statutory duty to bargain’.51
The Explanatory Memorandum goes on to suggest that:
The fundamental danger in the imposition of a legally enforced duty to bargain and
the consequent determination by the judiciary of levels of bargaining, bargaining
partners and bargaining topics, is the rigidity which is introduced into a labour
market that needs to respond to a changing economic environment . . . While
giving legislative expression to a system in which bargaining is not compelled by
law, the draft Bill does not adopt a neutral stance. It unashamedly promotes col-
lective bargaining. It does so by providing a series of organisational rights for unions
and by fully protecting the right to strike.52
These fundamental protections in the Constitution and in the LRA provide the
backbone for the constitutional right to engage in collective bargaining.
Cheadle has posed the question whether the right to engage in collective bar-
gaining contemplates a right to bargain or a freedom to bargain. He argues that
the right to engage in collective bargaining is composed of three elements:
There is the freedom to bargain collectively – this is the negative right to collective
bargaining . . . it is a right that may be enforceable against employer’s organisations
and trade unions that, by collective agreement or by the exercise of economic
power, prevent employers and workers from engaging in collective bargaining.
The wording in both the interim and the final Constitution incorporate this meaning
of the right . . . The second element of the right to bargain collectively is the right
________________________

1993. The protest march organised by SATAWU in terms of this Act turned into a riot caus-
ing the respondents serious damage amounting to approximately R1,5 million. The court
held that while s 17 of the Constitution gives everyone the right to picket, present petitions,
demonstrate and assemble peacefully and unarmed, s 11 of the Regulation of Gatherings
Act limits the right to assemble by holding the organisers of a gathering liable for riot
damage when the act or omission was ‘reasonably foreseeable’ but the organisers did not
take all reasonable steps to prevent the damage. The Constitutional Court therefore, while
upholding the right to freedom of association in s 23 and the right of assembly in s 17, held
that the limitation was justifiable in terms of s 36 of the Constitution.
47 See ch 15 for a brief history of the duty to bargain under the 1956 LRA.
48 [2003] 2 BLLR 103 (CC).
49 Ibid at para 13.
50 Labour Relations Bill in GG 16259 of 10 February 1995. The Explanatory Memorandum is
published at (1995) 16 ILJ 278.
51 Ibid at 292. See also ch 15.
52 Ibid at 292–293.
The constitutional framework 49

to use economic power. In the judgment In re Certification of the Constitution of

the Republic of South Africa 1996 1996 (10) BCLR 1253 (CC), the Constitutional
Court held that the right to bargain collectively contained within it the right to
exercise economic power against bargaining partners . . . The third aspect of the
right is the most controversial, namely the positive right to bargain. It is a state-
enforced compulsion to bargain collectively which is why it is normally referred to
by its correlative, the ‘duty to bargain’ . . . In a nutshell, the positive ‘duty to bar-
gain’ carries with it a policy choice as to the form and level of collective bargain-
ing and the regulatory regime that is necessary to govern and maintain it . . . [and]
the ‘duty to bargain’ is not an aspect of the right to bargain collectively in the
manner articulated in international instruments [which] assert the freedom to bar-
gain but not the form that bargaining should take and in particular not the positive
right to compel an employer or a trade union to bargain collectively.53
Cheadle develops three arguments against interpreting the right to engage in
collective bargaining in section 23(5) so as to include a positive right to bar-
gain:54
l A duty to bargain is more than just a right as it involves policy choices such
as the form and level of collective bargaining. This results in a complex
system that requires a delicate balance to maintain it and imposing a duty
to bargain may tip the balance in favour of ‘unanticipated and unfortunate
effects’.55
l International labour standards and foreign jurisdictions do not promote a
duty to bargain. The ILO Committee of Freedom of Association has en-
dorsed this view and states ‘collective bargaining, if it is to be effective, must
assume a voluntary quality . . . measures of compulsion . . . would alter the
voluntary nature of such bargaining’.56 ILO Convention 98 endorses this
approach.57
l The wording in section 23(5) and the ‘right to engage in collective bargain-
ing’ read with Constitutional Principle XXVIII is ‘restricted to a freedom to bar-
gain collectively and that the forms, processes, institutions and levels are the
subject matter for the legislature’.58
The Supreme Court of Appeal and the Constitutional Court heard appeals in
the SANDU cases, in which the nature and extent of the constitutional right to
engage in collective bargaining were considered. The various judgments by

________________________

53 Cheadle (fn 12) at 18-23–18-26.

54 Cheadle (fn 12) at 18-25.
55 Ibid at 18-25. See also the reference to Weiler ‘The Regulation of Strikes and Picketing
under the Charter’ in Weiler and Eliot Litigating the Values of the Nation: The Canadian
Charter of Rights and Freedoms (1986) at 235 as quoted in Cheadle (fn 12) at 18-23.
56 ILO Freedom of Association: Digest of Decisions (1996) at para 845.
57 Art 4 of ILO Convention 98 on the Right to Organise and Bargain Collectively of 1949 states:
‘Measures appropriate to national conditions shall be taken, where necessary, to encour-
age and promote the full deployment and utilization of machinery for voluntary negoti-
ation between employers or employers’ organizations with a view to regulation of terms
and conditions of employment by means of collective agreement’.
58 Cheadle (fn 12) at 18-26–18-27.
50 Law@work

members of these courts are an important contribution to this debate, and are
discussed below.
The South African National Defence Force (SANDF), by its very nature, has a
unique relationship with its enlisted soldiers in the permanent force. As already
mentioned, soldiers are excluded from the ambit of the LRA. In SANDU 199959
the Constitutional Court held that soldiers were ‘akin’ to employees and that
the provisions of the Defence Act and its regulations that prohibited soldiers
from belonging to trade unions were unconstitutional and invalid. The minister
was therefore obliged to establish a collective bargaining structure for the
Defence Force and to publish regulations to achieve this end. The SANDU pro-
posed amendments to the regulations. When the minister failed to amend the
regulations, the SANDU approached the High Court on two separate occasions,
in each case mounting a constitutional challenge.60 In the case known com-
monly as SANDU I, it was held that the SANDF was not obliged to bargain col-
lectively with the SANDU and that the withdrawal of the SANDF from the nego-
tiations was reasonable. The court held that section 23(5) of the Constitution
does not impose an obligation upon an employer to bargain collectively with a
trade union and neither was there any legislative duty to do so.
In SANDU II and SANDU III,61 however, the High Court held that section 23(5)
grants a trade union the right to engage in collective bargaining with an em-
ployer and in addition places a duty on the employer to bargain with the trade
union.
In SANDU III, the union sought an interdict restraining the SANDF from imple-
menting and proceeding with a transformation and restructuring policy without
consulting and negotiating with the SANDU. The SANDU declared a dispute in
the Military Bargaining Council. The union referred the dispute to arbitration. The
SANDF took the view that there was no duty to bargain and it could unilaterally
implement the policy in the public interest. The High Court held that there was a
duty to bargain with SANDU and restrained the SANDF from implementing the
policy until the outcome of the arbitration in the Military Bargaining Council. All
three cases went on appeal.
The Supreme Court of Appeal heard the three appeals simultaneously.
Conradie JA considered the provisions of the Constitution and observed that
the expression ‘right to engage in collective bargaining’ in section 23(5) is open
to more than one interpretation.62 He referred to section 233 of the Constitution
(which requires a court, when interpreting any legislation, to prefer any reason-
able interpretation of the legislation that is consistent with international law to

________________________

59 SA National Defence Union v Minister of Defence & another (SANDU 1999) (fn 9).
60 SA National Defence Union v Minister of Defence & others (2003) 24 ILJ 1495 (T) (SANDU I)
and SA National Defence Union v Minister of Defence & others (2003) 24 ILJ 2101 (T) (SANDU
II).
61 SA National Defence Union v Minister of Defence & others case no. 15790/2003, unreported
(SANDU III).
62 Minister of Defence & others v SA National Defence Union & others (2006) 27 ILJ 2276 (SCA)
at para 5.
The constitutional framework 51

any alternative interpretation that is inconsistent with international law) and

found that there is much in international law that is helpful in interpreting section
23(5) of the Constitution. Conradie JA mentioned in particular the two ILO Con-
ventions on Freedom of Association and Protection of the Right to Organise, and
the Right to Organise and Collective Bargaining Convention. He concluded that
a distinct preference for voluntarism, for a system that functions without reliance
on a legally enforceable right to bargain, emerges from these provisions, and
this is reinforced by the Collective Bargaining Convention 1981.
Conradie JA concluded:
On this part of the case, my conclusion is that the Constitution, while recognizing
and protecting the central role of collective bargaining in our labour dispensation,
does not impose on employers or employees a judicially enforceable duty to bar-
gain. It does not contemplate that, where the right to strike is removed or restricted,
but is replaced by another adequate mechanism, a duty to bargain arises.63
In an appeal to the Constitutional Court against both judgments, O’Regan J
confirmed the decisions in NAPTOSA and others v Minister of Education, Western
Cape, and others64 and Minister of Health & another NO v New Clicks SA (Pty)
Ltd and others (Treatment Action Campaign and another as amici curiae)65
and held that where legislation is enacted to give effect to a constitutional
right, a litigant may not bypass that legislation and rely directly on the Consti-
tution without challenging the legislation as falling short of the constitutional
standard.66 The Constitutional Court was not therefore required to determine
whether section 23(5) conferred a justiciable duty to bargain collectively on
employers and trade unions and neither endorsed nor rejected the approach
to section 23(5) of the Constitution adopted by the Supreme Court of Appeal.67
In an important aside, O’Regan J noted that should section 23(5) establish a
justiciable duty to bargain enforceable by either employers or unions outside
the legislative framework to regulate that duty, the court may be drawn into a
range of controversial industrial relations issues and that this would be generally
undesirable.68

6 Section 23(6): Union security arrangements

The LRA permits two forms of union security arrangements. The first is the closed
shop, regulated by section 26; the second is the agency shop, regulated by
section 25. In the former case, a majority union or unions making up a majority in
a workplace, may conclude a collective agreement requiring all employees

________________________

63 Ibid at para 25. See further Grogan ‘No Duty to Bargain: Military Union Back in Line’ (2007)
23(2) Employment Law at 3–10.
64 2001 (2) SA 112 (C).
65 2006 (2) SA 311 (CC).
66 SA National Defence Union v Minister of Defence & others [2007] 9 BLLR 785 (CC) (SANDU
2007) at paras 50–51.
67 Ibid at paras 53–56.
68 Ibid at para 55.
52 Law@work

covered by the agreement to be members of the trade union. In the case of an

agency shop, membership of the trade union is not obligatory, but those em-
ployees eligible for membership of the trade union but who elect not to be-
come members pay an agency fee.
Closed shops were relatively common at the time that the LRA was drafted;
agency shops less so. Both sections 25 and 26 contained detailed requirements
relating to the union security arrangement concerned. These are discussed in
chapter 14. These requirements are designed to limit the prospect of a constitu-
tional challenge on the basis of an infringement of the right to freedom of asso-
ciation. There is a debate as to whether union security arrangements constitute
an infringement of the right to freedom of association (expressed in the nega-
tive form as a right not to associate) – some jurisdictions have held that they
do;69 others argue that union security arrangements advance workplace de-
mocracy, and in the case of agency shops, avoid the ‘free-riders’ who enjoy
the fruits of collective bargaining without contributing to the costs.
There has been no direct challenge to either form of union security arrange-
ment sanctioned by the LRA, and the question of their reasonableness and
justifiability has thus not arisen.

7 Limitation of rights
The rights contained in the Bill of Rights are not absolute, and may be limited in
terms of section 36(1) of the Constitution. This section provides that rights may
be limited ‘only in terms of a law of general application to the extent that the
limitation is reasonable and justifiable in an open and democratic society
based on human dignity, equality and freedom’.
Rights may not therefore be limited for any reason but neither are all infringe-
ments of fundamental rights unconstitutional.70 In order for a limitation to be
justifiable, it has been suggested that ‘the limitation must serve a purpose that
most people would regard as compellingly important’.71
It is generally accepted that the courts will distinguish the interpretation of the
right from the limitation of the right and will do this by asking whether the right in
question in the Bill of Rights has been infringed by law or by conduct. If the
answer is positive, then the question is whether the infringement can be justified
as a limitation of the right.72
A law of general application could include legislation, the common law and
customary law,73 but would probably exclude policy or practice. The state is the

________________________

69 See, eg, Young, James and Webster v United Kingdom (1981) 4 EHHR 38.
70 See further Currie and De Waal The Bill of Rights Handbook (2013) at 151.
71 Ibid at 151. See also Myerson Rights Limited (1997) at 36–43 as quoted in Currie and De
Waal (ibid).
72 Currie and De Waal (fn 70) at 153. See SATAWU v Garvas (fn 47).
73 Note that while delegated legislation may be ‘law’ for the purpose of s 36, it is accepted
that administrative action or conduct taken under the authority of law would not qualify.
The constitutional framework 53

author of most laws, but the courts, of course, also have the ability to develop
the common law. Currie and De Waal examine the meaning of ‘general appli-
cation’ and argue:
At the level of form, this means that the law must be sufficiently clear, accessible
and precise that those who are affected by it can ascertain the extent of their
rights and obligations. On a substantive level it means that, at a minimum, the law
must apply impersonally, it must apply equally to all and it must not be arbitrary in
its application . . . s 36 therefore prevents laws that have personal, unequal or arbi-
trary application from qualifying as legitimate limitations of rights.74
Section 36 also lists factors that may be relevant and should be taken into
account when a court considers the reasonableness and justifiability of the limi-
tation. These include:75
l the nature of the right;
l the importance of the purpose of the limitation;
l the nature and extent of the limitation;
l the relation between the limitation and its purpose; and
l less restrictive means to achieve the purpose.
In S v Makwanyane, the Constitutional Court examined all these factors when
discussing the proportionality test:
The limitation of constitutional rights for a purpose that is reasonable and necessary
in a democratic society involves the weighing up of competing values, and ultim-
ately an assessment based on proportionality . . . In the balancing process, the
relevant considerations will include the nature of the right that is limited, and its im-
portance to an open and democratic society based on freedom and equality, the
purpose for which the right is limited and the importance of that purpose to such a
society; the extent of the limitation, its efficacy, and . . . whether the desired ends
could reasonably be achieved through other means less damaging to the right in
question.76
The first direct challenge to the constitutionality of a provision of the LRA to be
considered by the Constitutional Court was dismissed on the basis of an appli-
cation of the limitations clause. In Association of Mineworkers & Construction
Union & others v Chamber of Mines of SA & others,77 a minority union con-
tended that section 23(1)(d) of the LRA, which permits the extension to non-
parties of collective agreements concluded with majority unions, infringed the
right to freedom of association, the right to collective bargaining and the right
to strike. The court held that the limitation on rights imposed by section 23(1)(d)
was reasonable and justifiable.78

________________________

74 Currie and De Waal (fn 70) at 156. See also S v Makwanyane 1995 (3) SA 391 (CC) and
President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC).
75 Currie and De Waal (fn 70) at 162–171.
76 S v Makwanyane (fn 74) at para 104.
77 Fn 9.
78 See ch 14 and ch 15.
54 Law@work

8 Jurisdictional issues
When a litigant alleges that there has been an infringement of a constitutional
right the court is required to ascertain if the right infringed is a constitutional mat-
ter. This applies equally when there is an allegation that section 23(1) or the right
to fair labour practices has been infringed.
In S v Boesak79 the Constitutional Court stated:
If regard is had to the provisions of s 172(1)(A) and s 167(4)(a) of the Constitution,
constitutional matters must include disputes as to whether any law or conduct is
inconsistent with the Constitution, as well as any issues concerning the status,
powers and functions of an organ of State. Under s 167(7), the interpretation, appli-
cation and upholding of the Constitution are also constitutional matters. So too,
under s 39(2), is the question whether the interpretation of any legislation or the
development of the common law promotes the spirit, purport and objects of the
Bill of Rights . . . the jurisdiction vested in the Constitutional Court to determine con-
stitutional matters and issues connected with decisions on constitutional matters is
clearly an extensive jurisdiction.
In regard to labour matters specifically, the Constitutional Court has said:
[14] The LRA was enacted ‘to give effect to and regulate the fundamental rights
conferred by section 27 of the Constitution’. In doing so the LRA gives con-
tent to s 23 of the constitution and must therefore be construed and applied
consistently with that purpose. Section 3(b) of the LRA underscores this by re-
quiring that the provisions of the LRA must be interpreted ‘in compliance with
the constitution’. Therefore the proper interpretation and application of the
LRA will raise a constitutional issue . . .
[16] What must be stressed here is the point already made, namely, that we are
dealing with a statute which was enacted to give effect to s 23 of the con-
stitution, and as such, it must be purposively construed. If the effect of this
requirement is that this court will have jurisdiction in all labour matters that is a
consequence of our constitutional democracy. The Constitution ‘is the
supreme law, and all law, including the common law, derives its force from
the constitution and is subject to constitutional control’. Our constitutional
democracy envisages the development of a coherent system of law that is
shaped by the Constitution.80
In summary, ‘constitutional matters’ extend to:
l any challenge to the validity of the exercise of public power;81
l the interpretation, application and upholding of the Constitution;82
l the interpretation of any legislation and development of the common law or
customary law;83 and

________________________

79 2001 (1) BCLR 36 (CC).

80 NEHAWU v University of Cape Town & others (fn 16); footnotes omitted.
81 Pharmaceutical Manufacturers Association of SA: In re: Ex parte President of the Republic
of South Africa 2000 (2) SA 674 (CC) at para 20.
82 S 167(7).
83 S 39(2).
The constitutional framework 55

l the interpretation and application of legislation enacted to give effect to

constitutional rights, or in compliance with constitutional obligations.84
Disputes of fact are not constitutional matters, nor is the interpretation of a
statute, unless the provision is capable of more than one reasonable construc-
tion, one being more constitutionally compliant than the other.85 It does not
necessarily mean that because a matter is a constitutional matter, that the
Constitutional Court will intervene; it does so when the interests of justice require
that it does.86 The Constitutional Court has indicated that the fact that the
Labour Court and Labour Appeal Court are specialist courts to resolve disputes
in the field of labour relations is a factor relevant to the interests of justice, but
that it would be ‘shirking its duty’ were it to hold that it would never entertain
appeals from the Labour Appeal Court.87 More recently, the court held that the
Labour Court and Labour Appeal Court are owed ‘special consideration’ since
they operate as specialist tribunals.88

________________________

84 See NEHAWU v University of Cape Town & others (fn 16) at para 14. In Fredericks & others v
MEC for Education and Training, Eastern Cape & others (2002) 23 ILJ 81 (CC), the court
held that: ‘The characterisation of a claim as a constitutional matter is a separate con-
sideration from that of the merits of the claim . . . Even if a case does raise constitutional
matters the assessment whether the case should be heard at all . . . must be in the “in-
terests of justice” . . . Not every matter raises a constitutional question that is worthy of
attention’.
85 Currie and De Waal (fn 70) at 99.
86 For example, in Mbatha v University of Zululand 2014 (2) BCLR 123 (CC) the majority
decision of the court held that because the dispute was about a purely factual issue
(namely, whether the applicant became an employee of the Zulu Dictionary Project or
remained an employee of the University) no constitutional issue was involved. As the case
had ‘no point of law of general public importance requiring the consideration of the Con-
stitutional Court’ leave to appeal was refused. The court also stressed that it would not
hear appeals from the LAC unless important issues of principle were raised.
87 NUMSA & others v Bader Bop (Pty) Ltd & another [2003] 2 BLLR 103 (CC) at para 20.
88 Association of Mineworkers & Construction Union & others v Chamber of Mines & others
(fn 9) at para 37.
4
The elusive employee and
non-standard employment

Page
1 Introduction .................................................................................................... 59
2 Origins of the discourse ................................................................................. 60
3 International guidelines ................................................................................. 61
4 Identifying the elusive ‘employee’ .............................................................. 62
4.1 Introduction ............................................................................................ 62
4.2 Interpreting the definition of ‘employee’ ........................................... 63
4.3 Presumption of employment ................................................................ 65
4.4 Social security legislation ...................................................................... 68
5 Regulation of non-standard employment .................................................. 70
5.1 Introduction ............................................................................................ 70
5.2 Temporary employment services ........................................................ 70
5.2.1 Background ................................................................................ 70
5.2.2 Protection of TES employees in terms of the LRA .................... 71
5.2.3 The Employment Services Act of 2014 ..................................... 75
5.3 Fixed-term employees .......................................................................... 77
5.4 Part-time employees ............................................................................. 79
6 Casual work .................................................................................................... 81
7 Unauthorised and illegal work ...................................................................... 81
8 Who is the employer?.................................................................................... 83

57
The elusive employee and non-standard employment 59

1 Introduction
The protection extended by labour statutes traditionally applies only to persons
who are defined as ‘employees’. The courts often used the characteristics of
the common-law contract of employment in interpreting who is, and who is not,
an employee. However, as mentioned in the Introduction to the book, traditional
conceptions of employment are being contested. Employers often seek flexible
working arrangements that, on the face of it, establish working arrangements
that go beyond what has traditionally been understood as the contract of
employment and the associated protection offered by labour law.
Although the borderline between employment and commercial relationships
was difficult to establish in the traditional era of work,1 the changed nature of
employment poses an even greater challenge. The standard employee is no
longer full-time, male and employed by the same employer during normal work-
ing hours from Monday to Friday as was the case just a few decades ago.2 New
forms of worker have emerged, such as the ‘e-lancer’, the ‘zero hour’ contract
worker and those who participate in the platform economy, based at home or
on the road.3 In addition, atypical work, such as the triangular labour broker
relationship (what the LRA refers to as a ‘temporary employment service’) and
fixed-term and part-time work, has flourished. These modern work relationships
are attributable mainly to employers’ quest for flexible working arrangements,
technological innovation and the resultant shift to service-based economies.
This chapter covers the statutory definition of ‘employee’, the tests to identify
who is an ‘employee’ for the purposes of labour legislation, protection extended
to employees engaged in non-standard forms of work, and persons performing
unauthorised work. Chapter 5 covers the interaction between the common-law
contract of employment and the rights established by the BCEA.

________________________

1 Brassey ‘The Nature of Employment’ (1990) 11 ILJ 889 at 893 refers to National Labor Re-
lations Board v Hearst Publications (1944) 322 US 111 at 121 where an American court said
more than 60 years ago that ‘[f]ew problems in the law have given greater variety of appli-
cation and conflict in result than cases arising in the borderline between what is clearly an
employer-employee relationship and what is clearly one of independent entrepreneurial
dealing’.
2 Thompson ‘The Changing Nature of Employment’ (2003) 24 ILJ 1793 at 1798.
3 Eg the Uber driver. See Mokoena ‘Are Uber Drivers Employees? A Look at Emerging Busi-
ness Models and whether they can be Accommodated by South African Labour Law’
(2016) 37 ILJ 1574, who argues that Uber drivers may very well be classified as employees in
South Africa. See also Mokoena ‘Are Uber Drivers Employees or Independent Contract-
ors? A Comparative Analysis’ (2018) 39 ILJ 1453. In Uber Technology Services (Pty) Ltd v
National Union of Public Service and Allied Workers (NUPSAW) & others [2018] 4 BLLR 399
(LC) the Labour Court reviewed and set aside an arbitration award which held that Uber
drivers were employees for the purposes of the LRA. The judgment discusses the Uber
business model at some length but given the basis on which the award was set aside, the
court was not called on to decide whether Uber drivers were ‘employees’ as defined.
60 Law@work

2 Origins of the discourse

The debate on the definition of employment is not new. Not long after South
Africa entered its own era of industrialisation, the courts started grappling with
the definition of ‘employee’ contained in the labour legislation of the day.4 Ini-
tially, the courts relied on the existence of a common-law contract of employ-
ment to determine the boundaries of the term ‘employee’.
In Colonial Mutual Life Assurance Society v MacDonald 5 the former Appellate
Division had to consider whether an insurance agent was an employee. The
court held that ‘the contract between master and servant is one of letting and
hiring of services (locatio conductio operarum) whereas the contract between
the principal and a contractor is the letting and hiring of some definite piece of
work (locatio conductio operis)’.6
In later years, in Smit v Workmen’s Compensation Commissioner,7 the same
court summarised a list of factors that, at common law, it considered indicative
of the difference between a contract of employment and one of independent
contracting. These factors are listed for comparison in tabular form:

Contract of employment Independent contractor

The object of the contract is to render
personal services.
The employee must perform services
personally.
The employer may choose when to
make use of the services of the
employee.
The employee is obliged to carry out
lawful commands and instructions of
the employer.
The object of the contract is the
performance of specified work or
achievement of a specified result.
The contractor may perform through
others.
The contractor must perform work (or
produce a result) within the period
fixed by contract.
The contractor is subservient to the
contract, but does not render service
under the supervision or control of the
employer.

continued
________________________

4 S 24 of the Industrial Conciliation Act 11 of 1924 defined an ‘employee’ to mean ‘any

person engaged by an employer to perform, for hire or reward, manual, clerical or super-
vision work in any undertaking, industry, trade or occupation to which this Act applies, but
shall not include a person whose contract of service or labour is regulated by any Native
Pass Laws and Regulations’.
5 1931 AD 412.
6 At 433. In R v AMCA Services 1959 (4) SA 207 (A) it was held that ‘all the Western legal
systems seem on this subject to go back to the Roman law and today they follow similar
lines’ (at 211H). The terms ‘master’ and ‘servant’ are reminiscent of a bygone era and
have been replaced with the terms ‘employer’ and ‘employee’ respectively. In De Beer v
Thompson & Son 1918 TPD 70 it was held that ‘employer’ and ‘employee’ are synonymous
with ‘master’ and ‘servant’, respectively, but that the former are ‘better sounding to
democratic ears’ (at 76).
7 1979 (1) SA 51 (A).
The elusive employee and non-standard employment 61

Contract of employment Independent contractor

The contract terminates on the death of
the employee.
The contract terminates on the expiry of
a period of service in the contract.
The contract does not necessarily
terminate on the death of the
contractor.
The contract terminates on the
completion of work or on the
production of a specified result.

Although these factors remain influential in determining the scope of the term
‘employee’ today, the emphasis in recent years has shifted from the contract of
employment to the idea of an employment relationship as the basis for legal
regulation.8

3 International guidelines
In 2006, the ILO adopted the Employment Relations Recommendation, 2006
(No. 198). The Recommendation seeks to provide member states with guidance
on how to establish the existence of the employment relationship and deals
particularly with what it terms ‘disguised employment’, or agreements that are
cast in terms that on the face of it establish a relationship other than employ-
ment, but which in reality are employment relationships.
Recommendation 198 provides that member states should clearly define, in
their national law and practice, which workers are to be covered and protected
by labour laws.9 It encourages members to define the concept of the employ-
ment relationship rather than the contract of employment.10
Recommendation 198 also suggests that member states should consider the
possibility of adopting specific indicators11 of the existence of an employment
relationship and should ideally, in their domestic legislation, provide for a statu-
tory presumption that an employment relationship exists when one or more of
the defined indicators are present.12 In what follows it will become apparent

________________________

8 See eg State Information Technology Agency (SITA) (Pty) Ltd v CCMA & others [2008] 7
BLLR 611 (LAC); Le Roux ‘The Meaning of “Worker” and the Road Towards Diversification:
Reflecting on Discovery, SITA and “Kylie”’ (2009) 30 ILJ 49. However, see Universal Church
of the Kingdom of God v Myeni & others [2015] 9 BLLR 918 (LAC) where it was held that
the presumption of who is an employee in terms of s 200A of the LRA only applies if there is
some form of contractual agreement between the parties.
9 Art 1 of Recommendation No. 198.
10 Bosch and Christie ‘Are Sex Workers Employees?’ (2007) 28 ILJ 804 at 808.
11 Art 9 of Recommendation No. 198. The suggested indicators include whether the work is
carried out under the instructions and control of another party; the worker is integrated
into the organisation of the enterprise; the work is to be done mainly for the benefit of the
other party; the work is carried out personally by the worker; the work is performed within
specified working hours; and the work requires the provision of materials, machinery and
tools by the party who requests the work to be done.
12 Art 11(b) of Recommendation No. 198.
62 Law@work

that South African labour legislation has to a large extent incorporated the pro-
visions of Recommendation 198.

4 Identifying the elusive ‘employee’

4.1 Introduction
The LRA, BCEA, EEA and SDA all include a relatively wide and non-descriptive
definition of ‘employee’ borrowed from pre-1994 legislation.13 As a result, the
courts have defined employment by referring to common-law indicators of em-
ployment developed in earlier cases.14 To complicate matters further, the defin-
ition of ‘employee’ contained in the UIA, OHSA and COIDA differs from the
definitions contained in the principal labour statutes.
During 2002, amendments to the LRA and BCEA introduced a rebuttable pre-
sumption of employment for those claiming to be employees.15 In addition,
NEDLAC has issued a code entitled the ‘Code of Good Practice: Who is an
Employee?’ (referred to in this chapter as ‘the code’) to assist parties in deter-
mining the existence of an employment relationship.16 The code was gazetted
at the end of December 2006, less than a year after ILO Recommendation 198
was adopted.17 In 2019, the National Minimum Wage Act (NMWA) 9 of 2018
introduced a definition of ‘worker’. A ‘worker’ is defined to mean ‘any person
who works for another and who receives, or is entitled to receive, any payment
for that work whether in money or in kind’.18
The interpretative framework would not be complete without a reference to
the constitutional milieu within which the definition of ‘employee’ must be con-
strued. The courts appear to be increasingly willing to depart from the strict statu-
tory definition of ‘employee’ and to interpret agreements and legislation more
inclusively and purposively.19

________________________

13 See, eg, s 1(1) of the 1956 LRA and s 1(1) of the former BCEA of 1983.
14 Liberty Life Association of Africa Ltd v Niselow (1996) 17 ILJ 673 (LAC). See eg SA Broad-
casting Corporation v McKenzie [1999] 1 BLLR 1 (LAC) where the criteria set out in Smit v
Workmen’s Compensation Commissioner (fn 7) were used for the purposes of the LRA.
15 The presumption has not been included in all labour legislation.
16 GNR 1774 in GG 29445, dated 1 December 2006. The code is published at (2007) 28 ILJ 96.
17 The code gives effect to s 200A(4) of the LRA which states that ‘NEDLAC must prepare
and issue a Code of Good Practice that sets out guidelines for determining whether per-
sons, including those earning in excess of the amount determined in subsection (2) are
employees’.
18 S 1 of the NMWA.
19 SA National Defence Union v Minister of Defence & another (1999) 20 ILJ 2265 (CC); Wyeth
SA (Pty) Ltd v Manqele & others [2005] 6 BLLR 523 (LAC); State Information Technology
Agency (SITA) (Pty) Ltd v CCMA & others (fn 8); Discovery Health v CCMA [2008] 7 BLLR
633 (LC); ‘Kylie’ v CCMA & others [2010] 7 BLLR 705 (LAC). See also Benjamin ‘An Accident
of History: Who Is (and Who Should Be) an Employee under South African Labour Law’
(2004) 25 ILJ 787 at 789.
The elusive employee and non-standard employment 63

4.2 Interpreting the definition of ‘employee’

The LRA defines an ‘employee’ as:
(a) any person, excluding an independent contractor, who works for another per-
son or for the State and who receives, or is entitled to receive, any remuner-
ation; and
(b) any other person who in any manner assists in carrying on or conducting the
business of an employer . . .20
The same definition has been included in the BCEA, the EEA and the SDA. As we
noted above, the definition of ‘employee’ is the starting point in determining the
nature and scope of the protection afforded by these statutes. For example,
the LRA states that ‘every employee’ has the right not to be unfairly dismissed
and not to be subjected to an unfair labour practice.21 Similarly, the BCEA stipu-
lates that an employer may not require or permit ‘an employee’ to work more
than 45 hours in any week.22
The definition of ‘employee’ expressly excludes ‘independent contractors’.23
The origins of this exclusion can be traced to early cases that dealt with the
determination of who is an employee.24 In these cases the contract of employ-
ment and the independent-contractor agreement were distinguished from
each other. The code to the LRA accepts the following difference between an
employee and an independent contractor: an employee ‘makes over his or her
capacity to produce to another’ whereas an independent contractor is some-
one ‘whose commitment is the production of a given result’.25
Part (b) of the definition of ‘employee’ refers to ‘any other person who in any
manner assists in carrying on the business of an employer’. Read in isolation, this
is a broad description and could conceivably extend the statutory conception
of employment beyond what would ordinarily be considered to be the parties
to an employment relationship. However, the courts have limited the scope of
the definition by reading part (a) of the definition conjunctively with part (b),
and by applying common-law criteria to determine the existence of an employ-
ment relationship.26
________________________

20 S 213 of the LRA.

21 S 185 of the LRA.
22 S 9(1) of the BCEA.
23 Benjamin (fn 19) at 789 mentions that the ‘terminology of contract is introduced through
the exclusion of “independent contractors”’. In Phaka & others v Bracks & others [2015] 5
BLLR 514 (LAC), the LAC confirmed that in an instance where employees engaged in an
owner-driver scheme, their contracts took the form of locatio conductio operis and the
drivers were excluded from the scope of the LRA on the grounds that they are independent
contractors.
24 See the discussion of Colonial Mutual Life Assurance Society v MacDonald (fn 5) at 433
and Smit v Workmen’s Compensation Commissioner (fn 7).
25 Item 34 of the code. This description was cited with approval in Niselow v Liberty Life
Association of Africa Ltd (1998) 19 ILJ 752 (SCA) at 753J–754A.
26 Oak Industries (SA) (Pty) Ltd v John NO (1987) 8 ILJ 756 (N); Borcherds v CV Pearce &
Sheward t/a Lubrite Distributors (1991) 12 ILJ 383 (IC). In Liberty Life Association of Africa
Ltd v Niselow (fn 14) at 683A–B it was held that the ‘latter part [of the definition] in particu-
lar may seem to extend the concept to employment far beyond what is commonly under-
stood thereby. To adopt a literal interpretation though would clearly result in absurdity’.
64 Law@work

At common law, the courts have developed a number of tests for distinguish-
ing between employees and independent contractors. The most prominent of
these tests are the supervision-and-control test, the organisation or integration test
and the economic-dependency test.27 As has already been mentioned, the Smit
case identified a number of criteria (set out in tabular form, above) that may be
considered in determining who is an employee but the court ultimately applied
the ‘dominant impression test’. The court accepted that there is no single factor
that independently and conclusively determines the existence of an employ-
ment relationship. A court should therefore consider all aspects of the relation-
ship and determine the existence or otherwise of an employment relationship
using the ‘dominant impression’ gained consequent on its evaluation.28
The factors mentioned in the Smit judgment are not the only criteria that may
be considered. The code notes that the fact that a person receives fixed pay-
ment at regular intervals irrespective of the outcome of the services could be
indicative of the existence of an employment relationship.29 Similarly, the fact
that a person belongs to the same pension or medical fund as the undisputed
employees of the employer can be an indication of the employment relation-
ship.30 The provision of training can likewise be indicative of the existence of such
a relationship.31
The statutory definitions in the LRA and BCEA are silent on the question of when
a person recruited into employment becomes an ‘employee’.32 In Wyeth SA
(Pty) Ltd v Manqele & others33 the argument was raised that the term ‘works for
another person’ is cast in the present tense in the definition of ‘employee’ and
that an applicant therefore becomes an employee only when he or she actually
begins working for an employer.34 Taking account of section 23 of the Consti-
tution which affords ‘everyone’ the right to fair labour practices, the Labour
Appeal Court adopted a purposive approach and concluded that persons
who had signed contracts of employment but who had not yet commenced
work, were ‘employees’ for the purposes of the LRA.35
________________________

27 See Liberty Life Association of Africa Ltd v Niselow (fn 14); SA Broadcasting Corporation v
McKenzie (fn 14); Denel (Pty) Ltd v Gerber [2005] 9 BLLR 849 (LAC); Hydraulic Engineering
Repair Services v Ntshona & others (2008) 29 ILJ 163 (LC).
28 See Linda Erasmus Properties Enterprises (Pty) Ltd v Mhlongo & others (2007) 28 ILJ 1100
(LC) where the ‘dominant impression’ test was used to establish that an estate agent was
an employee.
29 Item 45 of the code.
30 Item 46 of the code.
31 Item 49 of the code.
32 S 9 of the EEA provides that ss 6, 7 and 8 of the EEA (which incorporate the principal pro-
tections against unfair discrimination) apply to applicants for employment. See Le Roux
‘The Employment Equity Bill: An Update’ (1998) CLL (7) 91.
33 [2005] 6 BLLR 523 (LAC).
34 See also Herbst v Elmar Motors (1999) 20 ILJ 2465 (CCMA) at 2468J–2469C and Whitehead
v Woolworths (Pty) Ltd [1999] 8 BLLR 862 (LC) where it was held that an applicant only
becomes an employee when he or she actually starts working for the employer.
35 In Wyeth (fn 33 at para 30 of the judgment) the Labour Appeal Court relied on NEHAWU v
University of Cape Town & others (2003) 24 ILJ 95 (CC) and held that the ‘LRA must there-
fore be purposively construed in order to give effect to the Constitution’.
The elusive employee and non-standard employment 65

In State Information Technology Agency (SITA) (Pty) Ltd 36 the Labour Appeal
Court confirmed that the focus has finally shifted from the formal contract of
employment to the existence of an employment relationship. In this case, an
applicant claiming unfair dismissal worked for a front company of the Defence
Force. The agreement between the front company and the Defence Force was
terminated. However, the applicant’s services were still needed and he contin-
ued to render services through a conduit close corporation. The applicant was
dismissed when the Defence Force terminated the project on which the em-
ployee was engaged due to a lack of funds. In its judgment, the court did not
concern itself with the existence of a valid contract of employment but enquired
into the existence of an employment relationship. In finding that the applicant
was an ‘employee’ as defined in the LRA, the court identified the following
reduced template as the primary criteria for the employment relationship:
l an employer’s right to supervision and control;
l whether the employee forms an integral part of the organisation with the
employer; and
l the extent to which the employee was economically dependent upon the
employer.37

4.3 Presumption of employment

As previously noted, the nature of work has changed radically, and employment
in the post-apartheid South African labour market has been characterised by
‘casualisation’ and ‘externalisation’.38 This entails a process whereby employers
shape employment relations to informalise working arrangements and thus
deprive employees of their basic statutory rights. It was partly in response to
these developments that the rebuttable presumption of employment was in-
cluded in the LRA and BCEA in 2002,39 but this presumption applies only to per-
sons earning below a prescribed threshold amount.40
The presumption operates as follows: in any proceedings in terms of the LRA
and the BCEA in which any person alleges that they are an employee, that per-
son is presumed to be an employee if they render services to another person

________________________

36 Fn 8.
37 See para 12 of State Information Technology Agency (SITA) (Pty) Ltd v CCMA & others
(fn 8). See also Pam Golding Properties (Pty) Ltd v Erasmus & others (2010) 31 ILJ 1460 (LC)
where these criteria were applied. However, see Universal Church of the Kingdom of God
v Myeni & others (fn 8) where it was held that the presumption of who is an employee in
terms of s 200A of the LRA only applies if there is some form of contractual agreement
between the parties.
38 Theron ‘Employment is Not What it Used to Be’ (2003) 24 ILJ 1247 at 1271. See also Theron
‘The Shift to Services and Triangular Employment: Implications for Labour Market Reform’
(2008) 29 ILJ 1.
39 See s 200A of the LRA and s 83A of the BCEA.
40 The amount is determined from time to time by the Minister of Employment and Labour
and is currently fixed at R205 433,30 per annum. The presumption has not been included in
other labour legislation such as the EEA, SDA, UIA, OHSA or COIDA.
66 Law@work

and any one of seven listed factors is present in the relationship.41 The factors
that trigger the presumption are:
(a) the manner in which the person works is subject to the control or direction
of another person;
(b) the person’s hours of work are subject to the control or direction of another
person;
(c) in the case of a person who works for an organisation, the person forms part
of that organisation;
(d) the person has worked for that other person for an average of at least
40 hours per month over the last three months;
(e) the person is economically dependent on the other person for whom he or
she works or renders services;
(f) the person is provided with the tools of trade or work equipment by the
other person; or
(g) the person only works for or renders service to one person.
The presumption applies regardless of the form of the contract, and therefore
gives effect to ILO Recommendation 198. Recall that in terms of the Recom-
mendation, the focus should be on the facts relating to the performance of
work, rather than the character and content of the contractual arrangement
between the parties.42
The presumption does not alter the statutory definition of ‘employee’. In other
words, the fact that a person satisfies one or more of the seven factors listed in
the presumption does not mean that the person is in fact an employee.43 Nor-
mally, a person claiming to be an employee bears the onus of proving that he
or she is an employee. The presumption is merely an ‘evidentiary device calcu-
lated to switch the onus of proof of employment’ in circumstances when any
one of the indicators is established.44 If the party alleged to be an employer is
unable to discharge the negative onus and convince the decision-maker (usu-
ally a court or an arbitrator) that the applicant is not an employee, the decision-
maker is bound to find that the applicant is an employee as defined.
The fact that a person earns more than the threshold amount does not render
the guidelines contained in the presumption entirely irrelevant, however. The
code provides that:
In cases in which the presumption is not applicable, because the person earns
above the threshold amount, the factors listed in the presumption . . . may be

________________________

41 See Taljaard v Basil Read Estate (2006) 27 ILJ 861 (CCMA) and Schoeman v Longgrain CC
(2006) 27 ILJ 2496 (CCMA) where the operation of the statutory presumption was ex-
plained and applied.
42 Art 9 of Recommendation No. 198. Despite this, there must still be some form of contrac-
tual agreement between the parties before the presumption applies (Universal Church of
the Kingdom of God v Myeni & others (fn 8)).
43 Item 17 of the code.
44 Van Niekerk ‘Employees, Independent Contractors and Intermediaries’ (2005) CLL 15 (2)
11 at 12.
The elusive employee and non-standard employment 67

used as a guide for the purpose of determining whether a person is in reality in an

employment relationship or is self-employed.45
The code provides the following guidance on each of the factors.
l Being subject to the control or direction of another: The code provides that
‘[t]he employer’s right to control is likely to remain, in most cases, a signifi-
cant indicator in the employment relationship’.46 Despite this, the code
suggests that a court may find that there is an employment relationship
even if the employer exercises a relatively low degree of control over the
employee.47
l Hours of work subject to the control or direction of another: The code48 pro-
vides that this factor will generally be present if the contract permits the per-
son providing work to determine the times at which work is to be performed,
or if the person’s hours of work are specifically included as a term of the
contract.
l Forming part of an organisation: This factor is particularly relevant in relation
to corporate entities.49 An employee generally fits into an organisational
framework of reporting structures, attends weekly or monthly meetings and
strives to attain the organisation’s predetermined goals.50
l Working on average at least 40 hours per month over the previous three
months: The idea here is that the 40-hour provision is indicative of an ongoing
relationship as opposed to a once-off arrangement that is more typical of a
situation where a person is contracted to complete a particular piece of
work. The code states that in respect of a person who is still in the employ of
the employer, the 40 hours per month ‘is measured over the three months
prior to the case commencing’. If the relationship has terminated, ‘it should

________________________

45 Item 20 of the code. See also Denel (Pty) Ltd v Gerber (fn 27) where a similar approach
was followed.
46 Item 40 of the code. In Smit v Workmen’s Compensation Commissioner (fn 7) the former
Appellate Division held that the ‘right of supervision of control is one of the most important
indicia that a particular contract is in all probability a contract of service’.
47 Item 39 of the code. In Parliament of the RSA v Charlton [2010] 10 BLLR 1024 (LAC) it was
confirmed that members of parliament are not covered by the definition of employee.
Parliamentarians are elected to an office and are subject to their own code of conduct.
It could never be suggested that a member of parliament could have recourse to the
labour courts if he or she lost his or her seat after elections. In President of the Republic of
South Africa & others v Reinecke [2014] 5 BLLR 419 (SCA) the question of whether magis-
trates are entitled to remedies in terms of the LRA was avoided. See also Van Eck and
Diedericks ‘Are Magistrates without Remedy in terms of Labour Law?’ (2014) 35 ILJ 2700
where the authors argue that magistrates ought to be deemed to be engaged in an em-
ployment relationship.
48 Item 18(b) of the code.
49 Item 18(c) of the code.
50 Kahn-Freund ‘Servants and Independent Contractors’ (1951) 14 Modern Law Review 504
persuaded the English courts to accept the ‘organisation’ test rather than the ‘control’
test. Kahn-Freund had argued that the ‘control’ test was not sufficient when there was a
combination of managerial and technical elements in a contract of service and that this
test was better suited to identify the farm labourer and unskilled worker as an employee.
68 Law@work

be measured with reference to the three-month period preceding the ter-

mination’.51
l Economic dependence on the other person: An independent contractor or
genuinely self-employed person usually bears the element of risk of acquir-
ing his or her own work.52 Generally, an employee’s remuneration will be his
or her exclusive means of income. The code notes that part-time employees
are an exception to this general rule.53 Part-time employees are generally
free to render services to other employers during their off time, but this does
not affect their status as employee.
l Provision of tools of trade or work equipment: The code advises that ‘tools of
trade’ should not be interpreted in the narrow sense only to include trad-
itional implements like hammers, saws and spades. It could include modern
devices such as modems, computers, printers and cell phones54 and it also
makes no difference whether the presumed employee receives the equip-
ment free of charge.
l Working or providing services to one person only: In a similar vein as some of
the above indicators, this factor points towards permanence and exclusivity.
This factor will not come into play should the person work for another person
on a part-time basis after hours, irrespective of whether any other work per-
formed for another party involves ‘moonlighting’ or work that is performed in
contravention of the terms of the contract of employment.

4.4 Social security legislation

The code notes that the definitions of ‘employee’ in the UIA, COIDA and OHSA
differ from the definition in the LRA, BCEA, EEA and SDA. Despite these differ-
ences, the code mentions that there are sufficient similarities for the code to be
of considerable assistance in determining whom these statutes cover.55 Since
the code predates the enactment of the NMWA, it is not clear to what extent
the code will be helpful in determining the scope of the definition of ‘worker’.
Since that definition by and large comprises paragraph (a) of the definition of
‘employee’ in the LRA, the code will no doubt provide some guidance.
For the purposes of the UIA, an ‘employee’ is ‘any natural person who receives
remuneration or to whom remuneration accrues in respect of services rendered
or to be rendered by that person, but excludes any independent contractor’.56
This definition is helpful in so far as it does not differ substantially from the defin-
ition in the LRA and BCEA. However, the same cannot be said for the definitions
of ‘employee’ in other social security and occupational safety legislation.

________________________

51 Item 18(d) of the code.

52 Items 18(d) and (e) of the code.
53 Ibid.
54 Item 16 of the code.
55 Item 4 of the code.
56 S 1 of the UIA. For the definition of ‘dependant’ see ch 18 at para 4.2.2 ‘Statutory regu-
lation’.
The elusive employee and non-standard employment 69

For the purposes of the COIDA, an ‘employee’ is ‘a person who has entered
into or works under a contract of service or of apprenticeship or learnership,
with an employer, whether the contract is express or implied, oral or in writing
and whether the remuneration is calculated by time or work done, or is in cash
or in kind’.57 The definition also specifically excludes domestic employees em-
ployed as such in private households. The definition of ‘employer’ includes a
‘labour broker who against payment provides a person to a client for the ren-
dering of services . . . and for which work or services such person is paid by the
labour broker’.58 Considering the labour relations policy framework as a whole, it
has been suggested that the exclusion of domestic workers is untenable and
that they should be included under the definition of ‘employee’. The High Court
has now agreed that domestic workers should not be excluded from the defini-
tion.59
For the purposes of the OHSA, an ‘employee’ is defined in section 1 of the Act
to mean ‘any person who is employed by or works for an employer and who
receives or is entitled to receive any remuneration or who works under the
direction or supervision of an employer or any other person’. Even though this
definition does not specifically exclude independent contractors, it is generally
accepted that the OHSA does not apply to them.60 Another significant differ-
ence is that the OHSA definition of an ‘employer’ states that a labour broker or
temporary employment service is not deemed to be the employer for the pur-
poses of the Act: the client for whom the services are rendered is the employer
for the purposes of the obligations under the Act.61 This provision differs from the
legal construction regarding temporary employment services established in the
LRA as discussed below.
Despite the fact that the different statutory definitions may lead to confusion
and interpretational problems, the code at least endeavours, to the extent that
it is possible to do so, to harmonise the fragmented system by directing that,
when a definition of an ‘employee’ in these statutes is to be interpreted, the
terms of the code should be taken into account.62

________________________

57 S 1 of the COIDA.
58 See the discussion on temporary employment services at para 5.2 ‘Temporary employ-
ment services’. See also Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck (2007) 28
ILJ 307 (SCA).
59 Smit ‘Employment Injuries and Diseases and Disability in the Workplace’ in Olivier, Smit,
Kalula and Mhone Introduction to Social Security (2004) at 341. See also the Report of the
Committee of Enquiry into a Comprehensive System of Social Security for South Africa,
in Transforming the Present – Protecting the Future Draft Consolidated Report, at
http://welfare.gov.za/2002/May/pdf. Recently, in Mahlangu & another v The Minister of
Labour & others (Case no 79180/15 of 23 May 2019) the High Court declared that
s 1(xix)(v) of the COIDA ‘is unconstitutional and invalid to the extent that it excludes
domestic workers employed in private households from the definition of “employee”’.
60 Ibid.
61 S 1 of the OHSA and item 72 of the code.
62 Item 20 of the code.
70 Law@work

5 Regulation of non-standard employment

5.1 Introduction
Those making a living as casual workers, home workers, independent contract-
ors, fixed-term and part-time employees can all be categorised as ‘vulnerable’
or ‘atypical’.63 Despite the broad scope of these terms, the LRA identifies only
three categories of persons for improved protection – employees placed by
‘temporary employment services’ (TES) or labour brokers, fixed-term employees
and part-time employees.64 These categories of employees and the protections
afforded them have been clustered in Chapter IX of the LRA: ‘Regulation of
Non-standard Employment and General Provisions’.
The Employment Services Act of 2014 (ESA)65 makes provision for the regis-
tration of employment agencies and establishes job-creation schemes. The ESA
is discussed more fully in paragraph 5.2.3 below and in chapter 18.
In keeping with South Africa’s labour policy of ‘regulated flexibility’,66 the LRA
seeks to provide for a balance between the interests of employers and those
of employees.67 Provision is made for differentiated levels of protection in re-
spect of defined categories of non-standard workers. Lower-earning employees
and those working for larger and established undertakings are eligible for a
higher degree of protection than are employees whose earnings exceed the
threshold.

5.2 Temporary employment services

5.2.1 Background
Ever since the enactment of the LRA, employers have increasingly sought to
‘externalise’ work arrangements by creating triangular relationships.68 Accord-
ing to Benjamin, triangular relationships exist where ‘the recruitment, dismissal
and employment functions conventionally performed by the employer are
outsourced to an intermediary [or a TES]’.69 While the TES recruits, employs and

________________________

63 See, eg, Fourie ‘Non-Standard Workers: the South African Context, International Law and
Regulation by the European Union’ (2008) 14 PER 110–111; Smit and Fourie ‘Extending Pro-
tection to Atypical Workers, including Workers in the Informal Economy, in Developing Coun-
tries’ 2010 The International Journal of Comparative Labour Law and Industrial Relations 43.
64 See the discussion of ss 198A, 198B, 198C and 198D in paras 5.2.2, 5.3 and 5.4.
65 Act 4 of 2014.
66 Van Eck ‘Regulated Flexibility and the Labour Relations Amendment Bill of 2012’ (2013) De
Jure 600. See also Cheadle ‘Regulated Flexibility: Revisiting the LRA, and BCEA’ (2006) 27
ILJ 663.
67 Bosch ‘The Proposed 2012 Amendments Relating to Non-Standard Employment: What will
the New Regime Be?’ (2013) 34 ILJ 1631.
68 Theron (2003) (fn 38) at 1271 and Theron (2008) (fn 38) at 2.
69 Benjamin ‘Decent Work and Non-Standard Employees: Options for Legislative Reform in
South Africa: A Discussion Document’ (2010) 31 ILJ 845 at 847. Theron ‘Intermediary or Em-
ployer? Labour Brokers and the Triangular Employment Relationship’ (2005) 26 ILJ 618 men-
tions that the origin of this legal fiction remains a mystery.
The elusive employee and non-standard employment 71

places the workers, the client issues the instructions and supervises the employees
at its workplace but without incurring the responsibilities of an employer.
The issue of the regulation of triangular relationships has for a number of years
been the subject of fierce debates in South Africa and Namibia. COSATU,
amongst others, rallied for an outright ban on TESs, and in Namibia an initially
successful attempt to outlaw ‘labour hire’ was reversed on constitutional
grounds.70 Contrary to this trend, the ILO and the European Union have recog-
nised and implemented protective measures in respect of agency work.71 There
can be no doubt that since the adoption of the LRA in 1995 the regulation of
the TES industry in South Africa has been lacking in at least the following key
respects: the LRA did not extend shared responsibility to TESs and their clients in
disputes concerning unfair dismissal and unfair labour practices; the duration of
the placement of TES employees was not limited despite the fact that these
employees are employed by ‘temporary’ employment services; and TES em-
ployees were often uncertain about the identity of their actual employer.72
Chapter IX of the LRA seeks to rectify these problems in respect of certain cate-
gories of TES employees.

5.2.2 Protection of TES employees in terms of the LRA

Section 198 defines a TES as:
any person who, for reward, procures for or provides to a client other persons –
(a) who perform work for the client; and
(b) who are remunerated by the temporary employment service.
The LRA provides that the TES is the employer of the person whose services have
been procured for or provided to a client.73 This is despite the fact that the
employee may form part of the client’s organisation and in all probability works
under the client’s supervision and control. This does not mean that before the
amendments the client was in all circumstances relieved of the responsibilities
associated with the employer-employee relationship.74 The LRA stipulated that
________________________

70 See Africa Personnel Services (Pty) Ltd v Government of the Republic of Namibia & others
[2011] 1 BLLR 15 (NmS) and Van Eck ‘Revisiting Agency Work in Namibia and South Africa:
Any Lessons from the Decent Work Agenda and the Flexicurity Approach?’ (2014) 30 Int
Journal of Comp Lab Law and Ind Rel 49.
71 See the ILO Private Employment Agencies Convention 1997 (No. 181) and the Temporary
Agency Work Directive 2008/104/EC of the European Union Parliament and Council. See
also Van Eck ibid 49–52. See also Aletter and Van Eck ‘Employment Agencies: Are South
Africa’s Recent Legislative Amendments Compliant with the International Labour Organ-
isation’s Standards?’ (2016) SA Merc LJ 285.
72 In April v Workforce Group Holdings (Pty) Ltd t/a The Workforce Group (2005) 26 ILJ 2224
(CCMA) it was held that a client cannot be held responsible for any unfair conduct by the
TES. This was confirmed in National Union of Metalworkers of SA & others v SA Five Engin-
eering (Pty) Ltd & others (2007) 28 ILJ 1290 (LC).
73 This construction is also recognised by the ILO and in terms of European Union Directives.
See fn 71 above.
74 Peculiar as it may seem, both the TES and the client were jointly and severally liable for
unfair dismissals in terms of s 1(3)(d) of the 1956 LRA. In one of the drafts of the LRA, pro-
vision was also made for the inclusion of such joint liability in terms of the new Act. How-
ever, for reasons unknown, this was not included into the final version of the LRA.
72 Law@work

both the TES and the client were jointly and severally liable in respect of contra-
ventions arising from bargaining council agreements, arbitration awards per-
taining to conditions of service, and the provisions of the BCEA.
In addition, the LRA has always confirmed that a person who works as an in-
dependent contractor is not an employee of the TES or of the client.75 LAD
Brokers (Pty) Ltd v Mandla76 demonstrates how this provision has caused its own
interpretational difficulties. In this case, the question was which relationship deter-
mined whether a TES worker was an employee or independent contractor, the
relationship between the TES and the worker or that between the client and the
worker? The court concluded that the relationship between the worker and the
client was determinative on the basis of the common-law dominant-impression
test of the relationship as between the worker and the client. The court found
that the relationship between the worker and the TES was therefore one of
employment.
The introduction of section 198A has improved the position of TES employees
in a number of ways. First, a TES employee who earns below the threshold
amount determined in terms of the BCEA77 and who is not engaged in ‘tempor-
ary services’ is ‘deemed’ to be an employee of the client.78 An employee will
be considered to be performing ‘temporary services’ only if:
l the period of service does not exceed three months of employment;
l the work is rendered as a ‘substitute for an employee who is temporarily
absent’; or
l the work falls in any category or is for a period of time which is deemed to
be a temporary service by a bargaining council agreement or sectoral
determination.79
In other words, should a low-earning employee be placed with a client for a
period longer than three months, or should he or she no longer be substituting
for an employee of the client who was temporarily absent, the worker will be
considered an ‘employee’ of the client. Amongst other things, this will entitle the
employee to refer disputes concerning unfair dismissal and unfair labour prac-
tices against the client.80

________________________

75 S 198(3) of the LRA.

76 [2001] 9 BLLR 1137 (LAC).
77 Currently, the amount stands at R205 433,30 per annum.
78 S 198A(3)(a) of the LRA.
79 S 198A(1) of the LRA.
80 S 198D provides that disputes about ss 198A–C may be referred to the CCMA or bargain-
ing council for mediation and arbitration. S 198(4) of the LRA also protects TES employees
by providing that termination of such an employee’s service by either the TES or the client
for the purpose of avoiding the operation of these protective measures is deemed to be a
dismissal. It is to be noted that such dismissals do not constitute ‘automatic unfair dismissal’
in terms of s 187 of the LRA.
The elusive employee and non-standard employment 73

In Assign Services (Pty) Ltd v CCMA 81 the Labour Court held that the deeming
provision does not have the effect that the client of the TES becomes the sole
employer. The common law contract of employment between the TES and the
agency worker remains in place and nothing in the provision invalidates the
contract. However, the client also becomes the employer in a new statutory
relationship after the expiry of the three-month period but only for the purposes
of the LRA, which regulates aspects such as unfair dismissal and unfair labour
practices. The Labour Court’s judgment was overturned by the Labour Appeal
Court.82 The court held that properly interpreted, the protection established by
section 198A(3)(b)(i) seeks to ensure that employees of a TES are treated no
differently to those of the client, and to ensure that the deemed employees are
fully integrated into the enterprise as employees of the client. The TES remains
the employer of the placed employee until the employee is deemed to be the
employee of the client, on an indefinite basis. This conclusion is consistent with
the intention to restrict the role of TESs to genuine temporary employment.
The Labour Appeal Court’s judgment was upheld by the Constitutional Court,
with one dissent.83 The court recorded that the issue it was required to deter-
mine related to employees contracted by a TES and placed with a client for
more than three months. Does the deeming provision give rise to a dual em-
ployment relationship where the employee is deemed to be employed by both
the TES and the client, or does it create a sole employment relationship be-
tween the employee and the client? The court observed that in the triangular
relationship created by the placement of a person’s services at the disposal of
another the functions of the TES were ordinarily limited to the obligation to pay
remuneration and other human-resource-related functions. In reality, it is the
client that engages in day-to-day management, the allocation of work and
performance assessment. The placed employee does not contribute to the
TES’s business ‘except as a commodity’. The court held that section 198A(3)
effects a change in the statutory attribution of responsibility as employer, within
the triangular relationship, and that the plain language of the section supports
the ‘sole employer’ interpretation. In short, once the placed employee is
deemed to be the employee of the client, the client is the employer of that
employee for all purposes and there is no residual employment relationship with
the TES.
An employee deemed to be an employee of the TES’s client must be treated
‘on the whole not less favourably’ than the client’s employees performing similar
work, unless there is a justifiable reason for their being treated differently. Factors
such as seniority, length of service, merit, and quality or quantity of work are
reasons that could justify differentiated treatment.84

________________________

81 [2015] 11 BLLR 1160 (LC). See Benjamin ‘Restructuring Triangular Employment: The Interpret-
ation of Section 197 of the Labour Relations Act’ (2016) 37 ILJ 28 where the author argues
that the remarks made by the Labour Court in Assign Services were obiter and that con-
sequently the client becomes the sole employer of the agency worker.
82 NUMSA v Assign Services & others [2017] 10 BLLR 1008 (LAC).
83 Assign Services (Pty) Ltd v NUMSA [2018] 9 BLLR 837 (CC).
84 S 198D(2) of the LRA.
74 Law@work

Further, TES employees who no longer render ‘temporary services’ are deemed
indefinitely employed, subject to the provisions which regulate fixed-term em-
ployees that are discussed below.85 In line with what is discussed above, the
temporary agreement with the TES will become indefinite in nature and the
client will be ‘deemed’ to be the employer.
Finally, the LRA obliges each TES to provide its employees with written particu-
lars of employment in accordance with the provisions of the BCEA.86 This is an
important provision in so far as the written particulars of employment could give
TES employees clarity regarding the question of whether the TES or the client is in
fact their employer. Regrettably, the LRA is unclear about whether there is any
obligation on the TES to identify the specific client and the workplace where the
services are to be rendered. Nevertheless, one aspect that has been clarified is
that should it be uncertain whether a TES employee is covered by a bargaining
council agreement or sectoral determination covering either the TES or the
client the uncertainty must be decided by reference to the sector in which the
client is involved.87
TES employees are not protected when they apply for vacancies with the
client. Often the agreement between a TES and client precludes the TES em-
ployee from applying for vacancies at the client. This is a shortcoming as it goes
against the grain of the notion that placements by a TES can serve as a step-
ping stone to a more secure position with the client.
The protection extended to higher-earning TES employees is inadequate.
There is nothing that safeguards them against being placed with clients for
extended periods of time or against treatment different from that of employees
of the client rendering the same work. The courts have nevertheless shown a
willingness to extend, rather than diminish, protection to TES employees in gen-
eral. The following examples illustrate the point.
It is not uncommon for a TES to include a provision in the commercial agree-
ment with the client, stating that if the client no longer requires the services of
the person placed by the TES the contract of employment with the person so
placed terminates automatically.88 In Nape v INTCS Corporate Solutions (Pty)
________________________

85 S 198A(3)(b) of the LRA.

86 See s 198(4B)(a) of the LRA; s 29 of the BCEA. This obligation rests on a TES irrespective of
whether the employee earns below or above the earnings threshold. The particulars of
employment must amongst other things specify the name and address of the employer,
the place of work, the date on which employment began, the employee’s normal hours
of work and wages, the leave to which the employee is entitled, and the like.
87 S 198(4D) of the LRA.
88 See April v Workforce Group Holdings (Pty) Ltd t/a The Workforce Group (fn 72) and the
criticism against the decision by Bosch ‘Contract as “Barrier” to Dismissal: The Plight of the
Labour Broker’s Employee’ (2008) 29 ILJ 813. Bosch’s point of view was endorsed in Molusi
v Ngisiza Bonke Manpower Services CC (2009) 30 ILJ 1657 (CCMA). The commissioner held
that such a clause was contrary to public policy and disregarded s 23 of the Constitution.
In COSAWU obo Nyakazu v Prestige Cleaning Services (Pty) Ltd (2010) 31 ILJ 1950 (CCMA)
the commissioner held that such agreements are unenforceable on grounds of s 5 of the
LRA which stipulates that any provision in a contract that limits protection granted in terms
of the LRA is invalid. See also National Union of Metal Workers of South Africa & others v
Abancedisi Labour Services [2013] 12 BLLR 1185 (SCA).
The elusive employee and non-standard employment 75

Ltd 89 the question that arose was whether such agreements are valid. In this
instance the client informed the TES that the employee had to be removed
because of alleged misconduct. The TES conducted a disciplinary enquiry and
issued a final warning, but the client insisted that the employee had to be re-
moved. The TES had no option but to retrench the employee. Commenting on
the agreement between the TES and the client, the court held that it is imper-
missible for parties to conclude an agreement which undermines the right of a
TES employee not to be unfairly dismissed, as guaranteed by the LRA.
Another example of abusive practices was exposed in Dyokhwe v De Kock
NO & others.90 In this case, the employer informed one of its fixed-term employ-
ees that after the expiry of his contract of employment he would be employed
by a TES. The TES placed the employee with the original employer (now the
client) for a number of years. When the client informed the TES that its oper-
ational requirements were such that it no longer required the services of the
employee, the employee instituted a claim against the client (the former em-
ployer) and not against the TES. The court rejected the client’s argument that
the TES was the employer to be held accountable. In accordance with the
definition of a TES, it is the TES that should ‘procure’ or ‘provide to a client’ per-
sons who perform work for the client. In this instance the TES did not procure the
employee. The original employer had sent the employee to the TES who in turn
placed the employee with the original employer.
Although a TES may relieve clients from some employment-related respon-
sibilities, this is not the case in respect of common-law delictual claims. Note that
the COIDA also deems the TES and not the client to be the employer.91 In terms
of section 35 of the same statute, the TES gains immunity in respect of claims
instituted by its employees in respect of damages resulting from occupational
injuries and diseases. From this, it follows that an employee who is injured at the
premises of the client, whether the injury was caused by the negligence of the
client or any of the client’s employees while performing their services, is at liberty
to institute a claim for damages against the client, but not against the TES.92

5.2.3 The Employment Services Act of 2014

The ESA provides for a range of measures to promote job creation and to regu-
late and limit the employment of foreign nationals.93 It adopts a three-pronged

________________________

89 [2010] 8 BLLR 852 (LC).

90 [2012] 10 BLLR 102 (LC).
91 See the definition of ‘employer’ in s 1 of the COIDA.
92 In Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck (fn 58) Nugent JA considered
the following facts: A TES placed an employee R with a client. A security guard employed
by the client shot R. R instituted a claim against the client on grounds of vicarious liability.
The client argued that it was immunised by s 35 of the COIDA. The court rejected the argu-
ment and held that the TES was the employer and that the client was liable for damages
on grounds of vicarious liability.
93 See the long title of the ESA 4 of 2014. The ESA repeals the employment services provisions
contained in the Skills Development Act 97 of 1998.
76 Law@work

approach, namely to provide for the establishment of public and private

employment services, to provide for an enabling framework for job-creation
schemes for the youth and other categories of vulnerable workers and to regu-
late the employment of foreigners.
The ESA establishes two types of employment agencies that render ‘employ-
ment services’:94 public employment services (PES), established and managed
by the state to render free services to the public, and ‘private employment
agencies’, or TESs, that provide job-recruitment and placement services.
The rationale behind the creation of PES is to provide state assistance to un-
employed work seekers. Amongst others things, PES must be provided in an
‘open and accessible’ way. In this regard, the Department of Employment and
Labour must provide services which include the registration of work seekers and
of work opportunities and job vacancies, and the matching of work seekers with
available work opportunities.95 In addition, the Minister of Employment and
Labour may make regulations requiring employers in certain industries to notify
the Department of any vacancies in their establishments.96
Section 198(4F) of the LRA provides that no person may function as a TES
‘unless it is registered in terms of any applicable legislation’. The ESA constitutes
such legislation. It directs that a registrar of private employment agencies be
appointed and that the minister issue prescribed criteria for such agencies.97
The registrar must issue successful applicants who wish to operate as private
employment agencies with a certificate of registration. No private employment
agency may charge a fee to any work seeker for providing him or her with
employment services including placement in a job with an employer.98
The ESA also provides for the establishment of schemes to promote the em-
ployment of young work seekers and other vulnerable persons and to provide
for schemes to help employees in distressed companies remain employed.99
To ensure that South African citizens and permanent residents receive prefer-
ence when it comes to appointment, the ESA sets limitations on the employ-
ment of ‘foreign nationals’. A person who is not a South African citizen or does
not have a permanent-residence permit is regarded as a foreign national.100
Employers may not employ a foreign national before he or she produces ‘an
applicable and valid work permit’ issued in terms of the Immigration Act 13 of

________________________

94 S 1 of the ESA defines ‘employment services’ as including advising workers on career

choices, referring work seekers to employers to apply for vacancies, assisting employers by
providing recruitment and placement services, and performing the functions of temporary
employment services.
95 S 5(1) of the ESA.
96 S 10(1) of the ESA.
97 S 13(1) and (3). S 13(2) prescribes that the criteria must differentiate between private em-
ployment agencies that render temporary employment services and those only perform-
ing other employment services.
98 S 15(1) of the ESA.
99 Ss 6 and 7 of the ESA.
100 S 1 of the ESA.
The elusive employee and non-standard employment 77

2002.101 In addition, employers must satisfy themselves that there are no South
African residents or permanent residents to fill a vacancy, before recruiting a
foreign national.102 Employers may make use of PES or any private employment
agency to help them recruit South African citizens or permanent residents.103
Employers may be required to prepare skills transfer plans in relation to any
position in which a foreign national is employed.104

5.3 Fixed-term employees

The respective definitions of ‘employee’ in the LRA, BCEA and EEA as well as
those embodied in social security legislation are sufficiently broad to include
fixed-term employees.105 Despite this, until the 2014 amendments, little attention
was given specifically to the protection of this category of non-standard em-
ployee. The exception to this relates to the non-renewal of fixed-term contracts
which may, in terms of section 186(1)(b) of the LRA, constitute a ‘dismissal’ in cir-
cumstances in which the employee might have had a reasonable expectation
of renewal. This kind of dismissal is discussed in chapter 9. The LRA makes a
serious attempt to improve the protection extended to fixed-term employees.
Section 198B(1) defines a ‘fixed term contract’ as a:
contract of employment that terminates on –
(a) the occurrence of a specified event;
(b) the completion of a specified task or project; or
(c) a fixed date, other than the employee’s normal or agreed retirement age,
subject to section (3).
This definition has the potential to cover the following three scenarios. An elec-
tion official’s contract could, for instance, provide that it comes to an end once
the national election results have been made available. Secondly, a construc-
tion worker’s contract could provide that it terminates once all of the retention
work on a dam-building project has been completed. And, thirdly, a contract
can, for example, come to an end if it stipulates that it continues for a fixed
term of three months or one year, as the case may be. In Piet Wes Civils CC &
another v Association of Mineworkers & Construction Union & others,106 a case
where the duration of the contract was made subject to the ‘supply of work
contracts’ by the employer’s clients, the Labour Appeal Court held that this
condition cannot be construed as equating to the occurrence of a ‘specified
event’, ‘the completion of a specified task or project’ or a ‘fixed date’. The em-
ployment contracts were construed as being of indefinite duration as contem-
plated by section 198B(5), and could therefore not be terminated on notice
without adherence to the fair dismissal procedures set out in the LRA.

________________________

101 S 8(1) of the ESA. An employer who contravenes s 8(1) is guilty of an offence and liable to
imprisonment or a fine as contemplated in s 49(3) of the Immigration Act.
102 S 8(2)(a) of the ESA.
103 S 8(2)(b) of the ESA.
104 S 8(2)(c) of the ESA.
105 See the discussion in paras 4.2 and 4.4.
106 [2018] 12 BLLR 1164 (LAC).
78 Law@work

Section 198B(2) excludes several categories of employees from the protective

reaches of the section. Those excluded are employees who earn above the
earnings threshold determined by the minister; employers with fewer than 10
employees; employers with between 10 and 50 employees and whose business
has been in operation for fewer than two years; and employees whose fixed-
term contracts are permitted by statute, collective agreement or sectoral de-
termination.107
How does the LRA seek to protect employees engaged in terms of fixed-term
contracts? Essentially, an employer may not conclude a fixed-term contract
with an employee which exceeds three months in duration unless the employer
can demonstrate a justifiable reason for the fixed term.108 The LRA specifies a
number of justifiable reasons109 such as that:
l the employee is replacing another employee who is temporarily absent from
work;
l the employer is experiencing a temporary increase in volume of work which
will not continue beyond 12 months;
l the employee is a student or recent graduate who is receiving training or
gaining work experience;
l the employee is employed to work exclusively on a specific project that has
a defined duration;110
l the employee is a non-citizen who has been granted a work permit for a
specific period;
l the employee is performing seasonal work;
l the employee’s salary is funded by an external source for a limited duration;
l the employee is working as part of an official public works or job-creation
scheme; or
l the employee has reached the normal retirement age applicable in the
employer’s business.
The most significant consequence of employing a worker beyond three months
without justification is that such employment is ‘deemed to be of indefinite
employment’.111 In other words, the employee will be entitled to remain in the
service of the employer until such time as the contract may be terminated on

________________________

107 S 198B(2) of the LRA. The threshold amount currently stands at R205 433,30.
108 S 198B(3) of the LRA.
109 S 198B(4) of the LRA.
110 In Association of Mineworkers & Construction Union & others v Piet Wes Civils CC & an-
other [2017] 5 BLLR 501 (LC) it was held that a clause in a contract of employment which
makes provision that the agreement with the employee automatically comes to an end
should the employer’s client not renew a service agreement, does not constitute one of
the justifications relating to a specific project with limited duration. In other words, the
employer had to terminate the fixed term employees’ contracts on grounds of oper-
ational requirements.
111 S 198(5) of the LRA.
The elusive employee and non-standard employment 79

recognised grounds such as misconduct or operational requirements or until the

employee reaches the employer’s normal retirement age. In addition, employees
engaged in terms of fixed-term contracts receive the following protection:
l Employees employed for longer than three months may not be ‘treated less
favourably’ than are employees employed on an indefinite basis performing
similar work unless there is a justifiable reason for differential treatment.112
l Employers must provide fixed-term employees and employees employed for
an indefinite period with ‘equal access to opportunities to apply for vacan-
cies’.113
l An offer to employ or renew a fixed-term employee’s contract must be in writ-
ing and state the reason that justifies the fixing of the term of the contract.114
l An employee who has been employed to work on a project with a defined
period exceeding 24 months must, when the contract expires, be paid sev-
erance pay of one week’s remuneration for each completed year of the
contract.115
Section 198D(2) specifies that differential treatment can be justified on the
grounds of seniority and experience, merit, quality of work and any other criteria
of a similar nature. Since the LRA does not define what is meant by ‘less favour-
able’ and ‘same or similar work’ it will be the task of the CCMA and labour
courts to interpret these provisions.
The protection extended to higher-earning fixed-term employees and to
those working for small employers remains precarious. There is nothing that safe-
guards them against treatment unequal to that given to employees of the
client or against being appointed for extended periods of time, or that provides
them with equal access to opportunities to apply for vacancies.

5.4 Part-time employees

The terms part-time work, casual work and temporary work are often but mis-
takenly used interchangeably. Part-time employees generally work fewer hours
than the norm established by a wage-regulating measure or collective agree-
ment or in terms of the contracts of employment in respect of the employer’s
other employees.116 This could, for example, include mornings-only work.
The LRA defines a ‘part-time employee’ as someone ‘who is remunerated
wholly or partly by reference to the time that the employee works and who

________________________

112 S 198B(8) of the LRA.

113 S 198B(9) of the LRA.
114 S 198B(6) of the LRA.
115 S 198B(10) of the LRA.
116 In Barker and Holtzhausen South African Labour Glossary (1996) at 109–110 the term ‘part-
time work’ is defined to mean the ‘employment of an individual for fewer hours of work
than statutory, collectively agreed or usual working hours, eg morning work. Part-time
work can be performed on a regular basis and can last for an indefinite period of time, in
which case it is called “permanent part-time work”’.
80 Law@work

works less hours than a comparable full-time employee’ (our emphasis).117 In

turn, a ‘comparable full-time employee’ is an employee ‘who is remunerated
. . . by reference to the time that the employee works and who is identifiable as
a full-time employee in terms of the custom and practice of the employer’ (our
emphasis).118
It is not entirely clear why the definition of ‘comparable full-time employee’
refers to the time that the employee works rather than comparing the person
with a standard indefinitely employed person. Was the intention to ensure that
the comparison is to be drawn only with other full-time but not indefinitely em-
ployed workers?119
As is the case with employees engaged in fixed-term contracts, the amend-
ments extend protection only to certain categories of part-time employees. Em-
ployees earning more than the threshold amount of remuneration determined
by the Minister of Employment and Labour, employees of employers with fewer
than 10 employees, and employees of employers with between 10 and 50 em-
ployees and whose operation has been in existence for fewer than two years
are exempt from the provisions of section 198C of the LRA.120 Also excluded from
the protective measures for part-time employees are those who work fewer than
24 hours a month for a particular employer and employees rendering service
during the first three months of continuous employment.121
Considering the specific number of hours a part-time employee works, the
most significant protection that such employees receive is that:
l they must be treated on the whole not less favourably than are comparable
full-time employees doing the same work;122
l employers must, ‘on the whole’, provide them and comparable full-time em-
ployees with equal access to training and skills development opportunities;123
and
l employers must provide part-time employees and comparable full-time
employees with ‘the same access to opportunities to apply for vacancies’.124

________________________

117 S 198C(1)(a) of the LRA.

118 S 198C(1)(b)(i) of the LRA. S 198C(1)(b)(ii) states that a comparable full-time employee
‘does not include a full-time employee whose hours of work are temporarily reduced for
operational requirements as a result of an agreement’.
119 The uncertainty is not addressed by the wording of s 198C(6) of the LRA, which provides
that for ‘the purpose of identifying a comparable full-time employee, regard must be
had to a full-time employee employed by the employer on the same type of employ-
ment relationship who performs the same or similar work’. This seems to exclude indefin-
itely employed employees.
120 S 198C(2) of the LRA. The threshold amount currently stands at R205 433,30 per annum.
121 Ibid.
122 S 198C(3)(a) of the LRA.
123 S 198C(3)(b) of the LRA.
124 S 198C(5) of the LRA.
The elusive employee and non-standard employment 81

6 Casual work
Employees who work for a short duration, as and when required by the employer,
perform casual work. Here, both the parties know that the employee has no
expectation that the employment relationship will continue.125 The LRA does not
make specific mention of this category of employees.
In the case of what has been referred to as ‘permanent casuals’, the employer
places casual employees in a pool from which they are drawn and offered
work according to the needs of the business. In some circumstances at least,
the courts have been prepared to regard these employees as party to an
employment relationship even while they do not actively perform work.126 In
NUCCAWU v Transnet Ltd t/a Portnet,127 the employer concluded ‘casual em-
ployment agreements’ with employees in terms of which they were permitted
to work on a day-to-day basis for a maximum of three days a week, without any
of the benefits that accrued to permanent employees. The employer selected
employees from a pool of casuals on a daily basis. When the employer renego-
tiated the agreement with the casuals, they refused to sign the vastly different
new contract. The employer responded by refusing to employ them. The union
considered this an unprotected lock-out and applied to the Labour Court for an
urgent interdict to prevent the employer from refusing to employ its members.
Waglay J accepted that the casual employees constituted a special class of
employees, and that even though they were not entitled to employment
beyond the day that they were employed, they were still party to an employ-
ment relationship that was worthy of protection under the LRA.

7 Unauthorised and illegal work

Unlawful contractual terms may render a contract void ab initio, or voidable at
the instance of any of the parties to the agreement. An unlawful contract could
also have the consequence that the parties attract criminal sanction. Does
labour legislation apply only if there is a legally valid and enforceable contract
of employment, or do labour rights extend beyond the construction of an em-
ployment contract? This issue is particularly relevant to those either working
illegally (for example, migrant workers not in possession of a work permit) or
engaged in work that is illegal (for example, sex work).128
________________________

125 In Barker and Holtzhausen (fn 116) at 21 ‘casual work’ is defined to mean ‘work performed
by a temporary employee’.
126 Even if the relationship is temporary in nature, the employee still has the right not to be
unfairly dismissed. See Bezuidenhout v Ibhayi Engineering Contractors CC (2005) 26 ILJ
2477 (BCA) in this regard. However, in these circumstances, compensation rather than re-
instatement will be awarded.
127 [2001] 2 BLLR 203 (LC).
128 In Union of Refugee Women & others v Director: Private Security Industry Regulatory
Authority & others (2007) 28 ILJ 537 (CC) the Constitutional Court had to consider a set of
facts relating to the right of refugees to work in the private security industry. The issue of
whether the applicants were in fact employees was not considered. However, it was held
that s 23(1) of the Private Security Industry Regulation Act 56 of 2001 does not amount to
continued on next page
82 Law@work

By virtue of their nature, cases about the unfair dismissal of migrant workers
who have no work permits are rarely brought before the CCMA or the courts
because of fear of either deportation or criminal prosecution. The CCMA initially
took the view that an employment contract with an unauthorised foreign worker
was void ab initio. Consequently, the maxim ex turpi causa non oritur actio (no
action arises out of a dishonourable cause) was applied. Commissioners con-
sistently ruled that the CCMA lacked jurisdiction to entertain any application
based on an alleged unfair dismissal.129
Against the background of the constitutional right to fair labour practices and
the vulnerability of illegal workers,130 in Discovery Health v CCMA131 the Labour
Court made two significant findings that changed the position regarding mi-
grant workers. First, the court held that it was not the intention of the Immigration
Act 13 of 2002 to render the employee’s contract of employment concluded
without a permit null and void. To render such contracts invalid could only en-
courage unscrupulous employers to exploit unprotected workers and persons.
Employing workers without permits is in any event a criminal offence. Secondly,
the court held that even if the contract was invalid the definition of ‘employee’
does not necessarily presuppose a valid contract of employment. Any person
who works for another person and receives remuneration falls within the defin-
ition of employee in terms of section 213 of the LRA and within the scope of
protection of section 23 of the Constitution.132
The Labour Appeal Court, in ‘Kylie’ v CCMA & others,133 once again had the
opportunity to consider whether the definition of ‘employee’ extends to persons
engaged in unlawful activities. Kylie worked for a massage parlour as a ‘sex

________________________

unfair discrimination (s 9 of the Constitution) in so far as it prohibits refugees from working

in the private security industry. Indirectly, this precludes employees with refugee status to
work in this particular industry. However, this prohibition is specific to the private security
industry and the principle does not apply to employees not covered by the Private Secur-
ity Industry Regulation Act.
129 See Moses v Safika Holdings (Pty) Ltd (2001) 22 ILJ 1261 (CCMA); Chambers v Process
Consulting Logistics (Pty) Ltd [2003] 4 BALR 405 (CCMA); and Georgieva-Deyanova v
Craighall Spar [2004] 9 BALR 1143 (CCMA).
130 The arguments of Bosch ‘Can Unauthorized Workers be regarded as Employees for the
Purposes of the Labour Relations Act?’ (2006) 27 ILJ 1342 opened the door for the position
that was adopted by the courts at a later stage.
131 Fn 19. See also Southern Sun Hotel Interests (Pty) Ltd v CCMA & others [2009] 11 BLLR 1128
(LC) where it was held that illegal immigrants may rely on the right not to be unfairly dis-
missed.
132 At para 42 the court referred to s 232 and s 233 of the Constitution, which explains the rel-
evance of international law. At para 47 the court relied on the United Nation’s Inter-
national Convention on the Rights of all Migrant Workers and Members of their Families,
(Resolution 45/158 adopted in 1990) and ILO Conventions 66 of 1939, 97 of 1949 and 143
of 1975. Having considered the respective positions in the USA, the United Kingdom and
Australia, Norton ‘Workers in the Shadows: An International Comparison on the Law of
Dismissal of Illegal Migrant Workers’ (2010) 31 ILJ 1521 delivers a critique on Discovery
Health.
133 Fn 19.
The elusive employee and non-standard employment 83

worker’ until her contract was terminated, without a hearing, on the grounds of
disruptive behaviour and substance abuse. The CCMA ruled that it lacked juris-
diction to entertain a matter involving illegal work.134 In a unanimous decision,
the Labour Appeal Court concluded that within the framework of the constitu-
tional right to fair labour practices, Kylie was in an employment relationship
even if there was no valid contract. This relationship fell within the scope of
application of the LRA that, amongst other things, advances the goals of ‘social
justice, fairness and respect for all’. Even though the court was mindful of the
fact that reinstatement would be manifestly against public policy and would
not be a competent remedy, the par delictum rule could be relaxed in certain
circumstances and compensation could be awarded.135
This argument is in line with what the code directs in respect of the interpret-
ation of labour legislation.136 The code notes that section 3 of the LRA states that
‘any person applying the Act must interpret its provisions . . . in compliance with
the Constitution’.137 If more than one interpretation can be given to a provision,
the interpretation that best gives effect to the Constitution must be chosen as
long as it does not unduly strain the language of the statute.138

8 Who is the employer?

The LRA, BCEA, EEA and SDA do not define the term ‘employer’.139 However, it
seems logical to use the mirror image of the definition of ‘employee’ (and the
statutory presumption of employment) to determine the identity of the em-
ployer.140 Employers and employees stand in a reciprocal relationship in terms of
the common-law contract of employment. A contractual duty of the employee,
such as the duty to render services of an agreed nature, becomes the right of
the employer to have those services rendered.

________________________

134 ‘Kylie’ v Van Zyl t/a Brigittes [2007] 4 BALR 338 (CCMA). The commissioner held that the
work that Kylie had performed was illegal in terms of the Sexual Offences Act 23 of 1957.
In their commentary on the case Bosch and Christie (fn 10) at 805 criticise this decision
and argue that the commissioner missed a golden opportunity to grapple with the defin-
ition of ‘employee’ in the light of the purpose of the LRA and the broader constitutional
framework. See also ‘Kylie’ v CCMA & others [2008] 9 BLLR 870 (LC).
135 See also Le Roux (fn 8) at 64.
136 Part 5 of the code.
137 Items 60–61 of the code.
138 Item 62 of the code. See De Beer NO v North-Central Local Council and South-Central
Local Council & others 2002 (1) SA 429 (CC) at para 37 and NEHAWU v University of Cape
Town & others (fn 35). See also NUMSA & others v Bader Bop (Pty) Ltd (2003) 24 ILJ 305
(CC) at 325–326 where it was held that in considering legislation such as the LRA that is in-
tended to give effect to constitutional rights, the scope and application of the law should
be generously interpreted.
139 S 1 of the COIDA contains a definition of ‘employer’. See para 4.4 ‘Social security legis-
lation’.
140 This principle was applied in Footwear Trading CC v Mdlalose [2005] 5 BLLR 452 (LAC) at
para 24.
84 Law@work

In the modern business world where employees may prefer to work through
trusts or other separate legal entities and where employers may prefer to sub-
contract work to service providers to avoid the responsibilities of an employ-
ment relationship, it may be difficult to pinpoint the employer.141 The courts have
on occasion considered schemes in terms of which one legal entity, usually an
empty shell, assumes the administrative responsibilities of an employer by pay-
ing salaries and deducting statutory levies such as UIF contributions, while an-
other associated company holds the assets and contracts with external clients.
The leading authority regarding this issue is the Labour Appeal Court’s deci-
sion in Footwear Trading CC v Mdlalose142 where Nicholson JA accepted the
principle that substance and not form is determinative of the employment rela-
tionship.143 The court accepted that in the normal course of events the piercing
of the corporate veil becomes relevant only when a corporation is the alter ego
of a natural person and when the shareholders seek to hide behind the veil.144 In
the Footwear Trading case the court was prepared to pierce the veil and
accept that the two entities were in fact ‘joint or co-employers’. The practical
effect of this decision is that the courts will not permit employers to hide behind
multiple-entity schemes as a way of circumventing their obligations as employers.
Another scenario arises when a person who actually renders the services does
not contract with the other party in his or her own name but operates through a
trust, close corporation or company with which the person has an employment
or other commercial relationship. This is often done to establish a favourable tax
dispensation for the person who renders the service. In Denel (Pty) Ltd v Ger-
ber 145 the Labour Appeal Court considered the following facts: Denel concluded
an agreement with Multicare Holdings (Pty) Ltd in terms of which it would pro-
vide certain human resources consultancy services to Denel. Multicare had one
employee, namely Gerber, and on a regular basis, Multicare rendered invoices
to Denel. Denel informed Gerber that her services had been terminated on
grounds of redundancy. Gerber contended that she was an employee of Denel
and Denel claimed that it had validly terminated a commercial contract with
Multicare and that Gerber was not employed by Denel.
The court accepted that Gerber was an employee of Denel on the ‘basis of
the realities – on the basis of substance and not form or labels’.146 Next, the
________________________

141 The issue under discussion should, however, be distinguished from the principle that has
already been established, namely that it is legally possible for a part-time employee to
be employed by more than one employer at different times. Nothing precludes an em-
ployee from rendering services to one employer during the first two days of any week
and to work for another during the rest of the week.
142 Fn 140. See also State Information Technology Agency (SITA) (Pty) Ltd v CCMA & others
(fn 8), and the discussion of the case at para 4.2 ‘Interpreting the definition of “employee”’,
and Zeman v Quickelberge & another (2011) 32 ILJ 453 (LC).
143 This principle was gleaned from a decision of the former Labour Appeal Court in Cam-
dons Realty (Pty) Ltd v Hart (1993) 14 ILJ 1008 (LAC).
144 See confirmation of this principle in Board of Executors Ltd v McCafferty [1997] 7 BLLR 835
(LAC) referred to at para 31.
145 Fn 27.
146 At para 22.
The elusive employee and non-standard employment 85

court considered the position of persons who voluntarily agree to render ser-
vices through a separate legal entity in order to gain a more favourable tax dis-
pensation. In a number of earlier decisions, the courts had held that such per-
sons would be precluded from reclaiming employee status for purposes of pro-
tection against unfair dismissal.147 Zondo JP put an end to this line of argument
and held that an agreement for purposes of a better tax dispensation does not
alter the realities of the relationship.148 However, the court did hold that, in the
absence of reconciliation with the South African Revenue Services, the court
had been approached with ‘dirty hands’ and that this would be taken into
account when crafting a remedy.149
The code also seeks to address this issue by providing that when a person, in
order to gain tax benefits, has made representations to an agency such as the
SA Revenue Services that he or she is not an employee it may be appropriate
for a court or arbitrator to refuse to grant that person relief on the basis that he
or she did not institute the proceedings with clean hands.150
Section 200B of the LRA, introduced in 2014, seeks to put an end to complex
schemes between multi-employers designed to circumvent the obligations
established by labour legislation. Section 200B provides for joint and several
liability for employer obligations when simulated corporate structures are estab-
lished to defeat the purposes of the LRA or any other employment law.

________________________

147 See CMS Support Services (Pty) Ltd v Briggs [1997] 5 BLLR 533 (LAC); Bezer v Cruizer Inter-
national CC (2003) 24 ILJ 1372 (LAC). In Callanan v Tee-Kee Borehole Castings (Pty) Ltd &
another (1992) 13 ILJ 279 (IC) at 1550D–E the former Industrial Court held that the courts
will be unwilling to assist employees who want to ‘have their cake and eat it’. See also
Apsey v Babcock Engineering Contractors (Pty) Ltd (1995) 16 ILJ 914 (IC) at 924D–F. Ben-
jamin (fn 19) at 796 considered this line of authority and concluded that these cases, in-
correctly so, give ‘precedence to form over substance’.
148 Van Niekerk ‘Personal Service Companies and the Definition of “employee”: Some
Thoughts on Denel (Pty) Ltd v Gerber (2005) 26 ILJ 1256 (LAC), (2005) 26 ILJ 1904 at 1908
argues that parties should be entitled, for whatever perceived advantage, to decide
and agree on their own status and designation even if this does exclude the employment
relationship. See also Van Niekerk (fn 44) at 19 where he considers, as a matter of public
policy, whether ‘the courts ought to allow parties to a contract to designate their status’.
He mentions that this is a difficult issue ‘and with respect, the answer is not as clear-cut as
the Labour Appeal Court would appear to consider’. Van Niekerk adds that as ‘Brassey
has suggested, when the parties are bona fide the terms of their agreement are the best
source of their intention’. See in this regard Brassey (fn 1).
149 Denel (Pty) Ltd v Gerber (fn 27) at paras 204–205.
150 Item 31 of the code.
5
Common-law and statutory
conditions of employment

Page
1 Introduction ...................................................................................................... 89
2 Obligations of the employee ......................................................................... 90
2.1 To report for duty and to render competent services.......................... 90
2.2 To be respectful and obey lawful instructions ....................................... 92
2.3 To render services in good faith .............................................................. 93
2.3.1 Introduction ..................................................................................... 93
2.3.2 A strict ‘catch-all’ obligation ........................................................ 93
2.3.3 Restraint of trade ............................................................................ 94
3 Obligations of the employer........................................................................... 96
3.1 To remunerate the employee ................................................................. 96
3.2 To provide safe working conditions ........................................................ 97
3.3 To treat the employee with respect and dignity .................................. 98
4 Termination, breach of contract and remedies .......................................... 99
4.1 Termination of the contract of employment......................................... 99
4.2 Breach of contract and common-law remedies ................................. 100
5 Contractual agreement and variation of contractual terms .................... 103
6 Statutory conditions of employment: the BCEA and NMWA ..................... 105
6.1 Introduction ............................................................................................... 105
6.2 Basic conditions of employment ............................................................ 107
6.2.1 Working time ................................................................................... 107
6.2.2 Leave ............................................................................................... 109
6.2.2.1 Annual leave ..................................................................... 109
6.2.2.2 Sick leave ........................................................................... 109
6.2.2.3 Maternity leave ................................................................. 110
6.2.2.4 Family responsibility leave ................................................ 111
6.2.3 Payment of remuneration, particulars of employment,
and prohibited practices .............................................................. 111
6.2.4 Termination of employment .......................................................... 112

87
88 Law@work

Page
6.2.5 Prohibition of the employment of children and of forced
labour............................................................................................... 113
6.3 Sectoral determinations ........................................................................... 114
6.4 Variation of basic conditions .................................................................. 115
7 Enforcing conditions of employment ............................................................ 115
7.1 Contracts ................................................................................................... 115
7.2 Statutory minimum conditions ................................................................. 116
Common-law and statutory conditions of employment 89

1 Introduction
The Introduction to this book notes that the rights and duties arising from the
employer-employee relationship have a variety of sources. The most important
source of labour-related obligation is legislation.1 For that reason, most of this
book is concerned with statutory rights and obligations. Labour legislation ex-
tends to most aspects of the employment relationship. For example, the EEA
applies to applicants for employment and prohibits unfair discrimination against
them. Once employees are engaged, the BCEA and, in some sectors, sectoral
determinations promulgated in terms of the BCEA establish a floor of employee
rights in relation to hours of work, leave, notice periods, and the like. The LRA
establishes collective rights such as the right to freedom of association, organ-
isational rights and the right to strike and also establishes individual rights against
unfair dismissal and unfair labour practices.
One might have thought that in these circumstances most labour disputes
would find their way through the dispute resolution structures established by the
LRA and that a common-law claim would become a less attractive option for
any prospective litigant. But this does not seem to be the case. Despite the
comprehensive coverage of labour legislation, in terms of both substance and
reach, the contract of employment remains an important source of employment-
related rights and obligations. Indeed, there is a cogent argument that contract
remains the foundation of labour law.2 It is not uncommon for aggrieved em-
ployees to rely on common-law rights to bypass the jurisdiction of the CCMA to
deal with unfair dismissal and unfair labour practice and to proceed to the High
Court and the Labour Court with their concurrent jurisdiction to entertain dis-
putes concerning contracts of employment.3
Like any other contract, the contract of employment is founded on agree-
ment, and the law of contract, in so far as it regulates the formation of contracts
and the broad limits on the freedom to contract, applies. The principal obliga-
tions of the employee are to make his or her personal services available to the
employer and to do so with due diligence and competence within the relation-
ship of authority that employment creates and in good faith. The employer’s
principal obligations are to pay the agreed remuneration, to provide safe work-
ing conditions, and to treat the employee with respect and dignity.4 The contract
of employment also serves as a conduit of implied rights and duties between
________________________

1 Cheadle in Coaker and Zeffert (eds) Wille and Millin’s Mercantile Law of South Africa (1984)
at 340. Cheadle reminds us that the contract of employment ‘is so shot through by statute
and collective agreements that it has become an inextricable complex of rights and obli-
gations with its source in contract, common law, trade and custom, legislation and collect-
ive bargaining’.
2 Brassey Employment and Labour Law Vol 1: Employment Law (1998) at C:ii. See also Vettori
The Employment Contract and the Changed World of Work (2007) at 21–22.
3 See Jacot-Guillarmod v Provincial Government, Gauteng (1999) 20 ILJ 1689 (T); Louw v
Acting Chairman of the Board of Directors of the North West Housing Corporation & another
(2000) 21 ILJ 482 (B).
4 See Benjamin ‘Contract of Employment’ in Thompson and Benjamin South African Labour
Law Vol 2 (1994–2006).
90 Law@work

the parties. So, for example, each employee guarantees that he or she is com-
petent to render the agreed work and each employee’s fiduciary duty towards
the employer is implied into the contract.5
In this chapter, we discuss briefly the principal individual rights and obligations
associated with the contract of employment. This discussion is followed by a
summary of the minimum statutory conditions of service (particularly those
established by the BCEA). We then discuss the different ways in which legislative
standards might affect the rights and obligations agreed upon between the
employer and employee. Throughout this chapter, we also focus on instances in
which parties rely on their traditional common-law remedies, which often lie
parallel to employers’ and employees’ statutory rights.

2 Obligations of the employee

2.1 To report for duty and to render competent services
The main contractual obligation of the employee is to place his or her personal
services at the disposal of the employer and to render efficient service.6 Gener-
ally, the contract of employment governs the job description, the date from which
the employee must report for service, the days of the week on which services
must be rendered, the hours of service and the place of work. As previously
mentioned, employees and independent contractors are distinguished by the
fact that employees are remunerated for the potential to render services where-
as independent contractors are compensated for the completion of a piece of
work or for an end result.7
Under the common law, there are no prescribed maximum hours of work or
principles regarding rest on Sundays or annual or sick leave. As will be discussed
later in the chapter, it is left to the BCEA, sectoral determinations and collective
agreements to establish minimum and maximum conditions of employment.8
By virtue of the contract of employment, each employee implicitly guaran-
tees that he or she is capable of doing the agreed work and that the work will

________________________

5 Vettori (fn 2) at 89. In Alfred McAlpine v TPA 1974 (3) SA 506 (A) at 531D Corbett JA men-
tions that the expression ‘implied term’ denotes mainly two concepts: it refers to terms
that are automatically implied by the law, irrespective of the intention of the parties, and
to unexpressed terms derived from the common intention of the parties.
6 Smit v Workmen’s Compensation Commissioner 1979 (1) SA 51 (A) at 61C. There is a subtle
distinction between an employee’s placing his or her potential to work at the disposal of
the employer and actually working. The employee complies with the primary obligation if
he or she is present and offers to render services. If, for example, the employee reports for
duty and the employer directs that there is no work to be done, the employee is still en-
titled to be remunerated. In these circumstances, the fact that the employee is doing
nothing does not result in breach of contract. However, if instructions pertaining to work
are assigned, failure to perform the work will constitute breach of contract.
7 See eg ch 4 and Liberty Life Association of Africa Ltd v Niselow (1996) 17 ILJ 673 (LAC).
8 See para 6 ‘Statutory conditions of employment: The BCEA’.
Common-law and statutory conditions of employment 91

be performed diligently and with due care.9 The level of competence that can
be required from an employee depends on the capacity, experience and
seniority required in his or her position. Should the employee’s incompetence or
inefficiency cause the employer damage or financial loss, the employer may
elect to claim damages from the employee on contractual or delictual grounds.
At common law, a delictual claim can be instituted against a perpetrator only
in respect of his or her wilful or negligent wrongful act or omission which must be
causally linked to the damage or personal injury caused.10 As discussed later in
this chapter, the BCEA has intervened in this regard by placing limitations on
deductions from remuneration in respect of reimbursements for loss or damage
caused by an employee.11 This intervention aside, the common-law principles
have largely remained intact.
Claims by third parties against employees (and their employers) who cause
damage through their wrongful acts in the course of their employment is regu-
lated by the doctrine of vicarious liability. This doctrine remains almost exclusively
regulated by the common law.12 Public policy dictates that as long as an em-
ployee is acting in the course and scope of his or her duty13 the employer is
responsible for the wrongs committed by the employee. This principle ascribes
liability to both employer and employee even when the employee was at fault
and even though the employer might have been completely removed from the
incident. The third-party claimant has the right to elect against whom to institute
the claim.
The rationale for this doctrine rests on two foundations, namely the ‘desirability
of affording claimants efficacious remedies for harm suffered’ and the desire to
‘incite employers to take active steps’ to prevent their employees from causing
harm to members of the public.14 Employers have the right to reclaim from em-
ployees the damages so caused and paid out to third parties.
In K v Minister of Safety and Security,15 the Constitutional Court considered the
common law relating to vicarious liability and adapted existing principles to
________________________

9 Administrator, Tvl v Traub 1989 (4) SA 731 (A); NUM v Libanon Gold Mining Co Ltd (1994) 15
ILJ 585 (LAC); Muller v Unilong Freight Distributors (Edms) Bpk [1996] 2 BLLR 137 (LAC).
10 For a more comprehensive discussion of the various requirements for a delict, see Neethling,
Potgieter and Visser Law of Delict (2010) at 25.
11 See the discussion of s 34(1)–(2) at para 6 ‘Statutory conditions of employment: The BCEA’.
Amongst other things, these provisions state that an employer may not deduct money from
an employee’s remuneration without a written agreement and that the amount deducted
may not exceed a quarter of the employee’s weekly or monthly remuneration.
12 Le Roux ‘Vicarious Liability: Revisiting an Old Acquaintance’ (2003) 24 ILJ 1879.
13 See also Minister of Safety and Security v Jordaan t/a Andre Jordaan Transport (2000) 21
ILJ 2585 (SCA) at para 5; Jordaan v Bloemfontein Transitional Local Authority & another
2004 (3) SA 371 (SCA) at para 3. In Chartaprops 16 (Pty) Ltd & another v Silberman (2009)
30 ILJ 497 (SCA) it was confirmed that a principal is generally not liable for wrongs commit-
ted by an independent contractor or the contractor’s employees. A principal can, how-
ever, be held liable should a competent contractor not be appointed and third parties
be prejudiced by such an appointment.
14 K v Minister of Safety and Security [2005] 8 BLLR 749 (CC) at para 21.
15 Ibid. However, see Minister of Safety and Security v F [2011] 3 All SA 149 (SCA).
92 Law@work

accord more fully with the normative framework established by the Bill of Rights.
In this case, K claimed damages from the Minister of Safety and Security on the
grounds that when she had been in need of assistance from them, three on-
duty police officers raped her. The court noted that difficulties arise in so-called
‘deviation cases’ in which employees stray from their normal duties, especially
when, as in this case, the wrong is intentionally committed.16
O’Regan J accepted that determining the employer’s liability entails a two-
fold enquiry: a subjective test regarding the mind of the employee and an
objective test of whether the deviant actions are nevertheless sufficiently con-
nected to the employer’s concern.17 This approach, the court held, makes it
clear that, subjectively measured, even if the employee was on a frolic of his or
her own18 the employer may nevertheless be vicariously liable if the second
question is answered in the affirmative. This question is based on a mixture of
fact and of law and asks whether ‘there is nevertheless a sufficiently close link’
between the acts concerned and the ‘purpose and the business of the em-
ployer’.19 The court held that there was a sufficient nexus between the deeds of
the employees and their duties as policemen to render their employer liable for
the plaintiff’s damages.
In addition to the well-established common-law principles regarding this issue,
there are limited instances in which labour legislation establishes ‘vicarious liability’.
One such example is to be found in section 60 of the EEA20 which provides that
should an employee be subjected to discriminatory acts – sexual harassment by
another employee, for example – the aggrieved employee may choose to take
steps against the employer rather than against the perpetrator.21

2.2 To be respectful and obey lawful instructions

Even though not every employee necessarily works under the direct supervision
and control of a supervisor, employees have an implied duty to be respectful
and to obey reasonable instructions. This duty is derived from the traditional
________________________

16 In Viljoen v Smit (1997) 18 ILJ 61 (A) an employee deviated from his assigned duties in
order to relieve himself on the neighbouring farm. He caused a fire that resulted in severe
damage to that farm. The court held the employer vicariously liable for the wrongful act
of the employee.
17 This test was established in Minister of Police v Rabie 1986 (1) SA 117 (A).
18 At para 27 the court cited with approval the dictum in Feldman (Pty) Ltd v Mall 1945 AD
733 at 744 that ‘the servant, while on his frolic may at the same time be doing his master’s
work and also because a servant’s indulgence in a frolic may in itself constitute a neglect
to perform his master’s work properly’.
19 At para 32.
20 Another example can be found in s 198(4) of the LRA that makes temporary employment
services and their clients jointly and severally liable for the transgression of the provisions of
the BCEA and of collective agreements and arbitration awards. See the discussion in ch 4
at para 6 ‘Casual work’.
21 S 60(1) of the EEA. See Ntsabo v Real Security CC [2004] 1 BLLR 58 (LC) at 91C–D. In
Grobler v Naspers Bpk & another [2004] 5 BLLR 455 (C) it was held that this statutory form of
liability does not oust the common-law doctrine of vicarious liability. See also Media 24 Ltd
& another v Grobler [2005] 7 BLLR 649 (SCA) and ch 6.
Common-law and statutory conditions of employment 93

nature of the contract of employment in terms of which it is generally accepted

that the employer is the bearer of authority and the employee is the one who
must comply with the instructions of the employer.22
The right of the employer to control the manner in which the employee works
and the authority to determine the place at which the employee works are im-
plied consequences of the contract of employment. Gross insubordination, which
includes wilful and persistent refusal to obey the instructions of the employer,
amounts to breach of contract and would entitle the employer to terminate the
agreement.23 As discussed more fully in chapter 9, the modern position is that
the employer has the right to institute disciplinary action which, depending on
the severity of insubordination, could lead to dismissal of the employee.

2.3 To render services in good faith

2.3.1 Introduction
It is a well-established common-law principle that employees are obliged to
render services in good faith by furthering their employers’ business interests.24
The employee owes his or her employer a fiduciary duty and stands in a position
of trust and confidence in relation to the employer. This implies a duty to protect
the employer’s interests and that the employee is ‘not allowed to make secret
profit at the other’s expense or place himself [or herself] in a position where his
[or her] interests conflict with this duty’.25 It is generally accepted that these
duties form part of each contract of employment, irrespective of whether the
parties agree to include it expressly as a contractual term.26

2.3.2 A strict ‘catch-all’ obligation

In Phillips v Fieldstone Africa (Pty) Ltd & another 27 the employer’s business was to
raise capital for its clients. The employer was often paid for its services in the form
of shares issued to the employer by the client. Phillips, an employee of Field-
stone Africa, bought and sold shares of one of the employer’s clients in his own
________________________

22 In Smit v Workmen’s Compensation Commissioner (fn 6) 61 it was held that ‘[t]he employee
is in terms of the contract of service subordinate to the will of the employer. He is obliged
to obey the lawful commands, orders or instructions of the employer’.
23 Johannes v Polyoak (Pty) Ltd [1998] 1 BLLR 18 (LAC).
24 Mischke ‘Acting in Good Faith: Courts Focus on Employee’s Fiduciary Duty to the Employer’
(2004) CLL 14(1) 1; Volvo (Southern Africa) (Pty) Ltd v Yssel [2010] 2 BLLR 128 (SCA).
25 In Robinson v Randfontein Estates Gold Mining Co 1921 AD 168 at 177. In Western Platinum
Refinery Ltd v Hlebela [2015] 9 BLLR 940 (LAC) it was confirmed that an employee may be
obliged to assist management in bringing perpetrators of misconduct to book. Their failure
to come forward may amount to ‘derivative misconduct’.
26 In Council for Scientific and Industrial Research v Fijen [1996] 6 BLLR 685 (A) at 692 it was
held that these duties simply flow from naturalia contractus rather than from an implied
term. However, in the following cases it was treated as an implied term: Sappi Novaboard
(Pty) Ltd v Bolleurs [1998] 5 BLLR 460 (LAC); Ganes & another v Telekom Namibia (2004) 23
ILJ 995 (SCA).
27 In Phillips v Fieldstone Africa (Pty) Ltd & another (2004) 25 ILJ 1005 (SCA) at para 30 the
court noted that the principles confirmed in the Robinson case (fn 25) had ‘stood unchal-
lenged for 80 years’.
94 Law@work

name even though the employer was interested in acquiring the shares in its
name. He resold the shares and made a profit of R11 250 000. The Supreme
Court of Appeal traversed the common-law developments regarding the duty
of good faith and offered the following pointers:
l The rule that the employee is not allowed to make secret profits at the ex-
pense of his or her employer or to be in a position in which his or her own in-
terests conflict with this duty is a strict one that allows little room for exceptions.
l The rule relates not only to actual conflicts of interest but also to conflicts
which are a real, sensible possibility.
l The defences open to a fiduciary in breach of the duty are limited. Only the
full consent of the principal or employer after complete disclosure will suffice.
The Supreme Court of Appeal agreed with the decision of the court a quo that
the employee had acted in breach of his duty of good faith and was liable to
account to his employer for his secret profits.28
A breach of the duty of good faith is often used as a type of catch-all charge
when employees are charged with misconduct. Should a breach of the em-
ployee’s fiduciary duty be proven during disciplinary proceedings, it will gener-
ally be accepted as a sufficient and fair reason for dismissal.
The application of a contractual duty of good faith and its reciprocal nature
was discussed at some length by the Constitutional Court in the context of
derivative misconduct.29 The court emphasised the reciprocal nature of an
obligation and held that the contractual duty of good faith does not as a mat-
ter of law imply the imposition of a unilateral fiduciary obligation on employees
to disclose information of misconduct committed by co-employees.

2.3.3 Restraint of trade

Employers often seek to protect their business interests, both during the term of
a contract of employment and at the contract’s termination, by means of con-
fidentiality clauses and restraint-of-trade agreements (sometimes called restrictive
covenants). A restraint of trade typically provides that after termination of the
contract of employment (on whatever grounds) the employee is prohibited from
performing similar work in competition with his or her former employer within a
defined area for a prescribed period.30 In other words, the restraint specifies the
________________________

28 See also Ganes & another v Telekom Namibia (fn 26) at para 25 where the court con-
firmed the employer’s right to institute a claim for damages against an employee for his or
her breach of the duty to act in good faith. In this case, the employer was awarded
damages in an amount exceeding R2 700 000.
29 National Union of Metalworkers of SA obo Nganezi & others v Dunlop Mixing and Tech-
nical Services (Pty) Ltd (CCT 202/18, 28 Feb 2019). For a discussion on derivative miscon-
duct, see ch 11 at para 1.3.1, and Idensohn ‘The Nature and Scope of Employees’ Fiduci-
ary Duties’ (2012) 33 ILJ 1539.
30 In Reeves & another v Marfield Insurance Brokers CC & another 1996 (3) SA 766 (A) at 772
it was held that ‘[t]he legitimate object of a restraint is to protect the employer’s goodwill
and customer connections (or trade secrets) and the restraint accordingly remains effective
for a specified period (which must be reasonable) after the employment relationship has
come to an end’.
Common-law and statutory conditions of employment 95

work in which the restrained employee may not engage, the area within which
the employee may not compete and the period for which the employee is
restrained.
In Magna Alloys & Research SA (Pty) Ltd v Ellis 31 the former Appellate Division
for the first time clearly established that restraint agreements are valid and en-
forceable unless they are contrary to public policy.32 The court held that restraint
agreements remain valid until such time as an employee who contests the en-
forceability of the agreement discharges the onus of proving that it is contrary
to public policy.33
The central criterion for determining whether such agreements accord with
public policy is that of reasonableness. In Basson v Chilwan & others,34 the former
Appellate Division held that the following factors should be taken into account
when the reasonableness of a restraint is considered:
l whether the restraint covers a legitimate interest of the one party deserving
of protection;
l whether that interest is being prejudiced by the other party;
l if so, whether that interest so outweighs, qualitatively and quantitatively, the
interest of the other party as to warrant the latter’s economic inactivity and
unproductiveness; and
l any aspect of public policy which requires that the restraint be enforced or
not.
In Reddy v Siemens Telecommunications (Pty) Ltd 35 the Supreme Court of Appeal
accepted that the determination of reasonableness entails a value judgement
and added an additional touchstone, namely whether the restraint goes further
than is necessary to protect the employer’s protectable interest; if it does, the
agreement will be deemed contrary to public policy. In Vodacom (Pty) Ltd v
Motsa & another 36 the Labour Court held that for the purpose of determining
the reasonableness of the duration of a restraint of trade clause, any obligation
on the employee to take ‘gardening leave’, also needs to be taken into account.
On a number of occasions, the courts have stated that the law as reflected in
Magna Alloys has not been altered dramatically by the constitutional right of
persons to choose freely their trade, occupation or profession.37 If a restraint
________________________

31 1984 (4) SA 874 (A).

32 Prior to this judgment, the courts had accepted that a restraint agreement was contrary
to public policy, and therefore void, unless it was shown to be reasonable.
33 This approach was closely followed in Lifeguards Africa (Pty) Ltd v Raubenheimer (2006)
27 ILJ 2521 (D) at para 28.
34 1993 (3) SA 742 (A) at 767H.
35 (2007) 28 ILJ 317 (SCA) at para 17. This additional criterion was also used in Nampesca
(SA) Products (Pty) Ltd v Zaderer (1999) 20 ILJ 549 (C) at 556H–J.
36 [2016] 5 BLLR 523 (LC). At para 22 the court held that gardening leave is typically under-
stood to ‘provide that if an employee gives notice, the employer may require the em-
ployee to spend a whole or part of the notice period at home [with pay], thus allowing
confidential information to which the employee had access to become stale’.
37 As contained in s 22 of the Constitution. See Waltons Stationery Co (Edms) Bpk v Fourie
1994 (4) SA 507 (O); Kotze & Genis (Edms) Bpk v Potgieter 1995 (3) BCLR 349 (C); Knox
continued on next page
96 Law@work

agreement is enforceable in terms of common-law criteria, it would also meet

the requirements of reasonableness and justifiability established by section 36(1)
of the Constitution.38 Having said this, it does seem that the courts are becoming
more critical of restraint-of-trade agreements because the restrictive measures
they establish must be balanced against the employee’s interest in not being
economically inactive and against the constitutional values of dignity, equality
and freedom to engage in economic activity.39
Does wrongful termination of a contract of employment terminate the bind-
ing effect of a restraint-of-trade provision?40 In Reeves & another v Marfield In-
surance Brokers CC & another 41 the former Appellate Division cast doubt on the
principle that unlawful or unfair termination of a contract of employment puts
an end to any restraint of trade. The court held that the need to protect an em-
ployer’s proprietary interest exists independently of the manner in which a con-
tract is terminated42 and that breach by the employer may take many forms
including breaches of a mere technical nature.

3 Obligations of the employer

3.1 To remunerate the employee
The payment of remuneration to employees for services rendered is the primary
obligation of employers. The amount of remuneration is determined by the par-
ties and the intervals (daily, weekly or monthly) and method of payment (be it in
cash, commission or kind) is generally contained in the contract of employment.
There is not as yet a general statutory minimum wage and the parties to the
agreement can hypothetically agree on any salary. This does not leave employ-
ees without protection, however. Current labour law recognises that employees
are in a weak bargaining position in respect of the work/wage bargain and a
number of mechanisms have been implemented to improve their position. The
main mechanism is collective bargaining. The LRA makes provision for the estab-
lishment of bargaining councils, the granting of organisational rights to trade
unions and the right to strike.43 These factors promote the process of collective
________________________

D’Arcy Ltd v Shaw 1996 (2) SA 651 (W), Ball v Bambalela Bolts (Pty) Ltd & another [2013] 9
BLLR 843 (LAC), and New Justfun Group (Pty) Ltd v Turner & others (2018) 39 ILJ 2721 (LC).
38 Fidelity Guards Holdings (Pty) Ltd v Pearmain [1998] 3 BLLR 334 (SE). In Coetzee v Comitis &
others (2001) 22 ILJ 331 (C) it was held that the restrictions contained in the constitution of
the National Soccer League constituted a restraint of trade which in the circumstances was
inconsistent with the Constitution and therefore invalid. See also Reddy v Siemens Tele-
communications (Pty) Ltd (fn 35).
39 See Random Logic (Pty) Ltd t/a Nashua, Cape Town v Dempster (2009) 30 ILJ 1762 (C);
Mozart Ice Cream Classic Franchises (Pty) Ltd v Davidoff & another (2009) 30 ILJ 1750 (C);
David Crouch Marketing CC v Du Plessis (2009) 30 ILJ 1828 (LC).
40 This was the view of the High Court in Info DB Computers v Newby & another (1996) 17 ILJ
32 (WLD) at 35D–F.
41 Fn 30.
42 Fn 30 at 772G.
43 This structure is established in the LRA. See the discussion in ch 1 at para 1 ‘The discipline of
labour law’.
Common-law and statutory conditions of employment 97

bargaining which in turn culminates in a binding collective agreement that con-

tains minimum wages for employees in the sector covered by the agreement.
Sectoral determinations serve a purpose parallel to that of collective bargain-
ing. They function as a safety net and are issued by the Minister of Employment
and Labour (Minister) in terms of the BCEA for sectors that are not covered by
bargaining councils and collective agreements.44 So, for example, domestic
workers and farm workers are covered by sectoral agreements that establish a
minimum wage for the domestic and agricultural sectors.45
Should an employer be declared insolvent, all contracts of employment with
the employer are suspended.46 Employees of the employer are not obliged to
render services and are not entitled to remuneration unless the trustee or liquid-
ator agrees to continue employment. Suspended contracts of employment auto-
matically terminate 45 days after the appointment of the trustee or liquidator.
Employees have a preferential claim against the insolvent estate for unpaid
salary and severance pay in terms of the BCEA.47

3.2 To provide safe working conditions

Employees often render services under hazardous conditions. At common law,
there is a duty on employers to establish safe working conditions for their em-
ployees.48 This duty extends to the provision of safe machinery and of safety
clothing and equipment. This duty could have its origin in either the law of delict
or the law of contract.
An employee affected by his or her employer’s breach of this duty has a claim
for damages against the employer. Should the employer’s negligent conduct
lead to injury the employee will clearly have a delictual claim. However, should
the employer be in breach of an agreement to provide safety clothing, for
example, the employer’s failure to do so would give rise to a contractual claim.
Section 35(1) of the COIDA immunises employers against certain delictual
claims.49 The Act establishes a statutory insurance scheme in terms of which
________________________

44 See the discussion of sectoral determinations in ch 5 at para 6.3 ‘Sectoral determinations’.

45 The definition of ‘remuneration’ in terms of the BCEA is relevant when, for example, sever-
ance pay, pay in lieu of notice, and leave pay are calculated. S 35(5) of the BCEA provides
that remuneration includes housing allowances or subsidies, car allowances, payments in
kind, and employers’ contributions to pension or provident funds and medical aids. Pay-
ment for tools of a trade, transport allowances, entertainment allowances and education
or schooling allowances are not included under the rubric of remuneration.
46 S 38 of the Insolvency Act 24 of 1936. See Boraine and Van Eck ‘The New Insolvency and
Labour Package: How Successful was the Integration?’ (2003) 24 ILJ 1840. S 9(4A) of the
Insolvency Act provides that a copy of the sequestration petition needs to be served on
the insolvent employer’s employees. In Stratford & others v Investec Bank Ltd & others
(2015) 36 ILJ 583 (CC) the Constitutional Court confirmed that the term ‘worker’ is not
limited to workers in a commercial setting, but that it also applies to domestic workers.
47 S 41 of the BCEA and s 98A of the Insolvency Act.
48 This principle was confirmed in early cases. See Nicholson v East Rand Pty Mines Ltd 1910
WLD 235; Lahrs v SAR&H 1931 CPD 289; SAR&H v Cruywagen 1938 CPD 219; Van Heerden
v SA Pulp & Paper Industries Ltd 1946 AD 385.
49 See the discussion in ch 18 at para 4.1 ‘Employment injuries and diseases’.
98 Law@work

employees must claim compensation for occupational injuries or diseases from

the compensation commissioner rather than from their employer.50 However,
the COIDA does not cover all harms that might be caused in the employer-
employee relationship.
In Media 24 Ltd & another v Grobler,51 the Supreme Court of Appeal con-
sidered a case in which an employee instituted a claim against her employer
after being subjected to sexual harassment by a supervisor. The employer raised
the jurisdictional point that the harassment in this instance had resulted in an
occupational injury and that the COIDA immunised the employer against a
common-law claim for damages in respect of those injuries. The court held that
on the facts this incident had occurred outside the course of the employee’s
employment and awarded her damages based on the employer’s breach of its
common-law obligation to provide safe working conditions in both a physical
and a psychological sense.

3.3 To treat the employee with respect and dignity

A moot point relates to whether the duty to act in good faith is reciprocal in so
far as it can be relied on by employees to initiate claims against their employers
for damage to dignity, self-respect or psychological integrity. In Council for
Scientific and Industrial Research v Fijen 52 the Supreme Court of Appeal recog-
nised that there is an implied duty on the employer not to conduct itself in a
manner that is likely to destroy or damage the relationship of confidence and
trust with the employee. However, employers have relied on a breach of the
relationship of trust more often than employees who have not fully realised the
potential in what is in all likelihood a reciprocal duty. Bosch53 argues that the
civil courts have shown a willingness under the Constitution to extend contrac-
tual remedies.54 He argues that rather than seek a remedy in labour legislation
(for example, by resigning and seeking redress on the grounds of constructive
dismissal), employees could claim a breach of the reciprocal duty of trust and
confidence when their employer ‘behaves in an uncaring, abusive manner’.55

________________________

50 The constitutionality of this model was challenged without success in Jooste v Score Super-
market Trading (Pty) Ltd (1999) 20 ILJ 525 (CC). In Mankayi v Anglogold Ashanti Ltd (2011)
32 ILJ 545 (CC) the Constitutional Court held that mineworkers performing risk work and
contracting a compensatable disease under the Occupational Diseases in Mines and
Works Act 78 of 1973 are not covered by s 35 of the COIDA and can consequently insti-
tute a common-law claim for damages against their employer.
51 Fn 21.
52 Fn 26.
53 Bosch ‘The Implied Term of Trust and Confidence in South African Labour Law’ (2006) 27
ILJ 28 at 51.
54 In Fedlife Assurance Ltd v Wolfaardt [2001] 12 BLLR 1301 (SCA) at para 27 it was suggested
that the right not to be unfairly dismissed may have been introduced into the contract of
employment by the Constitution.
55 Bosch (fn 53) at 51. At 31 he argues that, rather than relying on the general right to fair
labour practices contained in the Constitution, litigants may opt to seek remedies based
on the common-law duty of good faith.
Common-law and statutory conditions of employment 99

A person’s dignity is protected by means of the actio injuriarum.56 Under this

action the plaintiff has to prove that there was a wrongful and intentional in-
fringement of an interest of personality before damages will be awarded.
Although the courts have held that wrongful dismissal or suspension is not an
injuria in itself for which damages other than those emanating from the breach
of contract can be claimed,57 there is authority to the effect that under excep-
tional circumstances such a claim remains viable. So, for example, in Marais v
Member of the Executive Council, Department of Education, Eastern Cape Prov-
ince 58 the plaintiff, an educator in the employ of the Department of Education,
was redeployed in contravention of a bargaining council resolution. He was
threatened with dismissal if he failed to report for duty. The plaintiff contended
that he had been subjected to psychological trauma, stress and financial preju-
dice and that he had incurred increased medical costs. The Labour Court set
the transfer aside and the plaintiff then lodged a claim for common-law dam-
ages in the High Court based on the impairment of his dignity. A full bench held
that the Department of Education had acted wrongfully and that the action had
been carried out with the intention of harming the applicant (animo injuriandi).

4 Termination, breach of contract and remedies

4.1 Termination of the contract of employment
A contract of employment terminates in any one of a number of ways. For
example, the contract can end by the effluxion of time or be terminated by
one of the parties to the agreement. If a contract of employment is concluded
for a specific period, such as a month, a year or until the completion of a spe-
cific project, the contract terminates without further notice at the end of the
fixed term or on completion of the project. So, for example, the parties can
agree that a builder will be employed until the construction of a dam or road
has been completed. As discussed in chapter 4, the LRA extends protection to
low-earning employees by requiring a justifiable reason for the fixed term.
A contract of employment concluded for an indefinite period is terminated
by the effluxion of time when the employee reaches retirement age. Such con-
tracts are often erroneously referred to as ‘permanent’ contracts. This is not an
accurate description, however, because this subspecies of contract often makes
provision for the termination of the agreement, with or without notice, before re-
tirement age is reached. Indefinite contracts typically specify the agreed notifi-
cation period and in most instances also provide that the prescribed notice must
be given to the other party in writing. If an employee fails to give the required
notice, the contract terminates at the end of the notice period. By failing to
give the required notice, the employee breaches the contract thus entitling the

________________________

56 See Minister of Police v Mbilini 1983 (3) SA 705 (A); Minister of Justice v Hofmeyr 1993 (3) SA
131 (A).
57 Ndamse v University College of Fort Hare & another 1966 (4) SA 137 (E) at 139G–H.
58 (2008) 29 ILJ 1697 (E).
100 Law@work

employer to hold the employee to the contract, or to accept the repudiation

and claim damages.59
By its very nature, the contract of employment, which entails the rendering of
personal services, also ends when the employee dies.60
The BCEA and the LRA have each in their different ways adapted the common-
law position regarding the termination of contracts of employment. The BCEA
places limitations on notice periods contained in indefinite contracts of em-
ployment.61 Traditionally, the law of contract did not recognise the right not to
be unfairly dismissed. However, the LRA has changed this by requiring due pro-
cess and a fair reason before employment may be terminated.62
The statutory right not to be unfairly dismissed63 trumps an employer’s common-
law entitlement to terminate a contract of employment by giving the required
notice, or by terminating the contract without notice when summary dismissal is
warranted. The BCEA acknowledges this right and states that nothing in the Act
that makes provision for notice affects the right of a dismissed employee to dis-
pute the fairness of his or her dismissal in terms of the LRA.64 Stated differently,
although an employer has a common-law right to terminate a contract of em-
ployment by giving an employee the required notice, the existence of this right
does not preclude the employee from referring an unfair dismissal dispute to the
CCMA or Labour Court.

4.2 Breach of contract and common-law remedies

A party to a contract of employment who fails to comply with the obligations
imposed by the contract is guilty of a breach of contract. In context of the
common law, it is important to distinguish between serious and less serious
breaches of contract. A serious (or material) breach is one that relates to the
essential obligations of the contract. So, for example, the conduct of an em-
ployee who breaches the fiduciary duty of good faith by making secret profits
or fails without reason to report for duty for an extended period would go to the
heart of the contract.
The distinction between material and less serious forms of breach is significant
in relation to the contractual remedies to which the aggrieved party to the con-
tract is entitled. At common law, a contract of employment may be terminated
summarily (without notice) if one of the parties materially breaches the con-
tract.65 Minor infringements relating to late-coming and the careless execution of

________________________

59 Vodacom (Pty) Ltd v Motsa & another [2016] 5 BLLR 523 (LC); Coetzee v Zeitz Mocaa
Foundation Trust & others [2018] 9 BLLR 909 (LC).
60 Smit v Workmen’s Compensation Commissioner (fn 6) at 61–62.
61 See s 37(1) of the BCEA and the discussion in ch 5 at para 6.2.4 ‘Termination of employ-
ment’.
62 See s 188 of the LRA and the discussion in ch 9.
63 S 185(a) states that every employee has the right not to be unfairly dismissed.
64 See s 37(6) of the BCEA and the discussion in ch 5 at para 6.2.4 ‘Termination of employ-
ment’.
65 Stewart Wrightson (Pty) Ltd v Thorpe 1977 (2) SA 943 (A).
Common-law and statutory conditions of employment 101

instructions that do not cause the employer financial harm can be classified as
less serious breaches that do not justify the summary termination of the contract.66
Following a breach of the contract the aggrieved party may elect to claim
specific performance of the contract or cancel the agreement. The claimant
can combine one of these remedies with a claim for common-law damages.67
An order for specific performance is one in terms of which the defaulting party is
ordered to fulfil the contractual obligations. For example, an employee who is
summarily dismissed without reason could seek reinstatement by the employer.
Cancellation means terminating the contract of employment. Common-law
damages can be claimed only when the aggrieved party suffers actual loss. The
quantum of damages for breach of a fixed term contract is the actual loss suf-
fered represented by the sum due for the unexpired portion of the contract less
any sum that the employee earned or could reasonably have earned in that
period, in similar employment.68
Enforcement and cancellation are mutually exclusive remedies – the inno-
cent party must make an election between them, and cannot approbate and
reprobate.69
The common-law remedies are inadequate in the context of employment
relationships for a number of reasons. First, for many years the courts doubted
whether specific performance could be enforced in a personal relationship such
as employment.70 Secondly, it could be extremely difficult and time-consuming
to prove actual damages suffered as a result of the unlawful termination of, in
particular, indefinite contracts of employment. Finally, the common law did not
recognise due process prior to termination of a contract of employment as an
enforceable right that could attract the remedies associated with breach of
contract.
All of this changed with the enactment of the Constitution, with its fundamen-
tal right to fair labour practices, and with the implementation of the LRA, which
codifies the law concerning unfair dismissal and establishes statutory remedies for
unfair labour practices and unfair dismissal. As discussed more fully in chapter 9,

________________________

66 Holgate v Minister of Justice (1995) 16 ILJ 1426 (E).

67 WL Ochse Webb & Pretorius (Pty) Ltd v Vermeulen [1997] 2 BLLR 124 (LAC). A claim for
damages is ordinarily pleaded in the alternative to a claim for specific performance.
68 Meyers v Abramson 1952 (3) SA 121 (C). Common-law damages do not equate to com-
pensation that may be claimed in terms of s 194 of the LRA. In KwaZulu-Natal Tourism
Authority & others v Wasa [2016] 11 BLLR 1135 (LAC) at para 32 the court confirmed that
an employee who claims common-law damages in terms of s 77(3) of the BCEA, must
prove that the damages were suffered in consequence of such breach, as well as the
quantum of such damages.
69 Septoo v City of Johannesburg (2018) 39 ILJ 580 (LAC).
70 In Schierhout v Minister of Justice 1926 AD 99, the court initially adopted the English-law
principle that the only remedy available to an employee who had been wrongfully dis-
missed was an action for damages. This changed when the court in National Union of Tex-
tile Workers v Stag Packing (Pty) Ltd & another 1982 (4) SA 151 (T) held that there was no
fixed rule prohibiting such an order and that it was in the court’s discretion whether to
order specific performance of duties in terms of a contract of employment.
102 Law@work

the LRA has elevated reinstatement as the primary remedy for unfair dismissal,
and caps have been placed on statutory compensation that can be awarded
to unfairly dismissed employees. Soon after the enactment of the LRA, the ex-
tent to which the common-law remedies survived the introduction of statutory
remedies for unfair dismissal was tested.
In an important development, the Supreme Court of Appeal in Fedlife Assur-
ance Ltd v Wolfaardt 71 accepted the possibility that the Constitution might have
imported into the common-law contract of employment the right not to be
unfairly dismissed.72 In this case, the employee was employed in terms of a five-
year fixed-term contract. When the employer prematurely terminated the con-
tract, the employee approached the High Court on the basis of a breach of
contract of employment rather than file a claim in the CCMA for unfair dismis-
sal. The court rejected the employer’s contention that the High Court lacked
jurisdiction. The court held that while the labour courts may have exclusive juris-
diction in respect of unfair dismissals the LRA ‘does not expressly abrogate an
employee’s common-law entitlement to enforce contractual rights’.73 In
Makhanya v University of Zululand 74 Nugent JA held that it is not unusual for two
rights to be asserted from the same facts. A claimant could, for example, on the
same facts, claim so-called ‘LRA rights’ in the CCMA and Labour Court and
common-law rights in the High Court.
Does this mean that an employee has the option of claiming common-law
damages for a breach of pre-dismissal procedures?75 It seems not. In SA Mari-
time Safety Authority v McKenzie76 Wallis AJA triggered what appears to be an

________________________

71 Fn 54.
72 S 23(1) of the Constitution recognises everyone’s right to fair labour practices and s 39(2)
directs that when the courts develop the common law they promote the spirit and
objects of the Bill of Rights. In his minority judgment, Froneman AJA held (at paras 42–44)
that the right not to be unfairly dismissed is a wider concept than the one based on law-
fulness and that the first encompasses the second. Because the LRA regulates the right
not to be unfairly dismissed and deals fully with the consequences and remedies for unfair
dismissal, he concluded that the High Court should abstain from entertaining such dis-
putes.
73 At 1306C. See also Old Mutual Life Assurance Co SA Ltd v Gumbi [2007] 8 BLLR 699 (SCA);
Boxer Superstores Mthatha & another v Mbenya [2007] 8 BLLR 693 (SCA); Pretorius and
Myburgh ‘A Dual System of Dismissal Law: Comment on Boxer Superstores Mthatha &
Another v Mbenya (2007) 28 ILJ 2209 (SCA), (2007) 28 ILJ 2172; Van Eck ‘The Right to a Pre-
dismissal Hearing in Terms of the Common Law: Are the Courts Misdirected?’ (2008) 29
Obiter 339.
74 [2009] 8 BLLR 721 (SCA). See also Steenkamp and Bosch ‘Labour Dispute Resolution under
the 1995 LRA: Problems, Pitfalls and Potential’ in Le Roux and Rycroft (eds) Reinventing
Labour Law: Reflecting on the First 15 Years of the Labour Relations Act and Future Chal-
lenges (2012) at 134.
75 In the United Kingdom, in Eastwood & another v Magnox Electric plc [2004] UK HL 35, the
House of Lords rejected arguments in favour of granting common-law damages in cir-
cumstances in which labour legislation provides for the payment of compensation for
unfair dismissal. The House of Lords was following an earlier decision by the same court,
Johnson v Unisys Ltd [2001] UK HL 31.
76 [2010] 5 BLLR 488 (SCA).
Common-law and statutory conditions of employment 103

about-turn in the Supreme Court of Appeal’s previous stance and concluded

that the common-law contract of employment has not been developed so as
to include an implied or tacit term that gives an employee the right to a dis-
ciplinary enquiry prior to termination of the contract. The court held that, in so
far as the LRA establishes a special remedy for unfair dismissal, it is not necessary
to imply terms into the common-law contract of employment to protect dis-
missed employees.77 However, the court was at pains to explain that civil courts
retained the jurisdiction to entertain common-law disputes associated with con-
tracts of employment.78
Section 77(3) of the BCEA confirms the fact that common-law remedies have
not been altogether destroyed by the statutory remedies. The Act confers con-
current jurisdiction on the High Court and Labour Court to ‘determine any mat-
ter concerning a contract of employment’. Section 77A(e) of the BCEA further
provides that the Labour Court has the power to make any appropriate order,
including:
(e) making a determination that it considers reasonable on any matter concern-
ing a contract of employment in terms of section 77(3), which determination
may include an order for specific performance, an award of damages or an
award of compensation . . .
In Rand Water v Stoop79 the Labour Appeal Court had an opportunity to con-
sider the interaction between an employee’s right not to be unfairly dismissed
and an employer’s right to institute a counterclaim based on a breach of the
employee’s implied fiduciary duty to act in good faith. Rand Water dismissed
two of its employees after a disciplinary hearing found that they had defrauded
the employer of more than R8 million. The employees claimed that they had
been unfairly dismissed in terms of the LRA and Rand Water instituted a counter-
claim in terms of section 77(3) of the BCEA for their breach of the contract of
employment. The court relied on the principle that ‘it is an implied term of the
contract of employment that the employee will serve the employer honestly
and faithfully’80 and found that it had jurisdiction to award contractual damages
against employees when claims based on unfair dismissal and breach of con-
tract relate to the same set of facts.

5 Contractual agreement and variation of contractual terms

In all employment relationships, there is a distinction between terms and condi-
tions of employment that form the subject of agreed terms, and what might be
described as work practices, which may be varied without prior consent. So, for
example, workplace customs and practices, such as a year-end social function
________________________

77 Ibid at para 57.

78 At para 58 the court held that ‘[i]n the present case the issue is whether Mr McKenzie’s
contract contains a term implied by law as pleaded by him. That is a question within this
Court’s jurisdiction and in my view the answer is that it does not. What creates difficulties is
when the merits of a claim are confused with the jurisdiction to deal with it’.
79 (2013) 34 ILJ 576 (LAC).
80 Ibid. At para 16 the court relied on this dictum from Sappi Novaboard (fn 26).
104 Law@work

provided by the employer and intended as a gesture of appreciation,81 is not a

term and condition of employment rather than a custom that an employer is
entitled to change or even abolish.
It is unusual for written contracts of employment to be exhaustive of all of the
terms and conditions of employment. Some terms may at least be incorporated
by reference from any number of sources, including company practice, collect-
ive agreements, company handbooks, and statements of policy issued from
time to time.
The terms of a contract of employment may establish their own vehicle for
variation. If the benefits conferred on the employee are subject to amendment
or withdrawal at any time, then the employer is entitled to effect any unilateral
variation to those benefits in accordance with the contract. The most obvious
solution to the constraints imposed by the terms of any employment contract is
to attempt to secure consensus with the affected employees through a process
of negotiation. If negotiation fails, the employer may place pressure on the
affected employees to accept the change.
In Monyela & others v Bruce Jacobs t/a LV Construction82 Zondo J expressed
the following view:
In law an employer has no right to change the terms and conditions of employ-
ment of workers unilaterally. If the employer wants a change in the terms and con-
ditions of employment of its workers it can only change them if the workers consent
to such a change. If the workers do not agree to such a change, the employer
has to choose one of two options open to him. The one is to institute a lock-out
against the workers with the purpose of compelling the workers to accept the pro-
posed change to their terms and conditions of employment or it can lawfully and
fairly terminate the existing contracts of employment of the workers whereafter it
can then ensure that whoever it employs accepts terms and conditions of em-
ployment which include the changes it had sought to effect on the dismissed
workforce.83
The courts have held that even where a contract expressly or impliedly confers
a discretion on the employer to effect amendments to its terms, this is not an
unfettered discretion. In Erasmus & others v Senwes Ltd & others 84 the High Court
held that an employer was not permitted to amend unilaterally the terms of a post-
retirement health care subsidy. The discretion had to be exercised reasonably:85
Considering the evidence as a whole, the proposed changes were probably mo-
tivated by a desire on the part of Senwes to increase its profitability. There is nothing
wrong with a desire to increase profitability, but on the evidence before this court
it is unreasonable for Senwes to seek to do so at the applicants’ expense. In the
context of the right to amend contractual terms, the reasonable exercise of dis-
cretion must take into account the rights and interests of both (or all) parties to the
________________________

81 See CEPPWAWU obo Konstable v Safcol [2003] 3 BLLR 246 (LC).

82 (1998) 19 ILJ 75 (LC). The second option referred to by Zondo J has since been called into
question by the amendment in 2014 to s 187(1)(c) of the LRA – see ch 10 at para 5 ‘Em-
ployee’s refusal to accept a demand in respect of any matter of mutual interest’.
83 At 82C–E.
84 (2006) 27 ILJ 259 (T).
85 At 267C–H.
Common-law and statutory conditions of employment 105

contract. It must balance those rights and interests, always bearing in mind the
nature of the original contractual obligation.
The court concluded that Senwes had failed to consider the interests of the
pensioners prior to amending the contractual subsidy for post-retirement health
care, and in so doing had breached the contract with its pensioners. The court
found support for its decision in section 23 of the Constitution, and in particular,
the right to fair labour practices.
Collective agreements are discussed more fully in chapter 15. For present pur-
poses, it is sufficient to note that collective agreements, defined in the LRA to
mean written agreements concluded between registered trade unions and an
employer and/or a registered employers’ organisation, are an important mech-
anism for the regulation of terms and conditions of employment. The LRA con-
fers binding force on collective agreements and provides that their terms vary,
where applicable, any contract of employment between an employer and an
employee who are both bound by the agreement.86 In other words, collective
agreements, when they regulate a term and condition of employment, super-
sede a contract of employment. This consequence is reinforced by section 199
of the LRA, which provides that a contract of employment may not permit an
employee to be paid less remuneration or treated less favourably than pre-
scribed by any applicable collective agreement. Any term of a contract of
employment that waives these protections is invalid.87 Unlike in many other juris-
dictions, collective agreements do not have to be registered with an adminis-
trative authority in order to acquire legal force and effect.

6 Statutory conditions of employment: the BCEA and NMWA

6.1 Introduction
The principal statute giving effect to statutory minimum terms and conditions of
employment is the BCEA. The stated purpose of the Act is to advance economic
development and social justice by establishing and enforcing minimum con-
ditions of employment, and by defining the circumstances in which these min-
imum standards may be varied. The policy that underlines the Act is referred to
as ‘regulated flexibility’; a framework within which a balance between employer
and employee interests in security can be achieved.88
The BCEA provides a default set of conditions of employment. In other words,
when a contract of employment or a wage-regulating measure (a sectoral
________________________

86 S 23(3) of the LRA.

87 S 199(2) of the LRA.
88 See Cheadle ‘Regulated Flexibility: Revisiting the LRA and BCEA’ (2006) 27 ILJ 663 at 668.
Cheadle suggests that employers have an interest in employment flexibility (the ability to
change employment levels quickly and cheaply), wage flexibility (the ability to determine
wage levels without constraint) and functional flexibility (the ability to alter work processes,
terms and conditions of employment quickly and cheaply). Employees, on the other hand,
have an interest in labour market security, work security and security of representation.
See also Van Eck ‘Regulated Flexibility and the Labour Relations Amendment Bill of 2012’
(2013) De Jure 600.
106 Law@work

determination, a bargaining council agreement, or a collective agreement con-

cluded outside a bargaining council) is silent about a basic condition of employ-
ment provided for in the BCEA, the particular statutory condition is automatically
included in the contract. For example, the BCEA provides for three days’ paid
family responsibility leave.89 If the contracting parties overlooked the inclusion of
family responsibility leave in their contract, or if the contract provides for only
one day’s leave, the employee is nonetheless entitled to three days’ family
responsibility leave. On the other hand, should the contract of employment or
wage-regulating measure provide for more favourable terms and conditions,
these trump any minimum condition set by the BCEA. So, for example, while the
BCEA provides for 21 days’ annual leave in each leave cycle,90 if a binding col-
lective agreement provides for 25 days’ leave and payment of a leave bonus,
the employee is entitled to the more favourable terms – 25 days’ leave and
payment of the bonus.
It is often necessary to read any applicable wage-regulating measure together
with the BCEA to obtain a complete picture of an employee’s minimum terms
and conditions of employment. The BCEA applies in a residual sense, and must
be read with the wage-regulating measure and collective agreement to deter-
mine the applicable terms. For example, a collective agreement may provide
for annual leave in excess of the minimum number of days provided by the
BCEA. It is not unusual in these circumstances for the agreement to place limits
on the right to accumulate annual leave, and there may even be a provision
regulating the forfeiture of non-statutory leave that is not used within a defined
period. Here, the BCEA needs to be read in conjunction with the collective
agreement in order to obtain an overall picture of the terms regulating the em-
ployee’s annual leave.
On 1 January 2019, the National Minimum Wage Act (‘NMWA’) 9 of 2018
came into operation. The NMWA establishes a minimum wage of R20 for each
ordinary hour worked. This translates to about R3 500 for those working 40 hours
per week and about R3 900 for those who work for 45 hours per week. The min-
imum wage for domestic workers is fixed at R15 per hour, and at R11 per hour
for workers employed in an expanded public works programme. Learnership
allowances are fixed for workers who have concluded learnership agreements
in terms of section 17 of the Skills Development Act. The NMWA also establishes
a National Minimum Wage Commission ('NMWC’). The functions of the commis-
sion are amongst other things, to review the national minimum wage and rec-
ommend adjustments, and to report on the impact of the minimum wage on
the economy, collective bargaining and the reduction in income differentials.
The NMWA applies to all workers and their employers, but does not apply to a
volunteer or a person who performs work for another person and who does not
receive or is not entitled to receive any remuneration for his or her services.91 The
NMWA is enforceable through mechanisms established by the BCEA.

________________________

89 S 27 of the BCEA.
90 S 20 of the BCEA.
91 S 3 of the NMWA.
Common-law and statutory conditions of employment 107

The NMWA operates in a similar fashion to the BCEA – section 4 of the NMWA
provides that every employer must pay a wage that is not less than the national
minimum wage, and that the national minimum wage constitutes a term of the
worker’s contract except to the extent that the contract, collective agreement
or law provides a more favourable wage.92 It is an unfair labour practice for an
employer to unilaterally alter wages, hours of work or other conditions of employ-
ment in connection with the implementation of the national minimum wage.
The BCEA applies to all employers and employees except for a number of
specific exclusions:93 members of the State Security Agency,94 unpaid volunteers
working for organisations serving charitable purposes, and persons employed
on vessels at sea in respect of which the Merchant Shipping Act95 applies.

6.2 Basic conditions of employment

The BCEA uses the mechanism of a ‘basic condition of employment’ to fix min-
imum standards. These are defined as a provision of the Act (or of a sectoral
determination) that stipulates a minimum term or condition of employment.96
Section 4 of the Act provides that a basic condition of employment constitutes
a term of any contract of employment except to the extent that:
l any other law provides for a more favourable term;
l the basic condition has been replaced, varied or excluded in terms of the
Act; or
l a term of the contract of employment is more favourable to the employee
than the basic condition of employment.
A summary of the more important basic conditions of employment is set out
below.

6.2.1 Working time

The provisions of the BCEA regulating working time do not apply to senior man-
agerial employees, employees engaged as sales staff who travel to the prem-
ises of customers and who regulate their own hours of work, and employees
who work less than 24 hours a month for an employer.97 In addition, employees
earning above a prescribed threshold98 are excluded from the statutory pro-
tections in respect of maximum working hours, overtime, meal intervals, daily
and weekly rest periods, pay for Sunday work, and night work.

________________________

92 S 4 of the NMWA. The National Minimum Wage Act Regulations 2018 (published in GN 1401
in GG 42124 of 19 December 2019) regulate the form and manner in which aplications for
exemption from the minimum wage must be made.
93 S 3(3) of the BCEA.
94 The General Intelligence Laws Amendment Act 11 of 2013 combined the National Intelli-
gence Agency and the South African Secret Service to form the State Security Agency.
95 Act 57 of 1951.
96 See s 1 of the BCEA.
97 S 6(1) of the BCEA.
98 S 6(3). The threshold is currently fixed at R205 433,30 per annum.
108 Law@work

In general terms, an employer may not require or permit an employee to work

more than 45 hours in any week, and nine hours in a day (if the employee works
5 days or fewer in a week) or 8 hours in a day (if the employee works on more
than 5 days a week).99 Where employees serve members of the public, these
hours can be extended by up to 15 minutes a day, but not more than 60 minutes
in a week, to continue performing those duties after the completion of the
ordinary hours of work.100
The statutory minimum hours of work, and a goal to reduce these to 40 hours
a week and eight hours a day, are the subject of Schedule 1 to the BCEA. The
schedule establishes procedures for the progressive reduction of the maximum
ordinary hours, through collective bargaining and the publication of sectoral
determinations.
Overtime work is work performed in excess of ordinary hours. An employer
may not require or permit an employee to work more than ten hours’ overtime
a week, and then only in accordance with an agreement.101 The minimum rate
to be paid for overtime is one and a half times the normal wage, unless the
employee agrees to time off for overtime worked. A collective agreement may
extend overtime hours to 15 hours a week, provided that the agreement may
not apply for more than two months in any 12-month period. This provision is
designed to cater for those sectors, for example, retail and agriculture, that
experience peak periods of activity during the course of a year.
As a general rule, Sunday work and work performed on a public holiday
attract payment at double the employee’s wage.102
An employer must grant an employee a meal interval of at least one contin-
uous hour after five hours of continuous work.103 By agreement, the meal interval
can be reduced to 30 minutes, or dispensed with if the employee works fewer
than six hours on a day.104
An employee is entitled to a daily rest period of at least 12 consecutive hours
between ending and recommencing work, and a weekly rest period of at least
36 consecutive hours, which unless otherwise agreed, must include Sunday.105
The BCEA contains two important flexibility measures in the form of the com-
pressed working week and the ability to average hours of work. An employer
and an employee can agree that the employee will work up to 12 hours in a
day, inclusive of a meal interval, without receiving overtime pay, provided that
the employee does not work more than 45 ordinary hours in any week, more

________________________

99 S 9(1).
100 S 9(2).
101 S 10.
102 See ss 16 and 18 of the BCEA. Employees who ordinarily work on Sundays and public holi-
days are paid on a different basis. S 2(2) of the Public Holidays Act 36 of 1994, provides
that a public holiday may be exchanged for any other day agreed to by the employer
and employee.
103 S 14.
104 S 14(5).
105 S 15.
Common-law and statutory conditions of employment 109

than ten hours’ overtime in any week, or on more than five days in any week.
Ordinary hours and overtime can also be averaged, in terms of a collective
agreement, over a period of up to four months, subject to certain limitations.
The compressed working week and averaging working hours permit work to be
organised so as to best accommodate seasonal demand and activity.106

6.2.2 Leave
6.2.2.1 Annual leave
At common law, there is no right to leave of any description, and an employee
has no right to be paid for any absence from work. The BCEA establishes min-
imum periods of paid leave to which all employees, irrespective of their earnings
threshold or managerial status, are entitled. The Act provides that every em-
ployee is entitled to at least 21 consecutive days’ leave on full remuneration.107
Annual leave is accrued in a leave cycle, being the 12-month period after com-
mencement of employment or the completion of the prior leave cycle. By
agreement, an employee can be granted one day’s annual leave on full pay
for every 17 days worked. For example, a gardener who works every Monday
and Wednesday, will be entitled to two days’ paid leave after 17 weeks of
employment. Annual leave must be granted not later than six months after the
end of a leave cycle. On termination, employees are entitled to remuneration
for any period of leave which accrued but was not taken during the previous
leave cycle.108 In Ludick v Rural Maintenance (Pty) Ltd 109 the Labour Court con-
firmed that the right to payment for unpaid leave applies only to leave accrued
during the preceding leave cycle. Furthermore, parties to a contract of employ-
ment are entitled to agree to a forfeiture provision in respect of leave not taken
during the year preceding the last leave cycle. Employees may be granted
occasional leave during the leave cycle, reducing the annual leave entitle-
ment accordingly.

6.2.2.2 Sick leave

After an employee has completed six months’ employment, sick leave is granted
in three-year cycles. In each cycle (a cycle starts when the employee com-
mences employment), the employee is entitled to as many days sick leave, on
full pay, that the employee would work in a six-week period. So, for example, if
an employee works a five-day week, the employee is entitled to 30 days’ paid
sick leave in every three-year cycle. In the first six months of employment, an
________________________

106 Ss 11 and 12.

107 S 20(2). ‘Day’ is defined as a calendar day. Ch 3 of the BCEA, which confers rights to
leave, does not apply to employees who work less than 24 hours a month for an em-
ployer, nor does the chapter apply to leave granted in excess of the statutory entitle-
ment in terms of s 6(3). The terms on which non-statutory leave is granted are typically
regulated by agreement between the parties.
108 S 40(b).
109 [2014] 2 BLLR 178 (LC). Ludick followed the approach adopted in Jooste v Kohler Pack-
aging Ltd [2003] 12 BLLR 1251 (LC) but disagreed with Jardine v Tongaat-Hulett Sugar Ltd
[2003] 7 BLLR 717 (LC).
110 Law@work

employee accumulates one day’s sick leave for every 26 days worked. But that
does not mean that the sick leave cycle commences only after the employee
has been employed for six months. Rather, after the lapse of the first six months
of employment, the employee becomes entitled for the balance of the sick
leave cycle to the full number of days that the formula allows, less the number
of days sick leave taken during the first six months.110
If an employee has been absent from work for more than two consecutive
days or on more than two occasions in any eight-week period, the employer is
entitled to require the employee to produce a medical certificate.111 Such certi-
ficates must be signed by a medical practitioner or ‘any other person’ who is
certified to treat patients and who is ‘registered with a professional council
established by an Act of Parliament’.112 This provision makes it clear that medical
certificates or letters issued by traditional healers who are not registered with a
professional council will not suffice as proof of absence for the purposes of sick
leave. Nonetheless, the Constitutional Court in MEC for Education, KwaZulu-Natal
& others v Pillay 113 pointed out that diversity is something to be ‘celebrated and
not feared’ and that recognition should be given to bona fide cultural and
religious practices. In Kievits Kroon Country Estate (Pty) Ltd v Mmoledi & others114
the Supreme Court of Appeal followed this line of thought when it considered
the situation of an employee who was absent without permission because she
genuinely believed that she would fall ill if she did not attend training to become
a traditional healer. Cachalia JA concluded that the courts are entitled to grant
relief to a dismissed employee if his or her failure to obey an order was ‘justified
or reasonable’. This being the case, the court accepted that the employee’s
absence without leave was to be excused even though the employee could
only produce a certificate from a traditional healer, which evidently did not
meet the requirements set by the BCEA.115

6.2.2.3 Maternity leave

An employee is entitled to at least four months’ maternity leave, which she may
commence at any time from four weeks before the expected date of birth, or
from a date that a medical practitioner or midwife certifies that it is necessary
either for the health of the employee or her unborn child.116
An employee may not work for six weeks after the birth of her child. An em-
ployee who miscarries in the third trimester of her pregnancy or who has a still
born child, is entitled to six weeks’ leave after the miscarriage or still birth.

________________________

110 S 22.
111 S 23(1).
112 S 23(2).
113 2008 (1) SA 474 (CC).
114 [2014] 3 BLLR 207 (SCA).
115 At para 28.
116 S 25.
Common-law and statutory conditions of employment 111

The BCEA does not impose any obligation on employers to pay an employee
her remuneration during any period of maternity leave. The only statutory right
to income during maternity leave is that provided by the UIA.117

6.2.2.4 Family responsibility leave

An employee who has been employed by an employer for longer than four
months and who works for four days a week for that employer is entitled to
three days’ paid family responsibility leave in every annual leave cycle. Family
responsibility leave may be taken when an employee’s child is born118 or is sick,
or in the event of the death of an employee’s spouse or life partner, parent,
adoptive parent, grandparent, child, adopted child, grandchild or sibling.119 An
employee may take leave for part of a day or for the whole day and the em-
ployer may require reasonable proof, such as notice of a funeral or a death
certificate, before paying for such leave.120 No provision is made for leave in the
event of the death of parents-in-law.

6.2.3 Payment of remuneration, particulars of employment, and

prohibited practices
Employees must be paid in South African currency at the agreed interval and in
cash, by cheque or by direct deposit into a bank account designated by the
employee.121 The employer must give the employee information in writing
regarding the payment of any remuneration, including information about the
amount and purpose of any deduction that is made and the calculation of the
employee’s remuneration generally.
The BCEA does not require that a written contract of employment be con-
cluded between employer and employee. Nonetheless, the Act does provide
that on commencement of employment an employee is entitled to written par-
ticulars of employment, setting out a number of details including the full name
and address of the employer, the date on which the employment began, the

________________________

117 See also s 187(1) of the LRA which provides that the dismissal of an employee on account
of pregnancy or for a reason related to pregnancy is automatically unfair. S 186 of the
LRA defines a dismissal to include a refusal by an employer to allow an employee to re-
sume work after she has taken maternity leave.
118 The Labour Laws Amendment Act 10 of 2018, provides for parental leave, adoption leave
and commissioning parent leave. In terms of these provisions, an employee who is the
parent of a child is entitled to ten consecutive days parental leave. An employee who is
an adoptive parent of a child below the age of two, or who is a commissioning parent in
a surrogate motherhood agreement, is entitled to at least ten weeks’ leave. At the time
of writing, these parental leave provisions had not yet been fully brought into operation
(other than amending certain provisions of the Unemployment Insurance Act 63 of 2001
that permit qualifying employees to apply for parental leave benefits through the Unem-
ployment Insurance Fund). See Behari ‘The Effect of the Labour Laws Amendment Bill
2017 on Shared Parental Responsibilities’ (2018) 39 ILJ 2149.
119 S 27(1)–(2).
120 S 27(4)–(5).
121 S 32.
112 Law@work

rate of pay, hours of work, deductions from remuneration, leave, the notice
period for termination of employment, and the like.122 The Act also provides that
employers are required to keep records, including the time worked by and
remuneration paid to each employee, for a period of three years from the date
of last entry in the record.123 This obligation should be read in conjunction with
the monitoring and enforcement provisions in the Act, especially in relation to
labour inspection.124
The BCEA sets requirements employers must meet before they may make
deductions from an employee’s remuneration.125 It differentiates between two
main categories. First, section 34(1)(a) provides that an employer may not make
any deductions from an employee’s remuneration unless the employee agrees
in writing that a deduction can be made in respect of a specified debt. The
employer may deduct reimbursement for loss or damage only if the loss or dam-
age occurred in the course of employment and was due to the fault of the em-
ployee and if the employee is afforded a reasonable opportunity to show why
the deductions should not be made. Further, the debt to be deducted must not
exceed the actual amount of the employer’s loss or damage and the debt
repayment must not exceed a quarter of the employee’s monthly remuner-
ation. Deductions may also be made from an employee’s remuneration without
the employee’s consent when such deductions are ‘required or permitted in
terms of a law, collective agreement, court order or arbitration award’. In-
terpreting these seemingly straightforward provisions is not without its problems.
Section 33A(1) of the BCEA protects employees against the exploitative prac-
tice of requiring employees to purchase goods or services from their employer or
from a person nominated by the employer. For example, a farmer can no longer
compel employees to purchase goods from a shop on the farm at inflated
prices. Such a practice will now be permitted only if it is included in a contract
of employment or collective agreement, if the price of the goods is fair and
reasonable and if the employee receives financial benefit from the scheme.

6.2.4 Termination of employment

A contract of employment may be terminated only on notice of not less than
the following:126
l one week, if the employee has been employed for six months or less;
l two weeks, if the employee has been employed for more than six months
but not more than one year;
l four weeks, if the employee:
• has been employed for one year or more; or

________________________

122 S 29.
123 S 31.
124 Ss 63 and 64.
125 S 34(1)–(2).
126 S 37.
Common-law and statutory conditions of employment 113

• is a farm worker or domestic worker who has been employed for more
than six months.
Instead of the employer giving the employee notice, he may pay the employee
an amount equivalent to the notice period.127
Notice of termination must be given in writing and does not affect the right of
a dismissed employee to contest the lawfulness or fairness of his or her dismissal.
Section 41 regulates the payment of severance pay. When an employee is
dismissed on account of an employer’s operational requirements, the employer
must pay the employee severance pay equal to at least one week’s remuner-
ation for each completed year of continuous service with that employer. An
employee who unreasonably refuses to accept an offer of alternative employ-
ment is not entitled to severance pay.128 An employee who is justifiably engaged
in consecutive fixed-term contracts of longer than 24 months will, in terms of the
LRA, also be entitled to receive severance pay of one week’s remuneration for
each completed year of service.129
On termination of employment, an employee is entitled to a certificate of ser-
vice that includes, at the employee’s request, the reason for termination of em-
ployment. The statutory requirements in relation to notice do not impact on an
employee’s right to claim unfair dismissal in terms of the LRA.130

6.2.5 Prohibition of the employment of children and of forced labour

The BCEA gives effect to international standards131 and to the provisions of the
Constitution132 that seek to protect children from exploitative labour practices
and work that is inappropriate for their age. Section 43(1) of the BCEA stipulates
that a person may not ‘require or permit’
l a child under 15 years of age to work;
l a child who is under school-leaving age to work;133
l a child to perform work that is inappropriate for a person of that age; or
l a child’s well-being, physical or mental health, or spiritual, moral or social
development to be placed at risk by the performance of any work.
Children who are at least 15 years old and are no longer subject to compulsory
schooling in terms of any law are allowed to work in advertising, sporting, artistic
and cultural activities but only in terms of regulations or a sectoral determination

________________________

127 S 38.
128 See ch 12 at para 4.3 ‘Severance pay’. See also Astrapak Manufacturing Holdings (Pty)
Ltd t/a East Rand Plastics v Chemical, Energy, Paper, Printing, Wood and Allied Workers
Union [2013] 12 BLLR 1194 (LAC).
129 See s 198B(10)(a) of the LRA.
130 See ch 9.
131 The Minimum Age Convention, 1973 (No. 138) is one of the ILO’s eight core conventions.
132 S 28 of the Constitution.
133 Under the South African Schools Act 84 of 1996, education is compulsory for all South Afri-
cans from the age of 7 (grade 1) to the age 15 or the completion of grade 9.
114 Law@work

issued by the Minister of Labour.134 It is a criminal offence to permit a child to

work in contravention of the BCEA.135
In addition to protecting children, the BCEA also prohibits ‘forced labour’ by
providing that no person may ‘demand or impose’ such labour on any per-
son.136 Any contravention of this section also constitutes a criminal offence.137

6.3 Sectoral determinations

Chapter 8 of the BCEA provides for the promulgation of sectoral determinations,
or determinations promulgated by the minister establishing basic conditions of
employment for particular sectors138 and areas. A sectoral determination may
be made after conditions of employment in the sector and area concerned
have been investigated, a report has been prepared and the National Min-
imum Wage Commission (previously it was the function of the Employment Con-
ditions Commission (‘ECC’) established by the BCEA) has advised the Minister of
Employment and Labour. Sectoral determinations are made for those sectors of
the economy that are relatively unorganised, for example domestic workers,
farm workers, the retail sector and the security sector.
A sectoral determination may be made only for a sector or area that is not
covered by a collective agreement concluded at a bargaining council or
statutory council.139 Sectoral determinations regulate aspects such as minimum
rates of remuneration, hours of work, and overtime and may also regulate or
prohibit certain types of work such as homework, sub-contracting and contract
work in particular sectors.140 Having taken into account section 21(8) of the LRA,
a sectoral determination may also prescribe a threshold of representativeness
for a registered trade union to qualify automatically for organisational rights per-
taining to the deduction of union subscriptions and to access to the employer’s
premises.141
When a matter regulated by the BCEA is also regulated by a sectoral deter-
mination, the determination prevails.142

________________________

134 Ss 44(1), 50(2)(b) and 55(6). See, for example, Sectoral Determination 10, ‘Children in the
Performance of Advertising, Artistic and Cultural Activities’ (GNR 882, GG 26608, dated
29 July 2004). In terms of s 44(1A) the minister may on the advice of the National Minimum
Wage Commission make regulations to bring the Act in line with international standards
relating to work performed by children and to medical examination of children who
work.
135 Ss 43(3), 44(2) and 46. S 47 provides that the party who alleges that a person is of a cer-
tain age has to establish that it was reasonable for that party to believe, after an investi-
gation, that the person was not younger than the permitted age.
136 S 48.
137 S 48(3).
138 ‘Sector’ means ‘an industry or a service (or part thereof)’.
139 S 55(1), (7) and (8).
140 S 55(4).
141 S 55(4)(o).
142 S 57.
Common-law and statutory conditions of employment 115

6.4 Variation of basic conditions

The BCEA contemplates a number of ways in which statutory terms and con-
ditions of employment can be varied. First though, there are some terms that
cannot be varied, whether by collective agreement, or through the mechanism
of an individual contract. These are:143
l the maximum working hours established by the Act;
l the protection afforded employees who perform night work;
l a minimum of two weeks’ per year annual leave;
l four months’ maternity leave;
l sick leave; and
l the prohibition on the employment of children.
These core rights aside, section 49 of the BCEA permits a collective agreement
concluded in a bargaining council to alter, replace or exclude any basic con-
dition of employment, provided that the collective agreement is consistent with
the purposes of the Act. The scope for variation in terms of collective agree-
ments concluded outside of bargaining councils is more limited, and may
replace or exclude a basic condition of employment to the extent permitted by
the Act itself or by a sectoral determination. The same provisions apply to con-
tracts of employment.
Section 50 of the BCEA empowers the minister to make a determination that
replaces or excludes any basic condition of employment in respect of:
(a) any category of employees or category of employers; or
(b) any employer or employee in respect of whom an application is made by –
(i) the employer;
(ii) the registered employers’ organisation;
(iii) the employer and a registered employers’ organisation.
An example of a variation by the minister relates to hours of work. In terms of a
ministerial determination, employees earning in excess of R205 433,30 per annum
are excluded from section 9, which sets maximum ordinary hours of work, and
from section 10, which places limits on overtime work.

7 Enforcing conditions of employment

7.1 Contracts
Subject to the Constitution and unless the BCEA provides otherwise, the Labour
Court has exclusive jurisdiction ‘in respect of all matters’ in terms of the Act.144

________________________

143 Ss 49 and 50.

144 S 77(1). S 77(1A) states that the Labour Court has exclusive jurisdiction to grant civil relief
for breaches of the prohibition against an employer’s requiring employees to purchase
goods, services or products in return for work; of the prohibition of work by children; of the
prohibition of forced labour; of requirements of confidentiality regarding financial and
business information; and for obstruction, undue influence, and fraud in terms of the BCEA.
116 Law@work

Contracts of employment may be enforced through the civil courts or the

Labour Court. Section 77(3) confers concurrent jurisdiction on the Labour Court,
with the civil courts, ‘to hear and determine any matter concerning a contract
of employment, irrespective whether any basic condition of employment con-
stitutes a term of that contract’.
Section 73A introduces the prospect of the contractual claims being deter-
mined by the CCMA. Provided an employee or worker earns less than a pre-
scribed remuneration threshold, despite the provisions of section 77, a dispute
about a failure to pay any amount owing to the employee or worker in terms of
the BCEA, the NMWA, a sectoral determination or collective agreement, or a
contract of employment may be referred to conciliation and ultimately arbi-
tration, if the dispute remains unresolved. Employees and workers earning in
excess of the threshold may institute a claim for any failure to pay any of the
above amounts in the Labour Court, the High Court or subject to their jurisdic-
tion, the Magistrates’ Court or the small claims court.145

7.2 Statutory minimum conditions

Section 63 of the BCEA provides for the appointment of labour inspectors, whose
main function is to promote, monitor and enforce compliance with the BCEA,
the NMWA and other labour legislation. Labour inspectors are given powers of
entry into workplaces, to question persons and inspect documents and records.
An inspector who has reasonable grounds to believe that an employer is not
complying with the applicable legislation may endeavour to secure a written
undertaking from that employer to comply with the provision concerned.146 The
inspector may seek to get an agreement between the employer and the em-
ployee about the amount owed and may arrange for payment to be made to
the employees concerned.147 If the employer fails to comply with the order the
Director-General may apply to the CCMA to have the written undertaking
made an arbitration award, unless the employer refers a dispute concerning
the compliance order to the CCMA within the time period stated in the order.148
If an employer fails to comply with a compliance order, the Director-General
may apply to the CCMA to have the compliance order made an arbitration
award. The CCMA may issue an arbitration award if it is satisfied that the com-
pliance order was served on the employer and that the employer has not refer-
red a dispute concerning the compliance order.149 Once the compliance order
is made an arbitration award, it can be enforced as such in terms of section 143
of the LRA.

________________________

145 S 73A(3).
146 S 68.
147 S 73.
148 S 69(2A).
149 S 73 of the BCEA.
6
The right to equality in
employment: non-discrimination
(Chapter II of the EEA)

Page
1 Introduction ...................................................................................................... 119
1.1 The nature of equality ............................................................................ 119
1.2 The constitutional dimension ................................................................. 121
2 Statutory prohibition of unfair discrimination in employment ..................... 123
2.1 Origin and purpose ................................................................................ 123
2.2 Application of Chapter II of the EEA .................................................... 124
3 Implementing Chapter II of the EEA .............................................................. 125
3.1 Prohibition of unfair discrimination........................................................ 125
3.1.1 Harassment as unfair discrimination .......................................... 126
3.1.2 Sexual harassment ...................................................................... 127
3.2 Direct and indirect discrimination ........................................................ 130
3.3 Scope of the prohibition ........................................................................ 131
3.4 Specified, unspecified and arbitrary grounds ..................................... 132
3.5 Establishing discrimination ..................................................................... 136
3.5.1 Showing differentiation and a link between differentiation
and grounds of discrimination ................................................... 136
3.5.2 Burden of proof............................................................................ 138
3.6 Specific defences................................................................................... 139
3.6.1 Inherent requirements of a job .................................................. 139
3.6.2 Affirmative action measures as a defence to
discrimination claims ................................................................... 141
3.7 Equal pay for equal work or work of equal value .............................. 147
3.8 Medical and psychometric testing ...................................................... 152
3.9 Psychological testing and other similar assessments .......................... 155
3.10 Employer’s liability for the conduct of an employee ......................... 156

117
118 Law@work

Page
4 Dispute procedures and remedies ................................................................ 158
4.1 The EEA ...................................................................................................... 158
4.2 Commission for Gender Equality ............................................................ 159
5 Monitoring and enforcement......................................................................... 160
The right to equality in employment: non-discrimination 119

1 Introduction
1.1 The nature of equality
Employment policies always draw distinctions between employees and groups
of employees, and often based on immutable or hard-to-change personal
characteristics. Personal characteristics may also be used as criteria for access
to employment. For example, applicants for employment might be excluded
based on a medical condition. Employment opportunities such as promotion,
training and career development may depend on psychological or other
assessments, employment benefits may be denied to employees on the grounds
of age or marital status, and employees who reach a particular age may be
required to retire. When are these personal characteristics relevant, and when
can they legitimately be taken into consideration by employers to make em-
ployment-related decisions. These are the essential questions that equality laws
seek to address.
Aristotle thought that justice requires that people who are equal should be
treated equally and that those who are unequal should be treated unequally.1
Put another way, people who are similarly situated should be treated similarly,
and people who are not similarly situated should not be treated alike.2 This
formulation raises the question of what counts as relevant when determining
whether people are similarly situated and what constitutes similar treatment for
those who are similarly situated.3 So, for example, when it comes to a minimum
working age, we justify the differential between persons younger than 15 and
those older than 15 because they are not in the same position (in other words,
they are not similarly situated) with respect to exposure to the physical risks of
work and because those who are 15 or younger are under the legal minimum
school-leaving age.4 We might also think that employees with disabilities should
not be denied access to employment. But should they be accorded the same
treatment as that given to those employees who do not have disabilities? Or, if
equality demands that people who are not similarly situated should not be
treated similarly, should employers be required to take into account the particu-
lar needs of employees with disabilities and to make reasonable accommo-
dation for them by providing facilities not required by other employees? These
questions aside, the requirement that similarly situated people be treated simi-
larly remains a conceptual cornerstone on which equality in employment is
based.
The right to equality cannot therefore preclude employers from drawing dis-
tinctions between employees or groups of employees or from treating them dif-
ferently. In other words, not every instance of different treatment in the work-
place is morally or legally wrong. The courts have distinguished between acts
that they have termed ‘mere differentiation’ (different treatment that is legitimate
________________________

1 Aristotle Nicomachean Ethics (1980).

2 Currie and De Waal The Bill of Rights Handbook (2013) at 230.
3 Ibid.
4 S 43(1) of the BCEA prohibits the employment of children under the age of 15.
120 Law@work

and permissible) and ‘unfair discrimination’ (different treatment that is not legit-
imate and which is prohibited). Much of this chapter focuses on how the labour
courts have gone about drawing this distinction.
Discrimination should not be equated with prejudice. Prejudice, in the sense
of hostility based on irrational, preconceived opinion, is obviously reprehensible,
but it is not discrimination. The Labour Court has held that discrimination occurs
when people are not treated as individuals, or when characteristics are as-
signed to people which amount to generalised assumptions about people or
groups of people.5 The point is well illustrated by the English case of Hurley v
Mustoe.6 An employer refused to consider for employment mothers with young
children because, it asserted, they were unreliable. A mother with a young child
applied for appointment. She was refused employment based on the employer’s
assumption. She contended that she had been discriminated against on the
grounds of her sex. The industrial tribunal upheld her claim. What the employer
had done was make a generalised assumption about a group of people (that
all mothers with young children are unreliable) and assign this characteristic to
an individual applicant for a job. Each applicant for the job should have been
assessed on the basis of her or his own reliability and not on the basis of the
assumption that the employer had made about the particular groups or cat-
egories of people of which the applicant was a part.7
Another good example of the nature of discrimination is found in Independ-
ent Municipal & Allied Workers Union & another v City of Cape Town.8 In this
case, a diabetic whose medical condition was under optimal control applied
to the city council for appointment as a fire-fighter. The council refused his
application based on its policy that insulin-dependent diabetics could not be
appointed as fire-fighters. This policy was premised on the assumption that the
employment of such people would pose an unacceptable risk to their life and
safety and to the life and safety of others. The Labour Court upheld a claim of
discrimination, holding in effect that the council’s policy made generalised
assumptions about a group of people (insulin-dependent diabetics and the
unacceptable safety risks that they represented) and ascribed them to an
individual applicant for employment. What the council should have done was
determine whether, in fact, the applicant’s appointment would have presented
an unacceptable safety risk. Had the council done so, it would have dis-
covered that the applicant’s medical condition was under optimal control and
that, on the available medical evidence, appointing him would not have pre-
sented an unacceptable risk. The council failed to distinguish between indivi-
dual applicants for the job according to criteria that were relevant to the
choice that had to be made and therefore discriminated against the appli-
cation based on his medical condition.

________________________

5 See Leonard Dingler Employee Representative Council v Leonard Dingler (Pty) Ltd (1998)
19 ILJ 285 (LC) at 289E–F.
6 [1981] ICR 490, referred to in Bourn and Whitmore Race and Sex Discrimination (1993) at 45.
7 Ibid.
8 (2005) 26 ILJ 1404 (LC).
The right to equality in employment: non-discrimination 121

This approach to defining the nature of discrimination highlights a fundamen-

tal purpose of equality legislation: the elimination of arbitrary decision-making in
the workplace. Insisting that decisions be made based on relevant criteria will
improve the quality of decision-making. In addition, in the examples discussed
above, protecting applicants for employment against discrimination ensures that
the best possible candidate is selected. Therefore, far from constituting an un-
warranted interference in employer prerogative, equality laws promote rational
decision-making processes and sound economic choices.
Finally, it is not necessary to show intent to discriminate in order to establish
discrimination. Intention and motive may, however, be relevant when deciding
on the applicable remedy. The Labour Court has referred to the decision of the
House of Lords in James v Eastleigh Borough Council,9 a case that neatly illus-
trates the point. Mr and Mrs James used a council swimming pool. They were
both 61 years old. Mr James was charged an entrance fee, whereas Mrs James
was admitted free of charge because she was a pensioner. (At that stage,
English law provided a retirement age of 60 for women and 65 for men).
Mr James claimed that he had been discriminated against on the grounds of his
sex. The council defended the claim on the basis that it did not intend to dis-
criminate. Its motives were entirely magnanimous – the differential in admission
fee was intended to benefit pensioners. The House of Lords held that the coun-
cil’s intention was irrelevant to determining the existence of any discrimination.10
The test to be applied was a ‘but for’ test: would Mr James have received the
same treatment from the council but for his sex? Since Mr James would have
been treated differently if he were a woman, he had been discriminated against
on the grounds of his sex.

1.2 The constitutional dimension

Section 1 of the Constitution states that the Republic of South Africa is founded
on the values of ‘human dignity, the achievement of equality and the advance-
ment of rights and freedoms’. Section 9 gives expression to these values and
provides not only that everyone is equal before the law and has the right to
equal protection and benefit of the law11 but also that equality ‘includes the full
and equal enjoyment of all rights and freedoms’.12

________________________

9 [1990] IRLR 288 at 295. See Bourn and Whitmore (fn 6) at 7.

10 Similarly, in South Africa, it was held in Pretoria City Council v Walker 1998 (2) SA 363 (CC)
that requiring proof of intention would be too onerous on applicants especially in cases of
indirect discrimination. See also Leonard Dingler Employee Representative Council v
Leonard Dingler (Pty) Ltd (fn 5); SA Transport & Allied Workers Union obo Dlamini and
Transnet Freight Rail & another (2009) 30 ILJ 1692 (ARB); Department of Correctional Ser-
vices & another v Police & Prisons Civil Rights Union & others [2011] 32 ILJ 2629 (LAC). In
Pharmaco Distribution (Pty) Ltd v EWN (2017) 38 ILJ 2496 (LAC), a case that concerned the
dismissal of an employee suffering from bi-polar disorder, the Labour Appeal Court con-
firmed that motive is irrelevant to a determination of whether there has been discrimi-
nation.
11 S 9(1).
12 S 9(2).
122 Law@work

This formulation acknowledges that the concept of equality has two basic
dimensions. The first is equality as consistency, or, as it is sometimes called, for-
mal equality or equality of opportunity. Formal equality requires only that like be
treated alike – in other words, that all persons be treated in the same manner
irrespective of their circumstances. Provided that everyone has access to the
same opportunities, any differential between them cannot be impugned. This
conception of equality is commonly found in discrimination laws in other juris-
dictions and embodies a notion of procedural justice rather than any substan-
tive outcome. Formal equality ignores economic and social disparities between
individuals and groups and treats any remedial measure as inimical to a right to
equality.
The second dimension is that of substantive equality. On this approach, the
focus is on equality of outcomes. An examination of the social and economic
conditions of groups and individuals is considered significant, and the results or
effects of a rule, rather than its form, are important.13
The Constitution unequivocally opts for substantive equality. In President of
the Republic of South Africa v Hugo,14 the Constitutional Court stated that:
We need to develop a concept of unfair discrimination which recognises that
although a society which affords each human being equal treatment on the basis
of equal worth . . . we cannot achieve that goal by insisting upon identical treat-
ment in all circumstances before that goal is achieved.
The court later affirmed this approach. In the majority judgment in Minister of
Finance & another v Van Heerden,15 the court noted the inadequacies of a
formal conception of equality and the positive duty to promote the achieve-
ment of equality that a substantive right to equality imposes. The court said the
following:
[23] For good reason, the achievement of equality preoccupies our constitutional
thinking. When our Constitution took root a decade ago our society was
deeply divided, vastly unequal and uncaring of human worth. Many of the-
se stark social and economic disparities will persist for a long time to come.
In effect the commitment of the Preamble is to restore and protect the equal
worth of everyone, to heal the divisions of the past and to establish a caring
and socially just society. In explicit terms, the Constitution commits our society
to ‘improve the quality of life of all citizens and free the potential of each
person’.
[24] Our supreme law says more about equality than do comparable constitu-
tions. Like other constitutions, it confers the right to equal protection and
benefit of the law and the right to non-discrimination. However, it also im-
poses a positive duty on all organs of state to protect and promote the
achievement of equality – a duty which binds the judiciary too.

________________________

13 See ch 7 below.
14 1997 (4) SA 1 (CC). See also Brink v Kitshoff NO 1996 (4) SA 197 (CC); National Coalition for
Gay & Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC); Bato Star Fishing (Pty) Ltd v
Minister of Environmental Affairs & others 2004 (7) BCLR 687 (CC) where the Constitutional
Court confirmed and expanded on the notion of substantive equality.
15 [2004] 12 BLLR 1181 (CC).
The right to equality in employment: non-discrimination 123

[25] Of course, democratic values and fundamental human rights espoused by

our Constitution are foundational. However, just as crucial is the commit-
ment to strive for a society based on social justice. In this way, our Constitu-
tion heralds not only equal protection of the law and non-discrimination but
also the start of a credible and abiding process of reparation for past exclusion,
dispossession, and indignity within the discipline of our constitutional frame-
work. . . .
[31] The achievement of equality goes to the bedrock of our constitutional archi-
tecture. . . . Thus the achievement of equality is not only a guaranteed and
justifiable right in our Bill of Rights, but also a core and fundamental value; a
standard that must inform all law and against which all law must be tested
for constitutional consonance.

2 Statutory prohibition of unfair discrimination in

employment16
2.1 Origin and purpose
The principal statutory protection against discrimination in the workplace is estab-
lished by the Employment Equity Act (‘EEA’) which seeks to give effect to both
ILO Discrimination (Employment and Occupation) Convention 11117 and the
Constitution.18 Article 1 of the Convention reads as follows:
1. For the purpose of this Convention the term ‘discrimination’ includes –
(a) Any distinction, exclusion or preference made on the basis of race, colour, sex,
religion, political opinion, national extraction or social origin, which has the
effect of nullifying or impairing equality of opportunity or treatment in employ-
ment and occupation; [and]
(b) such other distinction, exclusion or preference which has the effect of nullify-
ing or impairing equality of opportunity or treatment in employment or occu-
pation . . .
The EEA was introduced in 1998 and replaced the unfair labour practice as the
primary source of the right to equality in employment.19
Section 2 of the EEA sets out the purpose of the Act as being the achieve-
ment of substantive equality by:
(a) promoting equal opportunity and fair treatment in employment through the
elimination of unfair discrimination; and
(b) implementing affirmative action measures to redress the disadvantages in em-
ployment experienced by designated groups, in order to ensure their equit-
able representation in all occupational levels in the workforce.
________________________

16 Unfair discrimination in other spheres of life is prohibited by the Promotion of Equality and
Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA). See Cooper ‘The Application
of the Promotion of Equality and Prevention of Unfair Discrimination Act and the Employ-
ment Equity Act’ (2001) 22 ILJ 1532 for a discussion of the relationship between these two
statutes and a clarification of their respective areas of application.
17 Convention 111 of 1958.
18 S 9.
19 Previously, item 2(1)(a) of Sch 7 to the LRA, which regulated residual unfair labour prac-
tices, prohibited unfair discrimination.
124 Law@work

2.2 Application of Chapter II of the EEA

Chapter II of the EEA prohibits unfair discrimination in employment. It applies to
all employers, irrespective of the size of the business. The term ‘employee’ is
defined for the purposes of the chapter as including applicants for employ-
ment, thus extending equality rights to those seeking access to employment.20
Chapter III of the Act requires designated employers to take affirmative action
measures in their workplaces and is dealt with below in chapter 7. Affirmative
action as a defence to a claim of unfair discrimination is dealt with in paragraph
3.6.2 ‘Affirmative action measures as a defence to discrimination claims’ below.
The EEA wholly excludes the following from its application:21
l members of the National Defence Force;
l members of the National Intelligence Agency;
l members of the South African Secret Service;
l members of the South African National Academy of Intelligence; and
l the directors and staff of Comsec.22
Sections 5 and 6 of the EEA contain a generally expressed obligation to promote
equality by eliminating unfair discrimination in the workplace and a prohibition
of unfair discrimination on a series of specified and other grounds, including ‘any
other arbitrary ground’.23 Section 6(2) establishes two specific defences against
discrimination claims. Finally, section 6(3) extends the definition of discrimination
to include harassment on any of the grounds on which unfair discrimination is
expressly prohibited.
Sections 5 and 6 read as follows:
5. Elimination of unfair discrimination.—Every employer must take steps to promote
equal opportunity in the workplace by eliminating unfair discrimination in any em-
ployment policy or practice.
6. Prohibition of unfair discrimination.—(1) No person may unfairly discriminate,
directly or indirectly, against an employee, in any employment policy or practice,
on one or more grounds, including race, gender, sex, pregnancy, marital status,
family responsibility, ethnic or social origin, colour, sexual orientation, age, disability,

________________________

20 S 9. Equality rights are also protected by the LRA, at least in respect of dismissal for a
reason that amounts to unfair discrimination. S 187 of the LRA establishes a number of auto-
matically unfair reasons for dismissal some of which concern equality rights. These include
an employee’s pregnancy, or intended pregnancy, and any reason related to her preg-
nancy (s 187(1)(e)). Dismissal that is a result of direct or indirect unfair discrimination against
an employee on any arbitrary ground, including gender, sex, ethnic or social origin, colour,
sexual orientation, age, disability, religion, conscience, belief, political opinion, culture,
language, marital status or family responsibility, is automatically unfair.
21 S 4(1) and (3).
22 Comsec – Electronic Communications Security (Pty) Ltd – is a company owned by the
National Intelligence Agency. Its main aim is to protect government communications
against unauthorised access and technical, electronic and other threats.
23 This formulation accords with s 187(1)(f) of the LRA, which deals with discriminatory dismissals.
The right to equality in employment: non-discrimination 125

religion, HIV status, conscience, belief, political opinion, culture, language, birth or
on any other arbitrary ground.
(2) It is not unfair discrimination to –
(a) take affirmative action measures consistent with the purpose of this Act; or
(b) distinguish, exclude or prefer any person based on an inherent requirement of
a job.
(3) Harassment of an employee is a form of unfair discrimination and is prohib-
ited on any one, or a combination of grounds of unfair discrimination listed in sub-
section (1).
(4) A difference in terms and conditions of employment between employees of
the same employer performing the same or substantially the same work or work of
equal value that is directly or indirectly based on any one or more of the grounds
listed in subsection (1), is unfair discrimination.
(5) The Minister, after consultation with the Commission, may prescribe the cri-
teria and prescribe the methodology for assessing work of equal value contem-
plated in subsection (4).

3 Implementing Chapter II of the EEA

3.1 Prohibition of unfair discrimination
Consistent with section 9 of the Constitution, the prohibition in section 6 of the
EEA is against ‘unfair discrimination’. The prohibition of ‘unfair discrimination’ by
both the Constitution and the EEA is controversial24 but might be explained by
the pejorative and benign meanings that attach to the term ‘discriminate’. The
use of the term ‘unfair discrimination’ rather than that of ‘discrimination’ demar-
cates a zone of justifiable classification and differentiation between classes of
persons.25 This interpretation introduces a two-pronged test for unfair discrimin-
ation, requiring a court to determine first whether a challenged differentiation
constitutes discrimination and, if it does, to consider in a separate enquiry
whether the discrimination is unfair.26

________________________

24 S 3(d) requires that the EEA be interpreted in compliance with South Africa’s international-
law obligations, particularly the obligations under ILO Convention 111. The Convention
prohibits all discrimination against employees. This requires that the term ‘unfair discrimin-
ation’ in s 6 of the Act mean no more than ‘discrimination’ as defined by the Convention.
In effect, since the Convention does not acknowledge ‘fairness’ as a qualifier in relation
to ‘discrimination’, this interpretation denies a general ‘fairness’-based defence to claims
of discrimination but concedes that the term ‘unfair discrimination’ has a ‘venerable pedi-
gree’ (see Du Toit ‘The Evolution of the Concept of Unfair Discrimination in South African
Labour Law’ (2006) 27 ILJ 1311 at 1340; Du Toit ‘The Prohibition of Unfair Discrimination:
Applying s 3(d) of the Employment Equity Act 55 of 1998’ in Dupper & Garbers (eds) Equality
in the Workplace: Reflections from South Africa and Beyond (2008) 139 at 151 et seq).
25 Davis, Cheadle and Haysom Fundamental Rights in the Constitution: Commentary and
Cases (1997) at 56.
26 Harksen v Lane NO & others 1997 (11) BCLR 1489 (CC). See, however, para 3.5.1 below
where it is explained that while the first part of the test is the same for constitutional and
discrimination cases under the EEA, the second part differs in that the EEA must be in-
terpreted in compliance with ILO Convention 111.
126 Law@work

3.1.1 Harassment as unfair discrimination

The EEA regards harassment as a form of unfair discrimination and prohibits it on
any one or any combination of the grounds listed in section 6(1) of the Act.27 It
would appear from this formulation that fairness is not at issue – an act of harass-
ment is an act of unfair discrimination.
‘Harassment’ is not defined in the Act but generally entails treating a person
in a manner that has the effect of violating that person’s dignity or of creating a
degrading environment. The PEPUDA (which may be used to deal with harass-
ment outside the workplace), provides the following definition of harassment in
section 1:
[U]nwanted conduct which is persistent or serious and demeans, humiliates or cre-
ates a hostile or intimidating environment or is calculated to induce submission by
actual or threatened adverse consequences and which is related to (a) sex, gen-
der or sexual orientation; or (b) a person’s membership or presumed membership
of a group identified by one or more of the prohibited grounds or a characteristic
associated with such group.
Bullying, in contrast to harassment, is not defined as a distinct form of unfair con-
duct in the EEA.28 Nonetheless, it has been argued that it could be viewed as a
form of harassment or unfair discrimination.29 Harassment in the workplace
amounts to discrimination because it establishes arbitrary barriers to the full and
equal enjoyment of a person’s rights in the workplace and violates the dignity of
a person.30
________________________

27 See para 2 ‘Statutory prohibition of unfair discrimination in employment’. The Protection

from Harassment Act 17 of 2011 (PHA) provides remedies against harassment such as
attachment of the tools of harassment, eg, a laptop or cell phone. The PHA defines sexual
harassment as any ‘(a) unwelcome sexual attention from a person who knows or ought
reasonably to know that such attention is unwelcome; (b) unwelcome explicit or implicit
behaviour, suggestions, messages or remarks of a sexual nature that have the effect of
offending, intimidating or humiliating the complainant or a related person in circumstances,
which a reasonable person having regard to all the circumstances would have anticipated
that the complainant or related person would be offended, humiliated or intimidated;
(c) implied or expressed promise of reward for complying with a sexually oriented request;
or (d) implied or expressed threat of reprisal or actual reprisal for refusal to comply with a
sexually oriented request’. It is not clear to what extent this Act applies in the workplace, if
at all. See Landman & Ndou ‘The Protection from Harassment Act and its Implications for
the Workplace’ (2013) 22(9) CLL 82.
28 See Rycroft ‘Workplace Bullying: Unfair Discrimination, Dignity Violation or Unfair Labour
Practice?’(2009) 30 ILJ 1431 and Whitcher ‘Workplace Bullying Law: Is it Feasible?’ (2010)
30 ILJ 43 for definitions of bullying and for arguments for and against regulating such con-
duct in terms of existing legislation or new measures. So far, no specific approach has been
developed by the courts. See also Smit ‘Labour Law, the Queen Bee Syndrome and Work-
place Bullying: A Contribution to the Shattering of at Least One Glass Ceiling for Female
Employees’ (2016) 37 ILJ 779. A new form of discrimination is also coming to the fore,
namely ‘mobbing’. This entails bullying or other attacks, usually in the form of emotional
abuse, on the dignity of a person by a group in any context such as a workplace or on-line.
29 Smit (fn 28) at 798.
30 For a comprehensive discussion on harassment, see Le Roux, Rycroft & Orleyn Harass-
ment in the Workplace: Law, Policies and Processes (2010). See also the definition of
‘harassment’ in s 1 of the PEPUDA.
The right to equality in employment: non-discrimination 127

Various kinds of harassment are found in the workplace, including, for ex-
ample, harassment based on religion,31 race,32 sex,33 and non-disclosure of an
employee’s pregnancy.34 The case law suggests that sexual harassment is the
most common form of workplace harassment (against women).35 Despite the
protections introduced by the EEA, incidents of sexual harassment appear to
continue unabated.36

3.1.2 Sexual harassment

The main objective of the Code of Good Practice on the Handling of Sexual
Harassment Cases in the Workplace37 issued under the EEA is the elimination of
sexual harassment in the workplace. In essence, the code provides guidelines
on defining sexual harassment, the various forms such harassment may take, a
________________________

31 See, eg, FAWU & others v Rainbow Chicken Farms [2000] 1 BLLR 70 (LC); SA Transport &
Allied Workers Union obo Dlamini and Transnet Freight Rail & another (fn 10); Strydom v
Nederduitse Gereformeerde Gemeente Moreleta Park (2009) 30 ILJ 868 (EqC); Lewis v
Media 24 Ltd (2010) 31 ILJ 2416 (LC).
32 See, eg, Lebowa Platinum Mines Ltd v Hill [1998] 7 BLLR 666 (LAC); SA Transport & Allied
Workers Union obo Dlamini and Transnet Freight Rail & another (fn 10).
33 See, eg, J v M Ltd (1989) 10 ILJ 755 (IC); Intertech Systems (Pty) Ltd v Sowter (1997) 18 ILJ
689 (LAC); Ntsabo v Real Security CC [2004] 1 BLLR 58 (LC); Brits v ABSA [2005] 2 BALR 167
(CCMA); Grobler v Naspers Bpk & another [2004] 5 BLLR 455 (C); Media 24 Ltd & another
v Grobler (2005) 26 ILJ 1007 (SCA); Piliso v Old Mutual Life Assurance Co (SA) Ltd & others
(2007) 28 ILJ 897 (LC); Mokoena & another v Garden Art (Pty) Ltd & another (2008) 29 ILJ
1196 (LC); UASA obo Zulu and Transnet Pipelines (2008) 29 ILJ 1803 (ARB); SA Municipal
Workers Union obo Peterson v City of Cape Town & others (2009) 30 ILJ 1374 (LC); Mokone
v Sahara Computers (Pty) Ltd (2010) 31 ILJ 2827 (GNP); Motsamai v Everite Building Pro-
ducts (Pty) Ltd [2011] 2 BLLR 144 (LAC); Department of Correctional Services & another v
Police & Prisons Civil Rights Union & others (fn 10); Makoti v Jesuit Refugee Service SA
(2012) 33 ILJ 1706 (LC); KO and Kuasa Commodities 332 t/a Twin Peak Spur Steak Ranch
(2016) 37 ILJ 735 (CCMA) (where two males were involved); Ntsundu and Three Cities Inn
on the Square (Pty) Ltd (2016) 37 ILJ 1192 (LAC) (where guests harassed the applicant);
Simmers v Campbell Scientific Africa (Pty) Ltd (2014) 35 ILJ 2866 (LC); Campbell Scientific
Africa (Pty) Ltd v Simmers & others (2016) 37 ILJ 116 (LAC); Bandat v De Kock & another
(2015) 36 ILJ 979 (LC).
34 See Swart v Greenmachine Horticultural Services (a division of Sterikleen (Pty) Ltd) (2010)
31 ILJ 180 (LC).
35 See McGregor ‘“Do you want a lover tonight?” Do these words constitute sexual harass-
ment? Simmers v Campbell Scientific Africa (Pty) Ltd & others; Campbell Scientific Africa
(Pty) Ltd & A Simmers’ (2016) THRHR 79(2) 322, which shows that sexual harassment against
women in South African workplaces is a distressing problem. Women are treated in a dis-
respectful manner and their self-worth and dignity are undermined. Moreover, the har-
assment keeps intact a system of subordination to males and is essentially an expression
of socially entrenched gender inequality. A concern is that a large percentage of sexual
harassment remains unreported, including women who are caressed, pinched, grabbed
at, stared at, flirted with and being subjected to sexual advances and provocative
comments. Moreover, a survey showed that 76 per cent of women in South Africa had
in fact experienced sexual harassment at work in some or other stage but stated that
they ‘would rather resign than make a fuss’.
36 Ibid.
37 Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the
Workplace, GN 1357, GG 27865, dated 4 August 2005.
128 Law@work

test for sexual harassment and workplace policies and procedures to deal
effectively with sexual harassment.
The code defines harassment as comprising a wide range of conduct, namely:
l physical conduct;
l verbal conduct; and
l non-verbal conduct.
Physical conduct of a sexual nature may range from touching to sexual assault
and rape and includes strip searches by or in the presence of members of the
opposite sex. Verbal conduct includes, inter alia, unwelcome innuendos, sug-
gestions and hints, sexual advances, comments with sexual overtones, sex-
related jokes, graphic comments about a person’s body, whistling, and sending
e-mail or other messages with sexually explicit content. Non-verbal forms of
sexual harassment include unwelcome gestures, indecent exposure and the
display or sending by e-mail or otherwise of sexually explicit pictures.
Sexual harassment is defined in item 4 of the code as:
unwelcome conduct of a sexual nature that violates the rights of an employee
and constitutes a barrier to equity in the workplace, taking into account all of the
following factors:
4.1 whether the harassment is on the prohibited grounds of sex and/or gender
and/or sexual orientation;
4.2 whether the sexual conduct was unwelcome;
4.3 the nature and extent of the sexual conduct; and
4.4 the impact of the sexual conduct on the employee.
The code also distinguishes between different forms of sexual harassment:
l victimisation, which occurs when an employee is victimised or intimidated
for failing to submit to sexual advances;
l quid pro quo harassment, which occurs when a person such as an owner,
employer, supervisor, member of management or co-employee influences
or attempts to influence an employee’s employment circumstances (for
example, promotion, training, dismissal, salary increments or other benefits)
by coercing or attempting to coerce that employee to surrender to sexual
advances; and
l sexual favouritism, which occurs when a person in a position of authority in the
workplace rewards only those who respond to his or her sexual advances.
A single incident of unwelcome sexual conduct may be sufficient to constitute
sexual harassment.
An employee may indicate that sexual conduct is unwelcome by walking
away from or not responding to the perpetrator, or seeking the assistance and
intervention of another person such as a co-employee, superior, human-
resources official, or family member.
The long-standing debate about the test for sexual harassment – whether it is
subjective or objective or a combination of the two – is given some direction by
the code which combines both objective and subjective elements. In other
words, it takes into account the perspectives of both the complainant and the
perpetrator.
The right to equality in employment: non-discrimination 129

The code also requires employers to develop sexual-harassment policies38 which

should, inter alia, stipulate that:
l sexual harassment is a form of unfair discrimination;
l sexual harassment in the workplace will not be permitted or condoned;
l complainants in sexual harassment matters have the right to follow formal
and informal procedures (including methods for the reporting of harassment,
consultation with relevant parties, and offering of assistance and counselling
to the complainant where possible) to address the complaint; and
l it is a disciplinary offence to victimise or retaliate against an employee who
in good faith lodges a complaint of sexual harassment.39
An employer may be held liable for acts of sexual harassment by its employees.
Section 60 of the EEA stipulates the conditions under which an employer may
be held liable for such conduct by its employees and the conditions under
which liability may be avoided. These conditions are discussed in detail in para-
graph 3.10 ‘Employer’s liability for the conduct of an employee’ below.40
Two recent cases shed light on the nature of sexual harassment, namely Sim-
mers v Campbell Scientific Africa (Pty) Ltd and Campbell Scientific Africa (Pty)
Ltd v Simmers & others.41 The senior installation manager (S) of Campbell Scien-
tific Africa, a contractor (C) and a female consultant (M) travelled from South
Africa to Botswana on a work assignment and stayed at the same lodge. While
S and M were waiting in the parking lot when C settled the bill after supper one
night, S (25 years M’s senior) asked M whether she wanted a lover for the night.
M made clear that she was not interested and that she had a boyfriend. Here-
after, S asked further questions about her relationship with her boyfriend, sug-
gested that they ‘do something’ to which M responded that they should speak
to C. S lamented about him being lonely and asked if M wanted to go for a
walk alone with him or go to his room with him. When M refused again S once
more asked if M would not want to spend time with him, which she refused
again and said that she was going to bed. S repeated his offer to be M’s lover,
adding that if she changed her mind, she should come to his room during the
night. C then joined them and M left for bed. M obtained C’s cell number in
case S would pester her during the night.

________________________

38 See Hendricks v Cape Peninsula University of Technology & others (2009) 30 ILJ 1229 (C)
where the employer was held contractually bound to follow its own harassment policy
and disciplinary code because they were viewed as part of the employment contract
and not as mere guidelines; they provided important procedural safeguards ensuring that
sexual harassment was dealt with sensitively, proactively and in the best interests of all
parties concerned (at 1251D, 1255E–F).
39 For cases on conduct-related dismissal for sexual harassment, see, eg, UASA obo Zulu and
Transnet Pipelines (fn 33), Reddy v University of Natal [1998] 1 BLLR 29 (LC) and Grobler v
Naspers Bpk & another (fn 33).
40 Broadly speaking, s 60 obliges employers to take the necessary steps to ensure compliance
with the EEA. Employers who fail to do so may incur liability for acts of harassment.
41 Fn 33.
130 Law@work

There was no touching between S and M and the advances and questions
occurred in a technically speaking ‘single’ but drawn-out event. M told C about
the conversation the next day and he conveyed it to the company’s managing
director (MD) when back in South Africa, who then requested M to provide him
with details of what had transpired.
A disciplinary enquiry was held and S was found guilty, inter alia, on charges
of sexual harassment and unprofessional conduct. S was dismissed. The dismissal
was upheld by the CCMA. On review to the Labour Court, S was reinstated with
a warning. On appeal to the Labour Appeal Court, the court used the now-
repealed LRA Code of Good Practice on the Handling of Sexual Harassment
Cases42 (containing a cross reference to the Amended Code of the EEA), the
EEA, the EEA Amended Code of Good Conduct on the Handling of Sexual
Harassment Cases in the Workplace43 and found that the eight sexual advances
or questions by S were indeed of a sexual nature and constituted sexual harass-
ment; it was not a matter of S just ‘trying his luck’. The Labour Appeal Court held
that S had been fairly dismissed.

3.2 Direct and indirect discrimination

The EEA prohibits both direct and indirect discrimination. Neither concept is
defined by the Act, but the courts have given some content to the meaning of
both.
Direct discrimination arises when the criteria on which differentiation is based
are themselves unfair – for example, when an employer treats a woman less
favourably than it does or would treat a man. Motive or intent need not be
established for direct discrimination to be proved but may be relevant to the
determination of an appropriate remedy.44 Swart v Mr Video (Pty) Ltd 45 is a good
example of direct discrimination on the grounds of age. The employer in this
case sought to employ a shop assistant and stipulated that applicants should be
between the ages of 18 and 25. A 28-year-old applied and was refused em-
ployment because she did not meet the employer’s age requirements. The
CCMA held that by limiting the pool of applicants to those between the ages of
18 and 25 the employer had unfairly discriminated against the applicant on the
grounds of her age. She had been less favourably treated because of her age
and the employer could not justify the limitation it had placed on recruitment.
Indirect discrimination occurs when criteria that are fair in form produce in-
equitable results. Criteria that are, on the face of it, neutral, such as height,
weight, educational requirements, full or part-time status, and length of experi-
ence, can subtly differentiate between employees in a way that amounts to

________________________

42 GN 1367, GG 19049, dated 17 July 1998, issued in terms of the LRA (LRA Code).
43 Fn 37.
44 Leonard Dingler Employee Representative Council v Leonard Dingler (Pty) Ltd (fn 5) at
289G. See para 1.1 ‘The nature of equality’ above.
45 (1998) 19 ILJ 1315 (CCMA).
The right to equality in employment: non-discrimination 131

discrimination. The classic example is the American case Griggs v Duke Power
Company46 in which the employer made it a requirement for recruitment and
promotion that workers have a high-school education and an acceptable
rating in aptitude tests. These criteria were, on the face of it, neutral, but their
application had a disparate impact on Black people in the community. The US
Supreme Court referred to the ‘inbuilt headwind’ faced by members of racial or
social minorities that is often built into the fabric of society.
In other jurisdictions, legislation generally requires an applicant to demonstrate
that a smaller proportion of the protected group is able to comply with the re-
quirement in question than would be the case with people who are not mem-
bers of that group. The EEA does not specifically establish a test in those terms,
but it has been applied by South African labour courts.47 In Leonard Dingler Em-
ployee Representative Council v Leonard Dingler (Pty) Ltd 48 the Labour Court
held that a rule restricting membership of a benefit fund to monthly paid em-
ployees discriminated on the grounds of race because the restriction had a dis-
parate impact on the company’s Black employees: of the 50 employees who
were monthly paid and eligible for membership of the fund, only 8 were Black.

3.3 Scope of the prohibition

The definition of ‘employment policy or practice’ in the EEA defines the scope
of the prohibition against unfair discrimination and extends the statutory prohib-
ition to every aspect of the employment relationship.49 The scope is defined as
including, but is not limited to, the following:
l recruitment procedures;
l advertising and selection criteria;
l appointments and the appointment process;
l job classification and grading;
l remuneration, employment benefits and terms and conditions of employ-
ment;
l job assignments;
l the working environment and facilities;

________________________

46 (1971) 401 US 424.

47 See, eg, Adriaanse / Swartklip Products [1999] 6 BALR 649 (CCMA); SADTU obo Makua v
Mpumalanga Education Department [1999] 5 BALR 638 (IMSSA); POPCRU & others v De-
partment of Correctional Services & another [2010] 10 BLLR 1067 (LC); Department of Cor-
rectional Services & another v Police & Prisons Civil Rights Union & others (fn 10).
48 Fn 5.
49 S 1 of the EEA. See, eg, MIA v State Information Technology Agency (Pty) Ltd (2015) 38 ILJ
1905 (LC) where it was found that the employer’s maternity leave policy unfairly discrim-
inated against the applicant (a male who would be the ‘mother’ in a same-sex couple)
who had a baby in terms of a surrogacy agreement. It was found that the applicant was
entitled to the same maternity leave as a natural mother.
132 Law@work

l training and development;

l performance evaluation systems;
l promotion;
l transfer;
l demotion;
l disciplinary measures other than dismissal; and
l dismissal.
This definition is significant because an applicant in a discrimination claim must
be able to establish that the discrimination alleged exists in an employment
policy or practice. The definition is broad; it captures the employment relation-
ship in linear fashion, from access to employment to termination. The wording of
the definition makes it clear that it is open-ended and that policies and pro-
cedures not specifically mentioned are not immune from scrutiny.

3.4 Specified, unspecified and arbitrary grounds

Section 6(1) of the EEA contains a list of 19 grounds on which unfair discrimin-
ation is prohibited. The list corresponds to that in the Constitution but adds three
more grounds, namely family responsibility, HIV status and political opinion.50 The
19 grounds referred to are broadly constitutive of human identity.51
The list of grounds is not exhaustive – the use of the word ‘including’ indicates
that the specified grounds are not conclusive of the scope of the prohibition. In
2014, section 6(1) was amended to include the words ‘or on any other arbitrary
ground’.52
The limits on what might be considered to constitute an ‘arbitrary ground’ are
likely to prove controversial, especially given the close link drawn by the courts
between discrimination and the concept of dignity.53 For example, relevance
to workplace needs,54 commercial rationale or operational requirements,55
geographical location56 and lack of tertiary qualifications57 may not constitute
‘arbitrary’ grounds – to the extent that they would ordinarily not affect a per-
son’s dignity – but may well be irrational or capricious and therefore arbitrary.58

________________________

50 See para 2 ‘Statutory prohibition of unfair discrimination in employment’ above.

51 See Mangena & others v Fila South Africa (Pty) Ltd & others [2009] 12 BLLR 1224 (LC).
52 See para 2 ‘Statutory prohibition of unfair discrimination in employment’ above.
53 McGregor ‘An Overview of Employment Discrimination Case Law’ (2002) 14 SA Merc LJ
157 at 170; Ndlela & others and Philani Mega Spar (2016) 37 ILJ 277 (CCMA).
54 Adriaanse / Swartklip Products (fn 47).
55 Kadiaka v Amalgamated Beverage Industries (1999) 20 ILJ 373 (LC).
56 Duma v Minister of Correctional Services & others (2016) 37 ILJ 1135 (LC) and para 3.7
‘Equal pay for equal work or work of equal value’ below.
57 Lagadien v University of Cape Town (2000) 21 ILJ 2469 (LC).
58 McGregor (fn 53) at 170–171.
The right to equality in employment: non-discrimination 133

However, in Gumede and Crimson Clover 17 (Pty) Ltd t/a Island Hotel,59 a bar-
man referred to by a human resources manager as unclean, smelly, untidy and
having a bad body odour, in contrast to the rest of his roommates who had not
been judged in such a manner, was found to have been unfairly discriminated
against on account of the deep offence caused and the impairment of his
dignity. In terms of section 60 of the EEA, the respondent was held accountable
for the act of unfair discrimination by the manager.
The labour courts have had occasion to consider disputes based on most of
the specified grounds in the context of the application of section 6 of the EEA or
section 187 of the LRA. In terms of these sections, dismissal for discriminatory
reasons is automatically unfair.60 The courts have also recognised claims for
discrimination on what have been termed ‘unspecified grounds’. Most dis-
crimination cases concern the specified or listed grounds. This is so not only
because the list in the EEA is extensive but also because of the requirement that
the listed grounds be interpreted generously.61 A review of the case law shows
that most cases concern discrimination on the grounds of race,62 sex and

________________________

59 (2017) 38 ILJ 702 (CCMA). See also para 3.10 ‘Employer’s liability for the conduct of an
employee’ below.
60 See ch 10 below.
61 In National Coalition for Gay & Lesbian Equality v Minister of Justice (fn 14) at para 21 the
Constitutional Court stated that the term ‘sexual orientation’ as used in s 9(3) of the Con-
stitution must be given a ‘generous’ interpretation: ‘It applies equally to the orientation of
persons who are bisexual, or transsexual and it also applies to the orientation of persons
who might on a single occasion only be erotically attracted to a member of their own
sex’.
62 See, eg, Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp & others [2002] 6 BLLR 493
(LAC); SATAWU obo Finca v Old Mutual Life Assurance Company (SA) Ltd & another
[2006] 8 BLLR 737 (LC); Stojce v University of KZN (Natal) & another [2007] 3 BLLR 246 (LC);
Raol Investments (Pty) Ltd t/a Thekwini Toyota v Madlala (2008) 29 ILJ 267 (SCA); Mangena
& others v Fila South Africa (Pty) Ltd & others (fn 51); Mutale v Lorcom Twenty Two CC
(2009) 30 ILJ 634 (LC); SA Transport & Allied Workers Union obo Dlamini and Transnet
Freight Rail & another (fn 10); Reynhardt v University of South Africa (2008) 29 ILJ 725 (LC);
University of South Africa v Reynhardt (2010) 31 ILJ 2368 (LAC); Solidarity obo Barnard v SA
Police Service (2010) 31 ILJ 742 (LC); SA Police Service v Solidarity obo Barnard (Police &
Prisons Civil Rights Union as amicus curiae) (2010) 31 ILJ 742 (LC); South African Police Ser-
vices v Solidarity obo Barnard [2013] 3 BCLR 320 (LAC); Solidarity obo Barnard v SA Police
Service (Vereeniging van Regslui vir Afrikaans as amicus curiae) (2014) 35 ILJ 416 (SCA);
South African Police Service v Solidarity obo Barnard (Police and Prisons Civil Rights Union
as amicus curiae) 2014 (10) BCLR 1195 (CC); Minister of Safety & Security & another v
Govender (2011) 32 ILJ 1145 (LC); Modikwa Mining Personnel Services v CCMA & others
(2013) 34 ILJ 373 (LC); Mbana v Shepstone & Wylie (2015) 36 ILJ 1805 (CC); SA Breweries
(Pty) Ltd v Hansen & others [2016] 5 BLLR 516 (LC) holding that the test for racist language
is objective; and SA Equity Workers Association obo Bester v Rustenburg Platinum Mine &
another (2017) 38 ILJ 1770 (LAC) where potentially racist words used as merely descriptive
was found to be neutral. In City of Cape Town v Freddie & others (2016) 37 ILJ 1364 (LAC),
the Labour Appeal Court found that the dismissal of the respondent (a Coloured male)
was fair. After insubordination to his senior (also a Coloured male), the respondent sent a
series of unprovoked emails with false racial slurs calling him, eg, worse ‘than Verwoerd’.
The applicant’s appeal was upheld.
134 Law@work

gender,63 pregnancy,64 and marital status.65 There are also a number of cases
concerning sexual orientation,66 family responsibility,67 language,68 disability,69

________________________

63 See, eg, Collins v Volkskas Bank (Westonaria Branch), a division of ABSA Bank Ltd [1994] 12
BLLR 73 (IC); Association of Professional Teachers & another v Minister of Education &
others (1995) 16 ILJ 1048 (IC); Ehlers v Bohler Uddeholm Africa (Pty) Ltd (2010) 31 ILJ 2383
(LC); Atkins v Datacentrix (Pty) Ltd [2010] 4 BLLR 351 (LC); Minister of Safety & Security &
another v Govender (fn 62); Police & Prisons Civil Rights Union & others v Minister of Cor-
rectional Services & another (2013) 34 ILJ 690 (LC); Department of Correctional Services v
Police & Prisons Civil Rights Union (fn 10); Media 24 Ltd & another v Grobler (fn 33);
Motsamai v Everite Building Products (Pty) Ltd (fn 33); Gaga v Anglo Platinum Ltd & others
(2012) 33 ILJ 329 (LAC); Mbana v Shepstone & Wylie (fn 62); SA Municipal Workers Union &
another v Nelson Mandela Bay Municipality (2016) 37 ILJ 1203 (LC); MIA v State Infor-
mation Technology Agency (Pty) Ltd (fn 49). See also McGregor ‘The Legal Emancipation
of Transsexual People: From Living in Closets During the Dark Ages to Recognition of an
Altered Sex and Zero-Tolerance for Unfair Discrimination in the 21st Century – Atkins v Dat-
acentrix (Pty) Ltd [2010] 4 BLLR 351 (LC), Ehlers v Bohler Uddeholm Africa (Pty) Ltd [2010]
JOL 26216 (LC), (2013) 6 THRHR 233. See also Mkhwanazi and Rycroft ‘Obligations of an
Employer to a Transgender Employee’ (2017) 38 ILJ 2201.
64 See, eg, Collins v Volkskas Bank (Westonaria Branch), a division of ABSA Bank Ltd [1994] 12
BLLR 73 (IC); Sheridan v The Original Mary-Ann’s at the Colony (Pty) Ltd (1999) 20 ILJ 2952
(LC); Whitehead v Woolworths (Pty) Ltd (1999) 20 ILJ 2133 (LC); Woolworths (Pty) Ltd v
Whitehead (2000) 21 ILJ 571 (LAC); Stokwe v MEC, Department of Education, Eastern
Cape Province & another [2005] 8 BLLR 822 (LC); Swart v Greenmachine Horticultural Ser-
vices (a division of Sterikleen (Pty) Ltd) (fn 34).
65 See, eg, Association of Professional Teachers & another v Minister of Education & others
(fn 63); George v Western Cape Education Department & another (1995) 16 ILJ 1529 (IC);
Western Cape Education Department & another v George (1996) 17 ILJ 547 (LAC); Sheri-
dan v The Original Mary-Ann’s at the Colony (Pty) Ltd (fn 64).
66 See, eg, Langemaat v Minister of Safety & Security & others (1998) 19 ILJ 240 (T); Minister of
Home Affairs v Fourie (Doctors for Life International & others amici curiae); Lesbian and
Gay Equality Project & others v Minister of Home Affairs 2006 (1) SA 524 (CC); Strydom v
Nederduitse Gereformeerde Gemeente Moreleta Park (fn 31).
67 See, eg, Masondo v Crossway (1998) 19 ILJ 171 (CCMA); Co-operative Workers Association
v Petroleum Oil & Gas Co-operative of SA [2007] 1 BLLR 55 (LC) where the court investi-
gated international and national laws which recognised workers with family responsibilities
or dependants as a vulnerable category of people deserving special protection or assist-
ance; Mangena & others v Fila South Africa (Pty) Ltd & others (fn 51).
68 See, eg, Stojce v University of KZN (Natal) & another (fn 62); Department of Correctional
Services & another v Police & Prisons Civil Rights Union & others (fn 10).
69 See, eg, Singh v Minister of Justice & Constitutional Development (SA National Council for
the Blind as amicus curiae) (2013) 34 ILJ 2807 (EqC) (being blind); Ngwabe and Imvula
Quality Protection (Pty) Ltd (2017) 38 ILJ 724 (CCMA) (where the employee had a single-
eye); Mbhele and Fidelity Services v SA Municipal Workers Union & another (2016) 37 ILJ
1935 (CCMA); Smith v Kit Kat Group (Pty) Ltd (2017) 38 ILJ 483 (LC) (facial disfigurement
and speech disability); Gumede and Crimson Clover 17 (Pty) Ltd t/a Island Hotel (fn 59)
(body odour), Jansen v Legal Aid (2018) 39 ILJ 2024 (LC) (depression). See also para 3.10
‘Employer’s liability for the conduct of an employee’ below.
The right to equality in employment: non-discrimination 135

religion,70 political opinion,71 nationality or ethnic origin,72 birth,73 belief,74 cultural

belief,75 conscience,76 or HIV/AIDS.77
Age discrimination has been the subject of an increasing number of cases
filed by persons who, despite attempts by their employers to force them to retire,
want to continue working.78 Claims of discrimination based on appearance

________________________

70 See, eg, FAWU & others v Rainbow Chicken Farms (fn 31); Department of Correctional Ser-
vices & another v Police & Prisons Civil Rights Union & others (fn 10); Dlamini & others v Green
Four Security [2006] 11 BLLR 1074 (LC); Lewis v Media 24 Ltd (fn 31); TDF Network (Pty) Ltd v
Farris (2019) 40 ILJ 326 (LAC). See also McGregor ‘Employees’ Right to Freedom of Religion
versus Employers’ Commercial Interests: A Balancing Act in Favour of Religious Diversity – A
Decade of Cases’ (2013) 25(2) SA Merc LJ 223.
71 See, eg, Harmse v City of Cape Town [2003] 6 BLLR 557 (LC); Germishuys v Upington Munici-
pality (2000) 21 ILJ 2439 (LC); Walters v Transitional Local Council of Port Elizabeth & another
(2000) 21 ILJ 2723 (LC); Jansen v Minister of Correctional Services of the Republic of South
Africa (2010) 31 ILJ 650 (LC); Minister of Safety & Security & another v Govender (fn 62).
72 See, eg, Chizunza v MTN (Pty) Ltd & others (2008) 29 ILJ 2919 (LC).
73 See, eg, Mangena & others v Fila South Africa (Pty) Ltd & others (fn 51).
74 See, eg, Zabala v Gold Reef City Casino [2009] BLLR 94 (LC); Jansen v Minister of Correc-
tional Services of the Republic of South Africa (fn 71); Department of Correctional Services
& another v Police & Prisons Civil Rights Union & others (fn 10).
75 Department of Correctional Services & another v Police & Prisons Civil Rights Union &
others (fn 10); Motaung v Department of Education & others (2013) ILJ 1199 (LC).
76 See, eg, Naude v Member of the Executive Council, Department of Health, Mpumalanga
(2009) 30 ILJ 910 (LC); Department of Correctional Services & another v Police & Prisons
Civil Rights Union & others (fn 10); Jansen v Minister of Correctional Services of the Repub-
lic of South Africa (fn 71). See also Singlee ‘Conscience Discrimination in the South African
Workplace’ (2014) 35 ILJ 1851.
77 See, eg, Hoffmann v SA Airways (2000) 21 ILJ 891 (W); Hoffmann v SA Airways (2000) 21 ILJ
2357 (CC); Bootes v Eagle Ink Systems KwaZulu-Natal (Pty) Ltd (2008) 29 ILJ 139 (LC); All-
pass v Mooikloof Estates (Pty) Ltd t/a Mooikloof Equestrian Centre (2011) 32 ILJ 1637 (LC);
Brink v Legal Aid SA (2015) 36 ILJ 1020 (LC) where the applicant could not show that his
non-appointment was due to him campaigning against AIDS; Khumalo and Enforce Secur-
ity Services (Pty) Ltd (2017) 38 ILJ 711 (CCMA) where the applicant complained of his
supervisor disclosing that he was HIV positive but the commissioner found that the claim
should have been referred to the Labour Court.
78 See, eg, HOSPERSA obo Venter v SA Nursing Council [2006] 6 BLLR 558 (LC); Evans v Jap-
anese School of Johannesburg (2006) 27 ILJ 2607 (LC); Datt v Gunnebo Industries (Pty) Ltd
(2009) 30 ILJ 2429 (LC); Karan t/a Karan Beef Feedlot & another (2010) 31 ILJ 2449 (LC); SA
Metal & Machinery Co (Pty) Ltd v Gamaroff [2010] 2 BLLR 136 (LAC); Jansen van Vuuren v
SA Airways (Pty) Ltd (2013) 34 ILJ 1749 (LC); South African Airways (Pty) Ltd v GJJVV [2014]
8 BLLR 748 (LAC) confirmed in the latter but with a reduction in the amount of compen-
sation; Hibbert v ARB Electrical Wholesalers (Pty) Ltd (2013) 34 ILJ 1190 (LC) with the Labour
Appeal Court confirming in ARB Electrical Wholesalers (Pty) Ltd v Hibbert (2015) 36 ILJ 2989
(LAC) that Hibbert could claim compensation both under the LRA (as an automatically
unfair dismissal) and the EEA on the same facts. Where damages had been suffered, this
may be claimed under the EEA. See also ch 10 below and Moodley & Whitear-Nel ‘Some
Thoughts on Claims for Compensation and Damages for Automatically Unfair Dismissals
and Discrimination’ (2015) 36 ILJ 907. See also BMW SA (Pty) Ltd v National Union of Metal
Workers of SA & another (2019) 40 ILJ 1159 (LAC).
136 Law@work

have begun to emerge.79 More often than not they are coupled with claims
based on other grounds, especially when appearance and dress are linked to
religious belief. Appearance-based discrimination as a stand-alone ground can,
however, easily be dealt with as an unspecified ground within the existing
framework.
A number of cases of discrimination based on unlisted or ‘unspecified’ grounds
have also been brought before the courts. These grounds include citizenship,80
qualifications, tertiary teaching and research experience,81 temporary status of
employment,82 professional ethics,83 mental health,84 political or cultural affili-
ation,85 pregnancy or parenthood,86 being perceived to be a thief87 and geo-
graphical location.88
Some of these cases are discussed in paragraph 3.5.1 ‘Showing differentiation
and a link between differentiation and grounds of differentiation’ below.

3.5 Establishing discrimination

3.5.1 Showing differentiation and a link between differentiation and
grounds of discrimination
In Harksen v Lane NO & others 89 the Constitutional Court established a three-
stage enquiry into an alleged violation of the equality clause, thus:
(a) Does the provision differentiate between people or categories of people? If
so, . . .
________________________

79 Such discrimination has been based on physical attractiveness, obesity, weight, uniforms,
tattoos, piercings, having a youthful/‘Prada’/’Gucci’/‘Bieber’ look, and hair colour. Cases
like Department of Correctional Services & another v Police & Prisons Civil Rights Union &
others (fn 10) and Dlamini & others v Green Four Security (fn 70) may be examples of
appearance-based discrimination coupled with discrimination based on another (listed)
ground.
80 See Larbi-Odam v Members of the Executive Committee for Education (North-West Prov-
ince) & another 1998 (1) SA 745 (CC). In this case it was found that a provincial regulation
stipulating that no person who was not a South African citizen could be appointed per-
manently as an educator in a state school was discriminatory and could not be justified.
Although the decision was not couched in these terms, the exclusion of permanent resi-
dents on the basis that they did not hold citizenship was found to be analogous to exclu-
sion on the grounds specified in the interim Constitution and based on attributes that had
the potential to impair the dignity of non-citizens affected by the regulation.
81 See Stojce v University of KZN (Natal) & another (fn 62).
82 See, eg, McPherson v University of KwaZulu-Natal & another (2008) 29 ILJ 674 (LC).
83 See, eg, Naude v Member of the Executive Council, Department of Health, Mpumalanga
(fn 76).
84 See Marsland v New Way Motor & Diesel Engineering (Pty) Ltd [2009] 30 ILJ 169 (LC), up-
held on appeal in New Way Motor & Diesel Engineering (Pty) Ltd v Marsland [2009] 12 BLLR
1181 (LAC); EWN v Pharmaco Distribution (Pty) Ltd (2016) 37 ILJ 449 (LC).
85 See, eg, Jansen v Minister of Correctional Services of the Republic of South Africa (fn 71);
Nombakuse v Dept of Transport (2013) 34 ILJ 671 (LC).
86 See Wallace v Du Toit [2006] 8 BLLR 757 (LC).
87 Ntsundu and Three Cities Inn on the Square (Pty) Ltd (fn 33).
88 Duma v Minister of Correctional Services & others (fn 56).
89 Fn 26, para 54.
The right to equality in employment: non-discrimination 137

(b) Does the differentiation amount to unfair discrimination? This requires a two-
stage analysis:
(i) Firstly, does the differentiation amount to ‘discrimination’? If it is on a speci-
fied ground, the discrimination will have been established. If it is not on a
specified ground, then whether or not there is discrimination will depend
upon whether, objectively, the ground is based on attributes and charac-
teristics which have the potential to impair the fundamental human dignity
of persons as human beings or to affect them adversely in a comparably
serious manner.
(ii) If the differentiation amounts to ‘discrimination’, does it amount to ‘unfair
discrimination’? If it has been found to be on a specified ground, then un-
fairness will be presumed. If on an unspecified ground, unfairness will have
to be established by the complainant. The test of unfairness focuses pri-
marily on the impact of the discrimination on the complainant and others
in his or her situation.
If, at the end of this stage of the enquiry, the differentiation is found not to be
unfair, then there will be no violation . . .
(c) If the discrimination is found to be unfair then a determination will have to be
made as to whether the provision can be justified under the limitations clause
...
The labour courts have adopted this approach for years, but it has been sug-
gested that it is incorrect.90 While the first part of what has become known as
the Harksen test can be applied to discrimination cases under the EEA, the EEA
must be interpreted in accordance with ILO Convention 111 which does not
provide for a ‘fairness’ qualification. This would affect the second stage of the
Harksen enquiry since any enquiry into unfairness would be eliminated.
As previously stated, different treatment (or what is sometimes referred to as
‘mere differentiation’) does not necessarily constitute an act of discrimination.
Discrimination occurs when differentiation is made on illegitimate grounds. As to
what constitutes illegitimate grounds, there are three possibilities under the EEA:
the ‘specified’ or ‘listed’ grounds, the ‘unspecified’ or ‘analogous’ grounds and,
after the recent amendment to section 6, ‘arbitrary’ grounds. Once the claimant
in a discrimination case has established differentiation, the basis of the claim
has been laid.91 Thereafter, a link between that differentiation and a specified
ground, or an unspecified ground that affects the claimant’s dignity, or some
other, arbitrary ground must be established.92 The claimant must show that the
specified, unspecified or arbitrary ground is the ‘reason’ for the differentiation or
that the disparate treatment is ‘because of’ the ground. A ‘bold averment’ or
‘mere allegation’ of discrimination is insufficient to require the employer to justify
the alleged discrimination.93
________________________

90 See, eg, Du Toit ‘Protection against Unfair Discrimination: Cleaning up the Act?’ (2014) 35
ILJ 2623 at 2634.
91 See McGregor (fn 53) at 173 et seq on whether the impermissible ground must be the sole
reason for the differentiation.
92 See, eg, Mangena & others v Fila South Africa (Pty) Ltd & others (fn 51) at 1226F–I; Chizunza v
MTN (Pty) Ltd & others (fn 72) at 2928B–2929B; Mbana v Shepstone & Wylie (fn 62).
93 See Mangena & others v Fila South Africa (Pty) Ltd & others (fn 51) at 1229F–1233C, referring
to Louw v Golden Arrow Bus Services (Pty) Ltd (2000) 21 ILJ 188 (LC) at 197B; TGWU v Bayete
Security Holdings (1999) 20 ILJ 1117 (LC) at 1119A–B; Mbana v Shepstone & Wylie (fn 62).
138 Law@work

3.5.2 Burden of proof

Section 11 of the EEA regulates the onus of proof, and seeks to align the EEA
with the equivalent provisions of the PEPUDA.94 Section 11 distinguishes between
claims of unfair discrimination on listed or analogous grounds and claims of
unfair discrimination on arbitrary grounds. It reads as follows:
11. Burden of proof.—(1) If unfair discrimination is alleged on a ground listed in
section 6(1), the employer against whom the allegation is made must prove, on a
balance of probabilities that such discrimination –
(a) did not take place as alleged; or
(b) is rational and not unfair, or is otherwise justifiable.
(2) If unfair discrimination is alleged on an arbitrary ground, the complainant
must prove, on a balance of probabilities, that –
(a) the conduct complained of is not rational;
(b) the conduct complained of amounts to discrimination; and
(c) the discrimination is unfair.
In interpreting the onus provision, subsection (1) requires the employer to dis-
prove the factual basis of the complainant’s claim (by disproving any nexus
between the listed ground alleged by the complainant and the measure under
attack) or to justify the measure concerned on grounds including but not limited
to rationality and fairness. When the measure at issue is alleged to be discrimin-
atory on an arbitrary ground (subsection (2)), it is for the claimant to prove not
only that the measure is not rational but also that it is discriminatory and unfair.95
Differences in the burden of proof aside, the reintroduction of a prohibition of
unfair discrimination on arbitrary grounds sits uncomfortably, at least concep-
tually, with a prohibition of unfair discrimination on specified and analogous
unspecified grounds.96 At best, the amendment extends the reach of discrimin-
ation claims beyond considerations of dignity and inherent worth to grounds
that are simply arbitrary.97
________________________

94 Cl 3.6 of the Memorandum of Objectives of the Employment Equity Bill in GG 35799, dated
19 October 2012 and the Regulatory Impact Assessment of Selected Provisions of the
Labour Relations Amendment Bill, 2010, Basic Conditions of Employment Amendment Bill,
2010, Employment Equity Amendment Bill, 2010 and Employment Services Bill, 2010 pre-
pared for the Department of Labour and the Presidency by Paul Benjamin (9/09/2010)
stated that the onus accorded with the corresponding provisions of the PEPUDA while the
Commission for Employment Equity (‘CEE’) Annual Report 2013–2014 (at 51) states that the
onus was reversed to rest on the party alleging the discrimination. Neither of these state-
ments is completely correct.
95 As Du Toit (fn 24) observes, if a measure is shown to be both irrational and discriminatory, it
can hardly be fair. What additional ‘unfairness’ the complainant must prove will have to be
determined by the courts. In Department of Correctional Services & another v POPCRU &
others [2012] 2 BLLR 110 (LAC) the court stated (at para 24) that: ‘The test of unfairness
focuses upon the impact of the discrimination, any impairment of dignity, and the ques-
tion of proportionality’.
96 Du Toit (fn 90) at 2627.
97 See Kadiaka v Amalgamated Beverage Industries (fn 55), where Landman J (at para 42)
defined ‘arbitrary’ as meaning ‘capricious or proceeding merely from whim and not based
on reason or principle’.
The right to equality in employment: non-discrimination 139

3.6 Specific defences

Section 6(2) of the EEA provides that it does not amount to unfair discrimination
to:
l take affirmative action measures consistent with the purpose of the Act; or
l ‘distinguish, exclude or prefer any person on the basis of an inherent require-
ment of a job’.
In South African Airways (Pty) Ltd v GJJVV 98 the court held that, while the two
defences outlined above were ‘complete’, section 11 of the EEA also recog-
nises that other considerations may render discrimination fair.99 Consideration of
the fairness of discrimination, according to the court, is therefore not confined
to the impact of the discrimination on an employee or to moral concerns but
also includes considerations of the nature and purpose of such discrimination,
the proportionality of the measure, the nature of the discrimination, the nature
of the right infringed and the relationship between the discriminatory measure
and its purpose. This approach to justifying discrimination by reference to con-
siderations other than the specified defences in the EEA is, of course, very similar
to that implicit in the (wider) limitation provision of the Constitution.

3.6.1 Inherent requirements of a job

The notion of ‘inherent requirements’ of a job has been adopted from Article 2
of the ILO Convention 111 which has been ratified by South Africa. Article 2 pro-
vides that ‘any distinction, exclusion or preference in respect of a particular job
based on the inherent requirements thereof shall not be deemed to be discrim-
ination’.
The Labour Court dealt with this matter in a contradictory way in Whitehead v
Woolworths (Pty) Ltd,100 a case where the court had to determine whether con-
tinuity of employment was a ‘necessary’, ‘reasonable’ and ‘indispensable’ re-
quirement for the job. The applicant’s claim was that the company had refused
to employ her because of her pregnancy. One of the defences raised by the
company was a ‘continuity requirement’ – that the nature of the job was such
that the successful applicant had to be continuously available; in other words,
that continuity was an inherent requirement of the job. On appeal, the Labour
Appeal Court was divided on whether the defence of an inherent requirement
was available on the facts of the case.101 In Kadiaka v Amalgamated Beverage
Industries,102 ABI refused to employ or consider applications for employment
from former employees of a competitor, claiming that the inherent requirements
of its business justified its actions. The court held that the company’s refusal did
not constitute discrimination within the meaning of item 2(1)(a) of Schedule 7 to
the LRA in that it was not ‘arbitrary’ and there was a ‘bona fide commercial or

________________________

98 Fn 78.
99 At para 45.
100 Fn 64.
101 Ibid.
102 Fn 55.
140 Law@work

operational reason for it being put in place’.103 This approach takes into account
the interests of employees or prospective employees, the employer and the
public. The approach based on ‘necessity’ gives very little weight to the em-
ployer’s interests.
In Independent Municipal & Allied Workers Union & another v City of Cape
Town,104 the Labour Court noted that the inherent requirements of a job re-
quired a policy of individual assessment rather than a blanket ban. In that case,
the council had a policy in terms of which diabetics were not employed, irre-
spective of the degree of control over their condition. The proper approach is
not to evaluate the degree of risk emanating from the condition that is the
subject of scrutiny but to assess the degree of risk in relation to the individual
concerned in carrying out an inherent requirement of the job. In other words,
whether a particular condition is an inherent requirement of a job requires a
determination of whether the employee concerned is capable of meeting the
requirement rather than an uncritical acceptance of the employer’s say-so or a
blanket policy regarding the requirement.
In Dlamini & others v Green Four Security 105 the applicants – security guards
who were dismissed after refusing to shave their beards – claimed that they
were unfairly discriminated against on the basis of their religious beliefs. They all
belonged to the Baptised Nazareth Group which, they submitted, did not allow
them to shave their beards. The applicants based their claim on section 187(1)(f)
of the LRA. With regard to the first stage of the test (whether the applicants had
proved that they had been discriminated against) the evidence of a Nazarene
priest did not prove that the rule against shaving was a ‘central tenet’ of the
Nazarene faith. In addition, it was clear that the employees had been selective
about which religious rules they chose to follow. On the other hand, the rule
requiring the guards to be clean-shaven was applied equally to all employees
and was consistently applied. On this basis, the applicants were found not to
have passed the first leg of the test. Nonetheless, concerned that it might have
applied too high a standard of proof, the court considered the next leg of the
test – whether the rule was justified. It held that, although the employees were
entitled to practise their religious beliefs, a balance had to be struck between
the interests of religion and the commercial concerns of the workplace. A
workplace rule can be justified if it relates objectively and unavoidably to the
performance of the job and not to the individual. If compliance with the rule is
found not to be an inherent requirement of the job, the enquiry comes to an
end. If compliance with the rule is found to be an inherent requirement of the
job, however, it may still be discriminatory if its impact is not ameliorated by
reasonable accommodation or modification of the rule or, where applicable,
by an exemption from it.
The court found that the employer was entitled to require a uniform dress
code as a condition of employment and to make it compulsory for practical

________________________

103 At para 49.

104 Fn 8.
105 Fn 70.
The right to equality in employment: non-discrimination 141

reasons related to the nature of the job – for example, to promote a certain
image. Here, the rule against wearing beards was set by the ‘practical and in-
herent need to be neat, to look like security guards and to project the respond-
ent as a security company with a distinctive image’. In the added stage of the
justification enquiry, the employer was required to accommodate reasonably
the religious beliefs of its employees. This did not mean, however, that the em-
ployer had to suffer ‘undue hardship’. While the employer bore the onus of
proving that it had considered accommodating the applicants, its alleged
failure to do so in this instance was not a ground on which the applicants had
challenged their dismissals.106
In Jansen van Vuuren v SA Airways (Pty) Ltd 107 and South African Airways (Pty)
Ltd v GJJVV 108 the court held that a retirement age of 60 was not an inherent
requirement for the job of a pilot. The relevant consideration was the pilot’s fit-
ness to fly.

3.6.2 Affirmative action measures as a defence to discrimination claims

As mentioned above, section 6(2) provides that it is not unfair discrimination to
take affirmative action measures consistent with the purpose of the EEA. An
________________________

106 At paras 63, 69 and 70. For further examples where the court did not find inherent re-
quirements of the job, see Wallace v Du Toit (fn 86) where an au pair’s dismissal for falling
pregnant constituted unfair discrimination because not being pregnant or a parent was
not an inherent requirement of the job; and Stojce v University of KZN (Natal) & another
(fn 63); Strydom v Nederduitse Gereformeerde Gemeente Moreleta Park (fn 31) decided
under the PEPUDA where the complainant was an independent contractor who taught
music at the art academy of the church for five hours per week. He was not a member of
the church and did not participate in church activities. His contract was terminated
when it became known that he was involved in a homosexual relationship. The court
sought to balance the church’s right to freedom of religion and the complainant’s right
to equality. It stated that difference should not be the basis for exclusion, marginalisation
and stigma but should rather be celebrated for the vitality that it brings to society.
Awards were made for impairment of dignity, emotional and psychological suffering and
for loss of earnings. The church was also ordered to tender an unconditional apology to
Strydom. An example where the court indeed found a code 15 license for the post of a
municipal police sergeant to be an inherent requirement of the job was found in
Ethekwini Metropolitan Municipality: Durban Metropolitan Police Services v Khanya &
others (DA9/2012) [2014] ZALAC 48 (18 September 2014). See, however, Rycroft ‘Inherent
requirements of the job’ (2015) 36 ILJ 900 who argues that adjudicators have a duty to
‘interrogate very carefully’ whether a particular requirement is essential for the proper ful-
filment of the particular job description. He argues convincingly that in the Ethekwini case
the court had incorrectly interpreted the defence of an inherent requirement for a job. It
could not be said that in this case the code 15 license (a capacity) which affects a small
part of the job, can be regarded as an inherent requirement because it indirectly discrim-
inates against disabled people and women. Contrast this to clear vision or the absence
of colour blindness for a pilot, which are fair inherent requirements for that job.
107 Fn 78.
108 Ibid. See Smit ‘Age Discrimination and Labour Law in South Africa: Intersectional and
Intergenerational Challenges’ ch 20 at 379 in Numhauser-Henning and Rönnmar (eds)
Age Discrimination and Labour Law – Comparative and Conceptual Perspectives in the
EU and Beyond (2015).
142 Law@work

affirmative action measure has to be designed to ensure that suitably qualified

people from designated groups have equal employment opportunities and are
equitably represented in all occupational levels in the workforce of a desig-
nated employer.109 This formulation raises more questions than it answers, and it
is necessary to refer to other sections in Chapter III of the EEA to fully appreciate
the nature and extent of legitimate affirmative action measures.
First, the justification of an affirmative action measure is not relevant when
there is no causal nexus between, on the one hand, the exclusion that is the
subject of the claim for discrimination and, on the other, the adverse effect on
the complainant’s rights or expectations.110 In other words, there is no need for
an employer to raise the application of an affirmative action measure as a
defence unless there is at least a prima facie claim of discrimination to meet.
Secondly, the courts have required that affirmative action measures be applied
fairly and rationally.111 Mlambo J stated in Independent Municipal and Allied
Workers Union v Greater Louis Trichardt Transitional Local Council 112 that affirma-
tive action should not be applied in an arbitrary and unfair manner:
[19] There appears to be no doubt therefore that for affirmative action to survive
judicial scrutiny the following is relevant:
19.1 There must be a policy or programme through which affirmative action
is to be effected;
19.2 The policy or programme must be designed to achieve the adequate
advancement or protection of certain categories of persons or groups
disadvantaged by unfair discrimination.
[20] In the Court’s view there are good reasons for these requirements. These
requirements ensure that there is accountability and transparency. They en-
sure that there is a measure or standard against which the implementation
of affirmative action is measured or tested. They ensure that no arbitrary or
unfair practices occur under the guise of affirmative action. They also ensure
full knowledge and participation in establishment and implementation of the
programme.
In Minister of Finance & another v Van Heerden113 (the first case on affirmative
action to reach the Constitutional Court), the court set out a test for affirmative
action measures (see chapter 7 below). The court held that affirmative action
measures that ‘properly fall’ within the requirements of section 9(2) of the Con-
stitution were not presumptively unfair and established a three-pronged ration-
ality test to determine this. The rationality test asks the following questions:114
________________________

109 S 15 of the EEA.

110 Eg, in University of Cape Town v Auf der Heyde [2001] 12 BLLR 1316 (LAC), the Labour
Appeal Court held that the defence of affirmative action should fail when the applicant,
whose complaint was that he had not been appointed to a position for which he had
applied on account of his race, was not the best applicant for the job. In these circum-
stances, his failure to be appointed was not the consequence of any unfair discrimination.
111 See also Naidoo v Minister of Safety & Security & another (2013) 34 ILJ 2279 (LC) discussed
in ch 7 below; Munsamy v Minister of Safety & Security & another (2013) 34 ILJ 2900 (LC).
112 (2002) 21 ILJ 1119 (LC) at 1125B.
113 Fn 15.
114 At para 37. See ch 7 at para 2.2 ‘A test for affirmative action’ below.
The right to equality in employment: non-discrimination 143

l Do the measures target people or categories of people who have been dis-
advantaged by unfair discrimination?
l Are such measures designed to protect or advance such people or categories
of people?
l Do the measures promote the achievement of equality?
This test is similar to but more comprehensive than the guidelines set out in In-
dependent Municipal and Allied Workers Union v Greater Louis Trichardt Tran-
sitional Local Council 115 and may be useful in adjudicating affirmative action
measures under the EEA. Criticism of the test is discussed in chapter 7.116

3.6.2.1 Efficiency and representativeness: striking a balance

In Stoman v Minister of Safety & Security & others117 the High Court affirmed that,
in the context of the public sector, the constitutional imperative of an efficient
administration does not mean that affirmative action or the demand for rep-
resentativeness justifies the appointment of a candidate who is not suitably
qualified and incapable of doing the job required of her or him. However, the
efficiency requirement is not in principle opposed to the requirement of repre-
sentativeness.
The same approach was followed in Coetzer & others v Minister of Safety &
Security & another 118 where failure to promote competent White applicants,
which failure was justified based on affirmative action, constituted unfair dis-
crimination. The employer had failed to produce evidence of a specific affirma-
tive action plan for the business unit in which the applicants were engaged,
and the refusal to promote the applicants was based purely on the imperative
of promoting representativeness. The court found on the evidence that the
constitutional imperative of efficiency had been overlooked.
In PSA obo Karriem v SAPS & another 119 the court upheld the respondent’s de-
cision to promote a White woman (and not the applicant, a Coloured woman)
on the basis that the skills required for the particular job had been properly
weighed up and that the appointment of the White woman was objectively
justified on operational requirements. The evidence indicated that, while the
appointed person could immediately do the job as required, the plaintiff needed
up to 36 months to acquire the skills needed for the post. The court held that this
delay might have had ‘catastrophic’ consequences for service delivery and the
efficiency of the respondent. The determining factor was that the operational
requirements and efficiency of the respondent required the appointment of a
person who could immediately perform the functions required by the post.
In Willemse v Patelia NO & others,120 the applicant had been overlooked for
promotion based on the application of an affirmative action measure. In this
________________________

115 Fn 112 at 1125B.

116 Ch 7 at para 2.2 ‘A test for affirmative action’ below.
117 2002 (3) SA 468 (T), [2002] JOL 9408 (T).
118 (2003) 24 ILJ 163 (LC).
119 [2007] 4 BLLR 308 (LC).
120 [2007] 2 BLLR 164 (LC).
144 Law@work

instance, there was evidence that the employer’s affirmative action targets
had been reached and that the applicant was clearly the best candidate for
appointment. In these circumstances, the application of the affirmative action
measure under scrutiny was arbitrary and unfair.
Similarly, in Reynhardt v University of South Africa,121 the Labour Court found
that because the university’s targets for the number of Black deans over the
number of White deans had already been surpassed in terms of its own employ-
ment equity policy, the appointment of a Coloured candidate less qualified
and experienced than the applicant, a White male, who was the most suitable
candidate, was a contravention of section 15(4) of the EEA and violated the
university’s own employment equity measures.122 When targets have been met,
the most suitable candidate should be appointed and affirmative action prin-
ciples do not apply.123 The applicant had accordingly been unfairly discrimin-
ated against based on race in not being appointed dean. The court also held
that the applicant had been treated in a humiliating way and his right to human
dignity and equality violated. The respondent was ordered to pay the applicant
both compensation and damages in terms of section 50(2) of the EEA. Com-
pensation was awarded in the amount of 12 months’ remuneration on the scale
of a deanship. This amount, the court stated, reflected a punitive element. A
substantial amount in damages for financial loss suffered was also awarded.124
The most comprehensive consideration by the Constitutional Court of the
application of an affirmative action measure as a defence to a claim of unfair
discrimination is found in Solidarity obo Barnard v SA Police Service.125 Barnard
(a White woman) had progressed through the ranks of the South African Police
Service (SAPS) over a period of 18 years to the rank of captain. An employment
equity plan (EEP) was in place. One of its many objectives was ‘service delivery
improvement’ across all sectors of the police. Barnard applied for promotion to
a new post of superintendent. Two rounds of interviews were held in which
Barnard obtained the highest score, but on both occasions the post was not
filled. Barnard claimed that her employer’s refusal to appoint her to the vacant
post constituted an act of unfair discrimination.

________________________

121 Fn 62.
122 The reason the most suitable candidate was not appointed was that university officials
presented incorrect statistical information on the demographic profile of deans to the
selection committee, the human resource committee and, by implication, to the council,
which made the final decision. They all relied on this misinformation when they insisted
that the respondent’s EEP apply, which resulted in the other candidate being recom-
mended for the post. The court held that whether the misrepresentation was intentional
or innocent was not significant to the case.
123 See ch 7 for the debate on continuing with affirmative action measures but in terms of
criteria other than those stipulated by the EEA.
124 The applicant had not sought reinstatement but compensation and damages. The de-
cision was confirmed by the Labour Appeal Court in University of South Africa v Reyn-
hardt (fn 62).
125 Fn 62.
The right to equality in employment: non-discrimination 145

The Labour Court found that no consideration had been given to any prin-
ciples other than racial representation and that the decision not to appoint
Barnard was reached in a one-sided manner that disregarded the constitutional
duty of efficiency, a decision which would negatively impact on service delivery.
The court found in favour of Barnard.
The SAPS successfully appealed to the Labour Appeal Court.126 Barnard, in
turn, successfully appealed to the Supreme Court of Appeal.127 The latter court
emphasised the specific facts of the case and made it clear that its decision
should not be viewed as a ‘Merlin-like incantation’ for future affirmative action
cases. It took into consideration a variety of factors such as the purpose of the
EEA – the achievement of an egalitarian society, provision of equal opportu-
nities for all, and levels of representativeness, which should not be used as ‘an
absolute criterion’ or with ‘mechanical application of formulae and numerical
targets’. While it was true that the national commissioner had the power to
leave the post vacant, the court considered it illogical that the fact that the
only suitable person for the position was from a non-designated group should
prevent her appointment.128
________________________

126 SA Police Service v Solidarity obo Barnard (Police & Prisons Civil Rights Union as amicus
curiae) (fn 62). The Labour Court found that the fact that Barnard had not been ap-
pointed and the fact that other suitable designated candidates had also been denied
promotion an irrational way of implementing the EEP. While the aim of affirmative action
measures is to enhance representativeness in the workplace, an attempt should have
been made to strike a balance between this goal and other factors relevant to the SAPS
and its employees such as efficient service delivery. In essence, representativeness should
have been weighed up against the affected individual’s right to equality and a fair de-
cision then made. No consideration was given to Barnard’s constitutional rights to equality
and dignity or to her particular circumstances (including her commitment to contribute
to service delivery and her passion both of which made her most suitable for the job). The
implementation of the EEP was thus found to be unjust, inequitable, biased and preju-
diced. The judgment required employers not to deny people promotion or appointment
on the pretext that their promotion or appointment would not enhance representation.
When a post cannot be filled by a suitable applicant from an under-represented category,
promotion to that post should not be denied to a suitable candidate from another group.
Barnard’s non-promotion because of her race established discrimination; the non-
appointment of suitable Black candidates did not change the fact of discrimination nor
did it render Barnard’s non-appointment fair. The national commissioner’s opinion that
leaving the post open would not affect service delivery added weight to the conclusion
that there was not a rational connection between the decision and the overall objects of
the plan. The commissioner’s disregard for the constitutional duty of efficiency and leav-
ing posts vacant in the interests of representativeness (when other suitable candidates
are available) hamper the ability of the police to deliver an ‘efficient’ service and are
not rational. Apart from the affected person who is denied a position, ordinary South Afri-
cans of all colours are adversely affected by non-delivery or poor delivery of services.
127 Fn 62.
128 Other factors considered (at para 68 et seq) were that nowhere in any law relating to
any post in the SAPS was the term ‘critical’ found and that the relevant provisions of the
Constitution (ss 195(1), 205(2) and (3)) dealing with the governance, establishment and
objects of the SAPS envisaged a professional, efficient SAPS that made effective use of
resources. In the absence of motivation by the national commissioner, the explanation
that the post was left vacant because it was not ‘critical’ was ‘contrived’, and failure to
continued on next page
146 Law@work

The SAPS then appealed to the Constitutional Court.129 The majority judgment
recalled the fundamental constitutional values of dignity and equality under the
rule of law, the transformative mission of the Constitution, and in particular the
aim of realising substantive equality. The court observed that restitutionary
measures are specifically contemplated by the Constitution. They are required
to target those who were subjected to unfair discrimination and should be
designed to protect and enhance that class of person and promote the
achievement of equality. In addition, the principle of legality requires that any
restitutionary measure be applied rationally – in other words, in such a way as to
advance its legitimate purpose. This is to be done in terms of the employer’s
EEP, ultimately to ensure that suitably qualified people from designated groups
are equitably represented in all occupational categories and levels. In so far as
Barnard had not attacked her employer’s EEP but the manner of its implemen-
tation, the majority held that, on the facts, the national commissioner had act-
ed rationally and with due regard to the criteria set out in the plan and that the
decision not to promote Barnard did not bar her from future promotions. The
national commissioner’s decision was accordingly upheld. Two minority judg-
ments arrived at the same result but via different conceptual routes. The first
was concerned with the fairness of the national commissioner’s decision and
sought to determine whether the plan had been implemented in a fair manner.
On the facts, the national commissioner’s decision passed the fairness test. The
second approach was based on considerations of human dignity and the effi-
ciency of the SAPS. On this analysis, there was nothing on the facts to suggest
that it was disproportionate for the national commissioner to have ranked repre-
sentivity higher than the possible impact on service delivery.
The above judgments serve to highlight the fact that the courts will not in-
terpret the affirmative action defence in an unlimited fashion. The starting point
is that the Constitution embodies a substantive conception of equality – one that
recognises that the right to equality extends beyond mere non-discrimination.
Both the Constitution and the EEA recognise that affirmative action measures
are consistent with this conception of equality. In this context, the courts have
been called on to balance efficiency and safety with representivity. But effi-
ciency is not generally recognised as a matter to be considered separately
from or in opposition to representivity. While the requirement of representivity is
often linked to efficiency, they are not competing or opposing aims. If there is
any tension between these ideals, the courts will attempt to strike a balance.

________________________

appoint Barnard led to the conclusion that service delivery must have been affected. It
has been stated that this case reinforced the need for employers to make long-term
plans for employment equity as part of their key strategic plans; they should develop the
necessary capacity and skills for their workplaces, and HR and skills development policies
should be aligned with employment equity targets (CEE Annual Report 2013–2014 at 52).
129 South African Police Service v Solidarity obo Barnard (Police and Prisons Civil Rights Union
as amicus curiae) (Constitutional Court) (fn 62). This case is discussed in more detail in
ch 7 at para 2.2 ‘A test for affirmative action’ below.
The right to equality in employment: non-discrimination 147

3.7 Equality for equal work or work of equal value

Unlike equality laws in other jurisdictions (such as the UK and USA), the EEA has
only recently explicitly recognised and regulated claims for equal pay for equal
work or work of equal value. Nonetheless, as early as 2000, the Labour Court in
Louw v Golden Arrow Bus Services (Pty) Ltd 130 stated that it was an unfair labour
practice to pay different wages for equal work or work of equal value if the
reason or cause for doing so was direct or indirect discrimination based on spe-
cified or other arbitrary grounds which had the potential to impair the dignity of
people in terms of item 2(1)(a) of Schedule 7 to the (then) LRA which prohibited
unfair discrimination and held it to constitute an unfair labour practice. In other
words, the court recognised in principle that the general provision regarding
unfair discrimination was wide enough to accommodate claims for equal pay
for equal work or work of equal value. The court found that the fact that a
(White) warehouse supervisor had received a higher salary than the (Black)
applicant, a buyer, on the alleged basis of race and in contravention of the
notion of equal pay for work of equal value, had not been proven and that,
accordingly, discrimination had not been established.
Few cases of this nature had been reported until the issue was addressed
comprehensively in Mangena & others v Fila South Africa (Pty) Ltd & others.131
The applicants alleged unfair discrimination in relation to their remuneration
based on, inter alia, their race or colour, birth, family relations and union mem-
bership. The Labour Court held that payment of remuneration is an employment
policy or practice in terms of sections 1 and 6(1) of the EEA and that paying an
employee less than another for performing the same or similar work on a spe-
cified or an unspecified ground constitutes less favourable treatment. Therefore,
any claim for equal pay for work that is the same or similar fell to be determined
in terms of the EEA. Similarly, the terms of section 6 are sufficiently broad to in-
corporate claims for equal pay for work of equal value.
To claim equal remuneration for work that is the same or similar, the claimant
must:
l identify a comparator;
l establish that the work done by the comparator is the same as or similar to
that of the claimant (such a comparison does not have to be over-fastidious
in the sense that infrequent or unimportant differences may be ignored).
Where the clam is for equal pay for work of equal value, the claimant must:
l identify a comparator;

________________________

130 Fn 93. See Co-operative Workers Association v Petroleum Oil & Gas Co-operative of SA
(fn 67) where the court found that the basis for paying different salaries to employees
was unrelated to the work the employees did or to the quality of their work performance.
The second respondent paid more to employees with dependants as a legal and moral
response to the social needs of this vulnerable group of employees.
131 Fn 51.
148 Law@work

l establish that the jobs of the comparator and claimant, while different, are
of equal value, having regard to the required degree of skill, physical and
mental effort, responsibility and other relevant factors;132 and
l lay a proper factual foundation to enable the court to assess the value to
be attributed to the work in question and to the tasks associated with it.
The claimant must then establish a link between the differentiation complained
of (being the difference in remuneration for the same work or work of equal
value) and a specified or unspecified ground. Once such a link is established,
section 11 of the EEA requires the employer to show that the discrimination is not
unfair.
Subsequent to this judgment, section 6 was extended to include the concept
of equal pay for the same or similar work and of work of equal value. Section
6(4) states that ‘A difference in terms and conditions of employment between
employees of the same employer performing the same or substantially the same
work or work of equal value that is directly or indirectly based on one or more of
the grounds listed in subsection (1), is unfair discrimination’. This means that
employees in different categories of employment (temporary,133 permanent,
casual, on contract) will enjoy equal pay and equal terms and conditions in all
respects.
The minister may prescribe the method and criteria for assessing work of
equal value. These assessment guidelines were established by way of the Regu-
lations134 and a Draft Code of Good Practice on Equal Pay for Work of Equal
Value (which has subsequently been replaced).135 Before prescribing such guide-
lines, the minister must consult with the ECC.136
The Employment Equity Regulations were drawn up with the assistance of ILO
experts137 and give guidance on establishing the equal value of work. They pro-
vide extensive guidelines on the meaning of the ‘same work’ and ‘work of
equal value’ to include work that is the same, substantially the same or of the
same value as other work.138
________________________

132 Van Niekerk J extended the ILO’s Equal Remuneration Convention No. 100 of 1951 on
equal pay between men and women to equal pay between races. He held that the
court was required to interpret the EEA in compliance with South Africa’s obligations in
terms of public international law. This interpretation would be consistent with the substan-
tive conception of equality that the Constitution and EEA adopted (see para 1.2 ‘The
constitutional dimension’ and ch 2). In particular, a systematic approach to the elimina-
tion of ‘structural’ inequality was necessary because race had historically played a role in
the value attributed to jobs.
133 The Regulations define ‘temporary employees’ as employees who are employed to work
for fewer than three months (reg 1). This definition probably refers to three consecutive
months’ employment with the same employer.
134 See Employment Equity Regulations (GNR 595, GG 37873) (Regulations).
135 GN 746, GG 38031, dated 29 September 2014. This has been replaced with the (final)
Code of Good Practice on Equal Pay/Remuneration for Work of Equal Value – GN 448,
GG 38837, dated 1 June 2015.
136 S 6(5).
137 CEE Annual Report 2013–2014 at ix.
138 Regs 4(1)–(3).
The right to equality in employment: non-discrimination 149

The same work means simply that the work of two employees of the same
employer:139
l is identical or interchangeable; or
l is substantially the same or is so sufficiently similar that the employees can
reasonably be considered to be doing the same job (even if their work is not
identical or interchangeable).
Work of equal value is found when two employees at the same employer do
different jobs, but their respective jobs are objectively accorded the same
value140 in terms of certain factors namely:141
l the responsibility demanded of the work, including people, finances and
material;
l the skills, qualifications (including formal and informal prior learning and experi-
ence) required to perform the work;
l the physical, mental and emotional effort required by the work;
l the conditions under which work is done (including physical environment,
psychological conditions, the time at and place where work is done); and
l any other relevant factor.142
The Regulations include an extensive list of factors that may justify different pay
(and other terms) as fair and justifiable. These include:143
l seniority or length of service;144
l qualifications, ability, competence or potential above the minimum re-
quired for the job;
l performance, quality or quantity of work, provided that the employees con-
cerned are equally subject to the relevant performance evaluation system
and that such system is consistently applied;
l a demotion due to organisational restructuring or any other legitimate reason
in terms of which the pay of the affected employee is not reduced but fixed
at this level until the salaries of employees in the same job category reach
the same level;
l temporary employment in a position to enable the employee concerned to
gain experience or training as a result of which temporary employment the
employee receives different pay and other terms;

________________________

139 Reg 4(1)–(2).

140 Regs 4(3); 6(1).
141 Reg 6(1)(a)–(d).
142 Reg 7(1)(g). Such assessment must be done free from bias based on race, gender, dis-
ability, any other listed ground or any arbitrary ground that is prohibited in terms of s 6(1)
(reg 6(3)). See s 55 of BCEA. Employers may also justify the value of a job by reference to
a ministerial sectoral determination (reg 6(4)).
143 Reg 7(1)(a)–(g).
144 See Pioneer Foods (Pty) Ltd v Workers against Regression & others (2016) 37 ILJ 2872 (LC)
where length of service was held not to be irrational and not unfairly discriminatory on an
arbitrary ground.
150 Law@work

l a shortage of relevant skills or the market value of a specific job classifi-

cation; and
l any other relevant factor that is not unfairly discriminatory in terms of section
6(1) of the EEA.
Moreover, the employer may justify the value assigned to a job with reference
to a sectoral determination by the minister.145
Differentiation in pay and other terms based on one or more of the listed
grounds will be fair and rational if it is established that its application is not
biased against an employee or group of employees based on race, gender,
disability or any ground in section 6(1) of the EEA and has been applied propor-
tionately.146 Employers must take steps to eliminate differences in the terms and
conditions of employment of employees performing work of equal value if such
differences are directly or indirectly based on a listed ground and must also
ensure that employees are not paid differently for work of equal value on the
basis of their race, gender or disability.147 A designated employer may use the
personal information obtained in Form EEA1 when doing an analysis for purpos-
es of establishing equal pay.148
The Code of Good Practice on Equal Pay for Work of Equal Value149 aims to
provide practical guidance on how to apply the principle of equal pay for work
of equal value. It further aims to encourage employers to manage their remuner-
ation policies and practices in terms of a sound governance framework. The
code must be read with the Regulations and the Code of Good Practice on the
Integration of Employment Equity into Human Resources Policies and Practices.150
The Code clarifies that ‘remuneration’ should be interpreted in terms of section 35
the BCEA.151 It repeats the basic criteria used to evaluate the value of jobs (but
adds more examples) and the criteria justifying differing remuneration that are
found in the Regulations. It adds little extra and leaves uncertainties.152 It does,
however, emphasise discrimination in remuneration based on sexual stereo-
typing of women's work, traditional job evaluation methods designed on the
basis of male-dominated jobs and of the weaker bargaining power of women
workers (for example, jobs relating to cleaning and caring).
The use of job evaluation, in itself, does not ensure the absence of dis-
crimination.153 The Code, like the Regulations, suggests that employers may be
________________________

145 Reg 6(4).

146 Reg 7(2).
147 Reg 3.
148 Reg 8. See ch 7.
149 See fn 135.
150 GN 1358, GG 27866, dated 4 August 2005.
151 Reg 2.4.
152 Item 5. For example, the Code does not make explicit provision for a ‘comparator’; it
omits the notion ‘market value’ which may be used frequently as a defence to justify dif-
ferentiation; the median and average earnings are unclear as it is obscure who would be
included in such an exercise. See Robertson ‘Does the New Code of Good Practice on
“Equal Pay for Equal Work” Justify its Existence?’ (2015) 36 ILJ 2522 for more uncertainties.
153 Item 6.
The right to equality in employment: non-discrimination 151

required to establish the value of both male-dominated and female-dominated

jobs in order to ascertain whether particular jobs have been undervalued and
to align female-dominated jobs with comparable male-dominated jobs in an
organisation.154
Nonetheless, it provides a process for evaluating jobs as follows:155
l determine the scope of an audit to be conducted to identify inequalities in
pay/remuneration on account of gender, race, disability or any other listed
or arbitrary ground;
l identify jobs that would be subjected to such audit;
l ensure that job profiles/descriptions exist and are current before evaluating
jobs;
l utilise a job evaluation and/or grading system that is fair and transparent
and does not have the effect of discriminating unfairly on any listed or arbi-
trary ground;
l compare jobs that are the same, similar or of equal value in the employer’s
own organisation/company (including female-dominated jobs that may have
been undervalued due to race, disability and other discriminatory grounds);
l select a method of comparing pay/remuneration (both in money and kind)
in the relevant jobs: this can be done by using either the average or median
earning of employees in the relevant jobs as the basis for pay/remuneration
comparisons or by using another method that will compare pay/remuner-
ation in a fair and rational manner;
l identify the reasons for differentiating in pay/remuneration as prescribed by
regulation 7 and determine whether they are justifiable;
l 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; and
l monitor and review the process on an annual basis.
The courts will likely prefer to rely on the Regulations where there are differences
with the Code as it carries more weight than the latter.156
In a recent case on equal pay, NEHAWU obo Zuma & KZN Legislature,157 it was
common cause that two employees did work of equal value and that there
was a pay disparity between them. The commissioner found that the reason for
this was not arbitrary but rational due to an organisational restructure and sub-
sequent change in the job evaluation system. The applicant’s despondency
was acknowledged by the respondent and would eventually have been
addressed through established HR practice. An immediate decision might have

________________________

154 Ibid. See para 5.4 of the Code ‘The right to equality in employment: employment equity
and affirmative action’.
155 Reg 8.
156 It appears that in at least some instances the Code’s contents have not been well con-
sidered.
157 (2017) 38 ILJ 717 (CCMA).
152 Law@work

compromised the integrity of the job evaluation. The respondent’s ‘caution and
insistence’ that its HR policies be followed was within the bounds of universally
accepted salary administration practice. Although the applicant found her situ-
ation difficult, this did not make the respondent’s conduct unfair discrimination.
In another matter, Govender and Umgungundlovu District Municipality,158 the
applicant requested that her post be re-evaluated to a higher level, namely to
that of the manager of revenue who was paid more. The terms and conditions
as well as the functions of the applicant and the manager differed greatly (in
terms of regulation 6(4)) but the complainant alleged that her treatment was
based on an arbitrary ground. The applicant had to prove that she was differ-
entiated against on an arbitrary ground, that she was discriminated against and
that the discrimination was unfair, which proved impossible to do. The commis-
sioner found that the respondent’s conduct was rational as the jobs had been
graded by the respondent’s job evaluation section and there was no evidence
that the evaluation was irrational, even if the jobs were graded incorrectly. The
commissioner found that the grading was ‘endowed with reason; sensible; sane
or moderate’. Moreover, the applicant had not established a specific arbitrary
ground which could constitute a reason or link for the difference in the grading.
To find discrimination, differentiation had to be shown to be based on attributes
that have the potential to impair the dignity of people. Put differently, the post
and not the employee was graded. Thus, her dignity could not be impaired and
unfair discrimination could not be proved.

3.8 Medical and psychometric testing

‘Medical testing’ is defined in section 1 of the EEA as including ‘any test, ques-
tion, enquiry or other means designed to ascertain, or which has the effect of
enabling the employer to ascertain, whether an employee has any medical
condition’. The medical testing of an employee or applicant for employment is
prohibited in terms of the EEA unless:159
l legislation permits or requires such testing; or
l such testing is justifiable in the light of medical facts, employment conditions,
social policy, the fair distribution of employee benefits or the inherent require-
ments of a job.
If medical testing cannot be justified on one of the grounds, then testing may
not take place.
In EWN v Pharmaco Distribution (Pty) Ltd,160 a pharmaceutical sales represen-
tative refused to undergo a psychiatric examination for bipolar disorder which
was well-controlled by the employee. Though her condition was generally
known in the company, the chairperson only at that stage became aware of it
and gave the instruction for psychiatric examination under the pretence of
establishing her fitness for work. The court held that section 7(1)(a) was not

________________________

158 (2016) 37 ILJ 724 (CCMA).

159 S 7(1)(a) and (b).
160 Fn 84.
The right to equality in employment: non-discrimination 153

applicable. Moreover, the suggested examination to determine if the applicant

was fit for work, did not fit neatly under section 7(1)(b) when analysing the word-
ing of the subsection; the applicant suffered from bipolar disorder, was under-
going regular therapy, was using medication but her psychologist was of the
opinion that her condition would not affect her ability to work effectively. The
respondent had further not made out a ‘threshold health qualification’ that it
was an inherent requirement of her job to undergo such an examination. Her
subsequent dismissal for disobeying the instruction was automatically unfair.161
Further, there was no objective basis to doubt the employee’s ability to do the
job, and singling her out while she was functioning well at work was found to
have a stigmatising effect on her and to be unfairly discriminatory.162 The em-
ployee was awarded compensation equivalent to 12 months’ remuneration for
the automatically unfair dismissal and general damages for unfair discrimin-
ation.163
The question of HIV is dealt with separately.164 In this regard, the EEA provides
that the testing of an employee to determine his or her HIV status is prohibited
unless the Labour Court determines in terms of section 50(4) of the Act that such
testing is justifiable.
Unfortunately, the Act does not stipulate the grounds upon which the Labour
Court may authorise the medical testing of an employee to determine his or her
HIV status. Section 50(4) merely records the conditions that the court can im-
pose when it grants an order authorising the medical testing of the employee.
These include conditions relating to the following:
(a) the provision of counselling;
(b) the maintenance of confidentiality;
(c) the period during which the authorisation for any testing applies; and
(d) the category or categories of jobs or employees in respect of which the
authorisation for testing applies.
The interpretation of section 7 of the EEA has been a matter of some controversy.
In Joy Mining Machinery, a division of Harnischfeger (SA) (Pty) Ltd v NUMSA &
others165 the Labour Court pointed out that section 7(2) ‘is not happily worded’

________________________

161 S 187(1)(f) of the LRA. See ch 10, para 8 ‘Unfair discrimination’ below.
162 EWN v Pharmaco Distribution (Pty) Ltd (fn 84) at para 49.
163 At para 59. See also Landman & Ndou ‘Some Thoughts on Developments regarding the
Recovery of Damages for Pure Psychiatric or Psychological Injury Sustained at Work’
(2015) 36 ILJ 2460.
164 S 7(2).
165 (2002) 23 ILJ 391 (LC). The following factors were stipulated in determining the circum-
stances under which testing would be justifiable: the prohibition of unfair discrimination;
the need for HIV testing (when, eg, the employer wants to determine the extent of HIV at
the workplace in order to place itself in a better position to evaluate its training and
awareness programmes and to formulate future plans); the purpose of the test (when the
employer needs to know the prevalence of HIV at its workplace in order to be proactive
in HIV prevention amongst its employees, to treat the symptoms and to plan for contin-
gencies including the fair distribution of employee benefits, medical aid and the training
of replacement labour); medical facts; employment conditions; social policy; the fair
continued on next page
154 Law@work

but appeared to hold that its sanction was necessary even if the proposed test-
ing was voluntary and anonymous. The employer in Irvin & Johnson Ltd v Trawler
& Line Fishing Union & others166 applied to the Labour Court for an order declar-
ing that the testing in question, which was to be both voluntary and anony-
mous, did not fall within the ambit of section 7(2). As a precaution, an order was
sought in the alternative that the testing was justifiable as contemplated in the
subsection, subject to certain conditions set out in the application. The appli-
cant submitted that it required information on HIV prevalence in its workforce to
assess the potential impact of HIV/AIDS and to help it engage in appropriate
human resource planning and to facilitate the proactive steps to prevent em-
ployees from becoming infected with HIV/AIDS. The proposed testing was both
voluntary and anonymous and was to be accompanied by pre-test and post-
test counselling.
The court dealt first with anonymous testing and noted that section 7 of the
EEA forms part of a chapter dealing with the prohibition of discrimination in em-
ployment. The main purpose of the Act is to achieve equity in the workplace by
promoting equal opportunity and fair treatment through the elimination of
unfair discrimination:167
In this context, the purpose of section 7 seems to me to be clear. An employer
should not unfairly discriminate against an employee on the basis that the latter
suffers from some or other medical condition. One of the ways of reducing the
likelihood of such discrimination is to limit the circumstances in which an employer
may ascertain the employee’s medical condition through testing.
When employees are tested in such a way that the employer is unable to iden-
tify which of them are suffering from the medical condition in question, the risk
of discrimination based on medical condition is absent. It would not be surpris-
ing, therefore, to find that anonymous testing falls outside the ambit of section 7.
There is support in the Act for this view.
Regarding voluntary testing, the court noted that in view of its conclusion on
the anonymous nature of the proposed testing, it was perhaps not necessary to
consider whether a test that would enable an employer to ascertain the HIV
status of an identifiable employee is permissible without a court order if the test-
ing is voluntary. The court nevertheless dealt with the issue comprehensively and
drew a distinction between compulsory and voluntary testing in the following
terms:168
Compulsory testing is not limited to the case of taking a sample from an employee
by physical force. In the absence of consent, such conduct would amount to an
assault, and it would not require any statutory provision in order to render it unlaw-
ful. By compulsory testing is meant, in this context, the imposition by the employer
of a requirement that employees (or prospective employees) submit to testing on
the pain of some or other sanction or disadvantage if they refuse consent. This is to
________________________

distribution of employee benefits; the inherent requirements of the job; and the categories
of employees or jobs concerned.
166 [2003] 4 BLLR 379 (LC).
167 At paras 18–19.
168 At para 28.
The right to equality in employment: non-discrimination 155

be contrasted with voluntary testing, where it is entirely up to the employee to de-

cide whether he or she wishes to be tested and where no disadvantage attaches
to a decision by the employee not to submit to testing.
The court concluded that on a proper interpretation of section 7 the legislature
could not have intended that before an employer can offer its employees med-
ical assistance at medical or nursing facilities it has provided it must be decided
in each case whether the undertaking of a medical investigation is objectively
justifiable on one of the grounds set out in section 7(1)(b). The court concluded
that the anonymous and voluntary testing the applicant wished to arrange for
its employees did not fall within the ambit of section 7(2) and that the applicant
did not require the authority of the Labour Court before allowing its employees
to have their HIV status tested.169
Although the Code of Good Practice: Key Aspects of HIV/AIDS and Employ-
ment170 is not binding, it elaborates on the requirements stipulated in the Act
and provides for ‘permissible’ testing by an employer of an employee who has
requested a test:
l as part of a health care service provided in the workplace;
l in the event of an occupational accident carrying a risk of exposure to blood
or other body fluids; and
l for the purposes of applying for compensation following an occupational
accident involving risk of exposure to blood or other body fluids.
Clause 7.1.5(b) of the code stipulates that such testing may take place only:
(i) At the initiative of an employee;
(ii) Within a health care worker and employee-patient relationship;
(iii) With informed consent and pre- and post-test counselling as defined by the
Department of Health’s National Policy on Testing for HIV; and
(iv) With strict procedures relating to confidentiality of an employee’s HIV status . . .

3.9 Psychological testing and other similar assessments

Psychological testing and other similar assessments of employees are prohibited
by section 8 of the EEA unless the test or assessment used:
(a) has been scientifically shown to be valid and reliable;
(b) can be applied fairly to all employees;
(c) is not biased against any employee or group; and
(d) has been certified by the Health Professions Council of South Africa . . . or any
other body which may be authorised by law to [do so].171
For the purposes of this section ‘employee’ includes an applicant for employment.

________________________

169 See PFG Building Glass (Pty) Ltd v CEPPWAWU & others [2003] 5 BLLR 475 (LC) for an appli-
cation of the Irvin & Johnson case (fn 166).
170 The Code of Good Practice on HIV and AIDS and the World of Work was published in
GN 451, GG 35435, dated 15 June 2012.
171 In terms of the Health Professions Act 56 of 1974. The Amendment Act inserted this pre-
requisite.
156 Law@work

3.10 Employer’s liability for the conduct of an employee

Should an employee contravene a provision of the EEA or engage in any con-
duct that, if engaged in by his or her employer, would constitute such a contra-
vention, the conduct must immediately be brought to the attention of the em-
ployer.172 ‘The employer must consult all relevant parties and must take the
necessary steps to eliminate the alleged conduct and comply with the pro-
visions of [the EEA]’.173 If the employer fails to take the necessary steps and if it is
proved that the employee has indeed contravened the provision concerned,
the employer must be deemed also to have contravened that provision.174 The
employer is not liable for the conduct of an employee if that employer is ‘able
to prove that it did all that was reasonably practicable to ensure that the em-
ployee would not act in contravention’ of the Act.175 In other words, an em-
ployer may escape liability for the conduct of its employees if it can prove that
reasonable steps were taken to ensure that an employee would not contra-
vene the EEA in a particular instance.
The EEA requires employers to take steps in advance and to be proactive in
the elimination and prevention of unfair discrimination: they cannot simply sit
back and wait to be informed of incidents of sexual harassment.176
Some judgments illustrate the liability of employers for the conduct of their
employees. For example, in Ntsabo v Real Security CC 177 the Labour Court
awarded an employee 12 months’ remuneration as compensation for unfair dis-
missal in terms of the LRA, damages in terms of the EEA in the sum of R20 000 for
future medical costs and R50 000 for general damages after finding that she
had been subjected to sexual harassment. This would appear to be the first
case in which the Labour Court awarded damages under the EEA. The award
was made on the basis that the actions of the employee’s supervisor had con-
travened the provisions of the EEA and that although his actions had been
brought to the attention of the respondent company it had turned a blind eye
and, by doing so, contravened the EEA. The respondent’s failure to deal with
the allegation of sexual harassment constituted discrimination for the purposes
of the Act and its failure to respond appropriately rendered it liable.178
________________________

172 S 60(1).
173 S 60(2).
174 S 60(3). See, eg, the discussion in Future of SA Workers Union obo AB & others v Fedics
(Pty) Ltd & another (2015) 36 ILJ 1078 (LC); Liberty Group Ltd v M (2017) 38 ILJ 1318 (LAC).
175 S 60(4). See Pillay and Old Mutual Property (Pty) Ltd (2015) 36 ILJ 1961 (CCMA).
176 See Piliso v Old Mutual Life Assurance Co (SA) Ltd & others (fn 33) at para 35; Potgieter
v National Commissioner of the SA Police Service & another (2009) 30 ILJ 1322 (LC);
Hendricks v Cape Peninsula University of Technology & others (fn 38).
177 Fn 33.
178 Grobler v Naspers Bpk & another (fn 33) raises the prospect of strict liability at common
law for acts of harassment committed by employees. The court rejected the employer’s
arguments that, because the employee had not been acting in the course and scope of
his duties, had been motivated by a personal agenda and had not acted in the interests
of the employer when he harassed the plaintiff, the employer could not be held liable for
the harassment perpetrated by him. The first and second respondents (a manager-in-
training and head of the planning section of production) were held jointly and severally
continued on next page
The right to equality in employment: non-discrimination 157

In a case that dealt with racism, SATAWU obo Finca v Old Mutual Life Assur-
ance Company (SA) Ltd & another,179 a White employee had refused to have
her workstation close to Black co-employees. The court held that the employer’s
failure to take proper steps to prevent the perpetration of racism at the work-
place by certain of its employees constituted direct and unfair discrimination
against the complainant and ordered the employer to pay compensation to
the victim of the incident of racism.
In Gumede and Crimson Clover 17 (Pty) Ltd t/a Island Hotel,180 the applicant’s
case was that in calling him unclean, smelly, untidy and having a bad odour, his
employer had unfairly discriminated against him on an arbitrary ground. The
respondent’s view was that the applicant lacked good personal hygiene, which
was a requirement as the applicant served food and beverages to patrons. The
treatment accorded to the applicant was however irrational and constituted
unfair discrimination on arbitrary grounds. However, in Ngwabe and Imvula
Quality Protection (Pty) Ltd 181 an employee referred to a co-employee having a
single eye as ‘one-eye,’ either to identify him, or possibly as a joke in poor taste.
This reference was found not to constitute unfair discrimination as the per-
petrator had offered an apology and admitted that it was wrong of him to
address the person in those terms. The employee had also been disciplined and
issued with a written warning. It was held that even if the term was a ‘mild’ form
of discrimination, the employer had taken the necessary steps to address the
situation and could therefore not be held liable.
Any liability on the part of the employer in terms of section 60 is on account of
the acts of its employees. In Shoprite Checkers (Pty) Ltd v Samka & others182 the
________________________

liable for general damages, medical costs and compensation to be paid to the com-
plainant. In Media 24 Ltd & another v Grobler (fn 33), the Supreme Court of Appeal con-
firmed that an employer has a common-law duty to create and maintain a safe working
environment and that the employer’s failure to take reasonable and practicable steps to
prevent sexual harassment of its employees is a negligent breach of that duty. In such
circumstances, the employer is vicariously liable for sexual harassment committed by an
employee. See also NK v Minister of Safety & Security (2005) 26 ILJ 1205 (CC) where the
Constitutional Court held that it was obliged to expand common-law principles of vicarious
liability to accord with the Constitution. In this case, the court held the state liable for the
conduct of a group of police officers who, without authorisation and contrary to standing
instructions, had offered a woman a lift home and then raped her. In contrast, see also
Erasmus v Ikwezi Municipality & another (2016) 37 ILJ 1799 (ECG) where common law
vicarious liability of an employer was developed to hold the employer liable for its em-
ployee’s sexual harassment towards a co-employee. See ch 5 above.
179 Fn 62.
180 Fn 59. The arbitrator held at para 16 that he had ‘no doubt that the treatment meted out
to the applicant was insulting and offended his dignity as a human being. It is deeply
humiliating for any person to be called unclean, smelly and untidy’ and at para 23 ‘the
applicant was being victimised by the respondent on arbitrary grounds, being allegations
of perspiring whilst on duty, having a bad body odour, and having poor personal hygiene.
These are judgmental statements that undoubtedly impaired the dignity of the applicant
and demeaned his worth as a human being’.
181 Fn 68. See also para 3.10 ‘Employer’s liability for the conduct of an employee’ below.
182 [2018] 9 BLLR 922 (LC).
158 Law@work

Labour Court held that an employer could not be liable in terms of the section
where racial abuse against an employee had been perpetrated by a customer
and not another employee.
An employer’s liability in terms of section 60 extends beyond the immediate
workplace. In Biggar v City of Johannesburg (Emergency Management Ser-
vices)183 the Labour Court held that a black employee and his family who had
been subjected to racial abuse by white employees in a residence provided by
the employer had been discriminated against, and should be compensated.
The court found that the employer had failed to appreciate the gravity of the
racial slurs and their effect and deal with a complaint of racial harassment in a
decisive manner.

4 Dispute procedures and remedies

4.1 The EEA
Disputes concerning unfair discrimination must be referred to the CCMA ‘within
six months after the act or omission that allegedly constitutes unfair discrimin-
ation’.184 If a dispute remains unresolved after conciliation, any party to the dis-
pute may refer it to the Labour Court for adjudication. All the parties may, how-
ever, consent to arbitration of the dispute in which event it may be arbitrated.185
It would therefore seem that the parties may agree to private arbitration of a
dispute about unfair discrimination.
The CCMA’s jurisdiction has been extended by entitling employees to refer
disputes about unfair discrimination on the ground of sexual harassment to the
CCMA for arbitration after conciliation. Parties in cases of sexual harassment
have a right of appeal to the Labour Court. Moreover, employees who earn less
than the amount stated by section 6(3) of the BCEA may also refer disputes
about unfair discrimination to the CCMA for arbitration, with a right of appeal to
the Labour Court. Moreover, any party may refer the dispute to the CCMA for
arbitration if all parties consent.186
An award made by the CCMA hearing a matter in terms of its extended juris-
diction may, as appropriate, include any order which the Labour Court may

________________________

183 (2017) 38 ILJ 1806 (LC).

184 S 10(2). See Minister of Safety & Security & another v Govender (fn 62) where the court
found that it is not the intention of the EEA that a dispute fester at the conciliation stage
indefinitely simply because conciliation has not been attempted. Failure to conciliate a
dispute is thus not an obstacle in the process of referring a dispute concerning unfair dis-
crimination to the Labour Court. The court upheld a special plea that when an em-
ployee’s claim of unfair discrimination is primarily based on the failure of the respondent
to comply with its EEP, the enforcement mechanisms of Ch V of the EEA have to be ex-
hausted before the claim can be referred to the Labour Court. See also Masango v Lib-
erty Group Ltd (2012) 33 ILJ 414 (LC) where the court held that such referral had to be
done within a ‘reasonable’ time.
185 S 10(6).
186 S 10(6)(aA), (6)(b) and (8).
The right to equality in employment: non-discrimination 159

make. An award of damages, however, may not exceed the amount stated by
the minister in terms of section 6(3) of the BCEA.187
The Labour Court has wide jurisdiction to determine disputes. It may, for ex-
ample, grant compensation or issue an interdict prohibiting the employer from
the continuing with its discriminatory actions. In terms of section 50(2) of the EEA,
if the Labour Court decides that an employee has been unfairly discriminated
against it may make any appropriate order that is just and equitable in the cir-
cumstances, including:
(a) payment of compensation by the employer to that employee;
(b) payment of damages by the employer to that employee;
(c) an order directing the employer to take steps to prevent the same unfair dis-
crimination or a similar practice [from] occurring in the future in respect of
other employees;
(d) an order directing an employer, other than a designated employer, to com-
ply with Chapter III [of the EEA] as if it were a designated employer;
(e) an order directing the removal of the employer’s name from the register referred
to in section 41; or
(f) the publication of the Court’s order.
In Ditsamai v Gauteng Shared Services Centre,188 the applicant who was not
appointed permanently (unlike other employees) lodged a grievance demand-
ing that he be so appointed. He was dismissed on the same day. He successfully
claimed compensation for unfair dismissal in terms of the LRA. Thereafter, he suc-
cessfully claimed damages for unfair discrimination in terms of the EEA. The court
held that the remedies were located in two different statutes and that the first-
mentioned action under the LRA did not preclude a further claim under the EEA.

4.2 Commission for Gender Equality

The Commission for Gender Equality was established in terms of the Commission
for Gender Equality Act.189 The Commission was established ‘to promote gender
equality and to advise and to make recommendations to Parliament and any
other legislature with regard to any laws or proposed legislation which affects
gender equality and the status of women’.190
The Commission for Gender Equality Act gives the Commission extensive powers
including the power to:
l monitor and evaluate the policies and practices of state organs at any level,
statutory bodies or functionaries, public bodies or authorities and private
businesses, enterprises and institutions, and make recommendations;
l develop, conduct or manage information programmes and education pro-
grammes to foster public understanding of matters pertaining to the promo-
tion of gender equality and the role and activities of the Commission;

________________________

187 S 48 of the EEA.

188 [2009] 5 BLLR 456 (LC).
189 Act 39 of 1996.
190 See the Preamble to Act 39 of 1996.
160 Law@work

l evaluate any Act of Parliament, system of personal and family law or custom,
system of indigenous law, customs or practices, or any other law, and make
recommendations to Parliament or other legislature with regard thereto;
l recommend to Parliament or any other legislature the adoption of new
legislation to promote gender equality and the status of women; and
l investigate any gender-related issues of its own accord or on receipt of a
complaint and endeavour to resolve any dispute or rectify any act or omis-
sion by mediation, conciliation or negotiation.

5 Monitoring and enforcement

Chapter 7191 deals with monitoring of and compliance with Chapter II of the
EEA. The minister may in a code of good practice set out factors that must be
taken into account in assessing whether an employer complies with Chapter II
of the EEA.192
The next chapter will deal with affirmative action measures, which have to
promote and achieve substantive equality in the workplace.

________________________

191 See paras 8 ‘Monitoring and enforcement’ and 9 ‘Powers of the Labour Court’.
192 S 53(5). This section will now be promulgated to expedite transformation (CEE Annual
Labour Report 2016–2017 at 4). See also ch 7 ‘The right to equality in employment: em-
ployment equity and affirmative action (Chapter III of the EEA)’, para 11 ‘State contracts’
below.
7
The right to equality in
employment: employment
equity and affirmative action
(Chapter III of the EEA)

Page
1 Introduction ...................................................................................................... 163
1.1 The second purpose of the EEA: substantive equality including
affirmative action ..................................................................................... 163
1.2 Origin and purpose .................................................................................. 163
2 Application of Chapter III of the EEA ............................................................ 164
2.1 Defining affirmative action measures .................................................... 164
2.2 A test for affirmative action ..................................................................... 166
3 Does affirmative action establish a cause of action based on the
application of an equality right? ................................................................... 172
4 Implementing Chapter III of the EEA ............................................................. 174
4.1 Designated employers ............................................................................. 174
4.2 Beneficiaries of affirmative action measures ........................................ 175
4.2.1 Designated groups ......................................................................... 175
4.2.2 Citizenship ....................................................................................... 176
4.2.3 Group membership ........................................................................ 176
4.2.4 Degrees of disadvantage ............................................................. 177
4.2.5 The notion of ‘suitably qualified’ .................................................. 178
4.2.6 People employed by a temporary employment service .......... 179
5 Duties of designated employers .................................................................... 179
5.1 General ...................................................................................................... 179
5.2 Consultation with employees .................................................................. 179
5.3 Disclosure of information.......................................................................... 180
5.4 Analysis....................................................................................................... 180
5.5 Employment equity plan ......................................................................... 180

161
162 Law@work

Page
5.6 Report to the Director-General ............................................................ 182
5.7 Other duties ............................................................................................ 183
6 Income differentials ....................................................................................... 183
7 Commission for Employment Equity ............................................................ 184
8 Monitoring and enforcement....................................................................... 184
8.1 Inspections.............................................................................................. 185
8.2 Review by the Director-General .......................................................... 186
8.3 Application by the Director-General to the Labour Court for an
order directing the employer to comply ............................................ 186
8.4 Assessment of compliance .................................................................. 187
9 Powers of the Labour Court.......................................................................... 192
10 Jurisdiction of the Labour Court ................................................................... 192
11 State contracts .............................................................................................. 192
Right to equality in employment: employment equity and affirmative action 163

1 Introduction
1.1 The second purpose of the EEA: substantive equality including
affirmative action
As discussed in chapter 6, section 1 of the Constitution states that the Republic
of South Africa is founded on, inter alia, the value of the ‘achievement of equality’.
Section 9 acknowledges that the concept of equality has two dimensions. The
first is formal equality, which prohibits unfair discrimination against all persons
and requires the equal treatment of people. The second – substantive equality –
requires an examination of the social and economic conditions of groups and
individuals and provides for remedial measures (including affirmative action) to
protect and advance previously disadvantaged people.1
The Constitution subscribes to a conception of substantive equality, as recog-
nised and explicated by the Constitutional Court in President of the Republic of
South Africa v Hugo2 and Minister of Finance & another v Van Heerden.3 This
chapter is largely concerned with the meaning of substantive equality and with
how substantive equality is reflected in law and practice.

1.2 Origin and purpose

The Employment Equity Act (‘EEA’), consistent with ILO Discrimination (Employ-
ment and Occupation) Convention 111,4 provides for affirmative action in the
workplace. The relevant article of the Convention reads as follows:
5(2) Any Member may, after consultation with representative employers’ and
workers’ organizations, where such exist, determine that other special measures
designed to meet the particular requirements of persons who, for reasons such as
sex, age, disablement, family responsibilities or social or cultural status, are gener-
ally recognized to require special protection or assistance, shall not be deemed to
be discrimination.
Taking its cue from ILO Convention 111 and section 9 of the Constitution, section
2(b) of the EEA describes the Act’s second purpose as being ‘to achieve equity’
in the workplace by ‘implementing affirmative action measures to redress the
disadvantages in employment experienced by designated groups, in order to

________________________

1 As mentioned in ch 6, the EEA has been amended by the Employment Equity Amend-
ment Act 47 of 2013 (‘Amendment Act’). Moreover, Draft Employment Equity Regulations
published early in 2014 (GNR 124, GG 37338, dated 28 February 2014) had been withdrawn.
Subsequently, new Employment Equity Regulations were published (GNR 595, GG 37873,
dated 1 August 2014) (Regulations) and came into operation on 1 August 2014. These
Regulations repealed the General Administrative Regulations (GNR 736, GG 32393, dated
14 July 2009).
2 1997 (4) SA 1 (CC). See also Brink v Kitshoff NO 1996 (4) SA 197 (CC); National Coalition for
Gay & Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC); Bato Star Fishing (Pty) Ltd v
Minister of Environmental Affairs & others 2004 (7) BCLR 687 (CC) where the Constitutional
Court confirmed and expanded on the idea of substantive equality.
3 [2004] 12 BLLR 1181 (CC).
4 Adopted on 25 June 1958.
164 Law@work

ensure their equitable representation in all occupational levels in the work-

force’. (See chapter 6 above for a discussion of the EEA’s first purpose as set out
in section 2(a).)
In this chapter we will attempt to define ‘affirmative action’, ‘designated em-
ployers’, ‘designated groups’, ‘suitably qualified’, ‘equitable representation’ and
other terms used in the EEA.

2 Application of Chapter III of the EEA

2.1 Defining affirmative action measures
Affirmative action measures are designed to ensure that suitably qualified
people from designated groups have equal employment opportunities and are
equitably represented in all occupational levels in the workforce of a designated
employer.5
The EEA gives the following examples of affirmative action measures:6
(a) measures to identify and eliminate employment barriers, including unfair dis-
crimination, which adversely affects people from designated groups;
(b) measures designed to further diversity in the work-place based on equal dig-
nity and respect of all people;
(c) making reasonable accommodation for people from designated groups in
order to ensure that they enjoy equal opportunities and are equitably repre-
sented in the workforce of a designated employer . . .
‘Reasonable accommodation’ is defined as ‘any modification or adjustment to
a job or to the working environment that will enable a person from a desig-
nated group to have access to or participate or advance in employment’.7
The Act also introduces measures8 (which may include preferential treatment
and numerical goals but not quotas)9 to:
(i) ensure the equitable representation of suitably qualified people from desig-
nated groups in all occupational levels in the workforce; and

________________________

5 S 15(1). Remember that affirmative action measures may be used as a defence to a claim
of unfair discrimination. See ch 6.
6 S 15(2).
7 S 1. See National Education Health & Allied Workers Union obo Lucas v Department of
Health (Western Cape) (2004) 25 ILJ 2091 (BCA) and Abels and Dialogue Group (Pty) Ltd
(2009) 30 ILJ 2167 (CCMA) for an interpretation of the notion ‘reasonable accommoda-
tion’ and the extent of the employer’s duty to make such accommodation.
8 S 15(2)(d).
9 S 15(3). Quotas contain fixed numbers. See Mgolozeli v Gauteng Department of Finance
& another (2015) 36 ILJ 1602 (LC) where no plan was in place and the respondent applied
quotas to achieve gender representation. It was held that the female applicant’s non-
appointment constituted unfair discrimination and the respondent was ordered to ap-
point her to the position for which she had applied. See Solidarity & others and Depart-
ment of Correctional Services & others (2016) 37 ILJ 1995 (CC),which confirmed that the
nature of numerical targets compared to quotas lies in its flexibility.
Right to equality in employment: employment equity and affirmative action 165

(ii) retain and develop people from designated groups and to implement appro-
priate training measures, including measures in terms of an Act of Parliament
providing for skills development.10
The EEA also stipulates that a designated employer need not take any decision
concerning an employment policy or practice that would establish an absolute
barrier to the prospective or continued employment or advancement of
people from non-designated groups.11 This implies that employers may not, for
example, completely exclude able-bodied White males from being employed
or promoted.12
Affirmative action measures are thus a tool or means by which ‘equitable rep-
resentation’ can be achieved in the workplace. They are part of a broader
strategy to promote the achievement of equality as set out in the Constitution
and should be used by the courts (and employers) to assist in social trans-
formation.13
Affirmative action measures need to be re-examined periodically to ascertain
whether they:
l are functioning effectively and reaching their intended beneficiaries as set
out in the EEA;
l remain necessary;14 or
________________________

10 See ch 18.
11 S 15(4).
12 Du Preez v Minister of Justice and Constitutional Development & others [2006] 8 BLLR 767
(SE), decided under the PEPUDA, illustrates this well. In this case, a White male applicant –
a well-qualified and experienced magistrate in the district court – was not short-listed for
vacant magistrate posts in the regional court because applicants for these senior posts
were selected solely on the basis of race and gender. The complete exclusion of experi-
ence and other relevant factors in the selection process was found to be irrational and
unfair in that it raised an ‘insurmountable obstacle’ and created an absolute barrier for
the applicant to the appointment to the post of regional-court magistrate. See also Soli-
darity obo Van der Walt & others v SA Police Service & others (2013) 34 ILJ 2943 (LC).
13 See Rycroft ‘Obstacles to Employment Equity? The Role of Judges in the Interpretation
and Implementation of Affirmative Action Policies’ (1999) 20 ILJ 1411 generally; Rycroft
‘Transformative Failure: The Adjudication of Affirmative Action Appointment Disputes’ in
Dupper and Garbers (eds) Equality in the Workplace: Reflections from South Africa and
Beyond (2008) at 325.
14 See CEE Annual Report 2014–2015 which states that the pace of transforming workplaces
in relation to the EAP was moving ‘very slowly’ (at 58) and continued to be racialised and
gendered (ibid). Similarly the CEE Annual Report 2015–2016 stated that the pace of trans-
formation was moving ‘very slow’ and that it will take ‘many years’ to attain equitable
representation in the labour market (at 79). It was reiterated that the labour market con-
tinued to be racialised and gendered (ibid). In the CEE Annual Report 2016–2017 the Re-
port again emphasised ‘a very slow pace of transformation’ and that ‘not much has
changed’ (at 1). The Public Service and Administration Minister announced in 2013 that
the public service was fully transformed in relation to the demographics of the country
(see McGregor ‘Blowing the Whistle: The Future of Affirmative Action in South Africa? (Part II)’
(2014) SA Merc LJ 282 at 291 referring to ‘Public service fully transformed – Minister’ Legal-
brief Today (28 June 2013)). However, affirmative action in the public sector is still imple-
mented. In this regard it has been stated that government was ‘poisoned with a toxic mix of
affirmative action, cadre deployment, and impunity . . . [these] mean that appointments
to government jobs are very often made on grounds of race and/or political allegiance
continued on next page
166 Law@work

l should be extended to disadvantaged groups other than those specified in

the EEA, or whether the criteria for designated groups should be changed.15
It is clear that affirmative action measures16 are not the only measures that
should be considered by designated employers. Other measures must also be
considered in order to achieve the objectives set out in section 15(1) of the EEA.

2.2 A test for affirmative action

In chapter 6 above we noted that Minister of Finance & another v Van Heerden17
established a three-stage test for the validity of affirmative action measures.

________________________

to the ruling party . . . Requisite skills and/or experience are subordinate criteria’ (ibid at
292). McGregor argues (at 305) that South Africans have to ask themselves whether they
have the collective political will to address the high levels of inequality in the country and,
if they do not, whether they are prepared to live with the consequences of their failure to
do so, to watch and experience continuing poverty, unfulfilled socio-economic rights and
to be part of a non-egalitarian society and see inequality increase.
15 It is apposite to note that during the early debate on the EEA, commentators argued for
factors other than race to determine the beneficiaries of affirmative action. See, eg,
Brassey ‘The Employment Equity Act: Bad for Employment and Bad for Equity’ (1998) 19 ILJ
1359 at 1365 who asks whether poverty should not be tackled directly. He argues that the
true beneficiaries in terms of the EEA would be the already over-represented Black middle
class and not the poor. Similarly, Adam ‘The Politics of Redress: South African Style Affirma-
tive Action’ (1997) 35 J of Modern African Studies 231 at 239 argues that class would be a
better criterion for affirmative action since South African society is polarised in terms of
race. He argues that in South Africa the demands for restitution stemming from a racist
society could be met through an emphasis on household income and personal or family
wealth. Such criteria would enable Blacks to become the major beneficiaries of affirma-
tive action but also assist members of other racial groups. See also McGregor ‘Categor-
isation and Affirmative Action’ (2007) 70(4) THRHR 596 for the shortcomings of the criteria
currently used for beneficiaries of affirmative action by the EEA. See also Dupper ‘Affirma-
tive Action: Who, How and How Long?’ (2008) SAJHR 425 at 439–442 who argues that,
while the gap between Blacks and Whites has decreased in recent years, there has been
a sharp increase in the level of inequality within racial groups especially among Africans.
Affirmative action has empowered the top level of Black people but lower levels – ie,
poor and unemployed Black people with limited access to opportunities – have been left
largely untransformed. Although the creation of a Black elite might have been an im-
portant moral and strategic imperative, the process of creating this elite has highlighted
the limits of race-based measures. It has created a small group of increasingly multi-racial
‘insiders’ who participate in and benefit from South Africa’s prosperity, while a large group
of ‘outsiders’ who are poor, unemployed and disproportionately rural and young remains
almost exclusively Black. Dupper submits that these continuous shifts in South Africa’s
social and economic relations as a consequence of current race-based affirmative
action strategies demand a re-evaluation of race as a basis for affirmative action meas-
ures. As apartheid left South Africa a class structure that is largely racially defined, the
broad overlap between race and class creates a situation in which affirmative action
strategies with class objectives would have the effect of addressing historical racial dispar-
ities without reinforcing racial identities and aggravating racism. Moreover, measures
phrased in anti-poverty terms would be more effective and have the strategic advantage
of generating less resistance particularly from White South Africans.
16 As set out in s 15(2).
17 Fn 3.
Right to equality in employment: employment equity and affirmative action 167

Affirmative action measures that ‘properly fall’ within the requirements of sec-
tion 9(2) of the Constitution are not presumptively unfair. The enquiry therefore is
primarily one in terms of section 9(2) rather than section 9(3) and can be ex-
pressed as follows:18
l Do the measures target people or categories of people who had been dis-
advantaged by unfair discrimination?
l Are the measures designed to protect or advance such people or categories
of people?
l Do the measures promote the achievement of equality?
With regard to the first stage of the test, the Constitutional Court held that the
measures of redress must favour a group designated in section 9(2) of the Con-
stitution. The beneficiaries must ‘be shown to be disadvantaged by unfair dis-
crimination’.19 The court pointed out, however, that it is often
difficult, impractical or undesirable to devise an affirmative action scheme with
‘pure’ differentiation demarcating precisely the targeted classes. Within each class
. . . there may indeed be exceptional or ‘hard cases’ or windfall beneficiaries.
That[, however,] is not sufficient to undermine the legal efficacy of the scheme.
The distinction must be measured against the majority and not the exceptional
and difficult minority of people to which it applies.20
With regard to the second stage of the test – whether a measure is designed to
protect or advance those disadvantaged by unfair discrimination – the court
held that, because the remedial measures ‘are directed at an envisaged future
outcome’, they must be ‘reasonably capable of attaining the desired out-
come’. If they are ‘arbitrary, capricious or display naked preference they could
hardly be said to be designed to achieve the constitutionally authorised end’ of
protecting the disadvantaged. Moreover, if it is clear that such remedies are not
‘reasonably likely’ to achieve the end of advancing the interests of the dis-
advantaged, ‘they would not constitute measures contemplated by section 9(2)’.
The court held that measures which carry a ‘reasonable likelihood’ of meeting
this end are sufficient: precise prediction of a future outcome is not required.21
With regard to the third stage of the test – whether the measure promotes the
achievement of equality – the court held that this determination requires ‘an
appreciation of the effect of the measure in the context of our broader society’.22
The court held that ‘the long-term goal of [South African] society is a non-racial,
non-sexist society in which each person will be recognised and treated as a
human being of equal worth and dignity’. In assessing whether a measure will in
the long term promote equality, this constitutional vision of ‘diversity, and our
________________________

18 At paras 36–37.
19 Para 38. The approach adopted by the majority that disadvantage need be ‘shown’ may
be useful when it is unclear that a particular group has been disadvantaged or when the
causes of such disadvantage are unclear.
20 Para 39.
21 Paras 41–42. Such a test would render the remedial measure stillborn and would defeat
the objective of s 9(2).
22 Para 44. The court cautioned that the achievement of this goal might often come at a
price for those who were previously advantaged.
168 Law@work

equality as citizens within it,’ must be kept in mind. A measure should not, how-
ever, ‘constitute an abuse of power or impose such substantial and undue harm
on those excluded from its benefits’ that the country’s ‘long-term constitutional
goal would be threatened’.
A restitutionary measure that passes this three-stage test cannot be presumed
to be unfairly discriminatory: it is an element of a substantive conception of
equality that includes measures to redress existing inequality and therefore does
not constitute unfair discrimination.23 However, if the measure fails the test (ie, if
it does not fall within the ambit of section 9(2)) and constitutes discrimination on
a prohibited (listed) ground, then it will be necessary to resort to the test estab-
lished in Harksen v Lane NO & others24 to consider the measure in the light of
section 9(3), to determine whether it unfairly discriminates, directly or indirectly,
against the complainant. This approach has been criticised because it excludes
elements of fairness, proportionality or reason in determining the validity and
application of remedial measures.25
It has been suggested that in eliminating existing disadvantage and prevent-
ing the emergence of new patterns of disadvantage, courts have to investigate
every equality claim in its own right, keeping in mind the situation of the com-
plainants in society, their history and vulnerability, the history, nature and pur-
pose of the discriminatory practice and whether the measure under scrutiny
ameliorates or adds to group disadvantage in a ‘real life’ context and in the
light of the constitutional values. Courts must ‘balance’ all these factors in deter-
mining the fairness or otherwise of the discriminatory practice.26 The importance
of context and proportionality as elements of this test is clear. Put differently, the
limitation of a right for a purpose that is reasonable and necessary involves the
weighing up and balancing of competing values in the context of the Consti-
tution ‘as a whole’ and essentially entails an evaluation based on proportion-
ality.27 This approach suggests that, to give proper effect to the EEA, affirmative
________________________

23 Minister of Finance & another v Van Heerden (fn 3) at para 30: ‘Such measures are not in
themselves a deviation from, or invasive of, the right to equality guaranteed by the Con-
stitution. They are not “reverse discrimination” or “positive discrimination” as argued by the
claimant in this case. They are integral to the reach of our equality protection. In other words,
the provisions of section 9(1) and section 9(2) are complementary; both contribute to the
constitutional goal of achieving equality to ensure “full and equal enjoyment of all rights”.
A disjunctive or oppositional reading of the two subsections would frustrate the founda-
tional equality objective of the Constitution and its broader social justice imperatives’.
24 1997 (11) BCLR 1489 (CC) at para 54. The Harksen approach has been adopted under the
EEA but with a slight difference. While the first part of the test is the same for discrimination
cases under the EEA, the second part differs in that only the two justifications found in
s 6(2) of the EEA are relevant. See Rautenbach ‘Riglyne om die Reg op Gelykheid toe te
Pas’ (2012) 9(2) LitNet Akademies 229 for a critique of the Harksen test.
25 See Pretorius ‘Fairness in Transformation: A Critique of the Constitutional Court’s Affirmative
Action Jurisprudence’ (2010) SAJHR 537; Pretorius ‘Accountability, Contextualisation and
the Standard of Judicial Review of Affirmative Action: Solidarity obo Barnard v South Afri-
can Police Services’ (2013) SALJ 3; McGregor ‘Affirmative Action on Trial – Determining the
Legitimacy and Fair Application of Remedial Measures’ (2013) (4) TSAR 650 at 652–653.
26 See Pretorius (2013) SALJ 3 at 35.
27 See S v Makwanyane 1995 (3) SA 391 (CC) at para 104.
Right to equality in employment: employment equity and affirmative action 169

action must be applied rationally, proportionally and fairly which requires the
weighing up of all competing interests (including efficient service, safety and in-
dividual rights).
On this basis, the rationality test is regarded as too restrictive and deferential
for there to be a reasoned debate about relevant decisions behind the imple-
mentation of affirmative action measures. The rationality test does not contain
elements of fairness and proportionality; it merely relies on an ‘intuition-based
classification’.28 Some writers have stated that the rationality test effectively
evades the need to develop a standard of review in accordance with the
requirements of transparency and accountability, requires only ‘a light brush of
reasonableness’, does not provide a framework for looking into the interests of
both advantaged and disadvantaged groups, removes equality claims from
their context, cannot add to the framework for judging equality disputes by
incorporating broader public-interest concerns and cannot balance a claim
when tension exists between different interests and rights.29
An example of an employment equity plan (EEP) (ostensibly compiled in
terms of the EEA) where fairness, rationality and proportionality were not evident
is found in Naidoo v Minister of Safety and Security & another.30 In that case the
EEP had an exclusionary effect on Indian people (only 2,5 per cent per the EEP
target) exacerbated by the fact that only 30 per cent of posts earmarked for
Indian people could go to Indian females. The applicant, an Indian female,
argued that this target created an absolute barrier to her advancement to a
managerial post and was rigidly enforced and would continue to be so applied
for years to come. Rather than present her with an equal opportunity, the EEP
denied her any opportunity. Shaik AJ held that ‘it can be argued that the [EEP]
. . . notwithstanding its modest targets for [women and Indians] . . . is still an
affirmative action measure as envisaged by section 9(2) . . . and the Equity Act,
and for that reason, demand deference, . . . its effects in the context of our
broader society is [sic] disturbing’.31 However, after an investigation of the EEP,
the judge found that the plan created ‘a perverse competition within the des-
ignated [groups] on the basis of their race and gender’; created degrees of
disadvantage and a ranking order that favoured African males; constituted
abuse of power; and ‘imposed substantial and undue harm’ on those excluded

________________________

28 McGregor (fn 25) at 655.

29 See, eg, McGregor (fn 25) at 674–675.
30 (2013) 34 ILJ 2279 (LC). In this case, the EEP disclosed targets based on the 2001 census of
the general population (79 per cent Africans, 9,6 per cent Whites, 8,9 per cent Coloureds
and 2,5 per cent Indians) and not on the national and regional economically active popu-
lation (‘EAP’) as required by the EEA. Moreover, in terms of the EEP, 30 per cent of all posts
had to be allocated to females in their race groups and 70 per cent to males. This was not
in accordance with the EEA or with a Cabinet decision of 2009 that gender representation
should be 50:50. The ‘ideal’ target for Indians was restricted to 2,5 per cent of the whole
group. The target for Indian females was therefore 30 per cent of 2,5 per cent (or 0,75 per
cent of the total workforce, rounded off to zero).
31 Paras 178–179.
170 Law@work

from its benefits. Moreover, the targets presented themselves as quotas and the
EEP discriminated unfairly and unlawfully.32
The EEP itself had a negative effect on employment equity and on the pursuit
of substantive equality in the Police Service and bore no rational connection to
a legitimate purpose of government.33 Since the differentiation did not fall within
section 9(2), it amounted to unfair discrimination that could not be justified
under the constitutional or EEA limitation provisions.
The court held that disadvantage had to be viewed in a ‘situation-sensitive’
way.34 A concrete, contextualised approach was required rather than a formu-
laic, mechanistic one.35 Reading the Constitution as a whole, the court found
that the EEP treated African males as a favoured class within the designated
groups, and that this ‘naked preference’ lacked any sense of proportionality,36
did not take diversity into account and had a punishing effect on Indian
females. The plan had as its focus too narrow a definition of the designated
groups and its flawed design excluded rather than included females. It excluded
Indian females entirely, thus setting them a barrier to employment.37 The appli-
cant was found to have been unfairly discriminated against. The national com-
missioner was ordered to appoint her to the post she had applied for and to
pay her a year’s compensation.38 On appeal in Minister of Safety and Security &
others v Naidoo,39 the Labour Appeal Court found that there was no basis to
find that the targets in terms of the EEP created an ‘absolute barrier’ for Indian
women. The plan required the SAPS to allocate posts based on demographic
goals; the EEP had not in fact prohibited the appointment of Indian women. If
there had been more posts available in KwaZulu-Natal at that particular level,
the selection process might have had a different outcome. The court took note
of the fact that in other provinces Indian females had been appointed because
the EEP required it. It held that the national panel’s conclusion that to appoint
Naidoo would not advance employment equity was neither capricious nor irra-
tional. Nor would service delivery have been enhanced.40 The appeal was upheld.
In Solidarity v Minister of Safety & Security (Police & Prisons Civil Rights Union as
amicus curiae)41 two issues were addressed, namely the manner in which the

________________________

32 See Louw ‘The Employment Equity Act, 1998 (and other myths about the pursuit of “equality”,
“equity” and “dignity” in post-apartheid South Africa)) (Part 1)’ (2015) 18(3) PER/PELJ 594;
Louw ‘The Employment Equity Act, 1998 (and other myths about the pursuit of “equality”,
“equity” and “dignity” in post-apartheid South Africa) (Part 2)’ (2015) 18(3) PER/PELJ 669.
33 Paras 128–227 under the rubric ‘Secondly, is the measure designed to protect or advance
such persons or categories of persons within the designated group?’.
34 Para 223.
35 Paras 59–160, 203.
36 Ibid.
37 Para 209.
38 Paras 215–217, 227 and 232.
39 [2015] 11 BLLR 1129 (LAC).
40 See also Gaibie ’The Constitutional Court Decision in Barnard: A Sequel to the Van Heer-
den Judgment’ (2015) 36 ILJ 80.
41 (2016) 37 ILJ 1012 (LC). See also McGregor ‘Determining the Validity of an Employment
Equity Plan: Guidance from the Labour Court – Solidarity v Minister of Safety & Security
continued on next page
Right to equality in employment: employment equity and affirmative action 171

validity of an EEP in terms of the EEA has to be determined and whether both
the Constitution and the EEA, or only the EEA, should be used for interpreting the
law on affirmative action. It was argued that, generally, a litigant may not by-
pass ordinary laws which give effect to a constitutional right (here equality) and
directly rely on the Constitution without challenging such law as falling short of
the constitutional standard. With regard to the former, it was held that ‘absolute
targets’ based on national demographics only, would not result in a provincial
racial profile which was broadly representative of the racial composition of the
EAP of the SAPS in the province of the Western Cape. Both the national and
regional demographics of the EAP had to be taken into account. Put differently,
the EEP should promote the achievement of equality, and it should not impose
disproportionate burdens, constitute an abuse of power or impose undue harm
on those excluded from its benefits. With regards to the latter, it was found that
the Constitution may be relied on in interpreting provisions of the EEA where the
EEA’s provisions were not sufficient in content.
In South African Police Service v Solidarity obo Barnard (Police and Prisons
Civil Rights Union as amicus curiae),42 the Police Service’s EEP was not chal-
lenged, only its implementation was at issue. Moseneke ACJ (for the majority)
stressed that the Constitution had a ‘transformative mission’ which ‘[e]njoins us
to take active steps to achieve substantial equality, particularly for those who
were disadvantaged by past unfair discrimination . . . whilst our society has
done well to equalise opportunities for social progress, past disadvantage still
abounds’.43 The court held that an employer may refuse to appoint/promote a
White female where the specific level she had applied for, was already over
represented44 (the so-called Barnard principle). Moreover, he stated that meas-
ures that are directed at remedying past discrimination must be formulated with
‘due care not to invade unduly the dignity of all concerned’. He cautioned us
to remain vigilant and ensure that remedial measures do not become an end in
themselves; such measures are not meant to be ‘punitive nor retaliatory’.45
In conclusion, it was held that for a valid EEP to be put to use lawfully:
[38] . . . It may not be harnessed beyond its lawful limits or applied capriciously or
for an ulterior or impermissible purpose.
[39] As a bare minimum, the principle of legality would require that the imple-
mentation of a legitimate restitution measure must be rationally related to
the terms and objects of the measure. It must be applied to advance its

________________________

(Police & Prisons Civil Rights Union as amicus curiae) (2016) 37 ILJ 1012 (LC)’ (2016) 79(4)
THRHR 698.
42 2014 (10) BCLR 1195 (CC). See also Le Roux ‘The Barnard decision – what it means: Differ-
ences in the decisions of the Constitutional Court in key judgments on affirmative action’
(2014) CLL 24(2) 11 and the discussion of this case in ch 6 at para 3.6.2 ‘Affirmative action
measures as a defence to discrimination claims’ above.
43 Para 29.
44 In Solidarity & others and Department of Correctional Services & others (fn 9) the Constitu-
tional Court held that the Barnard principle discussed in para 8.4 below was not limited to
White people; all Black people, as well as women and men, were subject to the principle to
attain broad representation and give effect to the diversity of the South African people.
45 Para 30.
172 Law@work

legitimate purpose and nothing else. Ordinarily, irrational conduct in imple-

menting a lawful project attracts unlawfulness. Therefore, implementation of
corrective measures must be rational . . . [our emphasis]46
In addition, although these are the minimum requirements for affirmative action
measures, Moseneke ACJ stated that it was not necessary to define the stand-
ard ‘finally’.47 This implies that the standard may be revisited in future to include
the elements of fairness, proportionality and reason, as set out above.
In a minority judgment, Van der Westhuizen J, while acknowledging the criti-
cism of the rationality test for failing to incorporate an element of fairness, none-
theless held that the courts would be reluctant to ‘second-guess’ affirmative
action policies that pass the test established by Van Heerden. This is so because
the latter test considered strict scrutiny an ‘inappropriately high standard’ for
reviewing affirmative action measures.48 He cautioned that measures should not
be subjected to an unrealistically high standard of review, which would ‘thwart’
a constitutional objective.49

3 Does affirmative action establish a cause of action based

on the application of an equality right?
Harmse v City of Cape Town50 concerned an exception to a statement of claim
filed by the applicant. In his statement, the applicant challenged a decision by
his employer, the city council, not to shortlist him for any of the three posts for
which he had applied. He alleged that his exclusion from the shortlist constituted
discrimination against him on the grounds of his race, his political beliefs, his lack
of relevant experience or on other arbitrary grounds. In addition, he alleged
that he had been unfairly discriminated against because the council had
failed, in considering his application for shortlisting, to apply certain of the pro-
visions of section 20 of the EEA. (Section 20 deals with the concept of suitable
qualification for a job and an employer’s obligations in determining whether a
person is suitably qualified.)
In relation to the claim for discrimination on the grounds of race, the council
alleged that certain essential averments had not been included in the appli-
cant’s statement of claim. The court decided that the applicant had, in effect,
pleaded that he had not been shortlisted but that two White people had been
shortlisted instead and that he had thus been unfairly discriminated against on
the ground of race. It was not necessary for the applicant to claim that any dis-
crimination against him had been direct or indirect because this was a matter to
be proved at trial. Although the pleadings were perhaps not elegantly drafted,

________________________

46 Paras 38–39.
47 Para 39. See Louw (Part 2) (fn 32).
48 Para 160.
49 Ibid.
50 [2003] 6 BLLR 557 (LC).
Right to equality in employment: employment equity and affirmative action 173

the court found that they were not unintelligible and the necessary allegations
had been sufficiently pleaded for the council to know the case that it was
called upon to meet.
The court noted that in terms of Chapter II of the EEA, and section 6 in particu-
lar, taking affirmative action measures consistent with the purpose of Chapter III
of the Act does not amount to unfair discrimination. Section 6 obliges every
employer to take steps to promote equal opportunity in the workplace by elim-
inating unfair discrimination in any employment policy or practice. The court
observed that one of the ways in which an employer can eliminate unfair dis-
crimination is by taking affirmative action measures consistent with the purposes
of the Act. If regard was had only to section 6, then the conclusion might be
drawn that affirmative action is no more than a defence to a claim of unfair
discrimination. On a reading of the Act, and in particular of the definition of
‘affirmative action’ in section 15, the court held that affirmative action had a
role that went beyond ‘the passivity of its status as a defence’. Affirmative
action includes ‘pro-activeness’ and ‘self-activity’ by employers.
In relation to the concept of suitable qualification, section 20 specifies the
hierarchy of elements that make up the content of the concept and specifically
singles out ‘relevant experience’ for special attention. To the extent that he was
suitably qualified for the post for which he had applied and that the council
had failed to comply with its obligations to review all relevant factors in deter-
mining whether he was in fact suitably qualified, the applicant’s claim could
conceptually be said to be for unfair discrimination. The requirements in section
20 are an integral part of steps to promote equal opportunity by eliminating
unfair discrimination practices.
The Labour Court in Dudley v City of Cape Town51 rejected the approach
adopted in Harmse. It held that on a proper interpretation of the Act the distinc-
tion between Chapters II and III of the EEA should be maintained because a
designated employer’s failure to apply affirmative action measures gives rise to
claims for enforcement under Chapter III but not to claims for unfair discrimin-
ation under Chapter II. In particular, it was found that there was no sound basis
on which section 20 should be read together with the provisions of Chapter II and,
likewise, no basis on which that section can establish a right to affirmative action.
The prohibition in section 20(5) against unfair discrimination solely on the
ground of relevant experience relates only to the determination to be made in
section 20(4) concerning whether a person is ‘suitably qualified’ for the purposes
of appointment under an EEP. Contravention of section 20(5) is a matter for the
enforcement procedures prescribed in Chapter V of the Act.52 It does not give
rise to a claim in terms of Chapter II nor does it bring about an individual right to
affirmative action.53
________________________

51 [2004] 5 BLLR 413 (LC).

52 See ch 6 at para 5 ‘Monitoring and enforcement’ above.
53 In Dudley v City of Cape Town & another (2008) 29 ILJ 2685 (LAC), the reasoning of the
Labour Court was upheld and the appeal dismissed, although the court stated that it had
not decided the question of whether court proceedings could be instituted after the en-
forcement procedures in Ch V of the EEA have been exhausted (at 2708A–B). Similarly, in
Minister of Safety & Security & another v Govender (2011) 32 ILJ 1145 (LC) the Labour
continued on next page
174 Law@work

This approach was upheld in Thekiso v IBM South Africa (Pty) Ltd 54 where the
Labour Court held that an applicant could not rely on Chapter III of the Act to
pursue a complaint that her retrenchment constituted a breach by her em-
ployer of its affirmative action obligations. On this approach, there is no ‘bridge’
between Chapters II and III of the Act – a claim of unfair discrimination under
Chapter II must stand independently of an employer’s obligation to take affirm-
ative action in terms of Chapter III.

4 Implementing Chapter III of the EEA

4.1 Designated employers
The affirmative action provisions of the EEA apply to designated employers. In
terms of section 1, ‘designated employer’ means:
l an employer who employs 50 or more employees;
l an employer who employs fewer than 50 employees but whose annual turn-
over exceeds the relevant amount stipulated in Schedule 4 to the Act;
l a municipality;
l an organ of state other than the South African National Defence Force, the
National Intelligence Agency and the South African Secret Service;55 and
l an employer appointed a designated employer in terms of a collective
agreement in terms of section 23 or 31 of the LRA to the extent provided for
in the agreement.
The affirmative action provisions may apply to an employer who employs fewer
than 50 employees if the business of the employer has a total annual turnover
equal to or greater than the prescribed turnover.56
The EEA provides that an employer that is not a designated employer may
notify the Director-General of the Department of Employment and Labour that
it intends to comply voluntarily with the relevant provisions of the Act as if it were
a designated employer.57 In terms of section 50(2)(d) of the EEA, the Labour
Court may, if it decides that an employer has unfairly discriminated against an
employee, order the employer to comply with the affirmative action provisions
of the Act even if the employer is not a designated employer.

________________________

Court upheld a special plea that the enforcement mechanisms of Ch V of the EEA have
to be exhausted before an employee’s claim for unfair discrimination primarily based on
the failure of the respondent to comply with its EEP can be referred to the court.
54 [2007] 3 BLLR 253 (LC). See also Cupido v GlaxoSmithKline SA (Pty) Ltd (2005) 26 ILJ 868
(LC); PSA obo Karriem v SAPS & another [2007] 4 BLLR 308 (LC); Makibinyane v Nuclear
Energy Corporation of SA & another (2009) 30 ILJ 2731 (LC) where the approach of Dudley
was confirmed.
55 Local spheres of government are no longer excluded as designated employers in terms of
the Amendment Act.
56 See Sch 4 to the EEA.
57 S 14.
Right to equality in employment: employment equity and affirmative action 175

4.2 Beneficiaries of affirmative action measures

4.2.1 Designated groups
Affirmative action measures in terms of the EEA must be adopted in favour of
‘designated groups’,58 being Black people, women59 and people with disabilities,
in order to achieve employment equity. The EEA provides that ‘Black people’
means ‘Africans, Coloureds and Indians’.60
‘People with disabilities’ means ‘people who have a long-term or recurring
physical or mental impairment which substantially limits their prospects of entry
into, or advancement in, employment’.61

________________________

58 A factor complicating the categorising of groups is that, apart from being subjected to a
main ground of discrimination – so-called ‘main-effects’ discrimination – a person might
also suffer ‘multiple’ discrimination. The intensity or severity of the disadvantage a person
may experience depends on the number of and interplay between personal character-
istics that generate discrimination against a person (Report of the Director-General ‘Time
for Equality at Work: Global Report under the Follow-up to the ILO Declaration on Fun-
damental Principles and Rights at Work’, International Labour Conference, 91st Session,
Report I(B) (2003) at 36–37). In this regard, it has been argued that (a) there is a need to
understand that complex forms of disadvantage based on race, gender and geographic
location form ‘distinct categories’ of disadvantage that cannot be reduced to the sum of
their parts; and (b) the intersectional nature of disadvantage creates different and mul-
tiple forms of inequality which cannot be explained or understood simply with reference
to one ground of discrimination such as gender (Albertyn and Goldblatt ‘Facing the Chal-
lenge of Transformation: Difficulties in the Development of an Indigenous Jurisprudence of
Equality’ (1998) SAJHR 14 at 248). A bill on Women Empowerment and Gender Equality
(B50-2013, GN 701, GG 35637, dated 29 August 2012) focussing on economic empowerment,
protection, advancement, gender mainstreaming and equal representation of women in
some decision-making structures, has been published but withdrawn. The purpose of the
bill was to fight poverty, inequality and unemployment experienced by women in organs
of state, national, provincial and local spheres of government, national and provincial
government enterprises, and companies, non-profit organisations, public and semi-public
entities, and private bodies. Women fell behind again.
59 For a number of years it was claimed that White women had benefited disproportionately
from affirmative action measures (see, eg, Annual Report of the Commission for Employ-
ment Equity 2009–2010). It appears logical that White women would have generally bene-
fited from affirmative action because of their fairly high educational qualifications com-
pared to those of Black women who, for historical reasons, have not been in a position to
obtain qualifications or qualifications of quality. Moreover, in practice, it has been found
that affirmative action aimed at women often benefits White middle-class women more
than it does lower-class women from other ethnic backgrounds (UNESC ‘Prevention of Dis-
crimination: The Concept and Practice of Affirmative Action’ Final Report (2002) at para 11).
It is noteworthy that during the debate preceding the EEA it was argued that Black women
generally, and African women in particular, were the most disadvantaged members of
South African society and that specific attention must be paid to their position. While the
EEA did not heed this argument, it was hoped that the Broad-Based Black Economic Em-
powerment Act 53 of 2003 would assist these women. However, organisations that receive
good BBBEE rating scores continue to perform poorly on employment equity under their
B-BBEE codes.
60 See the definitions of ‘designated groups’ and ‘Black people’ in s 1.
61 Ibid.
176 Law@work

After many years of lobbying, Chinese people who are South African citizens
have been declared as falling within the ambit of the definition of ‘Black
people’ in section 1 of the EEA.62 They are thus also entitled to the benefits of
affirmative action. However, no mention is made of Chinese people in the
Amendment Act, Draft Regulations or Regulations.63
Employees complete Form EEA164 to determine themselves the group they
belong to; this determination is thus a voluntary action. If an employee refuses
to complete the form or provides inaccurate information, the employer may use
reliable historical and existing data to determine the status of the employee.
Information contained in Form EEA1 is confidential. Employees must at any time
be able to add information to the form.

4.2.2 Citizenship
While the EEA is silent on the citizenship of members of the designated groups as
a requirement for benefiting from affirmative action, the recent amendments to
the Act make it clear that the following people are designated groups:
Black people, women and people with disabilities who –
(a) are citizens of the Republic of South Africa by birth or descent; or
(b) became citizens of the Republic of South Africa by naturalisation –
(i) before 27 April 1994 [the beginning of the democratic era]; or
(ii) after 26 April 1994 and who would have been entitled to acquire citizenship
by naturalisation prior to that date but who were precluded by apartheid
policies . . .65

4.2.3 Group membership

After a longstanding debate on whether the EEA requires past personal dis-
advantage before a person can benefit under affirmative action measures or
whether membership of a designated group would suffice, the issue was put to
rest by the Constitutional Court in a minority judgment in Minister of Finance &
another v Van Heerden.66 Mokgoro J held that as apartheid had categorised
people, and attached consequences to those categories with no regard to the
circumstances of individuals, and meted out advantages and disadvantages
according to a person’s membership of a group, section 9(2) of the Constitution
now allows for affirmative action measures which target ‘whole’ categories of
________________________

62 See Chinese Association of South Africa & others v Minister of Labour & others case 59251/
2007 TPD, dated 18 June 2007.
63 GNR 124, GG 37338, dated 28 February 2014.
64 Form EEA1 of the Regulations (fn 1).
65 People who are foreign nationals or who become citizens after April 1994 will not count
towards affirmative action targets even though they are reported on. This is consistent
with the B-BBEEA.
66 Fn 3. For a discussion of the development of this issue from the first case that dealt with
affirmative action, George v Liberty Life Association of Africa Ltd (1996) 17 ILJ 571 (IC),
which supported past personal disadvantage as a requirement for benefiting from affirm-
ative action, to Stoman v Minister of Safety & Security & others (2002) 23 ILJ 1020 (LC), which
supported a group-based approach, see McGregor ‘The Concept of “Disadvantage” in
Affirmative Action’ (2002) 14(4) SA Merc LJ 808.
Right to equality in employment: employment equity and affirmative action 177

people for advancement on the basis of membership of a group. Thus, in order

for someone to benefit from a measure enacted in terms of section 9(2), it suf-
fices for him or her to be a member of a group ‘previously targeted by the apart-
heid state for unfair discrimination’.67

4.2.4 Degrees of disadvantage

The EEA does not recognise degrees of disadvantage (in other words, it does
not recognise that all the designated groups and their subgroups were not
equally disadvantaged by apartheid and patriarchy); therefore, no hierarchy of
designated groups exists. Instead, the Act advocates ‘equitable representation’
in occupational levels in the workforce of a designated employer to determine
the appointment (or promotion) of members of different designated groups
through affirmative action. The Act does, however, provide that a code of
good practice may provide guidelines for the prioritisation of designated
groups.68
The notion of degrees of disadvantage was established in case law when the
High Court held that Indian and Coloured people were ‘less’ disadvantaged
than Blacks under apartheid in the context of education.69 A few years later
and in the context of employment, the Labour Court accepted that African
people had been ‘very severely’ discriminated against under apartheid, more
severely than had other non-White groups, but held that in practice it was
impossible to make distinctions between people in a particular designated
group.70
The notion of degrees of disadvantage has since been emphasised with more
vigour. In Fourie v Provincial Commissioner of the SA Police Service (North West
Province) & another,71 for example, the court focussed on the difference in dis-
advantage between Black people and White women. In this instance the appli-
cant (a White female) complained that she had been unfairly discriminated
against by being refused a promotional post for which she had applied. While
the court accepted that White women had been discriminated against under
apartheid, it held that they had not been as disadvantaged as Black people,
particularly African people, who bore the brunt of apartheid (White women had
access to, for example, better educational and other facilities). It is noteworthy
that the applicant conceded that while she was a member of the designated
group ‘women’ she should not be treated on the same level as her African
counterparts. The court stressed that the issue of degrees of disadvantage
could not be decided in a ‘vacuum’; cognisance had to be taken of South

________________________

67 Para 85.
68 See the footnote to s 54(1)(a) of the EEA.
69 See Motala & another v University of Natal 1995 (3) BCLR 374 (G) at 383C–D.
70 Stoman v Minister of Safety & Security & others (fn 66) at 1035F–H. The court accepted that
the detailed circumstances of individual members of any group may differ in that some
individuals might have had access to good educational and other facilities while others
might have been subjected to the worst possible discriminatory practices during a parti-
cular era.
71 (2004) 25 ILJ 1716 (LC).
178 Law@work

African history, the imbalances of the past, the fact that the apartheid system
was designed to protect White people, that Black and African employees
suffered the brunt of discrimination and of the purpose and objectives of the
EEA.72 Although the applicant was suitably qualified for the job, the fact that she
was not promoted was found to be rational, justifiable and fair in the circum-
stances in that there were no Black officers at the police station in question and
the target for White women had already been exceeded.
In Solidarity obo Christiaans v Eskom Holdings Ltd 73 the arbitrator accepted
the hierarchy of designated groups adopted by the respondent. While Christiaans
(a Coloured male) scored the highest points at the interview for a promotional
post and his appointment was recommended, senior management decided to
appoint an African male candidate who complied with the minimum require-
ments for the post. The arbitrator found on the evidence that the level of under-
representation of Africans was ‘markedly higher’ than that of Coloureds. The
appointment of an African male was accepted because his appointment
advanced employment equity. Consequently, it was found that there was no
unfair discrimination.
A contextualised approach to degrees of disadvantage seems apposite in
the workplace. In terms of this approach, the nature of the position, the demo-
graphic profile of the department or section of the workplace concerned, and
the qualifications and work experience of the candidates should all be relevant
in deciding whom to appoint or promote.74 An assessment of the relative im-
portance of different individual or collective profiles of disadvantage in a par-
ticular employment context is thus required. In a particular workforce, some
groups may prove to have been more disadvantaged than others or to be
under-represented, and special preference that is given to them may be justi-
fied on this basis (but not on any arbitrary ranking of the groups).75

4.2.5 The notion ‘suitably qualified’

Only suitably qualified people from designated groups may benefit from affirm-
ative action. A member of a designated group may be ‘suitably qualified’ for a
job as a result of his or her76
l formal qualifications;
l prior learning;
l relevant experience; or
l capacity to acquire, within a reasonable time, the ability to do the job.
________________________

72 At 1736A–B.
73 (2006) 27 ILJ 1291 (ARB). See also Henn v SA Technical (Pty) Ltd (2006) 27 ILJ 2617 (LC).
74 See Pretorius ‘Legal Evaluation of Affirmative Action in South Africa’ (2001) 26(3) JJS 12;
Rycroft ‘Obstacles to Employment Equity? The Role of Judges and Arbitrators in the In-
terpretation and Implementation of Affirmative Action Policies’ (fn 13); McGregor ‘The
Concept of “Disadvantage” in Affirmative Action’ (fn 66).
75 Ibid. For an example where the EEP was designed to address the under-representation of
specifically Africans in the police force in KwaZulu-Natal, see Munsamy v Minister of Safety
& Security & another (2013) 34 ILJ 2900 (LC) and SA Police Service v Public Service Associ-
ation of SA & others (2015) 36 ILJ 1828 (LAC).
76 S 20(3).
Right to equality in employment: employment equity and affirmative action 179

4.2.6 People employed by a temporary employment service

People whose services have been procured for a client (employer) by a tem-
porary employment service (‘TES’) are deemed to be employees of that client.
Such employees who are employed for longer than six months will be deemed
to be employees of the client for the purposes of affirmative action.77

5 Duties of designated employers

5.1 General
A designated employer is required to:
l consult with its employees;78
l conduct an analysis of its employment policies, practices, procedures and
of the working environment in order to identify employment barriers which
adversely affect people from designated groups;79
l prepare an EEP;80 and
l report to the Director-General on progress made in implementing its EEP.81
Furthermore, each designated employer is required to assign one or more senior
managers to take responsibility for monitoring and implementing its EEP.82 The
importance of the role of managers is highlighted by the Department which
requires in the EEA Regulations that these managers must be permanent em-
ployees and report directly to the chief executive officer on employment equity
matters. The employer is required to provide the managers with the authority
and the means to perform their functions and to take reasonable steps to ensure
that the managers perform their functions.83 However, assigning responsibility to
a manager does not relieve the employer of any duty imposed by the Act.84

5.2 Consultation with employees 85

A designated employer must take reasonable steps to consult and reach agree-
ment with a representative union or, in the absence of such a union, with its em-
ployees or their nominated representatives on the following matters:
l the conduct of the analysis;86
l the preparation and implementation of an EEP;87 and
l the employer’s report to the Director-General.88
________________________

77 S 57.
78 S 16.
79 S 19(1) read with Form EEA8.
80 S 20.
81 S 21.
82 S 24.
83 S 24(1). These include an appropriate budget and access to other required sources.
84 S 24(2).
85 Ss 16 and 17.
86 S 19.
87 S 20.
88 S 21.
180 Law@work

Section 16(2) of the EEA provides that employees or their nominated represen-
tatives with whom the employer consults must reflect the interests of employees
‘from across all occupational levels of the employer’s workforce’, of employees
from designated groups, and of employees who are not from designated
groups.
The Act does not affect the right of a workplace forum established in terms of
the LRA to be consulted by the employer and to conclude an agreement con-
cerning affirmative action.

5.3 Disclosure of information

To enable trade unions and employees to enforce rights in terms of the EEA, the
Act provides that the employer must disclose to the consulting parties ‘all rele-
vant information that will allow those parties to consult effectively’.89 In the
event of a dispute concerning the disclosure of information, section 16 of the
LRA must be applied. The LRA generally requires disclosure of all relevant inform-
ation that will allow a party to engage meaningfully in the process in question.
Disclosure is subject to specific protections that relate to legal privilege, con-
fidentiality and considerations of personal privacy.90

5.4 Analysis 91
Every designated employer is required to collect information and conduct an
analysis of its employment policies, practices, procedures and working environ-
ment in order to identify employment barriers that adversely affect people from
designated groups. The analysis must include a profile of the employer’s work-
force at each occupational level in order to determine the degree of under-
representation of people from designated groups at each level.92 Section 19
must be read with section 15 which requires employers to ensure that suitably
qualified people from designated groups have equal employment opportuni-
ties and are equitably represented at all occupational levels in their work-
force.93

5.5 Employment equity plan94

Once the employer has conducted the analysis, the employer must prepare
and implement an employment equity plan (‘EEP’) ‘which will achieve reason-
able progress towards employment equity in that employer’s workforce’.95
Section 20(2) sets out details which the EEP must contain. These include the fol-
lowing:
l the objectives to be achieved for each year of the plan;
________________________

89 S 18(1).
90 S 16 of the LRA.
91 S 19(1) of the EEA, read with Form EEA12.
92 See Forms EEA2 and EEA9.
93 See also s 15(2).
94 S 20 read with Form EEA13 which provides a template in this regard.
95 S 20(1).
Right to equality in employment: employment equity and affirmative action 181

l the specific affirmative action measures to be implemented as required by

section 15(2);
l where it has been identified that people from designated groups (Black
people, women and people with disabilities) are under-represented,96
numerical goals must be stated to achieve the equitable representation of
suitably qualified people from those groups within each occupational cat-
egory and level in the workforce, together with the timetable within which
these goals are to be achieved and the strategies by means of which they
are to be achieved;
l the timetable for each year of the plan for the achievement of goals and
objectives other than numerical goals;
l the duration of the plan, which may not be shorter than one year or longer
than five years;
l the procedures that will be used to monitor and evaluate the implemen-
tation of the plan and whether reasonable progress is being made towards
employment equity;
l the internal procedures for resolving any dispute about the interpretation or
implementation of the plan;
l the persons in the workforce, including senior managers, responsible for
monitoring and implementing the plan; and
l any other matters which may be prescribed by regulation.
The courts have given contrasting decisions on whether a formal plan is a pre-
requisite for appointing or promoting candidates under affirmative action. In
MWU v Eskom,97 Eskom’s lack of detailed and individualised plans for each of its
operating systems was found not to be in line with an affirmative action policy in
terms of the then item 2(2)(b) of Schedule 7 to the LRA. In NEHAWU obo Thomas
v Department of Justice98 the appointment of an Indian male before the Direct-
orate’s equity plan had been finalised was found not to be haphazard or ad
hoc as the Directorate had relied on departmental policy and the public-
service staff code. In Gordon v Department of Health, KwaZulu-Natal 99 where
an affirmative action appointment was simply linked to the broad constitutional
imperative of promoting equality and transforming the public service, but with
no specific departmental plan, it was held permissible but set aside in Gordon v
Department of Health: KwaZulu-Natal.100
________________________

96 In Monyakeni and SA Police Service & others (2008) 29 ILJ 3111 (BCA) it was found that
the respondent acted in bad faith and committed an unfair labour practice when it
failed to promote an African male who had been recommended as the best candidate
by the evaluation panel but instead appointed Coloured and White women from cat-
egories that were already over-represented. The employer did not comply with its own
EEP or with the SAPS’s national instruction. In terms of the plan, priority was to be given to
African males because they were under-represented.
97 [1999] 9 BLLR 1089 (IMSSA).
98 (2001) 22 ILJ 306 (BCA).
99 [2004] 7 BLLR 708 (LC).
100 (2008) 29 ILJ 2535 (SCA).
182 Law@work

The Supreme Court of Appeal stated that properly formulated programmes

‘go a long way’ towards satisfying the rationality requirement that plans be
connected to the constitutional imperative of promoting or achieving equality.
In the absence of a policy or an overarching plan, an affirmative action ap-
pointment was an ad hoc and arbitrary act and neither a ‘measure’ in itself to
achieve equality (within the meaning of section 8(3)(a) of the interim Constitu-
tion or section 9(2) of the Constitution) nor a ‘practice’ within the meaning of
the then item 2(2)(b) of Schedule 7 to the LRA. In Willemse v Patelia NO & others101
the court held that while the absence of an EEP made it difficult to determine
whether refusal to promote the applicant was rational and fair, the absence of
such a plan did not in itself preclude the employer from taking affirmative
action measures. In this instance, however, evidence showed that the employer
was operating within a broad determinable framework of policy statements
and targets, which made it possible for the court to assess whether the conduct
of the employer was fair. Recently the ‘staffing policy’ of the Tshwane Munici-
pality102 was found not to comply with the EEA’s requirements for affirmative
action measures as it did not comply with the Van Heerden test or any of the
requirements set by the EEA (see paragraph 2.2 ‘A test for affirmative action’
above).
Notwithstanding these contradictory decisions by the courts, an employer is
not exempt from compliance with its duties to prepare an EEP as set out in sec-
tion 20.
The Director-General may apply to the Labour Court to impose a fine if a des-
ignated employer fails to prepare or implement an EEP. A fine may be levied in
accordance with Schedule 1 which sets out the maximum fines applicable in
various instances.103

5.6 Report to the Director-General 104

Designated employers must report to the Director-General annually, in writing or
electronically, on progress made in implementing their EEP.105 Reports are
limited to levels of employees and thus do not cover both levels and categories.
Every designated employer must submit its first report to the Director-General
within 12 months after the commencement of the EEA or within 12 months after
________________________

101 [2007] 2 BLLR 164 (LC).

102 Solidarity obo Pretorius v City of Tshwane Metropolitan & another (2016) 37 ILJ 2144 (LC).
103 S 20(7). See Solidarity obo Labuschagne v Commissioner of the SA Revenue Service
(JS732/2011 dated 14 May 2015) where it was held that a designated employer may ex-
tend its existing EEP and use it as a guideline until such time when a new plan is adopted.
104 Ss 13(2)(d) and 21 read with Form EEA2. See also Form EEA9 which indicates the occu-
pational levels within different organisations, which levels were developed by using different
job-grading systems. Organisations without such grading systems should use the ones in
the form.
105 The forms provided by the Regulations provide templates for the sensible gathering of all
information. The minister may also make regulations for simplified and separate forms and
procedures in respect of ss 19 (consultation), 20 (EEP), 21 (reporting), 22 (publication of
report), 25 (duty to inform) and 26 (duty to keep records) for employers who have fewer
than 150 employees (s 55).
Right to equality in employment: employment equity and affirmative action 183

the date on which that employer became a designated employer. Thereafter

the report must be furnished annually on the first working day of October. The
report must be signed by the chief executive officer of the employer and is a
public document.106
A designated employer who cannot submit a report in time must give the
Director-General written reasons for its inability to do so.107 To promote com-
pliance, the Labour Court may on application by the Director-General impose a
fine on a designated employer who does not submit a report, gives no reasons
for not submitting the report, or gives false or invalid reasons for not submitting
it.108
Designated employers in an organ of state must publish their equity reports in
their annual financial reports109 to be tabled in Parliament by the responsible
minister.110 Any employee may request such an employment equity report from
the Department.111

5.7 Other duties

Every designated employer must display a notice at its workplace informing em-
ployees of the provisions of the EEA.112 It must also ‘place in prominent places
that are accessible to all employees’ its most recent report to the Director-
General,113 make a copy of its EEP available to its employees,114 and establish
and keep records in respect of its workforce and EEP.115

6 Income differentials116
Section 27 of the EEA requires every designated employer furnishing its report in
terms of section 21(1) to submit a statement to the Employment Conditions
Commission117 (‘ECC’) on the remuneration and benefits received at each
occupational level of that employer’s workforce.118 When the statement reflects
disproportionate income differentials or unfair discrimination in terms and con-
ditions of employment,119 the designated employer must take measures to
reduce such differentials progressively, subject to ‘such guidance as may be
________________________

106 S 21(6) read with Form EEA11.

107 S 21(4A) read with Form EEA14.
108 S 21(4B).
109 S 22(1).
110 S 22(2).
111 S 21(6) read with Form EEA3.
112 S 25(1).
113 S 25(2)(a).
114 S 25(3).
115 S 26.
116 Read with Form EEA4.
117 Established in terms of s 59 of the BCEA.
118 See Form EEA4. See also Form EEA9 which indicates the occupational levels within differ-
ent organisations. In due course, the National Minimum Wage Commission will replace
the ECC.
119 See s 6(4) of the EEA.
184 Law@work

given by the Minister [of Labour] as contemplated in [section 27(4)]’. Subsection (4)
requires the ECC to ‘research and investigate norms and benchmarks for pro-
portionate income differentials and advise the Minister on appropriate meas-
ures for reducing disproportional differentials’.
Section 27(1) of the EEA requires designated employers to submit statements
on the benefits of employees at each occupational level of the workforce. In
terms of section 27(2), designated employers must also take measures to reduce
the disproportionate income differentials or unfair discrimination in terms and
conditions of employment contemplated in section 6(4).
Failure to comply with these obligations may lead to a fine or to refusal or can-
cellation of state contracts on tender.120

7 Commission for Employment Equity

The EEA establishes a Commission for Employment Equity121 (‘CEE’) composed
of nine people: the chairperson, and two representatives for each of organised
labour, organised business, the state, and organisations of community and de-
velopment interests in the Development Chamber in NEDLAC.
The functions of the CEE are, as set out in section 30(1), to advise the minister
on the following:
(a) codes of good practice issued by the Minister in terms of section 54;
(b) regulations made by the Minister in terms of section 55; and
(c) policy and other matters concerning [the] Act.
In terms of section 30(2), the CEE may also:
(a) make awards recognising achievements of employers in furthering the pur-
pose of [the] Act;
(b) research and report to the Minister on any matter relating to the application of
the Act, including appropriate and well-researched norms and benchmarks
for the setting of numerical goals in various sectors; and
(c) perform any other prescribed function.
The CEE reports annually on the progress made towards the equitable represen-
tation of designated groups as reported by designated employers.

8 Monitoring and enforcement

The EEA provides for monitoring by employees and trade unions by empowering
employees and trade union representatives to bring alleged contraventions of
the Act to the attention of another employee, the employer, a trade union, a
workplace forum, a labour inspector, the Director-General or the CEE.122

________________________

120 Ss 50(1)(g) and 53(3) of the EEA.

121 Ss 28 and 29.
122 S 34.
Right to equality in employment: employment equity and affirmative action 185

The Act contemplates the following formal enforcement mechanisms:

l action by the Department of Employment and Labour in the form of inspec-
tions by labour inspectors123 and reviews by the Director-General;124 and
l legal proceedings – in other words, referral to the Labour Court of an em-
ployer’s non-compliance with a request or recommendation by the Director-
General.125

8.1 Inspections
In order to monitor and enforce compliance with the Act, labour inspectors have
the power to enter, question and inspect.126 In terms of section 36, an inspector
‘may request and obtain a written undertaking127 from a designated employer
to comply with’ the provisions of the Act if there are reasonable grounds to be-
lieve that, amongst other things, the employer has failed to:128
l consult with its employees (section 16);
l prepare and implement its EEP (section 19);
l publish its annual report (section 22);
l assign responsibility to one or more senior managers (section 24); or
l keep records (section 26).
If the designated employer fails to comply with the undertaking within the spe-
cified period, the Labour Court may, on application by the Director-General,
make the undertaking, or any part of it, an order of the Labour Court.129 To pre-
vent delaying tactics, appeals and objections are no longer allowed. The path
to the Labour Court has thus been shortened.
Labour inspectors may issue a compliance order to designated employers
who fail to comply with section 16 (consultation), section 17 (matters for consult-
ation), section 19 (analysis), section 22 (publication of report), section 24 (as-
signment of a manager), section 25 (duty to inform) or section 26 (duty to keep
records) of the EEA.130 If the employer does not comply within the period stated,
the Director-General may apply to the Labour Court to make the compliance
order an order of that court.131
Depending on the section contravened and on previous contraventions, the
court will determine a fine in terms of Schedule 1 for failure to comply with a
compliance order.
________________________

123 See para 8.1 ‘Inspections’.

124 See para 8.2 ‘Review by the Director-General’.
125 See para 8.3 ‘Application by the Director-General to the Labour Court for an order dir-
ecting the employer to comply’.
126 S 35.
127 In the format of Form EEA5 or in a format that includes the information required by that
form.
128 S 36.
129 S 36(2).
130 S 37(1).
131 S 37(6).
186 Law@work

8.2 Review by the Director-General 132

The Director-General may conduct a review to determine whether an employer
is complying with the EEA. In the course of the review, the Director-General may
request the employer to submit a copy of its current analysis or EEP and any
book, record, correspondence, document or information that could reasonably
be relevant to the review. The employer may be requested to attend a meeting
with the Director-General to discuss its EEP, and the implementation thereof,
and any other relevant matter.
The Director-General is also empowered to meet with any employee or trade
union consulted in terms of section 16 of the Act or with any workplace forum or
other person who may have information relevant to the review.
After conducting the review, the Director-General may approve the desig-
nated employer’s EEP or make a recommendation to the employer. The recom-
mendation may state the steps the employer must take in connection with its
EEP, or the implementation of that plan, or with any other relevant matter.133

8.3 Application by the Director-General to the Labour Court for an

order directing the employer to comply
If a designated employer fails to comply with a request from the Director-
General for a copy of the employer’s analysis or EEP or for other documentation
for the purposes of a review in terms of section 43 or fails to attend the meeting
as requested, the Director-General may apply directly to the Labour Court for
an order directing the employer to comply with the request or, should the em-
ployer fail to justify its failure to comply, for the imposition of a fine in terms of
Schedule 1.134
If the employer notifies the Director-General in writing within the specified
period that it does not accept the request or recommendation, the Director-
General may institute proceedings within certain time limits. Should proceedings
not be instituted, the request or recommendation will lapse.
Any challenge to the validity of a request or recommendation made by the
Director-General may be made only by application to the Labour Court. In

________________________

132 S 43 read with Form EEA7.

133 S 44.
134 S 45. In Director-General of the Department of Labour v Jinghua Garments (Pty) Ltd [2007]
JOL 19127 (LC), a compliance order issued by a labour inspector was made an order of
court. A fine of R200 000 (half of which was suspended for a period of three years) was
imposed. An appropriate amount for the fine was decided on only once the court had
decided that the basis for the fine should be non-compliance with the order (and not
contravention of the individual sections of the EEA, which would have yielded completely
different results). The fine was in the upper range of the maximum fine allowed and was
intended to have a punitive and preventative effect to deter the respondent and other
would-be offenders. In Director-General, Department of Labour v Win-Cool Industrial Enter-
prise (Pty) Ltd [2007] 9 BLLR 845 (LC), the court held that even if an employer’s staff is en-
tirely composed of members of the designated groups the employer is not exempt from
complying with the provisions of the EEA.
Right to equality in employment: employment equity and affirmative action 187

Director-General: Department of Labour & another v Comair Ltd 135 the Labour
Court held that the Director-General’s decision is subject to review. It found
that, since the powers exercised by the Director-General in terms of sections 43,
44 and 45 are public powers, the Director-General must apply her or his mind
and make a proper attempt to consider all the factors listed in section 42 in
determining compliance with the EEA. The factors listed in section 42 are not
merely an assessment tool. The Director-General is duty-bound to take every
one of them into account before deciding whether to recommend that a
defaulting employer be brought before the court.

8.4 Assessment of compliance136

Whenever the Director-General or any person or body (including the Labour
Court) applies the Act to determine whether a designated employer is imple-
menting employment equity in compliance with it, certain simplified factors
must be taken into account apart from the affirmative action measures (as de-
fined in section 15) that are in place in the employer’s workplace.
In terms of section 42(1) the Director-General may137 consider the following
factors when assessing compliance with the Act:
(a) the extent to which suitably qualified people from and amongst the different
designated groups are equitably represented within each occupational level
in [the employer’s] workforce in relation to the demographic profile of the
national and regional economically active population;138
(b) reasonable steps taken by a designated employer to train suitably qualified
people from the designated groups;
(c) reasonable steps taken by a designated employer to implement its employ-
ment equity plan;
(d) the extent to which the designated employer has made progress in elimin-
ating employment barriers that adversely affect people from designated
groups;
(dA) reasonable steps taken . . . to appoint and promote suitably qualified
people from the designated groups; and
(e) any other prescribed factor.
________________________

135 (2009) 30 ILJ 2711 (LC).

136 S 42.
137 In contrast to the previous wording ‘must’, which signalled an obligation to do so.
138 However, reg 3 of the Draft Regulations (fn 1), dealing with designated employers setting
targets, controversially suggested that in EEPs for designated employers with 150 or more
employees the national EAP be used as a guide for setting goals and targets for the
upper three levels and an average of the national and regional EAPs be used for the
lower levels. Designated employers with fewer than 150 employees should use the
national EAP for the upper two levels and the regional EAP for the lower levels as a guide
in setting targets in their EEPs. The notion of ‘regional’ was not defined. This controversial
suggestion would have had the effect of favouring Africans over Coloureds and Indians
in top positions, skewing representation in provinces with large region-based minorities (ie,
Coloureds in the Western Cape and Northern Cape and Indians in KwaZulu-Natal). These
were contentious issues because Coloureds and Indians feared that they would have
been excluded from top positions. The suggested regulation received severe criticism
and was omitted in the subsequent version of the Regulations.
188 Law@work

In only the third case on affirmative action to reach the Constitutional Court so
far, Solidarity & others and Department of Correctional Services & others139
(Solidarity CC), the Constitutional Court had decided that both regional and
national demographics in terms of section 42(a) had to be used in drafting an
EEP under the unamended EEA. Section 42(a) then read as follows:
In determining whether a designated employer is implementing employment
equity in compliance with the Act, the Director-General, or any person or body
applying this Act must, in addition to the factors stated in section 15 take into
account all of the following:
(a) The extent to which suitably qualified people from and amongst the different
designated groups are equitably represented within each occupational level
in the employer’s workforce in relation to the –
(i) demographic profile of the national and regional economically active
population; . . .
The court held that the national EEP of the Department of Correctional Services
did not comply with the obligatory requirements of section 42(a) as it only took
the national demographics of the EAP into account. Moreover, while the EEP
contained a deviation clause it was not used. The Constitutional Court held that
this constituted unfair discrimination.
In the Western Cape (WC), Coloured people constituted a majority by far but
the Coloured and female applicants had not been appointed or promoted due
to the fact that there was over-representation at the specific levels for which
they had applied. Accordingly, the Constitutional Court set aside the Depart-
ment’s refusal to appoint them and provided them with individual effective
remedies (which neither the Labour Court nor the Labour Appeal Court has
done). It distinguished between those applicants who had applied for posts that
remained unfilled and those where the posts had, in fact, been filled. Appli-
cants in the first category had to be appointed to those vacant posts with retro-
spective effect including retrospective remuneration and benefits. Applicants
in the second category had to be placed on the particular post levels they
applied for and were awarded the difference between what they would have
been paid and benefits, as if they had been appointed to such posts.140
The court also decided three other issues: First, whether the Barnard principle
(that is, whether an employer may refuse to appoint or promote a White female
where the specific level she has applied for was already over represented with
White females) could be applied to sub-groups of Black people. Zondo J (for
the majority) held that the Barnard principle was not limited to White people; all
Black people and both women and men were subject to the principle. The prin-
ciple applies because in transforming the workforce it should become ‘broadly

________________________

139 Fn 9. Ten employees (nine of whom were Coloured and one who was White) had been
denied promotion or appointment in the Department of Correctional Services (DCS) in
the WC in 2010. The DCS had a 2010–2014 EEP in place which used national demo-
graphics only to set targets for affirmative action. No provisions were made for different
targets in the various provinces.
140 Paras 86–87, 90–91.
Right to equality in employment: employment equity and affirmative action 189

representative’ of the diversity of the South African people. This could not be
achieved within an ‘exclusively segmented’ workforce, for example:
a workforce that consists of only White and Indian managers and, thus, excludes
Coloured . . . and African people or a senior management that consists of African
. . . and Coloured people only and excludes White . . . and Indian people or a
senior management that has men only and excludes women
could not be said to have achieved broad representation.141
If the workforce has to include all racial groups and both genders, it should
also be asked whether there was a specific level of representation for each
group or whether it was sufficient if each group only had to have a presence at
all levels ‘no matter how insignificant their presence may be’. Zondo J held that
the level of representation of each group has to ‘broadly accord’ with its level
of representation amongst South African people.142 The EEA was read together
with the relevant provisions of the Constitution (section 195(1)(i)), which deals
with, inter alia, the public administration, the Public Service Act143 (PSA) (section
11(2)(b)) and the Correctional Service Act 111 of 1998 (CSA) (section 96(3)(c)), all
which use the notion ‘broadly representative’ but without defining same.
Secondly, the notion of ‘relative disadvantage’ amongst designated groups
and its sub-groups are not found in the EEA. This was incorporated into work-
place case law after Motala & another v University of Natal144 used this notion
which accepted that African people (compared to Indian and Coloured
people) suffered the worst under apartheid145 (see also paragraph 4.2.4 ‘De-
grees of disadvantage’ above). The Constitutional Court emphasised South
Africa’s huge diversity and stressed the fact that the EEA sought to achieve the
constitutional objective of every workplace to be ‘broadly representative’ of
the people of South Africa and all sub-groups that fell under ‘Black people’
must be equitably represented at all occupational levels. It would not be suf-
ficient to have one or two groups only and to exclude other group(s) on the
basis that the high presence of one or two groups made up for the absence or
insignificant presence of other groups. However, this may be done where a
‘proper basis’ has been laid for over- or adequate representation.
Third, regarding the difference between numerical targets and quotas, the
Constitutional Court held that the primary distinction between quotas and
numerical targets lies in the flexibility of the standards.146 (Over and above this,
________________________

141 Para 40.

142 Paras 40–41. Zondo J used an example where a designated employer who has a work-
force of 500 people of whom 50 held senior management positions, but only five of those
senior positions were held by African people, 20 were held by White people, 15 by Col-
oured people and 10 by Indian people, would not be able to argue that such a work-
force could ‘conceivably’ be broadly representative of the South African people.
143 Act 103 of 1994.
144 Fn 69.
145 Fn 69, paras 47–49 of Solidarity CC, para 11 of Motala.
146 Despite further arguments on quotas, the majority found that once it was accepted that
the EEP contained deviation provisions, then, in their view, the targets, viewed in a holistic
way, could not be said to be rigid. This was the first difference between the majority and
the minority. The latter held the targets to constitute quotas.
190 Law@work

Solidarity argued that the targets in the EEP based on the mid-year population
estimates of 2005 were rigid quotas and were also applied strictly. The minority
pointed out that with regards to the statistics which the DCS allegedly used
there were problems as it, inter alia, did not reflect the composition of the eco-
nomic active population (EAP) but that of the population as a whole.)
It seemed that it was only a matter of time before the Department of Correc-
tional Service’s EEP using only the 2005 mid-year national population estimates,
would have been found not to comply with the EEA. The Constitutional Court
made it crystal clear that both national and regional demographics had to be
taken into account when drafting an EEP. This is so as section 42(a) did not
specify whether preference should be given to either of these notions, if at all.
When drafting and implementing an EEP, attention should be given to the
factual demographics of each province and, of course, in the instance of the
public service, to rationality.147 In certain contexts it would be difficult to expect
a plan to pass legal muster without consideration of regional demographics.
However, no guidelines were given by the Constitutional Court on how to take
into account both regional and national demographics in the provinces with its
varied racial compositions and, of course, section 42 has now been amended.
When drafting an EEP, targets should be set mindful of the existing tension in
the Constitution which both recognises and wants to redress the past, and
which has a vision of an inclusive society being non-racial and non-sexist.148
An essential part of an EEP is a clear deviation clause to prevent the plan
from being inflexible or rigid.

________________________

147 Du Toit IRNetwork Today Weekly comment ‘Much ado about – what exactly?’ 1 (25 July
2016) (accessed on 25 July 2016) (Du Toit) 1).
148 Para 100. This may imply that:
l it would be sensible where regional demographics differ greatly from national demo-
graphics, to use the former in a nuanced, practical and rational manner;
l the argument in favour of the use of regional demographics is further supported
because of the uneven distribution of sub-groups of (particularly) Black people in pro-
vincial populations;
l the EEA surely does not want to sidestep the varied racial composition of Blacks in the
recruitment area(s) from which designated employers would ‘reasonably’ be expected
to obtain employees;
l the EEA does not aim for members of designated groups to move/relocate to other
provinces to find work in the public sector, either provincially or nationally – statistics
cannot be manipulated in such a manner;
l it will be rational and logical always to pay attention to larger regional populations
(compared to the national population) for all sub-groups of designated groups des-
pite the wording being changed to ‘may’ in the amended EEA;
l each case should be judged in terms of its own facts in a ‘situation-sensitive’ manner
and both the national and regional demographics must be taken into account when
drafting and implementing an EEP;
l recent statistics from reliable sources must be obtained to set practical targets and
address relative disadvantage effectively; and
l a contextualised approach is recommended with attention being paid to relative
importance of different degrees of disadvantage in every workplace.
Right to equality in employment: employment equity and affirmative action 191

It has been stated that the majority judgment was ‘a text of its time’ and goes
further than previous Constitutional Court judgments in ‘insulating’ affirmative
action measures from constitutional attack.149 Solidarity CC will probably make it
difficult to overrule affirmative action measures unless ‘unqualified candidates
[are appointed] or [the measures] are implemented in a corrupt or nepotistic
manner’.150 Other important issues are that contravention of section 20 (prep-
aration and implementation of an EEP), section 21 (preparation and submission
of reports), section 23 (successive EEPs) or section 44 (refusal or failure to comply
with a recommendation by the Director-General) may attract a fine linked to
the employer’s annual turnover.151 This may have serious financial implications
for defaulting employers.
Further, the minister, after consultation with NEDLAC, may issue regulations that
‘specify the circumstances under which an employer’s compliance should be
determined with reference to the demographic profile of either the national
economically active population or the regional economically active population’
(our emphasis).152
The minister may also in a code of good practice set out factors that must be
taken into account by any person assessing compliance with Chapters II and III
of the EEA.153
When an employer’s compliance with the EEA is being assessed or in any court
proceedings, a designated employer may raise any reasonable ground to jus-
tify its failure to comply.154
Maximum fines for non-compliance with the Act have been increased signifi-
cantly. The fines in Schedule 1, as increased by the Amendment Act, may have
serious legal and financial implications for designated employers.155
In arbitration proceedings, a commissioner of the CCMA may make any
appropriate arbitration award.156 An arbitration award made in terms of section
10(6)(aA) or (b) may include an order for compensation or damages or dir-
ecting that steps be taken to prevent the same unfair discrimination or similar
practices.157

________________________

149 Whether one refers to constitutional attack or scrutiny seems irrelevant in this context, see
also Smit ‘Transformative constitutionalism, equity, fairness and the workplace’ in Rönnmar
& Votinius (eds) Festschrift till Ann Numhauser-Henning (2017).
150 De Vos ‘Constitutional Court: Addressing redress’ Daily Maverick (20 July 2016), available
at http://www.dailymaverick.co.za/opinionista/2016-07-20-constitutional-court-addressing-
redress (accessed on 16 August 2016) at 5.
151 See Sch 1 on maximum permissible fines and ch 4 on turnover thresholds applicable to
designated employers in different sectors.
152 S 42(2) and (3) read with Form EEA8 to source information on the EAP.
153 S 53(5).
154 S 42(4).
155 Ss 59(4); 64A. Maximum fines and total annual turnover thresholds may be amended by
the minister to counter the effects of inflation.
156 S 48(2).
157 Ibid. An award of damages may not exceed the amount set by the minister in terms of
s 6(3) of the BCEA.
192 Law@work

9 Powers of the Labour Court

The Labour Court has extensive powers in terms of the EEA.158 These include
making an order:
l requiring the employer to comply with the compliance order of an inspector;
l condoning the late filing of documents;
l directing the CCMA to conduct an investigation to assist the court and to
submit a report to the court;
l ordering compliance with any provision of the Act;
l imposing a fine159 in accordance with Schedule 1 to the Act for contraven-
tions of certain provisions of the EEA;
l reviewing administrative actions in terms of the EEA on any grounds permis-
sible in law;160 and
l confirming, varying or setting aside a compliance order.

10 Jurisdiction of the Labour Court

The Labour Court has exclusive jurisdiction to determine any dispute about the
interpretation or application of the EEA except where the Act provides other-
wise.161

11 State contracts
The EEA requires the minister to keep a register of designated employers who
are required to submit employment equity reports.162 The register is a public
document.163
In terms of section 53, every designated employer who offers to conclude a
contract with any organ of state for the furnishing of supplies or services to that
organ or for the hiring or letting of anything must comply with Chapters II and III
of the Act (dealing with the prohibition of unfair discrimination and affirmative
action). Attached to the employer’s offer must be a certificate which is conclu-
sive evidence that the employer complies with the relevant provisions of the Act
or a declaration that it complies with the relevant chapters of the Act which,
when verified by the Director-General, is conclusive evidence of compliance. In
terms of section 53(4), failure to comply with the relevant provisions of the Act is
sufficient grounds for rejecting any offer to conclude an agreement or for
________________________

158 S 50.
159 S 50(5). The fine is payable into the National Revenue Fund in terms of s 213 of the Consti-
tution.
160 S 50(1)(h). This review will be conducted in terms of the Promotion of Administrative Justice
Act 3 of 2000.
161 S 49.
162 S 41(1).
163 See s 41(2).
Right to equality in employment: employment equity and affirmative action 193

cancelling an agreement. In this way, employers who seek to do business with

an organ of state will be forced to comply either with the unfair-discrimination
provisions of the Act or with both those provisions and the affirmative action
provisions.
In addition, the minister may in a code of good practice ‘set out factors that
must be taken into account by any person assessing whether an employer com-
plies with Chapter II or Chapter III’ of the EEA in relation to state contracts.164
Section 53 dealing with a code (which has so far not been operative), will soon
be promulgated in order to expedite transformation.165

________________________

164 S 53(5).
165 CEE Annual Report 2016–2017 at 4.
8
Unfair labour practices

Page
1 Introduction .................................................................................................... 197
1.1 Historical overview of the concept of unfair labour practice .......... 197
1.2 Codification of unfair labour practices in the current LRA ............... 198
1.2.1 The definition of ‘unfair labour practice’ in section 186(2).... 198
1.2.2 Scope and content of section 186(2) ...................................... 199
1.2.3 Only employees can claim an unfair labour practice .......... 199
1.2.4 What is a labour practice?........................................................ 200
1.2.5 Is the list of unfair labour practices a closed list?.................... 201
1.2.6 Disputes of right and disputes of interest ................................. 201
1.3 The interplay between the Constitution and the LRA ....................... 203
2 Promotion ....................................................................................................... 203
3 Demotion ........................................................................................................ 206
4 Probation ........................................................................................................ 207
5 Training ............................................................................................................ 209
6 Benefits ............................................................................................................ 210
7 Unfair disciplinary action short of dismissal ................................................. 215
7.1 Suspension .............................................................................................. 215
7.2 Other disciplinary action ...................................................................... 219
8 Refusal to reinstate or re-employ in terms of any agreement .................. 221
9 Occupational detriment on account of a protected disclosure ............ 222
9.1 Introduction ............................................................................................ 222
9.2 Key concepts ......................................................................................... 223
9.2.1 Occupational detriment ........................................................... 224
9.2.2 Disclosure..................................................................................... 224
9.2.3 Protected disclosure .................................................................. 225
9.3 Requirements for establishing an unfair labour practice based
on occupational detriment .................................................................. 229
10 Resolution of unfair labour practice disputes ............................................. 230

195
Unfair labour practices 197

1 Introduction
Prior to 1979, no legal recourse was available against unfair labour practices in
any form. Lawfulness and fairness do not always sit comfortably together, and
the common-law contract of employment confers no inherent right to fairness. It
was only after the introduction of the statutory concept of the unfair labour prac-
tice that the courts began to develop a labour jurisprudence based on equity
and fairness. By 1994 the concept had become sufficiently well-established for
the right to fair labour practices to be included in the interim Constitution. The
current ‘residual’ unfair labour practices were introduced into the LRA in 1995,
and the guarantee that ‘everyone has the right to fair labour practices’ was
included in the Bill of Rights of the final Constitution, in section 23(1).1

1.1 Historical overview of the concept of unfair labour practice

The original definition of unfair labour practice2 in section 1 of the 1956 LRA
defined an unfair labour practice widely as any labour practice which in the
opinion of the Industrial Court, was an unfair labour practice.3 For the first time,
the courts were tasked with looking at not only the lawfulness of the conduct of
employers and employees but also the fairness of that conduct. The only guide-
lines given to the court by this very broad and open-ended definition were that
there must be a labour practice and that the practice must, in the opinion of
the court, be unfair.
The original definition of ‘unfair labour practice’ was amended in 1982.4 The
definition was to form the foundation for the unfair labour practice jurispru-
dence in the 1980s and early 1990s and stated:
Unfair labour practice means any act or omission, other than a strike or a lock-out,
which has the effect that –
(i) any employee or class of employees is or may be unfairly affected or that his
or their employment opportunities, work security is or may be prejudiced or
jeopardised thereby;
(ii) the business of any employer or class of employers is or may be unfairly
affected or disrupted thereby;
(iii) labour unrest is or may be created or promoted thereby;
(iv) the labour relationship between employer and employee is or may be detri-
mentally affected thereby.

________________________

1 The LRA, the BCEA and the EEA were enacted, in part, to give legislative effect to this
constitutional right. See ch 3.
2 See Le Roux and Van Niekerk The South African Law of Unfair Dismissal (1994) at 1–2. The
authors submit: ‘In what might constitute one of the supreme ironies of apartheid, it would
seem that the legislation which gave rise to the law of unfair dismissal in South Africa was
enacted with the underlying purpose of protecting the job security of Whites in the face
of the abolition of job reservation’.
3 A quick reading of the constitutional right of everyone ‘to fair labour practices’ in s 23
would seem to be equally wide and subject to interpretation – this time by the Constitu-
tional Court.
4 The definition was amended by the Industrial Relations Amendment Act 95 of 1982.
198 Law@work

Both the original and amended definitions were broad enough to encompass
individual and collective labour practices. There must have been unfair con-
duct – whether by act or omission. There needed to be a relationship between
an employer and employee(s). Significantly, the definition of ‘unfair labour prac-
tice’ applied to both employees and employers: an employee was also capable
of committing an unfair labour practice. Strikes and lock-outs were specifically
excluded from the ambit of the definition, but other collective labour law prac-
tices were capable of coming within its reach.
The main focus was on the unfairness of the act or omission and the effect
that this unfairness had on an employee or class of employees – unfair conduct
in this sense was thought to be conduct that was arbitrary and inconsistent. The
definition refers to an employee’s opportunities and work security and the
negative effect that the conduct may have on the business of the employer, or
the possibility of creating or promoting labour unrest. Some of the practices that
were held to fall within the original definition of an ‘unfair labour practice’ in-
cluded the following: dismissals that were substantively unfair or had a pro-
cedural flaw; a failure to renew a fixed-term contract; the dismissal of strikers
during a lawful strike; selective re-employment; and discrimination and victim-
isation for trade union activities.

1.2 Codification of unfair labour practices in the current LRA

The LRA abolished the broad definition contained in the 1956 Act and instead
codified some of the jurisprudence that had emerged from the Industrial Court’s
interpretation of it. Many of the unfair practices mentioned above have been
codified in various other sections of the LRA (for example, unfair dismissal) and
as such, continue to be viewed as unfair conduct but no longer fall under the
definition of an ‘unfair labour practice’. Consistent with the voluntarist nature of
the statute,5 the definition excludes any conduct relating to the process of
collective bargaining and is limited to individual employment relationships.

1.2.1 The definition of ‘unfair labour practice’ in section 186(2)

This chapter is primarily concerned with the current definition of unfair labour
practice in the LRA. The definition reads as follows:
(2) ‘Unfair labour practice’ means any unfair act or omission that arises between
an employer and an employee involving –
(a) unfair conduct by the employer relating to the promotion, demotion,
probation (excluding disputes about dismissals for a reason relating to
probation) or training of an employee or relating to the provision of bene-
fits 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) a failure or refusal by an employer to reinstate or re-employ a former em-
ployee in terms of any agreement; and

________________________

5 See ch 1 above.
Unfair labour practices 199

(d) an occupational detriment, other than dismissal, in contravention of the

Protected Disclosures Act, 2000 (Act 26 of 2000), on account of the em-
ployee having made a protected disclosure defined in that Act.6
The definition is best discussed by examining its individual components.

1.2.2 Scope and content of section 186(2)

The definition requires that there is a labour practice that arises between an em-
ployer and an employee, and that the conduct (whether an act or omission) is
unfair. The specific unfair labour practices in paragraphs (a) to (d) all occur dur-
ing the currency of employment.7 Unlike the EEA, the definition of ‘employee’ in
this instance does not extend to applicants for employment.8 When an em-
ployee is an applicant for a job, usually when seeking promotion with the exist-
ing employer, the situation may be more complex.9

1.2.3 Only employees can claim an unfair labour practice

Sections 186(2)(a) to (d) define unfair labour practices by reference to employer
acts or omissions. It is, therefore, only an employee who may be the victim of an
unfair labour practice as defined in the LRA.10
In NEWU v CCMA & others,11 the scope of the definition was considered. The
employer, a trade union, referred a dispute about an unfair labour practice to
the CCMA. The employee (a union official) had resigned without giving notice
and the employer claimed that this was an unfair labour practice. The CCMA
found that it lacked jurisdiction as the definition did not allow for it to determine
an unfair labour practice committed by an employee. The Labour Court was
required, on review, to decide whether this definition was unconstitutional in
view of the fact that section 23(1) of the Constitution enshrined the right of
‘everyone’ to fair labour practices. The court held that the unfair conduct of the
employee could conceivably breach the employer’s constitutional right to fair
labour practices. It was held, however, that the employer had other remedies
at its disposal and since the LRA was not required to regulate unfair labour

________________________

6 S 186(2) of the LRA.

7 The reference to selective re-employment in s 186(2)(c) indicates that former employees
are covered at least for the purposes of that paragraph.
8 S 9 of the EEA.
9 See para 2 ‘Promotion’.
10 See Pretorius & another v Transnet Pension Fund & others [2018] 7 BLLR 633 (CC) where the
Constiutional Court suggested that a person not defined as an employee in the LRA but
engaged in an employee-employer relationship, may rely on such relationship with regard
to the constitutional right to fair labour practices. The court held that ‘Contemporary labour
trends highlight the need to take a broad view of fair labour practice rights in section
23(1). . . . More and more people find themselves in the “twilight zone” of employment as
supposed ‘independent contractors’ in time-based employment subject to faceless
multinational companies who may operate from a web presence. . . . Though the facts of
this case do not involve these considerations, they provide a compelling basis not to
restrict the protection of section 23 to only those who have contracts of employment’ (at
para 48).
11 [2004] 2 BLLR 165 (LC).
200 Law@work

practices comprehensively, and as the conduct of the employer was not em-
braced by the statutory definition of unfair labour practices, the failure to in-
clude employers in section 186(2) was not unconstitutional.
The identity of the employer may be an issue in unfair labour practice claims.
In MEC for Transport: KwaZulu-Natal & others v Jele,12 an employee in one pro-
vincial department unsuccessfully applied for a higher post in another depart-
ment. In response to the employee’s allegation that the employer had commit-
ted an unfair labour practice, the employer argued that there was no existing
employment relationship between the employee and the department where he
had applied for the post, and therefore there could be no unfair labour prac-
tice. The Labour Appeal Court disagreed, holding that the state is a single em-
ployer, irrespective of the department in which the employee works. The court
held that for the purposes of the unfair labour practice definition the employer
was the state.

1.2.4 What is a labour practice?

Although there is no definition of ‘labour practice’ in the LRA, it is necessary at
least that the practice must arise within the employment relationship. Protection
does not therefore extend to independent contractors.
A labour practice refers to unfair conduct – either an act or omission – this
can be interpreted as a single act or omission. The fact that there must have
been an act or omission indicates further that the conduct must actually have
occurred (either as an act or omission) and not be merely anticipated in the
future.
Significantly, the labour practice must in some way relate to the specific forms
of conduct that the Act has designated as unfair labour practices in paragraphs
(a) to (d).

1.2.5 Is the list of unfair labour practices a closed list?

From the terms of the definition, it seems that specific unfair labour practices
mentioned in paragraphs (a) to (d) are a numerus clausus and that the list is
closed. In particular, the use of the word ‘involving’ in the preamble to the def-
inition (rather than the word ‘including’) would suggest that the list is limited to
those practices specifically mentioned.
In Schoeman v Samsung Electronics SA (Pty) Ltd 13 a sales executive was not
allowed to return to work when she refused to accept a reduction in the com-
mission she had been earning. The employer allegedly had good operational
reasons for locking her out. The case examined various issues such as whether
one employee could be locked out and whether the commission earned was
a benefit. For present purposes, however, we are concerned with the court’s

________________________

12 [2004] 12 BLLR 1238 (LAC).

13 [1997] 10 BLLR 1364 (LC).
Unfair labour practices 201

finding on whether section 186(2) contained a closed list of unfair labour prac-
tices. The Labour Court found that it did.14
If the list of unfair labour practices is exhaustive, the question that must be
asked is whether this amounts to a limitation of the constitutional right to fair
labour practices contained in section 23(1) of the Constitution (where the right
appears to be unlimited) and if so, whether the limitation that the definition
represents is justifiable. A further question is whether employees should be en-
titled to rely directly on the Constitution to enforce a right to fair labour prac-
tices. Public-sector employees have been successful in placing direct reliance
on the Constitution to challenge practices not covered by the LRA, for ex-
ample, the transfer of an employee.15 It has also been suggested that the con-
stitutional notion of the right to fair labour practices may include the unfair
conduct of an employee as against the employer.16
The constitutional right to fair labour practices is therefore, by implication,
wider in scope than the unfair labour practice as defined in the LRA. This could
result in a constitutional challenge if the limitation is found not to be justifiable in
an open and democratic society based on human dignity, equality and free-
dom.17
In Pretorius v Transnet Pension Fund18, the Constitutional Court suggested that
in so far as the definition of ‘unfair labour practice’ is confined to persons in
formal employment, there may be a compelling basis not to restrict the protec-
tion of section 23 of the Constitution to the same class of persons, particularly
given the changed nature of work relations.

1.2.6 Disputes of right and disputes of interest

One of the controversial issues surrounding the statutory unfair labour practices
in section 186(2) is whether a dispute about an unfair labour practice is a dis-
pute of right or interest. Section 191 of the LRA states that if a dispute about an
unfair labour practice remains unresolved after conciliation, the CCMA or a
bargaining council with jurisdiction must arbitrate the matter. This suggests that
conceptually at least, an unfair labour practice in terms of section 186(2) would
be classified as a dispute of right.19
________________________

14 See Govender v Dennis Port (Pty) Ltd (2005) 26 ILJ 2239 (CCMA) in which an employee
was put on short time. The arbitrator referred to s 23(1) of the Constitution and held, on the
basis of the constitutional right and the judgment in NEHAWU v University of Cape Town &
others (2003) 24 ILJ 95 (CC), that the list was not closed. This approach has, however, been
criticised.
15 See Simela & others v MEC for Education, Province of the Eastern Cape & another [2001] 9
BLLR 1085 (LC).
16 NEWU v CCMA & others (fn 11).
17 S 36 of the Constitution. See also the discussion in ch 3, para 5 ‘Limitation of rights’ above.
18 Fn 10.
19 See further the general discussion of disputes in ch 17 and, in particular, the caution against
the loose use of the terms ‘disputes of right’ and ‘disputes of interest’ in the context of dis-
pute resolution under the LRA. All interest disputes constitute disputes about matters of
mutual interest but the converse is not necessarily true. At issue here, however, is whether
an employee can rely on the unfair labour practice jurisdiction to establish a new right.
202 Law@work

This debate must be appreciated in the context of the limitation on the right
to strike contained in section 65(1)(c) of the LRA. This section states that no per-
son ‘may take part in a strike or a lock-out or in any conduct in contemplation
or furtherance of a strike or lock-out if . . . the issue in dispute is one that the
party has the right to refer to arbitration or to the Labour Court in terms of this
Act’. In other words, the broader the scope of the unfair labour practice defin-
ition, the narrower the scope of the right to strike. This demarcation is an issue in
unfair labour practice disputes that relate to a benefit as part of an employee’s
remuneration package. In this context, if the net of the definition of unfair
labour practice is cast too wide, the scope of the right to strike would be un-
acceptably narrowed. This explains why the CCMA and the Labour Court have
always been cautious to limit the scope of application of the definition of unfair
labour practice and to avoid creating rights as between the parties that should
more properly be the subject of collective bargaining outcomes.20
In HOSPERSA & another v Northern Cape Provincial Administration21 the issue
was whether an employee, a nurse, who had been appointed to a more senior
position in an acting capacity was entitled to be compensated for the extra
work performed during this period. The CCMA held that the employer had com-
mitted an unfair labour practice by not paying the nurse for this period. On
review, both the Labour Court and the Labour Appeal Court held that the em-
ployee had failed to prove that she was entitled, as a right, to the higher salary.
The Labour Appeal Court reasoned that an unfair labour practice dispute was
adispute of right and as such the right may only arise either ex lege or ex con-
tractu. The court held that if the right to the extra remuneration was not part of
a contract, collective agreement or statute, then the dispute was over the
creation of a new term and condition of employment and was therefore a
dispute of interest.22
In Gauteng Provinsiale Administrasie v Scheepers & others23 the Labour Ap-
peal Court held that an ‘unfair labour practice, as traditionally understood,
involved the infringement of a right; that the right . . . was judicially created
pursuant to powers given to the Industrial Court by statute, and not by contract
or legislation did not make it less of a right’.24
In Protekon (Pty) Ltd v CCMA & others 25 the employer and its predecessor had
provided travel concessions to managerial staff. In 2002, the applicant withdrew
this ‘benefit’ unilaterally and paid a once-off bonus or increase to compensate

________________________

20 The Labour Relations Amendment Act of 2014 extends the s 65(1)(c) limitation to disputes
that ‘in terms of this Act or any other employment law’ may be referred to arbitration or to
the Labour Court.
21 (2000) 21 ILJ 1066 (LAC). See also Gauteng Provinsiale Administrasie v Scheepers & others
(2000) 21 ILJ 1305 (LAC).
22 Grogan Dismissal, Discrimination and Unfair Labour Practices (2007) at 44.
23 Fn 21.
24 Fn 21 at para 11.
25 [2005] 7 BLLR 703 (LC) at paras 31–32.
Unfair labour practices 203

the employees concerned. The respondent had received the concession for 19
years and was not happy to forfeit it. He claimed that the increase was not
adequate compensation for the loss of the benefit.26 Todd AJ held that both
collective bargaining and the unfair labour practice definition were available to
disaffected employees: ‘Where disputes over benefits are concerned . . . there
can be little objection to workers choosing to tackle the employer in the collect-
ive bargaining arena rather than trying to demonstrate unfairness in the sense
contemplated in the unfair labour practice definition’.27 The court examined the
decision in HOSPERSA and suggested that what the Labour Appeal Court had
held was that:
The unfair labour practice jurisdiction cannot be used to assert an entitlement to
new benefits, to new forms of remuneration or to new policies not previously pro-
vided by the employer. To permit that would allow an employee to use the unfair
labour practice jurisdiction to establish new contractual terms, something which
the LRA clearly contemplates should be left to a process of bargaining between
the parties.28

1.3 The interplay between the Constitution and the LRA

The relationship between the constitutional right in section 23(1) and the pro-
vision in section 186(2) of the LRA relating to unfair labour practice is a contro-
versial issue. General issues of jurisdiction have been discussed elsewhere in the
book.29 It suffices here to refer to NAPTOSA & others v Minister of Education,
Western Cape Government & others 30 where the High Court held that direct
reliance on the Constitution to enforce labour rights should be avoided be-
cause such a course of action would lead to two streams of jurisprudence. The
better approach, as suggested by the court, is to pursue legislative amend-
ment.31 In other words, when a litigant asserts that a legislative provision that
seeks to give expression to the right to fair labour practices falls short of meeting
the constitutional promise, the legislation cannot be ignored: it should be chal-
lenged constitutionally.32

2 Promotion
Most cases dealing with allegations of unfair conduct by an employer relating
to promotion concern refusals to promote the claimant. In these cases, the
employee must first prove that the employer refused to promote him or her. This
requirement has proved problematic in cases where the employee has applied

________________________

26 See para 6 ‘Benefits’ below.

27 Fn 25 at para 25.
28 Ibid at para 32. See the further discussion on this case at para 6 ‘Benefits’ below.
29 See ch 17 below.
30 (2001) 22 ILJ 889 (C). See also Du Toit, Godfrey, Cooper, Giles, Cohen, Conradie and Steen-
kamp Labour Relations Law: A Comprehensive Guide (2015) at 539–545.
31 Ibid at 894–897. See also Moloka v Greater Johannesburg Metropolitan Council (2005) 26
ILJ 1978 (LC).
32 SA National Defence Union v Minister of Defence & others [2007] 9 BLLR 785 (CC).
204 Law@work

for another position with the same employer, usually with a higher status.33 When
employees have acted in a position but are not substantively appointed to the
post, the dispute may also fall within the scope of section 186(2)(a).34 Similarly,
failure to appoint a temporary employee to a permanent position may qualify
as a dispute about promotion. Finally, where an employer created a reason-
able expectation that an employee would be promoted, and then frustrated
that expectation by failing to promote the employee, there is authority35 to the
effect that the employee concerned may refer a dispute about an unfair
labour practice on the basis of the reasonable expectation.36
Having proved that the employer refused to promote him or her, the em-
ployee must then prove that the act or omission complained of was unfair.
In Dlamini v Toyota SA Manufacturing 37 it was held that where an employer
failed to appoint an employee to a promotional position the CCMA or courts
should be hesitant to interfere with the exercise of management’s decision in
the absence of gross unreasonableness which may lead the court or CCMA to
draw an inference of bad faith. Phrased differently, the decision to promote or
not falls within management prerogative and the employer’s exercise of its dis-
cretion to promote is only reviewable if it was seriously flawed.38 The employer
must act in good faith, apply its mind to the selection, and supply reasons for its
decision. Employees must show that they possess the attributes and skills neces-
sary for the position and that the person promoted does not possess the same.
Although employees may allege a discriminatory reason for such treatment,
________________________

33 In MEC for Transport: KwaZulu-Natal & others v Jele (fn 12) it was held that an unsuccessful
application by a public-sector employee for appointment to a higher position in another
department could, for the purposes of s 186(2)(a), constitute a dispute about a promo-
tion. See also Health & other Service Personnel Trade Union of SA & another v Public
Health & Welfare Sectoral Bargaining Council & others [2014] JOL 31963 (LC).
34 Visser v Vodacom [2002] 10 BALR 1031 (AMSSA); Van Blerk and Tshwane University of Tech-
nology (2012) 33 ILJ 1248 (CCMA); Jantjies and Barloworld Handling (2013) 34 ILJ 2165
(BCA). See also Peteni and SA Police Service & another (2013) 34 ILJ 228 (BCA); Police &
Prisons Civil Rights Union obo Dhanarajan and SA Police Service & others (2013) 34 ILJ 235
(BCA) where the applicants were granted protective promotion.
35 See Salstaff obo Nel v Spoornet [1999] 4 BALR 524 (IMSSA); Eskom v Marshall & others
(2002) 23 ILJ 2251 (LC).
36 This was confirmed by the award in Kruger v SA Police Service (2003) 24 ILJ 477 (BCA). The
case concerned the failure of the employer to promote a White female police officer to a
‘designated’ post. The applicant was the best candidate, but the SAPS contended that
White females were already over-represented in its employ. The arbitrator held that by in-
viting applications for the post without indicating such restriction, the employer was cre-
ating a reasonable expectation of promotion on the part of the best candidate and that
the failure to promote was thus unfair. In Gebhardt v Education Labour Relations Council
& others (2013) 34 ILJ 1183 (LC), the employer’s failure to verify the applicant’s disability
after she had alleged that she was a member of a designated group, a decision that
resulted in the promotion of another person from a designated group, was held to consti-
tute an unfair labour practice. See also Ramoroka and Robben Island Museum (2012) 33
ILJ 400 (CCMA) and Van Blerk and Tshwane University of Technology (fn 34).
37 (2004) 25 ILJ 1513 (CCMA).
38 Westraat v SA Police Service (2003) 24 ILJ 1197 (BCA); Ncane v Lyster NO & others (2017)
38 ILJ 907 (LAC) which stated that an employer must abide by its own promotion criteria.
Unfair labour practices 205

section 186(2)(a) does not require this. Where the employer is unable to justify its
decision, the failure to promote may be found unfair. The fact that an employee
is better qualified or achieved a higher recommendation from a selection
committee does not as such prove unfair or arbitrary conduct on the side of the
employer.39
Rycroft has summarised the principles that emerge from Dlamini 40 that could
serve as guidelines on determining disputes about promotion.
l In the area of promotions (and appointments), the court or CCMA should be
hesitant to interfere with management’s discretion in the absence of gross
unreasonableness, which may lead to an inference of mala fides.41
l The legislature did not intend, in drafting the unfair labour practice provision,
that arbitrators should assume the roles of employment agencies. A com-
missioner’s function is ‘not to ensure that employers choose the best or most
worthy candidates for promotion, but to ensure that, when selecting em-
ployees for promotion, employers do not act unfairly towards candidates’.42
l When it appears that the ‘best’ or ‘most worthy’ candidate was not pro-
moted, the relative inferiority of a successful candidate is only relevant in so
far as it suggests that the superior candidate was overlooked for some un-
acceptable reason, including a reason listed in section 6 of the EEA.43
l The legislature did not intend commissioners to concern themselves, when
deciding disputes relating to promotion, with the reasons why the employer
declined to promote the applicant employee. Rather, the process led to
the decision not to promote the employee that is of concern. Therefore, ‘the

________________________

39 PSA obo Dalton & another v Department of Public Works [1998] 9 BALR 1177 (CCMA). See,
however, Health & Other Service Personnel Trade Union of SA & others v MEC for Health,
Eastern Cape & others (2017) 38 ILJ 890 (LAC) where it was found that the respondent
failed to justify its departure from the requirements set for the post as advertised, namely
registration at the Health Professions Council – and not the Nursing Council – and that
such deviation prejudiced the applicants who applied as well as potential candidates
and constituted an unfair labour practice.
40 Fn 37 at 1517–1518.
41 See also SAPS v Safety & Security Bargaining Council [2010] 8 BLLR 892 (LC) at para 15.
Basson J examined the merits of review in a case of promotion or lack of promotion and
concluded that the ‘decision to promote or not to promote falls within the management
prerogative of the employer . . . the court or arbitrator should not readily interfere with the
exercise of discretion. . . . The commissioner or arbitrator is not the employer. The role of
the commissioner is to oversee that the employer did not act unfairly towards the can-
didate that was not promoted’.
42 See also Cullen and Distell (Pty) Ltd (2001) 10 CCMA 6.9.3; SAPS v Safety & Security Bar-
gaining Council (fn 41) at para 15.
43 See Minister of Safety and Security v Safety and Security Sectoral Bargaining Council &
others [2010] 4 BLLR 428 (LC) in which the court held that in a situation where the selection
panel recommended a candidate who achieved lower scores than an unsuccessful
candidate the employer committed an unfair labour practice if it failed to advance the
reasons for the appointment.
206 Law@work

reasons for the decision to overlook an employee when selecting a candi-

date for promotion are relevant only in so far as they shed light on the fair-
ness of the process’.44
In the recent case of Solidarity & others v Department of Correctional Services &
others 45 the Constitutional Court found that Black candidates, whether they are
African, Coloured or Indian, are also subject to the so-called Barnard principle,
namely that promotion may be refused to White people who are already over-
represented at a specific occupational level, and that this applies equally to
both men and women.

3 Demotion
Section 186(2)(a) also brings unfair conduct by the employer relating to the de-
motion of an employee under the definition of an unfair labour practice. As is the
case with disputes about promotions, an employee who refers a dispute about
an alleged demotion must prove the fact of demotion as well as its unfairness.
In Murray v Independent Newspapers 46 it was held that demotion must involve
the loss of benefits or a diminution in the employee’s status.47 In other words, not
every change in the job description or function of an employee will constitute
demotion. In Nxele v Chief Deputy Commissioner, Corporate Services, Depart-
ment of Correctional Services & others,48 the court held that the ‘transfer’ of the
employee in fact constituted a demotion in that the employee’s prestige, status
and duties in the ‘transferred’ position were considerably inferior to those of his
previous position. Similarly, in SA Police Service v Salukazana & others,49 ‘transfer’
of an employee to another area, resulting in a change in conditions and reduc-
tion in status and responsibilities, was found to amount to ‘demotion’ and thus
constituted an unfair labour practice. In other words, the challenge to the trans-
fer was not a challenge to the transfer itself but to its consequences.50
A demotion can also take place in the context of a restructuring exercise or
an amalgamation. For example, in Mwamwende v University of KwaZulu-Natal,51
the university (after the merger of two universities to form a single new entity)
failed to appoint a dean from one of the merged universities to the post of

________________________

44 Ibid at paras 23–24. See also Manana v Department of Labour & others [2010] 6 BLLR 664
(LC); Minister of Safety and Security v Safety and Security Sectoral Bargaining Council &
others (fn 41); SA Police Union obo Buckus and SA Police Services (2012) 33 ILJ 2755 (BCA)
in which the employers failed to comply with their selection policy.
45 (2016) 37 ILJ 1995 (CC). The Constitutional Court held further that targets in employment
equity plans will not constitute quotas where the plan provides for deviations from the tar-
get. See also ch 7 above.
46 (2003) 24 ILJ 1420 (CCMA).
47 It was also held that the employer is under an obligation to consult, and perhaps even to
negotiate, with an employee before effecting a demotion.
48 (2008) 29 ILJ 2708 (LAC). See also para 7.2 ‘Other disciplinary action’.
49 (2010) 31 ILJ 2465 (LC); [2010] 10 BLLR 764 (LC).
50 At para 23.
51 (2006) 27 ILJ 2174 (CCMA).
Unfair labour practices 207

dean in the ‘new’ entity. The former dean raised a complaint that he had held
that position on a five-year contract and that failure to appoint him to a similar
post in the new university amounted to a demotion and ultimately to an unfair
labour practice. The commissioner rejected the employer’s argument that it
could distinguish between contracts of employment, which were automatically
transferred, and posts in the new entity, which could only be created by the new
university council. The dean’s fixed-term contract therefore had to be honoured
by the new council and its failure to do so amounted to an unfair labour practice.
Although demotion may be imposed as a disciplinary penalty, it must be im-
posed for a valid reason (for example, as an alternative to dismissal when an
employee is found guilty of serious misconduct) after a fair procedure has been
followed (for example, after a disciplinary hearing). When an employer attempts
to accommodate an employee in the context of a retrenchment or in the light
of the employee’s incapacity, ‘demotion’ may also be fair. The employer will,
however, have to consult with the affected employee.

4 Probation
The 2002 amendments to the LRA brought unfair conduct by the employer re-
lating to the probation of an employee (excluding disputes about dismissals for a
reason relating to probation)52 under the definition of an unfair labour practice.
At present, the Code of Good Practice: Dismissal (the ‘code’) regulates the
position of probationary employees.53 This discussion will thus centre on the
code’s provisions. These provisions arguably provide the most obvious grounds
for an employee’s allegation of an unfair labour practice by the employer in this
context.
The code – in line with ILO guidelines which permit a probationary period of
reasonable duration with the aim to prevent the employer from being saddled
indefinitely with employees who fail to perform satisfactorily – provides that
an employer may require a newly hired employee54 to serve a period of pro-
bation before the appointment of the employee is confirmed.55 The purpose of
________________________

52 See ch 6 above.
53 Item 8 of Sch 8.
54 The code does not explicitly provide that a probationary period may be used for employees
who have been promoted into positions at the same employer (see ch 6 above where it is
argued that there is no reason why this may not be done). In this regard, the decision in
Msomi v Protea Security Services [2004] 3 BALR 360 (CCMA) which held that item 8(1)(a)
applied to newly hired employees only, is arguable. It is not clear, however, whether an
employee promoted into a position and then found to be unsuitable may be dismissed, or
whether he or she may be required to take up his or her original position.
55 Item 8(1)(a) of the code. See Tharatt v Volume Injection Products (Pty) Ltd [2005] 6 BALR 652
(MEIBC) where the validity of a probationary clause was considered. The employee’s origi-
nal letter of appointment did not contain a probationary clause but the contract which the
applicant was required to sign on commencing work, established a three-month probation-
ary period which was later extended for a month after which the employee was dismissed.
The dismissal was found to be substantively and procedurally unfair as the respondent had
not proven that the reason for the dismissal was a fair reason relating to the applicant’s
capacity, and the respondent had not followed a fair procedure. See ch 9 below.
208 Law@work

a probation period is to give the employer an opportunity to evaluate the em-

ployee’s performance before confirming the appointment.56 This period should
not be used for purposes not contemplated by the code, and, particularly, to
deprive employees of the status of permanent employment.57 In this regard, the
code cites as an example the practice of dismissing employees who have com-
pleted a probationary period and replacing them with newly hired employees –
this would be inconsistent with the purpose of probation and would constitute
an unfair labour practice.
The code states that the probationary period should be determined in ad-
vance, be of reasonable duration and be determined with reference to the
circumstances of the job, and in particular the nature of the job and the time it
takes to determine the employee’s suitability for continued employment.58 The
code thus does not provide hard and fast rules with regard to a period of pro-
bation. By way of example, however, a simple job with few required skills will
need a shorter period than a high profile job with specific skills. Thus a period of
months or even a year may be suitable for professionals but not for clerical
workers or messengers.
The code further sets out both procedural as well as substantive requirements
for a dismissal during probation. During probation an employee’s performance
should be assessed and reasonable evaluation, instruction, training, guidance
or counselling must be given to allow the employee to render a satisfactory ser-
vice.59 If the employer determines that the employee’s performance is below
standard, the employer should advise the employee of any aspects in which
the employee is failing to meet the required standards.60 If the employer finds the
employee to be incompetent, it should advise the employee of this finding.61
The employer may then elect either to extend the probationary period for the
employee to meet the required performance standards or to dismiss the em-
ployee. The period may be extended only for a reason that relates to the pur-
pose of probation, in other words, to provide an adequate further opportunity
to evaluate the employee’s work performance.62 Any extension should not be

________________________

56 Item 8(1)(b) of the code.

57 Item 8(1)(c) of the code.
58 Item 8(1)(d) of the code.
59 Item 8(1)(e) of the code.
60 Item 8(1)(f) of the code.
61 Ibid.
62 See Cape Performing Arts Board v Schuster (1994) 15 ILJ 109 (LAC) (decided prior to the
current LRA and code). In this case the respondent accepted the position of principal trum-
pet in an orchestra for a six-month trial period which was extended for a further six-month
period. The second trial period was sufficiently successful for the respondent to be offered
the position of principal trumpet for a year. Towards the end of this year the respondent was
informed that he would not be offered a permanent position for reasons relating to musical
skills. The LAC found that the respondent was effectively kept in the ‘precarious’ position of a
probationary employee for two years and that the appellant had not followed any of the
stipulated procedures in coming to a decision to terminate and that this was an unfair
labour practice. See also Yeni v South African Broadcasting Corporation [1997] 11 BLLR 1531
(CCMA) regarding the need for proper evaluation and counselling.
Unfair labour practices 209

disproportionate to the legitimate purpose, namely to determine the employee’s

suitability for continued employment.63 A dismissal or an extension may only
occur after due consideration of the representations made by the employee.64
A trade union representative or co-employee may also make representations
on behalf of the employee. If the employer elects to extend the probationary
period or to dismiss the employee, it must advise the employee of the right to
refer the matter to a bargaining council or the CCMA.65
If the employer elects to dismiss the employee, the code states that ‘less com-
pelling’ reasons may be accepted than would be the case had the dismissal
been effected after the completion of the probationary period. This implies that
the hurdle for substantive fairness in disputes about the dismissal of probationary
employees for poor work performance is at a lower level than for the dismissal
of employees after the probationary period has been completed.66

5 Training
Section 186(2)(a) includes unfair conduct by the employer relating to the train-
ing of an employee under the definition of an unfair labour practice.
Claims for unfair labour practices relating to training may arise in the context
of the following:
l a contract of employment;
l a collective agreement;
l an instance where the employee shows a reasonable expectation to be
trained;67
l the SDA68 which helps disadvantaged South Africans overcome the conse-
quences of apartheid education and other discriminatory workplace prac-
tices; or
l the EEA which requires designated employers, as part of affirmative action
measures, to implement suitable training measures for employees to develop
skills.69
In Maritime Industries Trade Union of SA & others v Transnet Ltd & others,70 the
court held that an unfair labour practice with regard to training can be estab-
lished where an employer has acted inconsistently, arbitrarily or irrationally with

________________________

63 Item 8(1)(g) of the code.

64 Item 8(1)(h) of the code. While a formal disciplinary inquiry is thus not necessary, employers
and employees may arguably agree to stricter procedural measures.
65 Item 8(1)(i) of the code.
66 See ch 9 below.
67 See Maritime Industries Trade Union of SA & others v Transnet Ltd & others (2002) 23 ILJ
2213 (LAC); National Union of Mineworkers on behalf of Mashao & others and Eskom Hold-
ings SOC Ltd (Generation Division, Koeberg Operating Unit) (2014) 35 ILJ 290 (CCMA).
68 Act 97 of 1998.
69 S 15(2)(d) of the EEA.
70 Fn 67.
210 Law@work

regard to training issues.71 Similarly, in Mdluli v SA Police Service72 the court stated
that for unfair labour practices relating to training, the conduct of the employer
in this regard must be arbitrary, inconsistent or lack due process.73 In this in-
stance, the employer removed the employee from a training course (which
course would have enabled the applicant to be promoted from inspector to
captain) after an allegation of misconduct. This allegation was later withdrawn
and the employer was ordered to re-nominate the employee for training.
In MITUSA/Portnet 74 the employer’s denial of the applicants’ training for a
‘seagoing’ certificate (the Standard Training Certificate for Watchkeeping or
STCW), which arose from a contractual obligation, and the respondent’s substi-
tution of the STCW qualification with an inferior certificate of its own, without any
negotiations with the employees, were found to constitute unfair labour prac-
tices. The commissioner ordered the respondent to provide the applicants with
the necessary training to obtain the STCW certificates.
In contrast, when this decision was reviewed by the Labour Court in Transnet
Ltd v CCMA & others,75 Jammy AJ held that the employer’s refusal to train in
spite of a contractual undertaking, did not amount to an unfair labour practice
but rather to a unilateral change to the contractual terms. As such, the dispute
was one of interest and not arbitrable under the LRA. It was held that for an em-
ployer’s conduct relating to training to constitute an unfair labour practice, it
must embody characteristics directly associated therewith such as, inconsistency,
arbitrariness or a lack of due process.
In SARHWU/Transtel,76 the employer’s failure to embark on an accelerated
training programme agreed upon at a meeting for the appointment of certain
employees under affirmative action, was held to constitute an unfair labour
practice.77 The arbitration award also placed a moratorium on the advertising
and filling of vacancies until such training programme had been completed.

6 Benefits
Precisely what constitutes a ‘benefit’ for the purposes of the definition of unfair
labour practice is a question that has troubled the courts for many years. In
SACCAWU v Garden Route Chalets (Pty) Ltd 78 benefits were said to include ‘all
the rights which accrue to an employee by virtue of the employment relationship
– from wages through to additional matters like pension, medical aid, housing

________________________

71 Fn 67 at 2247B.
72 (2003) 24 ILJ 1186 (BCA).
73 At 1188I.
74 [2000] 9 BALR 1037 (CCMA).
75 [2001] 6 BLLR 684 (LC). The Labour Appeal Court dismissed an appeal against the decision
but set aside the commissioner’s award on different grounds (see MITUSA & others v Trans-
net Ltd & others [2002] 11 BLLR 1023 (LAC)).
76 [1999] 2 BALR 224 (IMSSA).
77 At 225G.
78 [1997] 3 BLLR 325 (CCMA).
Unfair labour practices 211

subsidies and so on’79 and the commissioner held that inequality in the provision
of transport to and from work would be an unfair labour practice.
The labour courts, on the other hand, initially opted to give ‘benefits’ a narrow
meaning and held that a ‘benefit’ was something other than remuneration.
‘Remuneration’ in terms of the LRA means ‘any payment in money or in kind,
or both in money and in kind, made or owing to any person in return for that
person working for any other person, including the State, and ‘remunerate’ has
a corresponding meaning’.80
In Schoeman v Samsung Electronics SA (Pty) Ltd 81 the Labour Court held that
commission claimed by the applicant was not a ‘benefit’ but was part of the
employee’s salary. The court held further that a benefit ‘is something extra,
apart from remuneration’82 and to reduce the rate of commission of an em-
ployee could not therefore be an unfair labour practice as envisaged in section
186(2)(a). In Gaylard v Telkom SA Ltd 83 the Labour Court found that payment
for accumulated leave was not a benefit but rather part of ‘remuneration’. The
court again chose to interpret ‘benefits’ narrowly to avoid limiting the right
to strike over wages and other disputes of interest. The court held that ‘If the
term “benefit” is so generously interpreted so as to include any advantage or
right in terms of the employment contract, even wages, item 2(1)(b) would all
but preclude strikes and lock-outs’.84 A benefit has been described as some-
thing constituting a material benefit such as a pension, medical aid benefit or a
housing subsidy.85 A benefit should provide the employee with a financial bene-
fit at a cost to the employer and the benefit should arise out of the contract
itself.86
The issue of whether a benefit must arise out of the contract was addressed in
Northern Cape Provincial Administration v Commissioner Hambidge NO & others87
and once again a narrow interpretation was given. The HOSPERSA case was
discussed earlier in the introduction to unfair labour practices.88 The claim by
a nursing sister for additional remuneration for acting in the position of a matron
was held not to be a benefit but rather a salary or wage issue that was
not intended to be decided by arbitration. The Labour Appeal Court, as dis-
cussed previously, held in HOSPERSA that a benefit must arise ex contractu or ex
lege.89

________________________

79 Ibid.
80 S 213 of the LRA.
81 Fn 13.
82 At 1102G–1103A. See Protekon (fn 25) at paras 18–19 where Todd AJ suggests that the Labour
Court went too far in stating that a benefit is ‘something extra, apart from remuneration’.
83 [1998] 9 BLLR 942 (LC).
84 At para 22. See the discussion at para 1.2.6 ‘Disputes of right and disputes of interest’.
85 Sithole v Nogwaza NO & others (1999) 20 ILJ 2710 (LC).
86 At para 47.
87 (1999) 20 ILJ 1910 (LC).
88 Para 1.2.6 ‘Disputes of right and disputes of interest’, fn 21.
89 Fn 21 at para 9.
212 Law@work

The HOSPERSA case did not distinguish neatly between remuneration and
benefits and therefore did not really clarify what is meant by a benefit for the
purposes of section 186(2)(a). In the Protekon case, on the other hand, Todd AJ
found that ‘there is little doubt that remuneration in its statutory sense (as de-
fined in the LRA) is broad enough to encompass many forms of payment to
employees that may, in the ordinary use of language, properly be described as
“benefits”’90 and held further that:
[t]here is no closed list of employment benefits that fall within what is contem-
plated in section 186(2)(a). But there can be little doubt that most pension, med-
ical aid and similar schemes fall within the scope of that term. This is so despite the
fact that employer contributions to such schemes fall within the statutory definition
of remuneration.91
Rochelle le Roux has suggested that ‘this is a more realistic interpretation of
benefits, particularly in view of the modern approach of total cost of employ-
ment’ and goes on to reason that the ‘question is therefore not whether the
benefit is apart or not from remuneration, but whether the issue in dispute con-
cerns a demand by employees that certain benefits be granted or reinstated’
or whether ‘the issue in dispute is the fairness of the employer’s conduct’. The
former cannot be the subject of arbitration, but the latter can.92
In Protekon, the court pointed out that where disputes over benefits are con-
cerned, it seems that ‘there can be little objection to workers choosing to tackle
the employer in the collective bargaining arena rather than trying to demon-
strate unfairness in the sense contemplated in the unfair labour practice defin-
ition. The LRA does not appear to preclude them from doing both at the same
time’.93
Goldstein AJA in a minority judgment in Department of Justice v CCMA &
others94 questioned the decision in HOSPERSA that only those rights that arose
out of contract or from the law could be benefits and argued that ‘[i]f that
were so, the provision would have been redundant since such rights would
have been enforceable in the absence of item 2(1)(b)’. The judge suggested
that the legislature intended rather to create a statutory right to fair treatment
where the provision of benefits was concerned. In Protekon, the court agreed
with this assertion.95
Todd AJ also examined the nature of employer discretion, particularly in benefit
schemes, such as pension funds and medical aid schemes, and where ‘the em-
ployer’s obligation frequently extends beyond the simple payment of money to

________________________

90 See Protekon (fn 25) at para 19.

91 Fn 25 at para 20. See also Younghusband v Deca Contractors (SA) Pension Fund and its
Trustees (1999) 20 ILJ 1640 (PFA) at 1657I–1658E.
92 Le Roux ‘The Anatomy of a Benefit: A Labyrinthine Enquiry’ (2006) 27 ILJ 53 at 61.
93 Protekon (fn 25) at para 25. See also Le Roux (fn 92) at 61–62: ‘While it is correct that the
LRA does not preclude an all-out offensive of this nature, it is in contrast with the judge’s
earlier comments that employees have a choice between the two routes’.
94 (2004) 25 ILJ 248 (LAC) at para 14.
95 Protekon (fn 25) at para 32.
Unfair labour practices 213

the employee or a third party in return for services rendered by the employee’.
The court held that:96
Employer obligations are typically regulated by separate policies or rules. In many
instances the employer enjoys a range of discretionary powers in terms of those
policies or rules. The legislature has clearly considered it necessary to regulate em-
ployer conduct in those circumstances by superimposing a duty of fairness irrespect-
ive of whether that duty exists expressly or impliedly in the contractual provisions
that establish the benefit.
Without detracting from the wider approach to ‘benefits’, the court also dis-
cussed in some detail the fact that a dispute dealing with the fairness of the
employer’s conduct in relation to a benefit may be referred to arbitration while
a dispute concerning the employer’s refusal to grant a certain benefit or to re-
instate a benefit cannot.97
Le Roux, in her analysis of the Protekon case, generally comes out in favour of
the judgment as adopting a more meaningful approach to the question of
what constitutes a benefit and (correctly) focuses on the employer’s conduct.98
In Mputle and Neotel (Pty) Ltd99 the employee’s performance rating was mod-
erated so that she did not get a bonus or a salary increase. The arbitrator held
that the employer failed to comply with its own policy regarding performance
rating (by implication also the provision of ‘benefits’, namely the bonus and
salary increase) and the conduct was therefore procedurally unfair.
The Labour Appeal Court has had an opportunity to provide clarity on the
definition of benefit. In Apollo Tyres South Africa (Pty) Ltd v Commission for Con-
ciliation, Mediation and Arbitration & others100 the commissioner and the Labour
________________________

96 Protekon (fn 25) at paras 34–35. See also Cheadle ‘Regulated Flexibility: Revisiting the LRA
and the BCEA’ (2006) 27 ILJ 663 where he suggests that what is at stake in the concept of
the unfair labour practice is judicial regulation of the exercise of employer power.
Cheadle states that not all employer powers have been enumerated in s 186(2) and that
it is unclear what the policy considerations were behind including some powers but not
others (at para 41). Cheadle argues further that ‘[i]t is not that I believe that employers
should not act fairly but that the mechanism for ensuring fairness should not be judicial
review but collective bargaining and structured worker participation. In other words the
constitutional imperative for fair labour practices is sometimes set as standards and other
times achieved through structures of social dialogue’ (at para 43).
97 At paras 56–60.
98 Le Roux (fn 92) at 63–64. For an overview of the relevant debate and case law, refer to
IMATU obo Verster v Umhlathuze Municipality [2011] 9 BLLR 882 (LC).
99 (2017) 38 ILJ 263 (CCMA).
100 [2013] 5 BLLR 434 (LAC). The employer had refused to include the 49-year-old employee
in an early-retirement scheme for employees from the age of 46 to 59 because only em-
ployees from the age of 55 were eligible without any further qualification on grounds of ill
health. The court said that ‘the better approach would be to interpret the term benefit to
include a right or entitlement to which the employee is entitled (ex contractu or ex lege
including rights judicially created) as well as an advantage or privilege which has been
offered or granted to an employee in terms of a policy or practice subject to the em-
ployer’s discretion. In my judgment ‘benefit’ in section 186(2)(a) of the Act means existing
advantages or privileges to which an employee is entitled as a right or granted in terms
of a policy or practice subject to the employer’s discretion’ (at para 50). See also Galane
and Green Stone Civils CC [2015] 1 BALR 60 (CCMA) where it was confirmed that the
continued on next page
214 Law@work

Court had held that an early-retirement scheme did not constitute a benefit for
the purposes of the definition of unfair labour practice. The Labour Appeal
Court took a different view, namely that a benefit in the context of an unfair
labour practice should be interpreted as including any benefit to which the
employee is entitled:
l as a result of a contract of employment;
l as a result of a judicial creation; or
l in terms of a policy or practice subject to the employer’s discretion.
It would seem then that employees who claim that the employer committed an
unfair labour practice by not granting a benefit do not need to prove a right to
the benefit in terms of a contract or otherwise. An employer who denies the
benefit must show that there was a valid reason for excluding the employee
from the benefit. In Apollo Tyres, the employer failed to provide a valid reason
why the employee could not be included in an early-retirement scheme and
was therefore found to have committed an unfair labour practice. In addition,
when an employee claims a contractual or other right to the benefit, proceed-
ings in terms of which an unfair labour practice is claimed are competent.
Lastly, an employee who alleges that an employer acted unfairly in exercising
its discretion in terms of an employment policy or practice to refuse a benefit
may also pursue an unfair labour practice claim based on past practice or
on the terms of that policy. The employer will have to show that it did not act
unfairly.
This approach was followed in United Association of South Africa obo Mem-
bers/De Keur Landgoed (Edms) Bpk.101 The commissioner found that free trans-
port to and from work, which transport the employer had provided for 15 years,
constituted a benefit and not just a discretionary travel allowance. Con-
sequently, the unfair discontinuation of that transport was an unfair labour
practice.102
Being excluded from a pay progression policy has been found to constitute a
‘benefit’ and thus an unfair labour practice,103 as was the case with payment for
________________________

employee was neither on short time nor suspended but he was prevented from tendering
his services and getting paid. Being put on indefinite short time could involve a ‘benefit’
in terms of the extended meaning of a benefit in Apollo Tyres. In SA Police Service v
Gebashe & others (2016) 36 ILJ 1628 (LAC), the employer’s refusal to upgrade the posi-
tions of the employees were held to constitute a ‘benefit’.
101 [2014] 7 BALR 738 (CCMA). See also South African Revenue Services v Ntshintshi & others
[2013] 9 BLLR 923 (LC) regarding the refusal of SARS to pay a travel allowance. In
Trans-Caledon Tunnel Authority v CCMA & others [2013] 9 BLLR 934 (LC) the court held
that the CCMA had jurisdiction to entertain a matter concerning the employer’s refusal
to pay the respondent employee a performance bonus.
102 The CCMA ordered the employer to continue the benefit because the long-standing
practice of providing it, the absence of any information making it clear to the employees
that the benefit was gratuitous and subject to removal at the discretion of the employer,
and the definite result that removal of the benefit would have of decreasing the em-
ployees’ salary would make such removal an unfair labour practice.
103 Western Cape Gambling & Racing Board v CCMA & others (2015) 36 ILJ 2166 (LC).
Unfair labour practices 215

time off in lieu of a public holiday.104 Moreover, deductions from an employee’s

accrued leave pay to make up his ‘salary’ while he was at home on standby
(the employee was a pilot waiting to resume his flight duties pending the con-
clusion of a collective agreement) was found to constitute an unfair labour
practice in SA Airways (Pty) Ltd v Jansen van Vuuren & another.105 In Konig-
kramer and National Regulator for Compulsory Specifications106 it was found
that after a section 197 transfer, the new employer was bound by the terms and
conditions of the employment contract, including the acting allowance policy.
Therefore the employee who acted in a more senior position was entitled to an
acting allowance for the entire period, as the policy did not require the post to
be on higher level.
Le Roux has argued that while Apollo Tyres ‘diluted’ the importance of the
difference between interest and rights disputes and between remuneration and
benefits, it did not remove the relevance of contract in the context of unfair
labour practices.107 The approach in Apollo Tyres was confirmed in South Afri-
can Airways108 in which the Labour Appeal Court held that in terms of the de-
cision in Apollo Tyres accumulated leave pay was a benefit.109 The narrow
interpretation in the HOSPERSA case had limited the definition of a benefit, but
following the decisions of the Labour Appeal Court in the Apollo and South
African Airways cases, many more disputes about benefits have come before
commissioners, adjudicators and judges.110

7 Unfair disciplinary action short of dismissal

The second part of the definition, section 186(2)(b), deals with ‘the unfair sus-
pension of an employee or any other unfair disciplinary action short of dismissal
in respect of an employee’.

7.1 Suspension
Suspensions are expressly listed and arguably the most problematic actions
under this section. Suspension could be a disciplinary sanction, in other words
the outcome of a disciplinary enquiry could result in suspension as a penalty.111
On the other hand, a precautionary suspension could be effected pending a
________________________

104 Mawethu Civils (Pty) Ltd & another v National Union of Mineworkers [2016] 7 BLLR 661
(LAC).
105 (2014) 35 ILJ 2774 (LAC).
106 (2015) 36 2421 (CCMA).
107 Le Roux ‘Benefits: Have We Found the Way Out of the Labyrinth?’ (2015) 36 ILJ 888.
108 Fn 105.
109 See also Aucamp v SARS (2014) 35 ILJ 1217 (LC) in which it was held that a bonus can be
a benefit and Thiso & others v Moodley NO & others (2015) 36 ILJ 1628 (LC) regarding job
grading.
110 See Smit & Le Roux ‘Employee “benefits” and the unfair labour practice’ (2015) 24(10)
CLL 92 for a detailed discussion on this topic.
111 See Koka v Director-General: Provincial Administration North West Government [1997] 7
BLLR 874 (LC).
216 Law@work

disciplinary enquiry.112 In the latter instance, the suspension is effected to allow

an investigation to be conducted and to enable the smooth and timeous
completion of such proceedings.113 A suspension pending a disciplinary inquiry
is not meant to be punitive as the allegation of misconduct has not been
proved.114 Both types of suspension fall within the scope of section 186, and an
arbitrator may determine the fairness of such suspensions.
The case law indicates that for a suspension to be considered fair, it is neces-
sary that at least five conditions be met:115
l the relevant disciplinary code should be followed;
l the suspension is not to be used to punish the employee (as already men-
tioned above);
l the employee should be informed of the reason for the suspension;
l the employee should be informed of the length (which should not be un-
reasonable) of the suspension; and
l the employee should be paid for the period in full.
Regarding the last requirement, it has been held that where an employee
requests the postponement of a disciplinary inquiry, an employer does not have
to pay such employee from the date of such postponement.116 On the other
hand, where the period of suspension has been extended due to a lack of
urgency on the part of the employer in conducting its investigation, a solatium
has been awarded to the suspended employee.117 Although employees who
are suspended are normally entitled to their full pay pending disciplinary action,

________________________

112 See Sajid v Mohamed NO & others [1999] 11 BLLR 1175 (LC); Bagarette & others v Per-
forming Arts Centre of the Free State & others (2008) 29 ILJ 2907 (LC); Tsietsi v City of Ma-
tlosana Local Municipality & another (2015) 36 ILJ 2158 (LC); Mere v Tswaing Local
Municipality & another (2015) 36 ILJ 3094 (LC).
113 As was the case in Phutiyagae v Tswaing Local Municipality [2006] JOL 17477 (LC) where
the court stated that as the applicant had been suspended on full pay and the suspen-
sion was necessary to conduct the investigation into alleged misconduct, the application
to have the suspension set aside, had to be dismissed. See Legodi & others and Northern
Cape Provincial Legislature (2012) 33 ILJ 2213 (CCMA) where suspension was found fair
because the senior suspended employees posed a threat to other employees (including
that of the intimidation of junior staff) and property.
114 See PSA obo Matemane v Department of Education, Arts, Culture and Sport [2005] 5
BALR 555 (CCMA); Sibiya and Mhlathuze Water (2008) 29 ILJ 2633 (CCMA); Bessie and
University of KwaZulu-Natal (2013) 34 ILJ 2130 (CCMA); Themba and African Meter Read-
ing (2013) 34 ILJ 2159 (CCMA). Similarly, a suspension without pay can only be used as a
penalty after the employee is found guilty at a disciplinary enquiry and not pending the
enquiry.
115 See Nkosi v Embhuleni Tribal Authority [2007] JOL 19165 (CCMA); Sibiya and Mhlathuze
Water (fn 114); Sappi Forests (Pty) Ltd v CCMA & others (2009) 30 ILJ 1140 (LC).
116 SAEWA obo members v Aberdare Cables [2007] 2 BALR 106 (MEIBC); Sappi Forests (Pty)
Ltd v CCMA & others (fn 115).
117 See Daniels and Robben Island Museum (2010) 31 ILJ 1959 (CCMA).
Unfair labour practices 217

to make this principle applicable in situations where the suspension is extended

at the request of the employee would be unfair to employers.118
A suspension for an unreasonably long period is an unfair labour practice. In
Minister of Labour v General Public Service Sectoral Bargaining Council & others119
the Labour Court, in a review application, considered the suspension of an
employee for a period far in excess of that permitted by the relevant discip-
linary code. The court held that the suspension was unfair. The employee, who
was then Assistant Director: Information Technology, was suspended in 2002. The
charges related to alleged nepotism, sexual harassment and ‘self-enrichment’.
However, two years later the suspension was uplifted and he resumed his duties.
Two months after resuming his duties, the employee was again suspended
pending the investigation of allegations of fraud and corruption. The arbitrator
ruled that the suspension was unfair, and ordered the applicant to uplift it with
immediate effect. The applicant failed to do so and instead convened a dis-
ciplinary hearing, called that hearing off, and then launched an application for
review of the arbitration award. The court could find no reason why the suspen-
sion should not constitute an unfair labour practice. The court’s finding was
founded on the applicable disciplinary code that if an employee is suspended
pending disciplinary action, a hearing should be convened within 60 days and
the presiding officer must then decide whether a postponement should be
granted.120
Similarly, in Mapulane v Madibeng Local Municipality & another,121 the em-
ployee had been suspended pending a disciplinary enquiry for months. The sus-
pension was lifted by the Labour Court. Shortly after the employee resumed
work, he was suspended again. About a month-and-a-half later the employee
was handed a charge sheet and a disciplinary hearing was held. The applicant
(being overseas) was represented by his attorney and the enquiry was post-
poned sine die. The applicant applied to the Labour Court for an order de-
claring the extended suspension unlawful on the basis that his contract stated
that in the case of a precautionary suspension, a disciplinary enquiry had to be
convened within 60 days, failing which the suspension would lapse, unless the
chairperson of the enquiry extended the suspension. The court found that this
provision did not mean that the suspension could not be extended beyond a
period of 60 days.122 In Burger and SA Post Office Ltd 123 the commissioner found
________________________

118 See Msipho and Plasma Cut [2005] 26 ILJ 2276 (BCA) where it was held that it would be
unfair to hold an employer responsible for an employee’s actions. Further if this were to be
the case, employees would find reason to delay the disciplinary proceedings as it would
always be at the employer’s cost.
119 [2007] 5 BLLR 467 (LC). See also Legodi & others and Northern Cape Provincial Legislature
(fn 113).
120 In Ngwenya v Premier of KwaZulu-Natal [2001] 8 BLLR 924 (LC), the court held that an em-
ployee may not be kept indefinitely on suspension, even with full pay, pending disciplinary
action.
121 [2010] 6 BLLR 672 (LC).
122 Ibid at paras 30–31.
123 (2008) 29 ILJ 2305 (CCMA).
218 Law@work

that suspension usually prejudices the alleged offender psychologically and in

terms of future job prospects. The commissioner supported the view that sus-
pension is the employment equivalent of arrest.124 In this instance the charge
against the employee was extremely vague, did not disclose any misconduct
and the suspension was extended unduly.
Long periods of suspension on full pay pending investigations or disciplinary
enquiries have been criticised severely by the courts recently. For example, in
Heyneke v Umhlatuze Municipality 125 the court cautioned that:
Protracted . . . suspension on full pay pending investigations or disciplinary actions
is a prevalent practice, especially in publicly funded entities. This practice is a sign
of weak, indecisive management that cannot diagnose problems and find solu-
tions efficiently. These inefficiencies impact on both taxpayers and shareholders
alike, and not on the private pockets of the management of public organizations;
consequently, the incentive to finalize investigations and disciplinary procedures is
weak. This practice has to stop.126
The court stated that, apart from inefficiencies by management delaying pro-
cesses, internal procedures such as meetings and mandating systems of organ-
isations counter the expeditious dispute resolution system of the LRA. And, while
critics are quick to blame the LRA for delays, closer scrutiny in many cases shows
that fault lies ‘mainly in the internal systems of organizations and the way inves-
tigators and managers practice labour law’. Moreover, in public employment,
particularly, political factionalism also delays conflict resolution.127
The court suggested that management and labour would have to find effect-
ive ways of curtailing long periods of suspension.
In Long v SA Breweries (Pty) Ltd128 the Constitutional Court held that where a
suspension is precautionary and not punitive, there is no requirement to afford
the employee an opportunity to make representations before the employee
is suspended.129 The court considered that where the suspension is on full pay,
any cognisable prejudice to the employee would be ameliorated. Where a
contract, collective agreement, regulatory or other measure affords an em-
ployee the right to make representations prior to suspension, the employee
remains entitled to enforce that right other than by way of a claim of unfair
labour practice.

________________________

124 Ibid at 2317A–D.

125 (2010) 31 ILJ 2608 (LC).
126 Ibid at para 95.
127 Ibid at para 96.
128 (2019) 40 ILJ 965 (CC). This despite a significant number of decisions by the Labour Court
that acknowledged the right to some form of hearing or to make representations prior to
suspension, usually on the basis of the application of the audi alteram partem principle.
See eg, HOSPERSA & another v MEC for Health, Gauteng Government (2008) 29 ILJ 2769
(LC); Dince & others v Department of Education North West Province & others (2010) 31
ILJ 1193 (LC).
129 At para 24.
Unfair labour practices 219

7.2 Other disciplinary action

Section 186(2)(b) provides that ‘any other unfair disciplinary action short of dis-
missal in respect of an employee’ may constitute an unfair labour practice.
Examples of unfair disciplinary action short of dismissal include warnings130 (most
commonly come across in the case law), transfers,131 suspensions without pay132
and imposing short time on an employee as a form of discipline (and not by
reason of the operational requirements of the business).133 The mere scheduling
of a disciplinary enquiry, however, does not fall within the scope of ‘other discip-
linary action short of dismissal’ as contemplated by the Act.134
In Chemical, Energy, Paper, Printing, Wood & Allied Workers Union obo Two
Members and Leader Packaging 135 the applicant employees received final
written warnings because they gave false evidence in respect of procedures for
cleaning machines at the arbitration hearing of a co-employee. The latter was
dismissed for deliberately injuring himself on duty by cleaning machines single-
handedly, contrary to the respondent’s safety rules. The employees tried to
make out a case that the respondent punished them for merely giving evi-
dence on behalf of a co-employee and that such punishment constituted an
unfair labour practice within the meaning of ‘other disciplinary action short of
dismissal’. The employer contended that the employees were issued with final
________________________

130 See, eg, NCAWU obo Tobias & others/Pick ’n Pay Family Supermarket [2003] 12 BALR 1413
(CCMA); Chemical, Energy, Paper, Printing, Wood & Allied Workers Union obo Two Mem-
bers and Leader Packaging (2005) 26 ILJ 1129 (BCA), the latter which is discussed below;
Burger and SA Post Office Ltd (fn 123); Magson Speed Weave Manufacturing (Pty) Ltd
(2009) 30 ILJ 2196 (CCMA); Strategic Liquor Services v Mvumbi NO & others [2009] 9 BLLR
847 (LC); Matsi and JP Hugo Residence CC t/a Hoffe Park Accommodation Centre (2013)
34 ILJ 1018 (CCMA); National Union of Metalworkers of SA and Transnet SOC Ltd (2016) 37
ILJ 755 (BCA).
131 See Perumal v Minister of Safety & Security & others [2001] 8 BLLR 953 (LC); SATAWU obo
Machinini/Fidelity Security Services (Pty) Ltd [2011] 1 BALR 107 (CCMA); HOSPERSA & an-
other v MEC for Health, Gauteng Provincial Government [2008] 9 BLLR 861 (LC); Theron v
Minister of Correctional Services & another (2008) 29 ILJ 1275 (LC); Nxele v Chief Deputy
Commissioner, Corporate Services, Department of Correctional Services & others (fn 48);
SA Police Service v Salukazana & others (fn 49), all discussed below.
132 See NUMSA obo Fete & Formex Engineering (2003) 24 ILJ 2412 (BCA) where an employee
who had already received a written warning for not achieving production targets, was
suspended without pay for failing to achieve further targets as agreed to in a collective
agreement. Such disciplinary action was found not to constitute unfair conduct by the
employer in the circumstances. See also Sibiya and Mhlathuze Water (fn 120); Sappi Forests
(Pty) Ltd v CCMA & others (fn 114); University of SA v Solidarity obo Marshall & others
(2009) 30 ILJ 2146 (LC); Harley v Bacarac Trading 39 (Pty) Ltd (2009) 30 ILJ 2085 (LC);
Mdamba and Masibambane Recruitment (2009) 30 ILJ 2200 (CCMA); Police & Prisons
Civil Rights Union obo Sephanda & another v Provincial Commissioner, SA Police Service,
Gauteng Province & another (2012) 33 ILJ 2110 (LC). In the last-mentioned case the court
found suspension without pay after the disciplinary enquiry had already commenced a
‘drastic’ measure. In addition, the notice of suspension stated no precautionary purpose.
133 See Govender v Dennis Port (Pty) Ltd (fn 14); Galane and Green Stone Civils CC (fn 100).
134 See IMATU obo Falck & another/City of Cape Town (Helderberg Administration) [2003] 3
BALR 298 (CCMA).
135 Fn 130.
220 Law@work

written warnings for giving false evidence and thus acting dishonestly against
the employer. It was found that although employees were entitled to give evi-
dence on behalf of their co-employees at disciplinary and/or arbitration hear-
ings, they bore the responsibility of presenting truthful testimony. Where employ-
ees lie under oath, an employer was entitled to take disciplinary steps against
such employees. On the evidence it was found that the respondent had proven
on a balance of probabilities that the employees were guilty of presenting false
evidence under oath and that the sanction of a final written warning for their
dishonest acts was fair in the circumstances. Such action did not constitute an
unfair labour practice.
In National Union of Metalworkers of SA and Transnet SOC Ltd,136 members of
non-recognised unions wore union T-shirts to work and received final written
warnings for this. The arbitrator held that the employer was entitled to make
workplace rules which would prevent undermining relationships with recognised
unions, establish order and ensure a productive working environment. The final
written warnings did not constitute unfair labour practices.
More problematic instances of unfair disciplinary action short of dismissal are
those relating to transfers. In Perumal v Minister of Safety & Security & others137 it
was confirmed that if employees allege that they were transferred for discip-
linary reasons, such transfers would fall within the scope of section 186(2)(b). In
SATAWU obo Machinini/Fidelity Security Services (Pty) Ltd 138 a transfer which was
not dealt with in terms of an applicable collective agreement has been held to
be unfair.
Importantly, in HOSPERSA & another v MEC for Health, Gauteng Provincial
Government 139 the court held that an employee should be afforded a hearing
before he is transferred for reasons relating to misconduct.140 In Nxele v Chief
Deputy Commissioner, Corporate Services, Department of Correctional Services
& others141 the court found that a transfer of an employee by an employer
(without following its own transfer policy) and which resulted in a loss of the em-
ployee’s status, duties and responsibilities, actually constituted a demotion since
the ‘transferred’ position was considerably less than that of his previous position.
Moreover, the employee did not consent to the transfer and he was not able to
make representations. The ‘transfer’ was found to be invalid, void and of no
legal effect.142

________________________

136 Fn 130.
137 Fn 131.
138 Fn 131.
139 Fn 128.
140 At para 24.
141 Fn 48.
142 See also Theron v Minister of Correctional Services & another (fn 131), and SA Police Ser-
vice v Salukazana & others (fn 49), where in a case similar to Nxele (fn 48), an employee
was transferred to another area which led to a change in his conditions of employment
and a reduction in his status and responsibilities. The court held that such a transfer
amounted to a ‘demotion’ and thus constituted an unfair labour practice (at para 23).
Unfair labour practices 221

8 Refusal to reinstate or re-employ in terms of any agreement

As noted above, an existing employment relationship is a prerequisite for any
unfair labour practice claim. However, former employees have a claim under
section 186(2)(c). That section provides that when an employer fails or refuses to
reinstate or re-employ a former employee in terms of any agreement, the failure
or refusal constitutes an unfair labour practice. From the wording of this section
it is clear that to establish an unfair labour practice, five requirements must be
satisfied:
l the employee must have been previously employed by the employer;
l an agreement (in other words, not only a collective agreement) on re-
engagement is a prerequisite (irrespective whether the agreement has been
concluded during the employment relationship or after its termination);143
l a suitable vacancy must exist;144
l the employer must have failed or refused to reinstate or re-employ the (ex-)
employee in terms of the agreement; and
l the time period within which to reinstate an employee should be reasonably
practical.145
All five requirements will entail factual enquiries, the outcome of which would
depend on the circumstances of each case. It appears that the second broad
requirement of ‘any’ agreement may in principle be found in a binding agree-
ment of:
l an individual nature – in writing or orally – between an employee and an
employer which contains a clause of re-engagement;146 and
l a collective nature, which contains a clause of re-engagement.147
________________________

143 Agreements to re-employ may take on many forms ranging from a loose informal under-
standing to a formal binding agreement – failure to re-employ in the latter circumstances
will constitute an unfair labour practice (see Perumall and Saficon Industrial Equipment
(Pty) Ltd t/a Toyota Forklifts (2011) 32 ILJ 1011 (BCA) at 1021D–E).
144 The operation of an agreement is also dependent on the existence of a suitable vacancy,
which in turn depends on the circumstances of each case (see Perumall and Saficon In-
dustrial Equipment (Pty) Ltd t/a Toyota Forklifts (fn 143) at 1021G). Applicants therefore
have to show that they are suitably qualified for a specific vacancy (at 1021G–H).
145 It would not be reasonably practical to reinstate an employee years after he or she had
been retrenched (see Perumall and Saficon Industrial Equipment (Pty) Ltd t/a Toyota
Forklifts (fn 143) at 1022B–C). In this case the applicant conceded that a ‘reasonable sun-
set period’ of 6 months would be fair.
146 A mere ‘invitation’ to consult on future re-employment does not constitute an agreement
(see Perumall and Saficon Industrial Equipment (Pty) Ltd t/a Toyota Forklifts (fn 143) at 1022A).
147 The issue of exact compliance with an agreement came to the fore in NUMSA obo Khanye
& another v Havco Manufacturing (Pty) Ltd (2003) 24 ILJ 1764 (BCA). In this instance the
applicable bargaining council agreement required the employer to offer retrenched
employees (of the preceding 36 months) re-employment should suitable vacancies occur.
The employer made an offer to re-employ the employees but only for a fixed term and
on slightly lower wages than what they were paid whilst in employment. Although the evi-
dence showed that the employees accepted the offer, they failed to report for work. The
arbitrator found that the employer had discharged its obligations in terms of the agree-
ment in a fair and proper manner in offering the employees re-employment on those terms.
222 Law@work

SA Commercial Catering & Allied Workers Union obo Afrika & Swartz v Bredas-
dorp Spar 148 illustrates the situation where the agreement to re-engage was in
the form of a settlement. In this instance, two employees engaged as security
guards were dismissed for misconduct. During arbitration proceedings, the par-
ties reached a settlement agreement to the effect that the employer would ‘re-
engage’ the employees with full recognition of past service and two months’
back pay. The employees tendered their services on the date agreed only to
find that they were to be retrenched because the employer has contracted out
its security department. The CCMA held that the employer had complied with
the settlement agreement to re-engage the employees and had thus not com-
mitted an unfair labour practice. The dispute about the justification of the re-
trenchments was found to be a different dispute which the CCMA did not have
jurisdiction over, but rather the Labour Court.
In April v Gen-Tech Engineering Services CC 149 the agreement to re-engage
was contained in a ‘retrenchment notice’. The applicant, a driver at the re-
spondent company, was dismissed on the basis of operational requirements.
The retrenchment notice stated that if a position of driver became available
subsequently, or if the circumstances of the business changed in the following
year, the company would investigate the possibility of employment for the
applicant. Within two months of the applicant’s retrenchment the respondent
employed another person as a driver. The arbitrator held that the provisions of
the retrenchment notice were binding and that it would have been reasonable
to expect the company to investigate the prospects of re-employing the appli-
cant. There was no evidence to suggest that the company had attempted to
adhere to the provisions of the retrenchment notice or the ‘rehiring’ agreement.
This failure amounted to an unfair labour practice.

9 Occupational detriment on account of a protected

disclosure
9.1 Introduction
At the turn of the century many countries enacted legislation to encourage
‘whistle-blowing’ and disclosure of information in order to prevent what was
becoming a global epidemic of corruption in both private and public sectors.
South Africa was no exception and the Protected Disclosures Act (PDA) was
passed in 2000.150 In South Africa there was no clear common-law or statutory
provision to protect employees who disclosed information regarding the irregu-
lar or corrupt activities of their employers. This made statutory intervention desir-
able. The PDA, focusing as it did on the employment relationship, necessitated
an amendment to the LRA. The amendments to the LRA in 2002 therefore ex-
tended the definition of an unfair labour practice, in section 186(2), to include
an ‘occupational detriment’ (other than a dismissal) and made any dismissal in
________________________

148 (1998) 19 ILJ 947 (CCMA).

149 (2005) 26 ILJ 407 (BCA).
150 Act 26 of 2000.
Unfair labour practices 223

such circumstances automatically unfair.151 In an attempt to eradicate corrup-

tion in the workplace the PDA balances the right to freedom of speech and
protection of those employees who make disclosures in good faith against pos-
sible reputational harm to employers.
In the preamble to the Act it is stated that the PDA promotes ‘a culture of
openness and accountability without fear of reprisal’ and ‘the eradication of
criminal and other conduct’.152 Section 3 of the PDA further provides that ‘No
employee may be subjected to any occupational detriment by his or her em-
ployer on account, or partly on account, of having made a protected dis-
closure’.
To further protect employees the Act voids any provision in a contract of em-
ployment or other agreement between the employer and the employee, which
purports to:153
l exclude any provision of the Act; or
l preclude the employee from making a protected disclosure; or
l alternatively, if it has the effect of discouraging an employee from making a
protected disclosure.
The PDA is very obviously and intentionally orientated towards the specific pro-
tection of employees and there has been some criticism of this particular restric-
tion. In the case of Parliament of the RSA v Charlton154 the CFO of Parliament
made disclosures about MPs who had abused travel allowances and the MPs
were subsequently dismissed. The Labour Appeal Court held that MPs were not
employers of parliamentary staff155 and this brought into question the jurisdiction
of the various forums set up by the LRA.156 The court held that MPs were excluded
from the LRA and the PDA as they were not the employers of the respondent,
nor were they co-employees of the respondent.157 The issue of whether the PDA
should be extended beyond the employment relationship is a moot point.

9.2 Key concepts

Key concepts relevant to an understanding of the parameters of permissible
whistle-blowing are those of ‘occupational detriment’, a ‘disclosure’, a ‘pro-
tected disclosure’, and a ‘general protected disclosure’.

________________________

151 Ss 186(2)(d) and 187(1)(h). Note that if an employee is dismissed on account of having
made a protected disclosure, and the dismissal is alleged to be automatically unfair in
terms of s 187(1)(h) of the LRA, the employee must follow the procedure set out in ch VIII
of the LRA (see ch 9).
152 Preamble to the PDA.
153 S 2(3)(a) and (b) of the PDA.
154 [2010] 10 BLLR 1024 (LAC).
155 Ibid at para 29.
156 Ibid at paras 34–37.
157 Ibid at paras 33–37. The LAC held that the case should rather have been referred to
statutory arbitration.
224 Law@work

9.2.1 Occupational detriment

‘Occupational detriment’158 is defined in relation to the employee’s working en-
vironment and has been accorded a broad meaning. It includes being:
l subject to any disciplinary action;
l dismissed, suspended, demoted, harassed or intimidated;
l transferred against one’s will;
l refused a transfer or promotion;
l subject to a term of employment or retirement, which is altered or kept, al-
tered to the employee’s disadvantage;
l refused a reference or provided with an adverse reference;
l denied appointment to any profession or office;
l threatened with any of the above actions; or
l otherwise adversely affected in respect of employment, a profession or office,
including employment opportunities and work security.

9.2.2 Disclosure
Similarly, a ‘disclosure’159 is widely defined to mean any disclosure of informa-
tion, regarding any conduct of an employer, or an employee of that employer,
made by any employee who has reason to believe160 that the information161

________________________

158 S 1(vi) of the PDA. See Independent Municipal & Allied Trade Union & another v City of
Matlosana Local Municipality & another (2014) 35 ILJ 2459 (LC).
159 S 1(i) of the PDA. See Van Alphen v Rheinmetall Denel Munition (Pty) Ltd (2013) 4 ILJ 3314
(LC).
160 This test contains both subjective and objective elements. The test is subjective in that the
employee who makes the disclosure has to hold the belief. It is objective in that the belief
has to be reasonable. Whether the belief is reasonable is a finding of fact based on what
is believed. This requirement cannot be equated to personal knowledge of the infor-
mation disclosed (Tshishonga v Minister of Justice & Constitutional Development & another
[2007] 4 BLLR 327 (LC) at 358G–360A).
161 Information includes facts but is not limited to these. By its nature, uncovering an impropriety
often starts with a suspicion. Information would include inferences and opinions based on
facts which show that the suspicion is reasonable and sufficient to warrant an investiga-
tion. Unsubstantiated rumours and ‘smelling a rat’ are not information. In the nature of
disclosures about improprieties, embarrassment follows. Embarrassment thus cannot dis-
qualify reports from being disclosures (Tshishonga v Minister of Justice & Constitutional De-
velopment & another (fn 160) at 357F–358A). Mere rumours, personal opinion, expressions
of subjectively held opinions or accusations will not constitute disclosures of information.
Some factual basis must be laid by the whistle-blower to justify the conclusion that the dis-
closure is based on information (see Communication Workers Union v Mobile Telephone
Networks (Pty) Ltd (2003) 24 ILJ 1670 (LC) at 1678B–C; 1678E–F). In Nxumalo v Minister of
Correctional Services & others (2016) 37 ILJ 177 (LC) a transcript (dealing with a proposed
transfer motivated by an illegitimate purpose and organised by an ‘important’ political
prisoner) was found not to contain information that disclosed any criminal or other mis-
conduct and could thus not be protected under the PDA. It was confirmed that the em-
ployee bears the onus to prove an entitlement to protection.
Unfair labour practices 225

concerned shows or tends to show162 one or more of the following improprie-

ties:163
l that a criminal offence has been committed, is being committed or is likely
to be committed;
l that a person has failed, is failing or is likely to fail to comply with any legal
obligation to which that person is subject;
l that a miscarriage of justice has occurred, is occurring or is likely to occur;
l that the health or safety of an individual has been, is being or is likely to be
endangered;
l that the environment has been, is being or is likely to be damaged;
l unfair discrimination as contemplated in the PEPUDA; or
l that any matter referred to above has been, is being or is likely to be deliber-
ately concealed.

9.2.3 Protected disclosure

A ‘protected disclosure’164 is defined to mean a disclosure made to specific per-
sons or bodies, or so-called ‘regulators’.165
The requirements for protected disclosures to specified regulators are as follows:
l to a legal adviser:166
any disclosure to a legal practitioner or to a person whose occupation in-
volves the giving of legal advice, and with the object of and in the course of
obtaining legal advice, is a protected disclosure;
l to an employer:167
any disclosure to an employer made in good faith168 and substantially in
accordance with any procedure prescribed or authorised by the employee’s
________________________

162 This refers to the standard of quality that the information must meet. Requiring the infor-
mation ‘to show or tend to show’ an impropriety implies that it would be sufficient if the
impropriety is only ‘likely’. That anticipates the possibility that no impropriety might ever
be committed or proven eventually. It also means that the impropriety can be less than a
probability but must be more than a mere possibility (Tshishonga v Minister of Justice &
Constitutional Development & another (fn 160) at 357G–358A).
163 This is irrespective of whether the impropriety occurred in South Africa or elsewhere or
whether the law applying to the impropriety is that of South Africa or of another country
(s 1(iv)).
164 Ss 1(ix)(a)–(d), 5, 6, 7, 8, 9 of the PDA.
165 Ss 5–8 of the PDA. In Beaurain v Martin NO & others (1) (2014) 35 ILJ 2443 (LC), it was held
that a disclosure made on Facebook was not protected as the disclosure was not made
in a reasonable manner.
166 S 5 of the PDA.
167 S 6 of the PDA.
168 The words ‘good faith’ have a core meaning of honesty (see Tshishonga v Minister of Just-
ice & Constitutional Development & another (fn 160) at 363A–B). Good faith is also a find-
ing of fact. All evidence has to be considered cumulatively for one to decide whether
there is good faith or an ulterior motive or, if there are mixed motives, what the dominant
motive is. Good faith is required to test the quality of the information. A malicious motive
continued on next page
226 Law@work

employer for reporting or remedying improprieties, or to the employer of the

employee where there is no procedure, is a protected disclosure;169
l to a member of Cabinet or a member of the Executive Council of a prov-
ince:170
any disclosure made in good faith171 to a member of Cabinet or of the
Executive Council of a province is a protected disclosure if the employee’s
employer is an individual or a body that has been appointed in terms of the
relevant legislation by such a member, or an organ of state falling within the
area of responsibility of a member;
l to the Public Protector or the Auditor-General:172
any disclosure made in good faith173 to the Public Protector, the Auditor-
General or another person or body prescribed for purposes of this section
and in respect of which the employee reasonably believes174 that:
– the relevant impropriety falls within any description of matters which in
the ordinary course are dealt with by that person or body; and
– the information disclosed, and any allegation contained in it, are substan-
tially true;
is a protected disclosure.175
The definition of a protected disclosure does not require an employee to for-
mally request the recipient of the disclosure to conduct an investigation. It is

________________________

cannot disqualify the disclosure if the information is solid. If it did, the consequence would
be that a disclosure would be unprotected even if it benefits society. A malicious motive
may, however, affect the remedy awarded to the whistle-blower (at 364A–D). See also
Communication Workers Union v Mobile Telephone Networks (Pty) Ltd (fn 161), which fur-
ther refined the concept of good faith; Arbuthnot v SA Municipal Workers Union Provident
Fund (2012) 33 ILJ 584 (LC); SA Municipal Workers Union National Fund v Arbuthnot (2014)
35 ILJ 2434 (LAC); Potgieter v Tubatse Ferrochrome & others [2012] 5 BLLR 509 (LC); Pot-
gieter v Tubatse Ferrochrome & others (2014) 35 ILJ 2419 (LAC) where the court held that
the mere fact that disclosed information was of a sensitive nature or could result in repu-
tational damage to the employer could not deny the employee the protection granted
to whistle-blowers or make the employment relationship intolerable; Lowies v University of
Johannesburg [2014] JOL 32066 (LC); Magagane v MTN SA (Pty) Ltd & another [2013] 8
BLLR 768 (LC); (2010) 31 ILJ 322 (SCA); Beaurain v Martin NO & others (1) (fn 165).
169 Any employee who in accordance with a procedure authorised by his or her employer,
makes a disclosure to a person other than his or her employer, is deemed for purposes of
the PDA to be making the disclosure to his or her employer.
170 S 7 of the PDA.
171 See fn 168.
172 S 8 of the PDA.
173 See fn 168.
174 The reasonableness of the belief relates to the information being substantially true (see
Tshishonga v Minister of Justice & Constitutional Development & another (fn 160) at 364D–E).
175 S 8(1) of the PDA. If a person or body referred to in s 8(1) is of the opinion that the matter
would be dealt with more appropriately by another person or body, the necessary assist-
ance must be rendered to the employee to enable the latter to comply with the section
(s 8(2)).
Unfair labour practices 227

implicit in the act of reporting irregularities to a particular recipient that an in-

vestigation must follow.176
In the case of City of Tshwane Metropolitan Municipality v Engineering Coun-
cil of SA & another,177 the Supreme Court of Appeal held that letters sent to a
number of senior managers about serious safety concerns regarding the quality
of electricity in a dangerous power system control section were protected dis-
closures. The managing engineer who sent them did so in good faith. Further-
more, he reasonably believed the information disclosed was substantially true,
he was not acting for personal gain and no action was taken within a reason-
able period after the initial disclosure to management had been made. The
court was satisfied that the disclosure was of an exceptionally serious nature
and the managing engineer was therefore protected by the PDA against any
occupational detriment.178
A ‘general protected disclosure’179 is not made to a specified person or body.
A general protected disclosure is defined in section 9(1) as any disclosure made
in good faith180 by an employee who reasonably believes181 that the infor-
mation182 disclosed, and any allegation contained in it, is substantially true183
and who does not make the disclosure for the purposes of personal gain.184
A general protected disclosure is further qualified in two ways.
________________________

176 See Tshishonga v Minister of Justice & Constitutional Development & another (fn 160) at
362E–F.
177 (2010) 31 ILJ 322 (SCA).
178 Ibid at paras 43–51.
179 Ss 1(ix)(e) and 9 of the PDA. See, eg, Theron v Minister of Correctional Services & another
(fn 131).
180 See fn 182. In Tshishonga v Minister of Justice & Constitutional Development & another
(fn 160) the court held that by setting good faith as a specific requirement for a general
protected disclosure the legislature must have intended it to include something more
than reasonable belief and the absence of personal gain. An employee may reasonably
believe in the truth of the disclosure(s) and may gain nothing from making them, but his
or her good faith or motive would be questionable if the information does not disclose an
impropriety or if the disclosure is not aimed at remedying a wrong (at 364C–D).
181 The requirement of reasonable belief is more stringent in the context of determining
whether a disclosure is protected than in the context of what constitutes a disclosure (see
para 9.2.2 ‘Disclosure’). The reasonableness of the belief must relate to the information
being substantially true (Tshishonga v Minister of Justice & Constitutional Development &
another (fn 160) at 364E).
182 See fn 161 above.
183 The meaning of ‘substantially true’ in the context of a general protected disclosure must
lie closer to the ‘total’ than to a ‘trivial degree’ of truth. Information of both quality and
quantity will determine whether the disclosure is substantially true (Tshishonga v Minister of
Justice & Constitutional Development & another (fn 160) at 365G–H).
184 Excluding any reward payable in terms of any law (s 9(1)(b)). ‘Personal gain’ may include
any commercial or material benefit or advantage received by, or promised to the em-
ployee, as a quid pro quo for the disclosure, and any expectation by the employee of a
benefit or advantage that is not due in terms of any law. If the employee benefits inci-
dentally from the disclosure it will be protected provided that was not the purpose of
making the disclosure (Tshishonga v Minister of Justice & Constitutional Development &
another (fn 160) at 364E–F).
228 Law@work

l One or more of certain conditions must apply (section 9(1)(b)(i) read with
section 9(2)):
• at the time the disclosure is made, the employee must have reason to
believe that he or she will be subjected to occupational detriment if he or
she makes a disclosure to the employer;
• when no person or body is prescribed as the person or body to whom a
disclosure may be made, the employee making the disclosure has reason
to believe it likely that evidence relating to the impropriety will be con-
cealed or destroyed were the disclosure made to the employer;
• the employee making the disclosure has previously made a disclosure of
substantially the same information to his or her employer or a specified
person or body but no action was taken within a reasonable period after
the disclosure; or
• the impropriety is of an exceptionally serious nature.
l Making the disclosure must be reasonable in all the circumstances of the
case (section 9(1)(b)(ii) read with section 9(3)). In determining such reason-
ableness, consideration must be given to:
• the identity of the person to whom the disclosure is made;
• the seriousness of the impropriety;
• whether the impropriety is continuing or is likely to continue in future;
• whether the disclosure is made in breach of a duty of confidentiality of
the employer towards any other person;
• in a case where an employee has made a previous disclosure to his or her
employer or a specified person or body, any action that has been taken
by them, or might reasonably be expected to have been taken by them,
as a result of the previous disclosure;
• in a case where an employee has made a previous disclosure to his or her
employer, whether the employee has complied with any authorised pro-
cedure by the employer; and
• the public interest.
The three requirements of good faith, reasonable belief and no personal gain
set out in section 9(1) for a general protected disclosure overlap and are mutu-
ally reinforcing.185 A weakness in one can be compensated for by the others –
thus, a doubtful motive can be compensated for by a strong belief based on
sound information.
Each of the three requirements should be construed narrowly so as not to
defeat the objectives of the PDA namely eliminating crime, promoting account-
able governance and protecting employees against reprisals.186 This view is
strengthened by the fact that the disclosure furthermore has to be filtered
________________________

185 See Tshishonga v Minister of Justice & Constitutional Development & another (fn 160) at
365A.
186 At 365A–B. See also Radebe & another v Premier, Free State Province & others [2012] 12
BLLR 1246 (LAC).
Unfair labour practices 229

through two more tests namely it must meet one or more of the conditions set
out in section 9(2) and it must be reasonable to make the disclosure as assessed
against the criteria in section 9(3). These two tests shift the focus away from an
assessment of the employee’s good faith and the reasonableness of his or her
beliefs to ‘more tangible and objectively determinable facts’.187 A narrow
approach to section 9(1) could therefore ‘block’ the inquiry into facts that are
more easily ascertainable in terms of section 9(2) and (3) and into the alleged
impropriety and the retaliation.188
A defence that any one of the requirements in section 9 is lacking must be
specifically pleaded and proved.189 Deciding whether all the requirements are
met is a question of fact – the more serious the allegation, the more cogent the
proof must be. The threshold of proof required for each requirement must be
assessed from all the facts and on a case-by-case basis, but ultimately the
employer bears the burden of proving that it did not commit an unfair labour
practice.190
By way of summary, the requirements for disclosures are graded proportion-
ately to the risks of making the disclosure. The lowest threshold is set for dis-
closures to a legal adviser. Higher standards are set for disclosures made to an
employer and even higher standards once the disclosures go beyond the em-
ployer. The most stringent requirements are set for disclosures made public or to
bodies that are not prescribed.
All disclosures, except those made to legal advisers, must be made in good
faith. For disclosures made to specific regulators, the employee must believe
that the impropriety falls within the description of matters, which are dealt with
by such regulators, and the employee must reasonably believe that the infor-
mation is substantially true. This is not the case for disclosures to an employer.
General protected disclosures further require that the disclosure must not be
made for purposes of personal gain, be made only under certain circumstances
and that it must be reasonable in all the circumstances of the case to make the
disclosure.

9.3 Requirements for establishing an unfair labour practice based

on occupational detriment
It seems that three basic requirements have to be satisfied for an employee to
establish an unfair labour practice based on occupational detriment:
l an employee191 must have made a protected disclosure within the ambit of
the PDA;
l the employer must have taken action against the employee which amounts
to occupational detriment within the ambit of the PDA; and

________________________

187 At 365B–C.
188 At 365D.
189 Ibid.
190 At 365.
191 See Parliament of the RSA v Charlton (fn 154).
230 Law@work

l the detriment suffered must be on account of192 or partly on account of193

having made the protected disclosure – this implies a causal link194 between
the disclosure and the retaliating action by the employer.

10 Resolution of unfair labour practice disputes

Disputes about unfair labour practices must be referred in writing to a bargain-
ing council or, if no council has jurisdiction, to the CCMA for conciliation as a
first step in an endeavour to resolve the matter.195 The referral to conciliation
must be made within 90 days of the occurrence of the unfair labour practice, or
within 90 days of the date when the employee became aware of it.196 If con-
ciliation has failed and the council or CCMA has certified that the dispute re-
mains unresolved, or if 30 days or any further period agreed to by the parties
has elapsed since the council or CCMA received the referral and the dispute
remains unresolved, the matter must, as a second step, be arbitrated by the
council or the CCMA at the request of the employee.197
If it is established that an employer has committed an unfair labour practice,
the arbitrator is given a wide discretion to determine the dispute on terms
deemed ‘reasonable’ which may include reinstatement, re-employment and
compensation.198 Compensation must be ‘just and equitable’ but is limited to
12 months’ remuneration.199
A dispute regarding a failure to promote may raise issues of discrimination,200
for example that the sex of the unsuccessful candidate contributed to the non-
promotion of such candidate. It seems that the bargaining council or CCMA will
retain jurisdiction to entertain the dispute if the formulation of such dispute
________________________

192 As stipulated by s 186(2)(d) of the LRA. See Theron v Minister of Correctional Services &
another (fn 131). See also Sekgobela v State Information Technology Agency (Pty) Ltd
(2008) 29 ILJ 1995 (LC) where the court found that the primary or principal reason for the
dismissal of the applicant, a manager, was the fact that he made a protected disclosure
about the respondent’s failure to adhere to tender procedures (and not misconduct as
alleged by the respondent) and that such dismissal was automatically unfair (at 2009E–G).
The fact that the respondent was a state organ entrusted with public funds and trusted
by the public to adhere to tender policies, exacerbated the matter. This was confirmed in
State Information Technology Agency (Pty) Ltd v Sekgobela [2012] 10 BLLR 1001 (LAC);
Independent Municipal & Allied Trade Union & another v City of Matlosana Local Munici-
pality & another (fn 158). See also ch 9.
193 As stipulated by s 3 of the PDA.
194 See Motingoe v Head of the Department, Northern Cape Department of Roads & Public
Works & others (2014) 35 ILJ 2492 (LC); Maqubela v SA Graduates Development Associ-
ation (2014) 35 ILJ 2479 (LC); Ngobeni v Minister of Communications & another (2014) 35
ILJ 2506 (LC).
195 S 191(1)(a)(i) and (ii) of the LRA.
196 S 191(1)(b)(ii) of the LRA.
197 S 191(5)(a)(iv) of the LRA.
198 S 193(4) of the LRA.
199 S 194(4) of the LRA.
200 A dispute about alleged unfair discrimination must be referred to the Labour Court
(s 10(6) of the EEA) unless all parties agree to refer such dispute to arbitration.
Unfair labour practices 231

relates to the failure to promote in terms of the unfair labour practice definition
rather than a claim of discrimination per se.
Different procedures exist for unfair labour practice disputes related to both
protected disclosures and probation.
Disputes concerning a protected disclosure by an employee in terms of the
PDA may be referred to any court having jurisdiction, including the Labour
Court for appropriate relief or pursue any other process allowed or prescribed
by any law.201 The Labour Court held that the provisions of the PDA cannot be
impliedly waived by agreement to participate in a disciplinary hearing because
whistle-blowing is a matter of public interest.202 The Labour Court may make any
appropriate order to suit the circumstances of the case.203 The PDA further pro-
vides that any employee who has made a protected disclosure and who
reasonably believes that he or she may be adversely affected on account of
having made that disclosure, must at such employee’s request, and if reason-
ably possible or practicable, be transferred from the post occupied by him or
her at the time of the disclosure, to another post in the same or another division
of the employer.204 The terms and conditions of employment of such a transfer-
red employee may not be less favourable than those applicable immediately
before the transfer unless consent is given to this effect.205
A special ‘con-arb’ procedure exists for disputes about unfair labour practices
relating to probationary issues.206 This entails a single expedited process in which
arbitration is held immediately after certifying that the dispute remains un-
resolved.
Section 188A(11) of the LRA stipulates that if an employee alleges in good
faith that the holding of an inquiry contravenes the PDA, that employee or the
employer may require an enquiry to be conducted into allegations by the
employer into the conduct or capacity of the employee.207
While the LRA does not specify who bears the onus of proof in unfair labour
practice disputes, the PDA provides that ‘other occupational detriment’ (in
________________________

201 S 4(1) of the PDA. The PDA confirms that a dispute about an unfair labour practice re-
lating to occupational detriment (other than dismissal) must follow the procedure set out
in the LRA in that if the matter fails to be resolved through conciliation, it may be referred
to the Labour Court for adjudication (s 4(2)(b)).
202 See Randles v Chemical Specialities Ltd [2010] 7 BLLR 730 (LC).
203 See ss 191(13)(a) and 158(1) of the LRA and s 4(2)(b) of the PDA. It appears that, over
and above the remedies provided by the PDA, a dispute about an unfair labour practice
based on occupational detriment, may be instituted under the LRA (s 4(1) of the PDA).
See Young v Coega Development Corporation (Pty) Ltd (1) [2009] 6 BLLR 597 (EC) where
it was confirmed than an employee may choose to approach the High Court for a mat-
ter relating to the PDA.
204 S 4(3) of the PDA. Where the person making the disclosure is employed by an organ of
state, he or she must be transferred to another organ of state.
205 S 4(4) of the PDA.
206 S 191(5A)(b) of the LRA.
207 Letsoalo & another v Minister of Police & others; Sesing v Minister of Police & others [2016]
8 BLLR 793 (LC) at para 25–26. The aim of this provision is to ‘prevent spiralling collateral lit-
igation in cases in which a protected disclosure is alleged’.
232 Law@work

other words, occupational detriment other than dismissal) in breach of section 3

of the PDA, is ‘deemed’ to be an unfair labour practice under the LRA.208 This
implies that once the employee has established the occupational detriment
suffered by him or her to fall within the ambit of the PDA and on account of
having made the disclosure, an unfair labour practice has been established.
The employer may then show that its action was not unfair.

________________________

208 See s 4(2)(b) of the PDA.

9
Unfair dismissal – preliminary
topics

Page
1 Introduction ...................................................................................................... 235
2 What is a dismissal? ......................................................................................... 236
2.1 The statutory meaning of ‘dismissal’....................................................... 237
2.1.1 Termination of employment by the employer, with or
without notice ................................................................................. 237
2.1.2 Refusal or failure by an employer to renew a fixed-term
contract........................................................................................... 240
2.1.3 Refusal to allow an employee to resume work after
maternity leave .............................................................................. 243
2.1.4 Selective re-employment .............................................................. 244
2.1.5 Constructive dismissal .................................................................... 244
2.1.6 Transfer of a business...................................................................... 247
2.2 Other forms of termination of employment that are not
‘dismissals’ ................................................................................................. 248
2.2.1 Resignation...................................................................................... 248
2.2.2 Termination of a contract of employment by the effluxion
of time or the happening of a specified event .......................... 250
2.2.3 Reaching retirement age .............................................................. 251
2.2.4 Insolvency........................................................................................ 252
2.2.5 Mutual agreement ......................................................................... 253
2.2.6 Death ............................................................................................... 254
2.2.7 Supervening impossibility of performance .................................. 254
2.2.8 Other automatic terminations ...................................................... 255
3 Date of dismissal .............................................................................................. 256
4 Dispute resolution............................................................................................. 257
4.1 Referrals to arbitration .............................................................................. 257
4.2 Referrals to the Labour Court .................................................................. 258
4.3 Onus in dismissal disputes ........................................................................ 258

233
234 Law@work

Page
5 Remedies for unfair dismissal .......................................................................... 260
5.1 Introduction ............................................................................................... 260
5.2 Reinstatement or re-employment .......................................................... 262
5.3 Compensation .......................................................................................... 263
5.4 Procedure in the event of unfair retrenchments .................................. 267
Unfair dismissal – preliminary topics 235

1 Introduction
Until the early 1980s, there was no protection against unfair dismissal in South
Africa. If the employer gave the required notice of termination of employment,
the employee generally had no recourse, however unfair the reason for dis-
missal might have been. The principle of reciprocity required an employee to
give notice of termination of employment in terms of the contract for it to be
validly terminated. The basis of this principle, of course, was the assumed equality
in bargaining strength between employer and employee. However, in most in-
stances, this is a fiction. While the dismissal of an employee would rarely be of any
consequence to the employer, the consequences for the employee are serious.
For this reason, many countries adopted legislative measures to require em-
ployers to demonstrate a fair reason for the termination of an employee’s em-
ployment, and to observe some form of fair procedure prior to making a decision
to dismiss. The basis for this intervention is controversial. There are those who argue
that employees acquire rights to jobs, akin to the rights of ownership in prop-
erty.1 Others have argued that individual dignity and autonomy are the primary
justifications for unfair dismissal laws.2
At a higher level, unfair dismissal laws have been attacked on the basis that
they undermine the flexibility that is necessary in a globalised environment, and
thus inhibit the ability to raise levels of competitiveness. The rigidity of work secur-
ity protections has thus imposed a cost on the production and employment
efficiencies that is unwarranted. The contrary view is that protecting work security
can contribute to improved productive efficiency and innovative capacity,
and that protection against unfair terminations of employment, especially in the
case of retrenchments, can limit social costs to communities and contribute to
macro-economic stability.3
ILO Convention 158 regulates the termination of employment at the initiative
of the employer. The convention was adopted in 1982, and while not the most
widely ratified convention, it has had a profound effect on South African law.
First, the Industrial Court drew heavily on the convention during the 1980s when
it developed protection against unfair dismissal under the unfair labour practice
definition. Secondly, much of the wording of Chapter VIII of the LRA draws on
the convention. Thirdly, the courts have referred to the convention in interpret-
ing and applying the statutory protection against unfair dismissal.
In essence, the convention requires that the employment of a worker may not
be terminated unless there is a valid reason for the termination connected with
the capacity or conduct of the worker, or based on the operational require-
ments of the undertaking. The convention also lists reasons for termination that
do not constitute valid reasons for termination (the genesis of the ‘automatically

________________________

1 See Myers Ownership of Jobs: A Comparative Study (1964) and the discussion in Davies
Perspectives on Labour Law (2004) at 161–162.
2 See, eg, Collins Justice in Dismissal (1992).
3 ‘Protection against Unfair Dismissal’ General Survey ILO (1995) at 137–139.
236 Law@work

unfair dismissal’ in section 187 of the LRA), and provides a right to appeal against
termination of employment to an impartial body empowered to decide whether
the dismissal was justified. In the case of a dismissal for a reason based on the
employer’s operational requirements, additional requirements of consultation
are prescribed, as well as provision for payment of severance benefits in some
form.
Chapter VIII of the LRA largely codifies the unfair dismissal jurisprudence de-
veloped by the Industrial Court. More detailed codes of practice on dismissal
generally and in respect of operational requirements particularly, seek to fill in
the legislative gaps.

2 What is a dismissal?
The termination of an employment contract is not synonymous with the statutory
concept of dismissal. This chapter focuses, for the most part, on the law of unfair
dismissal. An employee claiming unfair dismissal must establish the existence of
a dismissal. If the fact of a dismissal is disputed, the employee bears the onus to
prove the existence of a dismissal.4 The definition of ‘dismissal’ contained in sec-
tion 186(1) of the LRA contains six elements, each of which is analysed below.
The statutory definition of dismissal is much broader than the common-law
concept of termination of employment, and includes a number of elements
that would not in the ordinary course be thought to be dismissals. For example,
a refusal by an employer to re-engage an employee, and even an employee’s
resignation may constitute dismissals in certain circumstances. Similarly, not
every termination of employment is a dismissal. For example, the expiry of an
employment contract entered into for a fixed period and a retirement both
have the effect of terminating employment, but neither, in itself, is a dismissal.5
If an employee succeeds in establishing the existence of a dismissal, it means
no more than the employee has been ‘dismissed’ for the purposes of the LRA.
The existence of a dismissal does not mean that the dismissal is necessarily unfair.
In the case of dismissals that are not automatically unfair, it generally remains for
the employer to establish that the dismissal was effected for a fair reason, after
following a fair procedure.6 A dismissal must therefore be both substantively and
procedurally fair in order to escape a finding of an unfair dismissal.

________________________

4 S 192(1) of the LRA.

5 In this chapter, the circumstances in which an employment contract might terminate
without there being a statutory dismissal are also considered, if only to more clearly draw
the line between such terminations and statutory dismissals.
6 See s 188(1) of the LRA, which provides that if a dismissal is not automatically unfair, it is
unfair if the employer fails to prove that the reason for dismissal is a fair reason related to
the employee’s conduct or capacity, or based on the employer’s operational require-
ments (ie, substantive fairness), and that the dismissal was effected in accordance with a
fair procedure (ie, procedural fairness). Accordingly, the Act lists at least three permissible
grounds for dismissal (see also ch 14 regarding termination of employment in the context
of closed shop agreements).
Unfair dismissal – preliminary topics 237

2.1 The statutory meaning of ‘dismissal’

2.1.1 Termination of employment by the employer, with or without notice
This is probably the most commonly understood form of termination of employ-
ment, termination at the initiative of the employer. Prior to the Labour Relations
Amendment Act 6 of 2014 (LRAA) the wording of the section limited its appli-
cation to the termination of contracts of employment and thus extended pro-
tection against unfair dismissal to only those persons who were employed in
terms of a common-law contract of employment. The effect of this limitation was
that not all persons who qualified as ‘employees’ for the purposes of the defin-
ition in section 213 of the LRA could claim to have been dismissed in the sense
contemplated in section 186(1)(a).7
The section has been amended to incorporate the termination of ‘employ-
ment’ by the employer (as opposed to the termination of a contract of employ-
ment), either summarily or by giving notice of intention to terminate. This may
not always require a direct act of giving notice or summarily terminating a con-
tract. The Labour Appeal Court has applied a broader interpretation of this
provision, and stated that what is necessary for there to be termination by the
employer was that the employer had ‘engaged in an act which brings the con-
tract of employment to an end in a manner recognised as valid by the law’.
The court held that the passing of a resolution to wind up a company satisfied
the requirements of the definition of dismissal, because it was an act under-
taken by the employer that had the effect of terminating the contracts of
employment of its employees.8 The Labour Court had previously given the term
________________________

7 See Bayat v Durban Institute of Technology (2006) 27 ILJ 188 (CCMA) where the applicant
was offered a position subject to the condition that he passes a probity check. It was held
that where the offer of employment is subject to a suspensive condition and where the
condition is not fulfilled there is no ‘dismissal’ as the employer may withdraw its conditional
offer of employment.
8 National Union of Leatherworkers v Barnard NO & another (2001) 22 ILJ 2290 (LAC), and
cited with approval in SA Post Office Ltd v Mampuele [2010] 10 BLLR 1052 (LAC) at
para 16. In the latter case the respondent was simultaneously appointed for a period of
five years as CEO and a member of the board of directors. In this instance the contract
expressly provided that membership of the board was a prerequisite to appointment as
CEO and that termination of board membership would lead to termination of the appoint-
ment as CEO. The CEO’s employment was terminated after the CEO was removed from
the board of directors as a result of a motion by the minister. Although the CEO could law-
fully be removed from the board, the ‘automatic termination’ provision in relation to his
employment was held to be void (at para 21): ‘Thus Mampuele, like any other employee,
enjoyed the right not to be unfairly dismissed or more appropriately unfairly removed. This
is more so since the Act was enacted to give effect to the right to fair labour practices
guaranteed in section 23(1) of the Constitution …. The right not to be unfairly dismissed is
not only essential to the enjoyment of this constitutional imperative but is one of the most
important manifestations thereof and further forms the foundation upon which the relevant
sections of the Act are erected and is consonant with the spirit and the letter of the Act’
(our emphasis). See Nogcantsi v Mnquma Local Municipality & others (2017) 38 ILJ 595
(LAC): ‘The employer (or the third party) in performing the act that results in the termin-
ation, must, at least, have directed its will to causing a dismissal. The latter consequence
must have been the object of its act’ (at para 32).
238 Law@work

‘employment contract’ in section 186 an extended meaning in order for it to be

consistent with section 23 of the Constitution and the objects of the LRA.9 This
approach has been given statutory expression in the LRAA.
In principle, this form of termination of employment (ie by the employer, with
or without notice), is quite easily established. In practice however, it is some-
times difficult, on the facts, to establish the existence of a dismissal. There might
be genuine ambiguity about whether the employer uttered words that could
objectively be construed as a dismissal, or whether an employee intended
to resign. In Council for Scientific and Industrial Research v Fijen,10 for example,
the employee wished to leave his employment and commenced negotiations
on a severance package. The negotiations became acrimonious, and the
employee advised management that the working relationship was ‘finished’
and that he did not want to continue in the employ of the CSIR. The CSIR
interpreted this statement as a repudiation of the employee’s contract, which
it accepted. When the employee claimed unfair dismissal, the CSIR argued that
it had not dismissed the employee, and that it was he who had ended
the working relationship. The Appellate Division, as it then was, held that in
the absence of ‘a clear and unambiguous intention not to go on with his con-
tract of employment’,11 there was no doubt that the employee had been dis-
missed.
In Ouwehand v Hout Bay Fishing Industries,12 the employee was told that it
was likely that the vessel of which he was the skipper would be decommissioned
and that ‘it would be better if he started looking for another job’. He sub-
sequently failed to report to his employer as requested and later claimed that
he had been unfairly retrenched. The employer argued that he had never been
dismissed. The Labour Court held that, on the facts, the employee had ‘walked
off the job’ and that there was no dismissal. The court held that it was incum-
bent on an employee claiming to have been dismissed to establish, on a bal-
ance of probabilities, ‘some overt act by the employer that is the proximate
cause of the termination of employment’.13
There is at least one decision by the Labour Appeal Court to indicate that
when an employee resigns in the heat of the moment and subsequently
retracts the resignation, a refusal by the employer to accept the retraction

________________________

9 Ndikumdavyi v Valkenberg Hospital & others [2012] 8 BLLR 795 (LC). This case dealt with
termination of the (lawful) services of a refugee whose contract of employment was void
ab initio because of his status. Termination of the employment relationship constituted
‘dismissal’ (see para 20). See also Southern Sun Hotel Interests (Pty) Ltd iro Southern Sun
Waterfront Hotel v CCMA & others [2011] 10 BLLR 1012 (LC).
10 [1996] 6 BLLR 685 (A).
11 At 691.
12 (2004) 25 ILJ 731 (LC).
13 At 735B.
Unfair dismissal – preliminary topics 239

constitutes a dismissal. In CEPPWAWU & another v Glass and Aluminium 2000

CC,14 the court held that:
If the second appellant did resign, which is not entirely clear, he did so in the heat
of the moment and as such on the above authorities15 it should not be held to be
effective. That he returned the next day to get his employment back is indicative
that he made such a decision as a result of the circumstances under which he was
acting at the time.
This conclusion seems to fly in the face of the general rule that a resignation,
once accepted, cannot be withdrawn.16 When an employee resigns ‘with
immediate effect’ the employee unilaterally terminates the contract of employ-
ment, meaning that the employer no longer has authority to discipline the
employee.17
Because the definition of dismissal refers to the termination of employment, it
is possible for there to be a dismissal before the employee commences working
for the employer. There was previously some doubt regarding this proposition,18
largely based on the definition of ‘employee’ in section 213 of the LRA. The
definition refers to a person who ‘works for another person’ and this was in-
terpreted to mean that a person was not an ‘employee’ unless he or she had
commenced work. It has now been clearly established that a party to a con-
tract of employment may claim unfair dismissal in circumstances where the
employer terminates a contract of employment prior to the employee com-
mencing work.19

________________________

14 [2002] 5 BLLR 399 (LAC) at 407.

15 The Labour Appeal Court referred to the case of Southern v Franks Charlesly and Co
[1981] IRLR 278 (CA) where it was stated that ‘Those were not idle words or words spoken
under emotional stress which the employers knew or ought to have known were not
meant to be taken seriously’. See also the minority judgment in Toyota SA Motors (Pty) Ltd
v CCMA & others [2016] 3 BLLR 217 (CC).
16 In African National Congress v Municipal Manager, George Local Municipality & others
[2010] 3 BLLR 221 (SCA) the court held that an employee who wished to resign must com-
municate his or her intention to the employer. If required to do so in writing, the notice of
resignation must be given in writing and will only become effective when the letter is read
by the employer. Consequently, an employee would be entitled to withdraw his or her
resignation before the employer reads such letter of resignation. See Smit ‘Resignation –
An Act that is not as Straightforward as it Seems?’ (2011) 1 TSAR 100.
17 Mtati v KPMG Services (Pty) Ltd [2017] 3 BLLR 315 (LC). See, however, Nogoduka v Minister of
the Department of Higher Education & Training & others [2017] 6 BLLR 634 (ECG) where the
employer was precluded by statute from accepting a resignation tendered with less than
the required notice.
18 See Whitehead v Woolworths (Pty) Ltd (1999) 20 ILJ 2133 (LC) where the Labour Court
applied the statutory definition of ‘employee’ (in particular that part of the definition that
refers to a person who works for another person and is entitled to receive remuneration)
and held that a person who had entered into a contract of employment but who had not
commenced work was not an employee. Refer also to ch 4.
19 Wyeth SA (Pty) Ltd v Manqele & others [2005] 6 BLLR 523 (LAC).
240 Law@work

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

In this context, ‘dismissal’ means that an employee reasonably expected the
employer
(i) to renew a fixed term contract of employment on the same or similar terms
but the employer offered to renew it on less favourable terms, or did not re-
new it; or
(ii) to retain the employee in employment on an indefinite basis . . . but the em-
ployer offered to retain the employee on less favourable terms, or did not
offer to retain the employee.20
It is obvious from the definition that not every termination of a fixed-term con-
tract is a dismissal. The employee must be able to establish that:
l there was a reasonable expectation of renewal of the contract or of reten-
tion on an indefinite basis; and
l the employer refused to renew the contract or retain the employee on an
indefinite basis; or
l there was an offer of renewal or retention on an indefinite basis but on less
favourable terms.
This provision was incorporated into the LRA to prevent employers from circum-
venting unfair dismissal laws by entering into a series of fixed-term contracts,
and then relying on the termination of one of them as an automatic termination
of the contract consequent on the effluxion of time, rather than termination at
the initiative of the employer (in other words, a statutory dismissal).21 Different juris-
dictions adopt different methods to protect work security in these circum-
stances.22 Some permit a contract to be ‘rolled over’ a limited number of times
before unfair dismissal laws apply. In South Africa, the test of a reasonable
expectation of renewal appears to have its roots in the jurisprudence of the
Industrial Court, which under the 1956 LRA extended protection to employees
who had a ‘legitimate expectation’ of renewal of a fixed-term contract.
There is no single factor that defines what is reasonable in every case. Although
the wording clearly refers to an expectation on the part of the employee party
to the contract, the test applied to determine the existence of a reasonable
expectation is an objective one and requires an examination of all relevant
factors. The wording of the contract is obviously of paramount importance, with
the qualification that standard form disavowals of expectations of renewal obvi-
ously lose credibility with each renewal of the contract in which they are con-
tained. Other relevant factors external to the terms of the contract can also be
________________________

20 S 186(1)(b) of the LRA. Previously, this provision stated that dismissal meant that an em-
ployee had reasonably expected renewal of a fixed-term contract on the same or similar
terms but that the employer had offered to renew it on less favourable terms or did not
renew it. See Olivier ‘Legal Constraints on the Termination of Fixed-Term Contracts of Em-
ployment: An Enquiry into Recent Developments’ (1996) 17 ILJ 1001.
21 See Pecton Outsourcing Solutions CC v Pillemer & others [2016] 2 BLLR 186 (LC); SATAWU
obo Dube & others v Fidelity Supercare Cleaning Services Group (Pty) Ltd [2015] 8 BLLR
837 (LC); Kelly Industrial Ltd v CCMA & others [2015] 6 BLLR 606 (LC).
22 Refer to ch 2 above.
Unfair dismissal – preliminary topics 241

taken into account in determining the existence or otherwise of any reasonable

expectation of renewal.23
The relevant principles were summarised by an arbitrator and confirmed by
the Labour Court in a dispute involving members of the Springbok rugby squad.
In SA Rugby (Pty) Ltd v CCMA & others,24 three members of the squad claimed
unfair dismissal after being told that their fixed-term contracts would not be
renewed. The arbitrator had confirmed that the existence of any reasonable
expectation of renewal had to be objectively determined. In this case, the
coach engaged the players in discussions regarding their future, and the play-
ers argued that they were entitled to rely on the expectation that he had cre-
ated. SA Rugby argued that the contractual terms were definitive – in this case,
they specifically stated that the contracts were for a fixed term and that there
should be no expectation of renewal.
The Labour Court held that for an employee to establish a reasonable ex-
pectation of renewal of a contract for the purposes of section 186(1)(b), the
employee was required to establish at least the following:
l a subjective expectation that the employer would renew the fixed-term con-
tract on the same or similar terms;
l the expectation was reasonable; and
l the employer did not renew the contract or offered to renew it on less favour-
able terms.
Relevant to the reasonableness of the expectation are the following objective
factors:
l the terms of the contract;
l any past practice of renewal;
l the nature of the employment and the reason for entering into the contract
for the fixed term;
l any assurances that the contract would be renewed (in other words, any
undertakings given by the employer); and
l any failure to give reasonable notice of non-renewal of the contract.
________________________

23 See SA Bank of Athens Ltd v Cellier NO & others (2009) 30 ILJ 197 (LC) where the court had
regard to the fact that the employee was involved in private business, which conduct
was in conflict with his employer’s interests, that he failed to disclose such private business
before employment and the fact that the employee was aware that the employer was
unhappy with such private business involvement (at para 29). It is an objective enquiry. In
Klusener and KZN Cricket (Pty) Ltd (2016) 37 ILJ 2916 (CCMA) the employee, a professional
sports coach, could not prove that he held a reasonable expectation of renewal of his
contract ‘at the time when the employer fails to renew or indicates an intention not to
renew the contract’ (at para 77). An employee may believe that he or she in the past
met most key performance targets but the expectation may still be unreasonable (at
para 78): ‘In the professional sports environment past glories are meaningless if current
performance falls below expectations’. In Joseph v University of Limpopo & others (2011)
32 ILJ 2085 (LAC) the court held that s 19(2) of the Immigration Act 13 of 2002 did not pre-
vent the employee from having a legitimate expectation.
24 [2006] 1 BLLR 27 (LC).
242 Law@work

The terms of the contract were held not to be decisive – the court stated that a
reasonable expectation of renewal could exist even where a written contract
expressly stipulates that the employee acknowledges that there is no expect-
ation of renewal.25 The Labour Appeal Court, however, held that due to the
clear terms of the contract the onus on the employee will be heavier to prove
objective evidence that gives rise to the alleged expectation.26 On the facts,
none of the employees could do so.
There was a debate as to whether an expectation of renewal extends to an
expectation of permanent employment. In other words, must the employee’s
expectation be based on a further renewal of a fixed-term contract, or is it suf-
ficient that there is an expectation of appointment into a permanent position
with the same employer? Does the refusal of a permanent appointment con-
stitute a dismissal? In Dierks v University of South Africa27 a university lecturer,
engaged in a series of fixed-term contracts, argued that he had a reasonable
expectation of appointment to a permanent post when a vacancy became
available. The Labour Court held that it was not open to an employee to rely on
section 186(1)(b) in these circumstances. The Labour Court came to the opposite
conclusion in McInnes v Technikon Natal,28 where a lecturer was found to have
had a reasonable expectation of permanent employment. In this matter, the
Labour Court held that the ruling in Dierks was clearly wrong.29 The Labour
Appeal Court upheld the approach adopted in the Dierks case when it ruled
that section 186(1)(b) could not be relied on by an employee who claimed to
have an expectation of permanent employment.30 This debate has been closed
by the amendment to section 186 in terms of which refusal to retain an em-
ployee on an indefinite basis or an offer to retain the employee on less favour-
able terms constitutes a dismissal.
In the past, in cases where an employee continues to offer services after the
termination of a fixed-term contract of employment, the principle that the con-
tract is deemed to have been tacitly renewed and that such renewal is gener-
ally accepted to be on the same terms but for an indefinite period, has on
occasion been endorsed.31 This is not an absolute principle, however; in some
________________________

25 At 30B–H. See also NUMSA v Buthelezi & others v LTR Appointments CC [2005] 9 BALR 919
(MEIBC); Swanepoel v Department of Water Affairs and Forestry [2005] 12 BALR 1272
(GPSSBC); and Brown v Read Educational Trust [2006] 6 BALR 605 (CCMA).
26 SA Rugby Players’ Association (SARPA) & others v SA Rugby (Pty) Ltd & others; SA Rugby
(Pty) Ltd v SARPU & another [2008] 9 BLLR 845 (LAC) at para 46.
27 [1999] 4 BLLR 304 (LC).
28 [2000] 6 BLLR 701 (LC).
29 The Labour Appeal Court passed up an opportunity to decide the point in University of
Cape Town v Auf der Heyde [2001] 12 BLLR 1316 (LAC), where the judgment on appeal
had upheld the ruling in Dierks. In Yebe v University of KwaZulu-Natal (Durban) [2007] 1
BALR 77 (CCMA) the arbitrator followed the approach adopted in the Technikon Natal
decision.
30 University of Pretoria v Commission for Conciliation, Mediation and Arbitration & others
[2012] 2 BLLR 164 (LAC).
31 National Education Health & Allied Workers Union obo Tati and SA Local Government
Association (2008) 29 ILJ 1777 (CCMA).
Unfair dismissal – preliminary topics 243

instances the facts of the particular matter may indicate that no such tacit
agreement existed.32

2.1.3 Refusal to allow an employee to resume work after maternity leave

Dismissal means that 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.33
If an employer refuses to allow an employee to resume work after she takes
maternity leave in terms of any law, collective agreement or her contract of
employment, that refusal amounts to a dismissal. As this element of the defin-
ition of dismissal contemplates, the right to maternity leave can also be regu-
lated by a collective agreement or a contract of employment, neither of which
can provide terms any less generous than those provided by section 25 of the
BCEA.
The purpose of this provision is to prevent employers from relying on absence
from work as a ground to dismiss an employee or refuse her the right to resume
work when her absence is occasioned by maternity leave. In effect, it guaran-
tees continuity of employment to an employee who takes maternity leave. An
important qualification applies – the maternity leave must be taken in accord-
ance with section 25 of the BCEA, a collective agreement or a contract of em-
ployment. This means that if the employee is in breach of the relevant provision,
either by taking excess leave or taking leave for any other reason, her em-
ployer’s refusal to allow her to resume work will not be regarded as a dismissal.
The wording of this section simply establishes the existence of a dismissal in
circumstances where the employee intends to resume work but is prevented
from doing so. It does not preclude an employer from dismissing an employee
who is on maternity leave for any other legitimate reason.34 If the reason for dis-
missal is pregnancy or a reason related to pregnancy, the dismissal is automat-
ically unfair.35
The requirement that an employer must permit the employee to ‘resume
work’ seems to indicate that it is sufficient that work on the same or similar terms
is offered, and that there is no right – necessarily – to the same job on return
from maternity leave. The extent of any differences in the nature of the work or
where the work is to be performed will obviously be a material consideration.
________________________

32 See Owen & others v Department of Health, KwaZulu-Natal (2009) 30 ILJ 2461 (LC) at 2466:
‘The approach . . . ie that a tacit renewal of the contract on the same terms but for an
employment relationship of indefinite duration, is commendable at the level of principle,
but each case is fact and context specific and the application of the principle must
account for this . . . This is a factual enquiry to be determined on the evidence before the
court’.
33 S 186(1)(c) of the LRA.
34 See, eg, Wardlaw v Supreme Mouldings (Pty) Ltd (2004) 25 ILJ 1094 (LC) in which the em-
ployer discovered an employee’s negligence during a period of maternity leave. The court
dismissed the employee’s argument that the reason for her dismissal was her employer’s
attitude to her taking maternity leave.
35 See ch 10 at para 7 ‘Pregnancy, intended pregnancy or any reason related to pregnancy’.
244 Law@work

2.1.4 Selective re-employment

‘Selective dismissal’ means that an employer who dismissed a number of em-
ployees for the same or similar reasons has offered to re-employ one or more of
them but has refused to re-employ another.36
This is a form of statutory dismissal that in the everyday meaning of the term is
not a dismissal at all.37 Two points are immediately apparent. First, the triggering
event is the refusal to re-employ an ex-employee. Secondly, the refusal must
occur both in the context of a prior dismissal of two or more employees for the
same or a similar reason, and an offer to re-employ some of those employees.
This element of the definition of dismissal concerns what was termed ‘selective
re-employment’ (or, more accurately, ‘selective non-re-employment’) and pre-
vents abuse of unfair dismissal laws by employers that would legitimately dismiss
a group of employees, and then make offers of reinstatement or re-employ-
ment to only those employees it wished to have back in its employ. Employers
who effect group dismissals and then wish to re-engage some of the dismissed
workers face a simple choice: re-employ none of the dismissed employees or,
by re-employing even one of them, face the prospect of an unfair dismissal
claim by those left out in the cold.38
When the employer has concluded an agreement to reinstate or re-employ
any of its former employees and acts in breach of that agreement, the LRA
affords a remedy based on the definition of ‘unfair labour practice’. The LRA
provides that a failure or refusal by an employer to reinstate or re-employ a
former employee in terms of any agreement is an unfair labour practice.39

2.1.5 Constructive dismissal

An employee may terminate a contract of employment with or without notice
(ie, by resigning) because the employer made continued employment intoler-
able for the employee.40

________________________

36 S 186(1)(d) of the LRA.

37 The reason for including this provision in the definition of ‘dismissal’ is a consequence of
the judgment by the former Appellate Division of the Supreme Court in National Auto-
mobile & Allied Workers Union (now known as National Union of Metalworkers of SA) v
Borg Warner SA (Pty) Ltd (1994) 15 ILJ 509 (A). The Appellate Division stated that the
relationship envisaged by the 1956 LRA between ‘employer’ and ‘employee’ does not
necessarily terminate as it would in common law. Therefore, a distinction was drawn
between the employment contract and the employment relationship. This principle is now
codified in s 186.
38 The refusal to re-employ a previously dismissed employee simply establishes the existence
of the dismissal. The employer is obliged then to prove the fairness of the dismissal. This it
might do by establishing some legitimate basis for the differential treatment in the form of
the refusal to re-employ the rebuffed applicant for re-employment.
39 S 186(2)(c) of the LRA.
40 S 186(1)(e) of the LRA.
Unfair dismissal – preliminary topics 245

Termination of employment in these circumstances is known as a ‘constructive

dismissal’.41 Although the termination of employment occurs at the employee’s
initiative, the law regards the termination as a dismissal since the conduct of the
employer ‘forces’ the termination of employment.
In most instances a constructive dismissal is triggered by a resignation. An em-
ployee who resigns and is subsequently dismissed during the notice period trig-
gered by the resignation is not precluded from claiming constructive dismissal.42
The Industrial Court developed the concept of constructive dismissal during
the 1980s. The LRA introduced the concept into legislation and while the formal
test in section 186(1)(e) is now that of ‘intolerability’, the standard and approach
applied have changed little.
The courts have always adopted an objective approach to constructive dis-
missal. It is not the employee’s say-so or perception of events that establishes
intolerability, or even the employee’s state of mind. What is relevant is the con-
duct of the employer viewed in an objective sense. The courts have endorsed
the principle that the remedy of constructive dismissal, being one in which the
employee seeks to obtain compensation from an employer for his or her own
proximate act of resignation, should be narrowly interpreted as against the em-
ployee. This implies not only that the test should be objective but that it should
be set at a high standard, and that the act of resignation should be an act of
final resort when no alternatives remain. In Murray v Minister of Defence43 the
court reiterated that our law and the Constitution impose ‘a continuing obli-
gation of fairness towards the employee on . . . the employer when he makes
decisions affecting the employee in his work’.44 The court, however, emphasised
that it is not sufficient that an employee resigns because work has become
intolerable – this could after all be due to factors unconnected to the employer
or the employer may have a good and fair reason to make work intolerable.
Cameron JA stated that the employer must be culpably responsible in some
way for the intolerable conditions. In other words, the test is whether the con-
duct ‘lacked reasonable and proper cause’.45 The court also held that there is
no requirement that the employer must have wanted or intended to get rid of
the employee.

________________________

41 This provision was included in the definition of ‘dismissal’ to codify the jurisprudence de-
veloped from the unfair labour practice definition under the 1956 LRA. See Jooste v Trans-
net t/a South African Airways (1995) 16 ILJ 629 (LAC) and Pretoria Society for the Care of
the Retarded v Loots (1997) 18 ILJ 981 (LAC).
42 See SALSTAFF obo Bezuidenhout v Metrorail [2001] 9 BALR 926 (AMSSA).
43 [2008] 6 BLLR 513 (SCA).
44 With reference to WL Ochse Webb & Pretorius (Pty) Ltd v Vermeulen [1997] 2 BLLR 124
(LAC) (at para 11).
45 At para 13. Conti Print CC v CCMA & others [2015] 9 BLLR 865 (LAC) and National Health
Laboratory Service v Yona & others [2015] 10 BLLR 1002 (LAC) confirmed intolerability as
yardstick. In Conti Print the court also had regard of the fact that the employer ‘failed
dismally to accord fair and compassionate treatment . . . when she was suffering from a
severe work-related mental illness and impecuniosity resultant from her denial . . . of ex-
tended sick leave benefits’ (own emphasis) (at para 41).
246 Law@work

The courts have also confirmed that the use of the word ‘intolerable’ means
that there is an onerous burden on the employee.46 It requires the employee to
show that continued employment would be ‘objectively unbearable’. More
recent judgments and awards have emphasised this strict approach to con-
structive dismissal and, in particular, the requirement that the employee estab-
lish some harsh, antagonistic or otherwise hostile conduct on the part of the em-
ployer that precipitates the employee’s resignation.47 The employer’s conduct is
examined as a whole so that it can be determined whether its effect, judged
reasonably and sensibly, was such that an employee could not be expected to
put up with it.48 When an employee resigns prematurely – for example, as an
alternative to facing a disciplinary hearing or without having exhausted internal
remedies (usually in the form of a grievance procedure) – no dismissal occurs.49
Relevant considerations therefore include the following:
l the employee must have terminated the contract, whether by resigning or
otherwise;
l the employer’s conduct on which the employee relies to claim constructive
dismissal does not have to amount to a repudiation of the employment con-
tract. The employer’s conduct must have been brought about by its act or
omission, but need not necessarily be intended to bring the employment re-
lationship to an end;
l the employee who claims constructive dismissal must objectively establish
that the situation has become so unbearable that he or she cannot be ex-
pected to work any longer. That judgment must be made from the per-
spective of a reasonable person in the shoes of the employee, and does not
take into account the idiosyncrasies of particular individuals;
l the employee must show that he or she would have carried on working in-
definitely, but for the employer creating the unbearable circumstances; and
l the employee must exhaust all possible remedies before resigning.
In Solid Doors (Pty) Ltd v Commissioner Theron & others50 the Labour Appeal
Court summarised the relevant principles and confirmed that for a constructive

________________________

46 Jordaan v CCMA & others [2010] 12 BLLR 1235 (LAC) at 1239: ‘With an employment re-
lationship, considerable levels of irritation, frustration and tension inevitably occur over a
long period. None of these problems suffice to justify constructive dismissal. An employee,
such as [the] appellant, must provide evidence to justify that the relationship has indeed
become so intolerable that no reasonable option, save for termination is available to her’.
47 See Pretoria Society for the Care of the Retarded v Loots (fn 41) at 985 and Conti Print CC
v CCMA & others (fn 45 at para 9).
48 Regent Insurance Co Ltd v CCMA & others (2013) 34 ILJ 410 (LC).
49 Asara Wine Estate & Hotel (Pty) Ltd v Van Rooyen & others (2012) 33 ILJ 363 (LC). See also
Regent Insurance Co Ltd (fn 48), SA Police Service v Safety & Security Sectoral Bargaining
Council & others (2012) 33 ILJ 453 (LC) and Solidarity obo Van Tonder v Armaments Corpo-
ration of SA (SOC) Ltd & others (2019) 40 ILJ 1539 (LAC).
50 (2004) 25 ILJ 2337 (LAC). See also National Health Laboratory Service v Yona & others
[2015] 10 BLLR 1002 (LAC).
Unfair dismissal – preliminary topics 247

dismissal to be established, three requirements must be met. The first is that the
employee must have terminated the contract of employment, the second is
that the reason for that termination must be the intolerability of continued em-
ployment; and thirdly, it must have been the employer that made the contin-
ued employment intolerable.51 All of these elements must be present – if any
one element is absent, there is no constructive dismissal. Further, whether or not
the employee was constructively dismissed is a jurisdictional fact that must be
established objectively.
The period between any incident or event claimed as a basis for constructive
dismissal and the date of resignation is also significant. In Agricultural Research
Council v Ramashowana NO & others52 the Labour Court held that a lapse of 15
months indicated that the working environment was not intolerable – the em-
ployee must resign within a reasonable time of the event triggering the alleged
constructive dismissal.
If a constructive dismissal is established, this does no more than establish the
existence of a ‘dismissal’ for the purposes of the Act. If the employee establishes
a constructive dismissal, the onus shifts to the employer to prove the fairness of
the dismissal (section 192(2)).53 If the employer discharges this obligation, the
dismissal is not unfair. Although this is an uncommon situation there is no reason,
in principle, why it cannot exist. Furthermore, a claim of constructive dismissal
and prayer for reinstatement are not mutually exclusive when circumstances
have changed between the time of resignation and the reinstatement order.54

2.1.6 Transfer of a business

Dismissal means that an employee terminated a contract of employment with
or without notice because the new employer, after a transfer in terms of sec-
tions 197 or 197A, provided the employee with conditions or circumstances at
work that are substantially less favourable to the employee than those provided
by the old employer.55
Section 197 substitutes the transferee for the transferor of a business in respect
of all employment contracts in existence between the transferor and its employees
on the date of the transfer.56 The section requires the transferee to continue to
________________________

51 In Murray v Minister of Defence [2008] 6 BLLR 513 (SCA) the court held that the employer
must in some way be culpably responsible for the intolerable conditions.
52 (2018) 39 ILJ 2509 (LC).
53 In Jordaan v CCMA & others (fn 46) at 1238 the Labour Appeal Court confirmed that
there is a two-stage approach in constructive dismissal disputes: ‘In the first place, an em-
ployee who leaves a place of employment bears the onus of showing that the employer
effectively dismissed the employee by making her continued employment intolerable.
Once this is established, a second stage must be applied and this concerns an evaluation
of whether the dismissal was unfair’. The court continued that, although distinct, these two
stages are not independent.
54 Western Cape Education Department v General Public Service Sectoral Bargaining Coun-
cil & others [2013] 8 BLLR 834 (LC).
55 S 186(1)(f) of the LRA.
56 The same is true for s 197A in the case of the transfer of employment contracts in insolvent
circumstances.
248 Law@work

provide terms and conditions of employment that are ‘on the whole not less
favourable’ than those which applied before the transfer, except, it seems,
where any term or condition of employment is established by a collective agree-
ment, in which case the identical terms and conditions apply.57
The 2002 amendment to the definition of dismissal effectively introduced a
new form of constructive dismissal by recognising that a resignation in certain
post-transfer circumstances constitutes a dismissal. The employee is required to
prove either that ‘conditions’ or ‘circumstances’ at work are less favourable after
the transfer. It is not clear whether ‘conditions’ means ‘terms and conditions of
employment’. This would be somewhat anomalous, since section 197 provides
for an automatic transfer of terms and conditions of employment, and can be
enforced on that basis. Perhaps this provision was simply intended to afford em-
ployees transferred on less favourable terms an additional remedy in the form of
a claim for unfair dismissal. Even less clear is the meaning of ‘circumstances’. If
those are intended to mean ambient factors at work or work practices short of
terms and conditions of employment, it is suggested that the same narrow inter-
pretation should be accorded to ‘less favourable’ in this section as is accorded
to ‘intolerability’ in section 186(1)(e).

2.2 Other forms of termination of employment that are not

‘dismissals’
There are a number of common forms of termination of employment that do
not fall within the definition of dismissal in the LRA. The most important of these
are worth noting, if only for the sake of completeness and because termination
of employment in these circumstances is not justiciable by either the CCMA or
the Labour Court.58

2.2.1 Resignation
A resignation is a unilateral act by an employee that has the effect of termin-
ating an employment contract.59 Unless the resignation constitutes a constructive
dismissal60 it is not a dismissal in terms of the LRA. At common law, there is no
need for a resignation to be ‘accepted’ by an employer before it takes effect.61
If a resignation had to be accepted by the employer to be valid, and the em-
ployer simply refused to accept it, this would mean that the employer could

________________________

57 See ch 13 below.
58 Refer to ch 17 regarding the Labour Court and CCMA’s jurisdiction.
59 For a discussion of recent case law, including Lottering & others v Stellenbosch Munici-
pality [2010] 12 BLLR 1306 (LC), see Smit (fn 16).
60 See para 2.1.5 ‘Constructive dismissal’.
61 See, however, CEPPWAWU & another v Glass and Aluminium 2000 CC (fn 14) where the
court stated that ‘[r]esignation brings the contract to an end if it is accepted by the em-
ployer’ (at 406 at para 33). An application for early retirement is a bilateral act requiring
approval of the employer, see SA Municipal Workers Union & another v SA Local Govern-
ment Bargaining Council & others (2015) 36 ILJ 441 (LAC).
Unfair dismissal – preliminary topics 249

prevent an employee from leaving his or her employment. The right to resign is
the difference between employment and forced labour, and there is no reason
to think that a resignation is valid or effective only on acceptance. To deter-
mine whether there was a resignation, the court has to evaluate what the inten-
tion of the parties was.62 This also means that once an employee has resigned,
the employer is under no obligation to accept any withdrawal of that resig-
nation.63 In SACWU obo Sithole v Afrox Gas Equipment Factory (Pty) Ltd 64 the
employee resigned by sending an e-mail to two managers to this effect. How-
ever, two weeks later, the employee attempted to retract the resignation. The
employer was not prepared to accept this retraction and the employee then
claimed that he had been unfairly dismissed. The arbitrator held that the failure
of the employer to accept the tendered withdrawal of resignation did not con-
stitute a dismissal. The traditional view that resignation is a unilateral act which,
once tendered, cannot be unilaterally withdrawn was left unchallenged by the
majority of the Constitutional Court.65 The Labour Appeal Court recently con-
firmed that ‘A resignation is a unilateral termination of employment by the
employee who must evince a clear and unambiguous intention not to go on
with the contract of employment that would lead a reasonable person to be-
lieve that the employee harboured such an intention’.66
It should be noted that, as illustrated in Amazwi Power Products (Pty) Ltd v
Turnbull,67 an executive director holds office as a member of the board but the
employment of the director is a separate matter.68 Therefore the termination by

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62 Ibid at para 32. In Fijen v Council for Scientific & Industrial Research (1994) 15 ILJ 759 (LAC)
it was said that the test for resignation is that an employee has to ‘either by words or con-
duct, evince a clear and unambiguous intention not to go on with his contract of employ-
ment’ (at 772C–D).
63 This point was upheld by an arbitrator in Samuels v B&G Displays (2005) 26 ILJ 1145 (BCA).
The employee had resigned, and then stated that he wished to withdraw the resignation.
The arbitrator held that the employer’s refusal to accept the withdrawal did not constitute
a dismissal as defined by the LRA, because an employee cannot withdraw a resignation
once the employer accepts it.
64 [2006] 6 BALR 592 (MEIBC).
65 Toyota SA Motors (Pty) Ltd v CCMA & others (fn 15) paras 178–180. An employee resigned
in pique after being charged for being absent without leave but the employer declined
to accept the resignation. In the appeal against an unfair dismissal claim (the employee
‘was dismissed a few days before his resignation would take effect . . . the dismissal inter-
rupted the resignation’ (at para 144)) the employer relied on resignation as a defence.
The minority questioned the continued validity of the legal position that resignation cannot
be withdrawn without consent and whether it measures ‘up to our modern notions of fair-
ness’ (paras 207–209).
66 21st Century Life (Pty) Ltd v Nombewu (2019) 40 ILJ 1499 (LAC), referring to Fijen v Council
for Scientific & Industrial Research (fn 62).
67 [2008] 9 BLLR 817 (LAC).
68 ‘When a person accepts the office of a director and no contract had been expressly
concluded, the contract between the director and the company will be implied, the
effect being that the position is regulated by the company’s articles of association. A dir-
ector is thus not an employee of a company, although he or she can be an employee in
addition to holding the independent office as a director’ (at para 12).
250 Law@work

an employee of his or her directorship does not automatically terminate the

employment relationship.

2.2.2 Termination of a contract of employment by the effluxion of time

or the happening of a specified event
A contract of employment may be entered into for a fixed period, to terminate
either on a specified date or on the happening of a specified event such as the
completion of a project.69 Section 198B, recently added to the LRA, expressly
provides that a contract of employment that terminates on the occurrence of a
specified event,70 on the completion of a specified task or project, or on a fixed
date other than an employee’s normal or agreed retirement age, is a fixed-term
contract.
In Enforce Security Group v Fikile & others71 the Labour Appeal Court held that
it does not follow that ‘in all cases an automatic termination clause based on
an event contained in a fixed-term contract of employment will be visited with
invalidity’ as that would ‘defeat the whole purpose of concluding fixed-term
contracts concluded for legitimate reasons’. The test is whether in the circum-
stances of a particular case the automatic termination clause was meant to
circumvent obligations contained in the LRA and the Constitution.72 In Pecton
Outsourcing Solutions CC the Labour Court framed the test as whether the ‘true
cause of the termination’ (ie, the lapse or completion of a contract) ‘in the
circumstances of each case . . . is enforceable given section 5 of the LRA’.73 The
________________________

69 Automatic termination clauses have proved particularly problematic, see Pecton Out-
sourcing Solutions CC v Pillemer & others (fn 21): ‘The clause most open to abuse, in the
sense of ‘contracting out’ of an employee’s LRA right not to be unfairly dismissed, is the
happening of an event. These clauses should rightly attract the scrutiny of the CCMA and
courts to ensure that, however craftily they are drafted, temporary employment service
employees’ rights under the LRA are not circumvented and public morality is not offend-
ed by their enforcement’ (at para 23).
70 In Association of Mineworkers & Construction Union & others v Piet Wes Civils CC & another
(2017) 38 ILJ 1128 (LC) the Labour Court held that termination of the contract by a client is
not a ‘specific event’ for purposes of s 198B(1) of the LRA of 1995.
71 (2017) 38 ILJ 1041 (LAC) at para 41.
72 Each case must be decided on its merits and some of the relevant considerations would
include (ibid): ‘the precise wording of the automatic termination clause and the context
of the entire agreement; the relationship between the fixed-term event and the purpose
of the contract with the client; whether it is left to the client to choose and pick who is to
render the services under the service agreement; whether the clause is used to unfairly
target a particular employee by either the client or the employer; whether the event is
based on proper economic and commercial considerations’.
73 See fn 71. The court stated that substance (the content of the reason for the termination)
should enjoy preference over form (the contractual device used) (at para 34). The reasons
recognised in s 188 of the LRA are conduct, capacity and operational requirements: ‘If
the facts show that the reason for termination of the contract is one that typically con-
stitutes a reason for a dismissal, then this is a clue that . . . there may be an attempt to
“contract out” of section 188 of the LRA. In the absence of evidence to the contrary, the
termination thus becomes a dismissal and the underlying reasons for it will be ventilated in
forums the LRA has set aside for this purpose’(at para 43).
Unfair dismissal – preliminary topics 251

difference in the two approaches is that under the first there is no dismissal of
which the fairness may be judged, whilst under the second approach an ap-
propriate forum would have jurisdiction to consider the alleged unfairness of the
‘dismissal’.
In addition, the circumstances in which an employer may employ a person
on a fixed-term contract (and pay him or her less than the threshold amount)
have, with some limited exceptions, been severely curtailed. An employer may
employ an employee on a fixed-term contract or successive fixed-term con-
tracts for longer than three months in only two circumstances: when the nature
of the work for which the employee is employed is of a͒limited or definite dur-
ation or when the employer can demonstrate any other justifiable reason for
fixing the term of the contract.74

2.2.3 Reaching retirement age

The Labour Court has fairly consistently adopted the view that when an em-
ployee reaches the normal or agreed retirement age, the contract of employ-
ment expires automatically, and termination of employment in these circum-
stances does not constitute a dismissal as defined in the LRA.75
Whether an employee has reached normal retirement age is a matter of fact,
and must be determined from the contract of employment and from applic-
able policies and any relevant rules of a retirement fund. In SACTWU & others v
Rubin Sportswear,76 the Labour Court found in favour of employees who had
been dismissed after reaching what the employer claimed was normal retire-
ment age. The court drew a distinction between the rules of a retirement fund,
which established no more than an age from which benefits might be claimed,
and a retirement age for the purposes of termination of employment. This judg-
ment was upheld by the Labour Appeal Court which held that the dismissals
were automatically unfair because they had been effected on the basis of age
in circumstances in which they amounted to unfair discrimination.77

________________________

74 In Association of Mineworkers & Construction Union & others v Piet Wes Civils CC & another
(fn 70) the employer could not prove justifiable cause and there was therefore no auto-
matic termination of the contracts as they were either of an unlimited duration or had to
be deemed to be of an indefinite duration.
75 Rubenstein v Price’s Daelite (Pty) Ltd (2002) 23 ILJ 528 (LC) and Schweitzer v Waco Distribu-
tors [1998] 10 BLLR 1050 (LC).
76 [2003] 5 BLLR 505 (LC).
77 In Kirsten v Southern Cross Manufacturing Co Ltd (2006) 27 ILJ 2471 (CCMA) it was found
(while considering the meaning of a ‘normal or agreed retirement age’ in s 187 of the
LRA) that an employee whose employment was terminated at age 66, in the course and
scope of a reconstruction exercise, had actually been retrenched and not retired. There-
fore, she was entitled to severance pay for her 22 years’ service. In Evans v Japanese
School of Johannesburg (2006) 27 ILJ 2607 (LC) the employer had no agreed retirement
age for its staff. Staff had in the past generally retired at the age of 65. The employer’s uni-
lateral decision to institute a retirement age of 60 years and to require a 63-year-old em-
ployee to retire constituted an automatically unfair dismissal on the ground of age. For a
further discussion see ch 10.
252 Law@work

What is the situation where an employee elects to take early retirement? In

SATAWU v Old Mutual Life Assurance Company South Africa Ltd 78 the Labour
Court held that when employees choose to take early retirement rather than
face the prospect of retrenchment, this was comparable to a resignation, and
did not constitute a dismissal.
If an employee is requested to continue working after reaching the agreed or
normal retirement age, the Labour Court has held that in these circumstances
an employee is not entitled to protection against unfair dismissal. This is not an
uncontroversial position. It might be suggested that a new employment relation-
ship is established after the first terminates on the employee’s retirement. On this
basis, there is no reason why the second relationship should not enjoy pro-
tection against an unfair or arbitrary dismissal by the employer. In Botha v Du
Toit Vrey & Partners CC79 the Labour Court was willing to hold that in the event
of a post-retirement dismissal the employee is entitled to be consulted over the
termination date. It appears therefore that in the absence of an agreement to
continue working beyond the mandatory retirement age the courts will refuse
to assist employees because they were not dismissed; their contracts simply
lapsed when they reach the agreed or normal retirement age.80

2.2.4 Insolvency
Until 1 January 2003, section 38 of the Insolvency Act 24 of 1936 provided for the
automatic termination of employment contracts on the insolvency of the em-
ployer. After that date the amended section 38 provides for the suspension of
employment contracts, subject to termination by the trustee or liquidator, or
automatic termination in terms of section 38(9) (in other words, after the lapse of
45 days).
The Labour Appeal Court has distinguished between the voluntary and com-
pulsory liquidation of a business. In a case where the shareholders of a business
had adopted a resolution to wind up the company the court held that the issue
was whether it could be said that the employer had ‘engaged in an act which
brings the contract of employment to an end in a manner recognised as valid
by the law’. In this instance the court decided that the decision to pass the
special resolution was an action by the employer that brought the contracts of
employment of its employees to an end. In these circumstances the employer
had effectively terminated the contracts and that termination was a dismissal
for the purposes of the LRA.81

________________________

78 [2005] 4 BLLR 378 (LC).

79 [2006] 1 BLLR 1 (LC). In this case, it was decided that where no retirement age was agreed
with the employee the employer is entitled (in the absence of an agreement) to deter-
mine the retirement age at the standard or normal retirement age in the particular field in
which the employee is employed. To this end, the consent of the employee is not re-
quired. However, it was held to be unfair to simply give an employee one month’s notice
of termination of his or her working life without any prior discussion.
80 See also Datt v Gunnebo Industries (Pty) Ltd [2009] 5 BLLR 449 (LC).
81 See NULAW v Barnard NO & another [2001] 9 BLLR 1002 (LAC).
Unfair dismissal – preliminary topics 253

In the case of a compulsory winding-up the situation is different. Here the

court has the discretion to grant an order to wind up the employer, and there is
therefore no act by the employer that brings about the termination of the con-
tracts of employment. The BCEA now includes a right to severance pay in cir-
cumstances where the employer is sequestrated.82
Finally, it should be noted that when a business is sold as a going concern in
circumstances of insolvency, section 197A of the LRA applies, and there is an
automatic transfer, unless otherwise agreed, of contracts from the insolvent em-
ployer to the purchaser of the business.83

2.2.5 Mutual agreement

Termination of employment in circumstances where an employer and an em-
ployee agree to terminate a contract of employment by mutual consent is gen-
erally not a dismissal, and is sometimes referred to as termination on account of
a settlement or waiver. There is a difference between the two concepts. When
an employee settles a claim or waives a right to pursue it, there may have been
a dismissal, but the employee agrees not to pursue a claim for relief consequent
on the dismissal. A mutually agreed termination of employment occurs when
there is no unilateral termination of employment by the employer. In these cir-
cumstances the contract terminates as a consequence of their agreement and
there is no ‘dismissal’.84
Termination of employment in these circumstances assumes that the employee
enters into the agreement with full knowledge of its implications, and that there
has been no misrepresentation by the employer that induced the employee to
conclude the agreement. The court will examine all of the relevant facts and
circumstances and determine whether the employee left the employer’s em-
ploy of his or her own volition.85 The Labour Court has considered an agreement
between parties to the effect that they would part amicably if their relationship
did not work void and invalid on the basis that parties to an employment con-
tract cannot contract out of the LRA’s protection against unfair dismissal.86
However, a settlement agreement (eg as part of a severance agreement)
between equal parties in which the employee waives the right to pursue an
unfair dismissal claim is not contrary to public policy and will be upheld.87

________________________

82 S 41 of the BCEA.
83 See ch 13.
84 This was confirmed by the Labour Appeal Court in CEPPWAWU & another v Glass and
Aluminium 2000 CC (fn 14). In Ferguson v Basil Read (Pty) Ltd [2013] 3 BLLR 274 (LC) an
employee concluded a severance agreement in full and final settlement of all possible
claims arising from his contemplated retrenchment. Such termination of employment was
held to be consensual rather than a dismissal.
85 See Baudach v United Tobacco Co Ltd (2000) 21 ILJ 2241 (SCA) where the court found
that the employer had misrepresented the redundancy of the employee’s position, and
set aside the agreement for that reason.
86 Trio Glass t/a The Glass Group v Molapo NO & others (2013) 34 ILJ 2662 (LC).
87 Gbenga-Oluwatoye v Reckitt Benckiser South Africa (Pty) Ltd & another [2017] 1 BLLR 1 (CC).
254 Law@work

2.2.6 Death
At common law, a contract of employment terminates on the death of either
party. Termination of employment in these circumstances is not a dismissal,
although the affected employees have a claim for outstanding wages and
notice pay against the deceased estate of their employer.
Most employees are employed by juristic persons and their continued employ-
ment is not affected by the death of a director, shareholder or member.

2.2.7 Supervening impossibility of performance

The common law recognises that a contract may terminate when performance
of that contract becomes impossible.88 A distinction is drawn between tempor-
ary and permanent impossibility. In the former case, any obligation to perform in
terms of the contract is suspended – in the latter case, the contract terminates
automatically. In an employment context this principle has been applied to em-
ployees who are absent for protracted periods, usually as a result of their deten-
tion or imprisonment.89 In NUM & another v CCMA & others90 Francis J held that
where an employer cancels a contract of employment after the employee has
been committed to prison for ten months the ‘acceptance’ of the employee’s
purported repudiation of the contract (that is, his failure to offer services due to
his incarceration) constitutes dismissal in terms of section 186(1)(a) of the LRA.
Other cases have dealt with protracted absence on account of illness or
some other incapacity. Although the common-law rules are shot through with
various statutory entitlements to annual leave and sick leave, when these are
exhausted and, in some cases at least, before that point, it is conceivable that
a contract of employment might terminate by operation of law when its con-
tinued performance becomes impossible.
In FAWU obo Meyer v Rainbow Chickens91 the commissioner held that there
was an automatic termination of a contract of employment when the em-
ployee’s accreditation to slaughter chickens, granted by the Muslim Judicial

________________________

88 The Asphalt Venture Windrush Intercontinental SA & another v UACC Bergshav Tankers AS
2017 (3) SA 1 (SCA): ‘There is nothing special about the contract of employment that pre-
cludes such a contract from being subject to the ordinary principles of frustration of con-
tracts’ (at para 34). Asphalt Venture was hijacked by Somali pirates off the Kenyan coast
and alhough a ransom was paid and the ship released, the pirates retained seven Indian
sailors as hostages. Their employment contracts were terminated by impossibility where
supervening events ‘rendered their performance impossible or radically different’ from
what was undertaken.
89 In most instances of protracted incarceration, employers do give notice of termination of
employment to the absent employee (mostly for incapacity or operational requirements).
The issue of whether the contract terminates automatically then does not come into play.
What is often debated is the true reason for the dismissal. In Samancor Tubatse Ferro-
chrome v MEIBC & others [2010] 8 BLLR 824 (LAC) the Labour Appeal Court preferred in-
capacity as the more appropriate reason.
90 [2009] 8 BLLR 777 (LC).
91 [2003] 2 BALR 140 (CCMA).
Unfair dismissal – preliminary topics 255

Council, was withdrawn.92 The same principle had previously been extended,
more controversially, to circumstances where an employee’s work permit is with-
drawn or expires. However, the Labour Court has held that a person in these cir-
cumstances may claim unfair dismissal at least in principle.93 The court decided
specifically that the applicant was an ‘employee’ for the purposes of the LRA
and that the CCMA therefore had jurisdiction to entertain his referral of an unfair
dismissal dispute.94

2.2.8 Other automatic terminations

In the public sector, section 17(3)(a) of the Public Service Act 103 of 1994 provides
that if an employee is absent from work for a period of more than one calendar
month he or she is deemed to have been discharged for misconduct. There are
similar provisions in other statutes regulating employment in the public service,
notably in respect of the police and teachers engaged in public schools. This
provision has been upheld, and a ‘deemed dismissal’ in these circumstances is
not a dismissal for the purposes of the LRA. (The Labour Court has held that the
provision applies in the absence of the employer’s disciplinary code and pro-
cedure.) Although these deemed dismissals do not constitute dismissals for the
purposes of section 187(1), an employer’s decision to dismiss an appeal against
automatic termination may be reviewed by the Labour Court under section
158(1)(h) of the LRA.95
In practice, section 17(3) should be used only where the employer does not
know where the employee is,96 where the employee has refused to return to
work or has commenced alternative employment.97 If it is possible to charge the
________________________

92 See also Mills v Drake International SA (Pty) Ltd (2004) 25 ILJ 1519 (CCMA). In another case,
Mhlungu & another v Gremick Integrated Security Specialists (a division of Servest (Pty)
Ltd) (2001) 22 ILJ 1030 (CCMA), the employer, after appointing certain security guards,
was faced with newly introduced regulations prohibiting the employment of security
guards without certain prescribed training. The employees did not have that training and
were consequently dismissed. The commissioner held that the CCMA had jurisdiction to
determine the matter as the dismissals were a species of dismissal for incapacity (because
of supervening impossibility of performance) and not of dismissal for operational require-
ments.
93 Discovery Health v CCMA [2008] 7 BLLR 633 (LC).
94 See ch 4.
95 Public Servants Association obo Lessing v Safety and Security Services Bargaining Council
& others [2014] 5 BLLR 484 (LC). See also Grootboom v National Prosecuting Authority &
another [2013] 5 BLLR 452 (LAC), Grootboom v National Prosecuting Authority & another
[2014] 1 BLLR 1 (CC) and Solidarity & another v Public Health and Welfare Sectoral Bar-
gaining Council & others [2013] 4 BLLR 362 (LAC).
96 HOSPERSA & another v MEC for Health [2003] 12 BLLR 1242 (LC).
97 Where an employee is suspended the Labour Court (Solidarity obo Kotze v PHWSBC &
others [2010] 11 BLLR 1203 (LC)) confirmed that an employee is obliged to render his or her
services immediately when such suspension is lifted. The employee obtained work for 90
minutes per day (outside the hours he usually worked for the department). When his em-
ployer became aware of this his contract was terminated in terms of the Public Service
Act on the basis of s 17(3)(a)(ii). In a review application the court agreed with the com-
missioner’s finding that there was no dismissal. The court did not agree with the contention
continued on next page
256 Law@work

employee with the offence of absence from work in terms of the disciplinary code,
the code should be applied and a hearing convened. Section 14(1)(a) of the
Employment of Educators Act 76 of 1998, cast in terms similar to section 17(3)(a)
of the Public Service Act, survived a constitutional attack in the Supreme Court
of Appeal when the court upheld the constitutionality of the provision.98
If employment or continued employment is conditional on some specific re-
quirement or condition being met, the contract terminates automatically if the
condition is not met, and there is no dismissal for the purposes of the LRA. For
example, if an employee is required to obtain a qualification or licence within a
specified time, or is to be released from a restraint of trade agreement with a
previous employer, the contract terminates automatically if these conditions are
not met.99

3 Date of dismissal
The LRA provides that the date of dismissal is the earlier of the date on which
the contract of employment is terminated or on which the employee left the
service of the employer. If employment is terminated on notice, ‘the date of dis-
missal is the date on which the notice expires or, if it is an earlier date, the date
on which the employee is paid all outstanding salary’.100 However, if an employer
has failed to renew a fixed-term contract or offered to renew the contract but
on less favourable terms, the date of dismissal is the date on which the employer

________________________

that s 17(3)(b)(ii) could only come into operation once it has been established that the
employee has absconded (at para 10). The court held that whereas the deemed termin-
ation under sub-para (i) can only be invoked after the expiry of 30 days of absence with-
out authorisation no such prescribed period exists under sub-para (ii). The employer can
invoke the deeming provision as soon as the employee has, without authority, assumed
employment elsewhere (at para 14).
98 Phenithi v Minister of Education & others (2006) 27 ILJ 477 (SCA). Furthermore, it was held
that the discharge of educators under this section cannot be reviewed under the PAJA,
or the common law since such discharge does not require a decision by any official and
therefore does not constitute ‘administrative action’. S 14(2) affords educators an oppor-
tunity to be heard after their discharge and the fact that such a hearing is not mandatory
does not itself render the provision unconstitutional – the employer’s failure to exercise the
discretion as to whether to hear the employee may be challenged. See also Free State
Provincial Government (Department of Agriculture) v Makae (in his capacity as Commis-
sioner of the CCMA, Free State Province & Presiding Officer) & others [2006] 11 BLLR 1090
(LC). A collective agreement providing that employees will be ‘summarily dismissed’ after
being absent without leave for a specified period was not considered a deemed dis-
missal or termination by operation of law. See Minister of Correctional Services v Police
and Prisons Civil Rights Union obo Mmoledi & others [2016] 6 BLLR 637 (LC).
99 In Nogcantsi v Mnquma Local Municipality & others (fn 8) the contract was concluded
subject to a resolutive condition, namely the positive outcome of the vetting process,
which was held not to be in conflict with the LRA, commercially justifiable and an auto-
matic termination of the contract rather than a dismissal.
100 S 190(2)(d) of the LRA.
Unfair dismissal – preliminary topics 257

notified the employee of its intention not to renew or the date on which the em-
ployer offered the less favourable terms.101 If the employer refused to allow an
employee to resume work (after pregnancy), the date of dismissal is the date of
such first refusal.102 In instances where an employer refused to reinstate or re-
employ an employee, the date of dismissal is the date on which the employer
first refused to reinstate or re-employ that employee.103 Section 190(1) does not
apply to constructive dismissals as the employee ‘makes the final decision as to
when she ceases providing services’ and, in terms of section 186(1)(e), can do
so with or without notice.104

4 Dispute resolution
4.1 Referrals to arbitration
The statutory dispute resolution structures are discussed in chapter 17. For pre-
sent purposes, a brief overview of the relevant procedures may be helpful.105 If
a dispute concerns the unfair dismissal of an employee for reasons related to
conduct or capacity, the employee alleges constructive dismissal, or the em-
ployee does not know the reason for the dismissal, the CCMA must arbitrate the
dispute at the request of the employee.106 The employee who was dismissed for
operational requirements may elect to refer an unfair dismissal claim to the
CCMA if that employee was the only one consulted in terms of section 189 of
the LRA, or if the employer employs less than ten employees irrespective of the
number of employees who are retrenched.107 The employee or a duly author-
ised representative must complete and lodge a CCMA Form 7.13 within 90 days
of the date on which the certificate that the dispute remains unresolved after

________________________

101 S 190(2)(a) of the LRA.

102 S 190(2)(b) of the LRA.
103 S 190(2)(c) of the LRA.
104 Helderberg International Importers (Pty) Ltd v McGahey NO & others [2015] 4 BLLR 430
(LC) at para 8.
105 A dispute regarding an unfair dismissal must be referred for conciliation and arbitration
within 30 days from the date of dismissal (or 30 days from the date that the employer took
the final decision to dismiss). An employee may thus refer an unfair dismissal dispute dur-
ing a notice period (s 191(2A)). The LRA also makes provision for the process of ‘con-arb’,
which requires that there must be – immediately continued with – arbitration after un-
successful conciliation. In the event of the dismissal of an employee still on probation the
‘con-arb’ process applies automatically (s 191(5A)), in other cases the parties may con-
sent thereto.
106 S 191 of the LRA.
107 S 191(12) of the LRA. In Bracks NO & another v Rand Water & another [2010] 8 BLLR 795
(LAC) the Labour Appeal Court held that, in accordance with an interpretation that
gives effect to the purpose of s 191(12) of the LRA, the CCMA has jurisdiction in terms of
that section to hear disputes regarding the procedural fairness of a dismissal for oper-
ational requirements involving single employees.
258 Law@work

conciliation is issued. This is the case even if the period of conciliation was ex-
tended.108
The Labour Appeal Court has held that a provision in a contract requiring the
referral of disputes to private arbitration and entailing the waiver of a right under
a collective agreement to refer a dismissal dispute to a council for conciliation
and arbitration is invalid.109

4.2 Referrals to the Labour Court

If the dispute concerns a dismissal for a reason that is automatically unfair, or if
the reason for dismissal is a reason related to the employer’s operational require-
ments, the dispute must be referred to the Labour Court for adjudication within
90 days of the date of the certificate of outcome issued by the commissioner.
In Wardlaw v Supreme Mouldings (Pty) Ltd 110 the Labour Appeal Court con-
firmed that in a dismissal dispute the court’s jurisdiction is not determined by an
employee’s description of the reason for dismissal, but by the actual reason for
the dismissal. Accordingly, if the court was to establish that a dispute should
have been referred for arbitration, the proper course will be to stay proceedings
and refer the matter to the CCMA or bargaining council or, by agreement of the
parties concerned, and with the court’s consent, the court could sit as arbitrator.

4.3 Onus in dismissal disputes

The general rule on the onus of proof is stated in section 192 of the LRA. This sec-
tion provides that in any proceedings concerning a dismissal it is for the em-
ployee to establish the existence of the dismissal and, if the employee succeeds
in doing so, the employer must prove that the dismissal is fair. The existence of a
dismissal is normally proved by reference to the definition in section 186 of the
LRA. Once a dismissal has been established, section 188 provides that a dis-
missal is unfair if the employer fails to prove that the reason for the dismissal is a
fair reason related to the employee’s conduct or capacity, or is based on the
employer’s operational requirements, and that the dismissal was effected in
accordance with a fair procedure. In the case of a reason for dismissal that is
automatically unfair the employee must establish the dismissal and, according
to some judgments, one of the reasons listed in section 187, and if the employee
does so, the dismissal is unfair and no further enquiry is necessary.111

________________________

108 South African Municipal Workers Union obo Manentza v Ngwathe Local Municipality &
others [2015] 9 BLLR 894 (LAC).
109 National Bargaining Council for the Road Freight Industry & another v Carlbank Mining
Contracts (Pty) Ltd & another [2012] 11 BLLR 1110 (LAC).
110 (2007) 28 ILJ 1042 (LAC). The CCMA’s territorial jurisdiction is determined by the referring
party’s pleaded case (eg an employee working at the London office of a statutory body
dismissed for alleged misconduct with nothing indicating that the London office was a
separate undertaking fell under the CCMA’s jurisdiction) – Monare v South African Tour-
ism & others [2016] 2 BLLR 115 (LAC).
111 Refer to ch 10 at para 1 ‘Introduction’ where the onus in the context of automatically
unfair dismissals is discussed.
Unfair dismissal – preliminary topics 259

In the case of dismissals for misconduct the CCMA does not review the pro-
cedure adopted by the employer in the workplace. The commissioner is re-
quired to make a judgment on the facts that are established by the evidence
led at the arbitration, applying a test of proof on a balance of probability.112
The commissioner is also required to determine the fairness of dismissal as a
sanction for any misconduct or incapacity that is established. This does not
mean that in determining the appropriateness of dismissal as a sanction the
commissioner has an unconstrained discretion to substitute any lesser penalty
for an employer’s decision to dismiss.113 There was some controversy about the
deference, if any, that a commissioner was required to extend to an employer’s
decision to dismiss. In Rustenburg Platinum Mines Ltd (Rustenburg Section) v
CCMA & others114 the Supreme Court of Appeal held that commissioners ought
to exercise caution when interfering with employers’ decisions to dismiss and
that they were not at liberty to interfere only because they would have imposed
a different sanction. On appeal, the Constitutional Court overruled the Supreme
Court of Appeal and took a different approach.115 The court held that it was the
commissioner’s sense of fairness and not the employer’s view that must prevail.
But this did not mean that a commissioner is at liberty to impose the sanction that
he or she would have imposed; the commissioner must ask whether the em-
ployer’s decision to dismiss was fair. This requires the commissioner to make a
value judgement with due regard to the interests of both the employer and the
employee.
In the majority judgment, Navsa AJ went on to explain how this constrained
value judgement should be exercised:
In approaching the dispute impartially a commissioner will take into account the
totality of circumstances. He or she will necessarily take into account the import-
ance of the rule that had been breached. The commissioner must of course con-
sider the reason the employer imposed the sanction of dismissal, as he or she must
take into account the basis of the employee’s challenge to the dismissal. There
are other factors that will require consideration. For example, the harm caused by
the employee’s conduct, whether additional training and instruction may result in
the employee not repeating the misconduct, the effect of dismissal on the em-
ployee and his or her service record. This is not an exhaustive list.
To sum up. In terms of the LRA, a commissioner has to determine whether a dis-
missal is fair or not. A commissioner is not given the power to consider afresh
________________________

112 In Ndimande and Hlangasa (2009) 30 ILJ 1667 (CCMA) it was decided that where there
are two contrasting versions of events (eg the employer contending that the employee
voluntarily resigned while the employee alleges that she had been dismissed) the onus is
on the respondent employer to show on a balance of probabilities that its version is more
probable and acceptable. See also First Garment Rental (Pty) Ltd v CCMA & others
[2015] 11 BLLR 1094 (LAC).
113 Rustenburg Platinum Mines Ltd (Rustenburg Section) v CCMA & others [2006] 11 BLLR 1021
(SCA). See also County Fair Foods (Pty) Ltd v CCMA [1999] 11 BLLR 1117 (LAC) where the
Labour Appeal Court developed the requirement of deference to the employer in re-
lation to sanction. See also Myburgh SC and Van Niekerk ‘Dismissal for Misconduct: The
Reasonable Employer and Other Approaches’ (2000) 21 ILJ 2145.
114 Fn 113.
115 Sidumo v Rustenburg Platinum Mines Ltd & others [2007] 12 BLLR 1097 (CC).
260 Law@work

what he or she would do, but simply to decide whether what the employer did
was fair. In arriving at a decision a commissioner is not required to defer to the de-
cision of the employer. What is required is that he or she must consider all relevant
circumstances.116
The decision of the Supreme Court of Appeal in Edcon Ltd v Pillemer NO &
others117 requires that an employer should not take for granted that certain
kinds of misconduct, especially those involving dishonesty, necessarily imply that
the relationship of trust and confidence has been destroyed. The employer
needs to lead sufficient evidence to justify such a conclusion.118 According to
the Labour Appeal Court, it means that it is not necessary to lead evidence
relating to the effect of misconduct on the trust relationship where the gravity of
the misconduct speaks for itself but only in those cases where conduct is less
serious.119

5 Remedies for unfair dismissal

5.1 Introduction
If an employee is found to have been unfairly dismissed, there are three possible
remedies that an arbitrator or the Labour Court is empowered to award in terms
of section 193(1):
l reinstatement from any date not earlier than the date of dismissal;120
l re-employment in either the same work or into other reasonably suitable work
from any date not earlier than the date of dismissal; or
l compensation.

________________________

116 Ibid at paras 78–79. See also Myburgh ‘Determining and Reviewing Sanction after Sidumo’
(2010) 31 ILJ 1 in which this approach is referred to as the ‘impartial commissioner’ test.
117 [2010] 1 BLLR 1 (SCA).
118 In Miyambo v CCMA & others [2010] 10 BLLR 1017 (LAC) the Labour Appeal Court held
that dismissal after the theft of scrap metal was an appropriate sanction, and a fair oper-
ational response from the employer’s side. See Smit ‘How do you Determine a Fair Sanc-
tion? Dismissal as Appropriate Sanction in Cases of Dismissal for (Mis)Conduct’ (2011) 1 De
Jure 47.
119 See Woolworths (Pty) Ltd v Mabija & others [2016] 5 BLLR 454 (LAC) and Autozone v Dis-
pute Resolution Centre of Motor Industry & others [2019] 6 BLLR 551 (LAC). In the latter
case the Labour Appeal Court had regard of the ‘nature of the offence and the manner
of its commission’ to accept that ‘the continuation of the relationship had become in-
tolerable’ where the driver was guilty of ‘[d]ishonest conduct, deceitfully and consciously
engaged in against the interests of the employer’ (at para 13). An employer should how-
ever be careful, as it would be ‘prudent normally to lead evidence . . ., unless the con-
clusion that the relationship has broken down is apparent from the nature of the offence
and/or the circumstances of the dismissal’ (at para 11).
120 See para 3 ‘Date of dismissal’. The date of dismissal is the date on which a notice of ter-
mination of employment expired, unless the employee was released from service earlier
(s 190(1) of the LRA). Where an employee is summarily dismissed, the date of dismissal is
the date that the employee is discharged. It must be noted that where there is an in-
ternal appeal this does not ‘extend’ the date of dismissal.
Unfair dismissal – preliminary topics 261

Reinstatement and re-employment are the primary remedies,121 and an unfairly

dismissed employee is entitled to an award of reinstatement or re-employment
unless:122
l the employee does not wish to be reinstated or re-employed;
l the circumstances surrounding the dismissal are such that a continued em-
ployment relationship would be intolerable;123
l it is not reasonably practicable for the employer to reinstate the employee;
or
l the dismissal is unfair only because the employer did not follow a fair pro-
cedure.
Other unspecified remedies remain available to dismissed employees in circum-
stances where the reason for dismissal was related to the employer’s operational
requirements, or where the employees were dismissed in circumstances that
amounted to an act of unfair discrimination. The court is entitled in these cir-
cumstances to make any ‘other order that it considers appropriate in the cir-
cumstances’.124

________________________

121 In the event of a substantively unfair dismissal the employee concerned is entitled to
reinstatement unless the employer leads evidence to prove one of the statutory excep-
tions. See Visser v Mopani District Municipality & others [2012] 3 BLLR 266 (SCA) and Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration &
others [2008] 12 BLLR 1129 (CC), where the Constitutional Court stated: ‘Reinstatement is
the primary statutory remedy in unfair dismissal disputes. It is aimed at placing an em-
ployee in the position he or she would have been but for the unfair dismissal. It safe-
guards workers’ employment by restoring the employment contract’ (at para 36). See
also SA Commercial Catering & Allied Workers Union & others v Woolworths (Pty) Ltd
(2019) 40 ILJ 87 (CC) when the Constitutional Court noted that ‘[i]t is by now axiomatic
that reinstatement is the primary remedy that the LRA affords employees whose dismissals
are found to be substantively unfair’ (at para 43).
122 S 193(2) of the LRA. In New Clicks SA (Pty) Ltd v CCMA & others (2008) 29 ILJ 1972 (LC) the
court held that s 193(2) of the LRA should be sparingly invoked and that the primary rem-
edy of reinstatement should be refused only after careful consideration of all relevant
circumstances. An employer who alleges that a continued employment relationship
would be intolerable bears the onus of leading evidence in this regard. See also Xstrata
South Africa (Pty) Ltd (Lydenburg Alloy Works) v National Union of Mineworkers obo
Masha & others [2017] 4 BLLR 384 (LAC) where the court interpreted s 193(2) to mean that
reinstatement would be futile; in Toyota SA Motors (Pty) Ltd v CCMA & others (fn 15) the
court held that reinstatement was not reasonably practicable where dismissal ‘interrupted
resignation’.
123 See Kroukam v SA Airlink (Pty) Ltd [2005] 12 BLLR 1172 (LAC) where the Labour Appeal
Court held that mere allegations that the employment relationship had broken down
and that continued employment was not feasible were not sufficient. See also Matseko-
leng v Shoprite Checkers (Pty) Ltd [2013] 2 BLLR 130 (LAC). The presiding officer must,
however, consider whether circumstances had rendered continued employment intoler-
able – Moodley v Department of National Treasury & others [2017] 4 BLLR 337 (LAC). Intol-
erability was successfully raised by the employer where the dismissed employee used a
racial slur in South African Revenue Service v CCMA & others 2017 (1) SA 549 (CC).
124 S 193(3) of the LRA. A footnote to s 193(3) suggests that in a discrimination case the court
may consider granting an interdict against any discriminatory practice.
262 Law@work

The differing interpretations that previously existed all turned on the use of the
word ‘or’ in section 193(1) and whether it is intended to be disjunctive. In prac-
tice, the retrospective component of a reinstatement order is generally con-
sidered to compensate the employee for any period of unemployment resulting
from the dismissal.125
The decisions by the Supreme Court of Appeal in Republican Press (Pty) Ltd v
Chemical, Energy, Printing, Paper, Wood & Allied Workers Union126 and by the
Constitutional Court in Equity Aviation Services (Pty) Ltd v CCMA127 have respect-
ively clarified much of the uncertainty that previously existed. In essence, they
confirm that back pay is not to be equated with compensation, that there is no
reason why an order of reinstatement cannot be made retrospective to the
date of dismissal even if this is beyond the periods of 12 or 24 months that apply
to awards of compensation, and that while the passage of time or any delay in
the proceedings is a factor to be taken into account in assessing the imprac-
ticability of an award of reinstatement, it is not a bar to such an order being
made.128

5.2 Reinstatement or re-employment

Section 193 of the LRA clearly establishes reinstatement or re-employment as the
primary remedies for an unfair dismissal. Although the Act does not define either
concept, reinstatement, on the one hand, implies that the period of service
between the date of dismissal and the reinstatement order remains unbroken
and, in spite of the dismissal, employment is regarded as continuous. The Consti-
tutional Court has stated that reinstatement is aimed at ‘placing the employee
in the position that they would have been or that they would have occupied,
but for the unfair dismissal’.129 A reinstatement order thus effectively requires the
employer to place the employee in the position in which the employee would
have been but for the dismissal. The employee is generally entitled to be paid
for any retrospective period of reinstatement and to the benefits that accrued
to the employee during that period.130

________________________

125 The debate whether an employee is entitled to more than one remedy, eg reinstatement
and compensation, was disposed of in MEC for Tourism, Environment and Economic
Affairs: Free State v Nondumo, ZM & others [2005] 10 BLLR 974 (LC). In that matter the
court held that s 194(4) limits compensation to 12 months and it cannot be awarded
alongside reinstatement.
126 (2007) 28 ILJ 2503 (SCA).
127 Fn 121. See also Toyota SA Motors (Pty) Ltd v CCMA & others (fn 15).
128 See Le Roux ‘Getting Clarity: The Difference Between Compensation, Damages, Reinstate-
ment and Backpay’ (2011) 32 ILJ 1520 at 1544. Back pay continues to accumulate pend-
ing an unsuccessful appeal – National Union of Metal Workers of South Africa obo Fohlisa
& others v Hendor Mining Supplies A Division of Marschalk Beleggings (Pty) Ltd [2014] 2
BLLR 185 (LC).
129 SA Commercial Catering and Allied Workers Union & others v Woolworths (Pty) Ltd
(fn 121) at para 45.
130 In Themba v Mintroad Sawmills (Pty) Ltd [2015] 2 BLLR 174 (LC) the dismissed employee
was entitled to loss of income proved including increases and benefits that would have
continued on next page
Unfair dismissal – preliminary topics 263

The circumstances in which reinstatement and re-employment should not be

granted are listed above. In Kroukam v SA Airlink (Pty) Ltd, the Labour Appeal
Court confirmed that a court or arbitrator has no discretion not to award re-
instatement or re-employment unless one of the listed factors is present.131 How-
ever, in Matsekoleng v Shoprite Checkers (Pty) Ltd 132 the Labour Appeal Court
held that although reinstatement is generally appropriate when an employee’s
dismissal is substantively unfair, it may not be granted when an employment
relationship is rendered unsustainable by the employee’s allegations against his
or her superiors and by his or her poor disciplinary record. Furthermore, while the
primary relief for unfairly dismissed employees is reinstatement, the Labour
Appeal Court has cautioned that the period of retrospectivity of an order must
be fair to both employer and employees (which could mean a reduction in
back pay).133 The court has also confirmed that reinstatement is not a com-
petent remedy when dismissal is only procedurally unfair.
In SA Commercial Catering & Allied Workers Union v Woolworths (Pty) Ltd,134
the Constitutional Court noted that the LRA does not define what is meant by
‘reasonably practicable’ in the form of a bar to reinstatement, but suggested
that it was evident that it meant more than mere inconvenience and requires
evidence of a ‘compelling operational burden’.

5.3 Compensation
Compensation awarded to an employee whose dismissal is found to be unfair
either because the employer did not prove that the reason for dismissal was a
fair reason related to the employee’s conduct, capacity or the employer’s oper-
ational requirements or because the employer did not follow a fair procedure,
or both, must be ‘just and equitable’ in all the circumstances, but not more than
the equivalent of 12 months’ remuneration (section 194). In the case of auto-
matically unfair dismissals, there is a discretion to award up to 24 months’ com-
pensation.
________________________

been received during absence from employment. However, it did not include payment
in lieu of annual leave not taken after dismissal and before resuming work in terms of the
reinstatement order. This means that the employee is placed in the position that he or she
was before the dismissal. However, the employee may not seek to be placed in a posi-
tion into which the employee contends that he or she would have been promoted, but
for the dismissal (see National Commissioner of the South African Police & another v Myers
[2018] 9 BLLR 882 (LAC)). The employee is similarly not entitled as of right to the payment
of any discretionary bonus foregone between the date of dismissal and the order of
reinstatement (see Pikitup Johannesburg (SOC) Ltd v Mutero (2019) 40 ILJ 1030 (LAC)).
Re-employment, on the other hand, implies that the effect of the order is the creation of
a new employment relationship, or, more accurately, the resumption of the relationship
interrupted by the dismissal.
131 Confirmed by the Supreme Court of Appeal in Visser v Mopani District Municipality &
others (fn 121).
132 Fn 123. See also Dunwell Property Services CC v Sibande & others [2012] 2 BLLR 131 (LAC).
133 Mediterranean Textile Mills (Pty) Ltd v SACTWU & others [2012] 2 BLLR 142 (LAC). Owing to
the employer’s poor financial position, back pay was reduced from 27 months to 12.
134 Fn 121.
264 Law@work

There is no definition of what might be ‘just and equitable’ when an amount

of compensation is considered.135 What is clear is that commissioners and the
labour courts have a discretion as to the amount of compensation to be
awarded, and that the discretion must be exercised judicially.136 This broad
qualification to determining the amount of compensation to be awarded has
given rise to inconsistency both in the amount awarded as well as the factors
that are considered relevant in arriving at the appropriate amount. The Labour
Court has provided limited guidance in this regard.137
When an employee refuses a genuine and reasonable offer of reinstatement
by an employer and the employee’s refusal is unreasonable, he or she will not
be entitled to claim compensation. Such conduct undermines one of the pri-
mary objects of the LRA, namely the effective and speedy resolution of dis-
putes.138
In Northern Province Local Government Association v CCMA & others,139 the
Labour Court held that an employee must be properly informed of all the cir-
cumstances that would render the amount of compensation awarded just and
equitable. This in turn would imply that commissioners and the courts cannot
merely ‘pull an amount out of a hat’. It should be apparent from the award that
the commissioner applied his or her mind to relevant factors in arriving at a just
and equitable conclusion as to the amount of compensation to be awarded. In
Tibbett and Britten (South Africa) (Pty) Ltd v Marks & others,140 for example, the
Labour Court reviewed and set aside an award of 12 months’ compensation in
circumstances where the employee had been found guilty of using a company
credit card for personal use. The court considered the amount excessive and a
reward for committing misconduct. The compensation was halved by the
Labour Court taking into account factors such as the length of time that the
employee was unemployed, the amount spent on the credit card and the con-
duct of the disciplinary and appeal chairpersons respectively.

________________________

135 See Fourie v Capitec Bank [2005] 1 BALR 29 (CCMA) for one of the few awards that actu-
ally considered the amount of compensation to be awarded (ie, deciding what is just and
equitable). The commissioner, relying on Hoffmann v SA Airways (2000) 21 ILJ 2357 (CC),
held that fairness requires a consideration of the interests of all who might be affected by
the order. It was therefore held that not only the interests of the employee but also those
of the employer had to be considered.
136 In Transnet Ltd v CCMA & others (2008) 29 ILJ 1289 (LC) the court held that where a com-
missioner had ignored the reprehensible nature of the employee’s misconduct (serious
assault) the award of six months’ compensation was not ‘just and equitable’.
137 In fact, the Labour Appeal Court has held that where a commissioner does not provide
reasons for the amount of compensation awarded for a substantively unfair dismissal, this
does not in itself amount to a reviewable irregularity of such award – ABSA Brokers (Pty)
Ltd v Moshoana NO (2005) 26 ILJ 1652 (LAC). In Viney v Barnard Jacobs Mellet Securities
(Pty) Ltd (2008) 29 ILJ 1564 (LC) the Labour Court stated that when considering whether
compensation is ‘just and equitable’ the interests of both the employer and employee
must be taken into consideration.
138 Rawlins v Kemp t/a Centralmed [2011] 1 BLLR 9 (SCA).
139 [2001] 5 BLLR 539 (LC).
140 [2005] 7 BLLR 717 (LC).
Unfair dismissal – preliminary topics 265

What is unclear is whether a discretion to award no compensation exists. The

wording of section 194 (as amended in 2002) suggests that this is the case, and
the CCMA and the Labour Court are not precluded from effectively making a
declaratory order to the effect that a dismissal was procedurally unfair, with no
attached order of compensation.
This has typically been done in cases where the employer, after conceding
the unfairness of a dismissal, makes an unconditional offer of reinstatement,
which is then refused by the employee. In those cases where employers have
sought to escape compensation orders on account of offers of adequate re-
dress the courts have taken a number of factors into account. These include:
l whether the employer provided the employee with substantially the same
kind of redress. In most cases where employers have offered unconditional
reinstatement after an unfair dismissal, the courts have declined to award
compensation in circumstances where the employee has refused the offer;141
l whether the employer’s ability and willingness to make any redress has been
frustrated by the conduct of the employee;
l whether the employer secured alternative employment for the employee;
and
l the degree to which the employer deviated from the requirements of fair
procedure.142
The courts previously drew a distinction between the patrimonial or monetary
loss suffered by a dismissed employee and the right to compensation, and held
that the extent of any loss or the damages suffered by an employee are not
relevant to a determination of the amount of compensation that should be
awarded. This approach has generally been continued after the 2002 amend-
ments and in FAWU & others v SA Breweries143 the Labour Court described com-
pensation as a solatium or payment for the anxiety and hurt suffered by the em-
ployee as a consequence of being unfairly dismissed.144 Another way of viewing
the purpose of compensation is as a penalty imposed on the employer for
effecting an unfair dismissal as opposed to the restitution of financial loss. In
Smith v The Kit Kat Group (Pty) Ltd145 an employee who had attempted suicide
________________________

141 Mkhonto v Ford NO & others [2000] 7 BLLR 768 (LAC).

142 See Scribante v Avgold Limited: Hartebeesfontein Division [2000] 11 BLLR 1342 (LC) where
the court discussed the considerations that must be taken into account when determin-
ing the appropriateness of awarding compensation. See also Ferodo (Pty) Ltd v De Ruiter
(1993) 14 ILJ 974 (LAC) regarding quantum of compensation.
143 [2004] 11 BLLR 1093 (LC).
144 See ARB Electrical Wholesalers (Pty) Ltd v Hibbert [2015] 11 BLLR 1081 (LAC): ‘it is a pay-
ment for the impairment of the employee’s dignity. This monetary relief is referred to as a
solatium and it constitutes a solace to provide satisfaction to an employee whose con-
stitutionally protected right to fair labour practice has been violated. The solatium must
be seen as a monetary offering or pacifier to satisfy the hurt feeling of the employee
while at the same time penalising the employer. It is not however a token amount hence
the need for it to be “just and equitable” and to this end salary is used as one of the tools
to determine what is “just and equitable”’ (at para 23).
145 [2016] 12 BLLR 1239 (LC).
266 Law@work

was not allowed to resume work because of his disfigured face and impaired
speech. There was no attempt by the employer to accommodate his disability.
The Labour Court referred to how previous automatically unfair dismissal cases
dealt with compensation146 and accepted that ‘the determination of what is
“just and equitable” compensation in terms of the LRA is a difficult horse to ride’.
The court then reiterated the principles to be used as a guideline in deciding on
appropriate compensation:147
l the nature and seriousness of the injuria;
l the circumstances in which the infringement took place;
l the behaviour of the defendant (especially whether the motive was honour-
able or malicious);
l the extent of the plaintiff’s humiliation or distress;
l the abuse of a relationship between the parties; and
l the attitude of the defendant after the injuria occurred.148
Compensation is not a substitute for any other amount to which an employee
may be entitled consequent on an unfair dismissal. Section 195 provides that
compensation is in addition to any other amount to which the employee is
entitled in terms of any law, collective agreement or contract of employment.
For example, an award of compensation does not affect an employee’s right
to severance pay or to remuneration in lieu of notice. Whether an employee is
entitled to claim contractual damages for an unlawful dismissal in addition to
compensation for unfair dismissal is not a point that has been decided by the
courts, but in principle it would seem that the employee is entitled to claim both
and benefit from both claims. It is likely that the amounts of damages and com-
pensation respectively would be taken into account in determining the quan-
tum to which an employee is entitled in each instance.
The amount of compensation must be calculated on the basis of the rate of
remuneration on the date of dismissal. As explained above, ‘remuneration’ is
defined in section 213 of the LRA and includes both the cash and kind com-
ponents of a remuneration package.149

________________________

146 At 1261, quoting Chemical Energy Paper Printing Wood and Allied Workers Union & another
v Glass and Aluminium 2000 CC [2002] 5 BLLR 399 (LAC): ‘It is a dismissal that undermines
the fundamental values that the labour relations community in our country depends on
to regulate its very existence. Accordingly such a dismissal deserves to be dealt with in a
manner that gives due weight to the seriousness of the unfairness to which the employee
so dismissed has been subjected . . . It must also take into account the fact that such a
dismissal is viewed as the most egregious under the Act. Accordingly, there must be a
punitive element in the consideration of compensation’.
147 See ARB Electrical Wholesalers (Pty) Ltd v Hibbert (fn 144) at paras 23–24.
148 Referring to Minister of Justice & Constitutional Development v Tshishonga [2009] 9 BLLR
862 (LAC) at para 18.
149 In Zapop (Pty) Ltd v CCMA & others [2016] 9 BLLR 910 (LAC) the employee was awarded
compensation based in part on commision due, which is included in remuneration as de-
fined in the BCEA.
Unfair dismissal – preliminary topics 267

5.4 Procedure in the event of unfair retrenchments

Special procedures exist for disputes about fair procedure in retrenchment. Sec-
tion 189A(13) provides that if an employer does not comply with fair procedure
in these circumstances, a consulting party may approach the Labour Court by
way of an application for an order for particular remedies.150

________________________

150 See ch 12 at para 3 ‘Procedural fairness’ and para 4 ‘The consultation process’.
10
Automatically unfair reasons for
dismissal

Page
1 Introduction .................................................................................................... 271
2 Dismissals contrary to section 5 .................................................................... 274
3 Participation in a protected strike or protest action.................................. 276
4 Refusal to do work normally done by striking employees ......................... 277
5 Employee’s refusal to accept a demand in respect of any matter of
mutual interest ............................................................................................... 278
6 Dismissal for exercising any right conferred by the LRA ............................ 279
7 Pregnancy, intended pregnancy or any reason related to
pregnancy ...................................................................................................... 282
8 Unfair discrimination ...................................................................................... 284
9 A transfer contemplated by section 197 .................................................... 289
10 A dismissal in breach of the PDA ................................................................. 290

269
Automatically unfair reasons for dismissal 271

1 Introduction
Section 187 of the LRA lists a number of reasons for dismissal that, if established,
are ‘automatically unfair’. This means that the dismissal of the employee is unfair
simply by virtue of the reason for the dismissal, and it is not open to the employer
to justify its decision to dismiss the employee. In other words, once it has been
proven that an employee was dismissed for one of the automatically unfair
reasons listed in section 187, the employer will not be afforded the opportunity
to discharge the onus of showing that the dismissal was fair, and the proceed-
ings must move directly to a consideration of the remedy to which the em-
ployee is entitled.
International labour law recognises two kinds of reasons that are automatic-
ally unfair: reasons involving discrimination and reasons related to the worker’s
exercising a right.1 The form that the dismissal might take is not relevant – a con-
structive dismissal, for example, can have as its underlying basis an automatic-
ally unfair reason where an employer makes continued employment intolerable
because the employee who resigned joined a trade union.
It may happen that an employer has more than one reason for dismissal, one
of them automatically unfair and the other not, or that an employer attempts to
avoid the consequences of an automatically unfair dismissal by clothing the
dismissal in terms that might have less severe consequences. When an em-
ployee falls pregnant, for example, the employer might seek to contrive some
other basis for dismissal. The Labour Court has stated that if the ‘main reason’ for
dismissal is automatically unfair, the employer is not entitled to rely on an ancil-
lary reason to escape the consequences of its actions. In other words, it will not
assist the employer to show that the dismissal was effected for some other sec-
ondary reason that is not automatically unfair. In the above example, if the em-
ployee was dismissed for reasons related to her pregnancy, the employer would
not be able to rely on the employee’s incapacity as an ancillary ground for the
dismissal, and seek to justify it on that basis. The Labour Court would enquire into
the extent to which the automatically unfair reason contributed to the decision
to dismiss the employee, and determine the main or proximate reason for dis-
missal on that basis.
The LRA provides special compensatory awards in the case of automatically
unfair dismissals. If an employee’s dismissal was for an automatically unfair
reason, the employee is entitled to reinstatement or compensation to a max-
imum amount of 24 months’ remuneration (in contrast to the limit of 12 months’
remuneration in other cases).
The LRA does not deal specifically with the onus of proof in cases where an
automatically unfair reason for dismissal is alleged.2 It is clear from the cases that
the Labour Court has required the employee to establish the existence of a dis-
missal (as required by section 192(1)) and, in addition, to lead some evidence to

________________________

1 Convention No. 158 of 1982 and Recommendation No. 166 of 1982.

2 See also ch 9 at para 4.3 ‘Onus in dismissal disputes’.
272 Law@work

at least establish a prima facie case that an automatically unfair reason was the
effective or the main reason for the dismissal. This does not mean that the em-
ployee bears the onus of proving the automatically unfair reason.3 The Labour
Appeal Court has confirmed that the employer bears the onus of proving the
fairness of the dismissal.4 In Janda v First National Bank,5 the Labour Court made
the point in the following way:
This essential point is obscured if one speaks of ‘the employee must prove’ or a
‘shifting’ of the onus or a duty to establish a prima facie case that the reason for
the dismissal was an automatically unfair one. The evidentiary burden placed
upon an employee creates the need for there to be sufficient evidence to cast
doubt on the reason for the dismissal put forward by the employer or, to put it dif-
ferently, to show that there is a more likely reason than that of the employer . . .
The essential question however remains, after the court has heard all the evi-
dence, whether the employer upon whom the onus rests of proving the issue, has
discharged it.6
The court expressly rejected the approach of the Labour Court in Mafomane v
Rustenburg Platinum Mines Ltd,7 and held that section 192(2) expressly places
the onus on the employer ‘where it remains throughout the trial’. The court found
that this does not place too onerous a duty on the employer in the context of
an automatically unfair dismissal, as the employer knows why he or she dismissed
the employee.
The question of onus has been the subject of a number of other decisions. In De
Beer v SA Export Connection CC t/a Global Paws8 the court held that, although
________________________

3 In Mashava v Cuzen & Woods Attorneys (2000) 21 ILJ 402 (LC) the court held that once
the applicant had made out a prima facie case, it was for the employer to prove that the
employee was dismissed for a reason that is not automatically unfair (at para 20).
4 In Kroukam v SA Airlink (Pty) Ltd [2005] 12 BLLR 1172 (LAC), Davis AJA said that ‘In my view,
section 187 imposes an evidential burden upon the employee to produce evidence
which is sufficient to raise a credible possibility that an automatically unfair dismissal has
taken place. It then behoves the employer to prove the contrary, that is to produce evi-
dence to show that the reason for the dismissal did not fall within the circumstance envis-
aged in s 187 for constituting an automatically unfair dismissal’ (at para 28).
5 [2006] 12 BLLR 1156 (LC).
6 At 1162 (at para 18). The court continued: ‘To the extent that it may be capable of such
an interpretation, I also do not believe that it was ever intended in the Mashava v Cuzen
& Woods Attorneys and Kroukam v SA Airlink cases, supra, to hold that there is a duty
upon the employee, in the sense of an evidentiary burden, to raise an issue with sufficient
evidence before the court would entertain the matter. Contrary to the position in the Eng-
lish law, our law has recognized only one additional burden to the onus, and that is the
evidentiary burden to adduce evidence to rebut an opponent’s evidence’ (at para 19).
7 [2003] 10 BLLR 999 (LC). In this case, the court held that the employee bears the onus of
proving that the dismissal was of a kind contemplated by s 187.
8 [2008] 1 BLLR 36 (LC): ‘It was held in Kroukam v SA Airlink (Pty) Ltd . . . that section 187 . . .
imposes an evidential burden upon the employee to produce evidence, which is suffi-
cient to raise a credible possibility that an automatically unfair dismissal has taken place
. . . In my view, the onus to prove that the dismissal was not automatically unfair rests on
the employer. The applicant must adduce some evidence to raise the issue whether the
dismissal is for a reason related to pregnancy. Once this is done, the respondent must re-
fute this in the course of establishing a fair reason’ (at para 13). In Chizunza v MTN (Pty) Ltd
continued on next page
Automatically unfair reasons for dismissal 273

there is an evidential burden on the employee, the onus to prove that the dis-
missal was not automatically unfair remains with the employer. In the later case
of Atkins v Datacentrix (Pty) Ltd 9 the court held that it is trite that section 187 of
the LRA imposes an evidential burden upon the employee to:10 ‘produce evi-
dence which is sufficient to raise a credible possibility that an automatically
unfair dismissal has taken place’. The court continued that ‘it is then for the re-
spondent to produce evidence to show that the reason for the dismissal did not
fall within the circumstances envisaged in section 187 of the LRA’.
In POPCRU & others v Department of Correctional Services & another 11 the
court explained the onus of proof in circumstances involving unfair discrimin-
ation (section 187(1)(f) matters). The court held that the applicants ‘were settled
with the onus of proving the discrimination they complained of. If successful, the
onus would then shift to the respondents as the proved discrimination would be
presumed to be unfair’.12 The court made express reference to causality and
stated that should a causal link be established on a balance of probabilities
between the prohibited reasons for dismissal in section 187 and the actual dis-
missal then no justification can be offered by the employer ‘and the employee
automatically qualifies for the privileges conferred upon the special category of
dismissals, namely a rebuttal presumption of unfairness and an entitlement to
double the ordinary compensation awarded’.13 (It should be noted that, strictly
speaking, there is no ‘entitlement’ to double the ordinary compensation be-
cause the court has a discretion as to the amount of compensation to be
awarded.)
The courts must establish whether the true reason for the dismissal is covered
by one or other of the provisions of section 187 and have done so by using the
two-fold test of factual and legal causation as formulated in SACWU & others v
Afrox Ltd.14 In the Afrox case the Labour Appeal Court held that the strike must
________________________

& others [2008] 10 BLLR 940 (LC) the employee’s burden was stated more forcefully (at
para 20): ‘it must be pointed out that it is trite that the employee must not only prove the
existence of a dismissal, he or she must also prove the existence of an automatically unfair
dismissal’. The court’s explanation seems to work with a shifting burden of proof, also refer-
ring to the Kroukam decision (at para 20): ‘In my view, section 187 imposes an evidential
burden upon the employee to produce evidence which is sufficient to raise a credible
possibility that an automatically unfair dismissal has taken place. It then behoves the em-
ployer to prove to the contrary, that is to produce evidence to show that the reason for
the dismissal did not fall within the circumstance envisaged’.
9 [2010] 4 BLLR 351 (LC).
10 At para 13.
11 2010 (9) BCLR 921 (LC).
12 At para 215.
13 Ibid. See also Cohen ‘Onus of Proof in Automatically Unfair Dismissals: Janda v First Na-
tional Bank (2006) 27 ILJ 2627 (LC)’ (2007) 28 ILJ 1465.
14 [1999] 10 BLLR 1005 (LAC). See, eg, Van der Velde v Business and Design Software (Pty) Ltd
& another (1) [2006] 10 BLLR 995 (LC); see also Atkins v Datacentrix (Pty) Ltd (fn 9) where
the court held that before accepting an offer of employment there rests no duty of disclosure
regarding a proposed sex change operation on an employee. The true and proximate
reason for the dismissal was not the non-disclosure of such intention, but discrimination
based on gender. See also para 3 ‘Participation in a strike or protest action’.
274 Law@work

have been the proximate cause of the dismissals. In the Kroukam case the
Labour Appeal Court, per Zondo JP, held that even if the employee’s union
activities were not the dominant or principal reason for his dismissal he would still
find the dismissal automatically unfair if this reason played a significant role in
the decision to dismiss the appellant.15 In the same matter, Davis AJA held that
the enquiry into the reason for the dismissal is an objective one, and the issue is
essentially one of causation.16 In Van der Velde v Business and Design Software
(Pty) Ltd & another (2)17 Van Niekerk AJ summarised the position as follows:
Assuming the test of factual causation (the ‘but for’ test referred to in Afrox) to be
satisfied, the enquiry is into legal causation, or put another way, whether the trans-
fer or a reason related to it is the dominant, proximate or most likely cause of the
dismissal . . . On both approaches, it is clear that the automatically unfair reason
need not be the sole reason for dismissal.
We now discuss each of the automatically unfair reasons for dismissal listed in
section 187.

2 Dismissals contrary to section 5

The primary purpose of section 5 of the LRA is to protect the right to freedom of
association, both in respect of employees and in some cases, those seeking
employment.18 The right to freedom of association in an employment context
extends to the right of employers and employees to establish organisations and
protects the means of those organisations to further and defend the interests of
their members. An employee may not be dismissed for exercising this right in any
way. In particular, an employee may not be dismissed for participating in the
formation of a trade union, being or becoming a member of a trade union, or
participating in the lawful activities of a trade union. The same rights are ex-
tended in relation to membership of or participation in the affairs and activities
of a workplace forum.19 An employee may also not be prejudiced for failing or
refusing to do something that an employer may not lawfully require an em-
ployee to do.20 In other words, an employer cannot force an employee under

________________________

15 At 1206 (at para 103).

16 Davis AJA appeared to require more than ‘significant influence’.
17 [2006] 10 BLLR 1004 (LC) at 1012. See also EWN v Pharmaco Distribution (Pty) Ltd (2016) 37
ILJ 449 (LC) where the ‘predominant reason’ for the employee’s dismissal was her refusal
as a person with a bipolar condition to undergo a medical examination which she would
not have been required to undergo but for her condition. (Here the stigmatising effect of
being singled out on the basis of an illness and requiring her to submit to the examination
also constituted unfair discrimination in terms of s 6 of the EEA. See para 8 ‘Unfair discrim-
ination’.)
18 S 5(2) of the LRA.
19 Workplace forums are statutory vehicles for worker participation and joint decision-making
regulated by ch V of the LRA.
20 See FAWU & another v The Cold Chain [2007] 7 BLLR 638 (LC) regarding the dismissal of an
employee for refusing to resign as a shop steward.
Automatically unfair reasons for dismissal 275

threat of dismissal to do anything that is prohibited inter alia in terms of a collect-

ive agreement, health and safety legislation, or the BCEA.
Finally, section 5(2)(c)(vi) and (vii) of the LRA also prohibit the dismissal of an
employee for exercising any right conferred by the LRA or participating in any
proceedings in terms of the LRA. These proscriptions are repeated in section
187(1)(d) and are discussed in more detail below. Some of the more interesting
cases that have been decided in this context concern claims by managerial
employees to trade union rights. This is generally not a problem in relation to
workplace forums, as Chapter V of the LRA establishes a separate definition of
‘employee’ to demarcate the line that divides employee representatives from
management. By definition the employee owes an obligation of good faith to
the employer and is required to promote the employer’s interests. Is there a con-
flict of interest when a managerial employee joins a union or accepts office in a
union? To what extent will any limitations that the employer may seek to impose
(including a threat of dismissal) constitute a breach of section 5? The answer, it
would seem, is that the employer is not entitled to dismiss the employee only
because of the employee’s membership of the union or participation in the
union’s activities. However, if the employee becomes incapacitated from per-
forming his or her job as a consequence, or breaches any duty of fidelity or con-
fidence, then the employer would be entitled to act.21
A number of cases have dealt with the dismissal of shop stewards.22 In
CEPPWAWU & another v Glass and Aluminium 2000 CC,23 the court found that
the shop steward’s resignation had to be viewed against the background of
anti-union activity and hostility in the workplace. On the facts, the court held
that the shop steward had been constructively dismissed because of the un-
bearable situation caused by the employer. The court found that the dismissal
was automatically unfair because the employee was, on a balance of prob-
abilities, dismissed for carrying out his duties as a shop steward.24 In Motloba v
Johnson Controls the Labour Appeal Court reiterated the principle that when

________________________

21 This point was well articulated in the Labour Court’s judgment in IMATU & others v Rusten-
burg Transitional Local Council [1999] 12 BLLR 1299 (LC) when the court referred to the
‘delicacy of discretion’ that a managerial appointment entails, especially in regard to
confidential information. In appropriate cases, employees should excuse themselves from
union meetings where confidential information they possess might compromise their em-
ployment-related obligations. Refer to ch 14.
22 See, eg, Adcock Ingram Critical Care v CCMA & others (2001) 22 ILJ 1799 (LAC) regarding
the dismissal of a shop steward for intimidation.
23 [2002] 5 BLLR 399 (LAC).
24 A shop steward is not protected from dismissal on another permissible ground, related to
his or her union duties. Eg, in BIFAWU & another v Mutual & Federal Insurance Company
Ltd [2006] 2 BLLR 118 (LAC) the shop steward was dismissed after acting dishonestly while
representing a fellow employee. The court upheld the dismissal for dishonesty and con-
firmed that the employee had not been dismissed for representing a fellow employee. In
National Union of Metalworkers of South Africa obo Motloba v Johnson Controls Automo-
tive SA (Pty) Ltd & others [2017] 5 BLLR 483 (LAC) the shop steward’s dismissal for assault
and intimidation was upheld after abusing the payroll administrator and poking her with
the finger during an argument over calculation of holiday pay.
276 Law@work

acting in a representative capacity ‘anything goes’ is not applicable and

although a shop steward:
should fearlessly pursue the interest of his/her constituency and ought to be pro-
tected against any form of victimisation for doing so . . . this is no licence to resort
to defiance and needless confrontation. A shop steward remains an employee,
from whom his employer is entitled to expect conduct that is appropriate to that
relationship. The fact that the bargaining meetings often degenerate does not
mean that one should jettison the principle that, as in the workplace also, at the
negotiations table the employer and the employee should treat each other with
the respect they both deserve. Assaults and threats thereof are not conducive to
harmony or to productive negotiation.25

3 Participation in a protected strike or protest action

A dismissal is automatically unfair if the reason for the dismissal is that the em-
ployee participated in or supported, or indicated an intention to participate in
or support, a strike or protest action that complies with the provisions of Chapter
IV.26
Section 67(4) of the LRA establishes the right to strike when it states that an
employer may not dismiss an employee for participation in a protected strike or
for any conduct in contemplation or in furtherance of a protected strike. Sec-
tion 187 bolsters this protection by making a dismissal in these circumstances auto-
matically unfair and by extending this protection to protected protest action.
These sections cumulatively give expression to the fundamental right of em-
ployees to strike and to participate in protest action, and guarantee the exer-
cise of those rights. The strike or protest action must, however, be protected.27
Despite the protected nature of a strike, Chapter IV recognises the right of an
employer to dismiss for a reason related to an employee’s conduct during a
strike or for a reason related to its operational requirements. There is obviously a

________________________

25 At para 48.
26 S 187(1)(a) of the LRA.
27 In Transport & Allied Workers Union of SA on behalf of Ngedle & others v Unitrans Fuel &
Chemical (Pty) Ltd (2016) 37 ILJ 2485 (CC) the majority of the court held that the strike was
protected for most of its duration (ie, four out of five days) and therefore the dismissals
were automatically unfair. In SATAWU & others v Equity Aviation Services (Pty) Ltd [2006] 11
BLLR 1115 (LC), the court held that employees who were not members of a majority union
that had embarked on a protected strike were entitled to join the strike and that they did
not first need to give separate notice of their intention to join the strike. Accordingly, in this
case, the dismissal of the workers for taking part in the strike was automatically unfair. The
decision was upheld in Equity Aviation Services (Pty) Ltd v SA Transport & Allied Workers
Union & others (2009) 30 ILJ 1997 (LAC) but later overturned in Equity Aviation v SATAWU
[2012] 12 BLLR 245 (SCA). In South African Transport and Allied Workers Union (SATAWU) &
others v Moloto NO & another [2012] 12 BLLR 1193 (CC) the Constitutional Court over-
turned the judgment of the Supreme Court of Appeal. There is no requirement in s 64(1)(b)
of the LRA for separate strike notices and the constitutional right to strike should not be in-
directly limited in such a way. See also ch 16 at para 4.3 ‘Notice’ and Early Bird Farms (Pty)
Ltd v FAWU & others [2004] 7 BLLR 628 (LAC).
Automatically unfair reasons for dismissal 277

fine line between the right to strike and the right to dismiss in these circumstances,
particularly in the case of a dismissal for operational requirements consequent
on any economic damage inflicted by the strike. In each case, the employer
will be required to establish the true reason for the dismissal and its compliance
with the appropriate procedure.
This principle was established by the Labour Appeal Court in SACWU & others
v Afrox Ltd.28 In that case, the company had introduced a new shift system, to
comply with its obligations under the BCEA. The employees refused to work
according to the new roster, and went on strike. After an unsuccessful lock-out,
the company dismissed the employees for reasons related to its operational re-
quirements. The union argued that the true reason for the dismissal was partici-
pation in the strike rather than the employer’s operational requirements and
that the dismissal had therefore been effected for a reason that was automat-
ically unfair. The court noted that the LRA did not preclude an employer from
dismissing employees for reasons related to its operational requirements in the
context of a strike. It was necessary in each case to determine the ‘true reason’
for dismissal. This required a two-stage approach:
l the court should enquire into the actual reason for dismissal;
l if the reasons are related both to the strike and to the employer’s oper-
ational requirements, then the ‘proximate’ reason for dismissal must be iden-
tified. This required a consideration of whether operational requirements
played a role in the dismissal, and if so, whether they were the cause of the
dismissal in a legal sense. This is a matter of law and policy.
On the facts of the case, although the strike had contributed to or even accel-
erated the decision to dismiss, it was not the proximate or dominant cause of the
dismissal. The reason for dismissal was therefore not automatically unfair, and the
court went on to adjudicate the fairness of the retrenchment (in terms of section
189).

4 Refusal to do work normally done by striking employees

A dismissal is automatically unfair if the reason for the dismissal is that the em-
ployee refused, or indicated an intention to refuse, to do any work normally
done by an employee who at the time was taking part in a strike that complies
with the provisions of Chapter IV or was locked out, unless that work is necessary
to prevent an actual danger to life, personal safety or health.29
The protection of the right to strike extends to those employees who do not
directly participate in a strike but who, for reasons of solidarity or otherwise,
elect not to undermine the efforts of their striking colleagues by performing the
work normally done by them. This provision effectively precludes an employer
from compelling non-striking employees to do the work of those who participate
in the strike.

________________________

28 Fn 14.
29 S 187(1)(b) of the LRA.
278 Law@work

The qualifications to the rule are important. The refusal to work:

l must be communicated in the context of a protected strike or a lock-out;
l must relate to the work normally performed by a striking employee and not
the employee’s own work; and
l may not extend to work that is necessary to prevent an actual danger to
life, personal safety or health.
The LRA does not define what these circumstances might be, nor have there
been any judgments by the labour courts that have interpreted the provisions of
this section of the Act.
There is nothing in the LRA to preclude non-striking employees from consent-
ing to do the work of those participating in the strike on whatever terms the em-
ployer offers.30

5 Employee’s refusal to accept a demand in respect of any

matter of mutual interest
The LRA originally provided that a dismissal is automatically unfair if the reason
for it was to compel employees to accept a demand in respect of any matter
of mutual interest between them and their employer. The courts held that this
meant that a dismissal was automatically unfair only if the employer used the
dismissal as a tactic to put pressure on employees to accept its terms. It was not
automatically unfair for an employer to dismiss employees who refused to agree
to its terms if the employer had no intention of re-employing them and engaged
new employees who were prepared to work on those terms.31 The amendments
introduced in 2014 provide that a dismissal is automatically unfair if the reason
for it is ‘a refusal by employees to accept a demand in respect of any matter of
mutual interest between them and their employer’. The focus has shifted from
the employer’s intentions or motives to the fact of the employees’ refusal to
accept the new terms demanded by their employer.
________________________

30 In principle, an employer may also employ replacement labour (s 76 of the LRA).

31 See SACWU & others v Afrox Ltd (1999) 20 ILJ 1718 (LAC); Fry’s Metals (Pty) Ltd v National
Union of Metalworkers of SA & others (2003) 24 ILJ 133 (LAC); NUMSA & others v Fry’s Metals
(Pty) Ltd (2005) 26 ILJ 689 (SCA); and CWIU & others v Algorax (Pty) Ltd (2003) 24 ILJ 1917
(LAC). In Commercial Stevedoring Agricultural and Allied Workers Union (CSAAWU) obo
Dube & others v Robertson Abattoir [2016] 12 BLLR 1163 (LAC) the Labour Appeal Court
(at para 31) states that a ‘so-called “termination lockout” now finds its way into s 187(1)(c)’
of the LRA. An obiter statement questions the proper interpretation of s 187(1)(c) with refer-
ence to the definition of ‘dismissal’: ‘If an employer therefore dismisses an employee in
terms of s 187(c) and an employee then concedes to the demand of the employer, it
would appear that the employer may re-employ the employee. The use of the concept
“reinstatement”, as a description of what occurs if an employee concedes to the de-
mand of an employer who is then prepared to accept the employee into the workforce is
clearly at war with the idea that the concept of conditional dismissal can be made to fall
within the definition of dismissal in s 186(1). In the event that an employer “takes back” an
employee who acquiesces to a demand of the employer, this is a fresh decision made by
the latter and not the result of a fulfilment of a condition to “reinstate” if the employee
agrees to the demand of the employer’.
Automatically unfair reasons for dismissal 279

‘Matter of mutual interest’ is not defined but generally includes matters that
are the subject of terms and conditions of employment. Remuneration, leave,
and hours of work would all be considered matters of mutual interest. The dis-
missal of an employee for the purpose of compelling the employee to accept a
wage cut or to work longer hours, for example, would certainly be automatically
unfair.
The effect of this provision is to preclude employers from using dismissal as an
economic weapon. In other words, an employer cannot in the course of a dis-
pute resort to dismissal of the employees only because they refuse to accede to
the employer’s demands.
This does not preclude an employer from dismissing for a reason that does not
amount to refusal to accept a demand. If the employer dismisses an employee
because the employee refuses to accept a changed shift configuration, there
is nothing to preclude the employer from dismissing the employee for a reason
related to its operational requirements if its true intention is to replace employees
with others who are willing to work according to the new configuration. In these
circumstances, the reason for the dismissal is not that the employee refused to
accept a demand but relates to an economic need of the employer.32 The line
between an automatically unfair dismissal for refusing to accept changed terms
and conditions of employment and a legitimate dismissal on the grounds of an
employer’s operational requirements will often be a fine one; the courts will no
doubt be required to determine where it should be drawn.33

6 Dismissal for exercising any right conferred by the LRA

A dismissal is automatically unfair if the reason for the dismissal is that the em-
ployee took action, or indicated an intention to take action, against the em-
ployer by:
l exercising any right conferred by the LRA; or
l participating in any proceedings in terms of the Act.34
The purpose of section 187 is to prevent employers from victimising employees
who exercise any of the rights established by the LRA or who initiate or partici-
pate in any proceedings to enforce those rights. ‘Proceedings’ in terms of the

________________________

32 See ch 12.
33 See Newaj & Van Eck ‘Automatically Unfair and Operational Requirement Dismissals: Making
Sense of the 2014 Amendments’ (2016) PELJ (19) 1. In National Union of Metalworkers of South
Africa & others v Aveng Trident Steel (A Division of Aveng Africa) (Pty) Ltd & another (JA
25/18 of 13 June 2019) the Labour Appeal Court engaged in a comprehensive review of
the history of s 187(1)(c) and held that factual causation was to be determined by asking
whether the dismissal would have occurred if the employees had not refused the demand.
If the answer is yes, the dismissal is not automatically unfair. If the answer is no, the dismissal
is not immediately rendered unfair: the next issue is one of legal causation, ie whether the
refusal was the main, dominant, proximate or most likely cause of the dismissal.
34 S 187(1)(d) of the LRA.
280 Law@work

LRA can relate, inter alia, to an employee taking part in conciliation and arbi-
tration proceedings, the establishment of a workplace forum, and representing
a fellow employee in a disciplinary enquiry.
Dismissals in these circumstances may well be contrived – employers will rarely
dismiss for the stated reasons set out in this section, they will seek to found a
dismissal on some other ostensible basis, usually conduct. In Kroukam v SA Airlink
(Pty) Ltd,35 the Labour Appeal Court reinstated a pilot who had been dismissed
for insubordination and disrupting the company’s operations. The pilot also hap-
pened to be the chairperson of the trade union that represented the airline’s em-
ployees, and had been instrumental in initiating litigation by the union against the
company. The court found that, on the facts, the proximate cause of the dismis-
sal (or at least a significant factor in the decision to dismiss) was the employee’s
union activity and his role in the litigation.
In National Union of Public Service and Allied Workers Union (NUPSAWU) obo
Mani & others v National Lotteries Board 36 the dismissal of several employees
was alleged to be ‘automatically unfair’ because, so it was argued, the em-
ployees were dismissed for participating in lawful union activities – in casu, peti-
tioning for the removal from office of the respondent’s chief executive officer.
The Supreme Court of Appeal held that, ‘Correctly construed, the affected em-
ployees were dismissed not for petitioning their employer but for their acts of in-
subordination. Neither the Constitution nor the LRA protects employees from dis-
missal for insubordination’.37
In the Constitutional Court,38 however, the majority (per Zondo J) held that the
Labour Court and Supreme Court of Appeal had erred in finding that the dismis-
sals were not automatically unfair. The court held that on the facts the employees
had not threatened that they would not work beyond a certain date if the CEO
continued in his position. Rather, the employees said that ‘they could not bear
to be with the CEO any more in the same building while he was at the helm of
the organisation’.39 The court held that interpretation of the phrase ‘lawful activ-
ities’ in sections 4(2)(a) and 5(1)(c)(iii) should be guided by the Constitution.40
________________________

35 Fn 4.
36 [2013] 8 BLLR 743 (SCA).
37 At para 32. The chairperson of the disciplinary hearing had found that insubordination and
disrespectful behaviour were evident in the petition’s statement that the employees ‘were
no longer prepared to spend a day with Professor Ram in the same building with him’ and
in the demand that the Board ‘ensure that 30 June 2008 is the last day of his employment’.
The court agreed and held that ‘[it] was the communication of the offensive material that
caused their dismissal, not the act of petitioning in itself’ (at para 29). The necessary legal
causation was thus found to be absent.
38 National Union of Public Service and Allied Workers obo Mani & others v National Lotteries
Board 2014 (3) SA 544 (CC) at para 89.
39 At para 128. See also para 129: ‘In TSI Holdings the Labour Appeal Court left the question
open whether a work stoppage in support of a demand for the dismissal of a manager or
co-employee would be protected where the dismissal would not infringe the relevant co-
employee or manager's right not to be dismissed unfairly’.
40 At para 151. See also ch 14 at para 2 ‘Protection of the right to freedom of association in
terms of the LRA’ and ch 16 at para 7 ‘Protected strikes’.
Automatically unfair reasons for dismissal 281

Having regard to the various charges brought against the employees and to
the petition, the court found that:
The articulation by the union and the employees of their proposed solution was
part of collective bargaining and, therefore, was a lawful activity of the union in
which the employees were entitled to participate in terms of section 4(2)(a) of the
LRA. It was also participation in proceedings in terms of the LRA as contemplated
in section 5(2)(b)(c)(vii), namely, conciliation proceedings aimed at resolving the
disclosure dispute. . . . The dismissal of employees for this conduct would constitute
an automatically unfair dismissal as envisaged in section 187(1)(d)(i) and (ii) of the
LRA.41
Zondo J stated that a trade union has a right to ‘determine its own strategies
and tactics in dealing with an employer concerning grievances, or complaints,
disputes of right or disputes of interests, and, generally, on how to handle con-
sultations, negotiations, discussions and collective bargaining with an employer’.
Courts should not dictate how and at what stage which tactics and strategies
should be used. Rather, it is ‘the union’s prerogative to decide how to handle
those matters. Sometimes it may deem it fit to handle these matters “gently”.
Sometimes it may decide to handle these matters in a confrontational way’.42
The minority (per Froneman J) held that, objectively construed, the petition
manifested
a demand that the CEO’s employment should be ended without a fair hearing
and a threat that, if the demand was not met, the employees would stop working.
This was in blatant disregard of the employer’s earlier instructions and the concili-
ation process that was instituted to resolve the dispute relating to the CEO. On the
accepted test for insubordination it could be regarded as nothing else.43
In the view of the minority the fact that the dispute resolution procedure relating
to disclosure of information had not been completed, that the employees’ threat
regarding the removal of the CEO could not be brought under the protection
of the union’s lawful activities, and that the employer’s staff policy clearly for-
bade the disclosure of information indicated that the LRA’s protection against
automatically unfair dismissal was not applicable.44 The majority and minority
judgments thus differed significantly on the limits of acceptable conduct in col-
lective bargaining.

________________________

41 At para 172.
42 At paras 193–194.
43 At para 60.
44 The minority expressed grave concern about a different interpretation of the facts of the
case: ‘It is not lawful under the Act to demand the dismissal of a fellow employee without
a fair hearing. That is what the employees did here. The Act provides the process for
determining whether employees are entitled to information about the employment con-
tract of the CEO. A determination under the Act was made that the union was not en-
titled to that information. The effect of finding that all this may be ignored by reliance on
union activities outside the Act undermines the integrity of the collective bargaining pro-
cess under the Act. This extension of the hard-won right of employees to participate in the
lawful activities of their union will, ironically, have an adverse effect on the underlying
rationale for that participation: to bargain collectively and effectively under the Act for
their interests’ (at para 86).
282 Law@work

The protection granted to employees in these circumstances extends beyond

the exercise of a statutory right. Is the lodging of a grievance in terms of a com-
pany’s internal procedure a right conferred by the LRA and protected by this
section? The Labour Court has noted that although there is no specific provision
which regards to the lodging of a grievance as a ‘proceeding’, the exercise of
a right conferred by a private agreement binding on the employer and em-
ployee, as well as participation in any process established by the agreement, is
broadly contemplated by the LRA, and ought to be protected.45

7 Pregnancy, intended pregnancy or any reason related

to pregnancy
A dismissal is automatically unfair if the reason for the dismissal is the employee’s
pregnancy, intended pregnancy, or any reason related to her pregnancy.46
This provision has given rise to more litigation than any other automatically
unfair reason for dismissal.47 A dismissal in these circumstances will inevitably also
constitute an act of unfair discrimination on the grounds of pregnancy, sex,
gender, and also family responsibility.48 The Labour Court has commented more
than once on the policy considerations underlying this section. The purpose of
the section is to ensure that, as far as possible, women are not disadvantaged
‘by virtue of their being women and the child-bearing member of the human
race’. Although the courts have recognised that an employee’s pregnancy will
in most cases inconvenience the employer, the right to equality that is repre-
sented by this section trumps, and the employer’s inconvenience must yield to
the social and legal recognition of the equal status of women in the workplace.
The courts have noted that a dismissal on the grounds of pregnancy is:
a particularly reprehensible form of sex discrimination because it deals a severe
blow to a woman when she is most vulnerable and least resilient. Notwithstanding
such legislative protections as exist against discriminatory hiring, it is a particularly
difficult time for a woman to seek and find appropriate alternative employment or
any alternative employment at all.49
The protection extended under this provision is wide – it extends not only to the
fact of pregnancy but to any intended pregnancy or reason related to preg-
nancy. These elements were no doubt intended to cover the situation where an
employee announces her intention to become pregnant, and to absences from
work occasioned by, for example, medically related reasons. Whether an em-
ployer is entitled to dismiss a pregnant woman for a reason other than her

________________________

45 See Mackay v ABSA Group & another [1999] 12 BLLR 1317 (LC).
46 S 187(1)(e) of the LRA.
47 See Smit and Olivier ‘Discrimination based on Pregnancy in Employment Law: The case of
Woolworths v Whitehead’ (2002) 4 TSAR 783.
48 See s 6 of the EEA. Provision is made in that Act for the referral of unfair discrimination dis-
putes to the Labour Court.
49 Botha v A Import Export International CC (1999) 20 ILJ 2580 (LC) at 2586E.
Automatically unfair reasons for dismissal 283

pregnancy or a reason related to her pregnancy has been the subject of a

number of cases.
If there is no causal relationship between the dismissal and the pregnancy,
there is no difficulty. A woman does not enjoy immunity against disciplinary
action or even selection for retrenchment solely on account of her pregnancy –
there must be a causal link between pregnancy and dismissal. In Wardlaw v
Supreme Mouldings (Pty) Ltd 50 an employee was dismissed for negligence when
she returned from maternity leave. She argued that the real reason for her dis-
missal was the fact that she had taken maternity leave. The company argued
that during her absence, it had uncovered a gross neglect of the company’s
financial books and tax obligations, for which the employee had responsibility.
On the facts, the court found that the real reason for dismissal was the em-
ployee’s misconduct, and not her absence on maternity leave.
Ekhamanzi Springs (Pty) Ltd v Mnomiya51 involved a dismissal at the instance of
a third party. The employee was dismissed for falling pregnant while unmarried,
thereby being unable to access the workplace in terms of the employer’s land-
lord’s policy. The landlord was a religious institution that forbade access to its
premises to people who were engaged in ‘amorous relationships’ outside of
marriage. The court stated that ‘the protection granted by the LRA to female
employees against dismissal on grounds of their pregnancy applies to all females
irrespective of their marital status’.52 Referring to Old Mutual Life Assurance Co
SA Ltd v Gumbi,53 the court held that:
The appellant’s acquiescence in the landlord’s discriminatory practice of barring
unwed pregnant women from the leased premises is in violation of an employer’s
________________________

50 [2004] 6 BLLR 613 (LC). The Labour Appeal Court later held that the court’s jurisdiction in a
dismissal dispute is not determined by an employee’s description or classification of the
reason for dismissal, but rather by the actual reason for the dismissal. In other words, where
established that the dispute should have been referred for arbitration the court should
stay proceedings and refer the matter to the CCMA or a bargaining council unless by
agreement of all affected parties, including the court, the court could sit as arbitrator
(Wardlaw v Supreme Mouldings (Pty) Ltd [2007] 6 BLLR 487 (LAC)). In De Beer v SA Export
Connection CC t/a Global Paws (fn 8) the court considered the phrase ‘any reason re-
lated to pregnancy’ and stated that s 187(1)(e) is part of social legislation with the aim to
put women on equal footing with men in the workplace. The court consequently held that
the section had to be interpreted widely rather than strictly. In this case the fact that the
applicant’s baby had fallen sick was considered as ‘duties of early motherhood’ and
therefore the condition of the infant that prevented the mother from returning to work fell
within the phrase ‘any reason related to pregnancy’ even though it was not the mother
herself that was sick. The dismissal was automatically unfair.
51 [2014] 8 BLLR 737 (LAC). The employee was employed as a general assistant at the em-
ployer’s factory where spring water was bottled. The springs from which the water was
sourced are located on the premises of its landlord, KwaSizabantu Mission. The employee
first had to enter the Mission’s premises through a gate manned by the landlord’s security
guards in order to get to her workplace. The Mission’s code of conduct made access to
the Mission’s premises conditional. The employee was refused entry because the code of
conduct prohibited, inter alia, ‘amorous relationships between any two persons outside of
marriage’.
52 At para 24.
53 [2007] 4 All SA 866 (SCA).
284 Law@work

constitutional obligation of acting fairly in making decisions affecting its employees.

. . . In the circumstances, the inertia on the appellant’s part did not only amount to
unfair treatment of the employees in question but also amounted to a breach of
its common law duty to accept its employees’ service.54
Consistent with the general principles expressed above, it is only a dismissal in
which pregnancy is the main or effective reason that is automatically unfair.55
Is there an obligation on an employee to disclose that she is pregnant? The
answer is probably not. In Mashava v Cuzen & Woods Attorneys,56 the employer
argued that it had been deceived by the applicant’s failure to disclose her
pregnancy prior to her appointment as a candidate attorney. The court held
that in principle, deceit could be a valid ground for dismissal but on the facts of
the case, the failure to disclose her pregnancy did not amount to deceit and
the dismissal was automatically unfair.

8 Unfair discrimination
A dismissal is automatically unfair if the reason for the dismissal is that the em-
ployer unfairly discriminated against an employee, directly or indirectly, on any
arbitrary ground, including, but not limited to race, gender, sex, ethnic or social
origin, colour, sexual orientation, age, disability, religion, conscience, belief, poli-
tical opinion, culture, language, marital status or family responsibility.57
This provision should be read in conjunction with the general prohibition against
unfair discrimination in employment contained in section 6 of the EEA. The
grounds listed in the above subsection are sometimes referred to as the ‘spe-
cified grounds’ or ‘listed grounds’. The wording of the subsection makes it clear
that the list is not closed, and the courts have recognised claims based on what
have been termed ‘analogous grounds’, for example HIV status58 or citizenship.
The test applied to determine whether a ground of differentiation falls into this
category is whether the basis of the differentiation adversely impacts on human
dignity.59
________________________

54 At paras 31–32.
55 See Uys v Imperial Car Rental (Pty) Ltd (2006) 27 ILJ 2702 (LC). The employee claimed an
automatically unfair dismissal based on her pregnancy. However, the court found that the
dismissal was due to her poor work performance and not her pregnancy. The court did
find that the dismissal was not justified in the circumstances (even though not automatic-
ally unfair); see also Ndlovu v Pather (2006) 27 ILJ 2671 (LC); Vorster v Rednave Enterprises
CC t/a Cash Converters Queenswood [2008] 11 BLLR 1111 (LC) and Heath v A & N Paneel-
kloppers (2015) 36 ILJ 1301 (LC).
56 Fn 3.
57 S 187(1)(f) of the LRA.
58 In Allpass v Mooikloof Estates (Pty) Ltd t/a Mooikloof Equestrian Centre [2011] 5 BLLR 462
(LC) the employer submitted that the dismissal was not due to the employee’s HIV status
but the employee’s failure to disclose such condition at the pre-appointment interview.
This defence (and the second defence raised by the employer, namely that of inherent
requirements of the job) was rejected.
59 Refer to ch 6. See New Way Motor & Diesel Engineering (Pty) Ltd v Marsland [2009] 12 BLLR
1181 (LAC) where mental health was accepted as such a ground. The court in Naude v
continued on next page
Automatically unfair reasons for dismissal 285

The labour courts have developed a fairly extensive jurisprudence on the right
to equality at work. At the root of every act of discrimination is a differentiation,
in this instance, an act of dismissal. It is not necessary that the employer intends
to discriminate, or that the differentiation that forms the basis of the claim is
made overtly on one of the specified grounds. Discrimination may be direct (in
which case it is more likely to be overt) or it may be indirect, where the effect of
the employer’s conduct rather than the intention behind it is in issue.
The three elements of a claim of unfair discrimination in the form of a dismissal
are that:
l a differentiation is made by treating the dismissed employee less favourably
than other employees;
l the differentiation is made on one of the specified or analogous grounds;
and
l it was unfair of the employer to have made the differentiation on this basis.
It is for the employee to establish the first two elements and for the employer
thereafter to establish that the discrimination was not unfair. The employee may
be assisted by an inference that a differentiation is discriminatory if it is not made
on any rational or justifiable basis. While less favourable treatment on the ground,
for example, of race, sex or age does not always lay the basis of a claim for dis-
crimination, discrimination will be inferred where no obviously rational or justi-
fiable basis for the differentiation is apparent. In this event, the employer bears
an onus to rebut the inference by adducing evidence to establish that the differ-
entiation is based on a rational and justifiable ground other than one of the spe-
cified or analogous grounds.60
There are two specific defences that the LRA permits in this kind of automatic-
ally unfair dismissal – both established by section 187(2):61 the first is a reason for
________________________

Member of the Executive Council, Department of Health, Mpumalanga (2009) 30 ILJ 910
(LC) found that the applicant, a medical practitioner by profession, was dismissed due to
his principled stance to defy an irrational directive by a Member of the Executive Council
(MEC) for Health forbidding state doctors from prescribing anti-retroviral drugs to rape sur-
vivors. Thus, the court held that the dismissal was automatically unfair because it was due
to unfair discrimination on the basis of reasons related to conscience and/or professional
ethics. In Association of Mineworkers & Construction Union & others v Anglogold Ashanti
Ltd (2016) 37 ILJ 2320 (LC) employees embarked on an unprotected strike but only AMCU
members who raised lack of transport as the reason for their failure to report for duty were
dismissed. None of the non-AMCU members were disciplined for their absence for that
same reason. The disparity of treatment was not justifiable and the Labour Court held that
the AMCU members were discriminated against on grounds of union membership so that
their dismissal was automatically unfair.
60 See Mafomane v Rustenburg Platinum Mines Ltd (fn 7).
61 Bedderson v Sparrow Schools Education Trust [2010] 4 BLLR 363 (LC) again opened the lid
to a proverbial can of worms: whether or not s 187(2) sets out the only circumstances in
which a dismissal can be justified as fair or whether an employer can rely on a general
defence of fairness (at para 25). (The court refers in this regard to Du Toit et al Labour
Relations Law 5th ed at 597 and Dupper & Garbers in Thompson & Benjamin South African
Labour Law (2002) CC1-61.) The Labour Court stated obiter (at para 26) that it accepted
that ‘an employer is not limited to the grounds set out in section 187(2) to justify its decision
continued on next page
286 Law@work

dismissal that is based on an inherent requirement of a particular job;62 the sec-

ond is a dismissal based on age if the employee has reached the normal or
agreed retirement age.63
The first defence has been narrowly construed and requires the employer to
establish that some inherent characteristic (for example race, age or sex) is
necessary for the effective performance of the obligations that attach to a spe-
cific job.64
In Department of Correctional Services and another v Police and Prisons Civil
Rights Union & others65 the Supreme Court of Appeal considered the defence of
an inherent requirement of the job in a case in which prison officials who wore
dreadlocks had refused to comply with the employer’s rules relating to hairstyles.
The court held that:
no evidence was adduced to prove that the respondents’ hair, worn over many
years before they were ordered to shave it, detracted in any way from the per-
formance of their duties or rendered them vulnerable to manipulation and corrup-
tion. Therefore, it was not established that short hair, not worn in dreadlocks, was
an inherent requirement of their jobs. A policy is not justified if it restricts a practice
of religious belief – and by necessary extension, a cultural belief – that does not
affect an employee’s ability to perform his duties, nor jeopardise the safety of the
public or other employees, nor cause undue hardship to the employer in a prac-
tical sense.66
Initial indications were that in determining the scope of the defence of an in-
herent requirement of the job, the labour courts would require the employer to
establish objectively determinable grounds that correlate with and are necessary
________________________

to dismiss. However, I am also of the view that, given the importance of the values under-
lying section 187(1)(g) [sic] – the furthering of equality and the elimination of discrimination
being a core constitutional value – such a justification should not be easily accepted and
should [be] scrutinised critically – the onus lies on the employer in this regard’.
62 S 187(2)(a) of the LRA.
63 S 187(2)(b) of the LRA.
64 In Dlamini & others v Green Four Security [2006] 11 BLLR 1074 (LC), the applicants were all
security guards and they were dismissed after refusing to shave or trim their beards. They
claimed automatically unfair dismissal because shaving conflicted with their religious con-
victions. The court held that the dismissals were fair and that the standard of neatness
required in security services is high and is neither arbitrary nor irrational. The analysis that
the court utilised included asking whether the complaint of discrimination was proved, sec-
ondly, if proved, whether the discrimination was justified and whether the workplace rule
was an inherent requirement of the job, and, lastly, if it was an inherent requirement of the
job whether the rule was nonetheless discriminatory. (In Mbhele and Fidelity Security Ser-
vices Ltd (2016) 37 ILJ 1935 (CCMA) it was found that the rule to be clean-shaven was not
justified – but with reference to s 6 of the Employment Equity Act 55 of 1998 and an em-
ployee security guard member of the Shembe church.) In POPCRU & others v Department
of Correctional Services & another (fn 11) female employees were permitted to wear
dreadlocks but not their male counterparts. The dress code constituted indirect discrimin-
ation on gender and the dismissal of employees refusing to cut their dreadlocks was auto-
matically unfair. The decision was upheld by the Labour Appeal Court in Department of
Correctional Services & another v POPCRU & others [2012] 2 BLLR 110 (LAC).
65 [2013] 7 BLLR 639 (SCA).
66 At para 25.
Automatically unfair reasons for dismissal 287

to meet a real need of the business or that result in undue hardship.67 In TDF Net-
work Africa (Pty) Ltd v Faris,68 a case that concerned a claim by an employee
that she had been dismissed on account of her religion (which forbade her
working on Saturdays, a requirement demanded by her employer) the Labour
Appeal Court said the following:
TFD submits that it is an inherent requirement of the job to require a manager to do
a stock-take once a month over a weekend, where a stock-take is essential to its
operations . . .
The test for whether a requirement is inherent or inescapable in the performance of
the job is essentially a proportionality enquiry. Considering the exceptional nature
of the defence, the requirement must be strictly construed. A mere legitimate
commercial rationale will not be enough. In general, the requirement must be
rationally connected to the performance of the job. This means that the require-
ment should have been adopted in a genuine and good faith belief that it was
necessary to the fulfilment of a legitimate work-related purpose and must be
reasonably necessary to the accomplishment of that purpose.
However, even if that is shown, the enquiry does not end there. In addition, the
employer bears the burden of proving that it is impossible to accommodate the
individual employee without imposing undue hardship or insurmountable oper-
ational difficulty.
The second defence (reaching the agreed or normal retirement age) was first
discussed in Rubin Sportswear v SACTWU & others.69 A group of employees was
dismissed in circumstances where they had been transferred from one employer
to another with an undertaking that their conditions of employment would be
unaffected.70 Prior to the transfer, there had been no provision in the employ-
ment contracts regulating retirement age. The new employer imposed a normal
retirement age of 60, and dismissed those employees who had reached that
age. They claimed that their dismissal was automatically unfair because they
had been discriminated against on the grounds of their age. The company raised

________________________

67 In Ackerman & another v United Cricket Board of SA (2004) 25 ILJ 353 (CCMA), the em-
ployer’s advertisement called for an ‘energetic person’ – on the basis of his age the em-
ployee’s fixed-term contract was not extended when he applied for the position. The
arbitrator held that it was incumbent on the employer to prove that discrimination based
on age was justified by reference to a genuine occupational requirement (inherent re-
quirement of the job). The employer also had to prove that age was a valid predictor of
‘energy’. As the employer was unable to prove this, the arbitrator found that the em-
ployer had discriminated against the employee on the basis of age. In Hibbert v ARB Elec-
trical Wholesalers (Pty) Ltd [2013] 2 BLLR 189 (LC) there was no evidence of an agreed or
normal retirement age and the plaintiff’s dismissal was found to have been automatically
unfair. However, the court limited compensation to 12 months because it found that such
dismissal was not ‘egregiously unfair’. It also refused to award damages for discrimination.
In ARB Electrical Wholesalers (Pty) Ltd v Hibbert (2015) 36 ILJ 2989 (LAC) the Labour Appeal
Court held that the court must ensure that the employer is not penalised twice for the
same wrong and declined to interfere with the Labour Court’s exercise of its discretion
regarding what was just and equitable in the circumstances.
68 [2019] 2 BLLR 127 (LAC) at para 36–38.
69 [2004] 10 BLLR 986 (LAC).
70 S 197 was applicable in the case.
288 Law@work

the defence provided by section 187(2)(b) that the employees had reached
normal retirement age. The court rejected this argument, and held that the em-
ployer had unilaterally introduced 60 as a new retirement age. The words ‘nor-
mal retirement age’ indicated that there must have been a practice in force for
some years. The dismissal was therefore automatically unfair.71
SA Metal & Machinery Co (Pty) Ltd v Gamaroff 72 concerned an instance where
the respondent employee was asked to continue working after reaching the
age of 65. He duly continued working for two years but after taking two months’
sick leave the employer told the employee that he should retire. The employee,
however, continued to tender his services but the employer dismissed him. The
employee complained that he had been dismissed solely on account of his
age. No retirement age had been incorporated into Mr Gamaroff’s contract of
employment, but the mandatory rules of the provident fund of which he was a
member stated that the retirement age was 65 years. On the basis of the provi-
dent fund’s rules, the court decided that there was no automatically unfair
dismissal.
It has been suggested, consistent with developments in other jurisdictions, that
imposing a retirement age is in itself an act of discrimination on the grounds of
age. The South African courts have not yet considered this argument. However,
section 187(2) provides that a dismissal based on age is fair if the person has
reached the normal or agreed retirement age. Unless there is a constitutional
attack on the LRA and its regulation of the right to equality based on age, this
formulation would appear to leave limited scope for an argument that the
notion of a retirement age is in itself discriminatory.
Disability may present a particular challenge to an employee where the em-
ployer alleges that a dismissal was for reason of incapacity rather than the fact
of the disability. In such a case, the main reason for the dismissal will have to be
determined and relevant provisions in both Chapter VIII of the LRA and the EEA
will have to be considered.73
________________________

71 In Evans v Japanese School of Johannesburg [2006] 12 BLLR 1146 (LC) the employer had
no agreed retirement age for its staff. Staff had in the past generally retired at the age of
65. The employer’s unilateral decision to institute a retirement age of 60 years and to re-
quire a 63-year-old employee to retire thus constituted an automatically unfair dismissal
on the ground of age. See also Bedderson v Sparrow Schools Education Trust (fn 61) for
another case where the employer unilaterally introduced a retirement age and where the
resultant dismissal was held to be automatically unfair. In BMW (SA) (Pty) Ltd v National
Union of Metalworkers of South Africa & another [2019] 2 BLLR 107 (LAC), the Labour
Appeal Court dismissed an employee’s claim where she had been forced to retire at age
60 when the retirement age had previously been fixed at 65. The court held that on the
facts, the employee had failed to establish that she had exercised an election to retain a
retirement age of 65 when this election was extended to employees. This was not to re-
verse the onus in favour of the employer – it had remained incumbent on the employee
to adduce evidence that she had elected to retain a retirement age of 65.
72 [2010] 2 BLLR 136 (LAC).
73 See National Education Health & Allied Workers Union obo Lucas v Department of Health
(Western Cape) (2004) 25 ILJ 2091 (BCA). See Smith v Kit Kat Group (Pty) Ltd [2016] 12 BLLR
1239 (LC) and the case note by Behari ‘Disability and Workplace Discrimination’ (2017) 38
continued on next page
Automatically unfair reasons for dismissal 289

Finally, there is a significant and obvious overlap between the provisions of

section 187 of the LRA and the EEA. The EEA prohibits unfair discrimination in em-
ployment on a number of grounds, including age. A dismissal on account of any
prohibited ground may therefore also be actionable under the EEA, and attract
a penalty of compensation and/or damages. This overlap is well illustrated by
the number of cases in which employees have claimed unfair dismissal in cir-
cumstances where they have been sexually harassed. In terms of the EEA,
harassment is a form of discrimination.74

9 A transfer contemplated by section 197

A dismissal is automatically unfair if the reason for the dismissal is a transfer, or a
reason related to a transfer, contemplated by sections 197 and 197A of the
LRA.75
This is the first of the automatically unfair reasons for dismissal included by the
2002 amendments. It is a consequence of the revision of section 197 of the LRA,
which regulates the effect of transfers of a business on employment contracts.76
The scope of this provision is not yet clear, but it would appear to extend to a
dismissal the reason or principal reason for which is the transfer of the employer’s
business or is connected with the transfer. The existence of a causal link between
the dismissal and the transfer is obviously necessary to establish an automatic-
ally unfair dismissal. The remoteness of that link is likely to form the basis of future
jurisprudence. Is an employer entitled, for example, to dismiss employees in the
face of an imminent transfer, perhaps with a view to improving the prospects of
a sale?77 What is also not clear is the extent to which an employer is permitted

________________________

ILJ 2226. Refer also to the EEA Code of Good Practice on the Employment of People with
Disabilities GN 1345 in GG 23702, dated 19 August 2002, amended by GN 1064 in GG
23718, dated 19 August 2002.
74 In Ntsabo v Real Security CC (2003) 24 ILJ 2341 (LC), the court awarded compensation for
a constructive dismissal (the applicant had resigned when the employer failed to respond
to repeated complaints of harassment by a supervisor) and damages under the EEA, to
be paid by the employer on the basis that it was ‘vicariously liable’ for the acts of the
supervisor. A similar approach was followed in Christian v Colliers Properties [2005] 5 BLLR
479 (LC), where an employee, dismissed after refusing to submit to sexual demands made
by her manager, was awarded compensation under the LRA for an automatically unfair
dismissal and damages under the EEA. The EEA expressly provides that a dispute for pur-
poses of ch II of that Act does not include disputes about dismissals (s 10(1)).
75 S 187(1)(g) of the LRA.
76 See ch 13.
77 In Mokhele & others v Schmidt NO & another (2016) 37 ILJ 2662 (LC) the dismissal of em-
ployees shortly before the winding-up of the old employer were held automatically unfair
(and unlawful) as it was an attempt to circumvent the provisions of s 197A(2)(a) of the LRA
(at para 29). The Labour Court also stated that the phrase ‘immediately before’ found in
s 197A(2)(a) does not mean that the employment contracts must be in existence right up
to the very day of winding-up as such a literal interpretation would undermine the very
purpose of ss 197 and 197A, namely ‘to protect the employees’ employment in situations
where businesses change hands’ (at para 33).
290 Law@work

to dismiss for a reason related to its operational requirements in this context,

either before or after the transfer.78
The English Transfer of Undertakings Regulations of 2006 (from which this pro-
vision was largely drawn), since replaced by the TUPE Regulations of 2014, spe-
cifically provide a defence along these lines. Section 187 does not establish a
similar qualification. South African courts are likely to approach this issue as they
have dismissals for operational requirements in the context of a strike. In principle,
the right to dismiss must exist, but the factual and legal cause of the dismissal will
have to be determined in each case.79 In Van der Velde v Business and Design
Software (Pty) Ltd & another (2),80 the Labour Court considered whether there
was a causal link between the dismissal and any transfer in terms of section 197.
It held that if the employer had sought to evade its obligations under section
197 by dismissing the employee prior to the transfer the dismissal would have
been related to the transfer for the purposes of section 187(1)(g). Although the
motive of the employer is a factor to consider, the enquiry is an objective one.81
On the facts, the dismissal was found to be automatically unfair.82

10 A dismissal in breach of the PDA

A dismissal is automatically unfair if the employee is dismissed in breach of the
PDA83 – in other words, if the employee is dismissed for having made a protected
disclosure as defined in that Act.
________________________

78 In Forecourt Express (Pty) Ltd v SATAWU & another (2006) 27 ILJ 2537 (LAC), the court, in a
majority decision, held that a business undertaking has a right, after purchasing another
undertaking as a going concern, to restructure that business to fit its own business model,
even though the new model would result in the retrenchment of the employees. The court
held that the employees were in fact not dismissed because the purchased business was
making a loss, but because the new employer decided to conduct the business in a dif-
ferent way. The court stated that the employer was entitled to choose the manner in
which its business is conducted, provided that it did not change its employees’ terms and
conditions of employment without their consent, and, if the employer proposed to re-
trench, that it acted in accordance with s 189 and consulted properly. Mlambo AJA found
in a dissenting judgment that the employer should have deferred the retrenchments and
that the dismissals were not a measure of last resort.
79 See the discussion on the SACWU & others v Afrox Ltd case (fn 14) referred to at para 3
‘Participation in a strike or protest action’, dealing with dismissal in the context of strike
action. See also Smit ‘A Chronicle of Issues Raised in the Course of Dismissals by the Trans-
feror and/or Transferee in Circumstances Involving the Transfer of an Undertaking’ (2005)
26 ILJ 1853.
80 Fn 17. This decision was upheld in Business & Design Software (Pty) Ltd & another v Van
der Velde (2009) 30 ILJ 1277 (LAC).
81 See Van der Velde v Business and Design Software (Pty) Ltd & another (2) (fn 17), for a
summary of the appropriate approach and test in these cases (at 1014).
82 The court stated that although a close proximity between the transfer of a business and a
dismissal will not always establish a prima facie causal connection, one could venture so
far as to suggest that this fact is an important indicator and in most cases it will constitute
credible evidence of causation. See also Mokhele & others v Schmidt NO & another
(fn 77).
83 Act 26 of 2000.
Automatically unfair reasons for dismissal 291

The PDA (also known as ‘the Whistle-blower’s Act’) encourages employees

under certain circumstances to disclose information concerning the unlawful acts
of their employers.84 It protects employees who make disclosures in terms of the
Act from being the subject of an ‘occupational detriment’. The Act defines an
occupational detriment as including, inter alia, disciplinary action and dismissal,
suspension, demotion, harassment or intimidation.85 The Act also states that a
dismissal that constitutes an occupational detriment is deemed an automatic-
ally unfair dismissal in terms of section 187 of the LRA.86
Not every disclosure is protected. The PDA protects only certain disclosures
that are made in defined circumstances. In general terms, the Act provides that
a disclosure is protected, first, only if it discloses forms of criminal or other mis-
conduct and, secondly, if it is made in good faith. However, the disclosure need
not necessarily be true. An employee that sets out to embarrass or harass an
employer is not likely to satisfy this requirement of good faith. In addition, disclosures
that amount only to rumours or conjecture are not protected particularly where
they are not made through the required channels.
Parliament of the RSA v Charlton87 confirmed that office holders, in casu mem-
bers of parliament, are not employees under labour legislation. In addition, the
court held that members of parliament do not qualify as employers either. This
finding proved fatal to Mr Charlton’s claim of an automatically unfair dismissal
due to ‘blowing the whistle’ on members of parliament who abused travel allow-
ances. In other words, the disclosure did not relate to his employer and neither
did it relate to the conduct of a co-employee. Ironically this judgment results in
the position where the very persons who enacted anti-corruption legislation (the
PDA) are not bound by such legislation.
In CWU & another v Mobile Telephone Networks (Pty) Ltd 88 the Labour Court
refused to interdict a disciplinary enquiry where the employee had widely circu-
lated broad allegations of misconduct by company managers, in relation to pro-
curement, expressed in terms that were derogatory and possibly defamatory,
on the company’s internal e-mail. The court noted that the Act attempts to
achieve a balance between the right to freedom of expression and the preser-
vation of reputational interests, and that this requires that the procedures stipu-
lated by the Act be followed, and that the disclosure be made in the required
form. This case can be compared to Grieve v Denel (Pty) Ltd 89 in which the
Labour Court temporarily interdicted an employer from continuing with a discip-
linary enquiry in circumstances where the court was satisfied that there was a
________________________

84 See in general Tshishonga v Minister of Justice & Constitutional Development & another
[2007] 4 BLLR 327 (LC). In this case, the notion of what constitutes a ‘protected disclosure’
was canvassed.
85 S 1 of the PDA.
86 S 4(2) of the PDA.
87 [2010] 10 BLLR 1024 (LAC).
88 [2003] 8 BLLR 741 (LC). In L-A J v Afrox Oxygen Ltd [2015] 12 BLLR 1213 (LC) the employee
failed to convince the Labour Court that she reasonably believed the allegation that the
employer flouted provisions of labour legislation or to lay a factual basis for such claim.
89 [2003] 4 BLLR 366 (LC).
292 Law@work

link between the disciplinary action (initiated on unrelated charges) and the pro-
tected disclosures that the employee had made. Similarly, in Young v Coega
Development Corporation (Pty) Ltd (1)90 Kroon J held that regardless of section
157 of the LRA, the High Court had jurisdiction to entertain urgent applications
and actions arising from infringements of employees’ rights under the PDA.91 The
court further held that the applicant had prima facie shown that the institution
of the disciplinary enquiry against him at least partly flowed from the disclosures
he had made. This made the disciplinary enquiry a reprisal for the disclosures in
question and consequently prohibited. The court was also willing to interdict the
proceedings in this instance.92 In Goldgro (Pty) Ltd v McEvoy,93 the Labour Ap-
peal Court held that there was no protected disclosure in circumstances where
a director of a company addressed a memorandum to other members of the
board containing facts that were already known and that primarily served her
interests as an employee and sought to limit her exposure as a director. In any
event, the employee had failed to prove any causal connection between her
memorandum and her redundancy and consequent dismissal.
If a disclosure is ‘protected’, any dismissal will be automatically unfair if the
disclosure was the main or proximate reason for it.94 If there is more than one
reason for dismissal, the PDA will be contravened if any one of the reasons is
that the employee made a protected disclosure.95

________________________

90 [2009] 6 BLLR 597 (EC).

91 Refer to paras 7–14 in the judgment for authority in this regard.
92 See also Randles v Chemical Specialities Ltd [2010] 7 BLLR 730 (LC) and City of Tshwane
Metropolitan Municipality v Engineering Council of SA & another [2010] 3 BLLR 229 (SCA).
93 (2019) 40 ILJ 1202 (LAC).
94 This was confirmed in Pedzinski v Andisa Securities (Pty) Ltd (formerly SCMB Securities (Pty)
Ltd) [2006] 2 BLLR 184 (LC). See also State Information Technology Agency (Pty) Ltd v
Sekgobela [2012] 10 BLLR 1001 (LAC) regarding protected disclosures to the public
protector.
95 TSB Sugar RSA Ltd (now RCL Food Sugar Ltd) v Dorey (2019) 40 ILJ 1224 (LAC).
11
Conduct and capacity

Page
1 Potentially fair reasons for dismissal: conduct .............................................. 295
1.1 Introduction ............................................................................................... 295
1.2 Conduct justifying dismissal ..................................................................... 296
1.2.1 Absenteeism and time-related offences................................... 296
1.2.2 Abusive language ........................................................................ 297
1.2.3 Alcohol and drug abuse ............................................................. 298
1.2.4 Assault ............................................................................................ 298
1.2.5 Conflict of interest ........................................................................ 299
1.2.6 Damage to property.................................................................... 299
1.2.7 Desertion ....................................................................................... 299
1.2.8 Dishonesty ..................................................................................... 300
1.2.9 Insubordination ............................................................................. 301
1.2.10 Intimidation ................................................................................... 301
1.2.11 Negligence ................................................................................... 302
1.2.12 Off-duty conduct ......................................................................... 302
1.2.13 Sexual harassment ....................................................................... 304
1.3 How is the substantive fairness of a dismissal for conduct
established? .............................................................................................. 304
1.3.1 Did the employee contravene a rule regulating conduct in
or of relevance to the workplace? ............................................ 305
1.3.2 Was the rule valid or reasonable? .............................................. 306
1.3.3 Was the employee aware, or could the employee
reasonably be expected to have been aware, of the
rule or standard? .......................................................................... 307
1.3.4 Did the employer apply the rule consistently? ......................... 307
1.3.5 Was dismissal an appropriate sanction for contravention of
the rule?......................................................................................... 310
1.4 Procedural fairness ................................................................................... 313
1.5 Re-opening a disciplinary enquiry .......................................................... 315
1.6 Disciplinary action against shop stewards ............................................. 316
1.7 Dispensing with an enquiry ...................................................................... 317

293
294 Law@work

Page
2 Potentially fair reasons for dismissal: capacity ............................................. 318
2.1 Introduction ............................................................................................... 318
2.2 Medical incapacity .................................................................................. 319
2.3 Poor work performance ........................................................................... 324
2.3.1 Probationary employees ............................................................. 325
2.3.2 Dismissal after probation ............................................................. 327
2.3.3 Procedure ..................................................................................... 329
2.4 Other forms of incapacity ....................................................................... 331
2.4.1 Lack of qualification ...................................................................... 331
2.4.2 Incompatibility ................................................................................ 331
2.4.3 Dismissals at the behest of a third party ...................................... 333
2.5 Permanent/temporary impossibility of performance ........................... 334
Conduct and capacity 295

1 Potentially fair reasons for dismissal: conduct

1.1 Introduction
The automatically unfair reasons for dismissal aside, section 188 of the LRA con-
tains at least three potentially fair reasons for dismissal. Section 188 provides that
if a dismissal is not automatically unfair, it is unfair if the employer fails to prove
that the dismissal is for a fair reason related to the employee’s conduct or cap-
acity or based on the employer’s operational requirements, and that the dismis-
sal was effected in accordance with a fair procedure.
The fair reasons for dismissal recognised by section 188 reflect the classifi-
cation introduced by ILO Convention on the Termination of Employment at the
Initiative of the Employer, 1982.1 Article 4 of the convention provides that ‘[t]he
employment of a worker shall not be terminated unless there is a valid reason
for such termination connected with the capacity or conduct of the worker or
based on the operational requirements of the undertaking, establishment or ser-
vice’. The requirement of fair procedure is also derived from the convention.
Article 7 states that: ‘[t]he employment of a worker shall not be terminated for
reasons related to the worker’s conduct or performance before he is provided
an opportunity to defend himself against the allegations made, unless the em-
ployer cannot reasonably be expected to provide this opportunity’.
The influence of the wording of the convention on section 188 of the LRA is
obvious. Although South Africa has not ratified the convention, international
standards form the benchmark of our domestic law and practice on the termin-
ation of employment.2
This part considers the law relating to dismissal for a reason connected with
an employee’s conduct. Dismissals for reasons related to the employee’s cap-
acity are discussed below.
The LRA requires an employer to prove that the reason for any dismissal for
misconduct is a fair reason. This generally requires a dual enquiry – the first to
determine the existence of facts that would constitute a reason to dismiss, and
the second to determine whether, regard being had to those facts, dismissal is a
fair penalty. Thus the Code of Good Practice: Unfair Dismissal notes that whether
or not a reason for dismissal is a fair reason is determined by the facts of each
case and the appropriateness of dismissal as a penalty (item 2(1)).
To say that not all misconduct warrants dismissal is a statement of the obvious,
but the line between conduct that warrants dismissal and that which does not is
often difficult to draw in practice. The courts have held that determining a fair
sanction for misconduct involves a value judgement,3 but the code provides
little assistance and notes only that it is generally not appropriate for an employer
to dismiss an employee for a first offence except where the offence is a serious
one and of such gravity that ‘it makes continued employment intolerable’ (item

________________________

1 No. 158 of 1982.

2 See ch 2.
3 See Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] 12 BLLR 1097 (CC).
296 Law@work

3(4)). When continued employment becomes intolerable is not a matter on

which the code provides specific guidance. The labour courts have stated that,
although it is for a commissioner to determine the facts on which the employer
relies, on a balance of probabilities, the commissioner must determine whether
the penalty of dismissal is fair; in doing so, he or she exercises a value judgement
without reference to the employer.4
The reference in the code to the inappropriateness of dismissal for a first
offence implies that a single act of misconduct generally does not warrant dis-
missal. The courts have often referred to the policy of ‘progressive discipline’,
meaning that a sanction short of dismissal should initially be imposed, and that
dismissal should be reserved for recurring or persistent acts of misconduct or for
a single act of serious misconduct. This is undoubtedly correct and reflects both
the purpose of discipline in the workplace and the balance that the law seeks
to achieve between protection against arbitrary action by an employer and
the right of the employer to expect satisfactory conduct and work performance
from its employees.
Before dismissing an employee, the employer should consider all relevant fac-
tors, including the gravity of the misconduct, the employee’s length of service,
disciplinary record and personal circumstances, the nature of the job, and the
circumstances of the infringement (item 3(5)). No single factor is definitive of a
right to dismiss; a conspectus of all of them will determine the appropriateness
of dismissal as a sanction.

1.2 Conduct justifying dismissal

Subject to the general rules stated above, specific acts of misconduct are dis-
cussed below.

1.2.1 Absenteeism and time-related offences

At common law, the most fundamental obligation on an employee is to place
his or her services at the disposal of the employer.5 Wilful absence from work is
an act of serious misconduct and would generally justify dismissal. Periods of
absence from work vary as to their duration – absence may be limited to late-
coming, or may extend to what is described as abscondment, when the period
of absence is sufficiently long to warrant the inference that the employee has
no intention of returning to work.6 This is not to say that every incident of
________________________

4 Ibid.
5 See ch 5.
6 Absenteeism should be distinguished from desertion. Desertion, when the employee by
words or by conduct implies that he or she does not intend to return to work, is dealt with
separately below (at para 1.2.7 ‘Desertion’). In Kievits Kroon Country Estate (Pty) Ltd v
Mmoledi & others [2014] 3 BLLR 207 (SCA) the court held that while traditional healers’ cer-
tificates are not formally recognised as proof of illness they should be taken seriously by
employers when they indicate that an employee is suffering from ‘culturally induced’ ail-
ments. In other words, such certificates may be relevant when determining the reason-
ableness of the employee’s absence and the appropriateness of dismissal as a possible
sanction.
Conduct and capacity 297

absence, however isolated or whatever its duration, warrants dismissal. Dismissal

is generally appropriate, when an employee is guilty of repeated incidents of
absence,7 or where a single incident of absence detrimentally affects the em-
ployer’s business.
The labour courts have recognised and enforced this obligation by noting
that an employer has the right to expect an employee not to be absent from
work in circumstances where the absence cannot be justified. The onus to justify
absence from work rests on the employee.

1.2.2 Abusive language

An employer is entitled to insist on reasonably harmonious relationships in the
workplace. The use of abusive language directed at superiors, co-employees or
third parties may constitute a basis for dismissal, particularly when it amounts to
insolence, or is directed against a client or other employees in circumstances
where the abuse amounts to racial, sexual or other harassment.
Whether or not language is abusive and the degree to which it is abusive
needs to be determined by reference to the circumstances and place in which
the language is used. A distinction should be drawn between language that is
merely jocular or rude, as opposed to abusive. The nature of the workplace will
often determine whether language is abusive and the degree to which it may
constitute abuse – what may be a term of endearment in one workplace may
be abusive in another.
This rule is subject to the justifiability of a strict approach in cases where abu-
sive language amounts to harassment of a racial, sexual or other nature. The
commissioners and the courts have generally upheld dismissals where abuse
relates to race, religion or national origin.8 Abuse can also be addressed in an
indirect fashion, and again, most of the reported cases record the upholding of
dismissals in these circumstances. In Rustenburg Platinum Mine v South African
Equity Workers Association obo Bester and others,9 the Constitutional Court
upheld the dismissal of an employee who had referred to a co-worker as a
________________________

7 See, eg, AECI Explosives Ltd (Zomerveld) v Mambalu (1995) 16 ILJ 1505 (LAC) where the
Labour Appeal Court held that a dismissal was substantively fair where frequent absences
due to alleged ill-health were treated as misconduct where the pattern of absences indi-
cated that the employee acted unreliably before and after weekends.
8 See, eg, Dauth v Brown & Weirs Cash and Carry [2002] 8 BLLR 837 (CCMA) where an em-
ployee distributed an email containing anti-Semitic remarks. The dismissal was upheld. In
SACWU & another v NCP Chlorchem (Pty) Ltd [2007] 7 BLLR 663 (LC) it was held that
accusing somebody falsely of being a racist can constitute grounds for disciplinary action
and dismissal. See also City of Cape Town v Freddie & others [2016] 6 BLLR 568 (LAC)
where the employee who accused a Coloured manager of being ‘worse than Verwoerd’
and of victimising him because of his race was fairly dismissed due to the unjustified accu-
sation that was deemed to be tantamount to racism.
9 [2018] 8 BLLR 107 (CC). There is a long line of cases in which the courts have stressed the
seriousness of racially abusive language in the workplace. See, eg, Crown Chickens (Pty)
Ltd t/a Rocklands Poultry v Kapp & others [2002] 6 BLLR 493 (LAC), SA Revenue Service v
CCMA [2017] 1 BLLR 8 (CC), and SA Breweries (Pty) Ltd v Hansen & others (2017) 38 ILJ
1766 (LAC).
298 Law@work

‘swart man’, viewed in the context in which it was used, as racially loaded
rather than racially innocuous. The court went on to say:
Gratuitous references to race can be seen in everyday life, and although such
references may indicate a disproportionate focus on race, it may be that not every
reference to race is a product or a manifestation of racism or evidence of racist
intent that should attract a legal sanction. They will, more often than not, be in-
appropriate and frowned upon. We need to strive towards the creation of a truly
non-racial society.10
In Lebowa Platinum Mines Ltd v Hill 11 the Labour Appeal Court upheld a dis-
missal of an employee who called another a ‘bobbejaan’, on the basis that the
abuse was racist.12 Abusive language directed at a supervisor will generally
constitute insubordination, justifying disciplinary action on that basis.

1.2.3 Alcohol and drug abuse

Alcohol and drug abuse is a form of conduct that may assume the nature of
either incapacity or misconduct. The code suggests that alcoholism and drug
abuse is a form of incapacity and that counselling and rehabilitation may be
appropriate steps for the employer to consider (item 10(3)). In spite of this guide-
line, an employer is quite entitled to establish a rule against alcohol and drug
use and to treat a breach of the rule as an act of misconduct.13 In this sense,
there is a distinction between alcohol abuse more generally and drunkenness
at work. The latter constitutes misconduct and will generally warrant severe dis-
ciplinary action including dismissal. This is particularly so in workplaces where a
premium is placed on compliance with health and safety rules (mines, explo-
sives factories, chemical plants, transport companies and the like).

1.2.4 Assault
When assault assumes a serious form, depending on the particular circumstances
of the incident, dismissal may be warranted even for a first offence. A threat of
assault can also constitute a valid ground for dismissal.
The personal circumstances of the employee, the extent to which that em-
ployee was provoked into committing an act of assault, and the nature of the
________________________

10 At para 53. See also Duncanmec (Pty) Ltd v Gaylard NO [2018] 12 BLLR 1137 (CC) and
Dagane v Safety and Security Sectoral Bargaining Council & others [2018] 7 BLLR 669 (LC);
and Nxumalo ‘When does the Use of Race as a Descriptor Constitute Misconduct in the
Workplace?’ (2019) 40 ILJ 60.
11 (1998) 19 ILJ 1112 (LAC).
12 See also, eg, Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp & others [2002] 6 BLLR
493 (LAC) where a dismissal was upheld in the context of a reference to a ‘kaffer’ by a
White supervisor. In Oerlikon Electrodes SA v CCMA & others [2003] 9 BLLR 900 (LC), the
court upheld a dismissal where a Black worker had called a White colleague a ‘Dutch-
man’. In South African Revenue Service v CCMA & others 2017 (2) BCLR 241 (CC) the
Constitutional Court discussed how employers should deal with racism, specifically racial
insults, in the workplace.
13 The employer must prove contravention of such rule. Breathalyser tests may be appropriate
in certain circumstances – refer to Exactics-Pet (Pty) Ltd v Petalia NO & others (2006) 27 ILJ
1126 (LC).
Conduct and capacity 299

work and the workplace itself are factors that must be taken into account when
determining the appropriateness of the sanction.

1.2.5 Conflict of interest

An employment contract is a contract in which a mutual degree of trust and
confidence is inherent, and a breach of that trust or confidence by an em-
ployee would generally warrant dismissal.14 A conflict of interest in its extreme
form occurs when an employee acts in direct competition with the employer or
derives secret profits by virtue of the position the employee holds. The element
of dishonesty inherent in this act of misconduct will normally warrant dismissal.
But what of the employee who merely earns some extra cash on the side while
working for the employer? If the employee uses the employer’s assets or if the
employee’s work is neglected in the course of furthering an outside interest, dis-
missal may be warranted. But in the absence of any element of dishonesty an
employee who ‘moonlights’ will not normally be considered to have created a
conflict of interest, provided the employer is not prejudiced in any way or that
the other employment has not been prohibited by any contractual term or
some other work rule.
A conflict may also arise in circumstances where an employee pursues a per-
sonal relationship with a person who has a direct interest in a business entity that
competes with the employer. A personal relationship between two employees
may also interfere with one or both employees’ ability to do the job. In these cir-
cumstances it would probably be more appropriate to consider dismissal based
on incapacity rather than on misconduct.

1.2.6 Damage to property

An employee is required to promote the interests of the employer, and this obli-
gation extends to the employer’s property and the employee’s conduct in
relation to that property. If an employee wilfully damages the property of the
employer, this will generally warrant dismissal.15

1.2.7 Desertion
Desertion is distinguishable from absence without leave in that, in the former
instance, the employee’s conduct indicates or gives the employer reason to
believe that the employee does not intend to return to work. The courts require
that an employer establish whether the employee’s intention was not to return

________________________

14 This is the case even in the absence of a contractual agreement to this effect as the duty
of good faith and care is a common-law duty of employees. See also Volvo (Southern
Africa) (Pty) Ltd v Yssel (2009) 30 ILJ 2333 (SCA), where the court held that an employee
who had abused his position of trust and used his position for his own benefit was obliged
to disgorge secret commissions that he had received. In Sime Darby Hudson & Knight (Pty)
Ltd v Lerena (2018) 39 ILJ 2413 (WCC), a contractual claim for breach of contract based
on an allegation of secret profits, the court set out the basis on which a disgorgement
claim is to be assessed.
15 A distinction should be drawn between negligence and wilfulness. Negligence is dealt
with separately below at para 1.2.11 ‘Negligence’.
300 Law@work

to work, and that the employer considers an employee’s claim that he or she
had a good reason for being absent.
Unless employees who have deserted or absconded are able to produce
compelling reasons for their absence, their conduct would normally justify dis-
missal.

1.2.8 Dishonesty
Dishonesty manifests itself in a number of forms, including providing false inform-
ation, non-disclosure of information, pilfering, theft and fraud. The fiduciary duty
owed by an employee to the employer generally renders any dishonest conduct
a material breach of the employment contract, justifying summary dismissal.
The Labour Appeal Court established under the 1956 LRA adopted the view
that what was at issue in cases of dishonesty was whether a continued employ-
ment relationship was intolerable. On this basis the court upheld the employer’s
decision to dismiss a waiter who had stolen a can of soft drink from a restaurant.16
Although the CCMA has tended to deal with cases of petty pilfering more
leniently, the Labour Appeal Court has recently and consistently emphasised
the necessity of a relationship of mutual trust and confidence in the employ-
ment relationship17 and has upheld dismissals for dishonesty even when relatively
small amounts have been involved.
Dishonest conduct is not limited to conduct that enriches the employee at
the expense of the employer.18 Misrepresentation of a qualification, for ex-
ample, is an act of dishonesty and has been treated as such by the courts on
the basis of the principles outlined above. The Labour Court has upheld the
dismissal of an employee who misrepresented her educational qualifications
when she applied for a job even though the misrepresentation was discovered
only several years later.19 Furthermore, an applicant who makes false claims in a

________________________

16 See Anglo American Farms Boschendal Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC).
17 See, eg, Toyota SA Motors (Pty) Ltd v Radebe & others (2000) 21 ILJ 340 (LAC) where an
employee falsely claimed that his company car had been hijacked. See also Shoprite
Checkers (Pty) Ltd v CCMA & others (2008) 29 ILJ 2581 (LAC) and Miyambo v CCMA
(2010) 31 ILJ 2031 (LAC) where the Labour Appeal Court has emphasised that where a re-
lationship of trust and confidence has been compromised by an act of dishonesty, what-
ever the value of the goods involved, dismissal is justifiable on account of the employer’s
operational requirements. A breach of the trust relationship and the extent to which it
may have been compromised must be established by the employer – see Edcon Ltd v
Pillemer NO & others [2010] 1 BLLR 1 (SCA). The Labour Appeal Court has recently held,
with reference to the Code of Good Practice: Dismissal, that while the employer should
lead evidence to show that the trust relationship has been rendered intolerable such a
breakdown may also be confirmed in the case of a serious offence without the leading of
evidence regarding the effect of the misconduct – see Department of Home Affairs &
another v Ndlovu & others [2014] 9 BLLR 851 (LAC).
18 See Sappi Novaboard (Pty) Ltd v Bolleurs (1998) 19 ILJ 784 (LAC).
19 Hoch v Mustek Electronics (Pty) Ltd (2000) 21 ILJ 365 (LC). Department of Home Affairs &
another v Ndlovu & others (fn 17) illustrates the seriousness of such misrepresentation. The
court was willing to accept that a false claim in the employee’s CV that he completed a
degree which he had in fact not completed was serious enough to render the trust
continued on next page
Conduct and capacity 301

CV about his or her abilities and is appointed on the basis of that CV cannot
later claim that the employer should have assisted and given support in respect
of such areas of non-performance.
An employee has no obligation to obey unlawful instructions from superiors
and therefore an employee who committed a dishonest act cannot rely on the
fact that he or she was instructed by a manager or superior to commit the act.20

1.2.9 Insubordination
Insubordination includes the refusal on the part of an employee to obey a
reasonable instruction. An employment relationship is founded on mutual re-
spect and is inherently one of subordination, given that the employer must be in
a position of authority to direct that process. For this reason, gross insubordin-
ation generally warrants dismissal. Insubordination is gross when it is deliberate,
sustained and indicates an intention on the part of the employee to disregard
the authority of the employer. In the case of an employee who refuses to obey
an instruction, dismissal will be appropriate if the instruction was reasonable and
amounted to a request to perform an act that falls within the employee’s
duties.21 This also applies to shop stewards as they remain subject to the em-
ployer’s disciplinary code.22

1.2.10 Intimidation
Intimidation constitutes threatening conduct that induces a reasonable appre-
hension of harm in the person against whom it is directed and most often occurs

________________________

relationship intolerable even in the absence of evidence of its effect on that relationship.
See also Eskom Holdings Ltd v Fipaza & others [2013] 4 BLLR 327 (LAC) where non-
disclosure of a fact within the employer’s knowledge was found not to constitute a mis-
representation. See also Roscher v Industrial Development Corporation & others (2018) 39
ILJ 2489 (LAC) where the Labour Appeal Court declined to make a finding of dishonesty
but upheld the dismissal of a senior employee who had breached her fiduciary duty to
her employer by failing to disclose a negative report warning the employer against fund-
ing a particular project. See also LTE Consulting (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration (2017) 38 ILJ 2787 (LC) where a dismissal was upheld in circum-
stances where an employee’s misrepresentation regarding qualification was discovered
only four years later.
20 Ellerines Holdings v CCMA & others [1999] 9 BLLR 917 (LC).
21 See, eg, Msunduzi Municipality v Hoskins [2017] 2 BLLR 124 (LAC) where an HR manager was
fairly dismissed because he disobeyed instructions to desist from representing employees
in disciplinary hearings and responded in insolent terms to the employer’s instruction. The
Labour Appeal Court described insubordination as a ‘persistent, wilfull and serious chal-
lenge to or defiance of the employer’s authority; a calculated challenge’ to the employ-
er’s authority, which is ‘deliberate or intentional’ - see Malamlela v SA Local Government
Bargaining Council & others (2018) 39 ILJ 2454 (LAC). In TMT Services & Supplies (Pty) Ltd v
Commission for Conciliation, Mediation and Arbitration & others (2019) 40 ILJ 150 (LAC),
the court discussed the nature of insubordination and confirmed that defiance of authori-
ty could be proved by a single act of defiance.
22 South African Municipal Workers’ Union & others v Ethekwini Municipality & others [2016] 12
BLLR 1208 (LAC).
302 Law@work

in the context of industrial action. Dismissal, even for a first offence, is generally
considered appropriate.
In Adcock Ingram Critical Care v CCMA & others,23 the shop steward was dis-
missed after threatening, during negotiations with management during a lengthy
and violent strike, that ‘there will be more blood on your hands’. The Labour
Appeal Court held that intimidation, assault and threats are not conducive to
healthy industrial relations, including collective bargaining. Where threats are
directed at particular persons such words constitute intimidation, which may be
the subject of a disciplinary hearing.

1.2.11 Negligence
There is very little consistency in awards dealing with the appropriateness of dis-
missal as a sanction where an employee has been negligent. The extent of the
damage or loss caused by an employee’s negligence is more often than not
the determining factor. Generally, where employees engaged in senior posi-
tions accompanied by a high level of trust and responsibility cause substantial
harm or loss on account of their negligent behaviour, dismissal is considered
appropriate.
The CCMA has on occasion considered the contributory negligence of em-
ployers who place employees in positions or assign them tasks for which they
are not suitable when determining the appropriateness of dismissal as a sanc-
tion for negligent conduct.

1.2.12 Off-duty conduct

In general, employers are entitled to be concerned only about conduct in the
workplace and, to paraphrase a well-known dictum, there is an area of em-
ployee conduct that is none of the employer’s business.
However, when employee conduct outside the workplace impacts on the
employer’s business, the employer is entitled to hold the employee accountable.
Conduct outside the workplace impacts on the employer’s business if it preju-
dices a legitimate business interest or undermines the relationship of trust and
confidence that is a necessary component of the employment relationship. The
general rule that any misconduct should have a serious impact on the em-
ployment relationship before dismissal is justified applies equally to ‘off the job’
conduct. In a nutshell, not all misconduct committed outside the workplace
potentially forms the basis for a fair dismissal – there must be a sufficiently close
link between the misconduct and the employer’s business, and the impact of
that conduct on the employer’s business must be sufficiently serious.
In one of the earliest cases on this issue, the Industrial Court held that an em-
ployer was entitled to take disciplinary action against an employee who had
assaulted a fellow employee on a company bus, even though the assault
had taken place outside the company’s premises and after working hours. The
court found that the company had a duty to ensure that its employees were

________________________

23 (2001) 22 ILJ 1799 (LAC).

Conduct and capacity 303

transported safely and without interference, that on this basis the employee
had acted within the scope of his employment, and that the ‘company’s disci-
plinary arm was sufficiently long to reach into the bus’.24
The same principle was applied in a case in which the employee challenged
the fairness of his dismissal following his disruptive behaviour on board an air-
craft. The employee, a diplomat, disputed the fairness of his dismissal on the
basis that the incident took place while he was off duty and was therefore not
work-related. The arbitrator found that the employee’s conduct had negatively
impinged on the country’s diplomatic mission in the host country and that his
actions had repercussions in the workplace. The arbitrator held that the em-
ployee was obliged to conduct himself in a credible manner and there was a
strong nexus between the employee’s behaviour and the employer’s legitimate
operational interests, to the extent that it had a bearing on whether he was a fit
and proper person to occupy the office to which he was appointed.25
Criminal conduct outside the workplace causes particular problems. The gen-
eral rule remains applicable, in other words the fact of a criminal charge or con-
viction is not necessarily a fair reason for dismissal and there should be some
relevance of the offence to the employment relationship.26 Conversely, an
acquittal in a criminal court does not mean that an employer is not entitled to
take disciplinary action against the employee. There is a popular misconception
that an employee may not be ‘charged twice’ or that the principle of double
jeopardy applies in these circumstances. This is not correct. An act of miscon-
duct that is a criminal offence and which impacts on the employment relation-
ship may be dealt with by the employer as a disciplinary matter. It is for the
criminal courts to decide (using a different test in the form of establishing guilt
beyond reasonable doubt) whether the accused is guilty and what sentence is
appropriate. It is entirely feasible therefore that an employee can be acquitted
by a criminal court but fairly dismissed.
The labour courts have also held that it is not necessary for an employer to
wait for the outcome of any criminal proceedings before commencing discipli-
nary proceedings in respect of the same offence. Because the proceedings
fulfil different social purposes, and because the tests to establish misconduct are
different in each case, this must be the correct approach. An employee who
refuses to attend an enquiry or participate in an investigation on account of a
pending criminal trial, runs the risk of a decision to dismiss being made in his or
her absence.

________________________

24 National Union of Mineworkers & others v East Rand Gold & Uranium Co Ltd (1986) 7 ILJ
739 (IC) at 744E–F.
25 NEHAWU obo Barnes v Department of Foreign Affairs [2001] 6 BALR 539 (P).
26 See, eg, Khutshwa v SSAB Hardox (2006) 27 ILJ 1067 (BCA) where an employee was dis-
missed after the employer found out that he had killed his wife and her boyfriend, albeit
while he was on leave. The arbitrator was satisfied that the fact that the employee had
shot two people would impact, to the detriment of the employer, on the relationship
between the employee and his co-workers.
304 Law@work

1.2.13 Sexual harassment

Sexual harassment covers a wide range of behaviours, from idle conversation
with sexual innuendo at one end, to physical violence, including rape, at the
other.27 The labour courts have consistently upheld dismissals for serious or per-
sistent harassment.28 Employers have a general duty to ensure that the working
environment is one where the dignity of employees is respected and where all
employees are aware of the obligation to refrain from committing acts of sexual
harassment.
The Code of Good Practice on the Handling of Sexual Harassment Cases in
the Workplace,29 issued in terms of the EEA in amended form in 2005, suggests
that serious incidents of sexual harassment or continued harassment after warn-
ings are dismissible offences (item 8(8)). This approach accords with the general
guideline contained in the Code of Good Practice: Dismissal to the effect that
dismissal is justified for acts of serious misconduct or repeated offences.30
Similar principles apply to other forms of harassment in the workplace, includ-
ing racial harassment. Harassment is a form of discrimination and ought to be
treated with the necessary severity, irrespective of its form.

1.3 How is the substantive fairness of a dismissal for conduct

established?
Item 7 of the Code of Good Practice: Dismissal suggests that any person who is
to determine whether a dismissal for conduct is unfair should consider the fol-
lowing:
l whether or not the employee contravened a rule or standard regulating con-
duct in, or of relevance to, the workplace; and
l if a rule or standard was contravened, whether or not:
• the rule was a valid or reasonable rule or standard;
• the employee was aware, or could reasonably be expected to have
been aware, of the rule or standard;

________________________

27 For a perspective of harassment as discrimination, see ch 6.

28 See, eg, Campbell Scientific Africa (Pty) Ltd v Simmers & others [2016] 1 BLLR 1 (LAC) where
a male manager made a sexual proposition to the employee of another company during
a business trip. His conduct constituted sexual harassment and justified dismissal.
29 GN 1357 in GG 27865, dated 4 August 2005.
30 This implies that not all instances of harassment require dismissal as sanction, a position
affirmed in SA Broadcasting Corporation Limited v Adv J Grogan NO & another (2006) 27
ILJ 1519 (LC). In Simmers v Campbell Scientific Africa (Pty) Ltd & others [2014] 8 BLLR 815
(LC) at para 29 the court held that because an utterance was made in hope rather than
expectation and was not persisted with it did not constitute sexual harassment: ‘It is true
that a single incident of unwelcome sexual conduct can constitute sexual harassment.
But it is trite that such an incident must be serious. It should constitute an impairment of the
complainant’s dignity, taking into account her circumstances and the respective positions
of the parties in the workplace. This nearly always involves an infringement of bodily in-
tegrity such as touching, groping, or some other form of sexual assault; or quid pro quo
harassment’. The Labour Appeal Court (fn 28) overturned this decision.
Conduct and capacity 305

• the rule or standard has been consistently applied by the employer; and
• dismissal was an appropriate sanction for the contravention of the rule or
standard.
This approach, derived from North American private arbitration practice, has
been influential in developing the substantive requirements for a fair dismissal
under the LRA. Each of the headings is discussed in more detail below.

1.3.1 Did the employee contravene a rule regulating conduct

in or of relevance to the workplace?
Whether or not an employee contravened a rule is a matter of fact and, in
terms of the general approach to onus in dismissal cases, is for the employer to
establish. This is done by conducting an investigation to determine the existence
of any misconduct.31
The rule must regulate conduct in, or be of relevance to, the workplace. This
may require a consideration of the validity of the rule, since rules that purport to
regulate conduct outside of the workplace or that have no relevance to the
employment relationship would not generally be valid.32
A number of recent judgments have raised the issue of what is referred to as
‘derivative misconduct’. In essence, an employee is regarded as having com-
mitted misconduct on the basis of that employee’s failure, without justification,
to disclose knowledge of misconduct committed by another employee.33 The
disputes about derivative misconduct more often than not arise in the context
of strike-related violence. In National Transport Movement & others v Passenger
Rail Agency of SA Ltd34 the Labour Appeal Court did not question the principles
by which derivate misconduct may be established but found, on the facts, that
the employer had failed to prove that the burning of trains was carried out by
striking employees or that those employees had any knowledge of the torching
of trains and train coaches.
To the extent that Western Platinum Refinery Ltd v Hlebela suggests that there
is a positive duty on an employee to disclose any knowledge of misconduct
committed by other employees, the decision must be read subject to the later
judgment by the Constitutional Court in National Union of Metalworkers of SA

________________________

31 See para 1.4 ‘Procedural fairness’ below. In Metsimaholo Local Municipality v South Afri-
can Local Government Bargaining Council & others [2016] 5 BLLR 435 (LAC) the employer
failed to prove the alleged practice that written permission was required for employees to
undertake private work. The dismissal for moonlighting due to the contravention of the
collective agreement that simply required permission for private work was found unfair.
32 See para 1.2.12 ‘Off-duty conduct’, discussed above and at para 1.3.2 ‘Was the rule valid
or reasonable?’ below.
33 See Western Platinum Refinery Ltd v Hlebela & others [2015] 9 BLLR 940 (LAC). The label
‘derivative misconduct’ in the context of the workplace was first used in Chauke v Lee
Services Centre t/a Leeson Motors (1998) 19 ILJ 1441 (LAC).
34 [2018] 2 BLLR 141 (LAC).
306 Law@work

obo Nganezi & others v Dunlop Mixing and Technical Services (Pty) Ltd.35 That
case concerned the dismissal of a group of employees who were found by an
arbitrator as not having been positively and individually identified as being
present when strike-related violence was committed. They had been dismissed
by the employer on the basis that they had failed to come forward and either
identify the perpetrators of the violence or exonerate themselves by explaining
that they were not present and could not identify the perpetrators. The arbitra-
tor found that the dismissal of this group of employees was substantively unfair
and reinstated them. The Constitutional Court ultimately upheld this decision.
Writing for a unanimous court, Froneman J held that the contractual duty of
good faith does not as a matter of law imply the imposition of a unilateral fidu-
ciary obligation on an employee to disclose information of misconduct commit-
ted by co-employees to the employer.36 The court concluded that:
To impose a unilateral obligation on an employee to disclose information to her
employer about the participation of a co-employee in misconduct in a protected
strike would be akin to imposing a fiduciary duty on the employee. In the context
of a strike, the imposition of a unilateral duty to disclose and undermine the collec-
tive bargaining power of workers by requiring positive action in the interests of the
employer without any concomitant obligation on the part of the employer to give
something reciprocally similar to the workers in the form of guarantees for their
safety and protection before, when and after they disclose.37
The appeal was upheld on the basis that the employer’s reciprocal duty of
good faith required it at least to guarantee the safety of its employees before
expecting them to come forward and disclose information or exonerate them-
selves, which it had failed to do.

1.3.2 Was the rule valid or reasonable?

A rule that is unlawful, invalid or simply capricious cannot form the basis of a fair
dismissal. Generally, a rule should be capable of justification by reference to the
nature and requirements of the employer’s business. This obviously permits a sig-
nificant degree of variation from business to business. An employer engaged in
the retail trade may, for example, have a strict rule in terms of which dismissal is
the prescribed penalty for theft, irrespective of the value of the item stolen.
Strict rules relating to intoxication are justifiable in respect of drivers or work-
places where potentially hazardous materials are manufactured or handled.
Workplaces in which food is made or served would generally be entitled to im-
pose stricter standards of hygiene.
This requirement should not be confused with the appropriateness of dismissal
as a sanction, although if the rule in question prescribes dismissal as a penalty

________________________

35 National Union of Metalworkers of South Africa obo Nganezi & others v Dunlop Mixing and
Technical Services (Pty) Limited & others (Casual Workers Advice Office as amicus curiae)
2019 (8) BCLR 966 (CC). See also Western Platinum Refinery Ltd v Hlebela & others (fn 33).
36 At para 62.
37 At para 73.
Conduct and capacity 307

for particular misconduct, the rule should be upheld in the absence of any
manifest unreasonableness.38

1.3.3 Was the employee aware, or could the employee reasonably

be expected to have been aware, of the rule or standard?
Knowledge of a rule is generally a precondition to a finding of misconduct. The
way in which this requirement is framed does not, however, require the employer
to establish actual subjective knowledge. It is sufficient that the employee can
reasonably be expected to have knowledge of the rule. The courts have con-
firmed that there are many instances where an employee can be expected to
know that the misconduct was unacceptable without being specifically ad-
vised that this was the case.
This is a principle more easily applied in cases of gross misconduct such as theft
and assault. In cases in which the alleged misconduct comprises more arcane
breaches of company policy a different approach is obviously warranted.39

1.3.4 Did the employer apply the rule consistently?

Fairness would generally require that an employer apply the same standards of
conduct to all employees, and that if two or more employees have committed
the same wrong and there is nothing to distinguish the one case from the other,
they receive the same penalty. This principle is recognised by the Code of
Good Practice: Dismissal that requires an employer to act consistently when
exercising discipline and in particular when effecting a dismissal (items 3(1) and
(6)). This means that the employer should apply a penalty of dismissal consist-
ently with the way in which the penalty has been applied to other employees in
the past (referred to as ‘historical consistency’) and as between two or more
employees who participate in the misconduct concerned (‘contemporaneous
consistency’). The courts have held that this requirement is no more than an
element of the obligation to act fairly, and that it is the perception of bias in-
herent in selective discipline that makes it unfair.
This does not mean that the employer has no discretion in respect of the
appropriateness of dismissal as a penalty. If the employer can establish that
there are differences between the cases in question, obviously there is no in-
consistency. But difference is often a matter of degree and it is in this respect
that the courts themselves have not always been consistent. A narrower
approach, adopted by the Labour Appeal Court suggests that inconsistency,
________________________

38 See the finding of the Supreme Court of Appeal in the Rustenburg Platinum Mines Ltd
(Rustenburg Section) v CCMA & others [2006] 11 BLLR 1021 (SCA). With regards to so-
called ‘zero-tolerance’-rules, see Shoprite Checkers (Pty) Ltd v Tokiso Dispute Settlement &
others [2015] 9 BLLR 887 (LAC) for a cautionary note to employers not to rely inflexibly on a
zero-tolerance approach without having regard of the totality of the circumstances.
39 If an employer dismisses for breach of an unwritten rule, but fails to establish the existence
and scope of the alleged rule and to rebut the employee’s denial of being unaware of it,
the dismissal will be unfair. See, eg, Dikobe v Mouton NO & others [2016] 9 BLLR 902 (LAC)
which dealt with a dismissal for the unauthorised possession and use of a drinks voucher to
purchase drinks at a casino bar.
308 Law@work

even if it is not capricious or otherwise improperly motivated, will usually found

at least a perception of bias and an unfair dismissal.40 Some doubt as to the cor-
rectness of this approach was expressed by the Labour Appeal Court in Cape
Town City Council v Masitho & others,41 where the court stated that while it was
true that an employer could not be expected to continue repeating a wrong
decision in obeisance to a principle of consistency, the ‘proper course’ was for
the employer to let it be known that the earlier application of disciplinary meas-
ures cannot be expected to be adhered to in future.
The problem arises most often where a dismissed employee seeks to take
advantage of a previous decision not to dismiss another employee for the same
misconduct, but in many instances, to impose a final warning. Is the employer
bound thereafter, as the Labour Appeal Court has put it, to ‘be expected to
continue repeating a wrong decision in obeisance to a principle of consistency’
To summarise, the answer is clearly ‘no’, but there are subtle differences in the
various approaches adopted by the courts. The first, as described above, is to
suggest that consistency is not a rule unto itself and that the excessively lenient
treatment of one employee should not serve to advantage another. The se-
cond, described above with reference to Masitho, is to place more emphasis
on the perception of bias and the expectations of employees.
Inconsistency often raises its head in situations of group misconduct, where it
is alleged that only some employees were selected for disciplinary action and
that the action against them is inconsistent on that basis.42 Two important con-
ceptual considerations are raised in the context of group misconduct, both of
which have been alluded to above. The first relates to the notion of progressive
discipline and the requirement that the disciplinary record of each employee
be separately considered before a further penalty is imposed; the second is
whether an employer is entitled to exercise discipline on an individual basis
when the misconduct is collective. In these circumstances, employers are natur-
ally reluctant to dismiss an entire workforce and prefer to issue disciplinary sanc-
tions on an individual basis. The consequence of course is a differentiation in the
penalty imposed. Typically, employees with final warnings for misconduct are
dismissed and those with disciplinary records in a better state escape with writ-
ten warnings of appropriate severity.
It may be argued, of course, that there is nothing inconsistent in this approach
and that the differences in disciplinary record justify the differential treatment.
However, the courts initially adopted a sceptical view and more than once
held that a dismissal in these circumstances was unfair for want of compliance
with what they termed the ‘parity principle’. The consequence of these de-
cisions was that an employer was not entitled to take into account warnings

________________________

40 See SA Commercial Catering & Allied Workers Union v Irvin & Johnson Ltd (1999) 20 ILJ
2302 (LAC), where the court stated that it is the perception of bias inherent in selective
discipline that makes it unfair, and that some inconsistency is the price to be paid for flexi-
bility, which in turn requires the exercise of a discretion in each case.
41 (2000) 21 ILJ 1957 (LAC).
42 In circumstances in which the employees committed the same offence.
Conduct and capacity 309

issued for individual misconduct when considering an appropriate penalty for

collective misconduct. A later decision by the Labour Appeal Court has
brought this approach into question. The court had to consider the fairness of a
dismissal of two members of a work gang in circumstances where the three
remaining members of the gang had received a final warning. The employees
had all been disciplined for refusing to work, but the employer sought to justify
the differential penalty on the basis that the two dismissed employees had final
warnings on their disciplinary records. The court held that the parity principle
was designed to prevent unjustified selective punishment and to ensure that like
cases are treated alike. It was not intended, however, to force an employer to
mete out the same punishment to employees with different personal circum-
stances just because they were guilty of the same offence. A disciplinary record
may justify a differentiation in penalty in these circumstances, even in circum-
stances where the offence for which the employee is dismissed is unrelated to
the previous misconduct.43 Furthermore, a differentiation is therefore possible
where cases are distinguishable and parity is ‘only one factor relevant to assess-
ing fairness of dismissal’ so that where leniency was shown to one employee for
a dishonest act this does not imply that the employer grants a license to other
employees ‘to indulge in similar misconduct’.44 The Labour Appeal Court has
stated in a judgment following that of Irvin & Johnson Ltd that Irvin & Johnson
should not be seen to upset the established principle that, in general, it is unfair
to impose different sanctions on employees guilty of similar offences.45 In ABSA
Bank Ltd v Naidu, the Labour Appeal Court again stated that the parity prin-
ciple, as expressed in Irvin & Johnson, is a general rule.
Finally, inconsistency has been raised in the context of group misconduct,
where the employer identifies and disciplines some but not all of the employees
who are alleged to have participated in the misconduct. The courts have gen-
erally adopted a pragmatic view and will not find inconsistency to exist where
the employer has taken disciplinary action against only those employees whom
it can identify or against whom it believes it has credible evidence. In the
absence of any deliberate or negligent differentiation on this basis, the fact that
some employees might escape disciplinary action will not in itself permit others
to profit from a decision not to charge an employee with misconduct made in
good faith by the employer.
In summary, and as a general rule, employees who misconduct themselves in
much the same way should incur much the same penalty. When reference is
made to previous decisions made by the employer for the purposes of estab-
lishing any inconsistency, there are a number of relevant considerations. The
situations that are the subject of the comparison must be truly similar, the em-
ployer must have been aware of the conduct of any employees it is alleged to
have treated differently and been reasonably capable of identifying them,
there should be a rational basis for any differentiation in treatment between the

________________________

43 See SA Commercial Catering & Allied Workers Union v Irvin & Johnson Ltd (fn 40).
44 ABSA Bank Ltd v Naidu [2015] 1 BLLR 1 (LAC).
45 Cape Town City Council v Masitho & others (fn 41).
310 Law@work

employees who are the subject of the comparison,46 and finally, any significant
change in policy or procedure on discipline should ideally be communicated to
employees.

1.3.5 Was dismissal an appropriate sanction for contravention of

the rule?
This is probably the most difficult of all of the requirements referred to in the
code to satisfy. An employer finding an employee guilty of misconduct poten-
tially has a number of penalties that might be imposed, ranging in severity from
warnings of varying degrees of seriousness to dismissal. The appropriateness of
dismissal as a sanction is dependent primarily on the seriousness of the mis-
conduct and its impact on the employment relationship.47
When considering the appropriateness of dismissal of unprotected strikers, the
Code of Good Practice requires that the substantive fairness of a possible dis-
missal for such misconduct is considered having regard to (item 6(1)): the facts
of the case; the seriousness of the contravention of the Act; attempts made to
comply with the Act; and whether or not the strike was in response to unjustified
conduct by the employer.
In Sidumo & another v Rustenburg Platinum Mines Ltd & others,48 the conduct
of a security guard, Sidumo, who ignored the mine’s search rules, was captured
by a video camera and he was dismissed by the mine. The CCMA commissioner
found that, regardless of the fact that the guard’s failure to search constituted
misconduct, dismissal was too harsh a sanction in view of the guard’s length of
service and his clean record. The commissioner reinstated the guard subject to
a final warning. When the mine took the award on review, it was unsuccessful in
both the Labour Court and the Labour Appeal Court where it was held that
there was no basis for interfering and setting aside the award.49 The mine was
more successful in the Supreme Court of Appeal where that court, in a unani-
mous judgment, disagreed with the courts a quo and ruled that the award be
set aside.
The Supreme Court of Appeal held that commissioners must recognise that
the discretion to impose a sanction for proven misconduct rests in the first in-
stance with employers and that they should intervene only if the decision was
________________________

46 In some instances an employer may justifiably distinguish between employees. See, eg,
NUM v Council for Mineral Technology [1999] 3 BLLR 209 (LAC), where employees who
had played a more active role in the detention of members of management during the
course of a sit-in were dismissed but others were not.
47 See item 3(4) of the Code of Good Practice: Dismissal. In Impala Platinum Ltd v Jansen &
others [2017] 4 BLLR 325 (LAC) the Labour Appeal Court held that where the effect of mis-
conduct on the employment relationship is self-evident no evidence of the breakdown is
required. The Labour Appeal Court has also confirmed that where an arbitrator reinstates
an employee found guilty of serious misconduct without considering whether the em-
ployment relationship had been rendered intolerable the award will be set aside –
Moodley v Department of National Treasury & others [2017] 4 BLLR 337 (LAC).
48 Fn 3.
49 See Rustenburg Platinum Mines Ltd (Rustenburg Section) v CCMA & others [2003] 7 BLLR
676 (LAC).
Conduct and capacity 311

manifestly or demonstrably unfair.50 The court held that the Code of Good Prac-
tice: Dismissal made it clear that employers enjoy a measure of discretion as to
the penalty to be imposed for misconduct.51 The court stated that ‘The fact that
the commissioner may think that a different sanction would also be fair, or fairer,
or even more than fair, does not justify setting aside the employer’s sanction’.52
After COSATU’s intervention, the Constitutional Court was given the opportunity
to consider the fairness of Sidumo’s dismissal.53 The issue before the court called
for a decision on whether commissioners should defer to employers on the ques-
tion of sanction (and interfere with the sanction imposed by an employer only in
limited circumstances) or whether commissioners ought to be entitled to take a
broader view of what constitutes an appropriate sanction in each case. The first
approach is sometimes referred to as the ‘reasonable employer’ approach and
permits interference only if the employer’s decision falls outside a band of de-
cisions to which a reasonable employer might come on the available material.
The second approach requires a commissioner to determine the fairness of the
sanction imposed by the employer without deference to the employer and by
reference to what is fair in the circumstances rather than what a reasonable
employer might think.
The Constitutional Court disagreed with the Supreme Court of Appeal’s
approach to determining the fairness of a dismissal for misconduct:
There is nothing in the constitutional and statutory scheme that suggests that, in
determining the fairness of a dismissal, a commissioner must approach the matter
from the perspective of the employer. All the indications are to the contrary. A
plain reading of all the relevant provisions compels the conclusion that the com-
missioner is to determine the dismissal dispute as an impartial adjudicator. Article 8
of the International Labour Organisation Convention on Termination of Employment
158 of 1982 (ILO Convention) requires the same. Any suggestion by the Supreme
Court of Appeal that the deferential approach is rooted in the prescripts of the LRA
cannot be sustained.54

________________________

50 Rustenburg Platinum Mines Ltd (Rustenburg Section) v CCMA & others (fn 38). The Supreme
Court of Appeal held that interference with dismissals for conduct, according to earlier
judgments, should be permitted only when the sanction fell outside the range of the rea-
sonable, or induced a sense of shock. In casu, having regard to the losses suffered by the
mine the dismissal of a security guard that had wilfully neglected to guard and search the
employer’s property did not induce a sense of shock. The court therefore held that the
dismissal was reasonable and fair in the circumstances and that another finding would be
irrational.
51 In Minister of Correctional Services v Mthembu NO (2006) 27 ILJ 2114 (LC) the Labour Court
also considered the extent to which an arbitrator may correctly interfere with the sanction
of dismissal imposed by the employer. The court confirmed that an arbitrator’s function is
in fact to decide whether the employer’s decision to dismiss was ‘fair’ and not to exercise
an independent discretion of his own. Furthermore, the court held on the issue of consist-
ency of punishment that the ‘parity principle’ should not be applied rigidly and that the
fairness of a dismissal in such circumstances involves a ‘moral or value’ judgment.
52 At para 46.
53 Fn 3. See ch 9 at para 4.3 ‘Onus in dismissal disputes’.
54 At para 61.
312 Law@work

The court therefore rejected the ‘reasonable employer’ test,55 and held that the
Constitution and the LRA seek to redress the power imbalance between em-
ployees and employers. Since neither the Constitution nor the LRA affords any
preferential status to the employer’s view on the fairness of a dismissal, the court
held that it would be against constitutional norms (and against the right to fair
labour practices) to give pre-eminence to the views of either party to a dispute.
The court considered that the approach of the Supreme Court of Appeal, de-
scribed above, had tilted the balance against employees.56 Commissioners are
required to decide whether the dismissal that is the subject of the dispute be-
fore them was fair, not whether a reasonable employer might think it was.57
The test that a commissioner must employ when impartially considering the
fairness of a dismissal dispute therefore requires that the commissioner will take
into account the totality of circumstances:58 ‘A commissioner is not given the
power to consider afresh what he or she would do, but simply to decide whether
what the employer did was fair’.59 The Constitutional Court listed the following
factors that a commissioner will have to consider:
l the importance of the rule that the employee breached;
l the reason the employer imposed the sanction of dismissal;
l the basis of the employee’s challenge to the dismissal;
l the harm caused by the employee’s conduct;
l whether additional training and instruction may result in the employee not
repeating the misconduct;
l the effect of dismissal on the employee; and
l the long-service record of the employee.60
Clearly, none of these factors alone will be determinative. What is required is
that commissioners weigh each of these factors when assessing whether the
sanction of dismissal was fair.61
________________________

55 The court emphasised the importance of ‘holding the scales between the competing in-
terests of employees and employers evenly in the balance’ (at para 66). The court stated
that ‘Ultimately, the commissioner’s sense of fairness is what must prevail and not the em-
ployer’s view. An impartial third party determination on whether or not a dismissal was fair
is likely to promote labour peace’ (at para 76).
56 At para 74.
57 The court held that ‘Ultimately, the commissioner had to balance, on the one hand, em-
ployment justice and the need to protect the worker from harsh and arbitrary action, and
on the other hand, the need for efficient operation of the employer’s business and the
employer’s entitlement to satisfactory conduct and work performance from Sidumo. Bal-
ancing these interests, in the light of the facts and circumstances of this case, the con-
clusion by the commissioner that dismissal was not fair, cannot be said to be unfair to the
employer’ (at para 88).
58 At para 78.
59 At para 79. The court stated that in arriving at a decision a commissioner is not required to
defer to the decision of the employer, rather what is required is that he or she must con-
sider all relevant circumstances.
60 At para 78. The court also stated that these factors are not exhaustive.
61 See Myburgh ‘Sidumo v Rusplats: How have the courts dealt with it?’ (2009) 30 ILJ 1.
Conduct and capacity 313

1.4 Procedural fairness

The LRA requires that a dismissal be effected in accordance with a fair pro-
cedure. In the case of a dismissal for misconduct, the Act does not prescribe
the procedure to be followed, but item 4 of the Code of Good Practice pro-
vides useful guidelines.
The first element of the guideline on procedural fairness is an investigation to
determine whether there are grounds for dismissal, which the code suggests
need not be a formal enquiry. This provision was somewhat novel at the time
the code was enacted and it remains ignored by many CCMA commissioners,
who continue to penalise employers for deviations from a formal approach to
procedural fairness. Under the 1956 LRA the Industrial Court adopted a ‘check-
list’ approach in determining whether a fair procedure had been followed in
respect of the disciplinary enquiry. The court came close to equating an internal
disciplinary hearing with a criminal trial.62
This approach has been questioned. In Avril Elizabeth Home for the Mentally
Handicapped v Commission for Conciliation, Mediation and Arbitration63 the
Labour Court noted that the code clearly envisages something less formal. The
court considered that the word ‘investigation’ indicates that what is at least
required is an investigation into the factual circumstances of the case, the
formulation of allegations of misconduct against the employee, notice of those
allegations to the employee, and an opportunity for the employee to state a
case in response to the allegations. The employee ought to be entitled to a
reasonable opportunity to respond to the allegations, with the assistance of a
union representative or a fellow employee if required. After the enquiry the
employer is obliged to communicate the decision made and should furnish the
employee with the decision in writing.
The code makes no mention of any right of appeal to a higher level of man-
agement, nor of any requirement that a formal, court-like hearing be held. To
the extent that disciplinary codes and procedures retain these requirements,
they are obviously enforceable and may form the basis of a finding of proced-
ural unfairness if they are ignored. However, the redefinition of the requirements
of procedural fairness in the LRA is a deliberate attempt to reduce the level of
formality and cost consequent on the approach adopted by the Industrial
________________________

62 The following elements of a disciplinary enquiry were held to be essential: the hearing
should take place within a reasonable period after the allegations of the misconduct have
been brought to the attention of the employer; the employee must be informed of the
charge or charges brought; the employee is entitled to be present at the hearing and is
entitled to participate in the proceedings (see, however, Old Mutual Life Assurance Co SA
Ltd v Gumbi [2007] 8 BLLR 699 (SCA) where the court held that an employee’s deliberate
absence from a disciplinary enquiry will not affect the validity, or procedural fairness, of
an ensuing dismissal); in the proceedings, evidence should be led and be subjected to
cross-examination; the employee is entitled to assistance during the proceedings; the per-
son taking the disciplinary decision should be unbiased and should enter the proceedings
with an open mind; and a dismissed employee should be accorded a right of appeal to a
higher level of management.
63 (2006) 27 ILJ 1644 (LC).
314 Law@work

Court. The dismissed employee’s right of recourse is to any bargaining council

with jurisdiction or to the CCMA. Item 4(3) of the code requires employers to
remind dismissed employees of that right.
All of the above is subject to the rule that an employer will be held to the
standards established by its own disciplinary procedure. If the applicable discip-
linary code establishes stricter standards than those established by the guide-
line, the fairness of the dismissal would be determined according to the stricter
standards. Many employers unnecessarily continue to apply the terms of discip-
linary codes and procedures that reflect an outmoded approach.64
In addition to the requirement of an investigation to determine any grounds
for dismissal, the code provides that the employee should be given a reason-
able time to prepare a response to the employer’s allegations, and should have
the assistance of a trade union representative or fellow employee. After the
enquiry, the employer should give the employee the reason for any decision to
dismiss, and remind the employee of the right to refer any disputed dismissal to
the appropriate statutory dispute resolution agency. Finally, the code provides
that the employer may dispense with these guidelines, if in exceptional circum-
stances, it cannot reasonably be expected to comply with them.
Where there is an unprotected strike in a workplace, the employer is required
to contact the trade union official to discuss the course of action it intends to
take. The employer must also issue an ultimatum, in clear and unambiguous
terms, which ultimatum should state what is expected of the employees and
what the sanction will be if they should fail to do so (item 6(2)).65 In the case of
dismissals for participation in unprotected strike action the Labour Appeal Court,
in a number of decisions that have not always been unanimous, has applied
the audi alteram partem principle.66 The court has held that before an em-
ployer may dismiss employees in the circumstances, some form of hearing is
required, but that the nature of the hearing will be determined by the circum-
stances of each case. In some cases a formal hearing will be required, in others
an informal hearing will be sufficient. In some instances the court held that
sending a letter to the strikers or their union or other representatives inviting them
to make representations by a given time as to why they should not be dismissed
________________________

64 Employers occasionally do not follow their own codes to the letter. It seems that a dis-
missal can be found substantively and procedurally fair even in the presence of minor
technical irregularities in the conducting of a hearing and appeal, in the absence of loss
or prejudice to the employee – Rand Water Board v CCMA (2005) 26 ILJ 2028 (LC). In gen-
eral, an employer must follow its own code. See, eg, where a code provided for the expiry
and destruction of warnings after six months and the employer issued warnings valid for 12
months, the employer was found to be acting inappropriately. It was held that the 12-
month warnings expired or were invalid and could not be considered when disciplining
employees later on for misconduct (NUMSA & others v Atlantis Forge (Pty) Ltd (2005) 26 ILJ
1984 (LC)).
65 The striking employees should be given sufficient time to reflect on the ultimatum and to
respond to it. In cases where an employer cannot reasonably be expected to comply
with these steps, they may be dispensed with.
66 In Modise & others v Steve’s Spar Blackheath (2000) 21 ILJ 519 (LAC) the court held that
unprotected strikers are entitled to be heard before being dismissed.
Conduct and capacity 315

was adequate. In essence, said the court, they should be given a fair opportunity
to state their case. On the other hand, in NUM & others v Billard Contractors CC
& another 67 the court required an employer to hold two ‘hearings’ in addition to
giving a valid ultimatum before the dismissal of unprotected strikers would be
considered procedurally fair.68
In Semenya v CCMA & others 69 the procedural fairness of a dismissal was dis-
puted where the employers had dismissed an employee without a hearing.
When they realised their mistake, they offered the employee a hearing after the
dismissal had taken place. An independent third party would have conducted
this hearing, but the employee refused this option. Contrary to the findings of
the arbitrator and the Labour Court, the Labour Appeal Court held that, in cer-
tain circumstances, a hearing after a dismissal could indeed meet the require-
ments of procedural fairness.70

1.5 Re-opening a disciplinary enquiry

Is an employer entitled to reopen a disciplinary enquiry into the same offence
after an employee has been found not guilty of that offence? The answer
would appear to be a qualified ‘yes’. The majority of the Labour Appeal Court
has held that if an employee has already been disciplined for an offence, this
does not mean that the employer is precluded from holding a formal disciplin-
ary enquiry and dismissing the employee for the same offence. The determining
factor in evaluating the employer’s action is fairness, and a second enquiry is
justified if it would be fair in the circumstances to institute the enquiry.71
These cases, sometimes referred to as ‘double jeopardy’ cases, often arise in
circumstances where a supervisor imposes a disciplinary penalty of a warning,
and where more senior management considers the penalty too lenient or a
breach of company policy and orders a disciplinary enquiry to be convened.
The ‘double jeopardy’ defence, derived from criminal law, provides that an
accused person cannot be tried twice for the same offence. In an employment
context, the defence is to the effect that once an employer has imposed a

________________________

67 (2006) 27 ILJ 1686 (LC).

68 The first hearing would entail discussing the unprotected nature of the strike and the giving
of an ultimatum (including its timing and effect). The second hearing would entail an oppor-
tunity for the strikers to advance reasons as to why they did not comply with the ultimatum.
69 [2006] 6 BLLR 521 (LAC).
70 The court held that ‘where the opportunity to be heard is offered after the decision has
been taken but the person who will consider the representations and decide on whether
the decision should be in favour or against the affected person is a different person from
the one who initially made the decision and is independent of him or her (sic) organisation
and can act impartially and make a fresh decision on the matter, there is no reason in
principle why an opportunity to be heard given after the decision has been taken should
not be accepted as satisfying the audi alteram partem rule. It seems to me that in such a
case that opportunity to be heard satisfies the . . . rule because, though given after the
decision, it is as fair as, if not in fact fairer than, the opportunity that should have been
given before the decision’ (at 528B–E).
71 See Branford v Metrorail Services (Durban) & others (2003) 24 ILJ 2269 (LAC).
316 Law@work

disciplinary penalty, the matter may not be re-opened to allow the employer
the opportunity to revise the penalty, and in particular, to impose a more severe
penalty.
In an arbitration award, the commissioner reviewed the applicable law in
some detail and provided the following summary:
l an employer does not always have the right to institute disciplinary action a
second time for the same offence;
l this does not mean that an employer can never institute disciplinary action a
second time;
l the labour courts and arbitrators should not adopt a rigid approach;
l fairness will determine whether an employer is justified in instituting disciplin-
ary action a second time;
l the terms of the employer’s disciplinary code and the existence of any ex-
ceptional circumstances are relevant but not determinative of what is fair;
l if the employer’s code provides that the person chairing a disciplinary en-
quiry can only make a recommendation, it is not double jeopardy if the
recommended penalty is substituted;
l when issues were not fully canvassed in a hearing, or where new evidence
comes to light after an enquiry, or where a supervisor makes an ill-considered
or inappropriate decision, the courts and arbitrators will be more inclined to
hold that the employer is justified in conducting the second enquiry;
l if the offence with which the employee is charged relates to dishonesty, a
second enquiry is more likely to be justifiable; and
l each case must be evaluated on its own merits by a consideration of all of
the surrounding circumstances in the light of what is fair to both parties.72
In South African Revenue Service v Commission for Conciliation, Mediation and
Arbitration and others 73 the Labour Appeal Court was not willing to read into the
contract of employment an implied term permitting substitution of the chair-
person’s decision with the employer’s sanction.74 The court also held that whether
or not the disciplinary code was incorporated in a collective agreement makes
no difference.

1.6 Disciplinary action against shop stewards

The Code of Good Practice makes special provision for disciplinary proceedings
against trade union representatives, office-bearers and officials. Item 4(2) pro-
vides that discipline against these persons should not be instituted without first
informing and consulting with the trade union. This is a guideline and the labour
________________________

72 See UASA obo Davidtz & others v Kloof Gold Mining Company Ltd [2005] 7 BALR 787
(CCMA).
73 [2014] 1 BLLR 41 (LAC).
74 At paras 27–28. In general, an employer is not entitled to change a lesser sanction to one
of dismissal. This is in particular the case where the Public Service Act guidelines (Proc 103
of 1994) oblige the employer to implement the decision of a chairperson. See Moodley v
Department of National Treasury & others (fn 40).
Conduct and capacity 317

courts have held that an employer’s failure to notify the union does not mean
that the dismissal was necessarily unfair.
The labour courts have occasionally suggested that in regard at least to cer-
tain kinds of conduct committed by union officials when they exercise their
rights as representatives, they do so as equals, and that their conduct ought to
be viewed in that perspective. While the distinction between an employment
relationship and one of a representative of a trade union is to be respected, the
existence of the latter does not exempt a union official from disciplinary action,
including dismissal, when this is warranted. The Labour Appeal Court has held
that protection does not extend, for example, to a union official who threatens
violence during a negotiation. In that case, and in the context of a particularly
violent strike, the company was entitled to dismiss the employee.75 When there is
an unprotected strike and shop stewards are singled out for dismissal but other
employees who participate receive only final warnings the only plausible con-
clusion may very well be that the shop stewards are discriminated against be-
cause of their designation. Such dismissals are automatically unfair.76

1.7 Dispensing with an enquiry

In exceptional circumstances, an employer is entitled to dispense with pre-
dismissal procedures. This is an exception to the general rule requiring the appli-
cation of a fair procedure that is recognised by both ILO Convention 158 and
the Code of Good Practice: Dismissal. Item (4) of the code provides that an
employer may dispense with pre-dismissal procedures if it cannot reasonably be
expected to comply with the guidelines set out in that item. Cases decided in
the labour courts since the requirement for a fair hearing established by the
Industrial Court have recognised exceptions to the rule in a number of circum-
stances. The first has been described as a ‘crisis-zone’ situation, in other words
where there is a danger to life and property that justifies an employer dispensing
with a hearing. These cases have normally involved incidents of unrest and vio-
lence in the workplace. The second recognised exception is the failure or re-
fusal by an employee, without good cause, to attend a hearing. The labour
courts have generally considered that in these circumstances an employee has
waived the right to a hearing. The Labour Court has also held that an employer
is also not expected to convene a hearing in respect of an employee who has
deserted and cannot be traced.

________________________

75 See Adcock Ingram Critical Care v CCMA & others (fn 23). The majority of the court in
National Union of Public Service and Allied Workers obo Mani & others v National Lotteries
Board 2014 (3) SA 544 (CC) took a more lenient approach to conduct that is permissible
during collective bargaining. See ch 10 at para 6 ‘Dismissal for exercising any right con-
ferred by the LRA’. See also NUMSA & others v Atlantis Forge (Pty) Ltd [2005] 12 BLLR 1238
(LC) where the court upheld the dismissal of a shop steward who had exhorted employees
to commence an unprotected strike without advising them of the consequences. See
also ch 14.
76 Martin & East (Pty) Ltd v National Union of Mineworkers & others (2014) 35 ILJ 2399 (LAC).
See ch 10 at paras 2 ‘Dismissals contrary to section 5’ and 3 ‘Participation in a strike or pro-
test action’.
318 Law@work

In a number of cases, small enterprises, particularly one-person establish-

ments, were excused from the obligation to hold a hearing primarily because
the requirements of an independent and unbiased assessment were impossible
in those circumstances. The revised requirements relating to a hearing estab-
lished by the code and, in particular, the nature of the investigation that now
forms the basis of the requirement of fair procedure should not preclude an
employer from complying with fair procedure in these circumstances.

2 Potentially fair reasons for dismissal: capacity

2.1 Introduction
The LRA recognises incapacity as a legitimate ground for dismissal.77 The Act
does not define the term, but the Code of Practice in Schedule 8 to the Act
refers to two forms that incapacity might assume – poor work performance and
ill health or injury. In both instances, the employee is incapacitated in the sense
of an inability to do the job for which the employee was engaged.
Although the distinction between incapacity in the form of poor work per-
formance or ill health may seem obvious, the line can be blurred. Generally, if
the employee’s incapacity was occasioned by a loss of the physical or mental
faculties necessary to do the job, this would in the ordinary course be regulated
by the rules relevant to incapacity in the form of ill health or injury. The labour
courts have accepted that incapacity in the form of ill health or injury is not
limited to physical illness or injury, and extends to an employee’s mental con-
dition. Employers should be cautious in cases of disability. A dismissal that
amounts to an act of unfair discrimination on the grounds of disability is auto-
matically unfair.78 A dismissal for poor work performance, on the other hand, is
usually justified on account of a lack of the skills or qualities necessary to per-
form the tasks that the employee is required to accomplish. To use the words of
the Code of Practice, a dismissal is effected because the worker ‘fails to meet a
required performance standard’.
Incapacity can be distinguished from misconduct on the basis that in the lat-
ter instance some degree of ‘fault’ is required on the part of the employee. An
employee who feigns illness is therefore guilty of misconduct rather than in-
capacitated. This distinction has a practical consequence and is dealt with in
more detail in the context of poor work performance. The Labour Appeal Court
has recognised that incapacity extends beyond those grounds recognised by
the code, and that it can take other forms, for example, the imprisonment of an
employee.79
The rules applicable to a dismissal for both forms of incapacity are set out in
the code and are discussed below.

________________________

77 S 188(1) of the LRA.

78 See ch 10.
79 Samancor Tubatse Ferrochrome v Metal & Engineering Industries Bargaining Council &
others (2010) 31 ILJ 1838 (LAC).
Conduct and capacity 319

Difficulties also arise when an employee’s inability to perform is attributable to

a factor other than poor performance or medical incapacity – for example,
when the employee loses a qualification or permit which is a prerequisite to per-
forming the job. Recently, incompatibility has been treated as something akin to
incapacity.80

2.2 Medical incapacity

The Code of Good Practice establishes the following guidelines on dismissals for
incapacity arising out of ill health and injury:
An employer must establish if the employee’s ill health or injury is of a perma-
nent or temporary nature:
l if the employee’s ill health or injury is of a temporary nature, but the em-
ployee is likely to be absent from work for an unreasonably long time, the
employer should investigate all alternatives short of dismissal. When consider-
ing alternatives, factors such as the nature of the job, seriousness of the ill-
ness or injury, possibility of making use of temporary employees and period
of absence should be taken into account;
l in the case of permanent ill health or injury, the employer should consider
the possibility of securing alternative employment or ways of accommo-
dating the employee’s disability;
l the employee should be afforded the opportunity to state a case in re-
sponse to an investigation into the employee’s medical incapacity and to
be assisted by a fellow employee or trade union representative;
l when the cause of the incapacity is drug- or alcohol-related, counselling
and rehabilitation should be considered; and
l particular consideration should be given to employees who are injured at
work or who are incapacitated by a work-related illness.
Although these are only guidelines, the CCMA and the Labour Court have
shown a tendency to enforce them stringently and have supplemented them
to some extent.81

________________________

80 Van der Merwe and Agricultural Research Council (2013) 34 ILJ 3366 (CCMA). See para
2.4.2 ‘Incompatibility’.
81 In Parexel International (Pty) Ltd v Chakane NO & others (2018) 39 ILJ 644 (LC), the Labour
Court stated that ‘By now it is reasonable to expect that employers clearly understand the
obligations in terms of items 10 and 11 of the Code. Even though an employer may not be
obliged to retain an employee who is not productive, fairness requires that a proper as-
sessment be made of whether that situation has been reached before the employer re-
sorts to dismissal’ (at para 29). See also Parexel International (Pty) Ltd v Chakane NO &
others [2019] 11 BLLR 1245 (LAC) where the Labour Appeal Court set aside the arbitration
award and the court a quo’s decision not to review such award. In this case the court
found a proper assessment had been made even in the absence of consideration of fur-
ther alternatives after the position had been kept open for 9 months. This was because
‘whether an employee is willing and able to work and when she may be in a position to
do so are material considerations to which regard must be had when considering an em-
ployee’s incapacity’ (at para 20).
320 Law@work

In a dispute about the fairness of a dismissal arising from ill health or injury the
arbitrator will generally consider:
l whether or not the employee is capable of performing the work;
l if the employee is not capable of performing the work:
• 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 disability or, where this is not possible, the extent to
which the employee’s duties might be adapted; and
• the availability of any suitable alternative work.
The appropriate employer response to incapacity in the form of illness or injury
can be gleaned from these provisions of the code.
First, the employer must establish the nature of the employee’s condition, the
likely prognosis and the extent to which the employee is incapable of doing the
work for which he or she was employed. This obviously entails a discussion with
the employee and may require medical opinion to be obtained. It should be
remembered, though, that a decision to dismiss is not a medical question; it is a
decision to be taken in the light of available medical evidence and opinion. An
employer may not compel an employee to undergo a medical examination. If
the employee refuses to do so, the employer must make a decision on the facts
available to it, although an arbitrator is entitled to draw a negative inference
from the employee’s refusal.
The second consideration is the likely duration of the employee’s absence
from work. In the case of permanent incapacity the employer’s obligations are
directed at securing alternative employment or adapting the employee’s duties
or work circumstances, where possible, to accommodate any disability on the
part of the employee. This element of the guideline appears to assume that the
employee, although permanently incapacitated, is nevertheless capable of
performing some work. The employer’s obligations in these circumstances are
not dissimilar to those that apply in the case of employees with a disability. The
affirmative action measures required by the EEA include making reasonable
accommodation for employees from designated groups in order to ensure that
they enjoy equitable representation and that they are equitably represented in
the workforce. ‘Reasonable accommodation’ is defined in section 1 of the EEA
to mean ‘any modification or adjustment to a job or to the working environ-
ment that will enable a person with a disability to have access to, participate in
or advance in employment’.
In National Education Health & Allied Workers Union obo Lucas v Department
of Health (Western Cape)82 the arbitrator found that, in the course of determining
________________________

82 (2004) 25 ILJ 2091 (BCA). The applicant employee was injured on duty, which resulted in
her not being able to bend and lift heavy objects. As she was previously employed as a
general worker in the nursing department of a hospital she was transferred to the sewing
department while her case was considered. There, however, she did not cope well. She
applied for a more senior administrative post but was unsuccessful. Her employment was
consequently terminated on grounds of incapacity due to ill health or injury and the
continued on next page
Conduct and capacity 321

whether a dismissal based on incapacity was fair, regard should be had to

whether or not an employee is a person with a disability as defined in the EEA.
The objective of both the LRA and the EEA is to encourage employers to
accommodate people with disabilities in employment if possible. The arbitrator
argued that the general objective of the statutory instruments (the LRA and the
EEA) was to promote procedural and substantive fairness in relation to such
people, and to encourage employers to keep people with disabilities in em-
ployment if these disabilities could reasonably be accommodated. It was thus
found that the general concept of fairness required of the employer to consider
whether ‘reasonable accommodation’ (in terms of the EEA Code of Good
Practice on Employment of People with Disabilities) could be made for the em-
ployee rather than to dismiss. This consideration clearly goes further than that
under the LRA Code of Dismissal. In terms of the EEA code ‘reasonable accom-
modation’ is defined in the same manner as section 1 of the EEA (see item 6).
An employer will therefore have to show that it made efforts to do the same.83
In Wylie v Standard Executors & Trustees84 an employee who suffered from a
physical disability (multiple sclerosis) claimed unfair dismissal. The commissioner
distinguished between a dismissal for incapacity on the grounds of ill health
(found in the LRA Code of Good Practice: Dismissal) and ‘disability’ as defined
in the EEA and its code. The commissioner concluded that the requirements of
these two Acts are not interchangeable and that more is required of an em-
ployer to provide ‘reasonable accommodation’ for an employee who falls
within the definition of ‘people with disabilities’ in terms of the EEA.
If an employee is permanently incapacitated to an extent that performance
of the employment contract becomes impossible, in terms of strict contractual
principles the contract may terminate by operation of law, in other words there
is no dismissal.85 This having been said, employers may wish to confirm prior to
termination of the contract that objectively speaking, performance in terms of
the employment contract is impossible and there is no prospect of accommo-
dating the employee in the current position or any other position.
A further practical issue that often arises in the context of permanent in-
capacity is whether the employer is required to follow the procedure set out in
________________________

employer purported to have complied with items 10 and 11 of the LRA Code of Good
Practice: Dismissal.
83 See item 11(b)(i)–(iii). Item 6.11 of the EEA code provides that the duty to make ‘reason-
able accommodation’ must not impose an ‘unjustifiable hardship’ on the employer. In the
case of Lucas (fn 82) the arbitrator stated that in deciding what is reasonable depends on
the circumstances of the workplace and the employee (including the extent, the purpose,
arrangements of the accommodation and the employer’s resources). There need not be
an existing vacancy where an employee cannot continue to perform his or her current
duties – the employer is obliged to consider adapting the duties or work circumstances of
the employee. It is also a well-established principle that the duty on an employer to
accommodate an employee with an injury or illness is more onerous where the same was
contracted as a result of his or her employment (item 10(4) of the LRA Code of Good
Practice: Dismissal). This principle was confirmed in Tshaka and Vodacom (Pty) Ltd (2005)
26 ILJ 568 (CCMA).
84 (2006) 27 ILJ 2210 (CCMA).
85 See ch 9 at para 2.2.7 ‘Supervening impossibility of performance’.
322 Law@work

the code if the employee has successfully applied for disability benefits in terms
of a benefit fund. Where the rules of the fund contemplate termination of em-
ployment as an automatic consequence of qualifying for the benefit, there
would be little or no purpose served by following the guidelines and the ques-
tion arises whether there has in fact been a dismissal at all. In these circum-
stances, the termination can be likened to a retirement on ill health and does
not constitute a dismissal. If an employee is unsuccessful in qualifying for a dis-
ability benefit, the employer is not precluded from investigating of its own
accord whether the employee’s continued employment is viable.
In the case of a temporary inability to work, the code draws a distinction be-
tween absence for ‘a time that is unreasonably long in the circumstances’ and
other situations, presumably those where the absence is not likely to extend for
an unreasonably long period or where the employee is not permanently in-
capacitated. Anticipated absence for an unreasonably long period does not in
itself give rise to a right to dismiss – the employer is required to consider alter-
natives to dismissal. The viability of any available alternatives must be deter-
mined against considerations relevant to the nature of the job, the likely period
of absence and the prospect of obtaining a temporary replacement for the
employee. In Burger v Governing Body of Newcastle Senior Primary School 86 an
employee was dismissed for incapacity after she indicated that she required
seven weeks’ unpaid leave to undergo an operation. The commissioner noted
that management had neither investigated the extent of the employee’s in-
capacity nor did they give her an opportunity to state her case. Not surprisingly,
her dismissal was found to be unfair. This case reinforces the fact that a lengthy
period of absence alone will not justify a dismissal on the grounds of incapacity.
The more difficult cases occur when each of an employee’s periods of ab-
sence is not unreasonably long but, cumulatively, that is their effect. This has
been referred to as ‘intermittent absence’. The labour courts have recognised
an employer’s right to dismiss after relatively short periods of absence if the em-
ployee has been frequently absent in the past. In other words, a period of ab-
sence will be considered in the context of any number of prior periods of
absence and the cumulative effect of those periods on the employer’s business
will be taken into account in determining the appropriateness of dismissal as a
response.
The existence of any alternatives to dismissal and the extent of any adapta-
tion of duties that may be possible is a factual enquiry to be conducted in each
case. The employer should demonstrate the steps it took to find alternative work
that was within the employee’s capacity to perform, even if that is at a re-
duced rate of pay. In Standard Bank of South Africa v CCMA & others,87 the
court equated an employee’s incapacity on account of injury with disability,
and held that a dismissal was unfair because the employer had failed to take
reasonable steps to accommodate the employee’s disability.
Two special circumstances exist. The first is where medical incapacity is drug-
or alcohol-related. The code suggests that these cases should be approached
________________________

86 [2005] 2 BALR 175 (CCMA).

87 [2008] 4 BLLR 356 (LC).
Conduct and capacity 323

from a capacity rather than a conduct perspective and that counselling and
rehabilitation should be considered.88 The second circumstance is that where
the employee’s condition is a consequence of an occupational injury or illness.
The code suggests that ‘particular consideration’ should be given to the accom-
modation of these employees and records show that the labour courts have
generally indicated that a higher standard will be required of employers in this
situation.89 But there is clearly no obligation on an employer to create a job for
an employee where none exists, nor is there an obligation to keep any position
open indefinitely.90
In Tshaka and Vodacom (Pty) Ltd 91 the principle that an employer’s duty to
accommodate an employee is more onerous where the incapacity is work-
related was reinforced, and it was found that the fact that the company had
not considered alternative positions outside the city where the employee was
based rendered the dismissal unfair.
There is a common misapprehension that an employee may not be dismissed
for medical incapacity unless and until the employee has exhausted the sick
leave or any disability benefits to which the employee is entitled. This is not
necessarily the case, nor is it the case that the employer is automatically en-
titled to dismiss an employee once the employee has exhausted these benefits.
Whether dismissal is appropriate must be determined by the application of the
factors discussed above. The existence of any benefits for any specified period
is no more than an indication of a period of absence that the employer may
have anticipated at the time of concluding the employment contract.
The question of medical certificates is generally a separate issue and relates
to the employer’s obligation to pay an employee during any sick leave rather
than the right to dismiss. Section 23 of the BCEA provides that an employer is not
required to pay an employee who has been absent for more than two con-
secutive days or on more than two occasions during an eight-week period if the
employee fails to produce a medical certificate stating that the employee was
unable to work during the employee’s absence. The certificate must be issued
and signed by a medical practitioner who is certified to practise and who is
registered with a professional council.
An employer often has reason to doubt that the employee’s absence from
work is attributable to illness or injury despite the production of a valid medical
certificate. In this regard, the Labour Court has previously indicated that an em-
ployer was entitled to dismiss an employee for misconduct who engaged in
activities that were not associated with someone who was too sick to come to
________________________

88 Jansen v Pressure Concepts (2005) 26 ILJ 2064 (BCA) illustrates this point. An employee was
dismissed for poor time keeping, which was related to his alcoholism. It was found that
there was a duty on the employer to accommodate the employee’s problem and that
discipline for the poor time keeping had to be managed on the basis of incapacity. The
dismissal was unfair – dismissal was not considered the appropriate sanction.
89 See, eg, Steyn v SA Airways (2008) 29 ILJ 2831 (CCMA).
90 However, see the Lucas case (fn 82) regarding ‘reasonable accommodation’ for people
with disabilities.
91 Fn 83.
324 Law@work

work, despite the fact that the employee produced a medical certificate upon
her return to work.
In incapacity cases, it is difficult to draw clear lines between substance and
procedure. Many of the obligations imposed on the employer are best dis-
charged in the context of an ongoing discussion with the employee. However,
the code does suggest that an employee should be afforded the opportunity
to ‘state a case’ in response to the employer’s investigation into the employee’s
incapacity, and that the employee has a right to be assisted by a trade union
representative or fellow employee in this process. This requirement seems to
relate specifically to the consideration of the appropriateness of dismissal as an
outcome. But, as stated above, the prior investigation into the nature of the
employee’s incapacity, the employee’s prognosis and the extent to which the
employee is capable of performing work should be the subject of discussion
with the employee and any representative before there is any consideration of
dismissal.

2.3 Poor work performance

Dismissal on the basis of poor work performance contemplates a dismissal of an
employee who can’t meet the required performance standard as opposed to
an employee who ‘won’t’ or ‘couldn’t be bothered’ to meet the standard. Em-
ployers are frequently faced with the dilemma of classifying the employee’s
conduct correctly. If the source of the problem is misconduct-related, the
appropriate procedure is very different to that if it is incapacity-related. In the
former case, the employee would be subject to disciplinary measures, while in
the latter case, the employer is generally obliged to assess the source and ex-
tent of the problem, attempt to redress it and investigate the existence of alter-
native measures prior to dismissing the employee. In Pillay v NuMetro Theatres,92
the arbitrator stressed the importance of distinguishing between poor perform-
ance and misconduct. The dismissal of the employee was found to be unfair
because he was dismissed for misconduct in circumstances where the issue was
in fact one of poor performance and the correct procedures had not been fol-
lowed.93 In Palace Engineering (Pty) Ltd v Ngcobo & others 94 the Labour Appeal
Court held that, although a senior employee
is indeed expected to be able to assess whether he is performing according to
standard and, accordingly, does not need the degree of regulation or training

________________________

92 [2004] 11 BALR 1365 (BC).

93 Confirmed in Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA & others
[2014] 1 BLLR 20 (LAC). It is also possible that an employee’s medical condition may im-
pact his or her job performance. In Transnet Rail Engineering v Mienies & others [2015] 11
BLLR 1144 (LAC) the dismissal of Mr Mienies for shoddy work while suffering from clinical
depression was found unfair. All relevant evidence (eg recommendations from medical
practitioners) must be taken into consideration when deciding on the fairness of the dis-
missal, as dismissal ‘must always be an action of last resort. Indeed, dismissal becomes un-
necessary if, given a reasonable opportunity and reasonable assistance, the employee
can meet the required standard’ (at para 19).
94 [2014] 6 BLLR 557 (LAC).
Conduct and capacity 325

that lower skilled employees require in order to perform their functions, an em-
ployer is not absolved from providing such an employee with resources that are
essential for the achievement of the required standard or set targets.95
In this case, the setting of unrealistic targets and failure to assist and hear the
employee led to the dismissal being unfair.96

2.3.1 Probationary employees

The Code of Good Practice permits an employer to require a newly hired em-
ployee to serve a period of probation before the appointment of the employee
is confirmed. The wording of the provision would seem to indicate, first, that pro-
bation is not compulsory; it is a requirement that an employer may elect to
impose in a contract of employment in the case of a newly hired employee.
Secondly, the wording clearly permits an employer to refuse to confirm the
appointment of an employee until a period of probation has been successfully
completed. As appears from the discussion below, this does not give the em-
ployer an unlimited right to refuse to confirm the appointment – there are cer-
tain substantive and procedural safeguards that apply in these circumstances.
The code defines the purpose of probation in terms of an opportunity that is
extended to an employer to ‘evaluate the employee’s performance’ before
confirming the employee’s appointment. The code makes it clear that pro-
bation should not be used for any other purpose and, in particular, should not
be used to deprive employees of the status of permanent employment. By way
of example, the code cites the practice of dismissing employees who have
recently completed a probationary period and replacing them with newly hired
employees. This abuse is not consistent with the purpose of probation and con-
stitutes an unfair labour practice (the definition of unfair labour practice in sec-
tion 186 of the Act is extended to any unfair act or omission that arises between
an employer and employee involving unfair conduct by the employer relating
to probation, excluding disputes about dismissals for a reason related to pro-
bation).
The code is silent on what might constitute a reasonable period of probation.
This is because what is reasonable ought to be determined on a case-by-case
basis and is dependent on a number of factors. The code specifically mentions
the nature of the job, and the time it would take to determine the employee’s
suitability for continued employment. Generally, lower-skilled occupations would
require shorter periods of probation. In some instances, for example, employees
in academic institutions and senior managerial employees who are required to
meet specific financial targets, a fair assessment of the employee’s perform-
ance might not be able to be conducted in less than an academic or a finan-
cial year.

________________________

95 At para 24.
96 See also Damelin (Pty) Ltd v Solidarity obo Parkinson & others [2017] 7 BLLR 672 (LAC)
which shows that where the period for improvement was too short or the target was in-
capable of being achieved the dismissal will be unfair because there is no fair reason and
the sanction of dismissal is not appropriate (at paras 41–42).
326 Law@work

During the period of probation the employer should assess the employee’s
performance. The employee is entitled to a reasonable evaluation of his or her
work performance and to whatever instruction, training, guidance or counsel-
ling is necessary to enable the employee to render a satisfactory level of ser-
vice. In Tharatt v Volume Injection Products (Pty) Ltd 97 the arbitrator found that
a dismissal of an employee during the probationary period was unfair because
the employer had not investigated the cause of the deficiency in performance
and had dismissed the employee before the end of the probationary period,
despite a warning that the employee’s services would only be terminated at
the end of the period.
If the employer determines that the employee’s performance does not meet
the required standards, the employee is entitled to be advised of any respects
in which he or she is alleged to fail to meet those standards, and if the employer
is of the view that the employee is incompetent, the employer should advise the
employee of the respects in which the employee is not competent. If the em-
ployee, despite instruction, training, guidance or counselling, continues to per-
form work of an inadequate standard, the employer can elect either to extend
the probationary period or to dismiss the employee. If the employer opts to
extend the probationary period, it may only do so for a reason that relates to
the purpose of probation, in other words to provide a further opportunity to
evaluate the employee’s work performance. The period of the extension should
also not be disproportionate to the legitimate purpose that the employer seeks
to achieve. As a result, the period of an extension of a probationary period must
be determined by what is reasonable in the circumstances and the specific
objectives that the employer seeks to achieve by requiring a further period
within which to continue evaluating the employee’s performance.
If the employer elects to dismiss the employee, it may only do so after issuing
an invitation to the employee to make representations as to the proposed dis-
missal and after considering any representations that are made. A trade union
representative or fellow employee is entitled to make representations on behalf
of the affected employee. In Fraser v Caxton Publishers,98 the dismissal of an
employee at the end of a probationary period was found to be procedurally
unfair because the employer had terminated her employment without a hear-
ing. If the employer decides to dismiss the employee or to extend the pro-
bationary period, the employee is entitled to be advised of the right to refer the
matter to a bargaining council having jurisdiction or to the CCMA.
Perhaps the most significant change introduced by the 2002 amendment to
the Code of Practice is the requirement that any person making a decision
about the fairness of a dismissal of an employee for poor work performance
during or on the expiry of a probationary period ought to accept reasons for
dismissal that ‘may be less compelling’ than would be the case had the dis-
missal been effected after the completion of the probationary period. What
precisely is intended by this provision is unclear, but it would seem that the
________________________

97 [2005] 6 BALR 652 (MEIBC). See also ch 8 at para 4 ‘Probation’.

98 [2005] 3 BALR 323 (CCMA).
Conduct and capacity 327

hurdle of substantive fairness is to be set at a lower level in disputes about the

dismissal of probationary employees. In other words, the burden of proof on the
employer to establish the sufficiency of the proffered reasons for dismissal is
lighter than is the case where a ‘permanent’ employee is dismissed. Whether
this introduces any significant change to the law is debatable – the labour
courts have generally deferred to the employer in matters such as this, provided
that the standards of work performance required by the employer are not
unreasonable. What is clear from the wording, and contrary to speculative
interpretations of item 8(1)(j) of the code, is that it does not amount to a reversal
of the onus on the employer to prove the substantive fairness of a dismissal. In
summary, the burden of proof remains with the employer, but it is a lighter bur-
den than that which normally applies.99
The wording of the amended code is sufficiently broad to entitle an employer
not only to assess whether the employee has the technical skill or ability to do
the job but also to ascertain whether the employee is suitable, in a much wider
sense, for continued employment. This would include consideration of an em-
ployee’s character, ability to work in harmony with others (including existing
employees, customers or clients), the employee’s demeanour and diligence,
character, ability to ‘fit in’, and potential for advancement and general suit-
ability for continued employment with the employer concerned. Therefore,
where an employee’s conduct cannot be rectified by additional training and
mentoring dismissal could be relevant even during probation.100
Finally, appointment subject to a period of probation does not establish a
right to continued employment until the end of the probationary period. The
labour courts have consistently held that if it becomes apparent prior to the end
of an agreed probationary period that the employee is unsuited for continued
employment, the employee may be dismissed at any stage.
There is no reason why probationary periods should be restricted to newly
hired employees, and employers may require an employee promoted into a
position to successfully complete a probationary period during which the em-
ployee’s suitability for the new position is determined. What is less clear is
whether the employer may dismiss the employee if he is found to be unsuitable
during the probationary period or if the employer may only require the em-
ployee to revert to the original position.

2.3.2 Dismissal after probation

Many principles relating to the assessment of work performance that apply
to probationary employees apply after probation. In particular, the Code of
________________________

99 In Palace Engineering (Pty) Ltd (fn 94) the court held that, ‘Even though less onerous
reasons can be accepted for dismissing a probationary employee, the fairness of such
reasons still needs to be tested against the stipulations of items 8(1)(a)–(h) of the Code of
Good Practice’. The court continued, saying that, ‘At the end of the day, the onus rested
on the employer to prove that the dismissal was substantively fair’ (at para 24).
100 Rheinmetall Denel Munition (Pty) Ltd v National Bargaining Council for the Chemical In-
dustry & others [2015] 6 BLLR 633 (LC). In this case the employee was fairly dismissed for
dishonesty and poor work performance before the end of the probationary period.
328 Law@work

Practice provides that an employee should not be dismissed for poor work per-
formance unless:
l the employer has given the employee appropriate evaluation, instruction,
training, guidance or counselling; and
l the employee continues to perform unsatisfactorily after a reasonable period
of time for improvement has been given.
There is no specific procedure prescribed to deal with poor work performance
other than that the procedure leading to dismissal should include an ‘investiga-
tion’. The purpose of the investigation should be to establish the reasons for the
employee’s inability to meet the required performance standards and to allow
the employer to consider alternatives, short of dismissal, to remedy the matter.
The code provides that in this process the employee should have the right to be
heard and to be assisted by a trade union representative or a fellow employee.
In a dispute as to whether or not a dismissal for poor work performance is un-
fair an arbitrator is enjoined to consider the following (item 9):
l whether or not the employee failed to meet a performance standard;
l if the employee did not meet a required performance standard, whether:
• the employee was aware, or could reasonably be expected to be aware,
of the required performance standard;
• the employee was given a fair opportunity to meet the required perform-
ance standard; and
• the dismissal was an appropriate sanction for not meeting the required
performance standard.
The first stage in any enquiry into an employee’s failure to meet required per-
formance standards is to establish whether in fact the employee failed to do so.
To establish a failure to meet a required performance standard, it is incumbent
on the employer to adduce evidence of a set of factual circumstances that dis-
close poor work performance on the part of the employee. In other words, the
employer must provide sufficient proof of incompetence. This is often difficult,
particularly when an employee is engaged in tasks that are not easily capable
of precise measurement. Substantive proof of incompetence is often best estab-
lished on the basis of an assessment or appraisal conducted by the employer to
establish the reasons for the employee’s shortcomings and a judgement in re-
lation to the employee’s performance. The CCMA has held that a failure in itself
to meet targets set by management is not conclusive proof of poor work per-
formance; the targets may have been unattainable or arbitrarily set.101
________________________

101 See White v Medpro Pharmaceuticals (Pty) Ltd [2000] 10 BALR 1182 (CCMA), Palace En-
gineering (Pty) Ltd (fn 94), Robinson v Sun Couriers [2001] 5 BLLR 511 (CCMA), and Sun
Couriers (Pty) Ltd v CCMA & others (2002) 23 ILJ 189 (LC). In Robinson v Sun Couriers (Pty)
Ltd an employee failed to reach the sales target. Although the guidelines in the code
were superficially followed, the employer had a duty to determine the underlying causes
for the employee’s failure and whether they were under the employee’s control or due
to external reasons. Without such an enquiry, the employer could not provide proper in-
struction, training and guidance. As a result, the dismissal was unfair.
Conduct and capacity 329

The labour courts have established two important principles that affect the
assessment of performance. First, an employer is entitled to set the standards
that it requires its employees to meet. Secondly, it is for the employer to deter-
mine whether or not the required performance standards have been met. In
both instances, the court will interfere only if either the standard or the assess-
ment made by the employer is unreasonable. Therefore, the employer ought to
at least establish that its assessment of the employee’s performance was object-
ive and reasonable. Additional supporting evidence – either of complaints by
customers or other members of staff or independent evaluations or assessments
of performance – is useful evidence in corroboration of the employer’s assess-
ment.
It is not always necessary that the employer establish a pattern of poor work
performance. In some instances, what the courts have referred to as ‘a single
calamitous performance’ will be sufficient to justify dismissal. This is particularly so
where a mistake made by an employee may result in serious consequences. For
example, the driver of a truck or a train or an airline pilot must exercise the highest
degree of professional skill, and the smallest departure from that standard, even
on a single occasion may justify dismissal.
Considerations of consistency may require a comparative assessment of the
employee’s performance in relation to that of others and may require the em-
ployer to ascertain whether other employees have experienced similar difficulties
in meeting the employer’s requirements. An important element of substantive
fairness is the internal consistency of the employer’s evidence. An employer
seeking to persuade an arbitrator of the employee’s poor performance is likely
to encounter difficulty where the employee is able to produce performance
appraisals to the contrary.
Finally, in so far as the appropriateness of dismissal as a sanction is concerned,
the employer is required to consider ways short of dismissal to remedy the em-
ployee’s failure to meet the required performance standard and the employer
must satisfy itself that dismissal is an appropriate penalty for that failure. In gen-
eral terms, the employer will be required to show that alternatives to dismissal
were at least considered. Again, as in the case of medical incapacity, the em-
ployer is not obliged to create alternative employment for an incompetent
employee.

2.3.3 Procedure
As in the case of medical incapacity, there is a close link between substance
and procedure in cases of poor work performance. The Code of Practice re-
quires the following in this respect:
l the employer should conduct an investigation to establish the reasons for
the unsatisfactory performance of the employee;
l the employer must give appropriate evaluation, instruction, training, guid-
ance and counselling; and
l the employer must give the employee a reasonable time to improve.
330 Law@work

In this process an employee has the right to be heard and to be assisted by a

trade union representative102 or a fellow employee.
Neither the LRA nor the code provides much in the way of guidelines as to the
nature of the investigation that the employer is required to conduct. It would
seem, though, that the employer ought at least to enquire into the matters
raised in item 8 of the code, in other words whether the employee failed to
meet a performance standard, whether the employee was aware or should
have been aware of the standard, any opportunities extended to the em-
ployee to improve his or her performance, and, assuming that all of these re-
quirements have been met, the appropriateness of dismissal as a sanction.103
The requirement of a fair appraisal entails not only an appraisal of the em-
ployee’s performance but a discussion with the employee of any criticisms that
the employee may have. At this point the responsibilities of management toward
the employee are particularly pertinent. Weaknesses in managerial support
might be highlighted and the extent to which the employer has failed to create
the conditions that enable satisfactory work performance should be examined.
The existence of proper support, adequate training and supervision and a satis-
factory work environment should be established.
The requirement that an employee be given a reasonable time to improve his
or her performance implies that the employee should be warned of any short-
comings in work performance. A warning in this context is an indication to the
employee that his or her work performance does not measure up to the stand-
ard required by the employer, and should be coupled with details of the
respects in which the performance falls short of that standard. It may be neces-
sary to ensure that a system of progressive warnings is applied subject to the rule
referred to above relating to single calamitous events.
There are circumstances in which warnings may be unnecessary or irrelevant.
These circumstances have been held to include the following:
l gross incompetence or unsuitability;
l where the poor performance results in serious consequences;
l where the employee is incapable of or unwilling to change; and
l where the employee is a senior manager.
The last of these grounds is often controversial, but the labour courts have con-
sistently accepted that those employees engaged in senior managerial posi-
tions ought, by reason of the nature of their jobs, to be fully aware of what is
required of them and fully capable of judging for themselves whether they are
meeting those requirements.104

________________________

102 A trade union representative is defined to mean ‘a member of a trade union who is
elected to represent employees in a workplace’ (s 213).
103 See in general Mangope v SA Football Association [2011] 4 BLLR 391 (LC).
104 See New Forest Farming CC v Cachalia & others [2003] 10 BLLR 105 (LC). However, the
Code of Good Conduct: Dismissal must still be satisfied and the onus of proof remains on
the employer (as held in Palace Engineering (Pty) Ltd (fn 94) and Palluci Home Depot
(Pty) Ltd v Herskowitz & others [2015] 5 BLLR 484 (LAC) at paras 53–54).
Conduct and capacity 331

The code provides no specific guidance as to what might constitute a reason-

able period over which an employee’s performance ought to be assessed after
a warning to improve. In this regard the employer must impose a period that is
reasonable in relation to the nature and extent of the employee’s shortcomings,
the reasons therefore as well as the nature of the job itself.
There is also no reason why probation should be limited to newly hired em-
ployees. Employers may, for example, wish to determine the suitability of an em-
ployee in relation to a position to which he has been promoted. But what if the
employee fails to perform in the promoted position? May the employer dismiss
the employee or is he obliged to reinstate the employee in the position occu-
pied prior to promotion? The general view seems to be that there is a duty on
the employer to accommodate the employee in an alternative position if it is
not possible for the employer to reinstate the employee in the position held prior
to promotion.

2.4 Other forms of incapacity

2.4.1 Lack of qualification
Although the LRA does not define the concept of incapacity, the labour courts
have indicated that cases of a lack or loss of qualification is appropriately dealt
with under this heading. Qualification, in this sense, usually means a licence,
permit, or other authorisation that is concerned with the aptitude or ability of
the employee to do the job. For example, if it were a condition of employment
that an employee retains a driver’s licence, the loss of the licence would be
causally linked to the employee’s ability to do the job and would generally
warrant dismissal.105 It is not necessary that the existence and retention of the
qualification be an express term of the contract of employment – the employer
is entitled to apply the guidelines relating to incapacity if the loss of the qualifi-
cation affected the employee’s ability to perform the work for which he or she
was employed.106

2.4.2 Incompatibility
The CCMA and the labour courts have acknowledged that an employer is en-
titled to insist on reasonably harmonious interpersonal relationships in the work-
place and that, while incompatibility is something of a nebulous concept, it can
legitimately form the basis for a fair dismissal. Incompatibility can manifest itself
in a number of ways, ranging from mild eccentricity to overtly hostile behaviour
toward supervisors and colleagues. Where incompatibility causes disharmony in
the workplace, the employer is entitled to take remedial action. Although there
is debate as to whether or not incompatibility is a form of incapacity, incom-
patibility is probably best dealt with as a form of incapacity since it generally

________________________

105 See, eg Armaments Corporation of South Africa (SOC) Ltd v CCMA & others [2016] 5 BLLR
461 (LC) where the employee was refused security clearance by an outside agency.
106 See ch 9 at para 2.2.8 ‘Other automatic terminations’.
332 Law@work

assumes a form of inability to work within the particular circumstances in which

the employee is engaged.107
Incompatibility should be distinguished from eccentricity, which employers
are generally expected to tolerate.108 Incompatibility is a serious clash with the
prevailing corporate culture or, usually at the level of personality, with other em-
ployees. Obviously, the degree of disharmony that is created is relevant to the
employer’s right to dismiss and it may be appropriate for the employer to coun-
sel the employees or even to issue warnings before dismissal is contemplated. In
other words, before reaching a decision to dismiss, an employer ‘must make
some “sensible, practical and genuine efforts to effect an improvement in inter-
personal relations when dealing with a manager whose work is otherwise per-
fectly satisfactory”’.109
Employers are not allowed to disguise a dismissal for an impermissible reason
under incompatibility. In Jabari v Telkom SA (Pty) Ltd 110 the applicant was dis-
missed after the chairperson of the disciplinary inquiry found that the employ-
ment relationship had irretrievably broken down because the applicant was in-
compatible with the respondent’s ‘corporate culture’. The applicant contended,
however, that the true reasons for his dismissal were the grievances and legal
proceedings initiated against management and the rejection of a voluntary
severance package. The court held that it needed to determine the dominant
reason for the dismissal, and found that the dismissal constituted victimisation
and was therefore automatically unfair in terms of section 187. In this case the
court noted that incompatibility is a species of incapacity, which essentially
relates to the subjective relationship of an employee to his or her colleagues.
Therefore, whether a person is incompatible with others entails a subjective
value judgment. To justify a dismissal for incompatibility, the court said, the em-
ployer must prove that the employee’s conduct was the primary cause of the
disharmony and that he or she was to blame. The Labour Court held that the
employee must then be given the chance to correct his or her behaviour or, if
not, to reply to all the allegations.
The arbitrators and the labour courts have generally deferred to the employer
in cases of dismissals for incompatibility.111 While the inherent degree of subjective
________________________

107 Incompatibility might be a consequence of misconduct – where eg an employee uses

foul language, makes racist remarks, or engages in acts tantamount to insubordination,
and, on that basis, disrupts workplace harmony. Incompatibility might equally be the basis
for a dismissal for operational reasons – incompatibility might have the effect that a busi-
ness is disrupted by disharmony, with serious economic consequences. In general, see
Rycroft ‘The Intolerable Relationship’ (2012) 33 ILJ 2271.
108 Joslin v Olivetti Systems and Networks Africa (Pty) Ltd (1993) 14 ILJ 227 (IC); Jardine v
Tongaat Hulett Sugar Ltd (2002) 23 ILJ 547 (CCMA); Wagenaar v United Reform Church in
SA [2005] 1 BALR 127 (CCMA); Miyeni and Chillibush Communications (Pty) Ltd (2010) 31
ILJ 3054 (CCMA); Sondlo / University of Fort Hare [2011] 5 BALR 551 (CCMA).
109 As discussed by Rycroft (fn 107) at 2276.
110 [2006] 10 BLLR 924 (LC).
111 In Lotter v SA Red Cross Society (2006) 27 ILJ 2486 (CCMA) the applicant challenged the
fairness of his dismissal for alleged incompatibility. The commissioner summarised a number
continued on next page
Conduct and capacity 333

judgment in these cases has been acknowledged, if the employer has acted in
good faith and has reasonable grounds for its conclusion that the employment
relationship cannot continue, there has been a reluctance to second-guess the
employer.

2.4.3 Dismissals at the behest of a third party

It may happen that a third party, for example a client or customer, requests an
employer to dismiss an employee.112 Even though the employee might not have
committed an act of misconduct and the employer may be reluctant to dis-
miss, it is entitled to do so provided certain conditions are met.113
The labour courts have established the following test to determine the fairness
of a dismissal in these circumstances:114
l the demand for the dismissal of the employee concerned must have a
‘good and sufficient foundation’ and must constitute a real and serious
threat to the employer;
l the employer must take reasonable steps to dissuade the party making the
demand for dismissal from persisting with that demand;
l the employer must investigate and consider alternatives to dismissal in con-
sultation with the employee whose dismissal is being demanded; and
l dismissal must be the only option that is fair to both the employer and em-
ployee concerned.
In a case in which the Labour Appeal Court had to consider what was meant
by the absence of any possible alternatives in the context of tension between
two different ethnic groups, the court reiterated that dismissal would be coun-
tenanced only if it was satisfied that the employer acted reasonably and that it
had no alternative. This sets the test for a fair dismissal at a different level (in
other words, necessity), but one that is justifiable given the circumstances.115

________________________

of guidelines that have materialised for determining when a dismissal for incompatibility
would be justified or fair. The guidelines, as originally formulated in Jardine v Tongaat
Hulett Sugar Ltd (fn 108), include whether the employee had caused disharmony in the
workplace; whether the disharmony was of such an extreme measure that it was irre-
mediable; whether the disharmony had an adverse or potentially adverse effect on the
organisation; whether the employee was put on terms to correct the behaviour and was
given a reasonable opportunity to make amends; and whether dismissal was the only
reasonable way in which to deal with the matter.
112 See also the Lotter award (fn 111).
113 However, where a contract provided for the termination of employment if the client of a
temporary employment service for whatever reason no longer wished to use the em-
ployee to carry out the assignment for the client, it was held that the employer could not
contract out of its obligation to ensure fair labour practices for its employees. The termin-
ation of the employee’s contract (by placing the employee in a standby pool) therefore
constituted an unfair dismissal – Smith v Staffing Logistics (2005) 26 ILJ 2097 (BCA).
114 See, eg, Lebowa Platinum Mines Ltd v Hill (fn 11).
115 East Rand Proprietary Mines Ltd v UPUSA (1996) 17 ILJ 1134 (LAC).
334 Law@work

2.5 Permanent/temporary impossibility of performance

There are many instances where an employee will be unable to perform in
terms of his contract of employment for reasons unrelated to medical incap-
acity and poor performance. A regular occurrence is that an employee is im-
prisoned for an unspecified period of time, which in turn renders him physically
incapable of reporting to work. The relationship between criminal and discip-
linary proceedings is discussed in detail above where disciplinary and criminal
proceedings are instituted in relation to the same incident of misconduct.116
There are instances, however, where the employee is imprisoned for an entirely
non-work-related incident. It follows that the employer cannot approach the
matter on the basis that the employee has committed misconduct. Logic would
dictate that when an employee is incapable of rendering his services to the
employer the contract is terminated by the supervening impossibility of perform-
ance. The labour courts have, however, penalised employers who have not
afforded employees an opportunity to make submissions as to why their services
should not be terminated, particularly when employees are dismissed for ab-
sence without leave because they have been imprisoned for a definite or indef-
inite period.117
An occurrence becoming more frequent is absence from work due to cultural
convictions. In Kievits Kroon Country Estate (Pty) Ltd 118 the employee was ab-
sent without leave because she wanted to complete training as a traditional
healer and genuinely feared that failure to do so would result in great misfor-
tune for her. She was dismissed for misconduct. The Supreme Court of Appeal
held that regardless of her refusal or failure to resume work after one week, as
she was required to do by her employer, the court is entitled to grant a dis-
missed employee relief if such failure to obey was justified or reasonable.119
Although the employer and chairperson did not recognise the employee as
being ‘ill’, the commissioner ‘accepted that the respondent genuinely believed
that her health would be in danger had she not heeded the calling of her
ancestors. And that her belief stemmed from deeply held cultural convictions,
which were confirmed by Mrs Masilo, the respondent’s traditional healer’.120 The
court was satisfied that this cultural belief made the employee’s failure to re-
sume work justifiable even in the absence of ‘expert evidence regarding the
nature of her illness and its association with her cultural convictions’. The court
stated that it is beyond dispute that such belief systems ‘exist and are part of
the culture – the customs, ideas and social behaviour – of significant sections of

________________________

116 See para 1.2.12 ‘Off-duty conduct’.

117 See Trident Steel (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration &
others (2005) 26 ILJ 119 (LC). See also Zondi v PPM Security Services (Pty) Ltd (2009) 30 ILJ
981 (CCMA) where the arbitrator held that termination of employment in circumstances
where the client of a temporary employment service had insisted on the applicant’s dis-
missal did not amount to a supervening impossibility of performance.
118 Fn 6.
119 At para 28.
120 At para 22.
Conduct and capacity 335

this country’s people’121 and pointed out that the employer could have ex-
plored alternatives with the employee to try and accommodate her request,
including her attending the course at another, convenient time.122
It is not entirely clear on what basis employers should deal with such absences,
but misconduct does not seem appropriate. Incapacity based on illness or tem-
porary impossibility of performance appears to be more suitable.

________________________

121 At para 23.

122 At para 30.
12
Dismissal for reasons based
on the employer’s operational
requirements

Page
1 Introduction ...................................................................................................... 339
2 Substantive fairness ......................................................................................... 339
2.1 The meaning of ‘operational requirements’ ......................................... 339
2.2 The test for substantive fairness ............................................................... 341
2.3 Dismissal prior to a fixed-term contract’s running its course ................ 343
2.4 Selection criteria ....................................................................................... 344
2.5 Is there a residual obligation to act fairly? ............................................ 347
3 Procedural fairness .......................................................................................... 348
3.1 Determining the appropriate legal regime ........................................... 348
3.2 Notice of contemplation of dismissal ..................................................... 349
3.3 Identifying the appropriate consulting party ........................................ 351
4 The consultation process ................................................................................ 352
4.1 Disclosure of information.......................................................................... 353
4.2 Larger retrenchments: section 189A ...................................................... 354
4.3 Severance pay ......................................................................................... 358
5 Preferential rehiring .......................................................................................... 361

337
Dismissal for reasons based on the employer’s operational requirements 339

1 Introduction
A dismissal for a reason based on the employer’s operational requirements is a
‘no fault’ dismissal. In these circumstances, it is the employer’s constraints and
needs rather than any act or omission on the part of the employee that causes
the termination of employment. For this reason, the law is more prescriptive, in
terms of both substance and procedure, than in the case of a dismissal for con-
duct or capacity. If there is any discernible purpose to this prescription, it is to
effect a balance between the promotion of the social good of preserving em-
ployment and the preservation of the efficiency of the employer’s enterprise.1
The LRA promotes this purpose by creating the structures that permit affected
employees and their representatives to participate in decisions that are taken
about a proposed dismissal and its consequences. The relevant sections, namely
sections 189 and 189A, prescribe the procedures to be followed by an employer
intending to dismiss on the basis of its operational requirements, and determine
the extent to which the labour courts and collective action can interfere with
the employer’s substantive decision to dismiss.
Following the amendments to the Act in 2002, the LRA distinguishes between
large and small-scale dismissals based on operational requirements, primarily in
so far as the prescribed procedure is concerned. Large retrenchments are regu-
lated by section 189A, which affords the affected employees the election to
resort to industrial action on the substantive basis of the dismissal or to refer the
dispute to the Labour Court. The Labour Court deals with disputes about whether
the employer adopted the required procedure on a separate and more exped-
itious basis.
The original section 189 (with relatively minor amendments) continues to regu-
late retrenchments by employers employing less than 50 employees and re-
trenching a relatively small group of employees.
Prior to a discussion on the procedures that are prescribed for large and small
retrenchments respectively, the definition of ‘operational requirements’ and the
elements of substantive fairness in respect of dismissals effected for this reason
are discussed.

2 Substantive fairness
2.1 The meaning of ‘operational requirements’
References made to the reason for dismissal in terms of section 189 are nearly
always to retrenchment. Although most dismissals effected in terms of this sec-
tion can no doubt be classified in that fashion, section 188 refers to dismissal
based on the employer’s operational requirements. Section 213 of the LRA
defines ‘operational requirements’ to mean:
requirements based on the economic, technological, structural or similar needs of
an employer.
________________________

1 For a comprehensive treatment on the law regulating dismissals for operational require-
ments, see Le Roux Retrenchment Law in South Africa (2016).
340 Law@work

Both the term ‘operational requirements’ and its definition are drawn from ILO
Convention 158.2 The statutory definition in the LRA is broad. Its scope certainly
includes a dismissal occasioned by a drop in production, the introduction of
new technology or work programmes, and the reorganisation of work and the
restructuring of a business. The Code of Good Practice on Dismissals Based on
Operational Requirements3 notes that it is difficult to define all the circum-
stances that might legitimately form the basis of a dismissal in these circum-
stances. The code goes on to suggest that economic reasons are those that
relate to the financial management of the enterprise, technological reasons
refer to new technology that affects work relationships, and structural reasons
relate to the redundancy of posts consequent on the restructuring of the em-
ployer’s enterprise. With due respect to the code, these are not the only cat-
egories. The expansive definition of operational requirements has permitted the
courts over the years to include in this category dismissals for incompatibility,
and a refusal to accept changed conditions of employment consequent upon
the need to reorganise work as well as dismissals at the behest of a third party.4
In most cases a dismissal for a reason related to an employer’s operational re-
quirements is effected in circumstances referred to as a retrenchment. A distinc-
tion is sometimes drawn between redundancy and retrenchment. The differ-
ence (if there is one) is that the retrenchment of an employee is often a conse-
quence of a position becoming redundant. Posts become redundant, people
are retrenched. In legal terms, the distinction is irrelevant. What matters is whether
the reason for dismissal is based on the employer’s operational requirements.
The labour courts have generally held that operational requirements cannot
be used as a means to dismiss employees in circumstances where the true
reason for dismissal is conduct or capacity. The line can often be a fine one. In
SA Transport and Allied Workers Union & others v Khulani Fidelity Security Services
(Pty) Ltd,5 for example, the Labour Appeal Court ruled that it was legitimate for
an employer to dismiss for operational requirements those of its employees who
had failed a polygraph test, in circumstances where the purpose of the test was
not to show that theft had actually taken place rather than to test the integrity
of employees who worked in an area where the incidence of theft was high.

________________________

2 Art 4 of the Convention recognises a valid reason ‘based on the operational requirements
of the undertaking, establishment or service’ as a legitimate justification for dismissal.
Art 13 of the Convention imposes specific obligations on employers who contemplate ter-
minations for ‘reasons of an economic, technological, structural or similar nature’. The Con-
vention provides little further guidance as to precisely what reasons are contemplated by
this provision. The Recommendation that accompanies the Convention (Termination of
Employment Recommendation No. 166 of 1982) refers to consultation with workers’ repre-
sentatives when an employer contemplates ‘the introduction of major changes in pro-
duction, programme, organisation, structure or technology that are likely to entail termin-
ations’.
3 GN 1517 in GG 20254, dated 16 July 1999.
4 Freshmark (Pty) Ltd v CCMA & others (2003) 24 ILJ 373 (LAC) and Fry’s Metals (Pty) Ltd v
National Union of Metalworkers of SA & others (2003) 24 ILJ 133 (LAC).
5 (2011) 32 ILJ 130 (LAC).
Dismissal for reasons based on the employer’s operational requirements 341

2.2 The test for substantive fairness

As mentioned in the introduction to this section, the requirements relating to
substantive fairness have always been controversial. Despite the general pro-
vision in section 188 of the LRA that an employer must establish a fair reason for
dismissal, the courts were initially disinclined to subject the employer’s rationale
for retrenchment to extensive scrutiny. Earlier cases suggested that all that was
required of an employer to establish substantive fairness was to demonstrate
that it had a bona fide reason to retrench. In later decisions the employer was
only required to establish that there was a commercial rationality to its decision
to retrench – the fact that alternative measures were available to the employer
would therefore not necessarily render the dismissal unfair provided always that
the employer could establish that his decision was commercially rational. Unless
that decision was not genuine, the labour courts stressed that they would not
second-guess what was termed the ‘commercial and business efficacy’ of the
decision.6
In BMD Knitting Mills (Pty) Limited v SA Clothing & Textile Workers Union,7 the
Labour Appeal Court questioned whether this earlier approach could continue
to be justified, having regard to the requirement that the employer establish
that the reason for dismissal is fair. The court suggested that the employer should
establish that it was necessary to retrench, as opposed to merely accepting the
employer’s decision at face value. While the court acknowledged that the
starting point was whether there is a commercial rationale for the employer’s
decision, the court suggested that it was entitled to enquire whether there was
a reasonable basis for that decision. In a later case, CWIU & others v Algorax
(Pty) Ltd,8 the Labour Appeal Court took the test a substantial step further: not
only should the court guard against merely accepting the say-so of the em-
ployer regarding the need to retrench, retrenchment must be a ‘measure of last
resort’.9
Until its deletion in 2014, section 189A(19) provided that the court had to find
that an employee had been dismissed for a fair reason if:
l the dismissal was to give effect to a requirement based on the employer’s
economic, technological, structural or similar needs;
l the dismissal was operationally justifiable on rational grounds;
l alternatives had been properly considered; and
l the selection criteria applied were fair and objective.

________________________

6 See SACTWU & others v Discreto – a Division of Trump & Springbok Holdings [1998] 12 BLLR
1228 (LAC). The Labour Appeal Court’s approach to substantive fairness relied on ration-
ality and it held that the question is ‘whether the ultimate decision arrived at by the em-
ployer is operationally and commercially justifiable on rational grounds, having regard to
what emerged from the consultation process’.
7 (2001) 22 ILJ 2264 (LAC).
8 (2003) 24 ILJ 1917 (LAC).
9 See also County Fair Foods (Pty) Ltd v OCGAWU & another [2003] 7 BLLR 647 (LAC) and
Enterprise Foods (Pty) Ltd v Allen & others [2004] 7 BLLR 659 (LAC).
342 Law@work

This provision raised the spectre of a test for substantive fairness to be applied
under section 189A different from that applicable to retrenchments effected
under section 189. Despite its repeal, the wording of the provision is likely to
remain influential, if only because it is drawn from a decision of the Labour
Appeal Court that predates its enactment. In SA Clothing and Textile Workers
Union & others v Discreto – A Divisison of Trump and Springbok Holdings10 the
Labour Appeal Court held:
The function of the court in scrutinising the consultation process is not to second-
guess the commercial or business efficacy of the employer’s ultimate decision (an
issue on which it is, generally, not qualified to pronounce upon), but to pass judg-
ment on whether the ultimate decision arrived at was genuine and not merely a
sham (the kind of issue which courts are called upon to do in different settings,
every day). The manner in which the court judges the latter issue is to enquire
whether the legal requirements for a proper consultation process have been fol-
lowed and, if so, whether the ultimate decision arrived at by the employer is oper-
ationally and commercially justifiable on rational grounds, having regard to what
emerged from the consultation process. It is important to note that when deter-
mining the rationality of the employer’s ultimate decision on retrenchment, it is not
the court’s function to decide whether it was the best decision under the circum-
stances, but only whether it was a rational commercial or operational decision,
properly taking into account what emerged during the consultation process.11
In National Union of Mineworkers v Black Mountain Mining (Pty) Ltd,12 the Labour
Appeal Court confirmed that dismissal for operational requirements must be a
measure of last resort and that a dismissal in the circumstances can only be
operationally justifiable on rational grounds if the dismissal is suitably linked to
the achievement of the end goal for rational reasons. This is obviously a higher
standard of rationality than that set out in Discreto. In SA Commercial Catering
& Allied Workers Union & others v Woolworths (Pty) Ltd13 the Constitutional Court
held that it was not necessary for the purposes of the appeal to revisit the de-
cision in Black Mountain Mining, but it did not reject that approach. On the
facts of the case, the court found that the dismissals for operational require-
ments of a number of employees who had refused to accept proposals regard-
ing their conversion from full-time employment to a more flexible working hour
arrangement was substantively unfair, primarily because the employer had
failed to establish that the retrenchments were operationally justifiable on
rational grounds. In particular, the court found that the employer had not prop-
erly considered alternatives to retrenchment, including a wage freeze and the
possibility of ring fencing. The affected employees were reinstated with retro-
spective effect.

________________________

10 Fn 6.
11 At para 8 of the judgment.
12 [2014] ZALAC 78.
13 (2019) 40 ILJ 87 (CC). See Le Roux ‘A Recipe for Procedural Success in the Case of Large
Scale Retrenchments: Woolies Times Three, with a Pinch of Edcon and Steenkamp for
Taste’ (2019) 40 ILJ 1421.
Dismissal for reasons based on the employer’s operational requirements 343

It remains a basic rule that the reasons for any retrenchment must be bona
fide. So, for example, in National Union of Metalworkers of SA v Genlux Lighting
(Pty) Ltd 14 the Labour Court held a retrenchment to be a sham in circumstances
where the vast majority of the retrenched employees were re-engaged through
the agency of a temporary employment service to do the same jobs. Similarly,
in Goddard v Metcash Trading Africa (Pty) Ltd 15 the court reinstated an em-
ployee who was induced to sign a settlement agreement accepting the terms
of his dismissal after a misrepresentation by the employer to the effect that his
position was redundant.16
Finally, in earlier decisions of the Labour Courts it was accepted that employ-
ers could also dismiss for operational reasons where the employer wanted to
become more competitive and increase its profits. The Labour Appeal Court
confirmed this proposition in Mazista Tiles (Pty) Ltd v NUM & others.17 In this case,
the union argued that dismissals were automatically unfair because they were
designed to force the workers concerned to accept the company’s proposal
that they become independent contractors, which they did not want to do.
However, the company argued that the dismissals were not designed to achieve
acceptance of a demand, as they were final and irrevocable. In this regard,
the court agreed and decided, in accordance with the principle of Fry’s Metals,
that the dismissal was accordingly not automatically unfair. The further matter to
be considered then was whether the dismissals were otherwise unfair (in other
words, an ‘ordinary’ unfair dismissal). The Labour Appeal Court considered that
even though Mazista Tiles had indeed continued to make profits this in itself did
not preclude a company from retrenching the employees because employers
are entitled to restructure and retrench if this is necessary to become even
more competitive and more profitable. An employer in these circumstances
would obviously have to satisfy a court that the dismissals were substantively
fair.18

2.3 Dismissal prior to a fixed-term contract’s running its course

The Labour Court has on several occasions held that employees on fixed-term
contracts may not be dismissed before the expiry of their contracts unless it is a
case of a material breach of the contract by such employee (or where the
contract expressly allows for early termination). This is the case even where the
employer might have had good reason to retrench and where it followed a fair
procedure – the dismissal would be unfair.19

________________________

14 (2009) 30 ILJ 654 (LC).

15 (2010) 31 ILJ 104 (LC).
16 See also Maritz v Calibre Clinical Consultants (Pty) Ltd & another (2010) 31 ILJ 1436 (LC).
17 [2005] 3 BLLR 219 (LAC).
18 See National Union of Metalworkers of SA & another v Aveng Trident Steel (A Division of
Aveng Africa Property Limited) & others [2019] 9 BLLR 899 (LAC) at para 70.
19 The Labour Court has also held that that employees prematurely dismissed before the
expiry of fixed-term contracts cannot claim compensation in excess of the remuneration
they would have received if their contracts had run their course – Nkopane v Independent
Electoral Commission [2007] 2 BLLR 146 (LC).
344 Law@work

In Nkanyiso Eustace Buthelezi v Municipal Demarcation Board 20 the Labour

Appeal Court reaffirmed this common-law position and justified the rule as
follows:
This is so simply because the employer is free not to enter into a fixed term con-
tract but to conclude a contract for an indefinite period if he thinks that there is a
risk that he might have to dispense with the employee’s services before the expiry
of the term. If he chooses to enter into a fixed term contract, he takes the risk that
he might have need to dismiss the employee mid-term but is prepared to take
that risk. If he has elected to take such a risk, he cannot be heard to complain
when the risk materialises. The employee also takes a risk [in] that during the term
of the contract he could be offered a more lucrative job while he has an obli-
gation to complete the contract term. Both parties make a choice and there is no
unfairness in the exercise of that choice.
One may argue that this approach is perhaps just a little too simplistic.21

2.4 Selection criteria

If employees are selected in terms of criteria that are unfair, their dismissals will
be considered substantively unfair and possibly automatically unfair. Selection
criteria are one of the matters on which an employer is obliged to consult. In the
absence of agreement on selection criteria, an employer must apply fair and
objective criteria when selecting employees for dismissal.22 This requirement pre-
cludes an employer from applying capricious or subjective criteria, and certainly
excludes the application of any criteria that would amount to an infringement
of a fundamental right. Choosing employees for retrenchment on the basis of
their union membership, sex, pregnancy, age or another discriminatory ground
would certainly result in their retrenchment’s being unfair and may constitute
automatically unfair dismissal. Generally acceptable selection criteria are based
on length of service, skills and qualifications, or an amalgam of those criteria.
The most commonly employed criterion is that of ‘last in, first out’, often refer-
red to as ‘LIFO’. This criterion has consistently been accepted by the labour
courts as a fair, if not the preferred, criterion.23 The application of LIFO is generally
applied subject to a right to retain special skills, especially where these are
necessary for the continued operation of the employer’s business. In NUM &
others v Anglo American Research Laboratories (Pty) Ltd 24 this was confirmed
and it was accepted that the employees who were retained (who had skills
that the applicant did not) had shorter periods of service. The employer used
past performance as a measure of establishing whether employees possessed
________________________

20 (2004) 25 ILJ 2317 (LAC) at para 11.

21 See Smit ‘Everything Fixed about Fixed-term Contracts of Employment: Or Not?’ (2005)
TSAR 200.
22 See generally CWIU & others v Latex Surgical Products (Pty) Ltd (2006) 27 ILJ 292 (LAC) and
National Union of Metalworkers of SA obo Members v Timken SA (Pty) Ltd (2009) 30 ILJ 2124
(LC).
23 S 197(2)(d) of the LRA ensures that employees whose contracts are transferred from the
transferor to the transferee are protected from the potential impact of LIFO as a criterion
as such transfer does not interrupt their continuity of employment.
24 [2005] 2 BLLR 148 (LC).
Dismissal for reasons based on the employer’s operational requirements 345

special skills that needed to be retained, and such test was considered as suffi-
ciently objective to warrant departure from LIFO. The Labour Court did not
accept an argument that the selected employee could acquire the skills pos-
sessed by his fellow workers in a short period.25
The application of LIFO presupposes a pool from which the employer will
select employees for dismissal. Obviously, in the case of the closure of an under-
taking, selection criteria are of little relevance. But, when there is a reduction in
the workforce and selection is to be based on length of service, the identity of
the group of employees to whom the criterion is applied can often determine
the identity of the selected employee. For example, in Neuwenhuis v Group Five
Roads & others26 a company decided to close its Cape Town office. The human
resources manager based in Cape Town at the time of the closure was selected
for retrenchment on the basis that his job had become redundant. He success-
fully challenged his selection for retrenchment on the basis that the company
had operations countrywide, and that he had longer service than other human
resource managers based elsewhere.
In other words, it is not those employees who are actually doing the jobs or
occupying the posts that are identified as redundant who necessarily form the
group of employees selected for retrenchment. An employer may be ex-
pected, in appropriate circumstances, to widen the selection pool to include
employees in other jobs that might potentially be done by employees whose
own jobs have become redundant. The term applied to this principle is ‘bump-
ing’, and it occurs in two forms:
l Horizontal bumping occurs when an employee whose own position is redun-
dant displaces an employee with shorter service in a similar job category.
l Vertical bumping occurs when an employee with longer service displaces a
junior employee with shorter service.
An employer is not always required to apply the bumping principle when select-
ing employees for retrenchment. Bumping should be considered, however, and
if the selection of employees for dismissal is challenged on this basis, the em-
ployer ought to have some rational justification for refusing to apply it. In Porter
Motor Group v Karachi,27 the Labour Appeal Court confirmed that an employer
is obliged to consult with an employee about the possibility of bumping. The
court also discusses the ten principles that have been developed to guide the
employer’s approach to bumping. Obviously, where the employer’s motives are
suspect the court will interfere. An employer cannot therefore, in anticipation of
the closure of a part of its operation, transfer an employee to that part to ensure
the employee’s selection for dismissal in circumstances where the employee
would otherwise not be selected. Bumping is disruptive, and the Labour Court
________________________

25 However, see CEPPWAWU obo Gumede v Republican Press (Pty) Ltd [2006] 6 BLLR 537
(LC) where the Labour Court found that the qualification that LIFO should be applied sub-
ject to retention of ‘special skills’ introduced a subjective variable into the selection pro-
cedure.
26 [2000] 12 BLLR 1467 (LC).
27 [2002] 4 BLLR 357 (LAC).
346 Law@work

has excused its application for this reason. In a recent case, the refusal by a
catering service to apply bumping was challenged in circumstances where the
employer had operated a number of contracts on different sites. The cancella-
tion of a contract resulted in the retrenchment of the employees engaged on
that contract. They alleged that they were entitled to bump their colleagues
engaged on other contracts, and that their selection for retrenchment purely
on the basis that they had been engaged to service the client that had cancel-
led the contract with their employer was unfair. The court considered the nature
of the business, the detrimental effect that bumping would have on the em-
ployer’s operation and its clients, and the burden that the need to train re-
deployed employees would place on the employer. In these circumstances,
the court found that a failure to apply the bumping principle was not unfair.
The court, in Porter Motor Group v Karachi, referred to the term ‘domino
bumping’ to describe large scale bumping which inevitably leads to ‘vast dis-
location, inconvenience and disruption’. In these circumstances, the employer
should consult its employee with a view to minimising the disruption to the em-
ployer. Other factors which might be relevant include the mobility and status of
employees, geographical limits, management’s prerogative to choose and
retain persons in managerial and supervisory positions as well as the independ-
ence of departments or divisions (although the court has indicated that inter-
departmental bumping must be considered unless it would be ‘injurious to itself
and other employees’). In General Food Industries Limited t/a Blue Ribbon
Bakeries v FAWU & others28 the failure by the employer to apply the principle of
bumping resulted in an employee with long service being selected for retrench-
ment as opposed to employees in the same position, albeit at different branches,
who had far shorter service. In these circumstances, the Labour Appeal Court
considered the failure by the employer to apply bumping to be unfair.
In summary, if LIFO is applied, bumping ought to be considered if it is raised by
a consulting party and the effect of its application on the employer’s business
should be determined. If there is little or no disruptive effect to the business, the
courts will probably be more inclined to find that it should have been applied.
Other criteria that have been held to constitute a fair basis on which to select
employees for retrenchment include merit, performance and work records pro-
vided the employee is given an opportunity of defending their application.29 On
the other hand, ABET as a selection criterion in a restructured organisation was
found to be unfair, inter alia, on the basis that it was not a reliable means of
measuring the employee’s actual ability to do the job.30 The Labour Court has
also taken issue with an employer who applied a basket of selection criteria
such as personal attributes, skills, interpersonal relationships, performance, length
of service and experience. The criteria were never discussed, agreed or com-
municated and were vague. It followed that the employees were selected for

________________________

28 [2004] 9 BLLR 849 (LAC).

29 Singh & others v Mondi Paper (2000) 21 ILJ 966 (LC).
30 FAWU & others v SA Breweries Ltd (2004) 25 ILJ 1979 (LC).
Dismissal for reasons based on the employer’s operational requirements 347

retrenchment on the basis of their employer’s subjective preferences and that

their dismissal was unfair.31
Mention must also be made of the courts’ approach to a restructuring exer-
cise in terms of which all or a group of employees’ positions are made redun-
dant and they are required to re-apply for the same or a restructured position.
In Grieg v Afrox Limited 32 the arbitrator noted that by declaring all positions re-
dundant and requiring employees to reapply for restructured jobs, the employer
avoids the need to decide selection criteria up front. The Labour Court has held
that a retrenchment upon a restructuring exercise whereby an employee is
required to apply for his own job must be closely scrutinised because it ignores
the principle that an existing employee enjoys job security that will be protected
especially against no-fault terminations.33 The Labour Appeal Court addressed
the issue squarely in a recent decision in which it drew a distinction between
selection for dismissal and seeking to avoid the need to dismiss. When an em-
ployer initiates a competitive process to select an incumbent for a new post
from the ranks of the occupants of potentially redundant posts (described as
‘dislocated employees’) the assessment criteria applied are to be distinguished
from selection criteria. The employer is not making any selection for dismissal –
rather, it seeks to avoid the need to dismiss a dislocated employee.34
The role of affirmative action measures when selecting employees for re-
trenchment is a controversial issue. In Thekiso v IBM South Africa (Pty) Ltd 35 the
Labour Court held that affirmative action does not give rise to an enforceable
claim by an individual employee for preferential treatment, and that affirmative
action is not applicable when selecting employees for retrenchment.

2.5 Is there a residual obligation to act fairly?

Sections 189 and 189A comprehensively regulate the parties’ respective obli-
gations to consult and engage in joint consensus-seeking. But does complete
compliance with the applicable section render a dismissal fair? Put another
way, can a dismissal be unfair even if the employer complies with all the rele-
vant statutory requirements? It has been suggested that the generally expressed
right not to be unfairly dismissed may impose extraneous obligations on an
employer and that, as the Labour Court put it, compliance with section 189 is
not a necessary or sufficient condition for the fairness of a dismissal. The Labour
Appeal Court recently suggested that this was not the case and that section
189 represented a ‘detailed codification’ of the applicable procedure. In these

________________________

31 Moodley v Fidelity Cleaning Services (Pty) Ltd t/a Fidelity Supercare [2005] 6 BLLR 588 (LC).
32 (2001) 22 ILJ 2102 (ARB).
33 Wolfaardt & another v Industrial Development Corporation of SA Limited (2002) 23 ILJ 1610
(LC) and FAWU & others v SA Breweries Ltd (fn 25).
34 SA Breweries (Pty) Ltd v Louw [2018] 1 BLLR 26 (LAC). See the case note by Rycroft ‘The Dis-
located Employee in a Restructured Process South African Breweries (Pty) Ltd v Louw (2018)
39 ILJ 189 (LAC)’ (2018) 39 ILJ 1470.
35 [2007] 3 BLLR 253 (LC).
348 Law@work

circumstances, there is no residual test, and compliance with the applicable

section is sufficient to establish a fair dismissal.36

3 Procedural fairness
3.1 Determining the appropriate legal regime
After determining that the reason for a contemplated dismissal is one relating to
the employer’s operational requirements, a further classification is necessary.
The LRA draws a distinction between smaller and larger retrenchments, and
regulates each separately. Section 189 which, until the 2002 amendments to the
LRA, regulated all dismissals for operational requirements now contains a num-
ber of generally applicable provisions and regulates smaller retrenchments.
Section 189A applies in the case of the dismissal of larger numbers of employees.
The formula to determine the applicability of section 189 is complex, and care
should be exercised in ascertaining its applicability, not least on account of the
different procedures that apply but also because, unlike section 189A, it does
not confer a right to strike in certain circumstances.
Section 189A applies to an employer employing more than 50 employees if
that employer contemplates dismissing, by reason of the employer’s operational
requirements, at least: 10 employees, if the employer employs up to 200 em-
ployees; 20 employees, if the employer employs more than 200, but not more
than 300 employees, and so forth.37
If the number of employees that the employer contemplates dismissing, to-
gether with the number of employees that the employer has dismissed by reason
of its operational requirements in a 12-month period prior to the employer issu-
ing a notice in terms of section 189(3), is either equal to or exceeds the relevant
number of employees determined by the application of the formula set out
above, then section 189A applies. In other words, any employees retrenched in
the 12 months prior to the date of the notice of intention to retrench must be
taken into account in determining whether the threshold has been met.38
Section 189A does not confine the counting of employees to defined bar-
gaining units, particular enterprises or geographic regions in which an employer
might operate. It would seem that the reference to ‘the employer’ is a ref-
erence to the legal entity that constitutes the employer in terms of the employ-
ment contracts of the affected employees. An employer that is a single legal
entity and that conducts its business on a national basis would be required to
have regard, for example, to any employees previously dismissed in any region
when it contemplates retrenching in only a single geographic location. Similarly,

________________________

36 Baloyi v M & P Manufacturers (2001) 22 ILJ 391 (LAC).

37 Ie, 30 employees, if the employer employs more than 300, but not more than 400 employees;
40 employees, if the employer employs more than 400, but not more than 500 employees;
and 50 employees, if the employer employs more than 500 employees.
38 See the notice requirements in the discussion on s 189(3) below.
Dismissal for reasons based on the employer’s operational requirements 349

it may well be the case that employees who work on the same site are em-
ployed by different employers. It is not the total number of employees on the
site that is relevant but rather the number of employees employed by each
employer.
The definition of ‘employee’ in section 213 of the LRA would seem to apply to
the determination of the number of employees for the purposes of section 189A.
Persons who perform services at a particular site or in a particular workplace but
who are not employees ought therefore not to be brought into account.
It should be emphasised that the trigger for the application of section 189A is
the number of employees that the employer contemplates dismissing, not the
number of employees who are ultimately retrenched. Once it has been ascer-
tained which of the relevant statutory provisions apply, the steps applicable to
the relevant consultation process should be followed. But there are a number of
generally applicable provisions in section 189 that require initial comment.

3.2 Notice of contemplation of dismissal

Consultation is initiated by the employer issuing a written notice in terms of sec-
tion 189(3) inviting the other consulting parties to consult with it, and the disclos-
ure, in writing, of the following:
l the reasons for the proposed dismissals;
l the alternatives that the employer considered before proposing the dis-
missals, and the reason for rejecting each of those alternatives;
l the number of employees likely to be affected and the job categories in
which they are employed;
l the processes or method for selecting which employees are to be dismissed;
l the time when, or the period during which, the dismissals are likely to take
effect;
l the severance pay proposed;
l any assistance that the employer proposes to offer to those employees likely
to be dismissed;
l the possibility of future re-employment of those employees who are to be
dismissed;
l the number of employees employed by the employer; and
l the number of employees that the employer has retrenched in the preced-
ing 12 months.
Section 189(3) does not specify when the notice of invitation is to be issued, but
a reading of that subsection with subsection (1) requires an employer to consult
when that employer ‘contemplates dismissing one or more employees for
reasons based on the employer’s operational requirements’.
The contemplation of a dismissal is often a matter of degree, and extends to
a decision in principle, a decision that dismissal is possible or probable, or that
dismissal is a prima facie option. It is clear from the statutory formulation that an
350 Law@work

employer may not make a final decision to dismiss prior to initiating the consult-
ation process.39 In other words, while a tentative decision or a decision in prin-
ciple may be taken prior to the initiation of the consultation process, the em-
ployer may not make a decision that is final in effect or that presents a fait
accompli to the consulting parties.40 The rationale for this requirement can be
located in the nature of the consultation process. The labour courts have de-
scribed consultation as a process in which the parties jointly seek consensus. To
permit the employer to make final decisions prior to consultation defeats the
object of a process primarily designed to permit employees to bring their influ-
ence to bear on the issues that, from the employer’s perspective, have given
rise to the need to retrench.
In NEHAWU & others v University of Pretoria41 the employer hired a consultant
to investigate the cost-effectiveness of its support services. The report recom-
mended that various support services be outsourced and formal consultations
ensued. The court’s response to the union’s complaint that the employer had a
fixed intent to outsource by the time the formal section 189 consultations began
was that:
there is nothing wrong with an employer coming to the consultation table with a
predisposition towards a particular method of solving the problem which has given
rise to the contemplation of dismissal of employees for operational requirements.
What is critical is that the employer should nevertheless be open to change its mind
if persuasive argument is presented to it that that method is wrong or is not the
best or that there is or may be another one that can address the problem either
equally well or even in a better way. He should engage in a joint problem-solving
exercise with the other consulting party or parties.42
The life span of a notice issued under section 189(3) depends on the content of
the notice and the prevailing circumstances. In National Union of Metalworkers
of South Africa & others v General Motors of South Africa (Pty) Ltd 43 the Labour
Court held that an employer was not entitled to rely on a section 189(3) notice
in respect of a second bout of retrenchments in circumstances where the
notice had been issued five months prior to the contemplated date of the
second round of dismissals and where new justificatory factors were relied on.44
________________________

39 See Atlantis Diesel Engines (Pty) Ltd v NUMSA (1994) 15 ILJ 1247 (A). See also SA Commer-
cial & Allied Workers Union & others v JDG Trading (Pty) Ltd (2019) 40 ILJ 140 (LAC), where
the Labour Appeal Court held that the fact that the employer's executive committee had
taken a resolution that the company ‘must further reduce store staff numbers through
operational requirements to reduce operational costs’, although couched in peremptory
terms, did not disclose any final decision to dismiss. On the facts, the resolution was no
more than a prima facie view on the need for retrenchments and did not amount to a
final decision to dismiss employees for operational requirements.
40 See General Food Industries Limited v FAWU [2004] 7 BLLR 667 (LAC) and Enterprise Foods
(Pty) Ltd v Allen & others (fn 9).
41 [2006] 5 BLLR 437 (LAC).
42 At para 55.
43 [2009] 9 BLLR 914 (LC).
44 Note that a ‘two track’ retrenchment process (one process conducted under s 189, the
other regulated by s 189A) is possible – see Continental Tyre SA (Pty) Ltd v NUMSA [2008] 9
BLLR 828 (LAC).
Dismissal for reasons based on the employer’s operational requirements 351

3.3 Identifying the appropriate consulting party

When an employer contemplates dismissing one or more employees for reasons
based on its operational requirements, the employer is obliged to consult with a
party whose identity is determined in accordance with a strict hierarchy estab-
lished by section 189(1). Any person with whom the employer is required to
consult in terms of a collective agreement has a primary claim. If there is no col-
lective agreement that requires consultation, and if the employees likely to be
affected by the proposed dismissal are employed in a workplace in respect of
which there is a workplace forum, the forum and any registered trade union
whose members are likely to be affected by the proposed dismissals have equal
claim to be consulted. In the absence of a workplace forum, a registered trade
union whose members are likely to be affected by the proposed dismissals must
be consulted. Finally, if there is no registered trade union whose members are
likely to be affected, those employees likely to be affected by the proposed dis-
missal, or their representatives nominated for that purpose, must be consulted.
There is some uncertainty as to how this ranking ought to be applied in prac-
tice. Retrenchments are often effected across the board. Collective agreements
that require consultation more often than not apply to only some employees,
be they members of the union party to the agreement or employees engaged
in a bargaining unit to which the agreement applies. What is clear is that the
hierarchy is one in which a potential consulting partner with a primary claim
displaces all others, certainly in the event of directly competing claims. So, for
example, a minority union has no claim to be consulted in circumstances where
the employer is required to consult a majority union in terms of a retrenchment
agreement concluded with that union (unless, of course, the agreement itself
extends that right to minority unions – an unlikely event). In Association of Min-
eworkers and Construction Union and others v Royal Bafokeng Platinum Ltd and
others45 the Labour Appeal Court rejected a constitutional challenge to the
extension of a collective agreement to non-parties that had the effect that the
employer was required to consult only with parties to the agreement. The court
reaffirmed the principle of majoritarianism, and held that there was no reason
why it should not apply to the extension of an agreement that regulated the
right to be consulted in the event of a proposed retrenchment.
In Sikhosana v Sasol Synthetic Fuels46 the Labour Court confirmed that the pur-
pose of section 189(1) of the LRA is to renounce dual consultation in favour of
the single level of consultation for which it provides. However, what is the case,
for example, where there is a collective agreement to that effect but the em-
ployer contemplates the dismissal of a number of members of junior and middle
management? Does the employer’s obligation to consult the union in terms of
the retrenchment agreement absolve it from any obligation to consult employees
who are not union members, or to whom the collective agreement does not

________________________

45 [2018] 11 BLLR 1075 (LAC).

46 (2000) 21 ILJ 649 (LC).
352 Law@work

otherwise apply? The answer appears to be not – In National Union of Metal-

workers of SA v Aunde SA (Pty) Ltd 47 the Labour Court held that in the absence
of an agreement to the contrary concluded with a majority union, an employer
was obliged to consult with a non-recognised union and any other consulting
party identified in section 189(1).
The Labour Court has yet to develop a set of definitive guidelines in this re-
gard, but on the basis that the purpose of section 189 is to ensure proper con-
sultation between an employer contemplating retrenchment and all potentially
affected employees, the net should be spread widely rather than narrowly. It
may therefore be incumbent on an employer to hold separate consultations
with non-unionised employees or, depending on the structure of the employer’s
bargaining arrangements, with employees who fall outside of defined bargain-
ing units in which collective agreements on retrenchment might apply. In
SACCAWU & another v Amalgamated Retailers (Pty) Ltd 48 the Labour Court was
of the view that section 189(1) does not relieve the employer of an obligation to
consult with affected employees who are not represented in some manner or
form by a collective bargaining agent, workplace forum or registered trade
union. Conversely, in United National Breweries (Pty) Ltd v Khanyeza & others,49
the Labour Appeal Court had to deal with the question of whether it was also
necessary to consult with a union if the employer had consulted with the em-
ployee who fell outside the bargaining unit for which the union was recognised.
The court held that, given the provisions of section 189(1)(c) of the LRA, in terms
of which the employer had to consult any registered union whose members are
likely to be affected by the proposed dismissal, the employer remained obliged
to consult the union.
The Labour Court has also held that an agreement between an employer
and a union cannot be forced upon another union, and the employer still has
to consult with the other union concerned.50

4 The consultation process

The purpose of consultation is to engage in what section 189 terms ‘a meaning-
ful joint consensus-seeking process’. This rather obscure wording represents the
compromise between those seeking to impose an obligation to negotiate the
terms of a retrenchment and those seeking the maintenance of an obligation
to consult. It is a wording that has its origins in judgments of the Labour Court
that have given definition to the obligation to consult that was incorporated
into section 189 in its original form. The labour courts held then, and there is no
reason why the position should be any different now, that the purpose of sec-
tion 189 is to ensure a process of joint consensus-seeking rather than a mechan-
ical application of the procedural steps set out in that section.
________________________

47 (2010) 31 ILJ 133 (LC).

48 [2002] 1 BLLR 95 (LC).
49 [2006] 4 BLLR 321 (LAC).
50 See CEPPWAWU obo Gumede v Republican Press (Pty) Ltd (fn 25).
Dismissal for reasons based on the employer’s operational requirements 353

The parties to a consultation process must attempt to reach consensus on the

appropriate measures in respect of the following:
l to avoid retrenchment;
l to minimise the number of retrenchments;
l to change the timing of the retrenchments;
l to mitigate the adverse effects of the retrenchments;
l the method for selecting the employees to be retrenched; and
l the severance pay that is to be paid to retrenched employees.
The LRA is not prescriptive as to the required subject matter of any discussion
under these headings, but it does require the employer to allow the other con-
sulting party an opportunity to make representations about any matter dealt
with in the statute, as well as any other matter relating to the proposed re-
trenchments. The employer is required to consider and respond to the represen-
tations and, if it does not agree with them, to state its reasons for disagreement.
If any representation is made in writing, the employer is obliged to respond to
that representation in writing (section 189(5) and (6)). It should be emphasised
that this is not a mechanical process. Meaningful joint consensus-seeking implies
an obligation to act in good faith to seek common ground and honestly explore
the prospects of agreement.51 The Labour Court has held that the retrenchment
of an employee was unfair in circumstances where she was advised while on
leave that her post was redundant. The court found that on the facts, by the
time that she was consulted, her dismissal was already a fait accompli.52

4.1 Disclosure of information

Section 189(3) lists the information that must be given to consulting parties con-
currently with the invitation to commence consultation (see the discussion
above). The list is not a closed one, and the Code of Good Practice on Dismis-
sals Based on Operational Requirements suggests that if considerations other
than those listed in section 189(3) become relevant, there should be additional
and appropriate disclosure.
The requirement of disclosure is fundamental to the consultation process since
the role of the consulting parties in joint consensus-seeking would be meaning-
less if they were not able to participate on an informed basis. Nevertheless, the
right to disclosure of information is not absolute. An employer is only required to
disclose information that is relevant (section 16(2)) and is specifically not re-
quired to disclose information that (section 16(5)):
l is legally privileged;

________________________

51 This is also true for employees and their representatives – where a union employs tactics to
frustrate or delay the consultation process an employer may proceed with the retrench-
ments. See NUMSA & others v Kaefer Thermal Contracting Services (Pty) Ltd [2002] 6 BLLR
570 (LC) and NUMSA v Tiger Wheels Limited Group [2001] 12 BLLR 1353 (LC).
52 Crowhurst v ABSA Investment Management Services (Pty) Ltd (AIMS) [2004] 6 BLLR 540
(LC).
354 Law@work

l the employer cannot disclose without contravening a prohibition imposed

on the employer by any law or order of any court;
l is confidential and, if disclosed, may cause substantial harm to an employee
or the employer; and
l is private, personal information relating to an employee, unless that em-
ployee consents to the disclosure of the information.
It is difficult to provide specific guidelines on disclosure of information simply
because what is relevant and what is adequate disclosure will depend on the
facts of each case and, in particular, the issues that become the subject of dis-
cussion. In general, the relevance and adequacy of information that may be
sought and is to be provided should be measured against the purpose that the
information is intended to serve. So, for example, the Labour Court held that an
employer was not obliged to disclose its financial statements in circumstances
where the reason for the retrenchment was a drop in demand for one of its
products rather than a loss of profits.
In any dispute about the relevance of information the onus is on any employer
that resists disclosure on the grounds of lack of relevance to prove that the
information that it has refused to disclose is not relevant for the purposes for
which the information is sought. Once relevance is established, the onus is again
on the employer to demonstrate that, notwithstanding the relevance of the
information sought, one of the four grounds described above precludes the
other consulting party from access to the information that it seeks.53

4.2 Larger retrenchments: section 189A

If section 189A applies, then the consultation process remains triggered by the
notice in terms of section 189(3), but either the employer or a consulting party
that represents the majority of employees whom the employer contemplates
retrenching may request the appointment of a facilitator to assist the parties
engaged in consultation. Any employer requesting facilitation must do so in its
section 189(3) notice, and any consulting parties wishing to request facilitation
must notify the CCMA within 15 days of the employer’s notice. If either party has
lodged such a request, the CCMA must appoint a facilitator. Facilitation is
conducted in terms of regulations.54
After the employer has given notice of an intended retrenchment in terms of
section 189(3), there is an effective 60-day period within which the parties are
required to engage with one another and during which an employer may not
dismiss any employees, nor may any registered trade union that is a consulting
party or any employees who have received notice of termination of employ-
ment exercise any of the options that will ultimately become available to them.
If a facilitator has been appointed, the 60-day period commences on the
date of the section 189(3) notice and, until it has elapsed, the employer may
not give notice of its intention to terminate the contracts of employment of the
________________________

53 See ch 14.
54 Facilitation Regulations, 2002 in GN 1445 in GG 25515, dated 10 October 2003.
Dismissal for reasons based on the employer’s operational requirements 355

employees to be retrenched. A registered trade union or the employees who

have received notice of termination may neither give notice of a strike nor refer
a dispute about whether there is a fair reason for dismissal to the Labour Court
for adjudication. There is no need in this instance to first refer the dispute to a
council or the CCMA.
If a facilitator is not appointed, neither consulting party may refer a dispute to
a bargaining council or to the CCMA unless a period of 30 days has elapsed
from the date on which notice of the intended retrenchment was given. Once
the referral has been made, and a certificate is issued stating that the dispute
remains unresolved, or 30 days (or any agreed extension to that period) has
elapsed since the referral was received by the council or the CCMA, the em-
ployer may give notice to terminate the contracts of employment of the
affected employees, and they may give notice of a strike or refer the dispute to
the Labour Court.
Whatever uncertainty might have existed in relation to the timing of an em-
ployer’s exercising of its right to issue a notice to terminate a contract when
section 189A applies has been removed by the Labour Appeal Court’s decision
in De Beers Group Services (Pty) Ltd v NUM.55 In that case, the Labour Appeal
Court held that section 189A(8) envisages that where no facilitator is appointed,
the employer may give notice of termination of employment only after the
lapse of an initial period of 30 days from the date on which the section 189(3)
notice was issued and a further period of 30 days, as provided in section
189A(8)(b)(i). The judgment appears to suggest that where a facilitator is not
appointed, and in the absence of agreement between the parties, a dispute
must be referred to the relevant statutory dispute resolution agency to trigger
the commencement of the second 30-day period.
Section 189A(2) provides that consulting parties may agree to vary the time
periods that apply to facilitation or consultation and, following an amendment
effected by the 2014 Amendment Act, that a consulting party may not un-
reasonably refuse to extend the period for consultation if the extension is re-
quired ‘to ensure more meaningful consultation’.
When does a consultation process end? If the employer dismisses or gives
notice of dismissal before the expiry of any of the above time periods, then a
registered trade union representing the employees or the employees them-
selves may give notice of the commencement of a strike.
The options available to a consulting party are mutually exclusive. A consult-
ing party may not give notice of a strike in terms of section 189A in respect of a
retrenchment if any dispute about whether there is a fair reason for the dismissal
has been referred to the Labour Court. Conversely, a dispute about whether
there is a fair reason for a dismissal may not be referred to the Labour Court if
the consulting party has given notice of a strike in terms of this section in respect
of that dismissal.

________________________

55 [2011] 4 BLLR 319 (LAC).

356 Law@work

This formulation gives rise, of course, to the prospect of different options being
exercised by different consulting parties. For example, a trade union that is a
party to the consultation process may elect to give notice of a strike, while a
number of disaffected employees with no union affiliation may elect to refer
their dispute to the Labour Court. This is a reality that the section contemplates
but that it limits in only one respect. If a trade union gives notice of a strike in
terms of this section, no member of that union and no employee to whom a
collective agreement concluded by that union regulating consultation or facili-
tation in respect of retrenchments has been extended in terms of the LRA may
refer a dispute to the Labour Court. Any referral to the court that may have
been made is deemed to be withdrawn.
The right to strike or lock-out in terms of the new section is discussed else-
where.56 However, it should be noted here that the sections of the LRA regu-
lating strikes and lock-outs broadly apply, including the right to engage in a
secondary strike action.57 If a consulting party alleges that the employer did not
comply with a fair procedure, that party may approach the Labour Court by
way of application, for any of the following orders:
l compelling the employer to comply with a fair procedure;
l interdicting or restraining the employer from dismissing an employee prior to
complying with a fair procedure;
l directing the employer to reinstate an employee until it has complied with a
fair procedure; and
l making an award of compensation.58
An application challenging the procedure adopted by the employer must be
brought not later than 30 days after the employer gives notice of intention to
terminate the employee’s services, or if notice is not given, the date on which
the employees are dismissed. The Labour Court may, on good cause shown,
condone any failure to comply with this time limit. In NUMSA & others v SA Five
Engineering & others,59 the Labour Court placed the subsections dealing with
resolution of disputes into context. If the employees elect to refer a dispute
about the substantive fairness of the dispute to the Labour Court as opposed to
embarking on strike action, they must do so in the normal course. In other words,
the dispute must first be referred to the CCMA for conciliation and after a certif-
icate has been issued, a statement of claim must be filed in the Labour Court.
On the other hand, disputes about procedure in access falling within the ambit
of section 189A must be dealt with by way of application directly to the Labour
Court.
The purpose of introducing these various procedures is to exclude procedural
issues from the general question of whether the dismissal for operational require-
ments was fair. The mechanism is therefore designed to pre-empt procedural

________________________

56 See ch 16.
57 See ch IV of the LRA.
58 Any award of compensation is subject to the limits applicable in terms of s 194.
59 [2005] 1 BLLR 53 (LC).
Dismissal for reasons based on the employer’s operational requirements 357

problems before the substantive issues become ripe for adjudication or indus-
trial action. The court considered whether the mechanism precludes an appli-
cant from referring a dispute about the procedural fairness of a retrenchment
to the Labour Court in the normal course but did not make decisive pro-
nouncement on the issue. A subsequent decision handed down by the same
judge in RAWUSA v Schuurman Metal Pressing (Pty) Ltd 60 considered in more
detail the circumstances in which an application in terms of section 189A(13)
would be appropriate, as well as the nature of the relief. The applicant trade
union brought an application in which it sought to restrain the employer from
dismissing its employees until it had complied with the provisions of the LRA. The
union’s complaint was that the employees’ retrenchment was a fait accompli
prior to the commencement of the consultation process. The union also insisted
that it was entitled to facilitation within 15 days of issuing of the notice in terms
of section 189(3) of the LRA. The Labour Court made a number of findings. The
first was that only majority unions have the right to request facilitation under
section 189A. Secondly, the court stated that the mechanism provided for in
section 189A in terms of which an applicant could approach the Labour Court
on application in respect of procedural irregularities was aimed at enabling
employees to compel employers to correct ‘clear cut’ breaches of the LRA.61 It
is not a tool to be used by unions or employees to thwart the consultation pro-
cess where the employer was genuinely attempting to consult.62
In SACCAWU v Southern Sun Hotel Interests (Pty) Ltd,63 the Labour Court re-
fused to consolidate two disputes, the one substantive and the other procedural,
in circumstances where section 189A applied. The court stated that employees
in those circumstances were limited to relief in respect of any procedural unfair-
ness by way of motion proceedings in terms of section 189A(13); disputes about
substantive fairness are to be referred by way of trial. The section does not con-
template any consolidation of these proceedings.
Ordinarily, once the consultation process has been exhausted, the employer
party gives notice of termination of employment in terms of the applicable
contractual provisions. The Constitutional Court recently held that where notice
is given in breach of the procedural requirements of section 189A(7) or (8), this
did not have the consequence that the notices or dismissals were a nullity. The
LRA affords employees a right not be unfairly dismissed, and provides remedies

________________________

60 [2005] 1 BLLR 78 (LC).

61 In Insurance & Banking Staff Association & another v Old Mutual Services & Technology
Administration & another [2006] 6 BLLR 566 (LC), the court held that a union cannot
approach the court for relief in the nature of compensation after a retrenchment exercise
had already run its course. The union should approach the court as soon as such pro-
cedural flaws are detected.
62 The Labour Court held that an insistence on the part of the union that the employer com-
mence consultations afresh because of an alleged defect in the retrenchment notice
bordered on bad faith in circumstances where the employer was making attempts to
cure the defect by genuine consultation, and a restraining order, in terms of s 189A(13),
was consequently refused.
63 [2017] 1 BLLR 90 (LC).
358 Law@work

for unfair dismissals. The LRA does not provide remedies for unlawful or invalid
dismissals.64
Where other legislation establishes a process of notice to a regulatory authority
and an investigation and report, the fact that these processes are not synchro-
nised with section 189A does not preclude an employer from exercising its right
to dismiss after having satisfied all of its obligations under the LRA. So, for exam-
ple, in NUM v Ezulwini Mining Co (Pty) Ltd,65 the Labour Court dismissed an ap-
plication to interdict an employer from dismissing certain of its employees on
account of its operational requirements in circumstances where a process con-
templated by section 52 of the Mineral and Petroleum Resources Development
Act had not been completed.

4.3 Severance pay

The statutory formula for the payment of severance pay is contained in section 41
of the BCEA. That Act requires an employer to pay each retrenched employee
a minimum of one week’s remuneration for every completed and continuous
year of service with that employer, and the amount is not capped.
The definition of remuneration extends beyond basic salary and generally in-
cludes all payment in cash or in kind.66 The definition is refined in the instance of
severance pay by section 35(5), which permits an employer to exclude gratu-
ities, allowances paid for the purposes of enabling an employee to work, and
discretionary payments not related to hours of work or work performance. Sec-
tion 35 of the BCEA prescribes the formula for the calculation of severance pay,
both in respect of converting monthly remuneration to weekly remuneration
and in respect of those employees whose remuneration fluctuates from period
to period.
The computation of a severance package must take into account the for-
mula for determining length of service prescribed by section 84 of the BCEA.
Although section 41 requires the payment of one week’s remuneration for each
completed year of continuous service with the dismissing employer, section 84
provides that for the purposes of determining length of service for any provision
of the BCEA, previous employment with the same employer must be taken into
account if the break between the periods of employment is less than a year. If,
for example, an employee resigns and is re-employed seven months later, the

________________________

64 Steenkamp v Edcon Limited 2016 (3) BCLR 311 (CC). The majority of the court held that
the LRA contemplated only fair and unfair dismissals, the Act does not envisage an unfair
dismissal being ‘invalid’. Therefore ss 189 and 189A have nothing to do with the ‘unlawful-
ness’ or ‘invalidity’ of a dismissal. The minority judgment held that lawfulness and fairness
overlap. The lawfulness claim is ultimately one that seeks compliance with the Act; the
LRA has not ‘impoverished a wronged worker’s cache of weapons’ (at para 51). See the
case note Kujinga and Van Eck ‘Large Scale Operational Requirements Dismissals: How
Effective are the Remedies?’ (2018) 39 ILJ 76.
65 [2017] 1 BLLR 47 (LC).
66 See the definition of ‘remuneration’ (s 1 of the BCEA).
Dismissal for reasons based on the employer’s operational requirements 359

employee’s length of service prior to the resignation must be added to the ser-
vice after re-employment to determine length of service for the purposes of cal-
culating severance pay. The period of absence is not brought into account –
only the periods during which the employee worked are regarded as periods of
service, but this does not mean that the employee may claim the double pay-
ment of a severance benefit. If, for example, an employee was retrenched but
re-employed within a 12-month period, and thereafter retrenched a second
time, despite the fact that the break in service must be disregarded, the em-
ployer is entitled to take into account the severance package paid at the time
of the first retrenchment when calculating the package payable in respect of
the second retrenchment (section 84(2)).
There is no general obligation to pay severance pay on termination of em-
ployment. Section 41 of the BCEA makes it clear that the obligation to pay
severance pay arises only when an employee is dismissed for reasons related to
the employer’s operational requirements.67 This formulation assumes that the
employee must have been dismissed. Employees who retire are not dismissed
and are therefore not entitled to severance pay. The dismissal must also have
been effected for a reason based on the employer’s operational requirements.
This excludes a dismissal for misconduct and incapacity, and is no doubt a con-
sequence of the ‘no-fault’ nature of a dismissal for the employer’s operational
reasons.
What is less clear from section 41 is the policy consideration underlying the
obligation to pay severance pay. A number of explanations have been offered.
It has been suggested, for example, that severance pay is a form of compen-
sation for long service. In other words, employees are thought to have some
‘right’ to a job, which like a fine wine or valuable objet d’art, increases in value
with time. This finds some support in the statutory formula that rewards longer
serving employees, but does not explain why the right to severance pay is
limited to operational requirements dismissals. An employee dismissed for in-
capacity in the form of ill health, for example, might be equally as faultless as an
employee selected for retrenchment, but has no claim to severance pay.
Another justification for the payment of severance benefits is the need to tide
over the employee in a period of unemployment. In an economy that provides
limited social protection, including limited unemployment benefits, a severance
package is no doubt always welcome in a period of unemployment. However,
this justification does not explain why all retrenched employees benefit from
section 41, and not only those who fail to secure alternative employment.
Another reason, reflected in Irvin & Johnson Ltd v CCMA & others,68 is that em-
ployers are provided with an incentive to create alternative employment and

________________________

67 See MISA/SAMWU obo members v Madikor Drie (Pty) Ltd [2006] 1 BLLR 12 (LC) for a dispute
about severance payment in the context of a s 197 transfer.
68 [2006] 7 BLLR 613 (LAC). See also Astrapak Manufacturing Holdings (Pty) Ltd t/a East Rand
Plastics v Chemical, Energy, Paper, Printing, Wood & Allied Workers Union (2014) 35 ILJ 140
(LAC).
360 Law@work

employees discouraged from rejecting alternative employment simply because

they prefer cash in their pockets.
This is more than an academic debate because it affects the interpretation of
a significant exclusion from the right to severance pay. Section 41(4) provides
that an employee ‘who unreasonably refuses to accept the employer’s offer of
alternative employment with that employer or any other employer, is not en-
titled to severance pay’. This exception would seem to provide that if the em-
ployer is capable of arranging alternative employment within either its own
ranks or those of another employer, then it is relieved of the obligation to pay
severance pay if the employee unreasonably refuses to accept that offer.69 An
alternative offer may include a transfer from one employer to another with the
employee’s consent or the same position on different terms and conditions of
employment in the context of a restructuring exercise.70 This provision seems to
support the ‘tiding over’ justification because it would appear to deny a right to
severance pay when alternative employment is on offer. However, the wording
of the subsection is not clear. It provides for the forfeiture of a package when
the employee unreasonably refuses alternative employment, but it does not
explicitly deny a severance package to the employee who accepts that em-
ployment.71 What is clear, though, is that there are circumstances in which an
employee will get neither severance pay nor alternative employment. In the
Irvin & Johnson judgment72 the court said:
However, there is a scenario where he gets neither. That is where he has himself to
blame because he has acted unreasonably in refusing the offer of alternative em-
ployment. Where he has refused the offer of alternative employment but cannot
be said to have acted unreasonably in doing so, he still gets paid his severance
pay.
It remains to consider the factors that should be taken into account in deter-
mining the reasonableness of any offer of alternative employment. Section 41
clearly provides that it is the unreasonableness of the refusal that is relevant
rather than the reasonableness of the offer. These are obviously not unrelated
enquiries and it seems that a commissioner would be justified in adopting a two-
stage test by enquiring into the reasonableness of the terms of the offer and
then into the reasonableness of the refusal. Indeed, the Code of Good Practice
on Dismissals Based on Operational Requirements provides as much (see item 11).

________________________

69 Irvin & Johnson Ltd v CCMA & others (fn 68). See, however, Nxumalo & others v Industrial
Contract Catering Services t/a Corporate Chefs [2006] 4 BALR 423 (CCMA) where the
commissioner held that employees who accepted offers of alternative employment are
entitled to severance pay if the new employer refuse to accept their years of service with
the old employer.
70 Freshmark (Pty) Ltd v CCMA & others (fn 4).
71 See the Freshmark case (fn 4) where the Labour Appeal Court suggested that the purpose
behind s 41(4) of the BCEA is to punish the employee where the employee is to blame for
being without employment, and therefore does not deserve to be treated on the same
basis as the employee who is deprived of employment without fault.
72 Fn 68, at para 45.
Dismissal for reasons based on the employer’s operational requirements 361

The terms of the offer require an evaluation of the proposed terms and con-
ditions of employment, the nature of the work, the extent of any relocation that
may be required, and any change in status and the nature and extent of any
security of employment. These factors should not be viewed in isolation: the
formulation adopted in section 197(3) of ‘on the whole not less favourable’ in
relation to a comparison between conditions of employment in the context of
the transfer of an undertaking could be usefully adopted here.
The reasonableness of the employee’s refusal of alternative employment re-
quires an assessment of personal and family circumstances. These include the
financial consequences of any requirement to relocate, any consequences for
the employment of a spouse or other family members and the education of any
children, access to health care facilities, and the like.
The BCEA provides that any dispute about entitlement to severance pay ‘in
terms of this section’ may be referred to a council with jurisdiction or to the
CCMA.73 The council or the CCMA must attempt to resolve the dispute by con-
ciliation. If conciliation fails, the dispute may be referred to arbitration. If the
Labour Court is adjudicating a dispute about a dismissal for operational require-
ments, the court is entitled to inquire into and determine the amount of any
severance pay to which a dismissed employee may be entitled and make an
order compelling the employer to pay that amount.
The limitation of the CCMA’s jurisdiction to severance pay payable in terms of
section 41 means that it is confined to making an award to the effect that the
statutory package should be paid. If any additional amount is claimed in terms
of a contract of employment, that amount must be claimed in a court having
the necessary jurisdiction.74
If an employee accepts payment of a severance package after a retrench-
ment process has been concluded, this does not ordinarily amount to a waiver
of the right to claim unfair dismissal.75

5 Preferential rehiring
The LRA is silent on any obligation to accord preference to employees in the
event that future vacancies arise. The possibility of future employment of dis-
missed employees is a matter that must be the subject of a disclosure of infor-
mation at the time a notice of intention to dismiss is issued,76 but in the absence
of any agreement to accord preference, there is no right to preferential re-
hiring. If there is an agreement to extend preference to dismissed employees, it

________________________

73 S 41(6).
74 In Mathews v GlaxoSmithKline SA (Pty) Ltd [2007] 3 BLLR 230 (LC) the court was of the view
that if an employer grants one employee a ‘far more generous’ or a ‘vastly more superior’
severance package than another, such differentiation, in the absence of justification,
may amount to an unfair dismissal.
75 NASUWU & another v Pearwood Investments (Pty) Ltd t/a Wolf Security & another [2009] 3
BLLR 229 (LC).
76 S 189(3) of the LRA.
362 Law@work

is an unfair labour practice for an employer to fail or refuse to reinstate or re-

employ a former employee in breach of that agreement.77
The Code of Good Practice on Dismissals Based on Operational Requirements
suggests that dismissed employees should be given preference if the employer
again hires employees with comparable qualifications. The suggestion is subject
to two provisos – first, the employee must express a desire to be rehired within a
reasonable time of having been asked; and secondly, the employer may place
a reasonable time limit on any preference it extends to former employees (item 12).

________________________

77 S 186(2) of the LRA.

13
The transfer of undertakings

Page
1 Introduction .................................................................................................... 365
2 Transfer of a business ..................................................................................... 366
3 The meaning of ‘transfer’ ............................................................................. 369
4 What is a ‘business’? ..................................................................................... 370
5 Transfer as a ‘going concern’ ...................................................................... 373
6 Outsourcing and insourcing ......................................................................... 377
7 The effect of the transfer of a business ....................................................... 385
8 Which terms and conditions transfer? ......................................................... 387
9 Transfer date in terms of section 197 ........................................................... 388
10 Formalities and post-transfer liabilities ......................................................... 388
11 Transfer of contracts in circumstances of insolvency ................................ 389
12 Remedies for a breach of section 197 ........................................................ 390

363
The transfer of undertakings 365

1 Introduction1
Globalisation has had the consequence, both internationally and more paro-
chially, of large-scale corporate restructuring. Mergers, acquisitions and other
‘corporate events’, as they are sometimes described, have had a massive im-
pact on expectations of security of employment. At the same time, companies
are increasingly restructuring to focus on what is termed ‘core business’, and
many services and functions once provided ‘in-house’ are being outsourced, to
be provided by independent service providers engaged on a commercial
basis. In many of these instances, one employer transfers businesses or parts of
businesses to another, a situation where commercial interests in greater flexibility
and profitability are often in conflict with employee interests in work security.
The common law, based as it is on the historical ‘master and servant’ relation-
ship, regards the employment relationship as personal. For this reason, the com-
mon law respects an employee’s right to choose his or her employer, and an
employer’s right to choose whom it wishes to employ. Consistent with this con-
ception of employment, the common law also provides that in the absence of
the employee’s consent, an employment contract cannot be assigned from
one employer to another.2 The corollary is that in the absence of consent to a
transfer, when an employer for some reason disposes of the business in which
the employee is engaged, the employment relationship comes to an end, and
the employee has no right to continued employment by any new owner of the
business.
While this rule may have been appropriate in an era when employment was
more often than not a relationship between individuals, a personal relationship
between employer and employee is no longer the hallmark of employment. The
current reality is that most employees are employed by statutorily incorporated
and impersonal corporate entities in circumstances where an employee’s pri-
mary relationship is with managers and supervisors rather than the owners of the
business. In most instances, the disposal of a business poses concerns for em-
ployees about their work security rather than their freedom of contract and the
identity of any new employer. Employers acquiring a new business may equally
have an interest in the continuity that is achieved by a transfer of employment

________________________

1 For a detailed discussion on business transfers and labour rights, see Todd, Du Toit and
Bosch Business Transfers and Employment Rights in South Africa (2004). See also Bosch
‘Balancing the Act: Fairness and Transfers of Businesses’ (2004) 25 ILJ 923, and also Bosch
‘Of Business Parts and Human Stock: Some Reflections on Section 197(a) of the Labour Re-
lations Act’ (2004) 25 ILJ 1865.
2 See Nokes v Doncaster Collieries Ltd [1940] All ER 549 (HL). In this case, Lord Atkin famously
said that the right to choose one’s employer is ‘the main difference between a servant
and a serf’. The policy-related consideration that underlies the decision is that employees
should be free to choose their employer, recognition that employees attach significance
to the identity of their employer. In contractual terms, when an employment contract is
transferred from one employer to another, there is a cession and delegation of the em-
ployment contract. This requires the consent not only of the employee but also the trans-
feror and transferee employers.
366 Law@work

contracts – the skills and experience of employees rather than their individual
personalities is more likely to be an integral component of the business that is to
be acquired. The termination of contracts between the transferor employer and
its employees and the payment of severance allowances makes little commer-
cial sense when most, if not all, of the employees are in any event to be rehired
by a transferee employer who wishes to retain their skills.
Prior to the enactment of the LRA, the Industrial Court had begun to develop
guidelines to protect employees when businesses were transferred, but had not
determined that contracts should transfer automatically in these circumstances.3

2 Transfer of a business
Sections 197 and 197A of the LRA regulate the employment-related conse-
quences of the transfer of the whole or part of a business. Section 197A regu-
lates business transfers in circumstances of insolvency and is dealt with separ-
ately at the end of this chapter. These sections vary the common-law conse-
quences of a business transfer both for employees and the employer parties to
the transaction in terms of which the transfer is effected and, as is discussed
below, attempt to balance often competing rights in these circumstances.4
Section 197 requires that, unless otherwise agreed, the transferee employer
(referred to as ‘the new employer’) be substituted for the transferor (referred to
as the ‘old employer’) as the employer of all employees engaged in the busi-
ness being transferred. In other words, except for the change in identity of the
employer party, the contracts of employment in place at the time of the trans-
fer remain unaffected and any term of the contract between an employee
and the old employer can be enforced, after the transfer, against the new
employer.
In this sense, the policy that underlies section 197 is one that overrides the in-
terests of the individual in the interests of the greater collective good. It does so
in the context of the two principles at work here. The first is the principle referred

________________________

3 See Kebeni v Cementile Products (Ciskei) (Pty) Ltd (1987) 8 ILJ 442 (IC). For an overview of
the guidelines developed by the Industrial Court and the need for statutory regulation,
see Smit ‘Why Should Transfer of Undertakings be Regulated Statutorily in South Africa?’
2003 Stell LR 205.
4 The legitimate interests discernible in these instances include employees’ interest in the
person for whom they are working and their interest in preserving their employment. Fur-
thermore, a transferee will usually be reluctant to comply with obligations that originate
from the former employment relationship. A transferee would prefer to make unfettered
choices regarding the running of the undertaking (including who to employ or not and on
what terms). Finally, the transferor would not want anything to diminish the chances of
transferring the undertaking. Any burdens that will transfer to the transferee will most likely
influence the purchase price of the undertaking and are, therefore, also not in the interests
of the transferor. On the other hand, should the contracts not transfer the transferor will be
liable for notice and severance pay, liabilities which will undoubtedly also be reflected in
the price.
The transfer of undertakings 367

to above, in other words that an employee is free to choose by whom he or she

is to be employed. The competing policy position is to give priority to security of
employment, rather than an employee’s freedom of choice, by obliging the
new employer to take all the old employer’s employees as an inseparable part
of the business bundle that is the subject of the transfer. Section 197 gives ex-
pression to the latter principle. The employee’s freedom to work for the employer
of choice yields to the broader interest of protecting the work security of all
employees affected by the transfer. For employers, as noted above, there may
be advantages in taking transfer of a business with all of its employees. In this
sense, section 197 seeks to relieve both employers and employees of the ad-
verse consequences that may flow at common law from a transaction in terms
of which the business is transferred.
The Constitutional Court made this point eloquently and succinctly in NEHAWU
v University of Cape Town & others 5 when it said the following:
Section 197 . . . relieves the employers and the workers of some of the conse-
quences that the common law visited on them. Its purpose is to protect the em-
ployment of workers and to facilitate the sale of businesses as going concerns by
enabling the new employer to take over the workers as well as other assets in cer-
tain circumstances. The section aims at minimising the tension and the resultant
labour disputes that often arise from the sales of businesses and impact negatively
on economic development and labour peace. In this sense, section 197 has a dual
purpose, it facilitates the commercial transactions while at the same time protect-
ing the workers against unfair job losses.6
Section 197 gives effect to this dual purpose by providing for an automatic and
obligatory transfer of a contract of employment when the underlying trans-
action assumes the form of the transfer of the whole or part of a business as a
going concern.
There was previously some controversy as to the interpretation of section 197,
and a number of competing interpretations were debated.7 The matter was
resolved by the Constitutional Court8 in favour of the interpretation contending

________________________

5 (2003) 24 ILJ 95 (CC).

6 At 118F–H. In Aviation Union of SA & another v SA Airways (Pty) Ltd & others (2011) 32 ILJ
2861 (CC) the court held at para 38 that ‘The section achieves its purpose by preserving
all contracts of employment between the workers and the owner of the business which is
transferred as a going concern. In this way, on the one hand, the workers’ employment is
safeguarded and, on the other, a new owner is guaranteed a workforce to continue with
the operation of the business’.
7 See NEHAWU v University of Cape Town & others [2000] 7 BLLR 803 (LC) and NEHAWU v
University of Cape Town & others [2002] 4 BLLR 311 (LAC). In the latter case, the majority of
the Labour Appeal Court held that there was a transfer of contracts of employment on
the same terms only if the two employer parties agreed that the contracts should transfer.
This interpretation was rejected in the subsequent appeal to the Constitutional Court. The
amendments to s 197 effected in 2002 were intended to address the ambiguity in the
wording of the section identified by the judgments of the Labour Court and the Labour
Appeal Court.
8 At least in respect of s 197 as it existed prior to the 2002 amendments to the LRA.
368 Law@work

for an automatic and obligatory transfer, irrespective of the wishes of the em-
ployer parties concerned. The amendments to section 197 introduced in 2002
put the matter beyond doubt. Section 197(2) uses the device of a substitution of
the transferee employer for the transferor in respect of all contracts of employ-
ment in existence immediately before the date of the transfer. When the under-
lying transaction has the consequence of the transfer of the whole or part of a
business, the transfer of employment contracts9 from the transferor to the trans-
feree employer occurs by operation of law, unless the contracting-out mech-
anism established by section 197(2) is invoked. Subsection (2) is the crux of sec-
tion 197. It reads as follows:
If a transfer of a business takes place, unless otherwise agreed in terms of subsec-
tion (6)—
(a) the new employer is automatically substituted in the place of the old employer
in respect of all contracts of employment in existence immediately before the
date of transfer;
(b) all the rights and obligations between the old employer and an employee at
the time of the transfer continue in force as if they had been rights and obli-
gations between the new employer and the employee;
(c) anything done before the transfer by or in relation to the old employer, in-
cluding the dismissal of an employee or the commission of an unfair labour
practice or act of unfair discrimination, is considered to have been done by
or in relation to the new employer; and
(d) the transfer does not interrupt an employee’s continuity of employment, and
an employee’s contract of employment continues with the new employer as
if with the old employer.
For a transaction to fall within the scope of section 197, three elements must
simultaneously be present. These are:
l a transfer by one employer to another;
l the transferred entity must be the whole or part of a business (or, is there an
economic entity capable of being transferred?); and
l the business must be transferred as a going concern (or, does the economic
entity that is transferred retain its identity after the transfer?).
When all three elements are present, the consequences described in section
197(2) above will follow.10 Each of these elements is discussed below.

________________________

9 In view of the statutory substitution of one employer for another, it may be a misnomer to
refer to a ‘transfer’ of employment contracts. Strictly speaking, the business transfers, from
the old employer to the new, not the contracts. However, the commonly used colloquial
reference to transfers of contracts poses no real conceptual or other harm.
10 See the Aviation Union of SA v SA Airways (Pty) Ltd case (fn 6) at para 44: ‘It must be
stressed that the key event which brings s 197 into play is the transfer of business as a
going concern. The question whether the section applies to a particular case cannot be
determined . . . with reference to the label of the transaction effecting transfer. The sec-
tion does not cite transactions to which it applies. Nor does it refer to any labels. Instead,
its application must always be determined with reference to three requisites, namely, busi-
ness, transfer and going concern’.
The transfer of undertakings 369

3 The meaning of ‘transfer’

A ‘transfer’ is defined in section 197(1)(b) to mean ‘the transfer of a business by
one employer (“the old employer”) to another employer (“the new employer”)
as a going concern’ (our emphasis). This definition sheds little light on which
kinds of transfers potentially fall within the ambit of section 197. Two distinct en-
quiries should occur. First, was there a transfer within the meaning of section 197?
If so, on the facts, was there a transfer of an undertaking as a going concern?
The concept of a ‘transfer’ thus relates to the method of the transfer of a business.
Business transfers occur most often consequent on a sale of the business, but
the reach of section 197 clearly extends beyond transfers effected in these cir-
cumstances.11 Any corporate event such as a merger, take-over, or other re-
structuring potentially falls within the ambit of section 197, as does an exchange
of assets, a donation12 and the outsourcing of non-core functions or business
activities.13 For there to be a transfer, there must be a shifting of a business entity
by one employer to another. This assumes that there must be at least two dis-
tinct employers involved in the transaction.14 The business ‘must have changed
hands, whether through a sale or other transaction that places the business in
question in different hands. Thus the business must have moved from one person
to the other’.15 On this basis, the Labour Appeal Court has held that the per-
fection of a notarial bond and the taking control of a business does not consti-
tute a transfer for the purposes of section 197. The creditor took control of the
business only for the limited purpose of selling movable property to recover the
debts owing by the debtor with the intention of withdrawing from that arrange-
ment once that object is accomplished.16
________________________

11 In the European context, the European Court of Justice has held in Allen v Amalgamated
Construction Co Ltd [2000] IRLR 119 (ECJ) that the Directive is intended to cover ‘any legal
change in the person of the employer’. See also Foreningen af Arbejdsledere i Danmark v
Daddy’s Dance Hall 1988 ECR 739 (ECJ) and Berg v Besselsen 1988 ECR 2559 (ECJ) where
the ECJ again pointed out that the Directive applied not only where there had been a
change in the ownership of an undertaking, but also in circumstances where there was a
change of employer.
12 See Tekwini Security Services v Mavana (1999) 20 ILJ 2721 (LC).
13 In Schutte & others v Powerplus Performance (Pty) Ltd (1999) 20 ILJ 655 (LC) the Labour
Court first dealt with the application of s 197 to outsourcing. In this case, the transferor em-
ployer had outsourced the vehicle maintenance component of its business to the trans-
feree. The court considered that the transaction fell within the ambit of s 197. The court
held that the transfer of a business for the purposes of s 197 may include a ‘merger, take-
over or as part of a broader process of restructuring within a company or group of com-
panies. Transfer can take place by virtue of an exchange of assets or a donation’ (at
671A–C). The resignation of a partner from a partnership of attorneys has been held to
trigger s 197 – see Burman Katz Attorneys v Brand NO [2001] 2 BLLR 125 (LC).
14 However, it may occur between two companies that are in the same group (see the Allen
case (fn 11)). See also FAWU v The Cold Chain (Pty) Ltd & another [2010] 1 BLLR 49 (LC)
where the transfer of warehousing and distribution functions from one company to an-
other within a group fell within the scope of s 197. For a discussion on second-generation
contracting and whether there is a transfer of a business as a going concern in these cir-
cumstances, see para 6 ‘Outsourcing’.
15 Aviation Union of SA v SA Airways (Pty) Ltd (fn 6) at para 46.
16 Spar Group Ltd v Sea Spirit Trading 162 CC t/a Paledi [2018] 10 BLLR 1000 (LAC).
370 Law@work

It is clear that an undertaking can be taken over even in the absence of an

agreement between the transferor and transferee and that the intention of the
parties, although relevant, is not the ultimate consideration. The true nature of
the transaction will be crucial. Confining transfers to those effected by the old
employer would be at odds with the clear scheme of the section and its in-
tended wide scope. A transfer can therefore be effected by means of a sale or
some other kind of disposition, or by operation of law. It does not matter whether
the transfer is effected by a series of two or more transactions.17 The courts have
stated that this enquiry depends ultimately on fact and degree.18
To summarise, a factual enquiry involving objective facts must be conducted
in each case:
For a transfer to be established there must be components of the original business
which are passed on to the third party. These may be in the form of assets or the
taking over of workers who were assigned to provide the service. The taking over
of workers may be occasioned by the fact that the transferred workers possess
particular skills and expertise necessary for providing the service or the new owner
may require the workers simply because it did not have the workforce to do the
work.19
The controversy concerning the application of section 197 to second-generation
outsourcing contracts has seemingly been resolved by the Constitutional Court.20
The Constitutional Court made the observation in the South African Airways case
that ‘generally, a termination of a service contract and a subsequent award of
it to a third party does not, in itself, constitute a transfer as envisaged in the sec-
tion’. The court held that for a transfer to be established ‘there must be com-
ponents of the original business which are passed on to the third party’.21 Prior to
the court’s ruling, the Labour Relations Amendment Bill of 201022 proposed a
change in the definition so that it would read ‘the transfer of a business from
one employer (“the old employer”) to another employer (“the new employer”)
as a going concern’. This proposed change was not included in the 2014
amendments to the LRA.

4 What is a ‘business’?
A ‘business’ is defined in section 197(1)(a) to include ‘the whole or any part of a
business, trade or undertaking, or service’. This broad definition is unhelpful but
crucial, since section 197 applies only when a business, as opposed to some

________________________

17 See Jenkin v Khumbula Media Connexion (Pty) Ltd [2010] 12 BLLR 1295 (LC) at para 28:
‘The issue as to whether or not there has been a transfer should not only depend on the
existence of an agreement but on the facts’.
18 See Smit ‘The Labour Relations Act and Transfer of Undertakings: The Notion of a Transfer’
2003 (2) De Jure 328.
19 Aviation Union of SA v SA Airways (Pty) Ltd (fn 6) at para 48.
20 See the discussion in para 6 ‘Outsourcing’.
21 Aviation Union of SA v SA Airways (Pty) Ltd (fn 6) at paras 47–48.
22 Summary of the Bill published in GG 33873 of 17 December 2010.
The transfer of undertakings 371

other entity, is transferred.23 It may be necessary, therefore, to subject the entity

that is the subject of a transfer to scrutiny to determine whether it is a business,
or a part of a business, for the purposes of section 197.
The South African courts have sought guidance from European jurisprudence,
especially that developed by the European Court of Justice (ECJ) in applying
European Community Directives on the transfer of undertakings. The ECJ has
developed the concept of an ‘economic entity’, defined as ‘an organised
grouping of persons and assets facilitating the exercise of an economic activity
which pursues a specific objective’.24 This concept is easily applied when a sub-
stantial business, along with its tangible assets, is the subject of a transfer. But
some businesses comprise only the provision of services, and may have few if
any assets other than the expertise of its employees. In Süzen’s case, the ECJ
emphasised the organisational component of the entity being transferred,
rather than the nature of the business or the activity that it conducts.
The difficulty in applying this test is well-illustrated by the judgment of the
Labour Appeal Court in SAMWU v Rand Airport Management Co Ltd.25 The
Rand Airport Management Company intended to outsource its security and
gardening functions. It gave notice to the trade union representing its employees
engaged in those functions of its intention to retrench them. The union brought
an urgent application in the Labour Court for a declaratory order to the effect
that the transaction was one to which section 197 applied, and that the em-
ployees were therefore engaged on the same terms by the service providers to
whom the functions had been outsourced. The Labour Court dismissed the
application, but the union’s appeal against that ruling was upheld. In its judg-
ment, the Labour Appeal Court placed some emphasis on the 2002 amend-
ment to section 197(1)(a), when the definition of the word ‘business’ was
extended to include a ‘service’. The court concluded that the outsourcing of
the gardening and security functions to private contractors constituted a ‘ser-
vice’ for the purposes of section 197, and that they were therefore businesses
capable of being transferred in terms of that section.26
The Labour Appeal Court’s Rand Airport judgment can be criticised for con-
fusing form and substance – the relevant enquiry is into the existence or other-
wise of a discrete economic entity. This requires a court to enquire into the
existence or otherwise of the variety of components that make up a business,
including assets, goodwill, a workforce, management staff, the way in which the
work of the business is organised and performed, operational resources avail-
able to the business, and so forth.27 To dismiss the necessity for this enquiry, as
________________________

23 The definition of a ‘business’ is particularly important to the determination of the appli-

cation of s 197 to outsourcing agreements. See para 6 ‘Outsourcing’.
24 Süzen v Zehnacker Gebaudereinigung GmbH Krankenhausservice [1997] IRLR 255 (ECJ).
25 [2005] 3 BLLR 241 (LAC).
26 Since the agreements giving effect to the outsourcing had either not been signed or im-
plemented, the court granted an order to the effect that s 197 would apply were the
transactions to be implemented.
27 Francisca Sánchez Hidalgo ea v Asociación de Servicios Aser and Sociedad Cooperativa
Minerva 1998 ECR 8237 (ECJ).
372 Law@work

the court appears to have done, is to elevate a single component in the statu-
tory definition of ‘business’ (a ‘service’) from an illustrative to a determinative
level, and effectively to allow form to dictate substance.28
This is not to say that a ‘service’ can never be a business for the purposes of
section 197. But in some circumstances at least, the whole or part of a business
in the form of the provision of services might not meet the threshold require-
ments that ought to define a business. As the ECJ has acknowledged, this is
often a difficult exercise when the business concerned is labour intensive and
consists of little more than a group of employees dedicated to a common task.
What is clear though is that a business entity cannot be said to consist solely of
the activity being performed by it.29 A court ought to examine all of the relevant
elements and components that comprise the business, and determine whether
they are sufficiently linked and structured so as to comprise an economic entity
capable of being transferred in terms of section 197.30
In Aviation Union of SA v SA Airways (Pty) Ltd 31 Jafta J stated that ‘It is apparent
from this definition that the section is designed to cover every conceivable
business’. There are, however, instances in which section 197 is not applicable.
For example, in Transport & Allied Workers Union of SA v Transnet (Pty) Ltd &
others32 the provision of a municipal bus service was not 'a business' but the
exercise of a statutory obligation imposed on the municipality. In this instance,
Transnet was appointed to act as the agent of the municipality until such time
as the municipality could, in accordance with its statutory obligations, appoint
a new public transport operator through a public tender process.

________________________

28 See Van Niekerk ‘Bleached Skeletons Resurrected and Vibrant Horses Corralled – SA Muni-
cipal Workers Union v Rand Airport Management Company (Pty) Ltd & others and the
Outsourcing of Services’ (2005) 26 ILJ 66. See also Bosch ‘Transfers of Contracts of Employ-
ment in the Outsourcing Context’ (2001) 22 ILJ 840.
29 See Süzen’s case (fn 24). In Spijkers v Gebroeders Benedik Abattoir v Alfred Benedik en
Zonen BV [1986] 2 CMLR 296 (ECJ), the ECJ held that the fact that a similar service con-
tinued to be provided pre- and post-transfer does not ‘support the conclusion that an
economic entity has been transferred. An entity cannot be reduced to the activity en-
trusted to it’. See para 5 ‘Transfer as a “going concern”’ regarding what is required for the
transfer of a business as a going concern: the transfer of ‘an economic entity that retains
its identity, meaning an organised grouping of resources which has the objective of pursu-
ing an economic activity, whether or not that activity is central or ancillary’.
30 On this basis, the Labour Appeal Court might well have concluded, as Landman J did in
the court a quo, that Rand Airport’s gardening and security functions were activities, rather
than parts of businesses capable of transfer in terms of s 197. In Rural Maintenance (Pty)
Ltd & another v Maluti-A-Phofung Local Municipality 2017 (1) BCLR 64 (CC) the court re-
jected the notion of a separate test for cases of a change in service providers. The Con-
stitutional Court (in the first judgment at para 41) held that: ‘the definition of “business” in
section 197(1) of the LRA includes a service. This court has clarified that this means that it is
the business that supplies the service, and not the service itself, that must be transferred’.
31 Fn 6, at para 40.
32 (2014) 35 ILJ 526 (LC).
The transfer of undertakings 373

5 Transfer as a ‘going concern’

The statutory definitions do little to clarify the key concept of a ‘going concern’
and it has been left to the courts to determine the circumstances in which it can
be said that, for the purposes of section 197, a business has been transferred as
a going concern. The labour courts have held that the tests applied to deter-
mine whether or not a business is transferred as a going concern for other pur-
poses, for example obligations to pay VAT, are of no consequence.
There are two circumstances in which there is no transfer as a going concern
for the purposes of section 197. The first is the acquisition of control of a com-
pany through a purchase of shares.33 The reason for this is that there is no
change in the identity of the employer – the contract of employment remains
unaffected by any change in the shareholding in the employer party to the
contract. Section 197, on the other hand, contemplates a transfer in circum-
stances where the transferee employer is substituted for the transferor. There has
been some suggestion that in the case of a sham, a court might be entitled to
go behind a sale of shares and find in truth that the transaction was the sale of
a business, but the Labour Court has not been called on to decide this issue.
The second instance where the Labour Court has held that section 197 does
not apply is where the underlying transaction assumes the form of a disposal
only of the assets of a business.34 The transfer of a business as a going concern is
impossible if there is no operating business to transfer. The Labour Court there-
fore held in Maloba v Minaco Stone Germiston (Pty) Ltd & another 35 that when
the employer’s operating division had been closed, the machinery commercially
disposed of, the bulk of employees retrenched and the premises sublet there
could be no transfer as a going concern. The closure of a business trading in
insolvent circumstances and the transfer of most of the business’s employees
and assets to a sister company, together with that company’s assumption of the
insolvent business’s obligations to customers, did, however, constitute the transfer
of a business as a going concern.36 The cancellation of a service agreement and
appointment of a new contractor have been held, depending on the particular
facts and circumstances, not to be immune to the operation of section 197.37
________________________

33 In Ndima v Waverley Blankets Ltd [1999] 6 BLLR 577 (LC), Waverley Blankets Ltd v CCMA
[2003] 3 BLLR 236 (LAC) and Long v Prism Holdings Ltd & another (2012) 33 ILJ 1402 (LAC)
the labour courts held that the transfer of control of a business, effected by means of a
sale of shares, does not trigger the application of s 197. However, as noted above, the
resignation of a partner from a partnership has been held to attract the application of
s 197 – see Burman Katz Attorneys v Brand NO (fn 13).
34 See Kgethe & others v LMK Manufacturing & another [1997] 10 BLLR 1303 (LC), overturned
on appeal (see Kgethe & others v LMK Manufacturing & another (1998) 19 ILJ 524 (LAC)),
but on grounds other than the finding that an agreement to sell some of the company’s
assets did not constitute a transfer as a going concern.
35 (2000) 21 ILJ 1795 (LC).
36 Welch v Kulu Motors Kenilworth (Pty) Ltd & others (2013) 34 ILJ 1804 (LC).
37 Grinpal Energy Management Services (Pty) Ltd v City Power Johannesburg (Pty) Ltd & others
(2013) 34 ILJ 905 (LC). In this case, infrastructure was temporarily transferred to an out-
sourcing party as a holding operation pending an arrangement with the new contractor.
continued on next page
374 Law@work

So what is a transfer of a business as a going concern? A transfer as a going

concern is effected when the economic entity that comprises the business
retains its identity after the transfer.38 Typically, the identity of the entity that
comprises a business, trade, undertaking or service comprises the employees
themselves, the premises on which it is conducted, fixtures and fittings, stock,
work-in-progress, contracts, book debts, brand names, trademarks and patents.
In addition to these tangible assets, intangible assets such as goodwill can be
added.
This is not to say that there can never be a transfer of an undertaking without
a transfer of all or some of the components of a business referred to above.39
The ECJ has gone so far as to hold that the transfer of cleaning duties of a single
employee to a company providing those services at other premises constitutes
a transfer of an undertaking, even though there was no transfer of any assets.40
On this basis, the ECJ has held that although the notion of an ‘economic entity’
(which is an indication of the existence of an undertaking) contemplates assets,
employees and activities, it may well be that an economic entity could com-
prise only activities and employees. When the activities consist of the provision
of services, tangible assets may be less important when attempting to define an
undertaking, business, trade or service.41
The most authoritative statement on what constitutes the transfer of a busi-
ness as a going concern by a South African court thus far is that by the Consti-
tutional Court in NEHAWU v University of Cape Town, where Ngcobo J said the
following:
In deciding whether a business has been transferred as a going concern, regard
must be had to the substance and not the form of the transaction. A number of
________________________

In City Power (Pty) Ltd v Grinpal Energy Management Services (Pty) Ltd & others [2015] 8
BLLR 757 (CC) the Constitutional Court confirmed that where there is a transfer of business
between entities performing public functions for municipalities, it may constitute the trans-
fer of a business within the meaning of the term in s 197. The LRA supersedes local govern-
ment legislation.
38 NEHAWU v University of Cape Town & others (fn 5). The court referred to the leading Euro-
pean case of Spijkers v Gebroeders Benedik Abattoir v Alfred Benedik en Zonen BV (fn 29)
in which the ECJ stated the following: ‘The decisive criterion . . . is whether the business in
question retains its identity. Consequently a transfer of an undertaking, business or part of
a business does not occur merely because its assets are disposed of. Instead it is neces-
sary to consider whether the business was disposed of as a going concern, as would be
indicated, inter alia by the fact that its operation was actually continued or resumed by
the new employer, with the same or similar activities’.
39 Ponties Panel Beaters Partnership v NUMSA & others [2009] 2 BLLR 99 (LAC).
40 See, eg, Schmidt v Spar und Leihkasse der Fruheren Amter Bordesholm, Kiel und Cronshagen
[1994] IRLR 302 (ECJ). See also para 6 ‘Outsourcing’.
41 In the Schmidt case (ibid) the ECJ went on to state that the absence of any transfer of
tangible assets does not preclude the existence of a transfer (even though the transfer of
such assets is among the various factors to be taken into account when assessing a com-
plex transaction as a whole and deciding whether an undertaking has in fact been trans-
ferred). The ECJ concluded that the safeguarding of employees’ rights, which constitutes
the subject matter of the Directive, could not depend exclusively on consideration of a
factor that the court has held not to be decisive on its own. However, see para 6 ‘Out-
sourcing’ for a discussion of a seemingly contradictory view now held by the ECJ.
The transfer of undertakings 375

factors will be relevant to the question whether a transfer of a business as a going

concern has occurred, such as the transfer or otherwise of assets both tangible
and intangible, whether or not the workers are taken over by the new employer,
whether customers are transferred and whether or not the same business is being
carried on by the new employer. What must be stressed is that this list of factors is
not exhaustive and that none of them is decisive individually. They must all be
considered in the overall assessment and therefore should not be considered in
isolation.42
This approach, based as it is on that established by the ECJ, is perhaps best sum-
marised by asking whether there has been a transfer of an economic entity that
retains its identity after the change has taken place. This would be indicated,
inter alia, by:
l the type of undertaking, business, trade or service;
l the fact that its operation was actually continued or resumed by the new
employer, with the same or similar activity;
l whether or not tangible assets, such as buildings and movable property, are
transferred;
l the value of its intangible assets at the time of the transfer;
l whether or not the majority of its employees are taken over by the new em-
ployer;
l whether or not its customers are transferred;
l the degree of similarity between the activities carried on before and after
the transfer; and
l the period, if any, for which those activities were suspended.
As the Constitutional Court has emphasised, an overall assessment of the situ-
ation is necessary and none of the single factors mentioned above are de-
finitive in themselves.43 What is critical is whether the new employer continues or
resumes the old employer’s operations, with the same or similar activities.44 In
________________________

42 Fn 5, at 119F–120A.
43 At 120A. See also the Spijkers case (fn 29) at 303.
44 See also CEPPWAWU v Hydro Colour Inks (Pty) Ltd & another [2011] 7 BLLR 655 (LC) where
after 6 years of operations the employer ceased trading after liquidation and a new com-
pany was formed to conduct the business. The court held that the fact that a different
company was formed was immaterial (ie, the argument that the old business ‘closed’ and
a new one started ‘its own and new business’ (at para 13)) since the business passed into
the hands of the new company. In Rural Maintenance (Pty) Ltd & another v Maluti-A-
Phofung Local Municipality (fn 30) the Constitutional Court (at para 37) stated that there
could be no transfer as a going concern without the ‘transfer of the means to do the
work’. The court continued that where assets that were ‘essential to the profitability and
operation of the business’ were not transferred back by Rural Maintenance (the outgoing
contractor), the municipality could not have carried on the business without major difficul-
ties. (Similarly, in Maluti-A-Phofung Local Municipality v Rural Maintenance (Pty) Ltd & an-
other [2016] 1 BLLR 13 (LAC) the Labour Appeal Court had found that the outgoing
contractor’s business was not transferred to the municipality as a going concern after the
cancellation of the contract by the municipality, because the service provider retained
most of its equipment, thus making it impossible for the municipality to assume the service
continued on next page
376 Law@work

other words, the degree to which the transferred business preserves a distinct
and separate identity that continues or resumes the operation of the activity
concerned, is crucial in a determination of whether a transfer has taken place
for the purposes of section 197.45 It appears, however, that in cases of ‘service
changes’ decision makers do not concur on the correct application of the
Nehawu test.
In Harsco Metals SA (Pty) Ltd & another v Arcelormittal SA Ltd & others46 a ser-
vice agreement was cancelled and new contractors were appointed. Some of
the outgoing contractor’s assets and the majority of its employees were trans-
ferred to new contractors. The new contractors continued to perform services
similar to those performed by the outgoing contractor at the same locations
and using the same operational methods. Applying the 2011 constitutional test,
the court held that the business of the outgoing contractor continued as an
economic entity in the hands of the new contractors. In these circumstances,
the court found that the business had been transferred as a going concern for
the purposes of section 197. In finding so, the court confirmed that the decisive
criterion was whether the business retains its identity after the transfer.
The principle is often more easily stated than applied in practice. Wallis has
been critical of an application of European law on whether there has been a

________________________

provider’s functions.) The second judgment per Jafta J (at par 101) lists the infrastructure
that was indeed transferred from Rural Maintenance to the municipality and is critical (see
para 103) of the fact that the Labour Appeal Court ‘held that it could not be said that
there was a transfer of business because some of the assets were not transferred’. It there-
fore differed from the LAC and CC and held that there was indeed the transfer of a part
of the business as a going concern (at paras 107 and 118). The second judgment further-
more does not require a valid contract to trigger s 197: ‘What activates the application of
the section is the transfer of [a] business as a going concern and not the reasons underly-
ing the transfer’ (at para 127). Also the third judgment (per Zondo J) held that there was
indeed a transfer of a business as a going concern (at para 136) and that the underlying
contract need not have been a valid contract (at para 152 contra to the first judgment
that holds obiter that the legal cause is not totally irrelevant (at para 39)). The first judg-
ment is open for criticism, see Zondo J’s statements (at para 190–191) that nowhere in the
municipality’s answering affidavits did they submit that the municipality ‘had not been
able to provide all the electricity related services to its inhabitants because of Rural’s fail-
ure to hand over certain assets’ and ‘said that the assets that Rural did not hand over to it
were essential for it ie for the Municipality to continue to operate the “business” that Rural
contends it had transferred to it’.
45 See FAWU v The Cold Chain (Pty) Ltd & another (fn 14). In Rural Maintenance (fn 30) the
majority of the Constitutional Court (per Justice Froneman) declined to develop a differ-
ent test for ‘service provision changes’ (at para 40). The minority judgment of Jafta J held
that the Labour Appeal Court misapplied ‘the test laid down by this Court in NEHAWU.
According to that test none of the relevant factors is individually decisive. So even if the
factor, and not part of it, is entirely absent, there may still be a transfer as a going con-
cern. Here the absence related to part of the assets only’. See also Davis ‘Should s 197 of
the LRA be Amended to Automatically Protect Employees when Labour Intensive Services
are Outsourced or when a New Service Provider is Appointed?’ (2016) 37 ILJ 45.
46 (2012) 33 ILJ 901 (LC).
The transfer of undertakings 377

transfer of a business as a going concern to South African circumstances. He

argues that:
there is considerable sense in an approach that says where the owner of a build-
ing terminates the lease of a Thai restaurant and finds a new tenant who serves
French cuisine, that should not be regarded as the transfer of a business by any-
one to anyone else. It is the closure of one business and the opening of another.47
In a case that dealt with the termination of a warehousing agreement with an
outgoing contractor and with the entering into of a new warehousing agree-
ment with a different incoming contractor, the Labour Appeal Court was satis-
fied that there was indeed a transfer of a business as a going concern by or
from the old employer to a new employer.48 The fact that the applicant had not
taken over any of the erstwhile employees was, according to the approach set
out by the Constitutional Court, only one consideration amongst several.49 Fur-
thermore, it was held that the existence of multiple entities may be examined to
determine who the de facto employer is and whether these entities may be
treated as a single entity (the outgoing contractor had used a separate legal
entity whose only function was to employ the contractor’s employees).50

6 Outsourcing and insourcing

As foreshadowed by the previous section, the application of section 197 has been
most controversial in transactions in which businesses, or parts of businesses, are
outsourced. The Labour Court has described outsourcing in the following terms:
Outsourcing involves the putting out to tender of certain services for a fee. The con-
tractor performs the outsourced services and in return is paid a fee for its troubles
by the employer . . . An outsourcing transaction is usually for a fixed period of time
at the end of which it again goes out to tender and the existing contractor could
lose the contract to another contractor.51
An outsourcing transaction raises questions regarding the application of section
197, potentially at least, in relation to the definition of a ‘business’, and whether
or not there has been a transfer of a business as a going concern.
________________________

47 Wallis ‘Is Outsourcing In? An Ongoing Concern’ (2006) 27 ILJ 1 at 16.

48 TMS Group Industrial Services (Pty) Ltd t/a Vericon v Unitrans Supply Chain Solutions (Pty)
Ltd & others [2014] 10 BLLR 974 (LAC).
49 At para 30: ‘Thus, the services are “performed at the very same site and fixed premises as
the services that were performed by Unitrans in terms of the Warehousing agreement.”
Appellant was required to make use of the same equipment and IT systems that were
previously employed by first respondent including forklifts, computers, printers, a computer
system as well as other assets such as furniture’.
50 At para 38: ‘Accordingly, this case fits directly within the scope of the dictum of the Euro-
pean Court of Justice in Albron Catering BV v FNV Bondgenoten: “Within a group of com-
panies, there are two employers, one having contractual relations with the employees of
that group and the other non-contractual relations with them, it is also possible to regard
as a ‘transferor’, within the meaning of Directives 2001/23, the employer responsible for
the economic activity of the entity transferred which, in that capacity, establishes working
relations with the staff of that entity, despite the absence of contractual relations with
those staff.”’
51 NEHAWU v University of Cape Town & others (fn 7) at 816 at para 30.
378 Law@work

The principles discussed above in relation to the definition of a business and

the meaning of a transfer as a going concern have been held to apply to trans-
fers that occur when an employer decides to outsource a part of its activities to
a service provider. Again, the leading decision is NEHAWU v University of Cape
Town.52 In that case, the university sought to outsource certain of its services
including cleaning, gardening and sports ground maintenance. When the trade
union representing the affected employees was given notice of an intention to
retrench, it sought a declaratory order in the Labour Court that section 197
applied to the outsourcing agreements, and that its members were employed
by the newly appointed service providers on the same terms on which they had
been engaged by the university. The Constitutional Court ultimately held that
this was a transaction that potentially fell within the ambit of section 197, but
declined to make a specific ruling on the facts.53 The Constitutional Court, as we
noted above, applied the test developed by the ECJ to determine the exist-
ence of a transfer as a going concern.
Although it is generally accepted that section 197 will apply to most instances
of outsourcing,54 the application of the section to ‘second-generation’ con-
tracting was more contentious. Second-generation contracting occurs when a
new contractor (which may but not necessarily have been the service provider
to whom a business function was initially outsourced) replaces the incumbent
contractor. This typically occurs when the terms on which the service provided
by a contractor are reviewed or put out to tender, and another service pro-
vider, often a competitor of the incumbent contractor, is appointed to provide
the service.

________________________

52 Fn 5. The case was first heard by the Labour Court, which held that it disagreed with, but
considered itself bound by, the approach adopted to s 197 in the judgment of the Labour
Appeal Court in Foodgro, a Division of Leisurenet v Keil (1999) 20 ILJ 2521 (LAC). On the
facts, the court found that the outsourcing exercises did not constitute a transfer of a part
of a business as a going concern. The Labour Appeal Court, in a split decision, held that
s 197 permitted the employer parties to decide whether the section should apply to their
transaction. If they so agreed, there was a transfer of employment contracts on the same
terms. In other words, the application of s 197 was not automatic, and depended on the
consent of the transferor and transferee employers. The approach adopted in the dissent-
ing judgment of Zondo JP was ultimately upheld by the Constitutional Court. For a dis-
cussion on the judgments of the Labour Court and the Labour Appeal Court, see Bosch
‘Two Wrongs Make it More Wrong, or a Case for Minority Rule’ (2002) 119 SALJ 501.
53 The matter was referred back to the Labour Appeal Court for a decision on the facts, and
then settled.
54 If the Labour Appeal Court’s judgment in the Rand Airport case is correct, there can be
very little in the way of an outsourced function that will not fall within the ambit of s 197.
See, however, Chemical, Energy, Paper, Printing, Wood & Allied Workers Union & others v
Print Tech (Pty) Ltd & others (2010) 31 ILJ 1850 (LC) where the employer decided to retrench
its entire workforce and to outsource its future labour requirements to a labour broker – this
was held not to constitute the transfer of a business as a going concern where only the
workforce was transferred.
The transfer of undertakings 379

In the European Union, first-generation and second-generation55 contracting

out are treated differently. In the event of first-generation contracting out,
the principles of Schmidt still seem to apply. Several factors are therefore con-
sidered and the decisive criterion seems to be the actual continuance of the
same or similar activities by the new contractor. In second-generation transfers,
however, additional requirements are set before finding that a relevant transfer
has occurred. These relate to the transfer of some tangible or intangible assets
and the transfer of a major part of the staff (in terms of numbers and skills).56
In COSAWU v Zikhethele Trade (Pty) Ltd & another 57 the Labour Court held
that while the express language of section 197 arguably precludes the appli-
cation of the section to second-generation contracting out, the section was
capable of sustaining that conclusion. The court held that the requirement that
there be a transfer of a business by one employer to another (which would
ordinarily exclude the application of section 197 since there is no transfer from
the first contractor to the second) should be read as a reference to a transfer
from one employer to another. This construction, said the court, would extend
the application of section 197 to a second and subsequent contracting out,
since there was inevitably a transfer of the responsibility for the operation of the
undertaking from the first contractor to the second, when the second con-
tractor assumed its obligations to the client. On this basis, the court held that
section 197 applied to a contract where the provision of stevedoring services
was the subject of an agreement with a new contractor, the first contractor
having been placed in liquidation. In effect, held the court, the contracts of

________________________

55 The ECJ has held that the Directive applied to the termination of a lease of a restaurant,
followed by the conclusion of a new management contract with another operator
(Daddy’s Dance Hall case (fn 11)).
56 Oy Liikenne AB v Liskojärvi and Juntunen [2001] IRLR 171 (ECJ) is a good example. Here the
ECJ had to consider whether there had been a relevant transfer when D took over seven
bus routes that had previously been operated by C for X. C dismissed all of the drivers on
that route on the grounds of redundancy. Two drivers, A and B, among a number of C’s
former drivers, were subsequently employed by D on less favourable terms and conditions
than they enjoyed with C. The ECJ held that the mere fact that the new contractor, D,
carried on a similar service to C would not give rise to an automatic conclusion that there
had been a relevant transfer of an economic entity. The ECJ conceded that in certain
sectors in which activities are based essentially on manpower, a group of workers en-
gaged in a joint activity on a permanent basis could constitute an economic entity. In
casu, however, bus transport required substantial plant and equipment, according to the
court. The fact that D did not take over any of C’s assets was thus a significant factor
leading to the conclusion that no economic entity had transferred. It thus seems as if the
ECJ elevated this one factor above the others. The fact that no tangible business assets
(the buses) were transferred (in spite of the fact that D continued the same activity as C,
presumably serviced the same customers on the same bus routes and engaged 73 per
cent of C’s employees to perform the contract) was thus sufficient to preclude the trans-
fer from falling within the scope of the Acquired Rights Directive. (In this case, the ECJ did
not consider the reason why employees did not transfer, thus it failed to consider the issue
of deliberate avoidance or evasion of the Directive.)
57 [2005] 9 BLLR 924 (LC).
380 Law@work

employment reverted to the client (the old employer) and were then transfer-
red to the new contractor.58
This ‘two-phase’ interpretation has been the subject of much criticism. It has
been suggested that all that transpires when a ‘second generation’ contract is
concluded is the termination of one commercial contract and the commence-
ment of a new contract, in other words that neither in fact nor in law is there
any reversion to the client.59
Section 197(1)(b) refers to a transfer by one employer to another employer.60
To read this provision to mean (as the court did in Zikhethele) that section 197
________________________

58 The Labour Court considered foreign law and relied on Dines v Initial Services [1994] IRLR
336 (EAT) for a two-phased approach. The court also relied on European law for its wide
interpretation of s 197: ‘In short, the European courts tell us this in relation to second-
generation contracting-out. The absence of a contractual link between the old and the
new employer is not decisive, hence a two-phased transaction can indeed constitute a
transfer. Secondly, the decisive criterion for determining whether there has been a transfer
of an undertaking (read “business”) is whether, after the alleged transfer, the undertaking
has retained its identity, so that employment in the undertaking is continued or resumed in
the different hands of the transferee . . . The mode or method of transfer is immaterial. The
emphasis is on a comparison between the actual activities of and actual employment
situation in an undertaking before and after the alleged transfer (Kelman v Care Contract
Services Ltd [1995] ICR 260 (EAT)). What seems to be critical is the transfer of responsibility
for the operation of the undertaking. Mummery J’s conclusion in Kelman offers a salutary
guideline. He said: “The theme running through all the recent cases is the necessity of
viewing the situation from an employment perspective, not from a perspective condi-
tioned by principles of property, company or insolvency law. The crucial question is
whether, taking a realistic view of the activities in which the employees are employed,
there exists an economic entity which, despite changes, remains identifiable, though not
necessarily identical, after the alleged transfer.” Our own law, I believe, is not much dif-
ferent . . . I accept that the two-phase transaction intrinsic to second-generation con-
tracting-out does indeed constitute a “transfer” as contemplated by section 197 of the
LRA. As in European law, the mode or method of transfer is less important. The crux of the
determination is whether what is transferred is “a business in operation so that the business
remains the same but in different hands”’ (at paras 34–35).
59 In Zikhethele Trade (Pty) Ltd v COSAWU obo members & others [2008] 2 BLLR 163 (LAC) the
Labour Appeal Court upheld the objection to the non-joinder of Fresh Produce Terminals
to the proceedings before the Labour Court. The two-phase approach of the Labour
Court resulted in the Labour Appeal Court’s finding that the ‘client’ should have been
joined in the proceedings (at para 24).
60 See Wallis (fn 47): ‘What the section says is that the old employer is a positive actor in the
process. This is not what occurs when an institution has concluded a contract for the pro-
vision of cleaning services and at the expiry of the contract puts it out for tender and the
existing contractor loses the tender. In those circumstances the role and function of the
old employer is to strive to keep the contract not to transfer all or any part of its business to
someone else. When it fails in its endeavours it does not, in fine old public school fashion,
extend a hand of congratulations to the winner and promise it every support. It’s more
likely response is to consult its attorneys to see if it can challenge the tender process under
PAJA and at the least the institution is likely to see a marked decline in service levels. As
Hugh Collins says it is surreal to say that this is a transfer of part of a business’ (at 10). It must
be said that there need not be a direct contractual link between the transferor and the
transferee: see Oy Liikenne AB v Liskojärvi and Juntunen (fn 56) where the ECJ held that
the Directive could apply even where there was no direct contractual link between two
undertakings successively awarded a contract to operate a public bus transport service
continued on next page
The transfer of undertakings 381

applies when there is a transfer from one employer to another is not sustainable
given the plain meaning of the words. If the application of section 197 is so
limited, the section will affect first-generation outsourcing (since there is invari-
ably a transfer of part of a business from one employer to another), but not
second and subsequent transfers.
When the literal wording of the section is applied, the result is that employees
involved in the second transfer have less protection than those involved in the
first transfer. This also has commercial ramifications, as the replacement or sec-
ond contractor bidding for the new contract is in a much better position than
the potentially outgoing contractor – the bidder is not bound by section 197
transfer provisions and so can save employment-related costs that the first con-
tractor could not avoid. The first contractor will also be liable for severance pay
and statutory notice payments. All in all, it seems to be an unsatisfactory result
for the employees as well as the outgoing contractor.
In Zikhethele the Labour Court preferred to follow a purposive approach to
the question whether or not section 197 applied to a situation involving second
(or subsequent) generation outsourcing. In a later judgment the Labour Court
was, however, not willing to interpret section 197 to include second-generation
outsourcing in its scope.61 In Aviation Union of South Africa & others v South Afri-
can Airways the Labour Court stated that it preferred a purposive interpretation
of section 197,62 but ultimately the court held that the wording of section 197
was not ambiguous nor unclear and therefore regard must be had to the plain
wording of the provision (in other words section 197(1)(b)).63 Consequently, the

________________________

but did not apply in casu because no significant transfer of tangible assets between the
undertakings took place. For South African authority refer to the Tekwini case (fn 12).
61 See Aviation Union of South Africa & others v South African Airways (Pty) Ltd, LGM SA
Facility Managers and Engineers (Pty) Ltd & others [2008] 1 BLLR 20 (LC).
62 See para 28: ‘At the outset, I must point out that I am of the view that, if regard is had to
the purpose of the section 197 of the LRA which is to protect the work security of employees
when a business is transferred as a going concern (although I am not ignoring the right
and legitimate need employers have in promoting the efficiency or productivity of their
businesses), that preference should be given to a more liberate interpretation rather than
a conservative or narrow interpretation of section 197 and that the interpretation applied
to section 197 should lean in favour of protecting the rights of employees affected by the
often harsh effects of a transfer as a going concern’.
63 At para 31: ‘Although I am in agreement with the sentiment expressed that section 197
should be read so as to protect the work security of employees affected by a business
transfer, I am of the view that it is clear from section 197 of the LRA that the legislature had
only contemplated a transfer from the old employer to the new employer and nothing
else (the so-called first generation transfer). The intention of the legislature appears to me
to be readily apparent from the clear wording of section 197(1)(b). Consequently, I am of
the view that there does not appear any necessity to read into section 197 words that are
not there’ (our emphasis). (It is apparent that contrary to the express finding that the
wording does not allow such an interpretation, the court itself refers to s 197(1)(b) as
providing for a transfer from the old employer to the new employer, and not a transfer by
the old employer to the new employer, on several occasions in the judgment, eg: ‘Sec-
tion 197 will apply where a “business” is “transferred” from one employer to another em-
ployer “as a going” concern’ (at para 24)).
382 Law@work

court was not willing to grant relief to the applicants. The court did, however,
make other interesting comments regarding the scope of section 197.
First, the court seemed to accept that if the services were to have been trans-
ferred back to SAA (sometimes referred to as ‘insourcing’) section 197 would
apply;64 secondly, the court also stated that Zikhethele is authority for the prop-
osition that where the second business is so closely aligned to the first business
that it is in fact identical, section 197 may be applicable in a second-generation
contracting out.65 The Labour Appeal Court rejected the finding of the Labour
Court.66 The ultimate question whether judges can ‘rewrite’ a statutory provision
was answered positively by the Labour Appeal Court having regard to the fact
that the purpose of the section was clear and certain, while the court a quo
refused to do so having regard to the fact that the wording of the section was
express and unambiguous. Not surprisingly, the judgment was taken on appeal
and the Supreme Court of Appeal preferred the outcome and reasoning of the
court of first instance.67 The court relied on what was held to be the impermis-
sible distortion of the ordinary meaning of a word and a wrong finding regard-
ing evidential matter:68
The ‘purposive’ interpretation adopted by the Labour Appeal Court was aimed, it
said, at preventing abuse. This concern on the part of the court is misconceived
because there is, as SAA argued, no suggestion of any abuse in the present case.
And even if we accepted that such abuse is possible, that is no reason to distort
the plain meaning of the section. We accordingly conclude that the Labour Ap-
peal Court erred in adopting an approach to the interpretation of section 197
which is at odds with the ordinary meaning of the words chosen by the Legislature.
On a further appeal to the Constitutional Court rejected this approach. In Avi-
ation Union of South Africa & another v South African Airways (Pty) Ltd & others,69
the court held that section 197 should be purposively interpreted. As a result the

________________________

64 See para 27.

65 At para 32. The court stated that this would be a situation ‘akin to the so-called piercing of
the corporate veil’.
66 Aviation Union of SA obo Barnes & others v SA Airways (Pty) Ltd & others [2010] 1 BLLR 14
(LAC). The court per Zondo JP stated (at para 28) that a literal interpretation of the sec-
tion: ‘would render section 197 for all practical purposes worthless since any employer
who wishes to transfer his business without the workers as a going concern could do so by
dumping the workers with another party through an outsourcing or lease arrangement
and thereafter transfer his business as a going concern to someone else without the workers’.
The court per Davis AJA also held that an examination of the word ‘by’ linguistically does
not justify an assertion that the literal interpretation of section 197 precludes any possible
extension of protection to second-generation transfers or that ‘the transferor has to play
an immediate, positive role in bringing about the transfer’ (at para 56). However, accord-
ing to the court the original contract between LGM and SAA in casu constituted positive
action on the part of the old employer even if the word ‘by’ was indeed taken at face
value and the section was interpreted narrowly (at para 61).
67 South African Airways (Pty) Ltd v Aviation Union of South Africa & others [2011] 2 BLLR 112
(SCA).
68 At para 32 (our emphasis).
69 Fn 6.
The transfer of undertakings 383

section potentially applies to second-generation outsourcing agreements. The

majority of the court (per Yacoob J) emphasised that the substance rather than
the form of the transaction is determinative:
In determining whether contracting out amounts to the transfer of a business as a
going concern, the substance of the initial transaction, more specifically whether
what is outsourced is a business as a going concern rather than the provision of an
outsourced service remains significant during subsequent transfers. If the out-
sourcing institution from the outset did not offer the service, that service cannot be
said to be part of the business of the transferor. What happens here is simple con-
tracting out of the service, nothing more, nothing less . . . There is no transfer of the
business as a going concern. The outsourcee is contracted to provide the service,
and becomes obliged to do so. And it is the outsourcee’s responsibility to make
appropriate business infrastructure arrangements. These may include securing
staff, letting appropriate property for office or other work space, and acquiring
fixed assets, machinery and implements, computers, computer networks and the
like. Cancellation of the contract in these circumstances entails only that the out-
sourcee forfeits the contractual right to provide the service. The whole infra-
structure for conducting the business of providing the outsourced service would
ordinarily remain the property of the outsourcee.70
As stated above, in the more recent decision of Rural Maintenance (Pty) Ltd v
Maluti-A-Phofung Local Municipality,71 the Constitutional Court upheld the prin-
ciple that what is capable of being transferred is the business that supplies the
service, and not the service itself.
This principle was applied by the Labour Court in a case in which a retailer
invited contractors (including the incumbent contractor) to tender for the pro-
vision of security services. The incumbent contractor failed to win the tender
and alleged that its employees’ contracts had transferred to the successful
bidder in terms of section 197. The court held that there was no transfer for the
purposes of section 197 only because one service provider had been substitu-
ted for another. It remained open to the incumbent contractor to continue with
its business by providing similar services to other potential clients.72
A similar approach was adopted in a case that concerned the ‘insourcing’ of
a security service at a university in circumstances where the service had pre-
viously been outsourced by the university to a private contractor.73 When as a
result of student pressure the university decided to insource the service, it also
decided that a new model would be implemented in terms of which most
security guards would be employed by the university with a new service pro-
vider to assume managerial responsibility for the security division. The outgoing
contractor claimed that its employees were transferred to the university in terms
of section 197. The Labour Appeal Court held that section 197 did not apply
since on the facts, the business of providing security at the campuses comprised
more than a group of guards – the management, equipment and strategy with
________________________

70 Paras 106 and 107.

71 Fn 30.
72 SVA Security (Pty) Ltd v Makro (Pty) Ltd – a Division of Massmart & others (2017) 38 ILJ 2376
(LC).
73 Imvula Quality Protection (Pty) Ltd v UNISA [2018] 12 BLLR 1151 (LAC).
384 Law@work

regard to their responsible deployment was not taken over by the university. The
court confirmed that the application or otherwise of section 197 was a fact-
driven enquiry, and that to constitute a transfer as a going concern, not all the
assets of a business need be transferred nor all the relevant employees.74
In summary, the mere termination of a service contract does not trigger the
application of section 197. The label attached to the transaction (insourcing,
outsourcing, a change in service provider) is irrelevant. The three requirements
listed in section 197 (a transfer, of a business, as a going concern) must all be
met. In the case of a labour intensive business, it is unlikely that a transfer only of
employees will trigger section 197 – the courts appear to require a transfer at
least of some of the means to do the work they performed for the outgoing
contractor. The principles developed by the courts relating to the application of
section 197 must be applied – comparative law (and especially European and
English law) provides useful guidance at most, but section 197 must be applied
having regard to the wording and context of the section.
The South African courts have emphasised that employers cannot rely on sec-
tion 197 as a stratagem to transfer employees from its employ where there is no
business being transferred or where the employer simply wishes to utilise the sec-
tion to divest itself of a number of employees. In NUMSA v Staman Automatic
CC & another 75 the employer purported to outsource a group of employees, in-
cluding the human resources department, to a temporary employment service.
The Labour Court held that there was no transfer of a business for the purposes
of section 197. Similarly, in National Union of Metalworkers of SA obo Matlala &
others v Active Distributors76 the employer purported to include in the transfer of
its administration and industrial relations functions four employees who had
nothing to do with either function. The arbitrator found that the employer’s
refusal to accept their tender of work constituted a dismissal.
In Franmann Services (Pty) Ltd v Simba (Pty) Ltd & another,77 the Labour Court
held that the termination of a service agreement with a labour broker, when
________________________

74 See also Sisonke Partnership t/a DSV Healthcare v Medtronic SA (Pty) Ltd & others (2017)
38 ILJ 2812 (LC) where the Labour Court held that there was no s 197 transfer in circum-
stances where a company had internalised a service previously outsourced to a logistics
company. What was handed over on insourcing was ‘nothing like an up and running
warehouse operation’.
75 [2003] 11 BLLR 1167 (LC).
76 (2006) 27 ILJ 633 (BCA).
77 (2013) 34 ILJ 897 (LC). With regard to a ‘service’ agreement the court stated (at para 18)
that ‘there will be no transfer of a business as a going concern for the purposes of s 197 only
on account of the termination of the contract . . ., and the appointment of the second re-
spondent to provide the same or a similar service. This is a case where . . ., an outsourcee
is contracted to provide a service, and becomes obliged to do so in circumstances
where it is the outsourcee’s responsibility to make appropriate business infrastructure
arrangements, and in particular, the securing of staff. In relation to the applicant, cancel-
lation of the contract between it and the first respondent entails only that the applicant’s
contractual right to provide the service terminates in circumstances in which the whole
infrastructure for conducting the business of providing temporary labour will ordinarily
remain the applicant’s property’.
The transfer of undertakings 385

the business of the labour broker was to be discontinued, no assets were to be

transferred and no employees offered employment with the new service pro-
vider, did not constitute transfer of a business as a going concern.
Although a merger could fall within the scope of section 197, the absence of
facts or evidence to the effect that the merger of two businesses resulted in the
transfer of a going concern could prevent section 197 from being applied.78
Because commercial transactions are varied, questions may still arise on the
basis of the particular set of facts. Most recently the Labour Court had an op-
portunity to consider the possible transfer of a business as a going concern in
terms of a franchise agreement. On appeal, the court stated that ‘Great care
must be taken before applying the “outsourcing” jurisprudence to a franchise
operation’.79 The court paid much attention to the nature of franchise agree-
ments. The same result (ie, a finding that, having regard of all relevant facts,
section 197 does not apply) may well have been achieved by the proper appli-
cation of the test to determine whether a business has been transferred as a
going concern.80 That approach would leave the door open for section 197 to
apply only when the facts demand its application rather than categorise cer-
tain types of transfer (eg, franchise contracts) as generally incapable of trigger-
ing section 197.81

7 The effect of the transfer of a business

If a business is transferred in circumstances where section 197 applies, unless
otherwise agreed:
l the new employer is automatically substituted for the old employer in respect
of all contracts of employment in existence immediately before the date of
the transfer;
________________________

78 Sanlic House of Locks (Pty) Ltd v Strydom (2014) 35 ILJ 2287 (LC). The applicant sought to
enforce a restraint-of-trade agreement.
79 PE Rack 4100 CC v Sanders & others (2013) 34 ILJ 1477 (LAC) at para 21.
80 See, in particular, para 24: ‘The franchise agreement gives rise, in effect, to a joint venture
(JV) business between the franchisor and franchisee. In terms thereof, there is a quid pro
quo for the right to carry on the franchise business and the concomitant use of the fran-
chisor’s assets by the franchisee (including, in this matter, an entitlement to occupy the
premises leased by the franchisor) in the form of a franchise fee and/or a share of the
profits. Upon the termination of this franchise agreement, the JV business dissolves, with
the franchisor retaining the assets. The franchisee’s right to carry on the franchise business
comes to an end and concomitantly the business of the franchisee come to an end’.
81 In Sanders v Cell C Provider Co (Pty) Ltd & others (2010) 31 ILJ 2722 (LC) eg the franchisor
terminated the franchise agreement with the old franchisees and entered into a similar
contract with the new franchisee. The court held that in accordance with a purposive in-
terpretation of s 197 the literal meaning of s 197 does not safeguard the jobs of employees
or give effect to the constitutional right to fair labour practices or to the aims of the LRA.
The court held that the franchisor was effectively outsourcing its business to franchisees
and later changing the entity to which it outsourced its business. Although it was entitled
to do so, it could not do so in a manner that detracted from the rights of employees
affected by the decision.
386 Law@work

l all the rights and obligations between the old employer and an employee
at the time of the transfer continue in force as rights and obligations be-
tween the new employer and the employee;82
l anything done before the transfer by or in relation to the old employer is
considered to have been done by or in relation to the new employer. This
includes:
• the dismissal of an employee;83
• the commission of an unfair labour practice; and
• the commission of an act of unfair discrimination;
l the transfer does not interrupt an employee’s continuity of employment and
the employee’s contract continues with the new employer as if with the old
employer.84
Section 197 is not inflexible and specifically provides for the agreed variation of
some or all of its consequences.85 The agreement must be in writing and must
be concluded between the old employer, the new employer or both of them
acting jointly on the one hand, and a consulting party defined by section 189(1)
on the other hand.86 Section 189 establishes the following hierarchy of consult-
ing parties:
l any person whom the employer is required to consult in terms of a collective
agreement;

________________________

82 In Edgars Consolidated Stores Ltd v SACCAWU & others [2010] 12 BLLR 1282 (LC) it was
confirmed that the new employer is bound by arbitration awards that were binding on
the old employer regardless of how long before the transfer such awards were issued. This
is only subject to the proviso that the claim should not yet have prescribed. See also Fleet
Africa (Pty) Ltd v Nijs [2017] 5 BLLR 450 (LAC).
83 See NUMSA & another v Success Panelbeaters & Service Centre CC t/a Score Panelbeaters
and Service Centre (1999) 20 ILJ 1851 (LC), where the Labour Court held that the trans-
feree employer was obliged to engage an employee dismissed by the transferor employer,
but reinstated after the sale of the business to the transferee. This judgment concerned
the application of s 197 in its pre-2002 form (see also Anglo Office Supplies (Pty) Ltd v Lotz
(2008) 29 ILJ 953 (LAC)). Section 197(2)(c) removes any doubt that a reinstatement order
granted against the transferor employer in respect of any dismissal effected prior to the
transfer can be enforced against the transferee. See also Ngema & others v Screenex
Wire Weaving Manufacturers (Pty) Ltd & another (2013) 34 ILJ 1470 (LAC) where it was
held that the new employer assumes liability for all the actions of the old employer in rel-
ation to employees and that employees seeking to enforce an order for reinstatement
must do so against the new employer (in casu, the new employer should have been
joined before judgment was handed down).
84 See Keil v Foodgro (a Division of Leisurenet) [1999] 4 BLLR 345 (LC) where the court rejected
the transferee employer’s application of LIFO as a selection criterion for retrenchment in
circumstances where the employer had failed to take into account service with the trans-
feror employer.
85 S 197(2).
86 If this is not the case, the agreement will be invalid and the employee(s) will transfer on
the same terms and conditions of employment. See Douglas & others v Gauteng MEC for
Health [2008] 5 BLLR 401 (LC); SAMWU & another v SALGA & others [2010] 8 BLLR 882 (LC).
The transfer of undertakings 387

l if there is no collective agreement that requires consultation, a workplace

forum and any registered trade union whose members are likely to be af-
fected; or
l the employees likely to be affected or their representatives nominated for
that purpose.87
Although there is no right to object to an automatic transfer, some employers
may allow employees to object and to remain in the employ of the old employer.
This course of action may, however, be to the detriment of the employee when
the old employer’s operational requirements justify the employee’s subsequent
dismissal.88

8 Which terms and conditions transfer?

Despite the device of an automatic substitution of employers and the provision
that all rights and obligations continue to remain in force as against the new
employer,89 the new employer need not apply identical terms and conditions of
employment to those of the previous employer after the date of the transfer.90
Section 197(3) provides that it is sufficient for the new employer to employ the
transferred employees on terms and conditions that are ‘on the whole not less
favourable’ to them than those on which they were employed by the old em-
ployer. However, this provision does not apply to employees if any of their con-
ditions of employment are established by a collective agreement. The wording
of the section suggests that even if a single term and condition of employment
is regulated by a collective agreement, the ‘on the whole not less favourable’
qualification does not apply.

________________________

87 There is no general duty to consult – see Banking Insurance Finance & Assurance Workers
Union v Zurich Insurance Co Ltd (2014) 35 ILJ 2146 (LC).
88 In Krishna v University of KwaZulu-Natal (2012) 33 ILJ 1688 (LC), eg, the court held that an
employee who was transferred to the National Health Laboratory Service from a labora-
tory service operated by her university on behalf of the national department had not
been dismissed, as she claimed, by reason of the university’s operational requirements.
Her contract had been transferred when the business was transferred. Her transfer had
taken place with her consent, and she had been aware that a possible alternative to re-
fusing the transfer was her retrenchment. The court held that an employer acts properly
when it informs an employee of his or her possible dismissal for operational requirements if
he or she were to object to the transfer – it is not a threat or a form of constructive dis-
missal. See also ch 10 at para 9 ‘A transfer contemplated by section 197’.
89 See Securicor (SA) (Pty) Ltd v Lotter (2005) 26 ILJ 1029 (E) where it was held that in a case
where s 197 applies to a transfer, any restraint of trade is also transferred as part of the
goodwill of the undertaking and the employee remains bound to same. In Experian SA
(Pty) Ltd v Haynes & another (2013) 34 ILJ 529 (GSJ) the court confirmed that a new re-
straint of trade could be concluded with the transferee and that that agreement would
not fall foul of s 197(2).
90 Transferees must, however, follow the correct procedure to change terms and conditions
– in MISA/SAMWU obo members v Madikor Drie (Pty) Ltd [2006] 1 BLLR 12 (LC) it was held
that the new employer would act unfairly in changing unilaterally the severance pay policy
after a transfer under s 197.
388 Law@work

With regard to retirement funds and membership of retirement funds, section

197 does not preclude an employee from being transferred onto a pension,
provident, retirement or similar fund other than the fund of which the employee
was a member prior to the transfer, provided that the criteria in section 14(1)(c)
of the Pension Funds Act91 are satisfied.
Unless otherwise agreed, the new employer is bound by any arbitration award
made in terms of the LRA,92 any binding agreement and any collective agree-
ment that has been extended in terms of section 32 of the Act.

9 Transfer date in terms of section 197

Agreements in terms of which businesses are transferred often include effective
dates that precede the actual date of signature or implementation of the
agreement. Whatever the reasons for this practice might be, for the purposes of
section 197, the relevant date is the day on which the transaction is complete,
and the new employer takes unencumbered transfer. If the transaction is sub-
ject to suspensive conditions, the conditions must have been fulfilled.93 This pre-
vents the old and new employers from backdating a transfer, thus eroding the
12-month joint and several liability imposed on the old employer in respect of
certain employment related issues.94

10 Formalities and post-transfer liabilities

Section 197(7) establishes a number of formalities that must be observed when
a business transfer falling within the ambit of section 197 is effected. In any
agreement to transfer a business, the old employer must agree with the new
employer to a valuation, as at the date of transfer, in respect of:
l the leave pay accrued to the transferred employees;

________________________

91 Act 24 of 1956.
92 See the Edgars Consolidated Stores Ltd case (fn 82). See also High Rustenburg Estate (Pty)
Ltd v National Education Health & Allied Workers Union obo Cornelis & others (2017) 38 ILJ
1758 (LAC) where the Labour Appeal Court held that the new employer was bound by an
arbitration award binding on the old employer immediately before the transfer even
where the award was reversed and substituted by the Labour Court in review, after the
transfer.
93 See Van der Velde v Business and Design Software (Pty) Ltd & another (1) [2006] 10 BLLR
995 (LC), particularly at 1001–1002, where the court set out the reasons why the effective
date of a transaction affected by s 197 could not be fixed by the employer parties, par-
ticularly when they sought to make the transaction retrospective. (The finding was upheld
in Business & Design Software (Pty) Ltd & another v Van der Velde (2009) 30 ILJ 1277
(LAC).) This does not prevent them from agreeing to the retrospectivity of the transaction
for lawful purposes unrelated to s 197. See also AST Holdings (Pty) Ltd v Roos [2007] 10 BLLR
891 (LAC).
94 These are liabilities for leave pay, severance pay and other payments that have accrued
to the employee but have not been paid (see s 197(7)(a)).
The transfer of undertakings 389

l the severance pay that the transferred employees would have received had
they been dismissed by the old employer for a reason related to its oper-
ational requirements; and
l any other payments that have accrued to the transferred employees but
have not been paid to them.
The old employer and the new employer are then required to conclude an
agreement in writing to specify which of them is liable for the above amounts. If
they agree to apportion that liability, the terms of the apportionment must be
agreed. The agreement must further specify the provisions made for the pay-
ment of the amounts referred to should any employee become entitled to
receive that payment. The terms of the agreement must be disclosed to each
employee who is transferred and the old employer must also take ‘any other
measure’ that may be reasonable in the circumstances to ensure that ad-
equate provision is made for any obligation that may arise, in respect of the
payments referred to, on the new employer.
The old employer is jointly and severally liable with the new employer to any
employee who becomes entitled to receive any payment referred to above, if
the employee is dismissed for a reason related to the new employer’s oper-
ational requirements or its liquidation or sequestration. The old employer is only
able to escape this liability if it is able to establish that it has complied with the
provisions of section 197. This presumably refers in particular to the obligation to
take reasonable measures to ensure that adequate provision is made for the
employment costs assumed by the new employer.
Section 197 does not oblige either a transferor or a transferee employer to
consult with employees, or their representatives, affected by a transfer. No pro-
vision is made for consultation regarding a proposed transfer, its timing, effect or
consequences. There is only a limited duty to disclose relevant information,
found in section 197(6)(b), namely in those instances where the transferor or trans-
feree wishes to negotiate an agreement as contemplated in section 197(2). The
absence of a general duty to consult and disclose information is a significant
difference between the South African and international regulation of transfer of
businesses.

11 Transfer of contracts in circumstances of insolvency

The principles established by section 197 (excluding the obligations relating
to the valuation and payment of employee benefits) apply to a transfer of a
business if the old employer is insolvent,95 or if a scheme of arrangement or
________________________

95 S 197A(1) and Hydro Colour Inks (Pty) Ltd v CEPPWAWU [2011] 7 BLLR 637 (LAC). The dis-
cussion at paras 3–5, above, is also applicable in these instances: ‘the same principles
would apply in determining whether a business has been transferred as a going concern
for the purposes of section 197A, save for the consequences of such transfer. Furthermore,
section 197(1) quoted above, defines the words “business” and “transfer” as having the
meaning in both sections 197 and 197A. There is no indication in the Act that the two
words in the same section were intended to have different meanings depending on the
circumstances’ (at para 13).
390 Law@work

compromise is entered into to avoid winding-up or sequestration for reasons of

insolvency.96 Section 197A provides that despite the Insolvency Act,97 if a trans-
fer of a business takes place in circumstances where the old employer is insolv-
ent or where a scheme of arrangement or compromise is entered into to avoid
winding-up or sequestration, the new employer is substituted in all contracts of
employment in existence at the time.98
In this instance, there is no assumption by the new employer of any of the old
employer’s obligations. However, the transfer does not interrupt the employee’s
continuity of employment. Any obligations that flow from this, for example sever-
ance pay, are for the new employer’s account.

12 Remedies for a breach of section 197

Most of the reported judgments dealing with section 197 concern urgent appli-
cations where, in effect, the Labour Court has been asked to issue a declara-
tory order to the effect that a transaction is affected by the section. The 2002
amendments to the LRA provide two specific remedies to employees affected
by a transfer. The first is a claim for an automatically unfair dismissal, where the
reason for dismissal is the transfer itself, or a reason related to the transfer.99 The
second amendment was to include in the definition of a dismissal circumstances
where an employee, post-transfer, resigns because the new employer provides

________________________

96 In the Hydro Colour Inks case (fn 95) the Labour Appeal Court held that s 197A was in fact
applicable because ‘It is not a matter of the appellant picking up “bits and pieces” of a
dying business for himself to start a new business. Such a finding would not be a reason-
able one given the extent of the overlap between the two entities’ (at para 16). The trans-
feree therefore stepped into the shoes of the transferor and was bound to remunerate the
employees who had obtained reinstatement orders against the old employer as they had
automatically transferred to the new employer. However, the transferee was not obliged
to take over other rights and obligations incurred by the transferor before its winding-up.
97 Act 24 of 1936.
98 There is a conflict between s 197 and the amended s 38 of the Insolvency Act. This is
because of the short period (45 days) for which contracts of employment are suspended,
before termination takes effect. It is doubtful whether transfers of insolvent businesses, or
parts thereof, will be effected that quickly. S 38(10) nevertheless provides that, subject to
s 197A, employment contracts terminate 45 days after the date of the appointment of a
trustee. The problem that therefore persists, pertains to instances where contracts are ter-
minated after 45 days, in terms of s 38, but where the business is actually transferred as a
going concern after such terminations. See Boraine and Van Eck ‘The New Insolvency
and Labour Legislative Package: How Successful was the Integration?’ (2003) 24 ILJ 1840
and Van Eck, Boraine and Steyn ‘Fair Labour Practices in South African Insolvency Law’
(2004) 121 SALJ 902.
99 See s 187(1)(g) of the LRA. See also Smit ‘A Chronicle of Issues Raised in the Course of Dis-
missals by the Transferor and/or Transferee in Circumstances Involving the Transfer of an
Undertaking’ (2005) 26 ILJ 1853. This topic is dealt with in more detail in ch 10 at para 9 ‘A
transfer contemplated by section 197’.
The transfer of undertakings 391

conditions or circumstances at work that are substantially less favourable than

those provided by the old employer.100
The Constitutional Court recently held that a court may grant relief and make
an order regarding an alleged transfer of a going concern based on an agree-
ment that had not yet been implemented (ie, a transfer that had not yet occur-
red).101 The court explained that another view would be unfair to the workers
because it would perpetuate the very mischief that the legislature sought to
avoid in the first place.102 A court may therefore make a declaratory order and
declare that a transaction falls or will fall within the scope of section 197.103

________________________

100 See s 186(1)(f) of the LRA. This topic is dealt with in more detail in ch 9 at para 2.1 ‘The
statutory meaning of “dismissal”’, especially at para 2.1.6 ‘Transfer of a business’.
101 Aviation Union of SA & another v SA Airways (Pty) Ltd & others (fn 6) at para 116. The court
stated (at para 115) that ‘It is true . . . that section 197(2) says that the consequences
mentioned should follow if a transfer of a business as a going concern occurs between
the old employer and a new one. But that provision cannot be said to mean that a trans-
fer must have taken place before any court proceedings can be instituted. As is demon-
strated here, the dispute about whether an agreement provides for the transfer of a
business arises mostly when two circumstances are present: the workers contend that the
agreement does entail the transfer of a business as a going concern, and one or other
parties to the transfer maintains that the agreement does not contemplate the transfer of
employees. That dispute is justiciable and the parties are entitled to have it determined
by the application of law in terms of section 34 of the Constitution’.
102 At para 117.
103 At paras 125–126.
14
Freedom of association and the
right to organise

Page
1 Introduction ...................................................................................................... 395
2 Protection of the right to freedom of association in terms of the LRA ...... 396
3 Exceptions to the right to freedom of association in terms of the LRA ...... 400
4 The right to organise ........................................................................................ 403
5 Requirements for unions to qualify for statutory organisational rights ....... 404
5.1 ‘Sufficiently representative’ unions ......................................................... 406
5.2 Majority unions .......................................................................................... 408
5.3 Other provisions regarding representativeness and entitlement ........ 409
6 Statutory organisational rights ........................................................................ 410
6.1 Access to the workplace ......................................................................... 410
6.2 Deductions of trade union subscriptions (check-off facilities) ............ 410
6.3 Election and functions of trade union representatives
(shop stewards)......................................................................................... 411
6.4 Leave for trade union activities .............................................................. 411
6.5 Disclosure of information.......................................................................... 411
7 Disputes concerning the exercise of organisational rights and
other disputes ................................................................................................... 413

393
Freedom of association and the right to organise 395

1 Introduction
The right to freedom of association is internationally recognised and protected,
and has historically been linked to other democratic rights, such as freedom of
expression, freedom of assembly and the right to dignity.1 The preamble to the
ILO’s Constitution records that the principle of freedom of association is among
the means of improving the conditions of workers and ensuring peace. In 1944,
the ILO adopted the Declaration of Philadelphia, which affirms the principle of
freedom of association as one of the fundamental principles on which the ILO is
based, and as an essential precondition to sustained progress. More recently,
the ILO adopted the Declaration on Fundamental Principles and Rights at Work,
which recognises that member states have an obligation, by virtue of their
membership of the ILO, to promote, recognise and realise the principles that
are the subject of core conventions, including the principle of freedom of asso-
ciation.2 The right to freedom of association is also the subject of many other
international human rights instruments. For example, section 20(1) of the Univer-
sal Declaration of Human Rights 1948 states that each individual has the right to
freedom of peaceful assembly and association.
ILO Convention No. 87 (Freedom of Association and the Right to Organise) is
the principal source of international obligations in relation to the right to free-
dom of association in the world of work. Article 2 of the Convention stipulates
that ‘Workers without distinction shall have the right to establish and, subject
only to the rules of the organisation concerned, to join organisations of their
own choosing without previous authorisation’.3 The Convention sets out a num-
ber of additional guarantees, including the rights to organise administration and
activities and to formulate programmes, in full freedom, and without interfer-
ence by the state.
As noted in chapter 3, the Constitution guarantees the right to freedom of
association, both generally and in relation to employment.4
The LRA protects the right to freedom of association and the right to organise
in two ways. First, Chapter II of the Act extends specific rights and protections to
workers and to employers. Secondly, Chapter III extends organisational rights to
registered trade unions that meet representativeness thresholds. Organisational
rights strengthen and support trade unions, and in doing so promote the institu-
tion of collective bargaining. Organisational rights make it possible for trade
unions to recruit members, to interact and engage with them, and to maintain
a degree of financial stability, and that serves ultimately to promote collective
bargaining.5

________________________

1 Refer to ch 2.
2 See ch 2 at para 5 ‘Core standards’.
3 South Africa ratified this convention in 1996. South Africa also ratified Convention 98 on
the right to organise and collective bargaining in 1996.
4 For a discussion on the constitutional framework, see ch 3.
5 Ss 12–16 of the LRA list the (statutory) organisational rights available to unions.
396 Law@work

2 Protection of the right to freedom of association in terms

of the LRA
The right to freedom of association is the cornerstone of collective bargaining. It
is a precondition for the realisation of a number of other rights, including the
right to organise, to engage in collective bargaining and to strike.6
Chapter II of the LRA provides that employees, employers, trade unions and
employers’ organisations7 have the right to freedom of association. The LRA
grants protection to the right to freedom of association without resorting to the
criminalisation of infringements of that right, as did the 1956 LRA.
The scope of the main provisions of Chapter II of the LRA are summarised
below. The first part of the chapter deals with employee rights, defined for this
purpose to include job seekers:
l Every employee has the right to form a trade union,8 to join a union, to par-
ticipate in the lawful activities of the union as well as to be a union office-
bearer or official.9

________________________

6 The right to freedom of expression is another right that is intertwined with the right to free-
dom of association. O’Regan J stated in SANDU v Minister of Defence & another 1999 (4)
SA 469 (CC) that ‘[t]he Constitution recognises that individuals in our society need to be
able to hear, form and express opinions and views freely on a wide range of matters’ (at
477D at para 7). This view is in agreement with the sentiments of the Constitutional Court in
the earlier matter Case & another v Minister of Safety and Security & others 1996 (3) SA
617 (CC): ‘[f]reedom of expression is one of a “web of mutually supporting rights” in the
Constitution. It is closely related to freedom of religion, belief and opinion (s 15), the right
to dignity (s 10), as well as the right to freedom of association (s 18), the right to vote and
to stand for public office (s 19) and the right to assembly (s 17). These rights taken together
protect the rights of individuals not only individually to form and express opinions, of what-
ever nature, but to establish associations and groups of like-minded people to foster and
propagate such opinions’ (at 631 at para 27).
7 In the LRA (s 213) a trade union is defined as an association of employees whose principal
purpose is to regulate relations between employees and employers, including any em-
ployers’ organisations. An employers’ organisation means any number of employers asso-
ciated together for the purpose, whether by itself or with other purposes, of regulating re-
lations between employers and employees or trade unions. More broadly speaking, trade
unions and employers’ organisations are established to further and defend the interests of
workers and employers respectively.
8 In ‘Kylie’ v CCMA & others 2010 (10) BCLR 1029 (LAC) the court stated that if a trade union
is formed to further the commission of a crime, the Registrar would be entitled to refuse to
register it. So sex workers may form and join unions, but the LAC confirmed that ‘although
sex workers would, as employees, be entitled to form and join trade unions, they would not
be entitled to participate in any activities, including collective bargaining, that amounted
to the furthering of the commission of crime’ (at para 60).
9 S 4 of the LRA. Sections 4(2)(a) and 5(2)(c), and in particular the term ‘lawful activities’,
were given a broad interpretation by the Constitutional Court in National Union of Public
Service & Allied Workers on behalf of Mani & others v National Lotteries Board (2014) 35 ILJ
1929 (CC) so as to exclude only ‘illegal activities and activities that constitute contraven-
tions of the law’. Even where employees are not covered by the LRA (s 2 of the LRA) the
constitutional right to freedom of association still applies. In SA National Defence Union v
continued on next page
Freedom of association and the right to organise 397

l Employees’ and work seekers’ rights of freedom of association are protected

against any interference by any employer, union or any other party. Employ-
ees and work seekers are also protected against discrimination based on
their exercising of any right conferred by the Act.10
l Victimisation is prohibited.11 Protection against victimisation includes:
• protection against discrimination based on the exercising of any right in
terms of the Act;12
• protection against any demand that an employee or person seeking
employment:
¾ may not be a member of a trade union or workplace forum;
¾ may not become a member of a trade union or a workplace forum;
¾ must give up membership of a trade union or workplace forum;13
• protection against any interference with the exercise of rights in terms of
the Act or from participating in any proceedings in terms of the Act;14
• protection against any prejudicial treatment because of past, present or
anticipated:15
¾ membership of a union or workplace forum;
¾ participation in the forming of a union, federation or workplace forum;
¾ participation in the lawful activities of these bodies;
¾ failure or refusal to do something an employer may not lawfully permit
or require an employee to do;

________________________

Minister of Defence & others [2007] 9 BLLR 785 (CC) it was held, in considering SANDU’s
challenges to the individual regulations (General Regulations of the South African National
Defence Force and the Reserve of 1999), that SANDU’s challenge to the regulation that
prohibits union members from participating in union activities while undergoing training or
participating in military exercises must be refused. The court held that the Defence Force
can justifiably limit union activities in instances when such activities may interfere with the
military’s ability to carry out its constitutional obligation to protect our country. (Art 9 of ILO
Convention 87 of 1948 permits that the extent to which its guarantees must apply to the
armed forces and the police be determined by national laws or regulations.) Similarly, re-
garding the attack on reg 37(1) (which provides that ‘no member may participate in the
activities of a military trade union while participating in a military operation’) and reg 37(2)
(which provides that no union may consult or liaise with members whilst such members
participate in military operations, exercises or training) both were found to be legitimate
limitations on the rights contained in both s 23(2)(b) of the Constitution, which entrenches
the right to participate in union activities and s 23(4), which entrenches the right of a union
to determine its own programmes and activities (at para 96).
10 S 5(1) of the LRA.
11 S 5(2) of the LRA.
12 S 5(1) of the LRA. Note that while employees enjoy a right to strike, employers (only) have
recourse to a lock-out. This distinction is relevant for purposes of s 7 (see fn 24 below).
13 S 5(2)(a) of the LRA.
14 S 5(2)(b) of the LRA.
15 S 5(2)(c) of the LRA.
398 Law@work

¾ disclosure of information the employee is lawfully entitled or required

to give to another person;
¾ exercise of any right conferred by the Act; and
¾ participation in any proceedings in terms of the Act;
• the offering of any advantage or the promise to advantage in exchange
for not exercising any right in terms of the Act is prohibited.16
• any provision in a contract contradicting or limiting any provision of sec-
tion 4 of the Act, whether directly or indirectly, is invalid, unless permitted
by the Act.17
In National Union of Metalworkers of SA obo members v Transnet Soc Ltd,18 the
Labour Court considered the phrase ‘lawful activities of a trade union’ in relation
to a ban imposed by the employer on the wearing of union T-shirts at work. The
court held that the wearing of union T-shirts in the workplace was a form of pro-
motion, and recruiting new members and as such, a component of the union’s
organising activities. In the absence of any justification proffered by the em-
ployer, the imposition of a union T-shirt ban with the underlying threat of a form
of prejudice in the form of disciplinary action thus constituted a breach of sec-
tion 4(2) and section 5(2)(c)(iii).
There is some uncertainty regarding the extent to which the right to freedom
of association of senior managerial employees may be limited, or even ex-
cluded. The positions held by senior managers may place them in a situation
where they have a conflict of interest on account of union-related obligations.
In IMATU & others v Rustenburg Transitional Local Council 19 the Labour Court
held that the LRA (as well as the Constitution) grants an unrestricted right to
freedom of association. The court held that senior managerial employees may
not be prevented from being involved in union activities, or serving in union
executive positions.20 However, the exercise of the right to freedom of associ-
ation by senior executives is not unlimited. In the Rustenburg case the court
remarked:
The employee must still do the work for which he is engaged and observe the sec-
ondary duties by which he is bound under the contract. If he does not, he can be
disciplined for misconduct or laid off for incapacity . . . The senior employee who
becomes a union leader must, in consequence, tread carefully, especially in his
handling of confidential information. It is not enough simply to keep the infor-
mation secret; he must recuse himself from every discussion within the union to
which such information might be relevant either directly or indirectly lest he con-
vey, merely by his conduct or simply by silence, facts that the employer would
prefer the union not to know. He can, I believe, participate in discussions on strat-
egy to which information given to him in confidence is irrelevant, since this is

________________________

16 S 5(3) of the LRA. A settlement agreement between the parties to a dispute is not pro-
hibited by this section.
17 S 5(4) of the LRA.
18 (2019) 40 ILJ 583 (LC).
19 [1999] 12 BLLR 1299 (LC).
20 The position is different for workplace forums (s 78(a)).
Freedom of association and the right to organise 399

implicit in his right to participate in trade union activities, but he must guard himself
even from exercising a judgment on the basis of such information. The delicacy of
discretion that this entails makes his position an unenviable one, but the Act gives
him the right to enter this minefield if he wishes.21
As noted above, the LRA prohibits all forms of victimisation.22 This protection
extends to employees regarding membership of and participation in the for-
mation or lawful activities of a workplace forum.
Chapter II of the LRA affords employers rights of freedom of association. These
include the following:
l the right to form an employers’ organisation, to join it, to participate in its
lawful activities, to elect any office-bearers or officials and, where a natural
person, to act as office-bearer or official or, where a juristic person, to ap-
point a representative for election as such;23 and
l protection against victimisation, which protection is similar to that afforded
to employees and job seekers in section 5.24
Contractual provisions contradicting or limiting these protections are invalid.25
The right to freedom of association also has a collective component. The LRA
recognises the following rights of unions and employers’ organisations:26
l the determination of their own constitution and rules;
l the election of representatives, office-bearers and officials;
l the organisation of their own administration and lawful activities without
interference;
________________________

21 At paras 17–19. In the later matter of NUMSA obo Sithole v Highveld Steel & Vanadium
Corporation Ltd [2003] 10 BALR 1117 (MEIBC) the principle in Rustenburg was endorsed.
The arbitrator held that the right to freedom of association entitles supervisory employees
to stand for election as shop stewards. A warning was again included: that this in no way
exempts these employees from their duties which they may have under their contracts of
employment. Senior employees therefore have to avoid a conflict of interests. The prin-
ciple established by the Rustenburg judgment was also endorsed in FAWU & another v The
Cold Chain [2007] 7 BLLR 638 (LC).
22 In Kroukam v SA Airlink (Pty) Ltd [2005] 12 BLLR 1172 (LAC) the Labour Appeal Court held
that the dominant reason for the dismissal of the employee, a pilot and chairman of the
pilot’s union, was the role that he played in representing the interests of the union and its
members. The court held that ‘In my view it would undermine the protection that the Con-
stitution and the Act seek to confer on union officials or representatives and employees
against victimisation for the exercise of their constitutional and statutory rights to accept a
proposition the effect of which would be that an employer may destroy a trust relation-
ship by victimising an employee and then benefit from such illegitimate and unlawful con-
duct . . . An employer who acts in breach of such fundamental rights must, as a matter of
policy, not be allowed to benefit from his unacceptable conduct’ (at para 94).
23 S 6(1) and (2) of the LRA.
24 S 7 of the LRA. Since an employer does not have a right to lock-out, it does not enjoy the
protection of s 7 in regard to its recourse to a lock-out. One consequence of this regu-
lation is the limitation on the use of replacement labour in the event of an offensive lock-
out (s 76(1)(b)).
25 S 7(4) of the LRA.
26 S 8 of the LRA.
400 Law@work

l the establishment and joining of federations and the participation in its law-
ful activities;27 and
l affiliation with and participation in the activities of international organisations,
including the ILO.
The Labour Court adjudicates disputes about the right to freedom of association
after attempts to conciliate have failed. The party alleging a breach of the right
to freedom of association must establish the facts of the conduct. The burden of
proof then shifts to the party denying that the protection conferred by the Act
has been infringed.28

3 Exceptions to the right to freedom of association in terms

of the LRA
What might be argued to be exceptions to the right to freedom of association
can be found in the closed shop and agency shop agreements recognised
and regulated by the LRA.29
A closed shop agreement is a collective agreement concluded by a majority
union and an employer or employers’ organisation, which requires all employ-
ees covered by that agreement to become members of the trade union.30 It is
not unfair to dismiss an employee who refuses to join a trade union party to the
closed shop agreement, or who is refused membership of that trade union or
who is expelled from such trade union.31 A closed shop agreement therefore

________________________

27 See SA National Defence Union v Minister of Defence & others (fn 9) where it was held
that a regulation that provided that a military trade union ‘shall not affiliate or associate
with – (a) any labour organisation, labour association, trade union or labour federation
that is not recognised and registered’ was not unconstitutional. The court stated that given
the importance of the constitutional requirement of political neutrality on the part of the
SANDF, it is not impermissible for the regulations to impose a limit on military trade unions
from associating with other unions. The court emphasised the fact that international labour
law recognises that the rights of military trade unions, if permitted to exist at all, may be
regulated by national legislation. The court also held that what constitutes ‘association’
for the purposes of the regulation needs to be considered in the light of the constitutional
principle underlying both s 199(7) of the Constitution and reg 13(a). The court therefore in-
terpreted ‘association’ as meaning a relationship between a military union and another
union which might give rise to a suggestion that the SANDF is not politically neutral. The
court held that the limitation on s 23(4)(c), found in reg 13(a), is justified in light of the spe-
cial circumstances of the military (at para 88). This affirms that any limitation on the right to
freedom of association should be construed as narrowly as possible.
28 Ss 9 and 10 of the LRA.
29 Ss 25 and 26 of the LRA.
30 S 26(1) of the LRA. The union must be registered and two or more unions can act jointly to
have a majority of employees employed in a workplace or sector or area as its members
(s 26(2)).
31 S 26(6) of the LRA. Any refusal of membership or expulsion from a trade union party to a
closed shop agreement must, however, be in accordance with the constitution of that
union and the reason for the refusal or expulsion must be fair (s 26(5)). Trade unions will be
penalised if they act contrary to this stipulation – s 26(9) states that if the Labour Court
continued on next page
Freedom of association and the right to organise 401

compels employees to become members of the union. An agency shop agree-

ment does not compel an employee to be or become a member of a trade
union that is the beneficiary of the agreement, but it requires the contribution by
non-members of an ‘agency fee’, to that union, as a condition of employment.
Closed shop and agency shop agreements can only be described as excep-
tions to freedom of association if one accepts that the right to associate and
the right not to associate are not inseparable elements of a single concept. In
other words, one must ask whether the positive right (the right to associate) and
the negative right (the right not to associate) are two halves that make up a
whole (the right to freedom of association). If so, any limitation of the right to
freedom not to associate must be justifiable in terms of the limitation clause,
section 36 of the Constitution. There is, however, little agreement on this ques-
tion.32 Du Toit et al suggest that:
[o]f all the provisions in the LRA, section 26 appeared to be the most vulnerable to
constitutional attack on the grounds that it constituted a limitation of employees’
right to join a trade union33 and possibly of their fundamental right to freedom of
association [s 18 of the Constitution]. In the event, no challenge has thus far been
mounted and the question has yet to be answered definitively by the courts.34
The authors suggest a two-stage enquiry:
The first question is whether, in fact, the closed shop provision does limit the right to
freedom of association in a constitutional sense. This involves examining whether
any formal limitation of the above rights by a closed shop agreement is out-
weighed by its promotion of other basic rights contained in the Constitution, no-
tably the right of trade unions to engage in collective bargaining [s 23(5)]. Through
‘internal balancing’ of these related rights, it may be concluded that section 26 in
a substantive sense reinforces rather than limits those rights. If, on the other hand, it
is found to be a limitation, the second question is whether it can be justified in
terms of section 36 of the Constitution . . . To pass this test, it would have to be
shown that the form of closed shop enacted by section 26 is ‘reasonable and justi-
fiable in an open and democratic society based on human dignity, equality and
freedom’, taking into account all relevant factors including the importance of the
purpose of the limitation and its nature and extent [s 36(1) of the Constitution].35
Both the Constitution and the LRA place the promotion of collective bargaining
high on the agenda and for this reason it may be, if ever challenged, that the
limitation of freedom of association imposed by section 26 of the LRA would be

________________________

should decide that a dismissal is unfair because the refusal of membership of or the expul-
sion from a trade union party to a closed shop agreement was unfair, any order of com-
pensation that may be made in terms of ch VIII of the Act must be made against the
trade union concerned.
32 It becomes apparent that there is a conflict between the individual’s right to freedom of
association and the collective interests of unions to recruit as many members as possible
in order to effectively bargain collectively and to resort to industrial action, eg strikes,
more effectively.
33 S 23(2)(a) of the Constitution. S 4(1)(b) of the LRA.
34 Du Toit et al Labour Relations Law: A Comprehensive Guide (2015) at 227.
35 Ibid at 191–192.
402 Law@work

considered reasonable and justifiable for public policy reasons.36 In addition,

section 26 of the LRA contains several ‘checks and balances’ to safeguard the
arrangements against constitutional attack.
In so far as the closed shop agreement is concerned, the first condition is that
only a representative trade union (in other words majority union(s)) can con-
clude such an agreement. In addition, a ballot must be held of the employees
to be covered by the agreement. In this ballot, two thirds of the employees who
vote must vote in favour of the agreement. The agreement must be a post-entry
closed shop agreement; in other words, the agreement may not require mem-
bership of the trade union before employment commences. The agreement
must provide that no membership subscription or levy deducted may be used
for inappropriate purposes.37 Section 26(7) provides that although an employee
may be dismissed for not being a member of the trade union party, employees
who were already employed at the time that the closed shop agreement
comes into effect may not be dismissed for refusing to join the trade union party
to the agreement. Employees who refuse to join a trade union party on grounds
of conscientious objection may also not be dismissed.38
The LRA also sets conditions for the termination of a closed shop agreement.
The trade union party must conduct a ballot of the employees covered by a
closed shop agreement, to determine whether the agreement must be termi-
nated, when the union receives a petition calling for the termination of the
agreement signed by one third of the employees covered by the agreement
(that is, one third of employees covered by the agreement, not one third of em-
ployees who voted for the agreement). However, three years must have elapsed
since the date on which the closed shop agreement commenced (or the last
ballot was conducted regarding possible termination of the agreement).39 In
any ballot concerning the termination of a closed shop agreement, a majority
of the employees who voted must vote in favour of termination of the agree-
ment. When this happens, the closed shop agreement terminates.40
Section 25 of the LRA regulates agency shop agreements. A union, or more
than one, with majority support may conclude an agency shop agreement with
an employer (at workplace level) or employers’ organisation (at sectoral level).
In terms of this agreement, an amount is subtracted monthly from the wages of
non-members who are eligible for union membership. This fee may not be higher
________________________

36 Ibid at 192.
37 This would include the subscription or levy being paid: to a political party as an affiliation
fee; in cash or kind to a political party or a person standing for election to any political
office; or for any expenditure that does not advance or protect the socio-economic in-
terests of employees (s 26(3)(d)).
38 The employees that fall within the categories in s 26(7) may be required to pay an agency
fee in terms of s 25. A ‘conscientious objector’ may be described as a person who refuses
to belong to a trade union ‘because his or her moral and/or religious convictions prohibit
him or her from associations with other persons in this manner or in such organisations’
(Barker and Holtzhausen South African Labour Glossary (1996) at 29).
39 S 26(15) of the LRA.
40 S 26(16) of the LRA.
Freedom of association and the right to organise 403

than the union’s membership fees and should be paid into a fund controlled by
the majority union(s). Members of a minority union can consequently be forced
to pay a double fee: membership fees to the minority union as well as the
‘agency fee’ (the agency fee is automatically, without any need for author-
isation, deducted from their wages).41 Although an agency shop agreement
does not require employees to become members of the trade union party to
the agreement, it could also amount to an infringement upon the right to free-
dom not to associate as improper pressure is exercised upon the employee with
regard to choice of union membership.
Why are union security arrangements concluded? There are at least two an-
swers. First, unions and their members argue that so-called ‘free-riders’ should
pay their own way.42 Secondly, one of the LRA’s primary objectives is to pro-
mote a framework within which employees and their trade unions can collect-
ively bargain in an orderly fashion, preferably on sectoral level.43 The existence
of strong and independent unions is vital to achieving this objective.
Disputes regarding the interpretation or application of a closed shop or
agency shop agreement may be referred to conciliation and ultimately to
arbitration.44

4 The right to organise

The enjoyment of general civil liberties or civil and political rights in a society,
including freedom of association, is important for the effective exercise of trade
union rights. It has been argued that there are four main aspects to trade union
activity: the free election of representatives; the planning and implementation
of trade union operations; the preparation of statutes and regulations; and the
organisation of its management (including independence and control of its
assets).45 ILO conventions require that authorities must refrain from any inter-
ference that would impede the exercise of trade union activity.

________________________

41 In MATUSA v Central Karoo District Municipality [2019] 2 BLLR 159 (LC), a challenge by
members of a minority union to the validity of an agency shop agreement on the basis
that they were liable for a ‘double fee’ was dismissed. The court held that the members of
the minority union remained ‘free riders’ (even though they paid membership subscrip-
tions to their own union) because the minority union did not contribute to the fruits of col-
lective bargaining between the employer and the majority unions to whom the agency
fee was payable.
42 ‘Free riders’ are defined as: ‘employees in an establishment or other bargaining unit who
benefit from improved conditions of employment resulting from unions negotiating with
the employer, but who refuse to join the union. They are accused of accepting the pro-
tection and benefits won by the unions, while refusing to pay their share of the costs of
collective bargaining of the union by paying union subscription to the union’ (Barker and
Holtzhausen (fn 38) at 60).
43 S 1(c) and (d) of the LRA.
44 S 24(6) of the LRA.
45 Servais International Labour Law (ELL – Suppl. 374 (March 2011)) at 114–116.
404 Law@work

Chapter III of the LRA establishes various organisational rights for the benefit of
trade unions which rights are capable of enforcement against the employer:
l trade union access to the workplace (section 12);
l deduction of trade union subscriptions (sometimes called ‘check-off’ facili-
ties) (section 13);
l trade union representatives (‘shop stewards’), their election and functions
(section 14);
l leave for trade union activities (sometimes referred to as time off) (section
15); and
l disclosure of information (section 16).
In Hospersa and Zuid-Afrikaanse Hospitaal 46 the arbitrator suggested that organ-
isational rights are meant to enable unions ‘to get their foot in the door’. Du Toit
et al also state that organisational rights ‘are aimed at assisting unions to build
up sufficient bargaining power to persuade employers to negotiate’.47 The main
aim of organisational rights can therefore be said to be the promotion of indus-
trial self-government and collective bargaining.48

5 Requirements for unions to qualify for statutory

organisational rights
Not all trade unions qualify for organisational rights – not even all registered
unions are entitled to these rights. Only registered unions49 that are ‘represen-
tative’ may acquire organisational rights in terms of the LRA. In general terms,
the Act draws a distinction between unions that are merely ‘sufficiently repre-
sentative’ and ‘sufficiently representative’ unions with majority support in a work-
place.50 Recall that while only certain unions qualify for these rights, nothing pre-
vents a trade union from obtaining organisational rights through other means,
including collective bargaining and industrial action.51 This was confirmed in the
Constitutional Court’s judgment in NUMSA & others v Bader Bop (Pty) Ltd &
another.52

________________________

46 (1997) 2 LLD 29 (CCMA).

47 Du Toit et al (fn 34) at 250.
48 For a general overview of organisational rights refer to Mischke ‘Getting a Foot in the Door:
Organisational Rights and Collective Bargaining in terms of the LRA’ (2004) CLL 13(6) 51.
49 A trade union that has been deregistered is not entitled to organisational rights even
where an appeal is pending to the LAC. See UPUSA obo Members/Computicket [2010] 9
BALR 1008 (CCMA).
50 S 11 of the LRA.
51 However, if there is a collective agreement that already regulates the issue of organisa-
tional rights, s 65 of the LRA bars the union from calling out a protected strike on the issue.
See Vodacom (Pty) Ltd v CWU [2010] 8 BLLR 836 (LAC).
52 [2003] 2 BLLR 103 (CC). See also the discussion in para 5.1 ‘“Sufficiently representative”
unions’.
Freedom of association and the right to organise 405

Representivity is determined with reference to the particular workplace where

the trade union seeks organisational rights, not to the unit within which it seeks to
exercise those rights. Unless the context indicates otherwise, a workplace is
defined as
the place or places where the employees of an employer work. If an employer
carries on or conducts two or more operations that are independent of one
another by reason of their size, function or organisation, the place or places where
employees work in connection with each independent operation, constitutes the
workplace for that operation.53
Disputes about what constitutes a workplace must therefore be determined with
reference to the particulars of the specific case.54 In Association of Mineworkers
and Construction Union & others v Chamber of Mines & others55 the Constitu-
tional Court refused to apply the definition literally and held that a ‘workplace’
is not the place where any single employee works; it is where the employees of
an employer collectively work. The focus of the definition is on the collective,
with location being relatively immaterial and functional organisation being the
more material signifier. The court upheld a finding that having regard to the
organisational methodology and practicalities of each mining company, mem-
bers of the Chamber of Mines, each company constituted a single, industry-wide
workplace rather than the individual mines at which the applicant union had a
majority.56
In OCGAWU & another v Volkswagen of South Africa (Pty) Ltd & another,57 on
account of the qualifier ‘unless the context indicates otherwise’, it was held that
a bargaining unit within an organisation may also be considered a ‘workplace’
for purposes of determining a claim to organisational rights. This is a crucial (and
controversial) interpretation, as it may otherwise be almost impossible for many
unions to prove representivity where an employer has a large, widespread and
varied operation. However, the arbitrator in this case was not willing to find that
different depots should be regarded as independent workplaces. On the facts,
it was held that the employer’s entire operation was a single workplace. In
Communication Workers Union and Daily Dispatch58 it was held that a division of
a newspaper publisher constituted a separate workplace for the purpose of
obtaining and exercising organisational rights by a majority union. This was the

________________________

53 S 213 of the LRA.

54 Disputes about a workplace may be referred to the CCMA for conciliation and arbitration
(s 21(6)).
55 2017 (6) BCLR 700 (CC). The case concerned the extension of a collective agreement to
members of a minority union in the industry, but which represented a majority of employ-
ees at some individual mines. S 23(1)(d) permits such an extension if the trade union par-
ties to the agreement have as their members ‘the majority of employees employed by
the employer in the workplace’.
56 At paras 24–40.
57 [2002] 1 BALR 60 (CCMA). See also WESUSA/Isidingo Security Services [2007] 7 BALR 678
(CCMA).
58 (2010) 31 ILJ 1496 (CCMA).
406 Law@work

case irrespective of it not operating independently but forming part of a com-

pany with 20 divisions throughout South Africa, and with its activities co-
ordinated centrally from the holding company.
In Democratic Union of Security Workers and Squires Foods (Pty) Ltd t/a
Morton’s 59 it was held that a trade union whose constitution limited its scope to
the security industry was not entitled to seek organisational rights within the hos-
pitality industry. In other words a union cannot exercise organisational rights on
behalf of employees falling outside of the scope of its constitution.60

5.1 ‘Sufficiently representative’ unions

For the purposes of Chapter III of the LRA, a ‘representative trade union’ is
defined to mean, unless there is an express reference to a majority union, a regis-
tered trade union that is ‘sufficiently representative’ of the employees employed
by an employer in a workplace. A registered union may act jointly with any one
or more unions in order to qualify as ‘sufficiently representative’.
The Act does not stipulate what ‘sufficiently representative’ means, but unions
that are sufficiently representative are those unions that do not have as their
members the majority of employees employed by an employer at the work-
place. Even though the objective is to improve the position of unions in work-
places, labour relations must also be manageable for employers. The Act there-
fore provides that in the event of a dispute about whether a union is represen-
tative, the commissioner must:
l seek to minimise the financial and administrative burden of requiring an em-
ployer to grant organisational rights to more than one registered trade union;
l seek to minimise the proliferation of trade union representation in a single
workplace and where possible, to encourage a system of one represen-
tative trade union in a workplace; and
l have regard to various factors pertaining to the nature of the workplace,
the nature of the organisational rights that the union wants to exercise, the
nature of the sector in which the workplace is situated as well as the organ-
isational history at the workplace or any other workplace of the employer.61
In earlier CCMA awards, it appeared that comparatively small unions would not
easily succeed in a claim to be recognised as being sufficiently representative.62
In more recent awards, the CCMA has been willing to fix lower thresholds, in
particular where considerations of equality, consistency and fairness required
such an approach.63 Employers must therefore act consistently in affording or
________________________

59 (2008) 29 ILJ 2815 (CCMA).

60 See also CEPPWAWU/Pop Snacks [2009] 11 BALR 1156 (CCMA) – the CCMA lacks jurisdic-
tion regarding the enforcement of organisational rights in terms of s 21 of the LRA where
employees fall outside of the registered scope of the trade union’s constitution.
61 S 21(8) of the LRA.
62 Eg SACTWU v Sheraton Textiles (Pty) Ltd [1997] 5 BLLR 662 (CCMA); OCGAWU v Wool-
worths (Pty) Ltd [1997] 7 BALR 813 (CCMA).
63 See Group 4 Falck (Pty) Ltd v DUSWO [2003] 4 BALR 422 (CCMA); Organisation of Labour
Affairs (OLA) v Old Mutual Life Assurance Company (SA) [2003] 9 BALR 1052 (CCMA). In
continued on next page
Freedom of association and the right to organise 407

refusing organisational rights to unions with smaller membership.64 An amend-

ment introduced in 2014 requires commissioners to take into account the com-
position of the workforce in the workplace and especially the extent to which
employees are assigned by temporary employment services or engaged on
atypical terms (eg, on fixed-term contracts or on a part-time basis).
Unions that are sufficiently representative are afforded the following rights:
l access to the workplace;
l deduction of trade union subscriptions; and
l leave for trade union activities.
The Labour Relations Amendment Act 6 of 2014 introduced a basis on which
minority unions may acquire the organisational rights ordinarily reserved for ma-
jority unions. Section 21(8A) of the LRA empowers arbitrators to grant a registered
trade union the right to elect trade union representatives and to disclosure of
information if the union meets the ‘sufficient representativeness’ threshold and
if no other union in the workplace has been granted those rights. Any right
granted in terms of this section lapses when the trade union concerned is no
longer the ‘most representative’ trade union in the workplace. Section 21(8C)
provides that in a dispute over organisational rights an arbitrator may grant a
union that does not meet the thresholds of representativeness established by a
collective agreement to which the employer and other unions are party any of
the rights referred to in sections 12, 13 and 15 provided that all parties to the col-
lective agreement have been given an opportunity to participate in the arbitra-
tion proceedings and that the union seeking the rights represents a ‘significant
interest’ or ‘substantial number of employees’ in the workplace. No doubt, this
provision was inserted to discourage employers and majority unions from fixing
thresholds that effectively deny organisational rights to minority unions.
As noted above, nothing prevents a trade union from embarking on industrial
action to try to secure organisational rights in a workplace. In NUMSA & others v
________________________

Group 4 Falck (Pty) Ltd v DUSWO, the union membership fell radically as a result of em-
ployer restructuring. Eventually the union had less than 3 per cent of the employer’s work-
force in the province as its members, and only 1 per cent countrywide. The employer
intended withdrawing the organisational rights enjoyed by the union on an informal basis,
even though it was prepared to grant to another union, with a mere 6 per cent of the
workforce as its members, s 12 and 13 rights. The commissioner took regard of the em-
ployer’s willingness to accord s 12 and 13 rights to the other union. The CCMA commis-
sioner withdrew all organisational rights except for the s 12 and 13 rights, which rights were
left intact for a period of four months to enable the union to increase its membership to
6 per cent. The following factors were considered: the difficulties in the particular sector
(security) that unions faced in organising; the extensive room for recruitment as only 23 per
cent of the workplace had been organised; the absence of consultation on the part of
the employer; and the fact that the union’s representation diminished as a result of em-
ployer restructuring, and not as a result of a fault on the part of the union.
64 In Organisation of Labour Affairs (OLA) v Old Mutual Life Assurance Company (SA) (fn 63)
the union had only 31 members (2 per cent representation) but was afforded s 12 and 13
rights (access and stop-order facilities) because the employer had in fact recognised
unions with fewer members.
408 Law@work

Bader Bop (Pty) Ltd & another 65 the Constitutional Court had to decide whether
minority unions and their members have the right to strike in order to compel an
employer to recognise the union’s shop stewards. The court took into account
the relevant ILO conventions on freedom of association, the right to organise
and the right to collective bargaining.66 This led to the court’s conclusion that
the right does accrue to minority unions and their members. The court identified
two important principles from the international instruments, namely: that free-
dom of association is as a rule to be interpreted to afford unions the right to
recruit members and to represent those members at least in individual work-
place grievances; and that unions have the right to embark on industrial action
to pursue their demands.
The court then held that an interpretation of the relevant provisions of the LRA
(in other words, the sections of the LRA relating to the exercise of organisational
rights and the right to strike), which would avoid the limitation of constitutional
rights (in other words, the rights to freedom of association, to organise and to
strike entrenched in section 23 of the Constitution) is to be preferred. The union
could therefore, in principle, call a protected strike, even though the union does
not meet the statutory thresholds to entitle it to secure the rights through the
arbitration process established by section 21 of the LRA. In addition, section 20
of the LRA (which provides for the conclusion of a collective agreement regu-
lating organisational rights), also remains available to minority unions.
It must, however, be noted that the court expressly found that employers are
not compelled to recognise minority unions. The finding means nothing more
than that the recognition of shop stewards is a legitimate subject for collective
bargaining and industrial action.67

5.2 Majority unions

Majority unions are those registered unions that on their own, or in combination
with any one or more unions, have as their members the majority of the employ-
ees employed by an employer in a workplace. This requires that at least 50 per
cent plus one of the employees employed in the workplace must be members
of the union(s).
In addition to the rights mentioned above, majority unions also have the right
to
l have their members elected and function as trade union representatives
(shop stewards) in the workplace; and
l disclosure of information.

________________________

65 Fn 52.
66 ILO Conventions 87 of 1948 and 98 of 1949.
67 The court also stated that the same considerations may not necessarily be applicable in
the event of a refusal to grant the right to disclosure of relevant information to a minority
or sufficiently representative union.
Freedom of association and the right to organise 409

5.3 Other provisions regarding representativeness and entitlement

The LRA allows parties to effect a change in thresholds of representativeness.
The majority union(s) may enter into an agreement with the employer at work-
place level, in terms of which the thresholds for the exercise of those rights for
which majority status is not required may be altered.68 By implication, these
unions and an employer may provide that majority status is a prerequisite for the
exercise of all the organisational rights provided for by the Act. The Labour
Appeal Court has held that a collective agreement concluded in a bargaining
council that established representation thresholds for the acquisition of organ-
isational rights by minority trade unions, did not preclude an employer from
granting organisational rights to a minority union. The court relied on section 20
(which provides that nothing contained in Part A of Chapter III precludes the
conclusion of a collective agreement that regulates organisational rights) and
the recognition that minority unions are entitled to have access to a workplace
so as to challenge the hegemony of majority unions.69 This decision was upheld
by the Constitutional Court,70 although on a different basis. The majority of the
court held that the rights at issue were the rights of workers to form and join
trade unions and to participate in their activities, and a trade union’s right to
engage in collective bargaining. The thresholds that may be established by an
employer and a majority union in terms of section 18 are limited to the rights
established by sections 12, 13 and 15 – the section does not authorise employers
and majority unions to determine which constitutional rights minority unions may
exercise.
In summary, minority unions can acquire organisational rights in three ways.
The first is to acquire those rights if they satisfy the threshold established by any
agreement concluded between the employer and a majority union in terms of
section 18; the second is to bargain with the employer for those rights; the third
is to refer a dispute to arbitration in terms of section 21(8C).71
Section 19 of the Act stipulates that registered unions that are parties to a bar-
gaining council automatically have certain rights (the rights of access to the
employer’s premises and to check-off facilities) in respect of all workplaces
within the jurisdiction of the council, regardless of their representativeness in any
particular workplace.

________________________

68 S 18 of the LRA. The threshold could, however, be set at something less than majority status.
In UPUSA obo members v Harmony Gold Mine [2003] 9 BALR 1062 (CCMA) the agreement
set a threshold of 25 per cent. See also UASA v Impala Platinum Ltd & others [2010] 9 BLLR
986 (LC) for an instance where a minority union sought to review an agreement concluded
in terms of s 18.
69 South African Correctional Services Workers Union (SACOSWU) v Police and Prisons Civil
Rights Union (POPCRU) & others [2017] 9 BLLR 905 (LAC).
70 POPCRU v SACOSWU [2018] 11 BLLR 1035 (CC). For a discussion on this and other relevant
judgments, see Fergus ‘The Disorganisation of Organisational Rights – Recent Case Law
and Outstanding Questions’ (2019) 40 ILJ 685.
71 At para [101].
410 Law@work

The exercise of organisational rights in the domestic sector is limited in two

ways:72
l the right to disclosure of information does not apply in the domestic sector;
and
l the right to access to the premises of the employer does not include the
right to enter the home of the employer, except where the employer agrees.
A collective agreement that regulates organisational rights may be entered into
at workplace or council level.73 Such an agreement may include a procedure
for obtaining organisational rights as well as qualifying criteria.74

6 Statutory organisational rights

6.1 Access to the workplace75
This right, which may be exercised by any office-bearer or official of a represen-
tative union, entails the following:76
l recruitment of members;
l communication with members;
l otherwise serving members’ interests;
l holding of meetings outside working hours at the employer’s premises; and
l holding of elections or ballots required by the union’s constitution at the
premises.

6.2 Deductions of trade union subscriptions (check-off facilities)77

A member of a representative union must authorise the employer in writing to
make the deductions from his or her wages. As soon as possible thereafter the
employer must begin making the deductions and remit the deducted amount
to the union. The remittance must be made by not later than the 15th of each
month. An employee may revoke the authorisation by giving one month’s writ-
ten notice. The employer must provide the union on a monthly basis with:
l a list of members from whose wages the deductions have been made;
l details of the amounts deducted and remitted and the period to which the
deductions relate; and
l a copy of every notice of revocation.

________________________

72 S 17 of the LRA.
73 S 20 of the LRA.
74 See also para 7 ‘Disputes concerning the exercise of organisational rights and other
disputes’.
75 S 12 of the LRA.
76 These rights are subject to any conditions as to time and place that are reasonable and
necessary to safeguard life or property or to prevent the undue disruption of work (s 12(4)).
77 S 13 of the LRA. See National Union of Mineworkers and Paintrite Contractors CC (2008) 29
ILJ 806 (CCMA).
Freedom of association and the right to organise 411

6.3 Election and functions of trade union representatives

(shop stewards)78
The number of representatives that may be elected in terms of section 14 de-
pends on the number of union members employed in the workplace, provided
there are at least ten such members.
Trade union representatives have the following functions:
l to assist and represent employees in grievance and disciplinary proceedings
in the workplace;
l to monitor the employer’s compliance with workplace-related provisions
contained in the Act, in any law regulating terms and conditions of employ-
ment, and in binding collective agreements;
l to report any alleged contravention of the said workplace-related provisions
to the employer, the union, and any responsible authority or agency; and
l to perform any other function agreed upon between the union and the
employer.
A representative is entitled to take reasonable time off with pay during working
hours in order to perform his or her trade union representative functions and to
undergo training relevant to the performance of the functions of a trade union
representative.79

6.4 Leave for trade union activities80

An employee who is an office-bearer of a representative union or of a feder-
ation of unions is entitled to take reasonable leave during working hours for the
purpose of performing the functions of that office. However, the employer and
the union must agree on the number of days of leave, payment in respect
thereof and other conditions.

6.5 Disclosure of information

Section 16 provides for the disclosure of information to a:
l trade union representative;
l majority trade union; and
l workplace forum.81
All relevant information that will allow a trade union representative to perform his
or her functions referred to in section 14(4) must be disclosed. An employer must
also disclose to the representative trade union all relevant information that will
allow the union to engage effectively in consultation or collective bargaining. In

________________________

78 S 14 of the LRA.
79 Reasonable conditions may be set for the exercise of this right (s 14(5)).
80 S 15 of the LRA.
81 S 16(2)–(3) of the LRA.
412 Law@work

addition, an employer must disclose, where applicable to the workplace forum,

all relevant information that will allow the forum to engage effectively in consult-
ation and joint decision-making. The employer must notify, in writing, the union
or workplace forum if information disclosed is confidential.82
Some information need not be disclosed by the employer. This includes infor-
mation that:
l is legally privileged;83
l the employer is by law or order of court not allowed to disclose;
l is confidential and, if disclosed, may cause substantial harm to an employee
or the employer; or
l is private personal information relating to an employee, unless that employee
consents to the disclosure of that information.
If there is a dispute concerning the disclosure of information, the dispute must
be referred to the CCMA for conciliation and if that proves to be unsuccessful,
any party may request that it be resolved through arbitration.84 The commissioner
must first decide whether the information is relevant.85 If it is found to be rele-
vant, and if it is confidential information or private personal information relating
to an employee, the commissioner must balance the harm that the disclosure is
likely to cause against harm caused by non-disclosure.
A dispute concerning the alleged breach of confidentiality in respect of infor-
mation disclosed is similarly referred to the CCMA. If the commissioner finds that
such a breach has occurred, he or she may order the withdrawal of the right to
disclosure of information in that workplace for a specified period.

________________________

82 S 16(4) of the LRA.

83 See Barker and Holtzhausen (fn 38) at 85 in respect of what information is legally privileged:
‘A confidential communication between a legal practitioner and his or her client which
may not be disclosed in a court of law unless the person possessing the privilege waives it’.
84 S 16(8)–(9) of the LRA.
85 See s 16(10)–(14) of the LRA. The matter of NUMSA obo members v Behr Climate & Control
[2004] 3 BALR 364 (CCMA) illustrates this general requirement. The commissioner had to
decide whether the employer should have disclosed, for purposes of collective bargaining,
information relating to income differentials, incomes of salaried employees and audited
statements. The employer was prepared to disclose some information relating to income
differentials. The employer was not willing, however, to disclose other categories of infor-
mation sought by the union. The commissioner held that first it had to be determined
whether the information sought is relevant, and that the onus to prove this rests with the
union. The commissioner decided that the union failed to discharge this burden. The com-
missioner held that the financial statements would only become relevant if the employer
were to use its financial position, and specifically financial constraints, to motivate its bar-
gaining position. The information relating to the incomes of salaried employees was rele-
vant regarding benchmarking and income differentials, for the purpose of reducing the
wage gap. The commissioner decided that this purpose was sufficiently served by the in-
come differential statements. Consequently, the employer did not have to disclose the in-
formation sought.
Freedom of association and the right to organise 413

7 Disputes concerning the exercise of organisational rights86

and other disputes87
A registered union wishing to exercise any of the organisational rights must notify
an employer in writing of its intention and must include the following:
l a copy of its certificate of registration;
l a submission that it is representative and why it should be considered so;
l the workplace in which it wishes to exercise rights; and
l a description of the rights it wishes to exercise as well as the manner in which
it wishes to exercise them.88
The employer must meet with the union within 30 days in an endeavour to con-
clude a collective agreement in this regard. If a collective agreement is not
concluded, the dispute may be referred to the CCMA.89 The only requirement in
section 21 that could realistically be the subject of disagreement (as it is discre-
tionary) is whether or not the union is sufficiently representative. In that event,
the commissioner must consider the factors already discussed earlier.90
In any other dispute about the interpretation or application of any provision of
the Act relating to organisational rights the dispute must be referred to the
CCMA for conciliation. In the event of unsuccessful conciliation the dispute may
be referred to arbitration.91 In terms of an amendment to section 22 effected by
the 2014 Amendment Act, an arbitrator may extend any arbitration award to
clients of a temporary employment service for whom any employee covered
by the award is assigned to work, and to any person other than the employer
who controls access to the workplace to which the award applies if that person
was provided with an opportunity to participate in the arbitration proceedings.92

________________________

86 S 21 of the LRA. In Netherburn Engineering CC t/a Netherburn Ceramics v Mudau NO &

others [2009] 4 BLLR 299 (LAC) Musi JA (in a concurring judgment but with additional
reasons) held that ‘treating unfair dismissal disputes differently from disputes involving or-
ganisational rights and the like is perfectly legitimate as it amounts to applying different
methods to resolving different categories of dispute’ (at para 40). Regarding a right to
legal representation the court stated that in disputes involving organisational rights the dis-
putes are ‘inherently more technical and legalistic and will most often require the consider-
ation and interpretation of contracts and/or statutes’ (at para 40). This is not necessarily
the case in dismissals based on conduct.
87 S 22 of the LRA.
88 S 21(1)–(2) of the LRA.
89 In terms of s 65(2) a trade union may, rather than refer the dispute to arbitration, elect to
embark on a protected strike after unsuccessful conciliation. The Act does, however, pro-
vide that once notice of a strike has been given in terms of s 64(1), the union cannot refer
the dispute to arbitration for a period of 12 months (s 65(2)(b)).
90 S 21(8). See para 5.1 ‘“Sufficiently representative” unions’.
91 A dispute that deals with a dismissal for participating in a strike related to organisational
rights must be referred to the Labour Court (ss 67(5) and 191(5)(b) of the LRA).
92 See s 22(5).
414 Law@work

The withdrawal of organisational rights is also regulated by section 21 of the

LRA. Section 21(11) stipulates that an employer who alleges that a trade union is
no longer a representative trade union may apply to the CCMA to withdraw
any of the organisational rights previously conferred on the union.93
In Edgars Consolidated Stores Ltd v FEDCRAW 94 the Labour Appeal Court
overturned the decision of the Labour Court that an employer always has to
apply to the CCMA for the withdrawal of any of the statutory organisational
rights. The court distinguished between organisational rights regulated by col-
lective agreement and those regulated by an arbitration award. In the former
case, according to the court, section 23(4) of the LRA is applicable. The section
provides that ‘[u]nless a collective agreement provides otherwise, any party to
a collective agreement that is concluded for an indefinite period may termin-
ate the agreement by giving reasonable notice in writing to the other party’.
When the organisational rights were acquired on the basis of an arbitration
award, however, section 21(11) of the LRA is applicable, which requires an appli-
cation to the CCMA. The effect of this judgment is that a collective agreement
may stipulate the circumstances under which organisational rights may be
withdrawn.95

________________________

93 S 21(3) and (7) of the LRA. In OCGAWU obo Member and KLK Landbou BPK (2009) 30 ILJ
2538 (CCMA) the employer notified the union in writing that it intended withdrawing its
organisational rights as the union was no longer representative. Subsequent to the union’s
failure to respond to the employer’s notification the employer withdrew the union’s organ-
isational rights. The union filed a dispute with the CCMA arguing that, inter alia, the em-
ployer violated s 21(11) of the LRA when it withdrew the organisational rights. The CCMA
disagreed and held that the applicant committed a grave error by not responding to the
employer’s notification.
94 [2004] 7 BLLR 649 (LAC).
95 Eg, by giving reasonable notice in writing. Even so, an employer should refrain from uni-
laterally withdrawing organisational rights from one union but not others, where the unions
are equally situated: see SAPTU obo members v Mbete [2003] 10 BALR 1182 (CCMA).
15
Collective bargaining and
worker participation

Page
1 Introduction ...................................................................................................... 417
2 Bargaining parties – trade unions, employers and employers’
organisations .................................................................................................... 421
2.1 Introduction ............................................................................................... 421
2.2 Registration ................................................................................................ 421
2.3 Requirements for registration of trade unions or employers’
organisations ............................................................................................. 422
2.4 The constitution of a trade union or employers’ organisation ............ 422
2.5 Registration of trade unions and employers’ organisations ................ 423
2.6 Effect of registration of a trade union or employers’ organisation ..... 424
2.7 Refusal of membership of a trade union or expulsion of an
employee as a member of a trade union ............................................. 425
2.8 Ballots about strikes or lock-outs ............................................................. 425
3 Bargaining councils ......................................................................................... 426
3.1 Introduction ............................................................................................... 426
3.2 Establishment of a bargaining council .................................................. 427
3.2.1 Parties to a bargaining council .................................................... 427
3.2.2 Registration procedure .................................................................. 427
3.2.3 The constitution of a bargaining council ..................................... 428
3.3 Powers and functions ............................................................................... 429
3.3.1 The regulatory function.................................................................. 429
3.3.2 The dispute-settling function ......................................................... 429
3.4 Bargaining councils in the public service .............................................. 430
3.4.1 Introduction ..................................................................................... 430
3.4.2 Bargaining councils in sectors of the public service .................. 430
3.4.3 Dispute resolution functions of bargaining councils in the
public service .................................................................................. 431

415
416 Law@work

Page
4 Statutory councils ............................................................................................ 431
4.1 Introduction ............................................................................................... 431
4.2 Powers and functions of statutory councils ........................................... 431
5 Collective agreements ................................................................................... 432
5.1 Introduction ............................................................................................... 432
5.2 The binding effect of collective agreements........................................ 432
5.3 Collective agreements concluded in bargaining councils................. 435
5.3.1 The binding effect of collective agreements ............................. 435
5.3.2 Extension of collective agreements concluded in a
bargaining council ......................................................................... 436
5.4 Disputes about collective agreements .................................................. 438
6 Worker participation: workplace forums....................................................... 439
6.1 Introduction ............................................................................................... 439
6.2 Establishing a workplace forum .............................................................. 440
6.3 General functions of a workplace forum .............................................. 442
6.4 Meetings of a workplace forum ............................................................. 442
7 Consultation with a workplace forum ........................................................... 442
7.1 Process of consultation ............................................................................ 443
7.2 Joint decision-making powers of the workplace forum ....................... 444
7.3 Disclosure of information.......................................................................... 444
7.4 Full-time members of the workplace forum........................................... 445
7.5 Disputes about workplace forums .......................................................... 445
Collective bargaining and worker participation 417

1 Introduction
One of the main purposes of the LRA is to promote orderly collective bargaining
at sectoral level.1 However, the Act does not have much to say about the
nature of collective bargaining, how bargaining should take place, between
whom, and on what topics. This can be explained by the voluntarist nature of
the statute (as discussed below) leaving the LRA to establish what it terms a
‘framework’ within which its promotional goal might be met.
Collective bargaining has been described as:
a process in which workers and employers make claims upon each other and
resolve them through a process of negotiation leading to collective agreements
that are mutually beneficial. In the process, different interests are reconciled. For
workers, joining together allows them to have a more balanced relationship with
their employer. It also provides a mechanism for negotiating a fair share of the
results of their work, with due respect for the financial position of the enterprise or
public service in which they are employed. For employers, free association en-
ables firms to ensure that competition is constructive, fair and based on a collab-
orative effort to raise productivity and conditions of work.2
Collective bargaining has also been referred to as a ‘constantly mutating insti-
tution’.3 By this is meant that collective bargaining, as a social institution, is neces-
sarily responsive to economic demands and circumstances, and that the nature
and extent of legal intervention to regulate collective bargaining will always
reflect particular interests.4
While doubts have been expressed about the continued importance and in-
fluence of collective bargaining and its supporting role for labour law as a dis-
cipline,5 it remains a vibrant institution in South African law and practice. One of
the expressly stated purposes of the LRA is to promote collective bargaining and
to provide a framework within which employers, employers’ organisations, trade
unions and employees can bargain collectively to determine wages, terms and
conditions of employment, other matters of mutual interest and to formulate
industrial policy.6 But the Act does not compel collective bargaining, with the

________________________

1 S 1(d)(i)–(ii) of the LRA.

2 ILO ‘Organizing for social justice – Global Report under the Follow-up to the ILO Declar-
ation on Fundamental Principles and Rights at Work’ (2004). See also Davies and Freed-
land Kahn-Freund’s Labour and the Law (1983) at 69, where the purposes of collective
bargaining are summarised: ‘by bargaining collectively with organised labour, manage-
ment seeks to give effect to its legitimate expectation that the planning of production,
distribution, etc, should not be frustrated through interruptions of work. By bargaining col-
lectively with management, organised labour seeks to give effect to its legitimate expec-
tations that wages and other conditions of work should be such as to guarantee a stable
and adequate form of existence and as to be compatible with the physical integrity and
moral dignity of the individual, and also that jobs should be reasonably secure'.
3 Brown and Oxenbridge ‘Trade Unions and Collective Bargaining’ in Barnard, Deakin and
Morris The Future of Labour Law Liber Amicorum Sir Bob Hepple QC (2004) at 63.
4 See ch 1 for different perspectives on the role of labour law.
5 See also Du Toit ‘What is the Future of Collective Bargaining (and Labour Law) in South
Africa?’ (2007) 28 ILJ 1405.
6 Preamble to and s 1 of the LRA.
418 Law@work

result that the courts have no role in determining, for example, whether an em-
ployer should bargain collectively with a trade union, what they should bargain
about, at which level they should bargain (at the enterprise or at sector level in
a bargaining council) or how parties to a negotiation should conduct them-
selves.7 The Supreme Court of Appeal has said that ‘The LRA emphasises the
virtues of collective bargaining but nowhere suggests that the process should
be other than voluntary’.8
In order to understand the significance of this statement and the nature and
extent of its variance with the jurisprudence that applied prior to 1995, it is neces-
sary to recall briefly the evolution of what was termed the ‘duty to bargain’
during the 1980s. In 1979, the Wiehahn package of reforms had left the newly
established Industrial Court to give content to the concept of the unfair labour
practice. Relying principally on American law, the court constructed a duty to
bargain and required employers, under defined circumstances, to recognise
and bargain with representative trade unions. The court did so by deciding that
a refusal to bargain in certain circumstances amounted to an unfair labour
practice. The duty to bargain was never absolute – the courts took various fac-
tors into account (including the interests of the employer, non-union employees
and efficient management) to determine whether an employer’s refusal to bar-
gain was unfair.9
The drafters of the LRA adopted a different view, and deliberately excluded
any mention of a duty to bargain from the definition of ‘unfair labour practice’
in the new statute. This exclusion, and the reasons for it, is recorded in the Ex-
planatory Memorandum to the Labour Relations Bill. The Memorandum notes
that:
A notable feature of the draft Bill is the absence of a statutory duty to bargain. In
its deliberations on a revised system of collective bargaining, the Task Team gave
consideration to three competing models. The first is a system of statutory compul-
sion, in which a duty to bargain is underpinned by a statutory determination of the
levels at which bargaining should take place and the issues over which parties are
compelled to bargain. The second model is not dissimilar though more flexible. It
relies on intervention by the judiciary to determine appropriate levels of bargaining
and bargaining topics. The third model, unanimously adopted by the Task Team, is
one that allows the parties, through the exercise of power, to determine their own

________________________

7 Collective bargaining must not be confused with consultation – see Metal & Allied Workers
Union v Hart Ltd (1985) 6 ILJ 478 (IC) at 493H–I: ‘However, there is a distinct and substantial
difference between consultation and bargaining. To consult means to take counsel or seek
information or advice from someone and does not imply any kind of agreement, whereas
to bargain means to haggle or wrangle so as to arrive at some agreement on terms of
give and take. The term negotiate is akin to bargaining and means to confer with a view
to compromise and agreement'.
8 SANDU v Minister of Defence & others; Minister of Defence & others v SA National Defence
Union & others [2006] 11 BLLR 1043 (SCA) (SANDU). ‘Voluntarist’ means that the courts have
no role to determine the outcome of what are loosely described as ‘disputes of interest’,
they also have no role in enforcing any process in terms of which bargaining parties might
seek to agree their own outcome. See Davis ‘Voluntarism and South African Labour Law –
are the Queensberry Rules an Anachronism?’ (1990) Acta Juridica 45.
9 Mutual and Federal Insurance Co Ltd v BIFAWU [1996] 4 BLLR 403 (A).
Collective bargaining and worker participation 419

arrangements. The exercise of power, or indeed persuasion, is given statutory im-

petus by the draft Bill’s provision for organisational rights and a protected right to
strike.10
The trade-off is immediately apparent – a voluntarist system of collective bar-
gaining, underpinned by a strong set of organisational rights extended to regis-
tered trade unions, coupled with a right to strike over recognition and bargaining
demands.11
The task team’s choice of model did not find universal favour. First, there were
those who argued that to leave recognition and bargaining to the exercise of
economic power would contribute to industrial unrest. Secondly, the major union
federations persisted in demands for compulsory bargaining at sectoral level.
The final text of the LRA reflects the compromises that were made. First, before
a union may call a strike in support of a dispute that concerns a refusal to bar-
gain, the dispute must be referred to advisory arbitration, before a strike notice
is issued. The idea here is that employers reluctant to recognise or bargain with
a union might be gently persuaded to abandon their obstinacy before a resort
to naked power.12 Secondly, and in response to the demands for centralised
bargaining, Part E of Chapter III of the LRA makes provision for the establishment
of statutory councils, sectoral bodies that may be established in sectors in re-
spect of which no bargaining council is registered, but which have a brief falling
short of collective bargaining.13 Despite these compromises, the fundamentals
of the model adopted by the task team remained intact, and collective bar-
gaining remains voluntary.
Is the framework that the LRA creates sufficient to meet the constitutional
promise of a right ‘to engage in collective bargaining’?14 In the trilogy of cases
concerning bargaining rights in the South African National Defence Force,15 the
Supreme Court of Appeal noted that the phrase ‘the right to engage in collect-
ive bargaining’ was open to at least three possible interpretations:
It may mean that the contemplated national legislation to regulate collective bar-
gaining must provide for an employer or a union called upon to bargain to com-
ply with the demand on pain of being ordered to do so. On the other hand it may
________________________

10 Explanatory Memorandum prepared by the Ministerial Task Team, published in (1995) 16

ILJ 278 at 292. Commentators at the time pointed out that underlying the draft Bill’s
approach is an assumption that a statutory duty to bargain favours enterprise level bar-
gaining at the expense of orderly industry-level bargaining. The absence of a duty to bar-
gain, on this approach, would favour larger trade unions organised on a sectoral basis (see
Benjamin and Cooper ‘Innovation and Continuity: Responding to the Labour Relations Bill’
(1995) 16 ILJ 258). From an employer perspective, it might be argued that judges are not
the best-qualified persons to make decisions that are better reflected by the relative eco-
nomic power of the parties. There are those employers, of course, who would argue that
collective bargaining has outlived its usefulness and that conditions of employment are
best determined by individual contract. See ch 1, in particular the discussion on the liber-
tarian perspective on labour law.
11 Organisational rights are discussed in ch 14. The right to strike is discussed in ch 16.
12 See s 64(2) of the LRA.
13 See para 4.2 ‘Powers and functions of statutory councils’.
14 See s 23(5) of the Constitution and the discussion in ch 3.
15 These cases are more extensively discussed in ch 3.
420 Law@work

mean that the envisaged national legislation must provide the framework within
which employer, employers’ organisations and employees may bargain, or it may
mean no more than that no legislative or other governmental act may effectively
prohibit collective bargaining.16
In determining the nature and extent of the constitutional right, the court drew
heavily on international standards and in particular, ILO Convention 98 and the
interpretation of the convention by the ILO’s supervisory bodies. Convention 98
requires that measures be taken to encourage and promote the full develop-
ment and utilisation of machinery for voluntary negotiation between employers
or employers’ organisations and workers’ organisations.17 From these standards,
the court discerned a distinct preference for a system that does not rely on a
legally enforceable right to bargain. The court concluded: ‘the Constitution,
while recognising and protecting the central role of collective bargaining in our
labour dispensation, does not impose on employers or employees a judicially
enforceable duty to bargain’.18
In an appeal to the Constitutional Court, that court expressly refrained from
making any ruling on the point.19 However, it was acknowledged that a justi-
ciable duty to bargain would have profound consequences:
[I]t should be noted that were s 23(5) to establish a justiciable duty to bargain, en-
forceable by either employers or unions outside of a legislative framework to regu-
late that duty, courts may be drawn into a range of controversial industrial relations
issues. These issues would include questions relating to the level at which bargain-
ing should take place (ie the level of the workplace, at the level of an enterprise,
or at industrial level); the level of union membership required to give rise to that
duty; the topics of bargaining and the manner of bargaining. These are difficult
issues, which have been regulated in different ways in the recent past in South
Africa . . .20
For the present at least, the LRA remains facilitative rather than prescriptive,21
while unequivocally promoting collective bargaining as the primary mechanism
to establish terms and conditions of employment and avoid industrial conflict.
The Constitutional Court accepts that the Constitution contemplates that col-
lective bargaining between employers and workers is key to a fair industrial
relations environment.22 The importance of the right to strike, in this context, is
also stressed by the court.23

________________________

16 SANDU (fn 8) at 1046H–I.

17 Art 4 of the Convention.
18 SANDU (fn 8) at 1055C.
19 SA National Defence Union v Minister of Defence & others [2007] 9 BLLR 785 (CC).
20 At para 55.
21 This phrase is borrowed from Cameron, Cheadle and Thompson The New Labour Relations
Act (1989) at 7.
22 NUMSA & others v Bader Bop (Pty) Ltd & another [2003] 2 BLLR 103 (CC) at 111. See also
Fourie ‘Voice, Representation and Women Workers in the Informal Economy’ (2019) 40 ILJ
1400.
23 Ibid at para 13: ‘The right to strike is an important component of a successful collective
bargaining system’.
Collective bargaining and worker participation 421

2 Bargaining parties – trade unions, employers and

employers’ organisations

2.1 Introduction
Chapter VI of the LRA regulates trade unions and employer organisations. A
‘trade union’ is defined in section 213 of the LRA to mean ‘an association of em-
ployees whose principal purpose is to regulate relations between employees
and employers, including any employers’ organisations’.24 An ‘employers’ organ-
isation’ is defined in the same section to mean ‘any number of employers asso-
ciated together for the purpose, whether by itself or with other purposes, of
regulating relations between employers and employees or trade unions’.
The purpose of regulating trade unions and employer organisations is not to
interfere with their right to formulate and conduct their own programmes (this
would be a breach of the right to freedom of association) rather than to pro-
tect the interests of third parties.25

2.2 Registration
The system of registration of trade unions and employers’ organisations under
the 1956 LRA was lengthy and bureaucratic. The registrar had wide discretion-
ary powers and could prohibit the registration of a new trade union if another
union, already registered for the same interests, was considered to be sufficiently
representative. The ILO’s Fact-finding and Conciliation Commission found that
this ‘knock-out’ provision contravened ILO standards, and it was abolished when
the LRA was drafted.
The LRA establishes a simple registration procedure. The process of registration
is similar to that which applies to close corporations and companies. The regis-
trar no longer has a wide discretion to refuse registration,26 and the process is
directed primarily to ensure democratic practices, financial accountability, in-
dependence and non-discrimination within employers’ organisations and trade
unions.27

________________________

24 In SAMWU v Jada & others (2003) 22 ILJ 1344 (W) the court held that unions have a par-
ticular type of duty of care towards their members. This is the case as union members are
not members in the same sense as shareholders of a company are members of a com-
pany. Eg, union members do not hold any financial stake in the union; rather, they have a
collective interest pursued through the institution of the union.
25 The LRA also regulates federations of trade unions and employers’ organisations – see s 107.
26 In WUSA v Crouse NO & another [2005] 11 BLLR 1156 (LC) the court held that the registrar
was not entitled to consider issues outside the provisions of the Act – eg that the new
union was established for personal gain and that the members formed the union as a
result of dissatisfaction with an existing union.
27 At para 11 of the Explanatory Memorandum to the Labour Relations Bill (fn 10).
422 Law@work

2.3 Requirements for registration of trade unions or employers’

organisations
Any trade union may apply to the registrar for registration if it complies with the
following requirements:
l its name or a shortened form of the name does not so closely resemble the
name or shortened form of the name of another trade union that it is likely to
mislead or cause confusion;
l it has adopted a constitution that meets the requirements of section 95(5)
and (6);
l it has an address in the Republic; and
l it is independent. A trade union is regarded as independent if:
• it is not under the direct or indirect control of any employer or employers’
organisation; and
• it is free of any interference or influence of any kind from any employer or
employers’ organisation.28
The requirements for registration of employers’ organisations are similar, except
that there is no requirement of independence.
The amendments to the LRA introduced in 2002 require the registrar to be
satisfied that a trade union or employer organisation applying for registration is
genuine. This additional requirement was introduced after an increase in the
number of trade unions and employers’ organisations seeking registration pri-
marily to secure rights of representation before the CCMA and labour courts.29
Guidelines have been published by the minister, in consultation with NEDLAC,30
to provide indicators of ‘genuineness’. The criteria established by the guidelines
include, in the case of a trade union, the circumstances in which the union was
formed, qualifications for membership, the activities of the union, (for example,
the submission and negotiation of demands on behalf of members), independ-
ence from employers, whether the organisation is an association not for gain,
financial arrangements with regard to litigation and federation affiliations. No
single factor is conclusive, and the registrar is required to take into account a
conspectus of all relevant factors. Similar criteria apply, with the necessary
changes, to employers’ organisations that apply for registration.

2.4 The constitution of a trade union or employers’ organisation31

The constitution of any trade union or employers’ organisation that intends to
register must, amongst other things,
l state that the trade union or employers’ organisation is an association not
for gain;32
________________________

28 See s 95(1) and (2) of the LRA.

29 Officials of registered trade unions and employers’ organisations have the right to rep-
resent members before the CCMA and labour courts.
30 See s 95(7) and (8) of the LRA and GNR 942 in GG 23611, dated 25 July 2002.
31 See s 95(5) and (6) of the LRA.
32 See Vidar Rubber Products (Pty) Ltd v CCMA & others (1998) 19 ILJ 1275 (LC).
Collective bargaining and worker participation 423

l prescribe qualifications for, and admission to, membership;

l establish the circumstances in which a member will no longer be entitled to
the benefits of membership;
l provide for the termination of membership;
l provide for appeals against loss of the benefits of membership or against ter-
mination of membership, prescribe a procedure for those appeals and deter-
mine the body to which those appeals may be made;
l prescribe a procedure for nominating or electing office-bearers and, in the
case of a trade union, trade union representatives;
l prescribe a procedure for appointing, or nominating and electing officials;
l establish the circumstances and manner in which office-bearers, officials
and, in the case of a trade union, trade union representatives may be
removed from office;
l establish the circumstances in which a ballot must be conducted;
l provide that the trade union or employers’ organisation, before calling a
strike or lock-out, must conduct a ballot of those of its members in respect of
whom it intends to call the strike or lock-out; and
l provide that members of the trade union or employers’ organisation may not
be disciplined or have their membership terminated for failure or refusal to
participate in a strike or lock-out if:
• no ballot was held about the strike or lock-out; or
• a ballot was held but a majority of the members who voted did not vote
in favour of the strike or lock-out.
The constitution of a trade union or employers’ organisation that intends to regis-
ter may not include any provision that discriminates directly or indirectly against
any person on the grounds of race or sex.33

2.5 Registration of trade unions and employers’ organisations 34

Any trade union or employers’ organisation may apply for registration to the
registrar by submitting:
l a prescribed form that has been properly completed;
l a copy of its constitution; and
l any other information that may assist the registrar in determining whether or
not the trade union or employers’ organisation meets the requirements for
registration.35
If the registrar is satisfied that the requirements for registration have been met,
the registrar must register the applicant by entering the applicant’s name in the
appropriate register. After registering a trade union or employers’ organisation,
the registrar must issue a certificate of registration in the applicant’s name, and

________________________

33 S 95(6) of the LRA.

34 S 96(1) of the LRA.
35 Ibid.
424 Law@work

send the certificate and a certified copy of the registered constitution to the
applicant.36
Section 106(2A) entitles the registrar to cancel the registration of a trade
union or employers’ organisation if the registrar is satisfied that the union or em-
ployers’ organisation is no longer a genuine union or employers’ organisation,
after following the procedure set out in section 106(2B). The effect of cancel-
lation is to deprive the organisation concerned of the rights that accrue on
registration.37

2.6 Effect of registration of a trade union or employers’

organisation
Section 97(1) of the LRA provides that a certificate of registration is sufficient
proof that a registered trade union or registered employers’ organisation is a
body corporate. By reason of its status as a body corporate, a trade union or
employers’ organisation may, amongst other things,
l sue or be sued in its own name;
l acquire property and dispose of property; and
l conclude agreements.
The fact that a person is a member of a registered trade union or a registered
employers’ organisation does not make that person liable for any of the obli-
gations or liabilities of the trade union or employers’ organisation.38 The LRA pro-
vides that a member, office-bearer or official of a registered trade union or a
registered employers’ organisation or, in the case of a trade union, a trade union
representative, is not personally liable for any loss suffered by any person as a
result of an act performed or omitted in good faith by the member, office-
bearer, official or trade union representative while performing their functions for
or on behalf of the trade union or employers’ organisation.39
A registered union becomes entitled to:
l conclude collective agreements as defined in section 213 of the LRA;
l participate in the establishment of a bargaining and statutory council and
the right to become parties to such a council;
l participate in the establishment of a workplace forum;40
l represent members in dispute resolution proceedings under the LRA; and
l qualify for statutory organisational rights.41

________________________

36 S 96(7) of the LRA.

37 See generally National Entitled Workers Union v Ministry of Labour & others (2010) 31 ILJ 574
(LAC). For an overview on the powers and duties of the registrar when publishing a notice
in terms of s 106(2B), see United People’s Union of SA v Registrar of Labour Relations (2010)
31 ILJ 198 (LC).
38 S 97(2) of the LRA.
39 S 97(3) of the LRA.
40 Where the union is a majority union.
41 Provided the union is ‘representative’.
Collective bargaining and worker participation 425

2.7 Refusal of membership of a trade union or expulsion of

an employee as a member of a trade union
The constitution of a trade union must make provision for the termination of
membership and must establish the circumstances in which a member will no
longer be entitled to the benefits of membership.42 If the trade union is a party
to a closed shop agreement it may only refuse an employee membership or
expel an employee from the trade union if:
l the refusal or expulsion is in accordance with the trade union’s constitution;
and
l the reason for the refusal or expulsion is fair, including, but not limited to con-
duct that undermines the trade union’s collective exercise of its rights.43
It is not unfair for an employer to dismiss an employee:
l for refusing to join a trade union party to a closed shop agreement;
l who is refused membership of a trade union party to a closed shop agree-
ment, if the refusal is in accordance with the provisions of section 26(5); or
l who is expelled from a trade union party to a closed shop agreement, if the
expulsion is in accordance with the provisions of section 26(5).44
Despite these provisions, the Act provides that employees, at the time when a
closed shop agreement takes effect, may not be dismissed for refusing to join a
trade union party to the agreement. In other words, when a closed shop agree-
ment first comes into existence, employees may refuse to join the trade union
party to the agreement without being liable to dismissal. Employees may not be
dismissed for refusing to join a trade union party to the agreement on grounds
of conscientious objection.45
If the Labour Court decides that the dismissal is unfair because the expulsion
was unfair, the provisions of Chapter VIII of the LRA apply, except that any order
of compensation must be made against the union.46

2.8 Ballots about strikes or lock-outs

There is no requirement for a secret ballot prior to a strike or lock-out. The effect
of the provisions of section 95(5)(p) is that a trade union or employers’ organ-
isation, before calling a strike or lock-out, must conduct a ballot of those of its
members in respect of whom it intends to call the strike or lock-out. However,
section 67(7) of the LRA provides that the failure of a registered trade union or a
registered employers’ organisation to comply with the provision in its constitution
requiring it to conduct a ballot of those of its members in respect of whom it
intends to call a strike or lock-out, may not give rise to or constitute a ground for
any litigation that will affect the legality of the strike or lock-out.

________________________

42 S 95(5)(c) and (d).

43 S 26(5) of the LRA.
44 S 26(6) of the LRA.
45 S 26(7)(b) of the LRA. See ch 14.
46 S 26(9) of the LRA.
426 Law@work

Members of the trade union or employers’ organisation may not be disciplined

or have their membership terminated if they fail or refuse to participate in any
strike or lock-out if:
l no ballot was held about the strike or lock-out; or
l a ballot was held but a majority of the members who voted did not vote in
favour of the strike or lock-out.47

3 Bargaining councils
3.1 Introduction
As noted above, one of the purposes of the LRA is to promote collective bar-
gaining ‘at sectoral level’. The primary vehicle to achieve this purpose is the
bargaining council.48 Bargaining councils are voluntary bodies, established by
registered trade unions and registered employers’ organisations that have
achieved a threshold of representivity in a defined sector. The main function of
a bargaining council is to serve as a forum for the negotiation of terms and con-
ditions of employment of the members of the union parties to the council, and
sometimes, for all employees engaged in the sector.
The concept of an industry bargaining forum is not new. In fact, bargaining
councils (called ‘industrial councils’ under the 1956 LRA) were first established by
the Industrial Conciliation Act 11 of 1924, as a means to regulate conditions of
employment and maintain labour peace within an industry. Despite the change
in name (the term ‘bargaining council’ was introduced by the LRA), the primary
functions of councils have changed little, and if anything, have been marginally
expanded by the Act.
Bargaining councils are controversial institutions. Recall the ‘deregulationist’
perspective discussed in chapter 1, and the arguments in favour of the nego-
tiation of individual contracts rather than collective agreements. Even where a
degree of collectivism is conceded, there are those who contend that com-
petitiveness and flexibility interests are better served by collective bargaining at
enterprise (or plant) level. The argument is well captured in the following pass-
age from a document prepared by the ILO:
One of the criticisms of centralized bargaining is that it unnecessarily introduces
rigidities and bureaucratisation to the industrial relations scenario, despite its pro-
visions for exemptions. The argument is that such rigidities in the bargaining system
can harm the competitiveness of South Africa industries on global markets . . .
Many of these sentiments were echoed in the debate about the appropriateness
of labour legislation for the South African labour market. One argument was that
there was insufficient labour market flexibility to link pay increases to increased
productivity . . . [T]he ANC government has not been immune to pressures to
review certain aspects of the legislative framework which have inhibited eco-
nomic growth and job creation. These pressures generally stem from the forces of

________________________

47 S 95(5)(q) of the LRA.

48 See Godfrey, Maree and Theron ‘Regulating the Labour Market: The Role of Bargaining
Councils’ (2006) 27 ILJ 731.
Collective bargaining and worker participation 427

globalization and the quest to secure greater flexibility in the regulation of markets
and governance of the actions of agents that are active in those markets.49
Even more controversial are the provisions of the LRA that permit the extension
of collective agreements concluded in bargaining councils to non-parties to
the agreement. These are discussed below.

3.2 Establishment of a bargaining council

3.2.1 Parties to a bargaining council
One or more registered trade unions and one or more registered employers’
organisations may establish a bargaining council for a sector and area by fol-
lowing certain prescribed procedures.50 A bargaining council may be estab-
lished for more than one sector.51 Section 27(2) provides that the state may be a
party to any bargaining council if it is an employer in the sector and area in
respect of which the bargaining council is established.

3.2.2 Registration procedure

The parties may apply for registration of a bargaining council to the registrar, by
submitting to the registrar:
l the prescribed form that has been properly completed;
l a copy of its constitution; and
l any other documentation that may assist the registrar to determine whether
or not the bargaining council meets the requirements for registration (for
example, information about the sector and area for which the parties wish
to register the council).52
The registrar is empowered to call for information in support of the application.
That information relates to the requirements for registration. The registrar must as
soon as practicable after receiving the application, publish a notice containing
the material particulars of the application in the Government Gazette. The
notice must advise the general public that they may object to the application.
Objections against the registration of a bargaining council may be based on
the following grounds only:
l that the applicant has not complied with the provisions of section 29;
l that the sector and area in respect of which the application is made is not
appropriate; and
l that the applicant (the parties) are not sufficiently representative in the sec-
tor and area in respect of which the application is made.

________________________

49 Du Toit (fn 5), quoting Bhorat, Lundall & Rospabe ‘The South African Labour Market in a
Globalizing World: Economic and Legislative Considerations’ ILO Employment Paper 2002,
accessed at www.ilo.org/publish/english/employment/strat/download/ep32.pdf. Although
the article was written some years ago, the issues that it raises remain unresolved.
50 Ss 27 and 29 of the LRA.
51 S 27(4) of the LRA.
52 S 29(1) of the LRA.
428 Law@work

The applicant may respond to an objection within 14 days from the time that it
has been served on the applicant. The registrar must send the application and
any objections, responses and further information to NEDLAC to consider. NED-
LAC is required within 90 days to consider the appropriateness of the sector and
area. It must further demarcate the appropriate sector and area in respect of
which the bargaining council must be registered and it is required to report to
the registrar accordingly. If NEDLAC fails to agree for any reason on the demar-
cation for purposes of registration, the Minister of Labour must demarcate the
appropriate sector and area and must advise the registrar accordingly.
If the registrar is satisfied that the applicant meets all of the statutory require-
ments, the registrar must register the bargaining council. The registrar’s discretion
to register or to refuse registration, as can be seen from the above provisions, is
very limited.53

3.2.3 The constitution of a bargaining council54

The constitution of a bargaining council must provide for the following:
l the appointment of representatives of the parties to the council, of whom
half must be appointed by the trade union parties to the council and the
other half by the employers’ organisation parties to the council, and the
appointment of the alternates to the representatives;
l the representation of small and medium enterprises;
l the manner in which decisions are to be made;
l the quorum required for meetings;
l the determination through arbitration of any dispute arising between the
parties to the bargaining council about the interpretation or application of
the council’s constitution;
l the procedure to be followed if a dispute arises between the parties to the
bargaining council;
l the procedure to be followed if a dispute arises between the registered trade
union that is a party to the bargaining council or its members, or both, on
the one hand, and the employers who belong to a registered employers’
organisation that is a party to the bargaining council on the other hand;
l the procedure for exemption from collective agreements; and
l the admission of additional registered trade unions and registered employers’
organisations as parties to the council, subject to the provisions of the Act.55
________________________

53 For the procedure if the applicant does not meet the requirements of registration: see
s 29(12)–(14) of the LRA.
54 S 30 of the LRA.
55 See Public Servants Association of SA v Safety & Security Sectoral Bargaining Council &
others (2007) 28 ILJ 1300 (LC) regarding a bargaining council’s right to refuse to admit a
minority trade union as a party on the basis that it did not meet the membership threshold
for admission as earlier agreed by the council. The court restated the factors to be con-
sidered when considering such application, including whether the union was likely to influ-
ence decision-making within the council and the representativeness of the council without
that applicant as member.
Collective bargaining and worker participation 429

3.3 Powers and functions 56

The primary powers and functions of a bargaining council are to:
l conclude and enforce collective agreements;
l prevent and resolve disputes;
l establish and administer a fund to be used for resolving disputes;
l promote and establish training and education schemes;
l establish and administer pension, provident, medical aid, sick pay, holiday,
unemployment and training schemes or funds or any similar schemes or
funds for the benefit of one or more of the parties to the bargaining council
or their members; and
l develop proposals for submission to NEDLAC or any other appropriate forum
on policy and legislation that may affect the sector and area.57

3.3.1 The regulatory function

Bargaining councils act to maintain labour peace in the sector for which they
are registered.58 This function is fulfilled through the negotiation, supervision and
enforcement of collective agreements. Collective agreements may regulate a
vast number of matters, for example wages, other conditions of employment,
dispute procedures and retrenchment procedures.

3.3.2 The dispute-settling function59

3.3.2.1 Disputes which a council may resolve or conciliate
The LRA distinguishes between two types of dispute – those disputes concerning
‘matters of mutual interest’ and disputes which relate to matters other than
matters of mutual interest. A bargaining council’s capacity to perform its dispute-
settling functions in respect of a dispute depends on the following factors:
l whether the dispute is one between parties who are subject to the council’s
jurisdiction as far as it concerns the area and sector for which the council
has been registered;60

________________________

56 See s 28 of the LRA.

57 See s 28 of the LRA.
58 See s 28(1)(c) of the LRA.
59 See ch 17.
60 In Fredericks v MECS Africa Project Support (2005) 26 ILJ 2484 (BCA), the jurisdiction of a
bargaining council to hear an unfair dismissal dispute was considered. The issue of juris-
diction was raised as the employment contract was concluded in South Africa but it was
performed in the international waters off Angola. However, both the parties were South
African, South African law was applicable to the contract, and the contract was termin-
ated in South Africa. Having regard of the above factors, the arbitrator accepted juris-
diction to hear the matter. See also CWIU v Sopelog CC (1993) 14 ILJ 144 (LAC); Genric
Mai (Pty) Ltd v Industrial Council for the Iron, Steel, Engineering & Metallurgical Industry &
others (1995) 16 ILJ 51 (A); and Photocircuit SA (Pty) Ltd v De Klerk NO & others (1991) 12
ILJ 289 (A) under the 1956 LRA.
430 Law@work

l whether it is a dispute between parties to the council (in other words the
constituent parties to the council and any registered trade union or regis-
tered employers’ organisation which has subsequently been admitted to the
council as a member of the council) and any member of such a trade union
or such an employers’ organisation; and
l the nature of the dispute (in other words whether or not the dispute con-
cerns a matter of mutual interest).

3.4 Bargaining councils in the public service

3.4.1 Introduction
The LRA provides for the establishment of a bargaining council for the public
service as a whole, to be known as the Public Service Co-ordinating Bargaining
Council; and, for any sector within the public service that may be designated
as such in terms of section 37 of the Act. The ‘public service’ is defined as mean-
ing the national departments, provincial administrations and departments, and
government components contemplated in section 7(2) of the Public Service
Act 199461 but excludes:
l the members of the National Defence Force;
l the National Intelligence Agency; and
l the South African Secret Service.62
The Public Service Co-ordinating Bargaining Council may perform all the func-
tions of a bargaining council in respect of the following:
l matters which are regulated by uniform rules, norms and standards that
apply across the public service; or
l matters which apply to terms and conditions of employment applicable to
two or more sectors; or
l matters assigned to the state as employer in respect of the public service,
which matters are not assigned to the state as employer in any particular
sector.63

3.4.2 Bargaining councils in sectors of the public service

The Public Service Co-ordinating Bargaining Council may designate a sector of
the public service for the establishment of a separate bargaining council. That
bargaining council has exclusive jurisdiction in respect of matters that are
specific to that sector and in respect of which the state, as employer, has the
requisite authority to conclude collective agreements and to resolve labour
disputes.64

________________________

61 Promulgated by Proc 103 of 1994. See also the Public Service Regulations, 2016 in GNR 877,
GG 40167 of 29 July 2016.
62 S 213 of the LRA.
63 S 36(2) of the LRA.
64 S 37 of the LRA.
Collective bargaining and worker participation 431

3.4.3 Dispute resolution functions of bargaining councils in the public

service
In terms of section 36(2), the Public Service Co-ordinating Bargaining Council
may perform all the functions of a bargaining council in respect of the matters
referred to in paragraph 3.3. These include the dispute resolution functions of
that bargaining council in respect of those matters. A bargaining council which
is established for a particular sector will be deemed to be a bargaining council
in the public service for purposes of the Act.65 Although the Act does not say
whether such a bargaining council has dispute resolution functions it appears
from the provisions of item 3 of Schedule 1 to the Act, read with section 30(1)(h)
to (j) of the Act, that such councils may in fact agree their own dispute proced-
ure as far as it concerns parties to the council and members of such parties.66

4 Statutory councils
4.1 Introduction
Statutory councils are the creatures of compromise, and bear all the hallmarks
of an awkward settlement. Statutory councils were established at a late stage in
the negotiation of the LRA, to address, at least in part, demands by the union
federations for compulsory centralised bargaining in all sectors of the economy.
The idea behind statutory councils is that they might be established in sectors
where union density is low (and where there is no bargaining council estab-
lished) and that given a relatively modest set of powers and functions, the
council might grow organically and ultimately establish itself as a forum for the
negotiation of wages and conditions of employment for the sector concerned.

4.2 Powers and functions of statutory councils 67

The powers and functions of a statutory council are to:
l perform the dispute resolution functions referred to in section 51 (disputes
concerning matters of mutual interest);
l promote and establish training and education schemes;
l establish and administer pension, provident, medical aid, sick pay, holiday,
unemployment schemes or funds or any similar schemes or funds for the
benefit of one or more of the parties to the statutory council or their mem-
bers; and
l conclude agreements to give effect to the above matters.

________________________

65 S 37(4)(c) of the LRA.

66 It is important to note that certain provisions of the Public Service Act 103 of 1994 were
declared to constitute a collective agreement (see item 15 of Sch 7 of the LRA). The
effect of that was that legislative arrangements could be amended by agreement. See
Northern Cape Provincial Administration v Commissioner Hambidge NO & others (1999) 20
ILJ 1910 (LC).
67 S 41(3) of the LRA.
432 Law@work

A statutory council may agree to include in its functions any of the functions of
a bargaining council. If a collective agreement is concluded within a statutory
council, the agreement may be extended to non-parties within the registered
scope of the statutory council.68

5 Collective agreements
5.1 Introduction
A collective agreement must not be confused with an ordinary (commercial)
contract.69 Collective agreements are defined as written agreements concern-
ing terms and conditions of employment or other matters of mutual interest con-
cluded between on the one hand, a registered trade union, and on the other
hand, one or more employers, registered employers’ organisations or one or
more employers and one or more employer’s organisations.70 Although the
agreement must be in writing, there is no requirement that it should be signed in
order to be valid (unless so stipulated in the agreement).71
‘Terms and conditions of employment’ refer only to express or implied terms of
the employment contract (rather than to so-called ‘work practices’).72 The other
subject matter of a collective agreement is, however, much broader in its scope.
The courts have consistently interpreted the concept ‘matters of mutual interest’
widely so as to include not only issues that directly concern the employer-
employee relationship, for example wages and health and safety at work, but
also issues that are generally of significance or of interest to those parties.73

5.2 The binding effect of collective agreements

Were collective agreements to be regulated only by common-law contractual
rules, a number of legal rules would immediately frustrate their application. For
example, when a trade union concludes a collective agreement with an em-
ployer, does it derive its authority to contract as the legal agent of its members?
If a trade union represents the vast majority of employees in a workplace, how
does the employer ensure, other than by individual negotiation with non-
members that the same terms can be applied to all employees? Section 23 of
the LRA avoids these and other problems that would inevitably result if collect-
ive agreements were left to be regulated by contractual rules. The section pro-
vides that a collective agreement binds:

________________________

68 S 43(3) of the LRA.

69 See Northern Cape Forests v SA Agricultural & Allied Workers & others (1997) 18 ILJ 971
(LAC). It is apparent, however, that a collective agreement, as is the case for an ordinary
contract, is concluded voluntarily and must be based on consensus for it to be valid.
70 S 213 of the LRA. See in general Le Roux ‘The Role and Enforcement of Collective Agree-
ments’ (2006) CLL 15(6) at 51–58.
71 Diamond & others v Daimler Chrysler SA (Pty) Ltd & another (2006) 27 ILJ 2595 (LC).
72 A Mauchle (Pty) Ltd t/a Precision Tools v NUMSA [1995] 4 BLLR 11 (LAC).
73 See Rand Tyres & Accessories (Pty) Ltd v Industrial Council for the Motor Industry (Tvl),
Minister for Labour & Minister for Justice 1941 TPD 108 at 115. See ch 17 at para 2 ‘What is a
dispute?’ and ch 16 at para 2.3.2 ‘In respect of a matter of mutual interest’.
Collective bargaining and worker participation 433

l the parties to the collective agreement;

l each party to the collective agreement and the members of every other
party to the collective agreement, in so far as the provisions of the agree-
ment are applicable between them;74 and
l the members of a registered trade union and the employers who are mem-
bers of a registered employers’ organisation that are party to the collective
agreement if the collective agreement regulates:
• terms and conditions of employment; or
• the conduct of the employers in relation to their employees or the con-
duct of the employees in relation to their employers;
l employers who are not members of the registered trade union or unions that
are party to the collective agreement if:
• the employees are identified in the agreement;
• the agreement expressly binds the employees; and
• the trade union or unions that are party to the collective agreement have
as their members the majority of employees employed by the employer
in the workplace (see section 23(1)(d) of the LRA).
The application of section 23 is best illustrated by way of an example. Suppose
that trade union U enters into a collective agreement with employer E. Clearly,
U and E are parties to the agreement, and its terms are binding on them. But
the agreement is also binding as between E and the members of U. Suppose
that the agreement provided that the employer would contribute to the costs
of the union’s next congress, as well as for a 10 per cent increase in the wages
of U’s members. Here, the terms of the agreement regarding the contribution to
costs is binding as between E and U, and the wage increase, because this is a
matter clearly applicable to the members of U in relation to their employer, is
binding as between those members and E.
Suppose, too, that E is a member of an employer organisation EO. EO con-
cludes a collective agreement with a trade union on the same terms; in other
words, it agrees to contribute to the costs of the union’s congress and that the
union’s members will be paid a 10 per cent wage increase. Here, EO is bound
to pay the contributions to the cost of the congress, and all of the individual
employers that are EO’s members, including E, are bound to pay union mem-
bers in their employ the agreed wage increase.
________________________

74 In Mhlongo & others v FAWU & another [2007] 1 BLLR 141 (LC) the members of a trade
union contended that they had not mandated their union to conclude a settlement
agreement on their behalf. The court held that they were members of FAWU, and there-
fore bound by the agreement. (The court reminded the applicants that in terms of the
LRA, union members are bound by collective agreements concluded by their union even
where they terminate their membership.) The court held that the fact that the settlement
agreement was concluded after the dismissal of the applicants was of no consequence.
The court also rejected an allegation that the union and the employer had acted in bad
faith by concluding the agreement. The court held that a trade union is entitled to decide
how to best serve the interests of its members. Finally, the court also held that the union’s
authority to conclude agreements on behalf of their members stemmed not from agency,
but rather from the principle of majoritarianism.
434 Law@work

Finally, suppose that E enters into a collective agreement with U in terms of

which U’s members will accept a reduction in wages in return for guarantees of
job security. To ensure uniform conditions of employment and to avoid indiv-
idual negotiations, E wishes to extend the agreement to bind those of its em-
ployees who are not members of U. The terms of the collective agreement may
be extended to non-members in terms of section 23(1)(d) provided that the
non-members are expressly identified in the agreement, that the agreement
expressly binds them, and that U represents the majority of the employees em-
ployed by E in the workplace.
A collective agreement remains binding for the whole period of the agree-
ment on every person bound by the agreement who was, at the time the
agreement became binding, a member of the union or employers’ organisation
concerned, or who becomes a member after the agreement became binding
whether or not that person continues to be a member of the trade union or em-
ployers’ organisation concerned for the duration of the collective agreement.75
So, to continue the above example, if E decides to withdraw from EO after the
collective agreement is signed because E thinks that EO should never have
agreed to a 10 per cent wage increase, E remains bound to pay its employees
the agreed increase despite E’s withdrawal from EO.
An attack on the constitutionality of section 23(1)(d) was dismissed by the
Constitutional Court in Association of Mineworkers and Construction Union &
others v Chamber of Mines of South Africa & others.76 The appellant, AMCU,
had majority membership at some individual mines but not in the industry as a
whole. The Chamber of Mines had extended a collective agreement on wages
and other issues reached with the NUM, which represented the majority of
employees employed by the mining companies concerned, to all employees,
including AMCU members. AMCU contended that each of the five mines at
which it represented the majority was a separate ‘workplace’ for the purposes
of section 23(1)(d) and that the agreement did not extend to those mines and
that in any event, section 23(1)(d) was unconstitutional in that it infringed on the
rights of AMCU members to strike in support of their demands. (The extension of
the collective agreement reached with NUM to AMCU members had the con-
sequence, of course, that AMCU members were precluded from striking, be-
cause they were bound by the agreement.77)
The court held that the statutory definition of ‘workplace’ required an assess-
ment on the basis of functional organisation, not geography or location. Thus
each mining company, member of the Chamber of Mines, constituted a work-
place and not each individual mine in which AMCU had a majority; those mines
did not constitute independent operations. In so far as the constitutional chal-
lenge was concerned, the court held that the principle of majoritarianism enjoys
international recognition, that it is not an ‘implement of oppression’ and that
the limitations applicable to any extension under section 23(1)(d) are strictly

________________________

75 See Vista University v Botha [1997] 5 BLLR 614 (LC).

76 2017 (6) BCLR 700 (CC).
77 See ch 16 below.
Collective bargaining and worker participation 435

circumscribed in both ambit and time. The limitation on the right to strike was
therefore reasonable and justifiable.78
A collective agreement varies any contract of employment between an em-
ployer and an employee who are both bound by the collective agreement. This
variation takes place by operation of law. This provision should be read with
section 199 of the LRA. That section provides that a contract of employment,
whether concluded before or after the coming into operation of any collective
agreement, may not permit an employee to be paid at less than the remuner-
ation prescribed by that agreement or to be treated in any manner or granted
any benefit that is less favourable than that prescribed by the collective agree-
ment.79 A contract of employment may not waive the application of any pro-
vision of a collective agreement. Any provision in a contract of employment in
breach of these provisions is invalid.
Finally, section 23(4) of the LRA provides that if a collective agreement is con-
cluded for an indefinite period, any party to the agreement may terminate the
agreement by giving reasonable notice, in writing, to the other parties.80

5.3 Collective agreements concluded in bargaining councils

5.3.1 The binding effect of collective agreements
Section 31 of the LRA regulates the binding nature of collective agreements
concluded in bargaining councils. The section is not dissimilar to section 23, but
takes account of the structure of a bargaining council, and the identity of the
bargaining parties. Individual employers may not be members of bargaining
councils, and collective bargaining is therefore typically conducted between
one or more employers’ organisations and one or more trade unions.
Section 31 provides that a collective agreement concluded in a bargaining
council binds only the parties to the bargaining council who are parties to the
collective agreement, subject to the provisions of section 32 and the constitu-
tion of the council. The collective agreement binds the parties to the agreement

________________________

78 At para 58. The court went on to find that the extension of a collective agreement in
terms of s 23(1)(d) constitutes the exercise of a public power and is thus reviewable under
the principle of legality. The Labour Appeal Court recently upheld the extension to non-
parties of a retrenchment agreement concluded with a majority union, referring specifi-
cally to the Constitutional Court’s endorsement of the principle of majoritarianism in AM-
CU. See National Union of Metalworkers of South Africa (NUMSA) obo members v South
African Airways SOC Ltd & another [2017] 9 BLLR 867 (LAC).
79 A collective agreement may also not introduce discriminatory conditions into the em-
ployment contract – see SACCAWU v Garden Route Chalets (Pty) Ltd [1997] 3 BLLR 325
(CCMA).
80 An employer’s insolvency will not as such terminate a collective agreement (Waverley
Blankets Ltd v CCMA [2001] 1 BLLR 114 (LC)). However, the Labour Appeal Court has re-
marked (obiter) that it may be different in the case of a scheme of arrangement (see
Waverley Blankets Ltd v CCMA (2003) 24 ILJ 388 (LAC)). Ss 197 and 197A make provision
for the transfer of obligations contained in collective agreements from a transferor em-
ployer to the transferee.
436 Law@work

and their members in so far as the agreement relates to the relationship be-
tween them. The collective agreement also binds members of parties to the
agreement (in the case of registered trade union(s) on the one hand, and regis-
tered employers’ organisation(s) on the other hand) if the agreement regulates
terms and conditions of employment or the conduct of the employers in re-
lation to their employees or the conduct of the employees in relation to their
employers.
A typical bargaining council agreement regulates minimum wages, maximum
hours of work, maximum overtime, whether overtime is voluntary or compulsory,
overtime rates, sick leave, annual leave, public holidays, bonuses and trade
union facilities such as check-off. These agreements may also include closed
shop and agency shop provisions.

5.3.2 Extension of collective agreements concluded in a bargaining

council
In terms of section 32(1), a bargaining council may request the minister to extend
a collective agreement concluded in the bargaining council to non-parties to
the agreement that are within the council’s registered scope and are identified
in the request.81
As noted above, this is a controversial provision. The ‘Report of the Presidential
Commission to Investigate Labour Market Policy’ released in 1994 records the
arguments for and against the extension of bargaining council agreements.
Those who oppose extension argue that when non-parties are unable to afford
the wage rates and other conditions of employment which they become bound
to apply, unemployment will result. This is particularly so in the case of more vul-
nerable smaller enterprises, since bargaining councils are generally populated
by the representatives of larger, capital-intensive, higher wage businesses. Those
who argue in favour of the extension of bargaining council agreements assert
that the extension of agreements ensures stability in the sector, largely by ex-
cluding competition on wages, thus penalising inefficient businesses and en-
couraging better practices.82 The commission recommended that the minister
should be afforded a greater discretion in deciding whether or not to extend an
agreement than the LRA currently provides, and that job-creating goals ought
to outweigh representativeness as a relevant factor.
In a recent attack on the constitutionality of section 32(2), in Free Market
Foundation v Minister of Labour & others,83 the High Court dismissed an argument
to the effect that section 32(2) violates the principle of legality under section
1(c) of the Constitution because it permits the extension of collective agree-
ments to non-parties, contrary to the public interest, by persons not adequately
________________________

81 The effect of such extension is basically to make the non-party a party to the agreement,
see Kem-Lin Fashions CC v Brunton & another (2001) 22 ILJ 109 (LAC).
82 Report of the Presidential Commission to Investigate Labour Market Policy (1994) at paras
175–176.
83 [2016] 8 BLLR 805 (GP). In relation to the constitutionality of the extension of a collective
agreement to non-parties by an employer acting in terms of s 23(1)(d), see Association of
Mineworkers & Construction Union & others v Chamber of Mines of South Africa & others
(fn 76).
Collective bargaining and worker participation 437

subject to state supervision. The court held that the minister’s exercise of powers
under section 32 constitutes administrative action. The minister must ensure that
the council has complied with the requirements of section 32. If these are satis-
fied, the agreement must be extended. The discretion not to extend an agree-
ment applies if the numerical levels of representativity set by the LRA have not
been reached. Similarly, the minister must be satisfied that any refusal to extend
the agreement will have negative effects on collective bargaining in the sector
– this is a criterion that must be satisfied having regard to the relevant facts, and
the decision must be rational. Further, to satisfy the requirements of procedural
fairness, the minister must invite comments before extending the agreement. The
lesser constraints on the minister’s power reflected in section 32(2) are explained
by the principle of majoritarianism, a deliberate choice by the legislature and
one that was consistent with international law. The challenge to the extension of
the collective agreement as inconsistent with the Constitution on the grounds of
excessive delegation of legislative powers was therefore unsuccessful.
The court concluded that the restraints and judicial supervision inherent in
section 32 give adequate expression to the constitutional right of administrative
justice. The court went on to uphold the statutory scheme of majoritarianism in
collective bargaining, noting that it was consistent with international law.
There are two thresholds that need to be met before a bargaining council
agreement can be extended to non-parties. The first relates to the represen-
tativeness of the parties who vote in favour of a request to the minister to ex-
tend the agreement; the second relates to the representativeness of the parties
to the council in relation to the scope of the extended agreement.
The first threshold requires that at a meeting of the bargaining council:
l one or more registered trade unions whose members constitute the majority
of the members of the trade unions that are party to the bargaining council
vote in favour of the extension; and
l one or more registered employers’ organisations, whose members employ
the majority of the employees employed by the members of the employers’
organisations that are party to the bargaining council, vote in favour of the
extension.
The second threshold requires the minister to be satisfied that there has been
compliance with the requirements of section 32(3)(a) to (g). These are:
l the decision of the bargaining council to request the extension of the collect-
ive agreement must comply with the provisions of section 32(1);
l the majority of all the employees who, upon extension of the collective
agreement, will fall within the scope of the agreement, must be members of
the trade unions that are parties to the bargaining council;
l the members of the employers’ organisations that are parties to the bargain-
ing council must, upon the extension of the collective agreement, be found
to employ the majority of all the employees who fall within the scope of the
collective agreement;
l the non-parties specified in the request must fall within the bargaining coun-
cil’s registered scope;
438 Law@work

l the collective agreement must provide for an independent body to hear

and decide, within 30 days, any appeal brought against the bargaining
council’s refusal of a non-party’s application for exemption from the pro-
visions of a collective agreement and the withdrawal of an exemption by
the bargaining council;
l the agreement must contain criteria that must be applied by the independ-
ent body when it considers an appeal. These criteria must be fair and must
promote the primary objects of the Act which include the promotion and
facilitation of collective bargaining at workplace and sectoral level; and
l the terms of the collective agreement must not discriminate against non-
parties.
If the above requirements have been met, the minister must extend the collect-
ive agreement within 60 days of receiving the request, by publishing a notice in
the Government Gazette declaring that, from a specified date and for a spe-
cified period, the agreement will be binding on the non-parties specified in the
notice.84
Even if the provisions concerning the representativeness of the trade unions
and employers’ organisations have not been complied with, the minister may
still extend the collective agreement if:
l the parties to the bargaining council are sufficiently representative within the
registered scope of the bargaining council in the area in respect of which
the extension is sought; and
l the minister is satisfied that a failure to extend the agreement may under-
mine collective bargaining at sectoral level or in the public service as a
whole.85

5.4 Disputes about collective agreements

Section 24(1) of the LRA requires every collective agreement to provide a pro-
cedure to resolve disputes about the application or interpretation of that agree-
ment. The procedure must provide for conciliation, and if the dispute remains
unresolved, for arbitration.86
The CCMA has jurisdiction in respect of disputes about the application and
interpretation of collective agreements if the agreement does not provide for a
dispute procedure as required, or the procedure is not operative, or any party
to the collective agreement has frustrated the resolution of the dispute in terms
________________________

84 S 32(2) of the LRA.

85 S 32(5) of the LRA. The words ‘sufficiently representative’ in s 32(5) are not defined. S 32(5A)
provides that when the minister determines whether parties to a bargaining council are
sufficiently representative he or she may take into account the composition of the work-
force in the sector including the proportion of employees engaged in atypical forms of
employment.
86 Where an agreement is extended, the enforcement of the agreement will be through the
procedure prescribed in such agreement for its enforcement for both parties and non-
parties to whom the agreement has been extended (see Kem-Lin Fashions CC v Brunton
& another (2001) 22 ILJ 109 (LAC)). In the absence of such an agreement, the CCMA will
enter the dispute – s 24 of the LRA.
Collective bargaining and worker participation 439

of the process established by the agreement itself. In Health & Other Services
Personnel Trade Union of SA obo Tshambi v Department of Health, KwaZulu-
Natal 87 the Labour Appeal Court noted that section 24 should not be read so
broadly that any alleged breach of a term of a collective agreement means
that the dispute automatically falls within the ambit of the section. The phrase
‘interpretation or application’ should not be read disjunctively – a dispute about
the interpretation of a collective agreement requires, at a minimum, a differ-
ence of opinion about what a provision of the agreement means; a dispute
about the interpretation of a collective agreement requires, at a minimum, a
difference of opinion about whether it can be invoked.88
Disputes about the interpretation and application of collective agreements
are determined by the CCMA.

6 Worker participation: workplace forums89

6.1 Introduction
Workplace forums are not ideally discussed in a chapter on collective bargain-
ing since they are not, strictly speaking, collective bargaining structures. The
form of worker participation in managerial decision-making established by work-
place forums recognises a ‘dual stream’ of engagement between employers
and employees, the first stream being collective bargaining over terms and
conditions of employment, and the second participation by employees in work-
place decisions not normally subject or suited to collective bargaining.
Chapter V of the LRA represents an ambitious attempt to introduce the con-
cept of employee participation in managerial decision-making in South African
workplaces by making possible the establishment of workplace forums. The pur-
pose of a workplace forum and its relationship with collective bargaining struc-
tures is perhaps best captured in the Explanatory Memorandum to the Labour
Relations Bill, published in 1995. The Memorandum motivated the creation of
workplace forums as follows:
Workplace forums are designed to facilitate a shift at the workplace, from adver-
sarial collective bargaining on all matters to joint problem solving and participation
on certain subjects. In creating a structure for ongoing dialogue between man-
agement and workers, statutory recognition is given to the realisation that unless
workers and managers work together more effectively they will fail adequately to
improve productivity and living standards. Workplace forums are designed to per-
form functions that collective bargaining cannot easily achieve: the joint solution
of problems and the resolution of conflicts over production.90

________________________

87 (2016) 37 ILJ 1839 (LAC).

88 At 1847.
89 See in general Olivier ‘Workplace Forums: Critical Questions from a Labour Law Perspect-
ive’ (1996) 5 ILJ 803; Summers ‘Workplace Forums from a Comparative Perspective’ (1995)
4 ILJ 806; Botha Employee Participation and Voice in Companies: A Legal Perspective
(NWU 2015) and Du Toit ‘Corporatism and Collective Bargaining in a Democratic South
Africa’ (1995) 4 ILJ 785.
90 (1995) 16 ILJ 278 at 310.
440 Law@work

The purpose of workplace forums is therefore not to undermine collective bar-

gaining, but to supplement it. They achieve this purpose by relieving collective
bargaining of functions to which it is not best suited. The forum’s focus is quali-
tative – that is, it is on non-wage matters, such as restructuring, the introduction
of new technologies and work methods, changes in the organisation of work,
physical conditions of work and health and safety, all issues best resolved at the
level of the workplace. Workplace forums expand worker representation beyond
the limits of collective bargaining by providing workers with an institutionalised
voice in managerial decisions. Employers receive different benefits from the
workplace forum: increased efficiency and performance.
The South African model of participation in workplace decision-making envis-
ages workplace forums in larger enterprises, representing all employees except
senior managers and engaging in decision-making at a number of levels. The
first level, the weakest form of participation, is limited to sharing information.
Where a workplace forum exists, the enterprise’s management is obliged to dis-
close certain information relating to its performance and prospects. The second
level of participation is consultation, and here a workplace forum is given exten-
sive rights to be consulted on a variety of issues. Finally, the LRA makes provision
for participation in its strongest form, joint decision-making. Here, the enterprise’s
management is not permitted to implement a proposal unless the forum agrees
to it, or it is sanctioned by an arbitrator. Alternatively, the employer may with-
draw the proposal.
Despite the wide powers and broad functions that the LRA confers on a work-
place forum, a negligible number of statutory forums have been established. It
is fair to say that this is a function of the mutual hostility shown to the concept by
both employers and trade unions. Employers no doubt regard workplace forums
as an unwarranted intrusion into managerial prerogative, and unions are no
doubt concerned that forums will undermine workplace collective bargaining
structures.

6.2 Establishing a workplace forum

Workplace forums are intended for larger workplaces. Section 80 of the LRA pro-
vides that a workplace forum may be established in any workplace91 in which
an employer employs 100 or more employees. An ‘employee’ for purposes of
this section excludes members of the senior management team, and is defined
to mean:

________________________

91 In Association of Mineworkers and Construction Union & others v Chamber of Mines of

South Africa & others [2017] 7 BLLR 641 (CC) the Constitutional Court remarked that the
two notable things about the statutory definition of ‘workplace’ is its focus on employees
as a collectivity and ‘the relative immateriality of location’ (para 24). The court set out a
test of functional organisation rather than geography or location, which requires an evalu-
ation of indepence: ‘If there are two or more operations and they are “independent of
one another by reason of their size, function or organisation” then “the place or places
where employees work in connection with each independent operation, constitutes the
workplace for that operation”’ (para 28).
Collective bargaining and worker participation 441

any person who is employed in a workplace except a senior managerial employee

whose contract of employment or status confers the authority to do any of the fol-
lowing in the workplace –
(i) represent the employer in dealings with the workplace forum; or
(ii) determine policy and take decisions on behalf of the employer that may be
in conflict with the representation of employees in the workplace.
Any representative trade union may apply to the CCMA, in the prescribed form,
for the establishment of a workplace forum. The CCMA must consider the appli-
cation and any further information provided by the applicant. The CCMA must
further consider whether in the workplace in respect of which the application
has been made:
l the employer employs 100 or more employees;
l the applicant is a representative trade union; and
l there is no functioning workplace forum established in terms of the Act.
If the CCMA is satisfied that the above requirements have been met, the CCMA
must appoint a commissioner to assist the parties to establish a workplace forum
by collective agreement or, failing that, to establish a workplace forum in terms
of the Act. For that purpose, the commissioner must convene a meeting with
the applicant, the employer and any registered trade union that has members
employed in the workplace in order to facilitate the conclusion of a collective
agreement between those parties, or at least between the applicant and the
employer. If a collective agreement is concluded, the agreement will regulate
the relationship between the respective parties. If an agreement is not con-
cluded, the commissioner must meet the parties in order to facilitate an agree-
ment between them, or at least between the applicant and the employer, on
the provisions of a constitution for a workplace forum.92 If no agreement is
reached on a constitution, the commissioner must establish a workplace forum
and determine the provisions of the constitution in accordance with the chap-
ter dealing with workplace forums. The commissioner must take into account the
guidelines contained in Schedule 2 to the Act. After the workplace forum has
been established, the commissioner must set a date for the election of the first
members of the workplace forum, and appoint an election officer to conduct
the election.
Any representative trade union may apply for the establishment of a work-
place forum. A ‘representative trade union’ is defined as meaning ‘a registered
trade union, or two or more registered trade unions acting jointly, that have as
members the majority of the employees employed by an employer in a work-
place’.93 The union may appoint its own representatives to what is referred to in
the Act as a ‘trade union based workplace forum’.
The Act does not prevent an employer from establishing such a forum or any
other body on a voluntary basis. In that event the provisions of the Act will not
apply.

________________________

92 See the guidelines contained in Sch 2 to the LRA.

93 S 78 of the LRA.
442 Law@work

6.3 General functions of a workplace forum

A workplace forum established in terms of the Act:
l must seek to promote the interests of all employees in the workplace,
whether or not they are trade union members;
l must seek to enhance efficiency in the workplace;
l is entitled to be consulted by the employer, with a view to reaching consen-
sus about the matters referred to in section 84 of the Act; and
l is entitled to participate in joint decision-making about the matters referred
to in section 86 of the Act.

6.4 Meetings of a workplace forum

The LRA provides for the following meetings:
l the workplace forum must meet regularly (section 83(1));
l there must be regular meetings between the workplace forum and the
employer, at which the employer must:
• present a report on its financial and employment situation, its perfor-
mance since the last report and its anticipated performance in the short
term and in the long term; and
• consult the workplace forum on any matter arising from the report that
may affect employees in the workplace.
There must also be meetings between members of the workplace forum and
the employees employed in the workplace at regular and appropriate intervals.
At those meetings the workplace forum must report to the employees on:
l its activities generally;
l matters in respect of which it has been consulted by the employer; and
l matters in respect of which it has participated in joint decision-making with
the employer.
Once every calendar year the employer must at one of the meetings present
to the employees an annual report of its financial and employment situation,
its performance generally and its future prospects and plans.94 The meetings
must be held during working hours at a time and place agreed upon by the
workplace forum and the employer, without loss of pay on the part of the em-
ployees.95

7 Consultation with a workplace forum

A collective agreement may provide for the regulation of the matters referred
to below. If that is not the case, the workplace forum is entitled to be consulted
by the employer about the following:

________________________

94 S 83(3)(b) of the LRA.

95 S 83(3)(c) of the LRA.
Collective bargaining and worker participation 443

l restructuring the workplace, including the introduction of new technology

and new work methods;96
l changes in the organisation of work;
l partial or total plant closures;
l mergers and transfers of ownership in so far as they have an impact on the
employees;
l the dismissal of employees for reasons based on operational requirements;
l exemptions from any collective agreement or any law;
l job grading;
l criteria for merit increases or the payment of discretionary bonuses;
l education and training;
l product development plans; and
l export promotion.
A bargaining council may agree to confer on a workplace the right to be con-
sulted about additional matters falling within the registered scope of the bar-
gaining council.97 Section 84(3) makes provision for the possibility that the rep-
resentative trade union and an employer may conclude a collective agreement
conferring on the workplace forum the right to be consulted about any add-
itional matter in that workplace.
An employer and a representative trade union may agree that the employer
must consult with the workplace forum with the view to initiate, develop, pro-
mote, monitor and review measures to ensure health and safety at work. The
representative trade union and the employer may also agree that a meeting
between the workplace forum and the employer constitutes a meeting of a
health and safety committee which may be required to be established in the
workplace by health and safety legislation. The parties may also agree that one
or all members of the workplace forum are health and safety representatives for
purposes of the health and safety legislation. Such an agreement may, how-
ever, not conflict with provisions of the occupational health and safety legisla-
tion that is applicable to the particular workplace.98

7.1 Process of consultation

The employer may not implement the proposal in respect of which consultation
must take place with the workplace forum, before the employer has during
consultation attempted to reach consensus with the workplace forum. The em-
ployer must allow the workplace forum an opportunity during consultation to
make representations and to advance alternative proposals. The employer must
then consider and respond to the representations or alternative proposals made

________________________

96 See s 189 of the LRA with regard to a workplace forum’s rights to be consulted in the event
that the employer proposes any dismissals for reasons related to operational requirements.
97 S 84(2) of the LRA.
98 S 84(5) of the LRA.
444 Law@work

by the forum. If the employer does not agree with them, the employer must state
the reasons for disagreeing. If the employer and the workplace forum do not
reach consensus the employer may implement its proposal. If there is an agreed
procedure to resolve differences, for example an arbitration procedure, that
procedure must be invoked, and the employer may not unilaterally implement
the proposal.

7.2 Joint decision-making powers of the workplace forum

The joint decision-making powers of the workplace forum may be regulated by
a collective agreement between the representative trade union and the em-
ployer. If there is no collective agreement, the employer must consult and
reach consensus with the workplace forum before implementing any proposal
concerning:
l disciplinary codes and procedures;
l rules relating to the proper regulation of the workplace in so far as they
apply to conduct not related to the work performance of the employees;
l measures (including affirmative action measures) designed to protect and
advance persons disadvantaged by unfair discrimination; and
l changes by the employer or by employer-appointed representatives on trusts
or boards of employer controlled schemes, to the rules regulating social
benefit schemes.
A representative trade union and an employer may conclude a collective
agreement conferring on the workplace forum the right to joint decision-making
in respect of additional matters not referred to in section 86(1) in respect of that
workplace.
If the employer is unable to reach consensus with the workplace forum con-
cerning a matter which requires consensus, the employer may refer the dispute
to arbitration in terms of any agreed procedure or if there is no agreed pro-
cedure, refer the dispute to the CCMA. The employer may not unilaterally im-
plement the proposal.

7.3 Disclosure of information

An employer must disclose to the workplace forum all relevant information that
will allow the workplace forum to engage effectively in consultation and joint
decision-making. The employer is, however, not required to disclose the follow-
ing information to the workplace forum:
l information which is legally privileged;
l information which the employer cannot disclose without contravening a
prohibition imposed on the employer by any law or order of any court;
l information which is confidential and, if disclosed, may cause substantial
harm to an employee or the employer; or
l information which is private personal information relating to an employee
unless that employee consents to the disclosure of that information.
Collective bargaining and worker participation 445

7.4 Full-time members of the workplace forum

The members of a workplace forum may designate from their number one full-
time member, if there are 1 000 or more employees employed in the particular
workplace.99

7.5 Disputes about workplace forums

The resolution of disputes about workplace forums may be regulated in terms of
a collective agreement between a representative trade union and the em-
ployer. If there is no collective agreement regulating the dispute, any dispute
about the interpretation or application of the provisions concerning workplace
forums, may be referred to the CCMA for conciliation. If conciliation is not suc-
cessful, the dispute may be referred for arbitration by the CCMA.

________________________

99 S 92 of the LRA.
16
Strikes and lock-outs

Page
1 Introduction ...................................................................................................... 449
2 What is a strike?................................................................................................ 451
2.1 Refusal to work .......................................................................................... 451
2.1.1 Partial or complete refusal to work, or retardation or
obstruction of work......................................................................... 451
2.1.2 By persons who are or have been employed by the
same employers or by different employers ................................. 452
2.2 Collective action ...................................................................................... 453
2.2.1 Concerted refusal .......................................................................... 453
2.3 Purpose of the strike ................................................................................. 453
2.3.1 For the purpose of remedying a grievance or resolving
a dispute.......................................................................................... 453
2.3.2 In respect of a matter of mutual interest ..................................... 456
3 Protected and unprotected strikes: substantive limitations ........................ 456
3.1 Employees are bound by a collective agreement prohibiting
strikes and lock-outs ................................................................................. 457
3.2 Employees are bound by an agreement to refer a dispute to
arbitration .................................................................................................. 458
3.3 The issue in dispute must be referred to arbitration or to the
Labour Court ............................................................................................. 458
3.4 Employees are bound by arbitration awards, collective
agreements and ministerial or statutory determinations ..................... 459
3.5 Employees engaged in essential, minimum and maintenance
services ...................................................................................................... 459
4 Protected and unprotected strikes: procedural limitations ........................ 462
4.1 Referral for conciliation ............................................................................ 462
4.2 Issuing of a certificate of outcome or expiry of 30-day period ........... 462
4.3 Notice ........................................................................................................ 462
4.4 Advisory arbitration .................................................................................. 464
5 Secondary strikes ............................................................................................. 465
5.1 Definition .................................................................................................... 465

447
448 Law@work

Page
5.2 Limitations on secondary strikes .............................................................. 466
6 Protest action ................................................................................................... 468
7 Protected strikes ............................................................................................... 469
7.1 Immunities .................................................................................................. 469
7.1.1 Against claims for breach of contract or delict ......................... 469
7.1.2 Against dismissal ............................................................................. 470
7.1.3 Against discrimination .................................................................... 471
7.1.4 Against claims for compensation ................................................. 471
7.2 The right to picket ..................................................................................... 472
8 Lock-outs ........................................................................................................... 475
Strikes and lock-outs 449

1 Introduction
Why is a strike, by definition an act that is destructive in economic and other
terms, viewed both in international terms and in terms of South African law as a
fundamental right?1 The supervisory bodies of the ILO have considered that the
right to strike can be derived from Conventions 87 and 98, which respectively
regulate the rights to freedom of association and to bargain collectively. In this
sense, the right to strike is an essential means for the promotion of the social and
economic interests of employees and trade unions, based ultimately on the
proposition that trade unions should be free to organise their activities and for-
mulate their programmes for the purposes of defending the interests of their
members.
An ancillary argument in support of the right to strike is drawn from the institu-
tion of collective bargaining itself. The most classic statement of this perspective
is drawn from the following quote: ‘More than 30 years ago Lord Wright said in a
leading case: “The right of workmen to strike is an essential element in the prin-
ciple of collective bargaining.” This is obvious. If the workers could not, in the last
resort, collectively refuse to work, they could not bargain collectively’.2 Those
who subscribe to this view argue that the right to strike is regarded as an essen-
tial component of the collective bargaining process. The right of recourse to
industrial action is regarded as a potential weapon that serves to maintain the
equilibrium between labour and the concentrated power of capital. On this
basis, the exercise of the right to strike would necessarily have to be limited to
industrial action called by a trade union, in support of a demand related to the
bargaining process.3
Others see the right to strike as a human right, rather than a right dependent
on collective bargaining. Classifying the right to strike in this way has profound
consequences – not least because it is a right no longer constrained by any
rationale related to the need to maintain equilibrium between capital and
labour, the more traditional justification for the right to strike.4

________________________

1 Kahn-Freund and Hepple Laws against Strikes (1972). The authors propose four justifications
for a right to strike (at 5–8), which can be summarised as: the equilibrium argument – labour
needs a tool to resist the otherwise total prerogative of management; the need for auton-
omous sanctions to enforce collective bargains – self-government being better than legal
regulation and enforcement; the voluntary labour argument – that compulsion to work is
nothing else than serfdom; and the psychological argument – that strikes are a necessary
release of tension in industrial relations. For a general discussion on justifications for the right
to strike, see Cheadle, Conradie, Cohen, Du Toit, Fergus, Jacobs and Steenkamp Strikes
and the Law (2017) at 4–6, and Hepple, Le Roux and Sciarra (eds) Laws against Strikes
(2016) at 12–29.
2 Davies and Freedland Kahn- Freund’s Labour and the Law (1983).
3 See para 2 ‘What is a strike?’ and ch 15. See, in general, Myburgh ‘100 Years of Strike Law’
(2004) 25 ILJ 962–976.
4 See further Hepple, Le Roux and Sciarra (fn 1) at 25-28.
450 Law@work

The ILO has stated that although strike action is a fundamental or basic right,
it is not an end in itself.5 Although Conventions 87 and 98 do not expressly rec-
ognise the right to strike (it is also not expressly stated in either the ILO Constitu-
tion or the Declaration of Philadelphia) the Conference has taken it for granted
that the right exists, as indicated in the first reports on these Conventions dating
back as far as 1947.
Section 23(2) of the Constitution provides that every worker has the right to
strike. The Constitutional Court has recognised both the component of the right
to strike which seeks to protect the dignity of employees (by not being treated
as coerced employees) and that, which enables workers to assert their bargain-
ing power in the workplace. In NUMSA & others v Bader Bop (Pty) Ltd & another,
the Constitutional Court said the following:
In s 23, the Constitution recognises the importance of ensuring fair labour relations.
The entrenchment of the right of workers to form and join trade unions and to en-
gage in strike action, as well as the right of trade unions, employers and employer
organisations to engage in collective bargaining, illustrates that the Constitution
contemplates that collective bargaining between employers and workers is key to
a fair industrial relations environment. This case concerns the right to strike. That
right is of historical and contemporaneous significance. In the first place, it is of im-
portance for the dignity of workers who in our constitutional order may not be
treated as coerced employees. Secondly, it is through industrial action that work-
ers are able to assert bargaining power in industrial relations. The right to strike is an
important component of a successful collective bargaining system . . .6
Like any other constitutional right, the right to strike is not absolute. The LRA im-
poses a number of limitations on the right to strike, both substantive and pro-
cedural. These limitations generally accord with those recognised as legitimate
by the ILO’s supervisory bodies. The limitations are discussed in more detail
below.
The interim Constitution included the right of employers to have ‘recourse to
lock-out’ but section 23 of the Constitution contains no right to lock-out.7 This
exclusion was the subject of a challenge by the national employer federation
during the certification proceedings in 1996, when the Constitutional Court had
to decide whether the text of the final Constitution complied with the Constitu-
tional Principles agreed to as the basis for the drafting of the final Constitution.
The court examined international law and standards and rejected the employ-
ers’ case for the inclusion of the right to lock-out in the Constitution. In Ex parte
Chairperson of the Constitutional Assembly: In re Certification of the Constitution
of the Republic of South Africa 1996 (the First Certification judgment)8 the court
held: ‘the effect of including the right to strike does not diminish the right of

________________________

5 See ILO Freedom of Association and Collective Bargaining (1994) at 61: ‘Strikes are expen-
sive and disruptive for workers, employers and society and when they occur they are due
to a failure in the process of fixing working conditions through collective bargaining which
should remain the final objective’.
6 2003 (2) BCLR 182 (CC) at para 13.
7 The right to have recourse to lock-out is, however, included in s 64(1) of the LRA.
8 1996 (4) SA 744 (CC).
Strikes and lock-outs 451

employers to engage in collective bargaining, nor does it weaken their right to

exercise economic power against workers. The right to bargain collectively is
expressly recognised by the text [of the 1996 Constitution]’.9 The Constitutional
Court considered that while workers acted collectively against the stronger
social and economic power of employers and depended on the right to bar-
gain collectively and to strike to achieve this end, employers had other means
by which to exercise economic power.

2 What is a strike?
A strike is a form of industrial action, but it is not the only one. It is important to be
able to classify any particular withdrawal of labour as a strike, since only partici-
pation in a protected strike is capable of protecting employees against the civil
consequences that would ordinarily flow from their conduct. Section 213 of the
LRA defines a strike in the following terms:
the partial or complete concerted refusal to work, or the retardation or obstruc-
tion of work, by persons who are or have been employed by the same employer
or by different employers, for the purpose of remedying a grievance or resolving a
dispute in respect of any matter of mutual interest between employer and em-
ployee, and every reference to ‘work’ in this definition includes overtime work,
whether it is voluntary or compulsory.
The definition has three main elements (a refusal to work that is concerted and
intended to remedy a grievance or resolve a dispute) and is best discussed by
examining its individual components.

2.1 Refusal to work

2.1.1 Partial or complete refusal to work, or retardation or obstruction
of work
There were several cases under the 1956 LRA that examined the meaning of
‘work’ in the definition of strike. What was then the Appellate Division of the
Supreme Court concluded in SA Breweries v FAWU 10 that the definition referred
only to ‘work’ that employees were contractually obliged to do and that a
refusal to work voluntary overtime did not constitute a strike in terms of the
definition.
The current definition of ‘strike’ makes it quite clear that ‘work’ in the definition
‘includes overtime work, whether it is voluntary or compulsory’. A refusal to do
voluntary overtime will therefore constitute a strike.
A strike need not necessarily amount to a complete withdrawal of labour.
Strikes assume a variety of forms including a partial refusal to work, retardation
and obstruction of work:
l A partial refusal means that employees perform some duties but not others.

________________________

9 Ibid at para 65.

10 (1989) 10 ILJ 844 (A).
452 Law@work

l Retardation of work is manifested in the so-called go-slow (where employ-

ees continue to work but at a slower pace) and the work-to-rule where em-
ployees do only the work they are strictly contractually obliged to do and no
more.
l The obstruction of work refers to the situation where the workers affect pro-
duction in one way or another by being obstructive.
There is no strike when employees refuse to work contrary to any law or collect-
ive agreement. In Simba (Pty) Ltd v FAWU 11 employees refused to work accord-
ing to a new shift pattern introduced by the employer. The intention of the
employer in introducing the new system of lunch breaks, was to ensure that pro-
duction continued over 24 hours. This meant that some employees would have
to work for more than the statutory designated five hours without a break.12 The
employees refused to abide by the new system and the employer sought an
interdict on the grounds that this refusal constituted a strike and the strike was
unprotected. The court held that the word ‘work’ in the definition of a strike does
not include illegal work and therefore refused to grant the interdict. Similarly,
where there is no contractual obligation to perform particular obligations, a
refusal to perform them does not constitute a strike. So, for example, a refusal to
continue to work on Sundays is not a strike if the contract of employment in
which the obligation is sourced makes no provision for Sunday work.13 To sum-
marise, a refusal to work does not always constitute a strike. The following ex-
amples illustrate the point:
l a refusal to work in reaction to a breach of contract by the employer (for
example, when the employer fails to pay wages);
l a refusal to work based on the unlawful nature of an instruction; and
l a refusal to work in contravention of a statutory prohibition (as was the case
in Simba).

2.1.2 By persons who are or have been employed by the same employ-
ers or by different employers
There is a history behind the inclusion in the definition of ‘persons who are or
have been employed’.14 This phrase clearly includes all those who are currently
________________________

11 [1997] 5 BLLR 602 (LC).

12 See s 14 of the BCEA.
13 G4S Cash Solutions SA (Pty) Ltd v Motor Transport Workers Union of SA & others (2016) 37 ILJ
1852 (LAC). See also Imperial Cargo Solutions (Pty) Ltd v SA Transport & Allied Workers Union
& others (2017) 38 ILJ 2479 (LAC) where the Labour Appeal Court held that there was no
strike where employees refused to perform ancillary duties that they had been required to
perform in terms of a collective agreement that had been cancelled.
14 See National Automobile & Allied Workers Union (now known as National Union of Metal-
workers of SA) v Borg Warner SA (Pty) Ltd (1994) 15 ILJ 509 (A). In this case, it was held that
the employment relationship extends beyond the termination of the employment contract.
See also the earlier case of R v McDonald 1935 TPD 153. Here, all the employees resigned
to support a demand for higher wages and the court held that this could not be a strike
as the workers were no longer employees. The definition of a strike was subsequently
amended to include those who previously had the status of employees.
Strikes and lock-outs 453

employed but extends the scope to those who ‘have been employed’ in the
past and who may no longer be employees.
The Labour Court has held that if a strike is protected employees could con-
ceivably continue striking even after they have been dismissed,15 especially if
their dismissal contravened section 67(4)16 (ie, if the employees were dismissed
for engaging in a protected strike).17
The reference to workers who are employed by different employers will be dis-
cussed below under secondary strikes.18

2.2 Collective action

2.2.1 Concerted refusal
As the right to strike is part of the collective bargaining process, it is by its very
nature collective action. The definition refers to the ‘concerted refusal to work
. . . by persons’. The reference to a ‘concerted refusal’ and to ‘persons’ in the
definition indicates that more than one person must be involved in the refusal to
work.
It is therefore debatable whether one worker can strike. The Labour Court
held in Schoeman & another v Samsung Electronics (Pty) Ltd 19 that ‘[a]n individ-
ual employee cannot strike. Although a single employer can lock-out employ-
ees, a lock-out can also not be effected against a single employee’.20

2.3 Purpose of the strike

2.3.1 For the purpose of remedying a grievance or resolving a dispute
The purpose-related requirement of the definition distinguishes a strike from other
forms of work stoppage. Central to a strike is the demand that gives rise to it,
and this should reflect the required purpose that a grievance be remedied or a
dispute resolved. The word ‘dispute’ is itself defined to include an alleged dis-
pute.21 It is not necessary therefore for the party in dispute to do more than
allege that a dispute exists – the merits of the dispute or any secondary dispute
about whether a dispute exists are of no consequence. All employees of an
employer are entitled to strike whether or not they are directly involved in the

________________________

15 FGWU v Minister of Safety and Security (1999) 20 ILJ 1258 (LC). See also Picardi Hotels Ltd v
FGWU [1999] 6 BLLR 601 (LC).
16 S 67(4) states that ‘an employer may not dismiss an employee for participating in a pro-
tected strike or for any conduct in contemplation or in furtherance of a protected strike’.
17 The courts have not yet ruled on whether those workers who have been dismissed for par-
ticipating in an unprotected strike, and have been denied re-employment or reinstate-
ment, would be entitled to carry on with a strike.
18 See para 5 ‘Secondary strikes’.
19 [1997] 10 BLLR 1364 (LC).
20 Ibid at 1367.
21 S 213 of the LRA defines ‘dispute’ as including ‘an alleged dispute’; and ‘issue in dispute’
in ‘relation to a strike or lock-out, means the demand, the grievance, or the dispute that
forms the subject matter of the strike or lock-out’.
454 Law@work

dispute.22 If there is no dispute, there cannot be a strike. So, for example, in

Transport & Allied Workers Union of SA obo Ngedle & others v Unitrans Fuel &
Chemical (Pty) Ltd23 the minority of the Constitutional Court in a split judgment,
was prepared to accept, on the facts, that where during a protected strike the
employer had capitulated to the union’s demands, from that point, the employ-
ees were not entitled to persist with their withholding of labour. The strike there-
after became unprotected. The majority did not disagree with the principle; it
found on the facts that the employer had not fully acceded to the union’s
demands and that the strike therefore continued to remain protected.
If employees refuse to work but do not seek to remedy a grievance or resolve
a dispute, there is no strike in terms of the definition. In FAWU & others v Rainbow
Chicken Farms24 the employees collectively refused to work on a religious holi-
day. The employer claimed that the employees were on an unprotected strike.
The court held that the purpose of their refusal was not to ‘remedy a grievance
or resolve a dispute’ in any matter of mutual interest between the employer
and the employees. Their refusal to work was therefore not a strike, protected or
unprotected. A similar conclusion was reached in Floraline v SASTAWU.25 The
court held in this case that ‘It is true that . . . there is a great deal of unhappiness
on both sides but nowhere is the grievance articulated and nowhere can an in-
ference be drawn that there was a grievance and that this was the cause and
purpose of the work stoppage’.26
In City of Johannesburg Metropolitan Municipality v SAMWU 27 the Labour
Court examined the requirements for a strike in terms of section 213 of the LRA
and was satisfied that the purpose of the strike by SAMWU was to remedy a
grievance or resolve a dispute in respect of a matter of mutual interest.28 Refer-
ring to the distinction between a demand, grievance and dispute,29 the Labour
Court reasoned as follows:
There are no bright lights between these categories. Sometimes the word ‘de-
mand’ is used in a generic sense to refer to all three categories of strikes; some-
times it is used to refer to demands for higher wages. But these are not statutorily
sanctioned requirements. The LRA refers only to a ‘grievance’ or a ‘dispute’. There
is thus no statutory requirement for the existence of a deadlock before a referral to
either the CCMA or a bargaining council.30
In SATAWU v Coin Reaction31 the Labour Court held that a court must have re-
gard to substance rather than form and ‘ascertain the real underlying dispute’.
The designation or description of a dispute in the conciliation proceedings or in
________________________

22 CWIU v Plascon Decorative (Inland) (Pty) Ltd (1999) 20 ILJ 321 (LAC).
23 (2016) 37 ILJ 2485 (CC).
24 [2000] 1 BLLR 70 (LC).
25 [1997] 9 BLLR 1223 (LC).
26 At 1224.
27 [2011] 7 BLLR 663 (LC).
28 At para 10.
29 TSI Holdings (Pty) Ltd & others v NUMSA & others [2006] 7 BLLR 631 (LAC).
30 City of Johannesburg Metropolitan Municipality v SAMWU (fn 27) at para 12.
31 (2005) 26 ILJ 1507 (LC). See also Ceramic Industries Ltd t/a Betta Sanitaryware v NCABAWU
(1997) 18 ILJ 671 (LAC).
Strikes and lock-outs 455

the strike notice is therefore not conclusive.32 It is also important that the trade
union specifies the relevant details of the dispute in order for the court to be
able to ascertain if the strike complies with section 64(1)(a) of the LRA, requiring
that the issue in dispute has been ‘referred to a council or to the Commission’
for conciliation.33
A union may not strike in support of a demand that is unlawful. This principle
was reiterated by the Labour Appeal Court in TSI Holdings (Pty) Ltd & others v
NUMSA & others.34 In this case a strike was called in support of a demand that a
supervisor be dismissed, for allegedly making racist statements. The union refer-
red a dispute to the CCMA but conciliation failed. The union gave written notice
to the employer of an impending strike. The employer suspended the manager
and sought an order from the Labour Court that the strike was unprotected as
the demand made by the employees was unlawful and as such did not fall
within the definition of a strike. The Labour Court held that the demand for dis-
missal was not a demand that the manager be dismissed unfairly. The employer
was not therefore required to act unlawfully and the court held that the strike
was protected.35
On appeal, the court examined the definition of a strike and confirmed that
there must be a refusal to work but also a concerted action for the purpose of
remedying a grievance or resolving a dispute. The court distinguished strikes
which are accompanied by a demand from those that relate to a grievance
and those where there is a dispute.36 The Labour Appeal Court found that the
strike related to a demand and went on to examine whether the demand was
lawful and whether the rights of the manager not to be unfairly dismissed in
terms of section 185 of the LRA had been infringed. The court reasoned that the
demand made by the union ‘falls outside the category of demands that can
be supported by a concerted refusal to work, retardation or obstruction of work
envisaged in the definition of the word “strike” in section 213 of the Act’ and
held accordingly that the purpose of the refusal to work in section 213 of the
Act ‘cannot be conduct that would constitute a violation of the right not to be
dismissed unfairly provided for in section 185 read with section 188 of the Act’.37
The Labour Appeal Court therefore held that the supervisor had a right not to be
unfairly dismissed and that the demand violated this right and consequently
could not form the subject matter of a strike.38 The appeal was therefore upheld.
________________________

32 See also Cheadle and Bamu ‘Strikes and Lock-outs’ in Cheadle et al Current Labour Law
2006 (2006) at 94–95.
33 In Lobtrans SA (Pty) Ltd v MTWUSA & others [2006] JOL 17557 (LC) the bargaining council’s
referral form failed to specify the dispute or the intended outcome of the conciliation.
34 Fn 29.
35 See further Grogan ‘Fire the Boss! Strikes over Unpopular Managers’ (2004) EL (20) 5 at 8–11.
36 See Mischke ‘Striking in Support of Unlawful Demands: The LAC Examines “Strikes” which
Fall Outside the Ambit of the Labour Relations Act’ (2006) CLL 16(3) 23.
37 TSI Holdings (Pty) Ltd & others v NUMSA & others (fn 29) at para 48. See also Mischke (fn 36)
at 24.
38 Cheadle and Bamu (fn 32) at 97. Cheadle argues that the merits of the allegations against
the supervisor should never have been entertained and further that a ‘demand to dismiss
can never be a lawful demand’.
456 Law@work

If the dispute giving rise to a strike has been settled or the employer has
agreed to the demands, the strike no longer has a purpose. In Afrox Ltd v
SACWU & others; SACWU & others v Afrox Ltd 39 Landman J held that a strike can
terminate in many ways such as when the strikers abandon the strike and return
to work unconditionally but another possible way is ‘by the disappearance of
the substratum . . . [i]f the casus belli is removed, for example, by the employer
conceding to the demands of the strikers or by removing the grievance or by
resolving the dispute then the foundations of the strike fall away’.40 If the strike
no longer has a purpose it terminates, and so does the protection conferred by
the Act.41

2.3.2 In respect of a matter of mutual interest

The LRA does not define a matter of mutual interest.42 The phrase has a signifi-
cant pedigree, and was introduced in the 1924 Industrial Conciliation Act.43 The
concept assumes two intertwined elements – the existence of an employment
relationship, and a mutuality of interest shared by the employer and the em-
ployee.44 The concept is not limited, as is sometimes thought, to interest disputes.
The LRA draws no direct distinction between rights and interests disputes, nor
does it confine legitimate industrial action to one category or the other.45 In sec-
tion 65(1)(c), the LRA prohibits strikes and lock-outs when the issue in dispute is
one that a party has the right to refer to arbitration or to the Labour Court in
terms of any employment law.46 All of these are disputes about matters of mutual
interest, but none of them may be the subject of a protected strike.

3 Protected and unprotected strikes: substantive limitations

If a strike complies with the statutory requirements in Chapter IV of the LRA, the
strike is protected. Employees engaged in a protected strike are given immunity

________________________

39 [1997] 4 BLLR 382 (LC).

40 At 386.
41 For a discussion of the possible loss of protected status in the event of strike-related vio-
lence, see Rycroft ‘Can a Protected Strike Lose its Status? Tsogo Sun Casinos (Pty) Ltd v
Future of SA Workers Union & others (2012) 33 ILJ 998 (LC), (2012) 33 ILJ 821.
42 See ch 17.
43 Act 11 of 1924.
44 Cheadle and Bamu (fn 32) at 94.
45 See NUM obo Snyders & others and Sonop Delwery [2005] 8 BLLR 858 (CCMA) in which the
union argued that their conflict did not amount to a strike because the dispute related to
payment and not to a matter of mutual interest as required by the definition of strike in
s 213. Cheadle and Bamu (fn 32) at 95 reasoned that the ‘point is that a matter of mutual
interest can include rights. The fact that section 65 of the LRA prohibits strikes in respect of
certain specified legal entitlements does not mean that “a matter of mutual interest” in the
definition of strike does not embrace rights. Logically, if disputes over matters of mutual in-
terest excluded rights disputes, most of the limitations in section 65 would be redundant’.
46 See para 3 ‘Protected and unprotected strikes: Substantive limitations’. Prior to the Labour
Relations Amendment Act 6 of 2014 (LRAA) s 65(1)(c) made reference only to disputes
that may be referred to arbitration or to the Labour Court in terms of the LRA.
Strikes and lock-outs 457

from delictual claims and claims for breach of contract and are protected
against dismissal.47 No right is absolute, however, and the LRA provides for spe-
cific limitations to the right to strike. We discuss first the substantive limitations
and then examine the procedural limitations.
Section 65 states in the first instance that no person may take part in a strike or
lock-out or in any conduct in contemplation or furtherance of a strike or lock-
out if:
l that person is bound by a collective agreement that prohibits a strike or
lock-out in respect of the issue in dispute;
l that person is bound by an agreement that requires the issue in dispute to
be referred to arbitration;
l the issue in dispute is one that a party has the right to refer to arbitration or
to the Labour Court in terms of the LRA or any other employment law unless
the issue in dispute is about a matter dealing with a trade union’s access to
the workplace, deduction of trade union dues, representatives of a trade
union or leave for trade union activities; or
l that person is engaged in an essential service or a maintenance service.
Section 65 goes on to state that in the absence of a collective agreement to
the contrary, no person may take part in a strike or lock-out if the person is
bound by any arbitration award or collective agreement that regulates the
issue in dispute or any ministerial or statutory determination or a determination
regulating the issue in dispute.48

3.1 Employees are bound by a collective agreement prohibiting

strikes and lock-outs
The purpose of this restriction is to prevent employers and employees from re-
sorting to the right to strike or lock-out in situations where the parties themselves
have previously agreed that it will not be appropriate for them to resort to indus-
trial action over a particular issue at a particular time. Only a registered trade
union can agree to waive the right to strike in terms of section 65(1)(a). The col-
lective agreement may, however, bind non-parties to the agreement.49
In South African National Security Employers Association v TGWU & others50 the
employer sought to interdict a strike in support of wage demands for the period
following the expiry of an existing wage agreement. The Labour Appeal Court
held that employees could strike in support of their demands in relation to future
agreements even if the strike was called during a period in which a binding
agreement was in force.51

________________________

47 S 67(4) of the LRA.

48 S 65(3) of the LRA. See also Vodacom (Pty) Ltd v CWU [2010] 8 BLLR 836 (LAC).
49 It has been argued that this prohibition of strike action may be unconstitutional in terms of
s 23(2)(c) of the Constitution.
50 [1998] 4 BLLR 364 (LAC).
51 NUMSA & others v Hendor Mining Supplies [2003] 10 BLLR 1057 (LC).
458 Law@work

In Vodacom (Pty) Ltd v CWU 52 the Labour Appeal Court held that when a
collective agreement regulates the issue in dispute a certificate stating that the
dispute with the employer remains unresolved would not ‘override the clearly
stated limitation upon the right to strike as contained in section 65(1)(a) . . . In
short, a certificate can in no way trump the clear provisions of the limitation’.53

3.2 Employees are bound by an agreement to refer a dispute to

arbitration
Section 65(1)(b) is wider in scope than section 65(1)(a) as it refers to an agree-
ment and not a collective agreement. It is possible that agreements between
employer and individual employees, including a contract of employment, will
be covered by this provision.

3.3 The issue in dispute must be referred to arbitration or to the

Labour Court
Although the LRA provides a framework within which employers and employees
and their representatives can bargain collectively over matters of mutual in-
terest, the Act endorses the use of arbitration in certain circumstances. Section
191 of the LRA, for example, sets out the situations in which a dispute about an
unfair dismissal or unfair labour practice must be referred for conciliation and
then to arbitration or to the Labour Court.54
Section 65(1)(c) requires the court to identify those disputes that a party ‘has
the right to refer to arbitration or the Labour Court in terms of this Act or any
other employment law’. The most common disputes that fall into this category
include disputes about unfair dismissals, unfair labour practices, and the appli-
cation and interpretation of collective agreements. However, there are border-
line cases that have caused problems when courts have been required to iden-
tify the issue in dispute in terms of section 65(1)(c). In Coin Security Group (Pty)
Ltd v Adams & others55 the court held that how the party defines the dispute is
not conclusive and that it will favour substance over form in order to establish
the true nature of the dispute. In this case, the Labour Appeal Court held that a
strike was unprotected in circumstances where the reason for the strike was a
dispute over an alleged breach of a collective agreement or an alleged unfair
labour practice. Both issues could be referred to arbitration.
The scope of the prohibition in section 65(1)(c) was examined in Ceramic In-
dustries Ltd t/a Betta Sanitaryware v NCABAWU.56 In this case, the employees
referred two disputes to the CCMA: non-payment of wages; and a complaint
about harassment by managers and a demand that the managers be dis-
missed. On appeal, the court held that this was a dispute that was justiciable:

________________________

52 Fn 48.
53 At para 11.
54 S 191 of the LRA.
55 [2000] 4 BLLR 371 (LAC).
56 (1997) 18 ILJ 671 (LAC).
Strikes and lock-outs 459

[t]he union could not convert the nature of that underlying dispute into a non-
justiciable one simply by adding a demand for a remedy falling outside those pro-
vided by the Act. The tail cannot wag the dog . . . [t]he refusal of a demand, or
the failure to remedy a grievance, always needs to be examined in order to
ascertain the real dispute underlying the demand or remedy. The demand or rem-
edy will always be sought to rectify the real, underlying, dispute. It is the nature of
the dispute that determines whether a strike in relation to it is permissible or not.57
Disputes about organisational rights fall into a unique category. Trade unions that
meet the required thresholds set by sections 12 to 15 of the LRA may ultimately
resort to arbitration to acquire organisational rights. Section 65(2)(a), as discussed
above, states that ‘despite section 65(1)(c) a person may take part in a strike or
a lock-out . . . if the issue in dispute is about any matter dealt with in sections 12–
15’. The effect of this provision, read with section 65(2)(b), is that unions that
meet the required thresholds may elect either to strike or to refer the dispute to
arbitration. Unions that do not meet the threshold (and therefore do not qualify
for the acquisition of organisational rights through arbitration) may exercise the
right to strike in support of their demands. Section 189A similarly gives a union
the choice of referring a dispute about the substantive fairness of a retrench-
ment to the Labour Court for adjudication or giving notice of a strike.58

3.4 Employees are bound by arbitration awards, collective

agreements and ministerial or statutory determinations
In terms of section 65(3)(a)(i) no person may take part in a strike or lock-out while
bound by a collective agreement regulating the issue in dispute. This does not
preclude a strike over issues that are not regulated by the award or the collect-
ive agreement. If, for example, the award or agreement regulates minimum
wages, then it may be possible to strike over actual wages.59 The prohibition only
applies if the issue in dispute is actually regulated by the collective agreement.60
Similarly, if a matter has been determined by a binding determination or the
BCEA,61 industrial action is prohibited, but only during the first year of that deter-
mination.

3.5 Employees engaged in essential, minimum and maintenance

services
Essential services are those services that are necessary for the protection of life
or personal safety. They are defined in section 213 as meaning:
(a) a service the interruption of which endangers the life, personal safety or
health of the whole or any part of the population;
________________________

57 At 724. See also Fidelity Guards Holdings (Pty) Ltd v PTWU [1997] 9 BLLR 1125 (LAC).
58 See ch 12 and NUMSA & others v Bader Bop (Pty) Ltd & another (fn 6); s 189A(8)(b)(ii).
59 Public Servants Association of South Africa v Minister of Justice and Constitutional Develop-
ment & others [2001] 11 BLLR 1250 (LC).
60 See also Vodacom (Pty) Ltd v CWU (fn 48).
61 Ch 8 of the BCEA makes provision for sectoral determinations which establish basic con-
ditions of employment for a specified sector and area.
460 Law@work

(b) the Parliamentary service;

(c) the South African Police Services.
The LRA also regulates minimum services and maintenance services. Minimum
services are those services provided by an employer that fall more broadly
within a service that is designated as essential.62 In terms of section 75(1), a main-
tenance service is a service which, while not essential, would result in ‘material
physical destruction to any working area, plant or machinery’ were it to be
interrupted. The nature and extent of the limitation on the right to strike in each
case is discussed below.
Even though paragraph (a) of the definition of an essential service is fairly
narrow, there is some uncertainty about which services fall within the scope of
the definition. Determining which services are to be regarded as essential is the
function of the Essential Services Committee established by the minister (after
consulting NEDLAC) in terms of section 70 of the LRA. A number of services have
been designated as essential by the Essential Services Committee: the regu-
lation and control of air traffic, the Weather Bureau of the Department of En-
vironmental Affairs and Tourism (associated with the regulation and control of
air traffic), municipal traffic services and policing, municipal health, municipal
security, the supply and distribution of water, the generation, transmission and
distribution of power, firefighting, services required for the functioning of courts,
correctional services, and blood transfusion services provided by the South Afri-
can Blood Transfusion Service.
Especially designated in paragraphs (b) and (c) of the definition of essential
services are the South African Police Service and the Parliamentary service.63
This does not mean, however, that all employees of the South African Police Ser-
vice and Parliament are prohibited from embarking on strikes. In South African
Police Service v Police and Prisons Civil Rights Union & another,64 the Consti-
tutional Court held that not all persons engaged in the South African Police Ser-
vice are engaged in an essential service. Only members of the Police Service
constitute an essential service. Persons who are employees but not members of
the Police Service are not engaged in an essential service and therefore enjoy
the right to strike.
The LRAA 2014 overhauled the mechanisms by which essential services and
minimum-services agreements are regulated. In terms of section 70A of the LRA
the minister must appoint an Essential Services Committee the majority of which
is composed of appointees nominated by the representatives in NEDLAC of
business, government and labour. The committee is administered by the CCMA
and exercises national jurisdiction. Its main functions are to monitor the imple-
mentation of essential-services determinations, minimum-service agreements,

________________________

62 See Pillay ‘Essential Services: Developing Tools for Minimum Service Agreements’ (2012) 33
ILJ 801.
63 See the definition in s 213 of the LRA.
64 2011 (9) BCLR 992 (CC).
Strikes and lock-outs 461

and maintenance service agreements and determinations. These functions are

generally conducted by panels of the committee.
Section 70C provides for the appointment of panels to investigate whether
the whole or part of any service is an essential service and to determine whether
it ought to be designated as such, to determine disputes about whether the
whole or part of any service falls within the scope of a designated service, to
ratify any collective agreement that provides for the maintenance of minimum
services in a service designated as an essential service, and to determine the
minimum services to be maintained in any service designated as an essential
service.
Section 72 requires a panel of the Essential Services Committee to designate
essential and minimum services, vary or cancel those designations, and ratify
minimum-services agreements. If a minimum-services agreement is approved
and ratified by the committee, employees in an essential service who do not
provide minimum services may strike or may be locked out; those employees
who provide the agreed or determined minimum services are not entitled to
strike, nor may they be locked out.
Maintenance services are those in respect of which strike action may have the
result of material physical damage to a workplace or to the machinery in that
workplace.65 In the absence of agreement on a maintenance service, the com-
mittee may designate a service as a maintenance service. Once designated as
a maintenance service, the employees in question (those who provide mainte-
nance services) may not strike nor can they be locked out. They will be required
to provide maintenance while those workers not engaged in the maintenance
service are on strike. If part of an employer’s business has been designated to
be a maintenance service (or it has been agreed that it is a maintenance ser-
vice), the employer will not be permitted to use replacement labour in any part
of the business during the strike.
Section 74 of the LRA prescribes the procedure for the resolution of disputes of
interest in essential services.66 Any party to a dispute about whether a service
is an essential service, whether an employer or employee is engaged in a des-
ignated essential service or whether a collective agreement should be con-
cluded to provide for minimum services may refer the dispute to the Essential
Services Committee. The committee must determine such a dispute as soon as
possible.

________________________

65 See s 75 of the LRA. Deep-level gold mining, for instance, can become permanently unsafe
and unworkable if flood pumps are not operated on a continuous basis: the pumps need
to be maintained during a strike.
66 If the parties to the dispute fall within the jurisdiction of a bargaining or statutory council,
the dispute must first be referred to that council for conciliation. If there is no council, the
dispute must be referred to the CCMA for conciliation. If conciliation by the council or the
CCMA is unsuccessful, any party to the dispute may request that the dispute be resolved
through arbitration by either the council or the CCMA. The parties to the dispute will then
be bound by the arbitrator’s award.
462 Law@work

4 Protected and unprotected strikes: procedural limitations

4.1 Referral for conciliation
The issue that is the subject of the dispute between the parties must have been
referred to the CCMA, or to the bargaining council if there is a council that has
jurisdiction, before the right to strike is acquired.67

4.2 Issuing of a certificate of outcome or expiry of 30-day period

After the referral of the dispute to the CCMA or bargaining council, there are
time-related limitations on the exercise of the right to strike. One of two events
must have occurred – either a certificate must have been issued to the effect
that the dispute remains unresolved, or a period of 30 days must have elapsed
from the date on which the CCMA or bargaining council received the referral.
The parties may agree to extend this period.68

4.3 Notice
Once the time-related conditions discussed above have been met, at least 48
hours’ notice of the intended strike must be given.69 If the issue in dispute relates
to a collective agreement to be concluded in a bargaining council, the notice
must be given to the council. If the employer is a member of an employers’
organisation that is a party to the dispute, notice can be given to the employer
organisation. If the employer is the state, seven days’ notice of the commence-
ment of a strike must be given.70
The LRA is silent as to what form the notice is to assume, and the degree of
precision that is required in stipulating the time at which a strike is to commence.
The Labour Court has held that the objective of the required statutory notice
was to give the employer proper warning of the strike, and an opportunity to
take the necessary steps to protect the business.71
In SATAWU & others v Equity Aviation Services (Pty) Ltd 72 the majority union
SATAWU called a strike in support of a wage demand. A minority union decided
not to strike but some members of that union joined in the strike. This situation
caused the employer to regard the strike by the majority union as protected but
the participation by some minority union members as unprotected. These workers

________________________

67 S 64(1)(a) of the LRA.

68 S 64(1)(a)(i)–(ii) of the LRA.
69 S 64(1)(b) of the LRA.
70 S 64(1)(d) of the LRA.
71 County Fair Foods (a division of Astral Operations Ltd) v Hotel, Liquor, Catering, Commer-
cial and Allied Workers Union & others [2006] 5 BLLR 478 (LC). However, the courts have
accepted that a union may, in principle, commence with a strike even after the day
stipulated in the strike notice (see Tiger Wheels Babelegi (Pty) Ltd v NUMSA (1999) 20 ILJ
677 (LC) and PSA v Minister of Justice and Constitutional Development [2001] 11 BLLR 1250
(LC)), and suspend and recommence a strike without giving a new or second strike notice
(Transportation Motor Spares v NUMSA (1999) 20 ILJ 690 (LC)).
72 [2006] 11 BLLR 1115 (LC).
Strikes and lock-outs 463

were dismissed. Equity Aviation claimed that when a trade union issued notice
to the employer it acted on behalf of its members, and only those employees
who were union members could strike. The Labour Court did not agree and
reasoned that section 64(1) of the LRA gives ‘every employee the right to strike’
without any clear specification on whose behalf the notice should be given.
Section 65 does not prohibit those employees who belong to a minority union
from striking. The court was therefore of the view that as long as notice had
been given in the proper manner, every employee could legitimately join in the
strike action. On appeal, the Labour Appeal Court examined whether or not
only those employees who were members of the union issuing the notice to the
employer (SATAWU) were entitled to protection in terms of section 64(1)(b).
Khampepe ADJP posed the following question:
The cardinal question that arises is whether the provisions of section 64 require non-
unionised employees or members of minority unions who are employed by the
same employer to refer the dispute to the CCMA and to give notice of the strike
action to the employer, notwithstanding that the issue in dispute has already been
conciliated albeit by other parties to the dispute, and notice has been issued by
the majority union before they can lawfully participate in a lawful strike’.73
The Labour Appeal Court found that section 64(1) requires only that the ‘issue in
dispute’ must have been referred for conciliation and that 48 hours’ notice has
been given to the employer and that thereafter any employee may join the
strike, provided that the intention of all strikers is to resolve the issue in dispute.74
In SAA (Pty) Ltd v SATAWU,75 the Labour Court examined the timing of the
notice and argued that the purpose of section 64(1) is the effective resolution of
the issue in dispute and that the section should be interpreted with this purpose
in mind. Giving notice to the employer by faxing it outside of working hours may
not satisfy the notice requirement in the section and may be seen to undermine
the requirement. The court reasoned that the Constitution and the LRA guaran-
teed a right to strike but the right is not an end in itself: ‘The structure of the Act is
one in which the right to strike is drawn from the institution of collective bargain-
ing. The right to strike, fundamental as it is, is thus not an end in itself – the resolu-
tion of disputes through collective bargaining remains the ultimate objective’.76
The court held further that fairness also required that ‘strike notice should suf-
ficiently clearly articulate a union’s demands so as to place the employer in a
position where it can take an informed decision to resist or accede to those
demands’.77 Furthermore the employer is ‘entitled to be made aware of the full
package of demands, and that it be placed in a position to assess how its
interests should be best pursued on that basis’.78

________________________

73 Equity Aviation Services (Pty) Ltd v SATAWU & others [2009] 10 BLLR 933 (LAC).
74 The Labour Appeal Court’s judgment was upheld by the Constitutional Court. See SATAWU
v Moloto [2012] 12 BLLR 1193 (CC) where the court confirmed that a strike notice need not
specify precisely which employees will participate in the strike.
75 [2010] 3 BLLR 321 (LC).
76 At paras 21–22.
77 At para 27.
78 At para 28.
464 Law@work

A notice of commencement of a strike need not be given if any one of four

conditions is met. These are:
l when the parties to a dispute are members of a bargaining council and the
dispute has been dealt with by the council in accordance with its consti-
tution;
l when the strike conforms to procedures set out in a collective agreement;
l when employees strike in response to an unprotected lock-out; and
l when the employer fails to comply with what is known as the ‘status quo’
provision in section 64(4).
Section 64(4) provides that when a dispute about any unilateral change to terms
and conditions of employment is referred for conciliation, the referring union or
employee party may require the employer not to implement the change, or to
restore the status quo if the employer has already implemented the change.
Section 64(5) requires the employer to comply with this requirement within 48
hours.
Section 64(4) is not a prohibition against unilateral changes to conditions of
employment. Disputes concerning this section arise most often in the course of
wage negotiations, when the employer party implements the wage increase it
is offering in the face of a threat of a strike. The salutary effect of the tactic on
union members is obvious, particularly when the gap between the employer’s
offer and a union’s demand is not significant. But the tactic may also undermine
the collective bargaining process, and in the absence of any statutory duty to
bargain and regulation of bargaining conduct, section 64(4) provides the only
form of recourse.
What the section does is effectively to interdict the employer from proceed-
ing with the unilateral change, until the period for statutory conciliation has been
exhausted. The ‘temporary interdict’ that the section establishes is therefore de-
signed to preserve the integrity of the bargaining process, and in the absence
of any prohibition to the contrary, the implication is that once the period has
lapsed (a certificate has been issued or 30 days or any agreed longer period
has elapsed) the employer is free to implement the change.

4.4 Advisory arbitration

When the issue in dispute concerns a refusal to bargain, then an advisory arbi-
tration award must have been made before a notice of intention to commence
a strike may be given.79 An advisory award, as the term indicates, is not binding
and parties may choose to ignore the award and pursue their demands through
industrial action.
A refusal to bargain dispute is defined to include a refusal to recognise a union
as a collective bargaining agent, a refusal to agree to the establishment of a

________________________

79 S 64(2) of the LRA: FGWU v Minister of Safety and Security (1999) 20 ILJ 1258 (LC); County
Fair Foods (a division of Astral Operations Ltd) v Hotel, Liquor, Catering, Commercial and
Allied Workers Union & others (fn 71).
Strikes and lock-outs 465

bargaining council, the withdrawal of recognition of a collective bargaining

agent, the resignation of a party from a bargaining council, and disputes about
appropriate bargaining units, bargaining levels and bargaining subjects.
A new form of advisory arbitration was introduced in January 2019 by way of
the insertion of sections 150A to D into the LRA. These provisions make it possible
for the director-general of the CCMA to appoint an advisory arbitration panel,
in the public interest, to make an advisory award in circumstances where a
strike or lock-out is no longer functional to collective bargaining in that it has
continued for a protracted period and no resolution is imminent, there is an
imminent threat to the violation of constitutional rights by persons participating
in or supporting the strike or lock-out, or the strike or lock-out causes or exacer-
bates an acute national or local crisis. The explanatory memorandum to the Bill
indicates that these amendments have been motivated by an endeavour to
resolve strikes that are intractable, while respecting ILO obligations that apply to
intervention by the state in industrial action.
A panel that is established in terms of these provisions must comprise a senior
commissioner as chairperson and two assessors, appointed respectively by the
trade union and employer party to the dispute. The appointment of the panel
does not suspend the right to strike or any recourse to lock-out in accordance
with Chapter IV of the Act. The panel must issue an award, and make recom-
mendations for the resolution of the dispute. The parties may accept or reject
the award. Section 150D sets out the conditions that apply in sectoral disputes
where the parties to the dispute are parties to a bargaining council.

5 Secondary strikes
5.1 Definition
Section 66 of the LRA establishes the right to engage in secondary strikes. The
section reads as follows:
In this section ‘secondary strike’ means a strike, or conduct in contemplation or
furtherance of a strike, that is in support of a strike by other employees against
their 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 that council, have a material interest in that demand.80
The section defines a secondary strike as a strike in support of a strike by other
employees against their employer (often referred to as a ‘primary strike’). Two
things are clear from this definition: there must be a primary strike (the employ-
ees of the primary employer must have gone on strike or at least given notice of
their intention to do so) and the target of the primary strike must be a legal
entity that is not the employer of those employees who intend to engage in the
secondary strike.81

________________________

80 S 66(1) of the LRA.

81 See SA Airways v SATAWU & others (2006) 27 ILJ 1034 (LC) at paras 19–21.
466 Law@work

A secondary strike should not be confused with what is often referred to as a

sympathy strike. Those employees who participate in a secondary strike, by def-
inition, are employed by an employer that is not a party to the dispute that has
given rise to the primary strike. Their action is secondary because they strike in
support of or in sympathy with those employees who participate in the primary
strike. Sympathy strikes, in a generic sense, include all strikes in support of a pri-
mary strike. So, for example, a secondary strike would generally be a sympathy
strike, but so will a strike by employees of the primary employer who are not dir-
ectly affected by the issue giving rise to the strike. This often occurs when em-
ployees who are not engaged in a bargaining unit in respect of which a dispute
exists elect to participate in a strike called in respect of that dispute. The em-
ployees concerned stand to gain no direct benefit by striking, so their strike is
one in sympathy with those who do. Because the same employer employs
them, however, their strike is not a secondary strike as defined by the LRA. So for
example, in SATAWU & others v Equity Aviation Services (Pty) Ltd 82 the Labour
Court held that ‘it would be absurd to have a protected and unprotected strike
in respect of the same dispute between the same employer and its employees’.
In Chubb Guarding SA (Pty) Ltd v SATAWU 83 the court considered whether
secondary strikers are required to comply with procedures contained in a bind-
ing collective agreement before they can embark on (protected) strike action.84
The court held that in the case of a secondary strike the reasonableness require-
ment in section 66 makes it essential that the collective agreement procedures
be followed.

5.2 Limitations on secondary strikes

The right to engage in a secondary strike is not unlimited. The LRA imposes three
limitations. The primary strike must be lawful, seven days’ notice must have been
given to the secondary employer, and the nature and extent of the secondary
strike must be reasonable in relation to the possible direct or indirect effect that
the secondary strike may have on the business of the primary employer.85
The first two requirements are procedural. The last of the requirements effect-
ively defines the nature and extent of any right to engage in secondary action.
The nature and scope of the application of this requirement is complex, and the
Labour Court decisions that have tackled the interpretation of this provision are
inconsistent.
The requirement that the nature and extent of secondary strike must be reason-
able in relation to the possible effect on the business of the primary employer
________________________

82 Fn 69. In this case the employer claimed that the strike by those members of a non-striking
minority union was unprotected as the majority union had only given notice for and on
behalf of its members.
83 [2005] JOL 15040 (LC).
84 In the case of primary strikes the courts have, controversially, held that employees can
elect to follow either the collective agreement or the statutory pre-strike procedures (see
County Fair Foods (Pty) Ltd v FAWU & others [2001] 5 BLLR 494 (LAC) and Columbus Joint
Venture t/a Columbus Stainless Steel v NUMSA [1997] 10 BLLR 1292 (LC)).
85 S 66(2).
Strikes and lock-outs 467

necessarily implies a principle of proportionality. The first enquiry into proportion-

ality is a factual one, and requires an evaluation of the nature and extent of the
proposed secondary action. This in turn involves an enquiry into the effect of the
strike on the secondary employer. The enquiry then shifts to a determination of
whether the secondary strike is capable of having any effect on the business of
the primary employer, and if so, the nature and extent of that pressure. Finally,
the proportionality principle must be applied by balancing the reasonableness
of the nature and extent of the secondary strike against its effect on the primary
employer.
The application of the principle is best illustrated by way of example. If a motor
car manufacturer is in a wage dispute that is the subject of a primary strike, and
if the employees of a tyre company that supplies the car manufacturer decide
to embark on a secondary strike and do so by refusing to deliver tyres to the car
manufacturer, the secondary strike will probably be protected. In this instance,
the secondary strike has a direct impact on the business of the primary employer
(it receives no tyre deliveries) and the nature and extent of the strike is one that
is limited in relation to the secondary employer (the refusal is not to deliver to all
car manufacturers, but only not to the one that is affected by the primary strike).
Section 66 provides that a secondary employer may apply to the Labour
Court to interdict any secondary strike that does not comply with the section.
The secondary employer must give 48 hours’ notice of any intention to apply for
an interdict.
The decision of the Labour Court in SALGA v SAMWU 86 is a good illustration of
the three limitations on, or requirements for, a secondary strike. This case occur-
red at the time of the protracted and costly public service strike in mid-2007. The
South African Municipal Workers Union (SAMWU) sent a letter to SALGA (an em-
ployers’ organisation) on 1 June 2007 in which the union stated that ‘it was con-
sidering engaging in secondary industrial action in support of a wage demand
made by public servants’,87 and that the proposed industrial action was to be
limited to a ‘short and sharp’ one-day strike on 13 June 2007.88 The court
acknowledged that the LRA permits secondary strikes but held that the right to
strike in this manner is not unlimited.89 The court examined the nexus between
the municipality and the national and provincial spheres of government and the
co-operative system of government established by the Constitution. The Labour
Court held that
whether or not a secondary strike is protected is determined by weighing up two
factors – the reasonableness of the nature and extent of the secondary strike (this
is an enquiry into the effect of the strike on the secondary employer and will require
consideration, inter alia, of the duration and form of the strike, the number of em-
ployees involved, their conduct, the magnitude of the strike’s impact on the sec-
ondary employer and the sector in which it occurs) and secondly, the effect of the

________________________

86 [2008] 1 BLLR 66 (LC).

87 At para 4.
88 At paras 8 and 17.
89 At para 9.
468 Law@work

secondary strike on the business of the primary employer, which is in essence an

enquiry into the extent of the pressure that is placed on the primary employer.90
The court concluded after a careful assessment of the facts that SAMWU had
succeeded in establishing compliance with the requirement that the nature
and extent of the secondary strike was reasonable in relation to its effect on the
business of national government.91 On appeal92 the Labour Appeal Court up-
held the application of the proportionality principle and the decision by the
Labour Court that the nature and extent of the secondary strike would impact
directly or indirectly on the primary employer and was reasonable in relation to
the business of national government.93

6 Protest action
Section 77 of the LRA establishes a right to engage in protest action. Protest
action is defined in section 213 to mean ‘the partial or complete concerted
refusal to work, or the retardation or obstruction of work, for the purpose of pro-
moting or defending the socio-economic interests of workers, but not for a pur-
pose referred to in the definition of strike’. In other words, protest action assumes
the form of a strike, but it is called for a different purpose. The reference to the
promotion and defence of the socio-economic interests of workers is drawn
from the decisions of the ILO’s supervisory bodies which have considered that
the right to strike is a legitimate means of defending workers’ economic and
social interests. These are not limited to occupational interests in the form of
better wages and conditions of work, they refer also to economic and social
policy issues that are of direct concern to workers. Contrasted with these in-
terests are purely political interests, which do not fall within the ambit of the right
to strike, or the right to engage in protest action. The line between political issues
and socio-economic interests is obviously fine.
The LRA prohibits employees engaged in essential or maintenance services
from participating in a protest action and sets four conditions that must be met
before a protest will be protected:94
l the protest action must be called by a registered trade union or federation
of trade unions;
l the parties who called out the protest action must serve a notice on NEDLAC
and this notice must state the reasons for the protest action as well as the
nature that the protest action will assume;
l the matter that gives rise to the protest action (as described in the notice to
NEDLAC) must be considered by NEDLAC or another appropriate forum; and
________________________

90 At para 16.
91 At para 23.
92 SALGA v SAMWU [2011] 7 BLLR 649 (LAC). The application of the proportionality principle
had previously been rejected by the Labour Court. See, eg, Hextex & others v SA Clothing
and Textile Workers Union & others (2002) 23 ILJ 2267 (LC).
93 At paras 16–17.
94 S 77(1) of the LRA.
Strikes and lock-outs 469

l the registered union or federation of unions must give NEDLAC at least 14

days’ notice of the intention to proceed with the protest action.

7 Protected strikes
Once a strike is protected, the right to participate in the strike extends beyond
the group of employees who are directly affected by the dispute, or its out-
come.95 Employees who are engaged outside the bargaining unit in which the
dispute exists may strike,96 as may employees who are not members of the
union that issued the strike notice.97

7.1 Immunities
7.1.1 Against claims for breach of contract or delict
The LRA offers protection to strikes and strikers where the requisite procedures
have been followed. Immunity is given against delictual claims by the employer
and against claims for breach of contract.98 The employer is also prevented
from interdicting anyone taking part in a protected strike or lock-out or claiming
damages for any conduct in contemplation or furtherance of a strike or lock-
out or any other civil action.99
This immunity, however, does not ensure that the employee will receive re-
muneration during the strike,100 nor is an employee immune from any conduct
that is unlawful.101 On the other hand, an employer’s failure to comply with a
clause that regulates when disciplinary action may be taken against employees
engaged in a short, unprotected strike102 or when an employer acts unreasonably
________________________

95 Early Bird Farms (Pty) Ltd v FAWU & others [2004] 7 BLLR 628 (LAC).
96 CWIU v Plascon Decorative (Inland) (Pty) Ltd (fn 22).
97 SATAWU v Moloto (fn 74).
98 S 67(2) of the LRA states that ‘[a] person does not commit a delict or a breach of contract
by taking part in a protected strike or a protected lock-out or in any conduct in contem-
plation or in furtherance of a protected strike or protected lock-out’.
99 See Coin Security Group (Pty) Ltd v SANUSO (1998) 19 ILJ 43 (C).
100 S 67(2) states that participation in a protected strike is not a breach of contract and logic-
ally therefore the employer would be obliged to continue paying the employees taking
part in the strike. To avoid this situation, the LRA provides in s 67(3) that despite subsection
(2) ‘an employer is not obliged to remunerate an employee for services that the employee
does not render during a protected strike or lock-out’. There are, however, exceptions to
this rule including payment in kind for ‘accommodation, food and basic amenities of life’.
101 S 67(8) expressly excludes any conduct that is an ‘offence’. This presumably includes both
civil and criminal offences, such as trespass, vandalism, assault, intimidation or other acts
of misconduct against the property and person of the employer, other employees, cus-
tomers and the like. See also Mondi Ltd – Mondi Kraft Division v CEPPWAWU & others (2005)
26 ILJ 1458 (LC).
102 In CWU & others v SA Post Office Ltd (2005) 26 ILJ 1679 (LC) it was held that where a col-
lective agreement states that no disciplinary action may be taken against employees who
are involved in an unprotected strike before the expiry of a certain period, and the em-
ployees are dismissed in contravention of this provision the dismissal will probably be sub-
stantively and procedurally unfair.
470 Law@work

and unlawfully towards its employees103 may result in the employer being sanc-
tioned and the dismissal being unfair. In NUMSA & others v Pro Roof Cape (Pty)
Ltd 104 the court held that ‘the employer’s provocative conduct contributed sig-
nificantly to the strike action and mitigates its unprocedural nature’.105 It was
held further that the employees had acted peacefully during the short strike
and that the behaviour of the employer may mitigate the seriousness of the em-
ployee’s misconduct in engaging in an unprotected strike. The court therefore
found that the dismissals were substantively and procedurally unfair. In NUMSA &
others v Atlantis Forge (Pty) Ltd 106 the court held that in the final analysis the dis-
missal for going on an unprotected strike was unfair even though the employ-
ees’ demand, regarding the late payment of bonuses, was not legitimate and
the employees had not acted responsibly.
It is clear from these recent cases that the court will not allow the employer to
dismiss workers who are on an unprotected strike without just cause.107

7.1.2 Against dismissal

Section 67(4) of the LRA provides that an employer may not dismiss employees
for taking part in a protected strike. This is possibly the most valuable protection
offered to employees – if an employee is dismissed for participation in a pro-
tected strike, in terms of section 187(1)(a) this will be an automatically unfair
dismissal.108
As mentioned above, however, employees may not engage in any unlawful
conduct during a strike; if they do, section 67(4) will not protect them and they
may be dismissed fairly. Equally, employees may be dismissed on the basis of the
employer’s operational requirements, but the courts will then examine whether
the real reason for the dismissal was indeed the operational reasons of the em-
ployer. In SACWU & others v Afrox Ltd 109 the Labour Appeal Court held that
there is a two-fold enquiry to establish the reason for dismissal of strikers:
The first step is to determine the factual causation . . . would the dismissal have
occurred if there was no participation or support for the strike? If the answer is yes,
then dismissal was not automatically unfair. If the answer is no, that does not
render the dismissal automatically unfair; the next issue is one of legal causation,
________________________

103 In NUMSA & others v Pro Roof Cape (Pty) Ltd (2005) 26 ILJ 1705 (LC) it was held that an
ultimatum must give employees a reasonable time to reflect on their conduct and discip-
linary hearings for dismissed employees must be held before dismissal and not after dis-
missal as happened in this case.
104 Ibid.
105 Ibid at para 31.
106 [2005] 12 BLLR 1238 (LC).
107 An employer is not entitled to take disciplinary action against employees where they com-
ply with an ultimatum, unless the right to do so has been explicitly reserved – MM & G
Engineering (Pty) Ltd v NUMSA & others (2005) 26 ILJ 1326 (LAC). When an employer dis-
misses strikers after issuing an ultimatum without first consulting the union, such dismissal
may be procedurally unfair (National Union of Metalworkers of South Africa (NUMSA) v
CBI Electric African Cables [2014] 1 BLLR 31 (LAC)).
108 See ch 10 for a full discussion on this issue.
109 (1999) 20 ILJ 1718 (LAC).
Strikes and lock-outs 471

namely whether such participation or conduct was the ‘main’ or ‘dominant’ or

‘proximate’ or ‘most likely cause’ of the dismissal.110
In fact, the employer must follow the usual procedures for a dismissal for oper-
ational reasons before dismissing employees, who are on a protected strike, for
operational reasons.111

7.1.3 Against discrimination

In addition to the immunity given to those engaged in a protected strike against
unfair dismissal, the LRA protects strikers against discrimination by the employer.
Section 64(1) gives ‘every employee . . . the right to strike’ and when read with
section 5112 of the LRA this means that no employer may do anything that will
discriminate against, or prejudice, those workers on strike by preferring or bene-
fiting those not on strike. This means that employers may not give financial bene-
fits or bonuses to those workers not on strike or withdraw discretionary benefits
from those on strike.113

7.1.4 Against claims for compensation

Section 68(1)(b) provides that where a strike or lock-out does not comply with
the provisions in Chapter IV for a protected strike or lock-out the Labour Court
has jurisdiction to ‘order the payment of just and equitable compensation for
any loss attributable to the strike or lock-out’. By implication, therefore, if a strike
or lock-out is protected there is immunity from a claim for compensation.
Section 68(1)(b), however, does require that the court take cognisance of the
following:
l whether attempts were made to comply with the provisions of the Act and
what was the nature of those attempts;
l whether the strike or lock-out was premeditated;
l whether the strike or lock-out was in response to unjustified conduct by
another party to the dispute;
l whether there was compliance with an order restraining the strike or lock-
out;
l the interests of orderly collective bargaining;
l the duration of the strike; and
l the financial position of the employer, trade union and the employees.
The court therefore has discretion to award compensation or not. It has been
held that before the court will exercise its discretion it must be satisfied that the
strike is indeed unprotected, that the employees or trade unions involved have
participated in the unprotected strike and that the employer suffered a loss as a
________________________

110 Ibid at para 32.

111 See ch 10 at para 3 ‘Participation in a strike or protest action’.
112 S 5(1) of the LRA states that ‘[n]o person may discriminate against an employee for exer-
cising any right conferred by this Act’. Refer also to ch 14.
113 See Du Toit et al Labour Relations Law: A Comprehensive Guide (2015) at 221-223 and
356-358. See also FAWU v Pets Products (Pty) Ltd [2000] 7 BLLR 781 (LC).
472 Law@work

result of the strike.114 In Rustenburg Platinum Mines Ltd v Mouthpiece Workers

Union it was held that an employer would only be entitled to compensation that
was just and equitable and this would be determined by weighing up the loss
suffered against the nature of the conduct and the blameworthiness of those
responsible.115 In Algoa Bus Company v SATAWU & others116 the Labour Court
held that the employer was entitled to compensation where the strike was un-
lawful and brought the business to a halt but the company was not entitled to
full compensation in a situation where the strike was short-lived. The court held
that compensation must be just and equitable and this meant ‘no more than
that compensation must be fair’.117

7.2 The right to picket

Members and supporters of a registered trade union have the right to picket in
support of a protected strike or in opposition to protected and unprotected
lock-outs. This right is regulated by section 69 of the LRA and is further protected
by the fundamental rights to freedom of expression118 and freedom of assem-
bly119 in the Constitution.
Section 69(1) gives a registered trade union the right to authorise a picket by
its members and supporters for the purpose of demonstrating peacefully in
support of a protected strike and in opposition to any lock-out, protected or
unprotected.
A Code of Good Practice on Picketing (the ‘code’) has been issued by NED-
LAC120 and this gives employers, employees and members of the public guide-
lines on what is acceptable behaviour for those taking part in a picket. There is
sometimes a fine line between what is acceptable and what constitutes intimid-
ation and is therefore not acceptable in a picket.121
The Code of Good Practice on Picketing sets out the purpose of the picketing
in item 26(1):
The purpose of the 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 pro-
tected strike. The nature of the support can vary. It may be to encourage employ-
ees not to work during the strike or lock-out. It may be to dissuade replacement
labour from working. It may also be to persuade members of the public or other
employers and their employees not to do business with the employer.

________________________

114 Rustenburg Platinum Mines Ltd v Mouthpiece Workers Union [2002] 1 BLLR 84 (LC).
115 Ibid at 91F. The parties would arguably retain their common-law rights to claim compen-
sation.
116 [2010] 2 BLLR 149 (LC).
117 At para 44.
118 S 16 of the Constitution.
119 S 18 of the Constitution.
120 GN 1396 in GG 42121, dated 19 December 2018.
121 Du Toit et al (fn 113) at 367 state that conduct ‘should at least be shown to have induced
a reasonable apprehension of harm in the person at whom it was directed’ before it is
regarded as intimidatory.
Strikes and lock-outs 473

The courts have held that picketing employees may stand outside the gates of
the employer’s premises in a public area and hold, display or wave placards to
communicate with the employer and the public or anyone who may have deal-
ings with the employer. The communications should not constitute a criminal
offence. The picketing employees and supporters can also speak with members
of the public and sing, chant or dance to draw attention to their cause.122 The
code establishes that the only duty of the police is to uphold the law and not to
take any view on the merits of the dispute.123
Section 69(2) goes on to provide that the picket may be held in any place to
which the public has access but outside the premises of the employer, or, with
the employer’s permission, inside its premises. Permission to hold the picket
inside the employer’s premises may not be unreasonably withheld.124
In a series of changes introduced with effect from 1 January 2019, section 69
now requires that unless there is a binding collective agreement that regulates
picketing, when a dispute that may give rise to a strike is referred for concili-
ation, the commissioner conciliating the dispute must attempt to secure agree-
ment on picketing rules before the 30-day cool off period contemplated by
section 64(1)(a)(ii) expires. If no picketing rules are agreed or established in that
period, the commissioner must determine picketing rules, based on those that
form the subject of the code, and taking into account the circumstances of the
workplace and the intended location of the picket, any relevant code of prac-
tice and any representations made by any party in attendance at the concili-
ation meeting.
The picketing rules determined by the commissioner may provide for picket-
ing in a place other than that controlled by the employer (eg a shopping mall
in which the employer is a tenant), if that person has had an opportunity to
make representations to the commissioner before the rules are determined. The
commissioner may also determine rules that provide for picketing on the em-
ployer’s property if the commissioner is satisfied that the employer’s permission
to do so has been unreasonably withheld. The commissioner is required to de-
termine the picketing rules before the certificate of outcome is issued in terms of
section 64(1)(a).
In a significant amendment to the regulation of picketing, the newly intro-
duced section 69(6C) provides that no picketing may take place unless picket-
ing rules are agreed in a collective agreement binding on the trade union con-
cerned, or in an agreement secured by a commissioner during the 30-day cool
off period, or determined by the commissioner at the time that a certificate of
outcome is issued.
The protections that are afforded to employees who participate in a pro-
tected strike (see section 67) are extended to employees who call for or partici-
pate in a picket that complies with section 69.
________________________

122 See further Picardi Hotels Ltd v FGWU (fn 15) for the various acts enumerated by the court
that may be performed by picketing employees.
123 Item 7 of the code.
124 S 69(3) of the LRA.
474 Law@work

If there is a dispute about the right to picket (including any dispute about
whether the right to picket has been undermined or a material breach of a
picketing agreement), the dispute must be referred to the CCMA for concili-
ation. If it remains unresolved, it may be referred to the Labour Court for adjudi-
cation.125 Section 69(12) gives the Labour Court the power to grant just and
equitable relief, including urgent interim relief, which may include an order
directing compliance with a picketing agreement or rule, varying a picketing
agreement or rule, or suspending a picket at one or more of the locations des-
ignated in a collective agreement or picketing rules. Notice periods for the
bringing of an application are prescribed (see section 69(13)), but the Labour
Court may permit a shorter period of notice in defined circumstances.126
Picketing disputes differ from other disputes in that members of the public may
also be involved and have cause to interdict or sue picketing employees. This
was the case in Fourways Mall (Pty) Ltd & another v SACCAWU & another 127
where it was held that a party that is not the employer may seek an interdict
against picketing employees in the High Court since there is no employment
relationship and the dispute therefore falls outside the jurisdiction of the Labour
Court.
The right to picket is not unqualified. The Supreme Court of Appeal has held
that the Regulation of Gatherings Act 205 of 1993 is applicable to strike and pro-
test action that becomes riotous, and that the public is entitled to be protected
from ‘the tyranny of the mob’.128 When a strike or protest becomes riotous the
public interest trumps the demands of workers, and unions and union organisers
are potentially liable for damage caused by union members. The Constitutional
Court upheld the Supreme Court of Appeal’s judgment and expressed the view
that organisations must be alive to the possibility of damage and cater for it
from the beginning to the end of the protest action. They must be satisfied ‘that
an act or omission causing damage is not reasonably foreseeable and that
reasonable steps are continuously taken to ensure that the act or omission that
becomes reasonably foreseeable is prevented’. When holders of the right to
assemble and demonstrate peacefully have no intention of acting peacefully,
‘they lose their constitutional protection’.129
In Dis-Chem Pharmacies Ltd v Malema & others,130 the Labour Court relied on
Garvis to find that where a picket is no longer peaceful, the right to grant ‘just
and equitable relief’ extended to an order in terms of which picketing rules were

________________________

125 S 69(8)–(11) of the LRA.

126 See s 69(14).
127 (1999) 20 ILJ 1008 (W).
128 South African Transport and Allied Workers Union v Garvis & others [2011] 12 BLLR 1151
(SCA).
129 SATAWU v Garvas & others [2012] 10 BLLR 959 (CC) at para 44. See also Wallis ‘Now You
Foresee It, Now You Don’t – SATAWU v Garvas & others’ (2012) 33 ILJ 2257.
130 (2019) 40 ILJ 855 (LC).
Strikes and lock-outs 475

suspended and declared of no further force and effect for the duration of the
issue in dispute.

8 Lock-outs
A lock-out is a form of industrial action that may be exercised by an employer.
The 1956 LRA defined a lock-out in more expansive terms as including termin-
ation of employment. As will be noted from the definition below, the definition
of lock-out under the LRA is limited to an exclusion of employees from the em-
ployer’s workplace. Whether this is limited to a physical exclusion from the em-
ployer’s workplace remains to be decided. As indicated in the Introduction to
this chapter, employers have recourse to lock-out in terms of the LRA but they
do not have a right to lock-out and no reference is made to the recourse to
lock-out in the 1996 Constitution.
Section 213 of the LRA defines a lock-out to mean:
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.
This definition does not allow for a ‘secondary’ lock-out as the employer must
have a demand that it must seek to compel its employees to accept.131 The
Labour Court has held that a lock-out demand must encompass more than
simply requiring of employees to perform their obligations in terms of their con-
tracts of employment.132
A distinction is sometimes drawn between offensive and defensive lock-outs.
These are not terms that are used in the LRA. However, in section 76 which
places limits on the use of replacement labour during a protected strike, the LRA
refers to a lock-out, in response to a strike.133 In practical terms, the distinction

________________________

131 Du Toit et al (fn 113) suggest (at 341) that ‘Under the previous Act the employer could
have avoided its obligation to pay those employees who continued to tender their ser-
vices by locking out the entire workforce. The lock-out of non-striking employees, however,
is effectively a secondary lock-out and appears no longer to be covered by the defin-
ition’. This argumentation seems sound and this results in the position that an employer
who locks out an entire workforce may be held liable for breach of contract in relation to
those employees who tender services but who are excluded from the workplace and not
paid their wages.
132 See Vanadium Technology (Pty) Ltd v NUMSA (1997) 18 ILJ 740 (LC), as referred to in Du
Toit et al (fn 113) at 340.
133 S 76(1)(b) of the LRA. In SACTWU v Stuttafords Department Stores Ltd (1999) 20 ILJ 2692 (LC)
the employer hired casual employees that it was in the habit of employing on an ad hoc
basis, as replacement labour for the locked-out employees on the basis that this was a
regular pool of workers and the company was merely following normal practice. The court
held that this was not acceptable and that s 76 was wide enough to cover this type of
arrangement. The other instance when replacement labour is not permitted is where a
part of the employer’s business has been designated as a maintenance service (s 76(1)(a)).
476 Law@work

between the two is one that relates to the use of replacement labour – where a
lock-out is in response to a strike, the employer is entitled to employ persons to
continue to maintain production during the course of the protected strike.
The substantive limitations on the right to lock-out mirror those that apply to
strikes. For example, an employer may not lock-out in respect of an issue where
the employer is bound by a collective agreement that prohibits a lock-out, or
where the issue is one that must be referred to arbitration or where the em-
ployer is engaged in an essential service. Similarly, the procedural requirements
contained in section 64 of the LRA apply to lock-outs. Thus an employer is
bound by the conciliation requirements established by section 64(1)(a), and the
notice requirements (48 hours)134 in section 64(1)(c). However, where the lock-
out is in response to an unprotected strike the procedures need not be followed
but the employer must be sure that the workers are indeed on strike before
instituting a lock-out without giving notice.135
An employer engaged in a protected lock-out enjoys indemnity against any
delictual liability or breach of contract committed by engaging in a protected
lock-out, and no civil proceedings may be instituted against the employer in that
regard. Employees who are locked out therefore are not entitled to remuner-
ation, despite the fact that they may tender their services during the course of
the lock-out.136
In the case of a sectoral level dispute, where a dispute giving rise to a lock-
out has been referred to a bargaining council for conciliation, an employer is not
entitled to lock-out members of a minority union that was not a party to a bar-
gaining council at the time that the dispute was referred. In Transport & Allied
Workers Union of SA v Putco Ltd,137 the employer had locked out all of its em-
ployees in support of a sector-wide wage dispute, including employees who
were members of a minority union that was not a party to the bargaining coun-
cil. The Constitutional Court, overturning the Labour Appeal Court, held that if
no demand had been made of the union (because it was not a party to the
bargaining council), its members could not be lawfully locked out. Further, no
conciliation had taken place involving members of the minority union.
If a lock-out is unprotected, the affected employees may claim compen-
sation that is just and equitable for any loss attributable to the lock-out.138

________________________

134 Except in the case of the State where, as for a strike, the required notice is seven days.
135 See Vanadium Technology (Pty) Ltd v NUMSA (fn 132) and Kgasago & others v Meat Plus
CC (1999) 20 ILJ 572 (LAC).
136 S 67 of the LRA.
137 (2016) 37 ILJ 1091 (CC).
138 S 68(1)(b) of the LRA.
17
Dispute resolution

Page
1 Introduction .................................................................................................... 479
2 What is a ‘dispute’? ....................................................................................... 480
3 Inspectorate of the Department of Employment and Labour................. 483
4 The CCMA ...................................................................................................... 485
4.1 Main functions of the CCMA ............................................................... 485
4.2 Dispute resolution processes: conciliation .......................................... 486
4.3 Dispute resolution processes: arbitration ............................................ 488
4.3.1 General ........................................................................................ 488
4.3.2 Inquiry by arbitrator ..................................................................... 490
4.4 Dispute resolution processes: con-arb ................................................ 491
5 Bargaining councils ....................................................................................... 491
6 Legal representation ..................................................................................... 492
7 The Labour Court ........................................................................................... 494
8 Powers of the Labour Court.......................................................................... 495
8.1 Introduction ............................................................................................ 495
8.2 Review of arbitration awards ............................................................... 496
8.3 Overlapping jurisdiction ........................................................................ 500
8.4 Appeals against judgments of the Labour Court .............................. 504
9 The Labour Appeal Court ............................................................................. 504
10 The Constitutional Court ............................................................................... 506

477
Dispute resolution 479

1 Introduction
In many countries, labour disputes are resolved by specialist institutions1 includ-
ing labour courts,2 tribunals3 and administrative boards,4 or a combination of
these. The main reasons for the establishment of specialist dispute resolution struc-
tures include the need for expeditious, efficient and affordable procedures, and
easily accessible, specialist but informal institutions.5
The Explanatory Memorandum to the draft Labour Relations Bill observed that
the Bill ‘fundamentally and dramatically overhauls the dispute resolution pro-
cedures, machinery and institutions’.6 In comparison to the dispute resolution
institutions and procedures established by the 1956 LRA, the overhaul effected
by the LRA is indeed both fundamental and dramatic. Central to the Act is the
CCMA, an independent statutory body once referred to as a ‘one-stop shop’ for
resolving labour disputes.7 Labour legislation places a premium on conciliation,
and generally speaking, all labour disputes must be referred to the CCMA for
conciliation before referral to the next stage of the dispute resolution process.
Bargaining councils retain the dispute resolution role that they had under the
1956 LRA, consistent with the philosophy of autonomy and self-regulation within
organised sectors. Unlike its predecessor, the LRA accords a significant role to
privately agreed dispute resolution procedures, and gives statutory recognition
and support to dispute resolution by accredited private agencies.8 The Act also
establishes specialist labour courts, ring-fenced from the civil court system, and
staffed by judges appointed with the concurrence of NEDLAC.9 Underlying the
________________________

1 Hepple ‘Labour Courts: Some Perspectives’ (1980) Current Legal Problems 169. Le Roux
‘Substantive Competence of Industrial Courts’ (1987) 8 ILJ 183; Jordaan and Davis ‘The
Status and Organization of Industrial Courts: A Comparative Study’ (1987) 8 ILJ 199.
2 Specialist labour courts operate in France (Conseil de Prud’hommes), Germany (Arbeits-
gericht) and Sweden (Arbetsdomstolen).
3 In Great Britain the Industrial Tribunal performs this role.
4 In the USA, the National Labor Relations Board performs a number of dispute resolution
functions.
5 See The Complete Wiehahn Report Parts 1–6 (1982) part 1, ch 5, at para 1.4.22 for a dis-
cussion of the reasons why the Industrial Court was established and the Explanatory Memo-
randum prepared by the Ministerial Task Team published in (1995) 16 ILJ 278 for the reasons
for the establishment of the CCMA and labour courts.
6 Explanatory Memorandum (fn 5) at 283.
7 Explanatory Memorandum (fn 5) at 327.
8 In the Explanatory Memorandum the drafters note: ‘One of the draft Bill’s central themes is
its recognition of privately agreed procedures. Where these exist, the parties are not re-
quired to follow the statutory procedures. A dispute will proceed through the mechanisms
agreed to by the parties’. S 24(1) of the LRA provides that each collective agreement,
except an agency shop agreement and a closed shop agreement, must provide for a
procedure to settle any dispute regarding the interpretation or application of the collec-
tive agreements.
9 Jordaan and Davis (fn 1) at 219 cite De Givry ‘Labour Courts as Channels for the Settle-
ment of Labour Disputes – An International Review’ 1986 British Journal of Industrial Relations
364 at 371 who alludes to the fact that a number of principles are significant for the proper
functioning of labour courts, namely: labour courts should be appointed on a permanent
basis; Labour Court judges should have special experience and knowledge in labour
continued on next page
480 Law@work

new dispute resolution system is the imperative that labour disputes should be
resolved efficiently, expeditiously and inexpensively – one of the primary object-
ives of the LRA is ‘to promote the effective resolution of labour disputes’.10

2 What is a ‘dispute’?
An appreciation of the workings of the statutory dispute resolution mechanisms
is dependent on an understanding of the manner in which the LRA defines and
categorises labour disputes. Section 213 of the Act does not define a ‘dispute’
in any substantive sense – the definition simply states that a ‘dispute’ includes
an ‘alleged dispute’.11 The Labour Appeal Court has noted that logically, a dis-
pute requires, at a minimum, a difference of opinion about a question.12
Although it is often suggested that the LRA distinguishes between disputes of
right and disputes of interest,13 the Act does not distinguish between different
types of disputes in those terms. To classify disputes as either interest or rights dis-
putes may be a convenient shorthand to distinguish respectively disputes about
the creation of new rights and disputes about the application of existing rights,
but these labels may lead to confusion when attempting to identify the nature
of a particular dispute and its potential destinations under the dispute resolution
structure established by the LRA.14
The primary concept at work in the statutory structure is that of a dispute about
‘a matter of mutual interest’ between employers and/or their collective organ-
isations on the one hand, and employees and/or trade unions on the other. The
LRA does not define the term ‘matter of mutual interest’ but it is used in a num-
ber of different contexts. Section 134 provides generally that disputes about
matters of mutual interest may be referred to the CCMA. The same formulation
is to be found in section 51, in relation to disputes about matters of mutual interest

________________________

matters; labour courts should have exclusive jurisdiction in individual contracts of em-
ployment and collective agreements; settlement should be sought by means of concili-
ation before judicial determinations are made; procedures should be simplified and all
measures should be taken to expedite procedures; services should be free of charge; and
workers should enjoy protection against discrimination which could prevent them from
having recourse to the labour courts.
10 See s 1(d)(iv) of the LRA.
11 This has been held to mean that an actual impasse is not necessary for there to be a dis-
pute – it is sufficient that there be a demand made on a party that given an opportunity
to comply with it, does not comply. See Edgars Stores (Pty) Ltd v SACCAWU [1998] 5 BLLR
447 (LAC) and Du Toit, Godfrey, Cooper, Giles, Cohen, Conradie and Steenkamp Labour
Relations Law: A Comprehensive Guide (2015) at 129–130.
12 Health & Other Services Personnel Trade Union of SA obo Tshambi v Department of Health,
KwaZulu-Natal (2016) 37 ILJ 1839 (LAC) at para 17.
13 See, eg, Department of Justice & Constitutional Development v Van der Merwe NO &
others (2010) 31 ILJ 1184 (LC) at para 23.
14 This is not to say that distinguishing between disputes of right and disputes of interest is an
unhelpful exercise. Many jurisdictions draw this distinction, particularly for the purposes of
demarcating jurisdictions of dispute resolution bodies, for limiting the right to strike, or both.
The point here is that the LRA does not use this terminology.
Dispute resolution 481

that arise within the registered scope of a bargaining council. The definitions of
‘strike’ and ‘lock-out’ in section 213 both refer to disputes about matters of
mutual interest, and effectively require that the purpose of any industrial action
must be to resolve ‘a dispute about any matter of mutual interest between
employer and employee’.15
The courts have interpreted the phrase ‘matter of mutual interest’ widely,16
and it is perhaps best thought of as a matter that arises in the context of the
employment relationship. The Labour Court once described a matter of mutual
interest as ‘any issue concerning employment’.17 The Constitutional Court re-
cently observed that the term ‘mutual interest’ is not defined in the LRA, but
that it ‘serves to define the legitimate scope of matters that may form the sub-
ject of collective agreements, matters which may be referred to the statutory
dispute-resolution mechanisms, and matters which may legitimately form the
subject of a strike or lock-out’.18 Disputes about matters of mutual interest would
appear to exclude disputes that concern the promotion or defence of workers’
social and economic interests,19 as well as what might be termed purely politi-
cal disputes.
A dispute about a matter of mutual interest should not be equated with an
interest dispute – these are very different concepts. Interest disputes, like rights
disputes, when they arise in the context of an employment relationship, are sub-
sets of the broader category of disputes about matters of mutual interest. In
other words, disputes about ‘matters of mutual interest’ include disputes of right
as well as disputes of interest.20
The LRA distinguishes three sub-categories of disputes within the broader cate-
gory of disputes about matters of mutual interest, and draws distinctions be-
tween them based on the dispute resolution mechanism by which they must
ultimately be resolved. The three sub-categories are:
l disputes that are arbitrable (in other words, disputes that must be arbitrated
by the CCMA or a bargaining council having jurisdiction);
l disputes that are justiciable (in other words, disputes that must be adjudi-
cated by the Labour Court); and

________________________

15 See ch 16.
16 See Rand Tyres & Accessories (Pty) Ltd v Industrial Council for the Motor Industry (Tvl),
Minister for Labour & Minister for Justice 1941 TPD 108.
17 De Beers Consolidated Mines Ltd v CCMA & others [2000] 5 BLLR 578 (LC). See also
National Union of Metalworkers of South Africa obo members v South African Airways SOC
Ltd & another [2017] 9 BLLR 867 (LAC).
18 Department of Home Affairs & another v Public Servants Association & others (2017) 38 ILJ
1555 (CC), quoting Vanachem Vanadium Products (Pty) Ltd v National Union of Metal-
workers of SA & others [2014] 9 BLLR 923 (LC).
19 These may be the subject of protest action – see the definition of ‘protest action’ in s 213,
and s 77 of the LRA.
20 De Beers Consolidated Mines Ltd v CCMA & others (fn 17) at 581C. See also Department
of Home Affairs & another v Public Servants Association & others (fn 18), especially at para
7 and more generally, Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration & others [2013] 5 BLLR 434 (LAC).
482 Law@work

l disputes that must be resolved by the exercise of economic power (in other
words, disputes in respect of which parties can either strike or lock-out in
support of their demands).
The LRA indicates, in each case, which disputes are to be resolved by which
process. For example, section 9 provides that disputes about the application
and interpretation of any provision of Chapter II (freedom of association) must
ultimately be referred to the Labour Court for adjudication. Section 191 requires
disputes about unfair dismissals, when the reason for dismissal is misconduct or
incapacity, to be arbitrated. If the reason for dismissal is alleged to be automat-
ically unfair, the dispute must be referred to the Labour Court for adjudication.
There is no general rule that applies, although in most instances, disputes about
the creation of new rights (especially in relation to the wage-work bargain) are
to be resolved ultimately by economic power, whereas disputes about statutory
rights and rights established by existing collective agreements are usually arbi-
trable or justiciable. This is not a clean distinction – there are at least two cat-
egories of dispute where parties have a choice of either arbitration or adjudica-
tion on the one hand or industrial action on the other. These are disputes about
organisational rights21 and disputes about whether there is a fair reason for a dis-
missal on account of the employer’s operational requirements.22 In both in-
stances, an election must be made whether to strike in support of a demand
made of the employer or whether to refer the dispute to arbitration (in the case
of organisational rights) or to the Labour Court (in the case of an unfair dismis-
sal). An employee dismissed for reasons related to operational requirements,
when that employee is the only employee dismissed by the employer, may
elect to refer a dismissal dispute to the Labour Court or to have the dispute arbi-
trated by the CCMA.
The classification of a dispute as one concerning a matter of mutual interest,
and the further classification of the dispute as arbitrable, justiciable or the sub-
ject of economic power, is not only an academic exercise. The classification of
a dispute determines whether the dispute may be referred to the statutory dis-
pute resolution processes at all, and, if it may, what options are available to the
referring party. The following examples illustrate the point. If a trade union wishes
to promote the social and economic interests of workers by calling for a stay-
away from work in protest against an increase in VAT, the issue is not likely to
concern a matter of mutual interest between an employer and its employees; it
is better classified as a matter that concerns the socio-economic interests of
workers. That being so, the issue must be resolved through the protest action
procedures established by section 77 of the LRA. If a trade union calls for a stay-
away in support of a campaign against the deployment of troops in foreign
jurisdictions, the issue is likely to be classified as purely political and therefore not
as a matter of mutual interest. If a trade union is in dispute with an employer
over a wage increase that the union has demanded, the dispute is clearly one
that concerns a matter of mutual interest. Section 134 directs that the dispute
________________________

21 See ch 14.
22 See ch 12.
Dispute resolution 483

be referred to the CCMA for conciliation. If conciliation fails, the Act does not
provide for the dispute to be arbitrated or adjudicated (except in the case of
an essential service), so sections 64 and 65 apply: the parties may exercise their
rights to strike and lock-out. If a trade union is in dispute with an employer over
the dismissal of a shop steward who the union alleges has been victimised, the
dispute clearly concerns a matter of mutual interest and in terms of section 191
may be referred to the CCMA for conciliation. If the dispute is not resolved,
section 191(5)(b)(i) requires the union to refer the dispute to the Labour Court for
adjudication. If an employee is dismissed for poor work performance, the dis-
pute would be referred to the CCMA for conciliation and then to arbitration by
the CCMA in terms of section 191(5)(a)(i), since the reason for dismissal is in-
capacity.
The classification of disputes also has implications for the right to strike. One of
the elements that limit the right to strike is whether the issue in dispute is one that
a party has the right to refer to arbitration or to the Labour Court in terms of em-
ployment laws.23 In general terms, there is no right to strike in support of these
issues.24
In summary: the statutory dispute resolution process requires that all disputes
first be referred to the CCMA or a bargaining council for conciliation. Only after
a failed attempt at conciliation, or the expiry of the time limits prescribed for
conciliation, may disputants opt for the next level of dispute resolution. The LRA
provides for three broad further avenues:
l parties can resort to industrial action in respect of disputes about matters of
mutual interest that are neither arbitrable nor justiciable;
l most relatively uncomplicated individual disputes, including individual unfair
dismissal and unfair labour practice disputes, are arbitrated by the CCMA or
accredited bargaining councils; and
l more complex disputes, which include disputes in respect of automatically
unfair dismissals, unfair discrimination, unfair retrenchment and disputes re-
garding the exercise of rights of freedom of association, are referred to the
Labour Court for adjudication.
Since there is no single dispute resolution body for all labour disputes, it is essen-
tial for any party to a labour dispute to choose the forum that has jurisdiction
over the particular dispute.

3 Inspectorate of the Department of Employment and Labour

The discussion so far has assumed the existence of a dispute arising out of the
application and interpretation of rights established by the LRA, where the Labour
Court and the CCMA have jurisdiction to adjudicate and arbitrate the dispute.
Other labour statutes, notably the BCEA and the EEA, establish labour inspectors
as the first level of dispute resolution. Post-1995 labour statutes have largely
________________________

23 See s 65(1)(c) of the LRA.

24 See ch 16.
484 Law@work

decriminalised the enforcement of labour laws and established a rationalised

enforcement system administered by labour inspectors whose role is, initially at
least, persuasive rather than punitive.25 This, in theory, makes it possible for an
inspector to deal with any employment law during a visit to an employer’s
premises.26
This first level of dispute resolution does not preclude aggrieved employees
from approaching the Labour Court in all instances. Section 4 of the BCEA pro-
vides that a basic condition of employment constitutes a term of each contract
of employment and section 77(3) states that ‘the Labour Court has concurrent
jurisdiction with the civil courts to hear and determine any matter concerning a
contract of employment’. The Labour Court exercises this jurisdiction irrespective
of whether any basic condition of employment constitutes a term of the con-
tract. In Makume v Hakinen Transport CC; Moyi v Inkhunzi Contractors (Pty) Ltd;
Shashape v Tswaing Local Municipality 27 the court confirmed that not all provi-
sions of the BCEA constitute basic conditions of employment and some disputes,
such as disputes relating to the issuing of certificates of service or to information
about remuneration, should be referred to the detailed enforcement structure
contained in Chapter 10 of the BCEA.
To return to the structured enforcement mechanism in terms of the BCEA and
the EEA, those statutes empower inspectors, who perform their functions subject
to the direction and control of the Minister of Employment and Labour,28 to
enforce compliance with employment laws.29 The broad structure of the func-
tions of the labour inspectors entail that an inspector must first seek to obtain a
written undertaking from the employer to comply with the provisions of an Act.30
If the employer fails to comply with the written undertaking, the Director-
General may apply to the CCMA to make the undertaking an arbitration
award.31 An inspector has the power to enter a workplace with or without a
warrant or notice,32 to question persons, make copies of documents and inspect
premises.33
An inspector who has reasonable grounds to believe that an employer has
not complied with any provision of the BCEA may issue a compliance order.34
________________________

25 However, employers may still be fined in terms of, eg, the EEA. See ch 7.
26 Du Toit et al Labour Relations Law: A Comprehensive Guide (fn 11) at 639 et seq. Benjamin
‘Enforcement and Sanctions to Promote Compliance with South African Labour Legislation’
(2011) 32 ILJ 805 at 810 points out that in 2007–2008 200 665 inspections were carried out
by labour inspectors and a rate of 78 per cent was recorded. In 2008–2009 153 697 inspec-
tions were conducted with a compliance rate of 82 per cent.
27 (2011) 32 ILJ 928 (LC). See also Fourie v Stanford Driving School & 34 Related Cases (2011)
32 ILJ 914 (LC); Indwe Risk Services (Pty) v Van Zyl: In re Van Zyl v Indwe Risk Services (Pty)
Ltd (2010) 31 ILJ 956 (LC); Ephraim v Bull Brand Foods (Pty) Ltd (2010) 31 ILJ 951 (LC).
28 S 63 of the BCEA.
29 S 64(1) of the BCEA.
30 S 68(1) of the BCEA.
31 S 68(3) of the BCEA.
32 S 65 of the BCEA and s 35 of the EEA.
33 S 69(1) of the BCEA.
34 S 68(3) of the BCEA.
Dispute resolution 485

The employer must comply with the terms of the compliance order within the
stipulated time, unless the employer refers a dispute concerning compliance
with the award to the CCMA within that period.35 The Director-General may
apply to the CCMA to have a compliance order made an arbitration award.
The CCMA may issue an award if it is satisfied that the compliance order was
served on the employer and the employer has not referred a dispute concern-
ing the compliance order.36
The Labour Court may issue an order requiring the employer to comply with
the provisions of the Act and, subject to certain limitations, order the payment
of any amount owing to the employee.
The newly-enacted section 73A provides that subject to an earnings thresh-
old, any employee or worker as defined in section 1 of the National Minimum
Wage Act (‘NMWA’)37 may refer a dispute to the CCMA concerning any
amount owing to the employee in terms of that Act, the BCEA, a contract of
employment, a sectoral determination or a collective agreement.38 The dispute
is to be determined by arbitration if it remains unresolved after conciliation.39

4 The CCMA
4.1 Main functions of the CCMA
The CCMA is the centrepiece of the statutory dispute resolution system. This
state-funded institution has national jurisdiction40 with offices in all nine provinces
of South Africa.41 The CCMA is an autonomous statutory agency and operates
independently from the state.42 The CCMA performs a key dispute resolution
role, and more than 160 000 labour disputes are referred to it each year.43 The
governing body of the CCMA appoints part-time and full-time commissioners
whose primary functions are to conciliate and arbitrate labour disputes in terms
of the LRA and other labour statutes.
The CCMA has four main obligatory functions. These are:
l to conciliate disputes referred to the CCMA in terms of the Act;

________________________

35 S 69(5) of the BCEA.

36 S 73(2) of the BCEA.
37 S 1 of the National Minimum Wage Act defines a ‘worker’ to mean ‘any person who works
for another and who receives, or is entitled to receive, any payment for that work whether
in money or in kind’.
38 S 73A(1) of the BCEA.
39 S 73A(4) and (5).
40 S 114(1) of the LRA.
41 S 114(3) of the LRA.
42 Ss 112–113 of the LRA.
43 The CCMA Annual Report 2017-2018 (available at http://ccmarecovery.syncrony.com/About-
Us/Reports-Plans/Annual-Reports/Token/ViewInfo/ItemId/15) at 11 and 26 records that a total
of 186 902 cases were referred to and 148 403 conciliations were heard by the CCMA for the
2017/2018 reporting year.
486 Law@work

l if the dispute remains unresolved, to arbitrate the dispute if the applicable

legislation so requires, or by the consent of the parties;
l to assist in the establishment of workplace forums; and
l to compile and publish information and statistics about its activities.
The LRA establishes a number of additional functions which the CCMA may
undertake. These include giving advice to parties, helping them obtain legal
advice, making rules regarding various proceedings, supervising ballots, publish-
ing guidelines, and conducting and publishing research.

4.2 Dispute resolution processes: conciliation

Conciliation is an intervention by an independent third party, who assists parties
to a dispute to arrive at a mutually agreed outcome. The conciliator assists par-
ties to reach their own agreement, and makes no binding determination on
them. Section 135 requires a commissioner to conciliate disputes referred to the
CCMA. Proceedings are confidential and conducted on a without-prejudice
basis.44 ‘Conciliation’ is not defined in the Act, but a commissioner is entitled to
determine the process to be used, which may include mediation, conducting a
fact-finding exercise and making a recommendation to the parties, including
an advisory arbitration award.
Conciliation forms an integral part of the LRA’s dispute resolution process.45
The overall value of this consensus-seeking process is twofold.46 First, employers
and employees are involved in an employment relationship. It is beneficial to
any relationship to settle disputes through agreement rather than resolving them
by means of a final decision where there will always be a winner and a loser.
Secondly, settlements have the advantage of lessening the burden on the
CCMA and other dispute resolution mechanisms by avoiding the need to go
through the arbitration process.47 A referral to conciliation is also a jurisdictional
precondition – the Constitutional Court recently affirmed that a failure to refer
an unfair dismissal dispute to conciliation had the consequence that the Labour
Court had no jurisdiction to determine the dispute.48
The LRA requires that unfair dismissal disputes be referred to the CCMA within
30 days of the date of the dismissal, or within 30 days of the employer’s making
a final decision about the dismissal.49 Unfair labour practice disputes must be
referred within 90 days of the act or omission that allegedly constituted the

________________________

44 See CCMA rule 16.

45 See Kasipersad v CCMA [2003] 2 BLLR 187 (LC) for an overview of the role of a conciliator.
46 Brand, Lötter, Mischke and Steadman Labour Dispute Resolution (1997) at 30–31.
47 The CCMA Annual Report 2017-2018 (fn 43) at 11 records that 18 942 arbitration awards
were sent to parties of labour disputes that were referred to the CCMA.
48 National Union of Metalworkers of SA v Intervalve (Pty) Ltd 2015 (2) BCLR 182 (CC) at 194.
49 See s 191(1)(b)(i) of the LRA. Should an employee appeal against the employer’s decision,
the date for the referral would be the date of the decision of the appeal. See SACCAWU
& another v Shakoane & others [2000] 10 BLLR 1123 (LAC); Halgang Properties CC v Western
Cape Workers Association [2002] 10 BLLR 919 (LAC).
Dispute resolution 487

unfair labour practice.50 In terms of the EEA, disputes concerning unfair discrim-
ination have to be referred to the CCMA within six months after the act or omis-
sion that allegedly constitutes unfair discrimination.51 A referring party completes
and signs LRA Form 7.1152 before serving it on all the parties to the dispute and
the CCMA.53 In this document, the applicant describes the parties to the dis-
pute, the nature of the dispute, the date of the dispute and the result of the
arbitration. If a dismissal dispute is referred outside the 30-day period, the CCMA
has no jurisdiction to conciliate the dispute unless the applicant applies for
condonation.54
The CCMA must appoint a commissioner to attempt to conciliate the dispute
within 30 days of the date the CCMA received the referral.55 Conciliation pro-
ceedings are private and confidential and are conducted on a without preju-
dice basis.56 The primary role of the commissioner is to assist the parties to re-
resolve the dispute themselves by devising a process that the commissioner
deems appropriate. This may include a process of mediation, fact-finding or the
making of an advisory arbitration award.57 The appointed commissioner has
wide powers that may be exercised during the conciliation process, or if unsuc-
cessful, during the arbitration procedure. It includes the power to:58
l subpoena any person for questioning;
l subpoena a person who is believed to be in possession of books, documents
or objects which might be required for the resolution of a dispute;
l call an expert witness;
l administer the oath; and
l after obtaining the necessary written authorisation, enter premises and retain
for a reasonable period, any book, document or object.
If the dispute is settled, the agreement may be made an arbitration award59 or
an order of court.60
Legal representation is not permitted at conciliation proceedings. Represen-
tation is limited to directors or employees of the employer party to the dispute,
or a member of a close corporation, and a member, office-bearer or official of
________________________

50 See s 191(1)(b)(ii) of the LRA.

51 See s 10(2) of the EEA.
52 CCMA rule 10(1).
53 See s 191(3) and the definition of ‘serve’ in s 213. The document may be served by hand,
at the address chosen by the person to receive service, by fax, telex or registered post.
See CCMA rule 5(1)(b).
54 See s 191(2). CCMA rule 9(3) states that the matters that have to be addressed in the appli-
cation include the degree of lateness, the reasons for the late referral, the referring party’s
prospects of success in the matter that is the subject of the referral, and the balance of
convenience including any prejudice to the other parties to the dispute.
55 Ss 133(1) and 135(1)–(2) of the LRA.
56 CCMA rule 16(1).
57 See s 135(3) of the LRA.
58 See s 142(1)(a)–(f) of the LRA.
59 See s 142A of the LRA.
60 See s 158(1)(c) of the LRA.
488 Law@work

a trade union representing the employee party, or any employers’ organisation

representing the employer party.
If a dispute is not resolved by conciliation, the commissioner is required to issue
a certificate of outcome recording that conciliation has failed. The issuing of the
certificate triggers time limits that apply to further steps in the dispute resolution
process.

4.3 Dispute resolution processes: arbitration

4.3.1 General
4.3.1.1 The types of disputes
The most significant, but not all, arbitration functions of the CCMA relate to unfair
dismissal and unfair labour practice disputes.61 In terms of the LRA, the CCMA
arbitrates unresolved disputes in respect of:
l the unfair dismissal of an employee for reasons relating to conduct or cap-
acity;62
l the unfair dismissal of an employee where the employee alleges that the em-
ployer made continued employment intolerable or the employer provided
the employee with substantially less favourable conditions or circumstances
at work after a transfer of a business as a going concern;63
l the employee does not know the reason for the dismissal;64
l an alleged unfair labour practice;65
l the exercise of organisational rights;66
l the interpretation of those collective agreements that do not make provision
for dispute resolution procedures;67 and
l instances where parties to a workplace forum have been unable to reach
agreement on a matter reserved for joint decision-making.68
Other labour legislation also confers arbitration functions on the CCMA:

________________________

61 The CCMA also arbitrates ‘non-strikeable’ disputes in respect of essential services and is re-
sponsible for limited arbitration functions in terms of the BCEA and the UIA. See Benjamin
‘Beyond Dispute Resolution: The Evolving Role of the Commission for Conciliation, Medi-
ation and Arbitration’ (2013) 34 ILJ 2441.
62 See s 191(5)(a)(i) of the LRA.
63 See s 191(5)(a)(ii) of the LRA. See the discussion of constructive dismissal in ch 9 at para 2.1.5
‘Constructive dismissal’.
64 See s 191(5)(a)(iii) of the LRA.
65 See s 191(5)(a)(iv) of the LRA. See s 186(2) for the definition of ‘unfair labour practice’, and
ch 8.
66 See s 21 of the LRA.
67 S 24(1) provides that every collective agreement should provide for a procedure to resolve
every dispute regarding the interpretation or application of the collective agreement.
S 24(2) provides that in the absence of such a procedure, the dispute must be referred to
the CCMA for conciliation and arbitration.
68 See s 86(7) of the LRA.
Dispute resolution 489

l The BCEA provides that disputes about severance pay and disputes that can
be consolidated with unfair dismissal disputes may be referred to the CCMA
for conciliation and arbitration.69
l The UIA states that decisions from the unemployment insurance appeals
committee can be referred to the CCMA for arbitration.70
l The SDA provides that disputes about the interpretation or application of
any of the provisions of a learnership agreement must be referred to the
CCMA for conciliation and arbitration.71
l Section 10(6)(aA) of the EEA provides that certain discrimination disputes may
be referred to arbitration.
l Section 73A of the BCEA provides that disputes about a failure to pay any
amount owing to an employee or worker in terms of the NMWA, the BCEA, a
contract of employment, a sectoral determination or collective agreement
may be determined by arbitration.

4.3.1.2 The arbitration process

The CCMA will only arbitrate a dispute if a commissioner has issued a certificate
stating that the dispute remains unresolved after conciliation. After a failed
attempt at conciliation, the applicant party completes and signs LRA Form 7.1372
and serves it on all other parties to the dispute and the CCMA73 within 90 days
after the date on which the certificate of outcome was issued.74 The parties to
the dispute must convene a pre-arbitration conference if directed to do so by the
Director of the CCMA.75 Parties to a dispute may request that their preferences
in appointing a commissioner should be taken into consideration76 and a request
that a senior commissioner must be appointed may be lodged.77
The LRA emphasises that every commissioner should conduct arbitration in a
manner that the commissioner regards as appropriate but with the least possible
________________________

69 See ss 41(6) and 74(2) of the BCEA.

70 See s 37(2) of the UIA.
71 See s 19 of the SDA.
72 CCMA rule 4 provides that the referral form may be signed by the party or person who
may represent the party in terms of the LRA. See also CCMA rule 18.
73 As is the case with LRA Form 7.11, the document may be served by hand at the address
chosen by the person to receive service, fax, telex or registered post. See CCMA rule 5(1)(b).
74 See s 136(1) of the LRA. The CCMA may, on good cause shown, apply for condonation if
the request for arbitration was filed after the 90-day period in terms of s 136(1)(b).
75 CCMA rule 20(1). In terms of CCMA rule 20(2) the parties must during these proceedings
attempt to reach consensus on aspects such as means through which the dispute may be
settled, the agreed and disputes facts, the issues to be decided by the CCMA and the pre-
cise relief claimed.
76 See s 136(5) of the LRA.
77 See s 137(1) of the LRA. In terms of s 137(2), the director grants the parties to the dispute as
well as the commissioner who conducted the conciliation of the dispute a hearing in order
to decide whether the request should be adhered to. The director may appoint a senior
commissioner to resolve the dispute through arbitration after considering the following
aspects in terms of s 137(3): the nature of the question of law; the complexity of the dis-
pute; if conflicting arbitration awards are concerned; and the public interest.
490 Law@work

legal formality so that the dispute may be resolved fairly and quickly.78 Subject
to the discretion of the commissioner regarding the form of the proceedings, a
party to the dispute may:
l give evidence;
l call witnesses;
l cross-examine the witnesses of the other party; and
l address concluding arguments to the commissioner.79
Arbitration is a hearing de novo on the merits of the dispute.80 Reasons for the
arbitrator’s decision must be provided81 and the award must be reasonable in
the sense that it must fall within a band of decisions to which reasonable decision-
makers could come on the basis of the available material.82 Subject only to the
review of awards by the Labour Court, the decisions of the CCMA are final and
binding. A commissioner may make an order as to costs according to the re-
quirements of law and fairness in accordance with CCMA rules.83 Costs are not
awarded easily by the CCMA if there is an ongoing collective-bargaining rela-
tionship between the parties. In addition, the CCMA does not wish to discour-
age individual employees from approaching the CCMA.84

4.3.2 Inquiry by arbitrator

It is possible for employers to make use of the services of the CCMA to conduct
an in-house inquiry into allegations of misconduct or incapacity.85 This process
was designed to conflate the internal disciplinary process and the statutory dis-
pute resolution process.86 Employers must have paid the prescribed fees to the
relevant dispute resolution body before pre-dismissal arbitration will be con-
ducted and the employee must have given written consent to the process being
conducted after being advised of the allegation of misconduct.87 The arbitrator
who is appointed to the inquiry has all the powers conferred on a commissioner
of the CCMA when attempting to resolve disputes by means of conciliation and

________________________

78 See s 138(1) of the LRA.

79 See s 138(2) of the LRA.
80 County Fair Foods (Pty) Ltd v CCMA [1999] 11 BLLR 1117 (LAC) at para 11.
81 See s 138(7)(a) of the LRA. See also Coetzee v Lebea (1999) 20 ILJ 129 (LC) where it was
held that it is not necessary for an arbitrator to provide full reasons.
82 Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] 12 BLLR 1097 (CC). See
para 8.2 ‘Review of arbitration awards’.
83 See s 138(10) of the LRA; CCMA rule 39(3). Costs are taxed on Sch A of the Magistrates’
Court tariff.
84 Gibb v Nedcor Ltd [1997] 12 BLLR 1580 (LC).
85 S 188A introduced by the 2002 amendments to the LRA.
86 According to the CCMA Annual Report 2005/2006 at 15, only 63 pre-dismissal arbitrations
were conducted during the corresponding period.
87 See s 188A(1). In terms of s 188A(5) a co-employee or a member, office-bearer or official of
the employee’s registered trade union may represent the employee during such proceed-
ings. If the employer is a juristic person, a director or employee may represent the em-
ployer. Should agreement be reached about it, a legal representative may also represent
any one of the parties during the inquiry.
Dispute resolution 491

arbitration.88 The arbitrator’s ruling has the status of an arbitration award. There is
therefore no right of appeal against the finding, but the finding may be taken on
review to the Labour Court.89

4.4 Dispute resolution processes: con-arb

The 2002 amendments to the LRA introduced what has become known as ‘con-
arb’ in dismissal and unfair labour practice disputes.90 Section 191(5A) requires
the CCMA or a council having jurisdiction to commence arbitration immediately
after certifying, after conciliation, that the dispute remains unresolved, if the dis-
pute concerns the dismissal of an employee or any unfair labour practice for
any reason relating to probation.91 Other unfair dismissal or unfair labour prac-
tice disputes may be resolved by con-arb in the absence of an objection by
any party to the dispute being dealt with in that manner.92

5 Bargaining councils
Collective bargaining aside, one of the most important functions of bargaining
councils is to prevent and resolve labour disputes by means of conciliation and
arbitration with regard to employees and employers under its jurisdiction.93 Under
the 1956 LRA, bargaining councils were permitted to conciliate disputes, but un-
resolved disputes had to be referred to the Industrial Court. The LRA extends
bargaining councils’ functions to the arbitration of at least some labour disputes.
Bargaining councils do not have jurisdiction to resolve all labour disputes.94 The
________________________

88 See s 188A(7). Consequently, the arbitrator may subpoena any person for questioning,
administer the oath and make a finding as to contempt of the CCMA during these pro-
ceedings.
89 Landman ‘Pre-dismissal Arbitration: The New Procedures of s 188A of the Labour Relations
Act’ 2002 CLL 11(8) at 71 suggests that, as s 188A was then formulated, the arbitration
award will only be directory and the dispute may still be referred to the CCMA or a bar-
gaining council for determination of the fairness of any action by the employer. The
recent amendment to s 188A makes it clear that a ruling by an arbitrator in an inquiry
conducted in terms of that section has the same status as that of an arbitration award
(see s 188A(8)).
90 See Rycroft ‘Re-thinking the Con-arb Procedure’ (2003) 24 ILJ 699.
91 See s 191(5A)(a)–(b) of the LRA and also ch 8 at para 4 ‘Probation’.
92 CCMA rule 17 regulates con-arb and the lodging of objections to con-arb.
93 See s 28(1)(c) of the LRA.
94 See ss 51(3) and 127(2) of the LRA for the complete list of disputes that bargaining councils
may not adjudicate. The most important of these disputes are: disputes regarding organ-
isational rights (ss 16, 21 and 22); disputes concerning collective agreements where such
agreements do not provide for resolution procedures (s 24(2)–(5)); disputes in respect of
agency shop and closed shop agreements (ss 24(6)–(7) and 26(11)); disputes regarding
ministerial awards (s 45); disputes regarding collective agreements of councils whose reg-
istration were withdrawn (s 61(5)–(8)); disputes regarding demarcation of sectors and ar-
eas (s 62); disputes regarding bargaining and statutory councils (s 63); disputes in respect
of picketing during strikes and lock-outs (s 69(8)–(10)); disputes regarding proposals which
are the object of joint decision-making (s 86); disputes regarding the disclosure of infor-
mation to workplace forums (s 89); and disputes regarding the interpretation of ch V
which deals with workplace forums (s 94).
492 Law@work

LRA requires that the following disputes must be conciliated and arbitrated by
bargaining councils:95
l disputes relating to the interpretation of Chapter II of the LRA regarding free-
dom of association;96
l disputes in relation to matters giving rise to a strike or lock-out;97
l disputes in relation to essential services;98
l disputes concerning unfair dismissals and unfair labour practices;99 and
l disputes concerning the entitlement to severance pay.100
A bargaining council must be accredited before it can perform any of its statu-
tory dispute resolution functions.101 The governing body of the CCMA must
annually publish a list of accredited councils and accredited agencies.102 The
CCMA records that 47 bargaining councils and 3 statutory councils have been
accredited.103 The main purpose of the accreditation of bargaining councils and
private agencies is to satisfy the governing body of the CCMA that the body
applying for accreditation conforms to acceptable standards.104
Parties to a bargaining council must refer their disputes to the council in terms
of the council’s constitution.105 Non-parties who fall under the registered scope
of the council, may also refer their disputes to the council.106 In practice, a num-
ber of bargaining councils have established dispute resolution procedures in
terms of collective agreements, funded by levies payable by employers and
employees who are covered by the agreement.
Statutory councils have the same powers and functions as those of bargain-
ing councils.107

6 Legal representation
The LRA places restrictions on the right to be represented during conciliation
and arbitration, because lawyers are at least perceived to have the effect of

________________________

95 See s 51(3) of the LRA.

96 See s 9 of the LRA.
97 See s 64(1) of LRA.
98 S 74 of the LRA.
99 S 191 of the LRA.
100 S 196 of the LRA.
101 Ss 52 and 127. Application may be made to perform any of the following functions,
namely: resolution of disputes through conciliation and the arbitration of disputes that
remain unresolved after conciliation.
102 See s 127(5A), introduced by the 2002 amendments to the LRA.
103 See the CCMA’s website at www.ccma.org.za.
104 See s 127(4)(a) of the LRA.
105 See s 51(2)(a)(i) of the LRA.
106 See s 51(2)(b) of the LRA.
107 See s 43 of the LRA.
Dispute resolution 493

making the process legalistic and expensive.108 During conciliation, the parties
have no right to legal representation and they must appear in person or may be
represented by a trade union or employers’ organisation.109
During arbitration, the parties have the right to appear in person or may be
legally represented in respect of some but not all disputes.110 A legal practitioner
is defined as ‘any person admitted to practice as an attorney or an advocate in
the Republic’.111 Consultants, candidate attorneys, para-legal officers and offi-
cials of unregistered trade unions and employers’ organisations do not qualify as
legal practitioners.112 Despite the general right to be legally represented during
arbitration proceedings, the rules of the LRA contain important limitations to this
right.113 If a dispute relates to unfair dismissal of an employee and the reason for
the dismissal concerns alleged misconduct or incapacity, legal representatives
are excluded from arbitration proceedings. With these types of disputes, a party
may only be represented by a legal representative if the commissioner and all
parties consent thereto114 or the commissioner decides that it would be un-
reasonable to expect, under the circumstances, a particular party to appear
without representation.115 In Netherburn Engineering CC t/a Netherburn Ceramics
v Mudau NO & others116 the Labour Appeal Court considered whether an appli-
cant has a constitutional right to be legally represented in arbitration proceed-
ings at the CCMA. Zondo JP confirmed that the PAJA does not apply to CCMA
proceedings and that in terms of the common law no such an absolute right
had been developed.

________________________

108 Collier ‘The Right to Legal Representation under the LRA’ (2003) 24 ILJ 753; Norman Tsie
Taxis v Pooe NO & others (2005) 26 ILJ 109 (LC).
109 CCMA rule 25(1)(a) provides that a director, employee or member of the employer’s
organisation may also represent an employer. A member of the employee’s registered
trade union may also represent an employee.
110 CCMA rule 25(1)(b).
111 See s 213 of the LRA.
112 Collier (fn 108) at 753. In Colyer v Dräger SA (Pty) Ltd [1997] 2 BLLR 184 (CCMA) it was
noted that candidate attorneys are not ‘legal practitioners’ as defined by the LRA. In
Vac Air Technology (Pty) Ltd v Metal and Engineering Industries Bargaining Council &
others [2006] 11 BLLR 1125 (LC) it was held that labour consultants are not legal prac-
titioners and may not appear on behalf of a party during arbitration proceedings. See
also SA Post Office Ltd v Govender (2003) 24 ILJ 1733 (LC).
113 CCMA rule 25(1)(c).
114 In Strydom v Usuko Ltd [1997] 3 BLLR 343 (CCMA) it was held that the commissioner had to
exercise his or her discretion in this regard even if the parties agreed that both should be
represented. Also see Bayley v Constantia Greetings (Pty) Ltd [1997] 3 BLLR 298 (CCMA).
115 When a commissioner exercises his or her discretion the following should be considered:
the nature of the question of law raised; the complexity of the dispute; the public interest;
and the comparative ability of the opposing parties or their representatives to deal with
the arbitration of the dispute.
116 [2009] 4 BLLR 299 (LAC). The decision was taken on appeal to the Constitutional Court in
Netherburn Engineering CC t/a Netherburn Ceramics v Mudau NO & others [2009] 6 BLLR
517 (CC) but the court declined to consider the matter due to the fact that such a long
time had lapsed.
494 Law@work

This approach has been confirmed by the Supreme Court of Appeal. In CCMA
v The Law Society of the Northern Provinces117 the court dismissed a challenge
to the constitutionality of the rule limiting the right to legal representation and
held that the rule was sufficiently flexible to permit legal representation in de-
serving cases.

7 The Labour Court

Until 1995, the Industrial Court, established as part of the 1979 package of
Wiehahn reforms, adjudicated labour disputes. Despite its name, the Industrial
Court was not a court but an administrative tribunal.118 Concerns about its legit-
imacy, the calibre of its presiding officers and delays in the adjudication process
all contributed to the decision to establish as part of the LRA, specialist labour
courts with the same status as a division of the High Court119 and the Supreme
Court of Appeal respectively.
________________________

117 CCMA & others v Law Society of the Northern Provinces (incorporated as the Law Society
of the Transvaal) (2013) 34 ILJ 2779 (SCA).
118 In SA Technical Officials Association v President of the Industrial Court (1985) 6 ILJ 186 (A),
the Appellate Division of the Supreme Court held that the Industrial Court was neither a
superior court nor indeed a court of law. The basis of the decision appears to be that de-
spite its description as a court and despite the fact that it may perform judicial functions,
the court was located and operated within the administrative sphere of influence. Of
particular significance, was the appointment of members by the Minister of Labour (those
persons were not judges or ex-judges), the ability of the minister to appoint ad hoc mem-
bers, and the limited tenure of the members of the court. See Landman ‘The Status of the
Industrial Court’ (1985) 6 ILJ 278.
119 The Explanatory Memorandum that accompanied the Labour Relations Bill that formed
the basis of the LRA (fn 5) records that the existing statutory dispute resolution processes
did not function effectively. Less than 30 per cent of disputes referred to industrial councils
were settled and only some 20 per cent of conciliation boards established resulted in
settlements. In so far as the court system was concerned, the document recorded a
number of ‘fundamental problems’. It noted that the Industrial Court was positioned out-
side the judicial hierarchy, that it lacked status, provided no security of tenure or market
related remuneration packages, nor did it provide career paths for its members or admin-
istrative staff. The ability to appeal from the Industrial Court to the Labour Appeal Court
and then to the Appellate Division resulted in lengthy delays in the resolution of disputes.
In particular, the memorandum noted the difficulty occasioned by overlapping and
competing jurisdictions. The first attempt to establish an Industrial Court or Labour Court
was made in 1932, in the Industrial Conciliation Bill. The court did not see the light of day –
the Bill was withdrawn. In 1935, the Van Reenen Commission considered but made no
recommendation on the establishment of an Industrial Court. In 1951, the Botha Commis-
sion recommended the establishment of a National Labour Board with a judicial division.
What was established was a less ambitious institution, an administrative body known as
the Industrial Tribunal. There was no further consideration given to the establishment of a
specialist Labour Court until 1979, when the Wiehahn Commission recommended that
the Industrial Tribunal be converted into an Industrial Court. After a comparative review
and a consideration of various attempts by previous Commissions to have a Labour Court
established in South Africa, the Wiehahn Report unanimously recommended the estab-
lishment of an Industrial Court. Curiously, the Commission did not think that the status of
the court was a sufficiently significant matter on which to make a specific recommen-
dation.
Dispute resolution 495

The Labour Court comprises a Judge President, a Deputy Judge President,

and as many judges as the President considers necessary.120 The President, who
in terms of section 153(1) must act on the advice of NEDLAC and the Judicial
Services Commission, appoints judges of the Labour Court. The Judge President
and Deputy Judge President of the Labour Court are by virtue of their office the
Judge President and Deputy Judge President of the Labour Appeal Court.121
Labour Court judges are drawn from the ranks of judges of the High Court and
legal practitioners and must have knowledge, experience and expertise in
labour law.122
The Labour Court is a single court with national jurisdiction. Its seat is in Braam-
fontein, Johannesburg and the court has premises in Cape Town, Durban, and
Port Elizabeth.
Although the Labour Court is established as a court of law and equity, doubts
have been expressed as to whether the term ‘equity’ adds significantly to the
court’s substantive jurisdiction.123 Subject to the Constitution and unless other-
wise provided by the LRA, the court has exclusive jurisdiction in respect of all
matters that are to be determined by the court, either in terms of the LRA or in
terms of any other law.124

8 Powers of the Labour Court

8.1 Introduction
Section 158 empowers the Labour Court to make ‘any appropriate order’ in-
cluding:
l an order for urgent interim relief;
l an interdict;
l an order of specific performance;
l a declaratory order;
l an award of compensation;
l an award of damages; and
l an order for costs.125
The Labour Court is also empowered to:
l order compliance with any provision of the LRA;
l make any arbitration award or any settlement agreement an order of court;
l request the CCMA to conduct an investigation and submit a report;
l determine a dispute between any registered trade union or registered em-
ployer’s organisation and any of its members;
________________________

120 S 152 of the LRA.

121 S 168 of the LRA.
122 S 153(2) of the LRA.
123 3M SA (Pty) Ltd v SACCAWU [2001] 5 BLLR 483 (LAC).
124 S 157(1) of the LRA.
125 S 158(1)(a)(i)–(vii) of the LRA.
496 Law@work

l condone the late filing of documents or the late referral of a dispute to the
court;
l subject to section 145, review the performance of any function provided for
in the LRA in terms of section 158(1)(g), on any grounds that are permissible
in law;
l review any decision taken by the state as employer in terms of section
158(1)(h); and
l deal with all matters necessary to perform its functions in terms of the LRA or
any other law.126
The Labour Court has also been empowered to perform functions in terms of
other labour legislation. The BCEA,127 for example, provides that the Labour
Court has concurrent jurisdiction with the civil courts to hear and determine a
matter concerning a contract of employment.128 The EEA provides that disputes
about unfair discrimination may be adjudicated by the Labour Court or where
an applicant elects to refer the dispute to arbitration, the Labour Court may
hear an appeal against any arbitration award.129 Persons affected by a deci-
sion of the Compensation Commissioner in terms of the COIDA may lodge an
appeal to the Labour Court.130 In terms of the OHSA, any person may appeal to
the Labour Court against a decision taken by the Chief Inspector.131 In terms of
the PDA, an employee may refer a dispute to be adjudicated by the Labour
Court if it is alleged that the employee has been subjected to an occupational
detriment132 and, the Labour Court has exclusive jurisdiction in respect of all
matters arising from the UIA.133

8.2 Review of arbitration awards

There are two categories of defects in arbitration proceedings that are review-
able by the Labour Court in terms of the LRA. First, arbitration awards of the
CCMA may be reviewed in terms of section 145,134 and secondly, any other
functions performed in terms of the LRA may be reviewed in terms of section
158(1)(g).135
________________________

126 S 158(1)(b)–(j) of the LRA.

127 75 of 1997.
128 S 77(3) of the BCEA.
129 S 10(2)–(8).
130 S 91(5) of the COIDA.
131 S 35(3) of the OHSA. The Labour Court has held that its appellate jurisdiction precludes it
from hearing disputes concerning any alleged breach of the OHSA as a court of first in-
stance – see Public Servants Association of South Africa obo Members v Minister of Health
& others [2019] 1 BLLR 71 (LC).
132 S 191(13) of the LRA. The dispute must be referred to conciliation and the court may order
an interim interdict pending conciliation. The disclosure must have been made bona fide
to qualify for protection. See Grieve v Denel (Pty) Ltd (2003) 24 ILJ 551 (LC); Communi-
cation Workers Union v Mobile Telephone Networks (Pty) Ltd (2003) 24 ILJ 1670 (LC).
133 S 61(1) of the UIA.
134 S 145(1) of the LRA. For a comprehensive treatment of the principles of judicial review in
South African labour law, see Myburgh and Bosch Reviews in the Labour Courts (2016).
135 S 158(1)(g) of the LRA. The Labour Court may not review arbitration awards under its
general review functions in terms of s 158(1)(g).
Dispute resolution 497

In the first category, any party who alleges a defect in respect of arbitration
proceedings under the auspices of the CCMA may apply to the Labour Court
for an order setting the award aside. The application must be filed within six
weeks of the date that the arbitration award is served on the party who wishes
to take the matter on review.136 The Labour Court may, however, on good cause
shown condone the late filing of an application for review.137 Section 145(2)
describes the ‘defects’ that are reviewable and it covers the situation where
the commissioner:138
l committed misconduct with regard to the duties of a commissioner as arbi-
trator;139
l committed a gross irregularity in the conduct of the arbitration proceed-
ings;140 or
l exceeded his or her powers as arbitrator.141
The fourth ground for review pertains to the situation where a party to the dis-
pute has improperly obtained the award.142
The exact scope of these relatively narrow grounds of review was uncertain
before the Labour Appeal Court, in Carephone (Pty) Ltd v Marcus NO & others143
and Shoprite Checkers (Pty) Ltd v Ramdaw NO & others,144 gave some sense of
direction to the debate.145 Here, the court categorised the CCMA as an organ
________________________

136 S 145(1)(b) provides that if the defect is in relation to corruption, the application must be
brought within six weeks that the applicant discovered the corruption.
137 S 145(1A). In Queenstown Fuel Distributors CC v Commission for Conciliation, Mediation
and Arbitration (2000) 21 ILJ 1197 (LC) at para 4 it was held that the court will consider the
following factors: the extent of the delay; whether there is a satisfactory explanation for
the delay; the prospects of success of the main application; and the balance of conven-
ience if condonation is granted or denied. Application for condonation is not granted
lightly. See in this regard Maseko v CCMA [2003] 11 BLLR 1148 (LC).
138 This formulation mirrors the grounds for review established in s 33 of the Arbitration Act 42
of 1965 that apply to private arbitration awards and which have traditionally been restrict-
ively interpreted.
139 An example of misconduct would be if the arbitrator was biased and not impartial. See
BTR Industries SA (Pty) Ltd v MAWU (1992) 13 ILJ 803 (A); Coates Brothers v Shanker [2003]
12 BLLR 189 (LAC).
140 It would constitute a gross irregularity if an arbitrator does not give both parties to the
dispute a fair opportunity to lead and challenge evidence. See Afrox Ltd v Laka & others
[1999] 5 BLLR 467 (LC). It also constitutes gross irregularity for a commissioner to receive and
consider documents after the hearing. See MEC Public Works, Northern Province v CCMA
& others [2003] 10 BLLR 1027 (LC).
141 Le Roux v CCMA & others [2000] 6 BLLR 680 (LC).
142 This relates to misconduct of a party to the dispute and not the arbitrator. See Moloi v
Euijen & others [1997] 8 BLLR 1022 (LC).
143 [1998] 11 BLLR 1093 (LAC).
144 [2001] 9 BLLR 1011 (LAC).
145 Regarding this debate, see Pretorius ‘Making You Whistle: The Labour Appeal Court’s
Approach to Reviews of CCMA Arbitrations’ (2000) 21 ILJ 1506; Sharpe ‘Reviewing Arbitra-
tion Awards: Towards Clarity in the Labour Courts’ (2000) 21 ILJ 2160; Le Roux ‘The Test for
Review of CCMA Commissioners: Some Certainty at Last?’ 2001 CLL 10 (12) 117; Wesley
‘Review of Arbitration Awards: Shoprite Checkers (Pty) Ltd v Ramdaw NO & others’ (2001)
22 ILJ 1515.
498 Law@work

of state146 that exercises public powers and functions when it resolves disputes in
terms of the LRA.147 The important implication of this ruling is that the Bill of Rights
and the constitutional right to fair administrative action bind the CCMA when
performing its dispute resolution functions.148 The court held that the constitutional
right to fair administrative action has broadened the scope of judicial review in
respect of arbitration awards in as far as an element of ‘rationality’ or ‘justifiability’
must be present. From this it is evident that the Labour Court is obliged not only
to review the procedural correctness of CCMA awards, but also, to a certain
extent, to consider the merits of a case in order to determine if the reasons given
for the decision is rationally justifiable.149 The Supreme Court of Appeal has em-
phasised that the application of the PAJA did not obliterate the distinction
between a review and an appeal, citing Froneman DJP’s explanation in Care-
phone (Pty) Ltd v Marcus NO:150
Value judgments will have to be made which will, almost inevitably, involve the
consideration of the ‘merits’ of the matter in some way or another. As long as the
judge determining this issue is aware that he or she enters the merits not in order to
substitute his or her own opinion on the correctness thereof, but to determine
whether the outcome is rationally justifiable, the process will be in order.
How does the PAJA impact on the Labour Court’s review jurisdiction, if at all?
The PAJA has changed the administrative law landscape.151 Its purpose is to
‘give effect to the right to administrative action that is lawful, reasonable and
procedurally fair . . . as contemplated in section 33 of the Constitution’.152 But for
the PAJA to have any relevance to the Labour Court’s powers to review arbi-
tration awards made by CCMA commissioners, two conditions must be satisfied.
First, rendering an arbitration award must constitute administrative action. Sec-
ondly, the PAJA must be read into those provisions of the LRA that establish the
nature and extent of the right of review, especially section 145.
These questions have been resolved by the Constitutional Court. In Rusten-
burg Platinum Mines Ltd (Rustenburg Section) v CCMA & others,153 the Supreme
Court of Appeal had held that CCMA arbitration awards constitute adminis-
trative action and, as such, that they are reviewable in terms of the PAJA, and

________________________

146 See the definition of ‘organ of state’ in s 239 of the Constitution.

147 Carephone (Pty) Ltd v Marcus NO & others (fn 143) at para 11. This was confirmed in
Shoprite Checkers (Pty) Ltd v Ramdaw NO & others (fn 144) at para 21.
148 S 33(1) of the Constitution states that ‘Everyone has the right to administrative action that
is lawful, reasonable and procedurally fair’. Effect has been given to this provision with
the publication of the PAJA.
149 Carephone (Pty) Ltd v Marcus NO & others (fn 140) at para 36.
150 Fn 143.
151 In Transnet Ltd & others v Chirwa [2007] 1 BLLR 10 (SCA) it was held that the PAJA has
codified the administrative law principles which had developed under the common law.
In Plasket and Khoza ‘The Fundamental Right to Reasons for Administrative Action: Mole-
tsane v The Premier of the Free State (1996) 17 ILJ 251 (O), (2001) 22 ILJ 52 the authors
suggest that judges still had to come to terms with the new legal landscape against the
backdrop of the constitutional right to fair administrative action.
152 See the Preamble to the PAJA.
153 [2006] 11 BLLR 1021 (SCA).
Dispute resolution 499

that the PAJA overrides the more limited provisions of section 145 of the LRA. The
Constitutional Court upheld an appeal against the Supreme Court of Appeal’s
judgment.154 The majority of the Constitutional Court found that arbitration by a
CCMA commissioner is administrative action within the meaning of section 33 of
the Constitution. However, the court held that the PAJA does not apply to re-
views under section 145(2) of the LRA. Section 145 is a specialised provision that
trumps the more generalised provisions of the PAJA. To the extent that Care-
phone held that section 145 of the LRA was suffused by the constitutional stand-
ard that required the outcome of an administrative decision to be justifiable in
relation to the reasons given for it, the ‘better approach’ is to regard section 145
as ‘suffused by a constitutional standard of reasonableness’.155 The effect of this
is to render an arbitration award reviewable if the commissioner’s decision is
one that a reasonable decision-maker could not reach.156
The scope of the enquiry was clarified by the Supreme Court of Appeal. In
Herholdt v Nedbank Ltd,157 the court summarised the position as follows:
A review of a CCMA award is permissible if the defect in the proceedings falls with-
in one of the grounds in s 145(2)(a) of the LRA. For a defect in the conduct of the
proceedings to amount to a gross irregularity as contemplated by s 145(2)(a)(ii),
the arbitrator must have misconceived the nature of the inquiry or arrived at an
unreasonable result. A result will be unreasonable if it is one that a reasonable arbi-
trator could not reach on all the material that was before the arbitrator. Material
errors of fact, as well as the weight and relevance to be attached to particular
facts, are not in and of themselves sufficient for an award to be set aside, but are
only of any consequence if their effect is to render the outcome unreasonable.
More recently, the Labour Appeal Court has clarified the two-stage process in
review applications, especially those that concern a challenge to the assess-
ment of fact.158 In essence, what is required is a determination of whether any
facts ignored were material. If so, the award will be prima facie unreasonable.
The second stage of the enquiry is whether on the basis of the evidence overall,
the prima facie case of unreasonableness can be displaced. In other words,
where a commissioner ignores material facts, the award will be reviewable if the

________________________

154 Sidumo & another v Rustenburg Platinum Mines Ltd & others (fn 82). This judgment is dis-
cussed more fully in ch 3. See also Myburgh ‘Determining and Reviewing Sanction after
Sidumo’ (2010) 31 ILJ 1; Fergus ‘Distinction Between Appeal and Review – Defining the
Labour Court’s Powers of Review’ (2010) 31 ILJ 1556.
155 See para 116 of the judgment of Navsa AJ (ibid).
156 In a minority judgment, Ngcobo J concluded that the conduct of arbitration concerning
an alleged unfair dismissal by an arbitrator appointed in terms of the LRA by the CCMA
did not constitute administrative action within the meaning of s 33 of the Constitution. It
was therefore unnecessary to consider whether the PAJA applies to the review of CCMA
arbitrations.
157 Herholdt v Nedbank Ltd (Congress of South African Trade Unions as amicus curiae) [2013]
11 BLLR 1074 (SCA) at para 25. For a discussion of the scope of review following this judg-
ment, see Fergus ‘Reviewing an Appeal: A Response to Judge Murphy and the SCA’
(2014) 35 ILJ 47.
158 Head of the Dept of Education v Mofokeng [2015] 1 BLLR 50 (LAC).
500 Law@work

distorting effect of the commissioner’s misdirection renders the result of the

award unreasonable.
The Labour Court’s power to review any act or omission in terms of the LRA on
any grounds that are permissible in law in terms of section 158(1)(g) empowers
the court to review any other functions performed in terms of the LRA. This pow-
er extends to all rulings and decisions of the CCMA, apart from arbitration
awards. This includes decisions regarding applications for condonation and
rulings on jurisdiction,159 and decisions by the registrar of Labour Relations to
refuse the registration of a trade union160 or a bargaining council.161 Here, the
scope of review will be one of rationality as dictated by the PAJA.
Section 158(1)(h) empowers the Labour Court to review any decision taken or
act performed by the state in its capacity as employer. The grounds for review
in terms of this action extend to a review under PAJA (provided it can be estab-
lished that the decision or act constitutes ‘administrative action’ for the purposes
of that Act) or what is referred to as a ‘legality’ review, where the impugned act
is not administrative action but involves the exercise of a public power. In either
case, the fact that the remedy of judicial review is available does not mean
that it will always be entertained – the Labour Appeal Court has held that where
a remedy to address the complaint is provided under the LRA, it should be
invoked.162

8.3 Overlapping jurisdiction

As previously noted, although the Labour Court is established as a court of law
and equity, the term ‘equity’ does not add to the court’s substantive jurisdic-
tion.163 Section 157(1) of the LRA provides that subject to the Constitution and
unless otherwise provided by the LRA, the court has exclusive jurisdiction in
respect of all matters that are to be determined by the court, either in terms of
the LRA or in terms of any other law.164 In terms of section 157(2), the Labour
Court has concurrent jurisdiction with the High Court in respect of any fun-
damental right entrenched in the Constitution, arising from employment and
labour relations, in any dispute about the constitutionality of any executive or
administrative act by the state in its capacity as an employer, and the appli-
cation of any law for which the Minister of Labour is responsible. There were two
broad views on the interpretation and application of section 157. The first is one
that is inclined to give effect to the purpose of the LRA and to have labour
disputes adjudicated solely within the structures created by the Act. The sec-
ond, more literal reading of the section, is to regard only those matters specific-
ally assigned to the Labour Court by the LRA as being excluded from the High
________________________

159 See, eg, Southern Life Association v CCMA [2001] 3 BLLR 375 (LC); CWIU v Ryan [2001] 3
BLLR 337 (LC).
160 See s 96(6) of the LRA.
161 See s 29(14) of the LRA.
162 Public Servants Association of SA on behalf of de Bruyn v Minister of Safety & Security &
another (2012) 33 ILJ 1822 (LAC).
163 3M SA (Pty) Ltd v SACCAWU (fn 123).
164 See s 157(1) of the LRA.
Dispute resolution 501

Court’s jurisdiction. These competing views were the subject of two key judg-
ments by the Constitutional Court.165
Defining the extent of the Labour Court’s exclusive jurisdiction has been prob-
lematic.166 Questions about overlapping jurisdiction arose soon after the enact-
ment of the LRA, in a number of cases involving misconduct committed by em-
ployees during the course of a strike. Despite some initial hesitation, the High
Court accepted that if the factual context was one of a labour dispute, then
the Labour Court had the exclusive jurisdiction.167 There has been less clarity in
recent years in matters in which employees have challenged disciplinary action
or threats to take disciplinary action made by their employers, or where em-
ployees have relied on an administrative law remedy rather than any remedy
available under the LRA. In the former instance, the High Court has assumed
jurisdiction, even when the claim clearly arises in the context of a labour dis-
pute. The High Court has also assumed jurisdiction in employment disputes
arising in the private sector where administrative law remedies are not as readily
available. In Feinberg v African Bank Ltd,168 the High Court held that since the
conduct of a disciplinary hearing was not a matter in respect of which the LRA
conferred exclusive jurisdiction on the Labour Court, the High Court was not
deprived of the jurisdiction to review disciplinary proceedings instituted by an
employer against one of its employees.169
________________________

165 See the discussion of Chirwa v Transnet Ltd & others [2008] 2 BLLR 97 (CC) and Gcaba v
Minister for Safety & Security & others [2009] 12 BLLR 1145 (CC) below.
166 In Langeveldt v Vryburg Transitional Local Council & others [2001] 5 BLLR 501 (LAC), the
Judge President of the Labour Appeal Court bemoaned the extent of the overlap in the
jurisdictions of the Labour Court and the High Court.
167 In Mondi Paper v PPWAWU (1997) 18 ILJ 84 (D) the High Court was approached for an
interdict to restrain striking workers from committing acts of assault, intimidation and other
misconduct. The rule nisi that was previously granted by the court was discharged on the
basis that the High Court did not have jurisdiction to entertain the matter because it was
a matter over which the Labour Court had exclusive jurisdiction. The court relied on the
circumstances as creating a ‘jurisdictional milieu’ indicating that the case ought to be
heard by the Labour Court. This approach was followed in Sappi Fine Papers v PPWAWU
(1998) 19 ILJ 246 (SE). The more difficult cases concerned proceedings against strikers in
the Labour Court where there was no employer-employee relationship. In Fourways Mall
(Pty) Ltd & another v SACCAWU & another (1999) 20 ILJ 1008 (W), the owner of a shop-
ping centre applied to a High Court to interdict the employees of one of its tenants in
interfering, intimidating and/or assaulting customers. The court held that the nature of the
dispute arose out of the law of delict as well as the law of property and that the appli-
cants were entitled to protect their property from unlawful infringement and/or injury by
the Union’s members. The court found that the dispute before him did not require any
expertise in the field of labour relations and that the High Court had jurisdiction to deal
with the matter.
168 (2004) 21 ILJ 217 (LC). See also Mantzaris v University of Durban Westville & others (2000)
21 ILJ 1818 (LC) and Mbayeka & another v MEC for Welfare, Eastern Cape 2001 (4) BCLR
374 (T).
169 In a number of instances, the High Court was willing to take an expansive view of its
jurisdiction. See Mhlambi v Matjhabeng Municipality & another (2003) 24 ILJ 1659 (O); Fein-
berg v African Bank Ltd (fn 168); Gotso v Afrox Oxygen Ltd [2003] 6 BLLR 605 (Tk). But see
Bensingh v Minister of Education & others (2003) 24 ILJ 1098 (C).
502 Law@work

In regard to contractual claims, the High Court has retained its jurisdiction.170
The Supreme Court of Appeal has broadly endorsed these developments,
stating that conduct by an employer may give rise to a number of causes of
action, and it is the cause of action relied on and not the background to the
dispute that is relevant.171 In Old Mutual Life Assurance Co SA Ltd v Gumbi 172
and Boxer Superstores Mthatha & another v Mbenya173 the Supreme Court of
Appeal confirmed that employees could refer a dispute regarding pre-dismissal
procedures to the High Court on contractual grounds. Such a matter, the court
held, must be labelled as one dealing with the ‘unlawfulness’ of the termination
of a contract of employment, whereas a dispute referred to the CCMA and the
Labour Court will be classified as an ‘unfair dismissal’ dispute. In deciding
whether a contract of employment had been ‘lawfully’ terminated, it can be
accepted that the lack of fair pre-dismissal procedures renders the termination
‘unlawful’.
The approach adopted by the Supreme Court of Appeal in Boxer Superstores
and Gumbi has been called into question by the Constitutional Court’s judg-
ment in Chirwa v Transnet Ltd & others.174 Writing for the majority, Skweyiya J
and Ngcobo J emphasise the specialist nature of the labour courts and the
LRA’s aim of establishing ‘one-stop shop’ dispute resolution structures in the
labour sphere. Ngcobo J’s judgment deals extensively with the complex jurisdic-
tional problems that have arisen both for the High Court and the labour courts.
The judgment records that in Boxer Superstores, the Supreme Court of Appeal
had considered that what mattered was not the form of the employee’s com-
plaint rather than its substance. Ngcobo J observed that this would permit an
astute litigant to bypass the whole conciliation and dispute resolution machinery
created by the LRA and ‘rob the Labour Courts of their need to exist’.175 The
judge then proceeded to reconcile sections 157(1) and (2) by having regard to
the primary objects of the LRA. In short, the drafters had intended to avoid a
multiplicity of laws and to eliminate overlapping and competing jurisdictions by
creating a specialised set of forums and tribunals to deal with labour-related
matters. The LRA entrusts these bodies with the primary interpretation and appli-
cation of its rules. Section 157(2) was enacted to confer limited constitutional
jurisdiction on the labour courts. The primary purpose of the section is ‘not so
much to confer jurisdiction on the High Court to deal with labour and employ-
ment relations disputes, but rather to empower the Labour Court to deal with

________________________

170 See, eg, Jacot-Guillarmod v Provincial Government, Gauteng (1999) 20 ILJ 1689 (T);
Fedlife Assurance Ltd v Wolfaardt (2001) 22 ILJ 2407 (SCA). See also ch 5.
171 United National Public Servants Association of SA v Digomo NO & others [2005] 12 BLLR
1169 (SCA).
172 [2007] 8 BLLR 699 (SCA).
173 [2007] 8 BLLR 693 (SCA).
174 Fn 151.
175 At para 95.
Dispute resolution 503

causes of action that are founded on the provisions of the Bill of Rights but which
arise from employment and labour relations’.176
In Gcaba v Minister for Safety & Security & others177 Van der Westhuizen J
confirmed that section 157(2) must be accorded a narrow meaning, and section
157(1) an expansive interpretation. In short, when an employee alleges non-
compliance with provisions of the LRA, the employee must seek a remedy in the
LRA – an employee cannot avoid the dispute resolution mechanisms established
by the LRA by alleging a violation of a constitutional right.
Against the background of Chirwa and Gcaba, the Supreme Court of Appeal
in SA Maritime Safety Authority v McKenzie178 made an about-turn on Boxer
Superstores and confirmed that there is no present need for the common law to
be developed to duplicate the rights already included in the LRA.
Most of the jurisdictional uncertainties that have bedevilled labour-related dis-
pute resolution have been resolved, and the dual systems of jurisprudence
appear to have been abolished. Gcaba can certainly be read to call into ques-
tion the assumption of jurisdiction by the High Court in disputes that are regu-
lated by labour legislation, and it reinforces the role of the Labour Court as the
sole forum for their resolution.179 The Supreme Court of Appeal recently summar-
ised the approach to be followed:180
Section 157(2) of the LRA was enacted to extend the jurisdiction of the Labour
Court to disputes concerning the alleged violation of any right entrenched in the
Bill of Rights which arise from employment and labour relations, rather than to re-
strict or extend the jurisdiction of the High Court. The Labour Court and Labour
Appeal Court were designed as specialist courts that would be steeped in work-
place issues and be best able to deal with complaints relating to labour practices
and collective bargaining. Put differently, the Labour and Labour Appeal Courts
are best placed to deal with matters arising out of the LRA. Forum shopping is to
be discouraged. When the Constitution prescribes legislation in promotion of spe-
cific constitutional values and objectives then, in general terms, that legislation is
the point of entry rather than the constitutional provision itself.
Finally, note that section 77(3) of the BCEA confers concurrent jurisdiction on the
Labour Court with the civil courts ‘to hear and determine any matter con-
cerning a contract of employment, irrespective of whether any basic condition
of employment constitutes a term of that contract’. The Labour Court also has
jurisdiction in respect of disputes that would ordinarily be the subject of arbi-
tration under the Arbitration Act.181 Section 157(3) provides that any reference
________________________

176 At para 120. At para 124 the court goes on to say: ‘What is in essence a labour dispute as
envisaged in the LRA should not be labelled a violation of a constitutional right in the Bill
of Rights simply because the issues raised could support a conclusion that the conduct of
the employer amounts to a violation of a right entrenched in the Constitution’.
177 Fn 165.
178 [2010] 5 BLLR 488 (SCA). See also ch 5 at para 3.4 ‘Concurrent contractual and statutory
remedies’.
179 The Superior Courts Act 10 of 2013 provides that the Labour Court will continue as a
separate, specialist court.
180 Motor Industry Staff Association v Macun NO & others (2016) 37 ILJ 625 (SCA) at para 20.
181 42 of 1965.
504 Law@work

to ‘the court’ in that Act, in respect of the arbitration of any dispute that may
be referred to arbitration under the LRA, is a reference to the Labour Court. The
Labour Court may not adjudicate a dispute that must in terms of the LRA be
referred to arbitration, unless the parties have agreed in terms of section 158(2)
that the dispute should be arbitrated.182

8.4 Appeals against judgments of the Labour Court

A party may apply for leave to appeal against any final order or final judgment
of the Labour Court. If leave to appeal is refused, the applicant may petition
the Labour Appeal Court.

9 The Labour Appeal Court

The Labour Appeal Court comprises a Judge President, a Deputy Judge Presi-
dent and the number of judges drawn from the High Court and Labour Court
that is necessary to ensure the effective functioning of the court. The President,
on the advice of NEDLAC and the Judicial Services Commission, appoints judges
of the court. The Labour Appeal Court is constituted before any three judges
designated by the Judge President. A decision on which any two judges agree
is the decision of the court.183
The Labour Appeal Court has national jurisdiction and may perform its func-
tions anywhere in the Republic. Subject to the Constitution, the Labour Appeal
Court may hear and determine all appeals against the final judgments and
orders of the Labour Court, and may decide any question of law that is reserved
for it to decide.184
The Labour Appeal Court may receive further evidence, remit the matter to
the Labour Court with instructions, or confirm, amend or set aside the judgment
or order that is the subject of the appeal. Judgments of the Labour Appeal Court
are binding on the Labour Court.185
Section 183 provides that ‘subject to the Constitution and despite any other
law’ no further right of appeal lies from the Labour Appeal Court. The court
initially adopted the view that there was no right of appeal from the Labour
Appeal Court to the Supreme Court of Appeal.186 This view was, initially at least,

________________________

182 S 158(2) contemplates the situation where it appears during Labour Court proceedings
that a matter ought not to have been referred to the court rather than to arbitration.
183 S 173(4) of the LRA.
184 S 173(1) of the LRA.
185 S 182 of the LRA.
186 Kem-Lin Fashions CC v Brunton & another [2002] 7 BLLR 597 (LAC). In Kem-Lin Fashions v
Brunton & another (2002) 23 ILJ 882 (LAC) the Labour Appeal Court was asked to grant
leave to the Constitutional Court on a constitutional matter that the applicant contended
arose in the appeal. In the course of the decision, the court referred to s 167 of the LRA
and concluded that there was no such right of appeal. The LAC held that ‘it is inconceiv-
able that a judgment of a court of local authority can be taken on appeal to a court of
equal authority and standing’.
Dispute resolution 505

not sustained. It was overruled first by the Constitutional Court,187 and then by
the Supreme Court of Appeal,188 on the basis that section 168 of the Constitution
established the Supreme Court of Appeal as the highest court of appeal except
in constitutional matters.
In the Constitution Seventeenth Amendment Act of 2012, section 168(3) was
amended to provide that the Supreme Court of Appeal ‘may decide appeals
in any matter arising from the High Court of South Africa or a court of a status
similar to [that of] the High Court of South Africa, except in respect of labour
matters or competition matters to such extent as may be determined by an Act
of Parliament’. Section 168(3)(a) of the Constitution was also amended to pro-
vide that the Supreme Court of Appeal may decide appeals in matters arising
from the High Court or court of similar status unless an Act of Parliament pro-
vides otherwise. The effect of these amendments is to restore the intention
reflected in section 162 of the LRA that the Labour Appeal Court be the final
court of appeal in respect of matters arising from the Labour Court other than
constitutional matters.189

________________________

187 See NEHAWU v University of Cape Town & others (2003) 24 ILJ 95 (CC). In that case, the
Constitutional Court stated that where it was concerned with a constitutional matter that
is not a matter within the exclusive jurisdiction of the Labour Court. The provisions of the
LRA which gave the Labour Appeal Court a status equal to that of the Supreme Court of
Appeal and Constitution as the final court of appeal can have no application in constitu-
tional matters. That provision can apply only to matters that are within the exclusive juris-
diction of the Labour Appeal Court and the Labour Court. It followed that, on a constitu-
tional matter, there was a right of appeal from the Labour Appeal Court to the Supreme
Court of Appeal.
188 See Chevron Engineering (Pty) Ltd v Nkambule & others [2004] 3 BLLR 214 (LC) and
NUMSA & others v Fry’s Metals (Pty) Ltd [2005] 5 BLLR 430 (SCA). Chevron Engineering
dealt with a matter that was heard by the Labour Appeal Court on appeal from the In-
dustrial Court. The matter was heard in terms of the transitional provision of the LRA. In
Chevron Engineering (Pty) Ltd v Nkambule & others the Supreme Court of Appeal held
that there was a right of leave to appeal from the Labour Appeal Court to the Supreme
Court of Appeal and that this right was not subject to leave to appeal being granted by
the Labour Appeal Court. Any doubt about this conclusion has been removed by NUMSA
& others v Fry’s Metals (Pty) Ltd. In that case, the Supreme Court of Appeal confirmed the
right to appeal from the Labour Appeal Court to the Supreme Court of Appeal, with the
leave of the Supreme Court of Appeal, and spelt out the terms on which that leave was
likely to be granted. In Fredericks & others v MEC for Education and Training, Eastern Cape
& others (2002) 23 ILJ 81 (CC) the Constitutional Court held that there was no general
jurisdiction afforded to the Labour Court in employment matters and that the jurisdiction
of the High Court is not ousted by s 157 simply because a dispute is one that falls within the
overall sphere of employment relations. The High Court’s jurisdiction will be ousted only in
respect of matters ‘that are to be determined’ by the Labour Court in terms of the Act.
189 See Van Eck and Mathiba ‘Constitution Seventeenth Amendment Act: Thoughts on the
Jurisdictional Overlap, the Restoration of the Labour Appeal Court and the Demotion of
the Supreme Court of Appeal’ (2014) 35 ILJ 863.
506 Law@work

10 The Constitutional Court

In respect of constitutional matters, the Constitutional Court has jurisdiction to
hear appeals from the Labour Appeal Court. Although the Constitutional Court,
in theory at least, is entitled to hear appeals directly from the Labour Court, it will
not generally do so unless the matter has been heard by the Labour Appeal
Court.190

________________________

190 Dudley v City of Cape Town & another 2004 (8) BCLR 805 (CC).
18
Employment and
social protection

Page
1 Introduction ...................................................................................................... 509
2 ‘Social protection’ and ‘social security’ ....................................................... 512
3 Social security standards ................................................................................ 513
4 Social insurance schemes .............................................................................. 515
4.1 Employment injuries and diseases .......................................................... 515
4.1.1 Statutory framework ....................................................................... 515
4.1.2 Compensation for occupational injuries and diseases ............. 516
4.2 Unemployment ......................................................................................... 522
4.2.1 Introduction ..................................................................................... 522
4.2.2 Statutory regulation ........................................................................ 523
4.3 Old age and retirement .......................................................................... 527
4.3.1 Introduction ..................................................................................... 527
4.3.2 Overview of South African regulation .......................................... 528
4.3.3 The role of the employer and third parties .................................. 529
4.4 Medical insurance .................................................................................... 531
4.4.1 Introduction ..................................................................................... 531
4.4.2 Overview of South African regulation .......................................... 531
4.4.3 HIV and AIDS ................................................................................... 534
5 Skills development and training ..................................................................... 535
5.1 Introduction ............................................................................................... 535
5.2 Regulation of skills development ............................................................ 536
5.3 The SDA, SDLA, ESA and ETIA................................................................... 537
5.3.1 Broad outline................................................................................. 537
5.3.2 Scope of application ................................................................... 538
5.3.3 Institutional frameworks ............................................................... 539
5.4 Enforcement.............................................................................................. 541
5.5 The National Development Plan ............................................................. 542
6 Social protection of migrant workers ............................................................ 542
6.1 Introduction ............................................................................................... 542
6.2 South African public social insurance and migrant workers ............... 543

507
Employment and social protection 509

1 Introduction
Social protection is a relatively new area of study in South African labour law. In
international terms however, social protection has always featured prominently
as a discrete area of study.
The ILO attaches a significant degree of importance to social protection. The
ILO’s Constitution includes references to the need to improve labour standards,
protect workers against sickness, disease and injury arising out of employment,
and to provide for old age and injury. The ILO has adopted a total of 31 con-
ventions and 23 recommendations on social security.1
In general, ILO activities in the field of social security have been rooted in the
Declaration of Philadelphia (1944), the more recent concept of ‘decent work’
and, naturally, the relevant ILO social security standards. The mandate of the ILO
is social justice as the basis for achieving peace, and social protection is re-
garded as an important building block to achieve social justice. Traditionally,
many of the initiatives in this field were limited to the formal sector of the econ-
omy and to public measures.2 The ILO today places more emphasis on the
concept of decent work in its protection strategies, with one of the main char-
acteristics of the decent work approach being that everybody is entitled to
basic social security.3 It must be accepted that the decent work deficits are,
however, still most pronounced in the informal economy.4 To this deficit, the
changing nature of employment must be added as a challenge facing the
decent work approach.5
Business often views social protection as expensive and a contributor to higher
labour costs. This may be partly true, but it is difficult to deny the necessity for
social protection, especially in developing countries and in times where the
nature and structure of the workplace are in a state of flux. After its general dis-
cussion on social security in June 2001, the International Labour Conference
________________________

1 ILO (Humblet and Silva) Standards for the XXIst Century: Social Security (2002) at 1. These
instruments cover the nine traditional branches of social security: sickness, maternity, em-
ployment injury, unemployment, invalidity, old age and death; the provision of medical
care; and the provision of subsidies for families and children.
2 This is particularly true for social insurance schemes where contributors were usually limited
to employees proper, and excluding independent contractors, self-employed persons and
atypical workers.
3 See again Art 9 of the International Covenant of Economic, Social and Cultural Rights. Van
Ginneken ‘Extending social security: Policies for developing countries’ (ESS Paper No. 13)
(2003) at 11 correctly comments that a decent work strategy aims at universality of cover-
age.
4 The ILO describes the ‘informal economy’ as referring to ‘all economic activities by workers
and economic units that are – in law or in practice – not covered or insufficiently covered
by formal arrangements. Their activities are not included in the law, which means that
they are operating outside the formal reach of the law; or they are not covered in prac-
tice, which means that – although they are operating within the formal reach of the law,
the law is not applied or not enforced; or the law discourages compliance because it is
inappropriate, burdensome, or imposes excessive costs’.
5 See ch 4 with regard to atypical employment that is becoming more and more typical.
510 Law@work

concluded that if properly managed, social security enhances productivity by

providing health care, income security and social services. The Conference also
concluded that while there is no single correct model of social security adminis-
tration, the establishment of systems based on individual savings should not
weaken solidarity systems,6 which share risks between all insured persons.7 The in-
dividualisation of social protection is clearly not preferable, and the social part-
ners must therefore play a crucial role in this field.8
Certain values, including those of prevention, restitution, solidarity, redistribu-
tion, self-sufficiency and the work ethic, are to a greater or lesser extent inherent
in all social protection frameworks.9 One may even go so far as to say that the
basis for all social protection is to uphold the value of human dignity.
Although South Africa was a founding member of the ILO, it has ratified very
few of the social security conventions. These standards nevertheless remain

________________________

6 Solidarity is always necessary for social integration. It must, however, be noted that there
are many different understandings of ‘solidarity’ and that it is largely influenced by the
prevailing political discourse and environment. An important aspect of the concept of
solidarity refers to some sort of empathy with other people: to share resources with people
in need; and to organise some sort of collective sharing with others. In social insurance
schemes the concept transcends individual charity and uses the state to redistribute re-
sources.
7 A good example of solidarity in the South African system is that of the unemployment
insurance scheme. A sliding scale of benefits ensures that those who earn less (and thus
contribute less) may claim benefits at a proportionally higher scale than those who earn
more (and contribute more). See para 4.2 ‘Unemployment’.
8 Refer also to the Committee of Inquiry into a Comprehensive System of Social Security for
South Africa: ‘Where an aspect of the social security system relies on the private market for
delivery, legislation typically has to be introduced enforcing minimum solidarity and cross-
subsidisation requirements. Without these protections, reliance on the private market will
be undermined through unilateral decisions made by the market to exclude certain groups
from cover’ (Transforming the Present – Protecting the Future (2002) at 121 at para 13.2.4.5).
9 Olivier, relying on Berghman, states that ‘as far as the work ethic principle is concerned, it
is one of the ultimate aims of social security to support the basic policy chain and to up-
hold the work ethic or effort . . . When this logical policy chain is endangered owing to
limited resources or where the chain is interrupted as a result of unemployment, incapacity
to work or old age, social security basically operates at two levels in order to address and
redress the situation. Firstly, it provides measures to protect and/or augment income, by
making benefits such as family benefits or study grants available where resources are evi-
dently deficient, and by replacing income through unemployment, disability or pension
benefits should the particular covered risk occur. Secondly, social security supports reinte-
gration measures in an attempt to mend the policy chain. Simultaneously, this is an ex-
pression of the work ethic principle, which is one of the most fundamental values of society
and which serves as the ultimate justification of social security schemes. It is only where in-
tegration into the labour market is no longer possible that social security operates as a
bypass mechanism. This could be caused by, for example, a lack of labour-demand. Even
then, however, the work ethic principle must be upheld and would require that some will-
ingness to seek social integration be shown. A commitment to retraining or voluntary work,
against the background of sound labour market policy, could suffice in this regard’. Olivier
in Olivier, Smit, Kalula & Mhone Introduction to Social Security (2004) at 27.
Employment and social protection 511

important for purposes of interpretation and benchmarking.10 More important in

the domestic context is the Constitution. The Bill of Rights provides that everyone
has the right to have his or her inherent dignity respected and protected.11 The
intrinsic worth and dignity of human beings is therefore acknowledged. This is
the strongest basis from which to advocate and promote the principle of soli-
darity, and to improve the legitimacy of social assistance and insurance schemes
in an unequal society.
In South Africa, the challenge relating to access to social security is complex
and multi-faceted.12 Section 27(2) of the Constitution provides that the state
must take reasonable legislative and other measures, within its available re-
sources, to achieve the progressive realisation of the right to access to social
security. These sections read together introduced a constitutional obligation to
improve access to social security to achieve a greater measure of social justice.
Most public insurance schemes cover workers in the formal sector only and
experience various problems relating to administration and enforcement; how-
ever, this cannot be the only focus of development. When one has regard to
the number of people involved in the informal sector13 it is clear that the chal-
lenges of the decent work deficit in the informal economy must, in addition, be
addressed as a matter of some importance and urgency.14 Even though the
ILO’s initiatives mostly are restricted to the formal sector some conventions and
recommendations have been adopted with a wider scope of application.15 Ini-
tiatives in the field of social protection will most likely follow suit.
________________________

10 South Africa has ratified the UN Convention on the Rights of the Child of 1989, which in-
cludes social security rights of children. The Convention on the Elimination of All Forms of
Discrimination against Women of 1981 was ratified in 1995, which covers the eradication
of discrimination in social security and a loss of seniority or benefits owing to pregnancy or
marriage in relation to employment. Although South Africa has signed the International
Covenant on Economic, Social and Cultural Rights 1976 in 1994 ratification remains out-
standing.
11 S 10 of the Constitution.
12 S 27(1)(c) of the Constitution provides that ‘Everyone has the right to have access to social
security, including, if they are unable to support themselves and their dependants, appro-
priate social assistance’.
13 Van Ginneken (fn 3) at 9 submits that together with globalisation, the structural adjustment
policies pursued in many developing countries have contributed to a decline in the small
percentage of working population in the formal economy. There is no reason to believe
that this trend will change.
14 ILO ‘Universal social protection for human dignity, social justice and sustainable develop-
ment’ General Survey concerning the Social Protection Floors Recommendation, 2012
(No. 202) ILC.108/III(B) (2019) at 12: ‘According to ILO estimates, only 29 per cent of the
world’s population has access to comprehensive social security systems, and 55 per cent
of the global population is not effectively protected in any area. Social security coverage
is notably inadequate among the rapidly increasing number of workers in non-standard
forms of employment who were estimated to number 1.4 billion in 2017, with an additional
17 million estimated to be joining their ranks every year’.
15 See, eg, the Freedom of Association and Protection of the Right to Organise Convention
87 of 1948 (applicable to all workers); the Right to Organise and Collective Bargaining
Convention 98 of 1949 (also applicable to ‘all workers’); the Forced Labour Convention
29 of 1930; the Discrimination (Employment and Occupation) Convention 111 and
continued on next page
512 Law@work

2 ‘Social protection’ and ‘social security’

‘Social protection’ is a term that encompasses all that was previously understood
under the term ‘social security’, and more.16 Although the term is incapable of
precise definition, it conceivably refers to a wide variety of instruments all de-
signed to ensure that human beings are adequately protected against social,
economic and other risks.
‘Social assistance’ refers to minimum income-protection (a ‘safety net’) for the
entire population or for categories of deserving people. The allocation of social
assistance is primarily needs-based and is therefore often subject to means
testing, although it may be universal. Specific contributions by beneficiaries are
not required, and benefits or grants are provided for from the state budget. The
term ‘social insurance’ refers to (often employment-based) public schemes
devised to achieve income-maintenance or income-replacement by providing
earnings-related benefits. Benefits are derived from employee and/or employer
contributions and the state may also contribute to such schemes, or guarantee
certain benefits. The ‘insurance’ is obligatory and aims to promote and achieve
social solidarity.
The traditional view of social security has been criticised as being too con-
stricted. The more modern view has broadened the concept of social security
to refer to basic needs, and has widened the range of contingencies that are
covered. In addition, active labour market policies must also be included when
referring to ‘social protection’. In this chapter, this wider concept of social pro-
tection is preferred and applied.17
As noted earlier the concepts of a ‘decent job’ and a ‘decent wage’ are not
applicable in the South African informal economy. Informal social security,
________________________

Recommendation 111 of 1958 (applies to ‘all workers’ – see also the Equal Remuneration
Convention 100 and Recommendation 90 of 1951); the Minimum Age Convention 138
and Recommendation 146 of 1973 (applies to all sectors and the terms ‘employment’ and
‘work’ are used together so as to cover all economic activity regardless of the formal
employment status of the person concerned (ILO Fundamental Rights at Work and Inter-
national Labour Standards (2003) at 94)); Home Work Convention 177 of 1996 and Home
Work Recommendation 184 of 1996; Domestic Workers Convention 189 of 2011; and
Employment and Decent Work for Peace and Resilience Recommendation 205 of 2017.
The Preamble of Convention 189 includes an acknowledgement that ‘in developing
countries with historically scarce opportunities for formal employment, domestic workers
constitute a significant proportion of the national workforce and remain among the most
marginalized’.
16 Originally, social security was divided primarily into two categories: social assistance and
social insurance. Later, other elements were also recognised, eg social relief and social
services.
17 The ILO has a conception of social protection which broadly includes social security and
labour protection – Van Ginneken (fn 3) at 10. To this could also be added labour market
policies and social services as Van Ginneken points out: ‘It is also important to note already
here that the goal and the concept of decent work, matches this broader view of social
security/social protection’. The Social Protection Floors Recommendation 202 of 2012 rep-
resents the consensus among ILO members on the crucial role and functions of universal
and comprehensive social protection.
Employment and social protection 513

certainly in developing countries, assumes a very important role when consider-

ing promotion of access to social protection. Therefore, it has been suggested
that formal social security systems should attempt to complement rather than
substitute for informal systems. It is also trite that there are significant linkages
between the changing nature of work and the growth of the informal economy.18
An ILO discussion paper notes that the ‘new conceptual framework’ depicts ‘a
continuum of production and employment relations. It does away with the idea
that there are distinct formal and informal ‘sectors’ without direct links and in-
stead stresses that there are linkages, grey areas and interdependencies be-
tween formal and informal activities’.19
The state bears the ultimate responsibility to ensure the realisation of social
security rights ‘because of its constitutional obligation and authority and re-
sources for promoting social protection for all’.20 It has, however, become in-
creasingly apparent that the state is struggling in the role as principal provider of
social protection, including social security. Public-private partnerships are there-
fore essential in the area of social protection, and have become increasingly
common.

3 Social security standards

The ILO defines social security as:
[t]he protection which society provides for its members, through a series of public
measures, against the economic and social distress that otherwise will be caused
by the stoppage or substantial reduction of earnings resulting from sickness, ma-
ternity, employment injury, unemployment, invalidity, old age and death; the pro-
vision of medical care; and the provision of subsidies for families and children.21
Social security standards materialise differently in countries (for example in de-
veloped and developing countries). The ‘first-generation’ standards are based
mainly on the concept of social insurance and are applicable to certain cat-
egories of workers, with no universal application. The ‘second-generation’ stand-
ards introduced a broader approach by paying attention to providing a basic

________________________

18 See International Labour Conference (‘ILC’) ‘Conclusions concerning decent work and the
informal economy’ (2002) at para 8: ‘Workers and economic units are increasingly en-
gaged in flexible work arrangements, including outsourcing and subcontracting; some are
found at the periphery of the core enterprise or at the lowest end of the production chain,
and have decent work deficits’. See also ILO ‘Time to Act for SDG 8: Integrating Decent
Work, Sustained Growth and Environmental Integrity’ (2019) available at https://www.ilo
.org/global/publications/books/WCMS_712685/lang--en/index.htm, accessed on 16 August
2019.
19 Trebilcock ‘Decent work and the informal economy’ Discussion Paper No. 2005/04 (2005) 2.
20 See, eg, Olivier and Mpedi ‘Extending Social Protection to Families in the African Context:
The Complementary Role of Formal and Informal Social Security’ Paper presented at the
4th International Research Conference on Social Security (International Social Security
Association) Social Security in a Long-Life Society (2003) at 33.
21 ILO Convention 102 of 1952; ILO Introduction to Social Security (1984) at 3.
514 Law@work

income to all in need of protection.22 The ‘third-generation’ standards offer a

higher level of protection (with reference to both the population covered and
the level of benefits).23 In most developing countries, and this is the case in
Southern Africa, it is mostly the first-generation standards that are implemented
and adhered to.
Olivier proposes that even though similarities exist with regard to the list of
social contingencies usually identified in international instruments, the concept
of social security has to be determined not purely in terms of the existing
schemes covering those contingencies, but essentially in terms of the aims for
which these schemes are intended.24 The focus should ‘ideally be not on a list of
social risks, but rather on a set of policy instruments devised to elaborate upon,
or forward, a certain aim’.
Unfortunately, the South African social security system is presently still largely
risk or contingency-based. Not all risks are catered for by public schemes. Public
social insurance schemes exist to deal with particular contingencies, namely
employment injuries and diseases, unemployment, maternity, traffic accident-
related injury and death. Private insurance schemes must largely cater for the
contingencies of old age and health – occupational schemes covering retire-
ment and medical expenses are widespread in South Africa. In the area of
social assistance, a system of means-tested grants ensures that support is given
to older persons, qualifying children and people with disabilities.25 Due to this
contingency-based nature of social security in South Africa, the Committee of
Inquiry into a Comprehensive System of Social Security for South Africa26 sug-
gested, as an overarching goal, that a transformed social security system should
address the underlying structural and material basis of social exclusion, as well
as multi-dimensional poverty.27 The concept of comprehensive social protec-
tion, as developed by the committee, is favoured as the primary vehicle to give
effect to this goal in South Africa.28 The introduction of a national minimum
wage in South Africa should be viewed as part of the decent work approach,
which seeks to promote comprehensive social protection and social justice.29
________________________

22 As described above the Social Security Minimum Standards Convention 102 of 1952 pro-
vides for a minimum level of benefits in nine branches of social security. These standards
were adopted in the period immediately after World War II.
23 ILO (fn 1) at 2.
24 See Olivier ‘The Concept of Social Security’ in Olivier, Smit & Kalula Social Security: A Legal
Analysis (2003) at 35–36.
25 Regulated in terms of the Social Assistance Act 13 of 2004.
26 Fn 8 at 41.
27 That is to say income-poverty, capability-poverty and asset-poverty as coined by the
Committee, as well as special needs (ibid at 42).
28 ‘Comprehensive social protection for South Africa seeks to provide the basic means for all
people living in the country to effectively participate and advance in social and eco-
nomic life, and in turn to contribute to social and economic development’ (ibid at 41).
29 The ILO Constitution provides that ‘peace and harmony in the world requires the pro-
visions of an adequate living wage’, see ILO 1974 http://ilo.org. The Minimum Wage-Fixing
Machinery Recommendation No. 30 of 1928 states that a living wage should be deter-
mined with reference to the specifics of the country and the time period involved. See
also the National Minimum Wage Act 9 of 2018.
Employment and social protection 515

4 Social insurance schemes

4.1 Employment injuries and diseases30
An employer has a common-law duty to assess the workplace in order to pro-
vide a safe working environment to its workers.31 This obligation is one of the
principal duties of all employers.32 The ILO Employment Injury Benefits Conven-
tion 121 and Recommendation 121 of 1964 regarding employment injuries and
diseases cover loss of income due to incapacity (sickness or injury) or due to a
morbid condition. It is notable that unlike other contingencies, the entitlement
to benefits in the event of an occupational injury or disease cannot be made
subject to a qualifying period.

4.1.1 Statutory framework

The most significant legislation in South Africa that provides for preventive safety
measures in workplaces are the Occupational Health and Safety Act33 (OHSA)
and the Mine Health and Safety Act34 (MHSA).
The most important legislation that regulates the compensation of employees
for work-related illness, injury and death is the Compensation for Occupational
Injuries and Diseases Act35 (COIDA). The Occupational Diseases in Mines and
Works Act36 (ODMWA) also provides for mandatory reporting and the payment
of certain benefits to workers, who work in mines and works, and who develop
certain occupational lung diseases, as well as the payment of benefits for

________________________

30 For a general discussion refer to Smit ‘Employment Injuries and Diseases’ in Olivier et al
(fn 24) at 459–499.
31 See, eg, Van Zyl v Workmen’s Compensation Commissioner 1995 (1) SA 708 (N) and
Skinner v Minister of Public Works & another [1998] JOL 4223 (SE).
32 See ch 5.
33 Act 85 of 1993. In PSA obo Members v Minister of Health (2019) 40 ILJ 193 (LC) the court
held that its power to enforce compliance with labour laws does not extend to matters
over which it lacks express jurisdiction. The OHSA mandates the court to monitor the per-
formance of the labour inspectorate and not to compel the employer to comply with
health and safety standards.
34 Act 29 of 1996. These Acts are currently being reviewed.
35 Act 130 of 1993. This Act is administered by the Department of Labour. The COIDA re-
pealed the Workmen’s Compensation Act of 1941. See also the Compensation for Occu-
pational Injuries and Diseases Amendment Act 61 of 1997 that came into effect on
1 March 1998. The Road Accident Fund Act 56 of 1996 (RAFA) (see also the Road Acci-
dent Fund Amendment Act 19 of 2005) is applicable where an employee is injured in the
course of being conveyed by a motor vehicle in the course of his or her employment. As
the provisions of the COIDA are also relevant, these two statutes must be read together in
cases of commuting injuries. See Road Accident Fund v Monjane (2007) 28 ILJ 2516 (SCA)
where the court held that an employee who sustains an ‘occupational injury’ as defined
in the COIDA will have no claim under the RAFA if the wrongdoer is his or her employer.
Although this decision is not uncontroversial, leave to appeal to the Constitutional Court
was refused.
36 Act 78 of 1973. The Department of Health administers this Act.
516 Law@work

dependants of workers who die from these diseases. Substantial differences be-
tween the COIDA and ODMWA exist in so far as benefit structures, entitlements
and various other matters are concerned.
The Department of Labour administers the OHSA. The OHSA spells out the
duties of employers and employees respectively, including the establishment of
health and safety committees, and makes provision for a number of offences if
the Act is contravened. The maximum penalty for the contravention of a pro-
vision of the Act is a fine or 12 months’ imprisonment, or both.37 However, the
negligent causing of injury carries a maximum penalty of a higher fine or two
years’ imprisonment, or both.38 The MHSA stipulates that the owner of every
worked mine must ensure, as far as reasonably practicable, that the mine is
designed, constructed, equipped and operated in such a way that employees
can perform their work without endangering the health and safety of employ-
ees or of any other person.39
The LRA extends an important role in health and safety issues in the workplace
to workplace forums.40 A workplace forum can, in terms of section 84 of the Act,
be consulted regarding the initiating, review or developing of health and safety
matters.41

4.1.2 Compensation for occupational injuries and diseases

At common law, an employee who is injured or who contracts a disease within
the course and scope of employment, has the right to institute a delictual action
against the employer. This requires the employee to prove intent or negligence
on the part of the employer, or on the part of a co-employee.42 An employee is
then still not assured that the employer will be in a financial position to pay any
compensation that may be awarded. To address some of these issues, the
COIDA establishes a public fund, the Compensation Fund, which is the proper
institution to compensate employees.43

________________________

37 S 38(1) of the OHSA.

38 S 38(2) of the OHSA.
39 S 2(1) of the MHSA. This Act is enforced by the Department of Minerals and Energy.
40 S 84(5) of the LRA.
41 Although health and safety measures are not expressly listed as specific matters for con-
sultation in s 84, a representative trade union and an employer may conclude a collective
agreement conferring on the workplace forum the right to be consulted about any add-
itional matters in that workplace (s 84(3) and (5)). The workplace forum is also involved in
the establishment of health and safety committees and is entitled to the appointment of
one or more members of the forum as health and safety representatives in the workplace
(s 84(5)(a)–(c)).
42 In terms of the doctrine of vicarious liability (see ch 5).
43 Even though the Fund operates on a no-fault basis (ie, employees can claim compen-
sation even in the absence of fault on the side of their employer and regardless of fault on
their own side) it is evident that employees will not be compensated fully. Only defined
benefits are payable as compensation.
Employment and social protection 517

Employers must contribute to the Compensation Fund.44 Subject to certain lim-

ited exceptions (and exempted employers in section 1 of the Act) all employ-
ers45 in South Africa must register and pay assessments to the Fund.46
The effect of this provision is that a particular form of (delictual) liability for
damages is replaced by insurance coverage. Section 35(1) of the COIDA pro-
vides that:
No action shall lie by an employee or any dependant of an employee for the
recovery of damages in respect of any occupational injury or disease resulting in
the disablement or death of such an employee against such employee’s employer,
and no liability for compensation on the part of such employer shall arise save
under the provisions of this Act in respect of such disablement or death.
The Act thus provides a system of no-fault compensation for employees47 who
are injured in accidents that arise out of and in the course of their employment
or who contract occupational diseases.48 Whether the employee suffered an
________________________

44 See the classification of industries in terms of the COIDA as published in GN 216 in

GG 40675 of 10 March. There are, however, two important exceptions where employers
do not contribute directly to the Compensation Fund (these are the Rand Mutual Assur-
ance Company Limited which operates in the mining industry and the Federated Em-
ployer’s Mutual Association which operates in the building industry).
45 In Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck (2007) 28 ILJ 307 (SCA) the court
reviewed the century-long history of the legislation and stated (at para 10) that ‘a work-
man could have only one “employer” at any time, which was the person with whom he
was in a contractual relationship of employment, whether he performed his duties for that
person or for someone else’. The court reaffirmed this principle with reference to the 1993
Act: ‘the Act contemplates that an employee generally has only one employer at any
time, which is the person with whom he is in a contractual relationship of employment,
even when he performs his contractual obligations for some other person’ (at paras 15–
16). The definition of employer was thus extended to include labour brokers to avoid any
misunderstanding.
46 As employees make their labour potential available to the employer (who benefits from
the economic process), so it is argued, it follows that the responsibility for financing the
insurance scheme is the employer’s. In Mahlangu & another v The Minister of Labour &
others (Case no 79180/15 of 23 May 2019) the High Court declared that s 1(xix)(v) of the
COIDA ‘is unconstitutional and invalid to the extent that it excludes domestic workers em-
ployed in private households from the definition of “employee”’.
47 Both an ‘employee’ and ‘employer’ are defined in the Act; Compensation Commissioner
v Van Vuuren [2015] JOL 33943 (GP) confirms that an independent contractor, a sole-
proprietor or self-employed person will not be entitled to claim compensation. The Act
also contains some express exclusions from its scope of coverage – see ch 4 in this regard.
(Eg a volunteer worker was found not to be an employee as defined in the COIDA as she
was not remunerated in cash or in kind – ER24 Holdings v Smith & another [2007] JOL 19898
(SCA).) In Minister of Defence and Military Veterans v Thomas 2016 (1) SA 103 (CC) the
Constitutional Court held that s 35(1) precludes a delictual claim against an employer but
that the State as employer is not regarded as a single entity. Dr Thomas could therefore
claim compensation from the province and delictual damages from the national govern-
ment.
48 The word ‘accident’ should be given its ordinary meaning. Therefore an accident is ‘an
unlooked-for mishap or an untoward event which is not expected or designed’. See Nico-
sia v Workmen’s Compensation Commissioner 1954 (3) SA 897 (T) at 900E–F. Whether an
accident arises ‘out of and in the course’ of employment is often in dispute – see, eg,
continued on next page
518 Law@work

occupational injury49 or disease is a question of fact.50 Negligence continues to

play some role, since an employee is entitled to additional compensation if the
________________________

Gunter v Compensation Commissioner (2009) 30 ILJ 2341 (O) and Twalo v Minister of Safety
& Security & another (2009) 30 ILJ 1578 (Ck). In De Necker v Member of the Executive
Council for the Department of Health, Free State Province (Mosoeu NO & others as third
parties) [2014] JOL 32175 (FB) a female doctor was attacked and raped while she was on
duty at a state hospital in Bloemfontein. She sued the defendant for damages and s 35(1)
was raised as a special plea barring such delictual action. The court, relying on Minister of
Justice v Khoza 1966 (1) SA 410 (A), summarised as follows (at para 9): ‘The essence of the
Khoza decision and the cases that follow it, is the following: 9.1 An accident may be said
to arise “out of a workman’s employment”, when, in a broad sense, there is a causal con-
nection between the employment and the accident; 9.2 As a general rule there is a
causal connection between the employment and the accident where the accident hap-
pens at work; 9.3 It is not an injury arising out of and in the course of employment where
an employee was/is injured as a result of a criminal conduct such as an intentional and
unlawful assault by another person that is unrelated to the job of that employee, even if it
happens at work; 9.4 This means an injury resulting from an assault that is unrelated to the
job does not arise “out of or in the course of” employment’. The court concluded (at
para 22) that on the facts the intentional criminal act of the perpetrator of the attack was
not a s 35 ‘accident’ and that Dr De Necker did not sustain an ‘occupational injury’. The
finding was confirmed in the Supreme Court of Appeal in MEC for the Department of
Health, Free State Province v EDN [2014] 12 BLLR 1155 (SCA). The court emphasised the
vile nature of rape (at para 32): ‘As a matter of policy alone an action based on rape
should not, except in circumstances in which the risk is inherent, and I have difficulty con-
ceiving of such circumstances, be excluded and compensation then be restricted to a
claim for compensation in terms of COIDA’.
49 An occupational injury means a personal injury sustained as a result of an ‘accident’. There
must be a causal connection between the accident and the loss suffered by the em-
ployee, without any actus novus interveniens (ie, without a break in the chain of caus-
ality). The Fund is facing an increased number of claims based on post-traumatic stress
disorder, and in Urquhart v Compensation Commissioner [2006] 1 BLLR 96 (E) the court
held that an occupational injury need not arise from a single accident. In this judgment, it
was held that an injury might also be caused by a series of incidents that culminate in a
disability. The appellant was a newspaper photographer, who suffered a nervous collapse
after he was assaulted while on an assignment. His psychiatrist diagnosed post-traumatic
stress, arising from a lifetime of subjection to shocking and distressing scenes. The compen-
sation commissioner held that this did not constitute an occupational injury and this find-
ing was upheld in objection proceedings in terms of the COIDA. However, on appeal in
terms of the Act, it was held that the presiding officer had taken into account the text-
book definition of post-traumatic stress disorder, which had not been introduced in evi-
dence. Furthermore, apart from this, the Act was construed too narrowly. The court held
that there is nothing in the COIDA that requires a claimant to prove a causal connection
between a single incident and the occupational injury or disease from which he or she is
suffering. On the contrary, it was held, the purpose of the Act enjoins those applying it to
adopt a wide interpretation of ‘occupational injury’. This finding affirms the importance of
having regard to the social nature of legislation when interpreting and administering such
legislation. In Healy v Workmen’s Compensation Commissioner & another (2009) 30 ILJ 859
(E) the court held that the underlying policy of the COIDA was to assist workmen as far as
possible, consequently its terms should be interpreted so as not to prejudice a workman
(see also Pretorius v Compensation Commissioner & another (2010) 31 ILJ 1117 (O) at
para 15: ‘The Compensation Act should not be interpreted restrictively so as to prejudice
continued on next page
Employment and social protection 519

employee can establish that the injury or disease was caused by the negligence
of the employer (or certain categories of managers and fellow employees).51
In Jooste v Score Supermarket Trading (Pty) Ltd 52 the Constitutional Court was
called upon to decide whether the prohibition on an employee instituting a
claim for damages against an employer, described above in section 35, vio-
lates the Constitution. The court held that the COIDA is important social legisla-
tion, which has a significant impact on the sensitive and intricate relationship
between employers, employees and society. The state has chosen to intervene
in that relationship by legislation and to achieve a particular balance, which
the court considered appropriate. The differentiation between employees and
other persons (in other words, employees, as opposed to other persons being
denied the right to claim full compensation from the employer) does not involve
a specified ground of discrimination and thus the court had to consider general
equality provisions. The court held that section 35 does not violate the right to
equal protection and benefit of the law in section 9, or any other right of the
Constitution.
The Constitutional Court accepted that the bar on civil claims in section 35 is
rationally connected to the COIDA’s purpose of providing no fault compen-
sation to employees from a Compensation Fund to which only employers are
required to contribute.53
In Mankayi v Anglogold Ashanti Ltd 54 an appeal against the finding of the High
Court that the bar on civil claims in section 35 also extends to diseases that are
compensated in terms of the ODMWA was dismissed. However, the Constitutional

________________________

an employee if it is capable of being interpreted in a manner more favourable to him or

her’). In De Necker (fn 48) the Supreme Court of Appeal stated (at para 33) that ‘workers
should as far as possible be assisted to claim compensation that is their due under the Act
and which flow from incidents connected to their employment and which can rightly be
said to be a risk attendant upon or inherent to the employment’.
50 Occupational diseases are listed in Sch 3 to the Act and an employee is entitled to com-
pensation should he or she contract such a disease. When an employee contracts a dis-
ease, other than a scheduled disease, which arose out of and in the course of his or her
employment, compensation is also payable. While a presumption exists that, where an
employee contracts a disease in Sch 3, the disease was caused by the employment, the
employee must establish that the disease arose out of and in the course of employment
where it is an unlisted disease.
51 S 37 of the COIDA.
52 1998 (9) BCLR 1106 (CC).
53 In Bandat v De Kock & another (2015) 36 ILJ 979 (LC) the Labour Court held that s 35(1)
also expunges a claim for medical expenses incurred as a result of an injury on duty. The
question whether or not an employee ought to have retained the common-law right to
claim damages, either over and above or as an alternative to the compensation confer-
red by the Act, represents a highly debatable, controversial and complex matter of policy,
according to the court in the Jooste case (fn 52). The court stated that such a contention
represents an invitation to the court to make a policy choice under the guise of rationality
review, an invitation that the court firmly declined. This debate therefore remains valid.
54 (2010) 31 ILJ 1065 (SCA).
520 Law@work

Court disagreed with the judgments of both the High Court and the Supreme
Court of Appeal. In Mankayi v Anglogold Ashanti Ltd 55 Khampepe J concluded
in her judgment that:
section 35(1) must be read in the context of the other provisions of COIDA. The
‘employee’ referred to in section 35(1) whose common law claim is expunged is
limited to an ‘employee’ who has a claim for compensation under COIDA, in re-
spect of occupational diseases mentioned in COIDA. It is this ‘employee’ that sec-
tion 35(1) of COIDA excludes from instituting a claim for the recovery of damages
against the employer for occupational diseases resulting in disablement or death.
The expungement does not extend to an ‘employee’ who is not entitled to claim
compensation in respect of ‘occupational diseases’ under COIDA. The corollary is
that section 35(1) does not cover an ‘employee’ who qualifies for compensation
in respect of ‘compensatable diseases’ under ODIMWA. The exclusion of liability in
section 35(1) is therefore limited to ‘employees’ who are entitled to compensation
in respect of ‘occupational diseases’ under COIDA. The exception should there-
fore have been dismissed.56
This finding is of great importance to the mining industry where employers have
always held the view that employees cannot claim delictual damages for occu-
pational diseases contracted in mines and works. The finding opens the way for
mineworkers who have contracted ‘compensatable’ diseases under ODMWA
to institute a common-law claim against their employer.
The COIDA provides for a claim for medical expenses as well as a constant
care allowance against the Compensation Fund. The formula for calculating
the compensation of employees who suffered temporary or permanent injuries
or a serious disfigurement, and, payable to dependants of employees, who die
because of an occupational accident or disease, is contained in schedule 4 of
the Act. The future loss of the ability to earn is not taken into consideration.57 An
employee may forfeit his or her right to claim compensation where the employee

________________________

55 (2011) 32 ILJ 545 (CC).

56 At paras 113–114.
57 ODMWA benefits are generally inferior to those under the COIDA even though free bene-
fit examinations are available under the ODMWA that is not the case under the COIDA.
The ODMWA only provides for lump-sum payments (no pension payments are made);
secondly, no provision is made for additional compensation in the event of negligence on
the part of the employer (additional compensation is, however, payable if the permanent
disability of the employee worsens from the first to the second degree); thirdly, limited
provision is made for the payment of medical expenses. Having said this, the Mankayi
judgment results in a position where employees who fall under the scope of ODMWA will
be much better off than their counterparts – provided that they can prove fault on the
side of the employer. In Chamber of Mines of South Africa v Compensation Commissioner
for Occupational Diseases & others [2013] JOL 29891 (SCA) the court held that ODMWA
establishes a Mines and Works Compensation Fund and that in the event of a deficit in
the Mines Account, such deficit should be made good by additional levies imposed on
mine owners.
Employment and social protection 521

is guilty of serious and wilful misconduct that causes an accident.58 A benefit

must be paid to:
l employees who suffer a temporary disablement;59
l employees who are permanently disabled;60 and
l the dependants of employees who die because of injuries sustained in acci-
dents at work or as a result of an occupational disease.61
As explained above, the failure to comply with any of the obligations imposed
by the Act is a criminal offence and, in addition, the commissioner has the power
to penalise employers who do not comply with their statutory obligations.62
________________________

58 Serious and wilful misconduct means: being under the influence of intoxicating liquor or a
drug having a narcotic effect; a contravention of any law for the protection of the health
of employees or for the prevention of accidents, if such contravention was committed wil-
fully or with a reckless disregard of the provisions of such law; or any other act or omission
which the Director-General having regard to all the circumstances considers to be serious
and wilful misconduct.
59 Compensation is payable to injured employees during temporary total disablement by
way of periodical payments at the rate of 75 per cent of monthly earnings (a ceiling does
apply). No compensation is payable in respect of the first three days if disablement lasts
no more than three days. (This is permissible in terms of Convention 102.) Compensation
for total or partial disablement is paid periodically and continues for as long as the tem-
porary total disablement continues but with a limit of 24 months. The ODMWA provides for
75 per cent of wages to be paid for the period during which the employee is absent from
work as a result of a compensatable disease (with a maximum of 6 months).
60 Compensation for permanent disablement where the degree of disablement is 30 per
cent or less takes the form of a lump sum based on 15 times the employee’s monthly earn-
ings up to a specified maximum of such earnings. Where disablement is less than 30 per
cent the lump sum is calculated proportionally. If the degree of permanent disablement is
31 per cent or more, compensation takes the form of a monthly pension. The pension for
total permanent disablement (100 per cent) is calculated in the same manner as for peri-
odical payments in respect of temporary total disablement (ie, at the rate of 75 per cent).
If an employee’s permanent disablement is less than 100 per cent, a pension is calculated
proportionally. The ODMWA provides only for a lump sum based on the percentage per-
manent disability and the remuneration of the employee.
61 No amount may be deducted from compensation received by a dependant in respect
of any compensation awarded to the employee himself in respect of the same or any
other accident. The monthly pension is paid to widows, widowers and dependent chil-
dren. The value of the pension for dependants is expressed as a proportion of the pension
that the deceased employee would have received had he or she been totally and per-
manently disabled (ie, 75 per cent of earnings subject to any stipulated minimum or max-
imum). This applies regardless of the number of dependants, widow or widower. The
widow or widower is also entitled to the payment of a lump sum. (The ODMWA does pro-
vide for a lump sum payment to the widow(er) and dependants if the worker dies and is
revealed by an autopsy to have had a compensatable disease for which he or she was
not previously compensated.)
62 According to Boer v Momo Developments CC & another [2005] JOL 13303 (T), where an
employer failed to register an employee in terms of the Act the employee can still claim
compensation from the Commissioner. The employer, being subject to a fine, can there-
fore still not be sued by the employee. This is also the case where an employer fails to
report an accident as required by statute. The principle is thus that an employee is totally
precluded from claiming common-law damages in a case where his or her injury falls within
continued on next page
522 Law@work

4.2 Unemployment
4.2.1 Introduction
Another public social insurance scheme in South Africa is that covering the risk
of unemployment. The notion ‘unemployment’ generally covers all persons of
working age who are without work, and are currently available for work and
actively seeking work or wanting to work.63 The ILO regards the scheme that
covers the contingency of unemployment as one that addresses a loss of earn-
ings due to the inability to obtain suitable employment in the case of a person
protected who is capable of and available for work.64 The Employment Promo-
tion and Protection against Unemployment Convention65 does not only intend
to protect unemployed persons, it also aims to promote employment.66 The cur-
rent South African scheme is not regarded as an important tool to reduce
unemployment, but rather as a scheme with the primary focus to ‘arrange for
measures dealing with short-term unemployment of those who worked as “em-
ployees” in the formal sector, and not to impact directly on the comprehensive
context of mass and long-term structural unemployment in the country’.67

________________________

s 35(1) of the COIDA – see Skorbinski v Bezuidenhout t/a DB Transport (2009) 30 ILJ 2847
(EC).
63 Barker and Holtzhausen South African Labour Glossary (1996) distinguish between the fol-
lowing types of unemployment (at 157): ‘“Chronic unemployment” usually describes un-
employment lasting longer than six months. “Cyclical unemployment” arises during reces-
sionary periods, when aggregate demand is low and thus also the demand for labour . . .
“Frictional unemployment” arises as a result of the normal labour turnover that occurs in
an economy and the time lags involved in the re-employment of labour. Frictional unem-
ployment usually has a relatively short duration and the extent thereof can be reduced
further by effective active labour-market policies. “Seasonal unemployment” arises as a
result of normal and expected changes in economic activity during the course of a single
year, eg in the agricultural sector . . . “Structural unemployment” arises as a result of the
overall inability of the economy to provide employment for its total labour force . . .
“Technological unemployment” arises because of the displacement of workers by the
introduction of new technology’.
64 ILO (fn 1) at 21–22. Convention 68 and Recommendation 176 expressly provide that the
person must be actively seeking work. S 16(1)(c) of the Unemployment Insurance Act 63 of
2001 (UIA) requires an applicant for benefits to be registered as a work seeker with a
labour centre. Refusal by the employee to undergo training and/or vocational counselling
for employment, without just reason, results in his or her disentitlement to unemployment
benefits.
65 Act 168 of 1988.
66 South Africa is often criticised for a lack of active labour-market policies that effectively
promote productive employment. The SDA is aimed at developing the skills of the South
African workforce to promote productive employment. See para 5 ‘Skills development
and training’.
67 See Olivier & Van Kerken ‘Unemployment insurance’ in Olivier et al (fn 24) at 418. See,
however, the new provision that the Unemployment Insurance Fund must also be used for
financing of the retention of contributors in employment and the re-entry of contributors
into the labour market and any other scheme aimed at vulnerable workers (s 5(d) of the
Unemployment Insurance Act 63 of 2001).
Employment and social protection 523

4.2.2 Statutory regulation68

The Unemployment Insurance Act69 (UIA) provides for an Unemployment Insur-
ance Fund (UIF), administered by the Department of Labour, to which employers
and employees contribute an equal amount.70 In terms of section 3(1) of the
Act all employers and employees are covered, except for employees employed
for fewer than 24 hours a month with a particular employer, and their employers.71
The UIA provides for the following benefits to be paid:72
l unemployment benefits;
l illness benefits;
l maternity benefits;
l adoption benefits; and
l dependant’s benefits.
It should be clear that the unemployment scheme covers benefits, for example
maternity and adoption benefits, which would not typically be regarded as
benefits that ordinarily fit under such a scheme as it is unrelated to termination
of employment by the employer. This is mainly due to the absence of separate
(public) schemes to deal with such contingencies.
Section 14 of the UIA disqualifies a contributor to the Fund from receiving
benefits where that contributor fails to comply with any provision of the Act or
any other law relating to unemployment, or is suspended from receiving bene-
fits in terms of section 36(1) of the UIA.73

________________________

68 For a general discussion refer to Olivier and van Kerken (ibid) at 415–458.
69 Act 63 of 2001.
70 Contributions are determined in accordance with the provisions of the Unemployment
Insurance Contributions Act 4 of 2002 (UICA). The employer must pay the total amount of
contributions (2 per cent of the remuneration to the relevant party; ie, either the SARS
Commissioner or the UIF Commissioner (s 5(2)). As is the case under the COIDA, benefits
and contributions are also here determined with reference to a certain ceiling or maximum
amount of earnings (s 6(2) of the UICA). For the definitions of ‘employer’ and ‘employee’
under the UIA 63 of 2001, refer to ch 4.
71 S 3(2) excludes members of parliament, cabinet ministers, deputy ministers, members of
provincial executive councils, members of provincial legislatures and municipal councillors
from the scope of the Act.
72 In general, the application must be made within 6 months after the occurrence of the risk
but in the case of maternity benefits it must be made at any time before or after childbirth
but within a period of 12 months (s 25(1)).
73 The UIF commissioner may, after giving a contributor or a dependant an opportunity to
make written representations, on written notice with reasons provided, suspend a contri-
butor or dependant for a period of up to five years from receiving benefits in terms of the
Act if the contributor or dependant acted fraudulently (including making a false statement
in an application for benefits, submitting a fraudulent application for benefits, or failing to
inform a claims officer of the resumption of work during the period in respect of which
benefits were being paid) (s 36(1)).
524 Law@work

A contributor, rather than an employee, has a right to claim unemployment

benefits74 for any period of unemployment lasting more than 14 days, if the
reason for the unemployment is:
l the termination of the contributor’s contract of employment by the employer
of that contributor;75
l the ending of a fixed-term contract;76
l the dismissal of the contributor, as defined by section 186 of the LRA;77
l insolvency in terms of the provisions of the Insolvency Act; or
l in the case of a domestic worker, the termination of the contributor’s con-
tract of employment by the death of the employer of that contributor.78
The contributor must be capable and available for work in order to receive un-
employment benefits, but where he or she becomes ill while in receipt of un-
employment benefits, and the claims officer is satisfied that the illness is not likely
to prejudice the contributor’s chance of securing employment, the entitlement
may remain.79
A contributor is entitled to the illness benefits for any period of illness, lasting
more than 7 days, if:
l the contributor is unable to perform work on account of illness; and
l the contributor fulfils any prescribed requirements in respect of any specified
illness and makes an application for illness benefits.80
________________________

74 A contributor who becomes ill while in receipt of unemployment benefits, remains entitled
to unemployment benefits if the claims officer is satisfied that the illness is not likely to preju-
dice the contributor’s chance of securing employment (s 16(3)).
75 S 12(1A). A contributor who is employed as a domestic worker by more than one employer
and whose employment is terminated by one or more employers is, despite still being em-
ployed, entitled to benefits in terms of the UIA if the contributor’s total income falls below
the benefit level that the contributor would have received if he or she had become wholly
unemployed (s 12(1A)). As a result of the 2016 amendments (s 12(1B)), a contributor who is
employed in any sector who loses his or her income due to reduced working time, despite
still being employed, is entitled to benefits if the contributor’s total income falls below the
benefit level that the contributor would have received if he or she had become wholly
unemployed. S 12(1B) requires the contributor to have sufficient credits.
76 Some would argue that by ‘concluding such a contract, the employee does not become
involuntarily unemployed when the contract comes to an end’ but ‘the coming to an
end of the contract is, under normal circumstances, a given, and not a risk which may or
may not materialise’. See Olivier and Van Kerken (fn 67) at 446.
77 These reasons require a dismissal or termination of employment by the employer. An em-
ployee who resigns, retires or deserts therefore has no right to benefits. Strangely, an em-
ployee who is dismissed for misconduct (ie, where the employee himself or herself contri-
buted to the dismissal) is, however, not excluded as the Act does not have regard of the
reason for the dismissal or termination of employment.
78 S 16(1)(a) of the UIA. One may ask why other employees whose employers pass away,
and whose employment is terminated by operation of law, are not also included here.
79 S 12(3).
80 S 20(1) of the UIA. S 20(2) stipulates that a contributor is not entitled to illness benefits if the
period of illness is less than 7 days, or for any period during which the contributor is entitled
to unemployment or adoption benefits in terms of the UIA. Where the contributor without
continued on next page
Employment and social protection 525

A contributor who is pregnant is entitled to the maternity benefits, subject to

section 14, for any period of pregnancy or delivery and the period thereafter.81
The maximum period of maternity leave for purposes of the calculation of ma-
ternity benefits is 17.32 weeks. In addition, a contributor who has a miscarriage
during the third trimester or bears a stillborn child is entitled to the same max-
imum maternity benefit of 17.32 weeks after the miscarriage or stillbirth.82 A con-
tributor is not entitled to benefits unless she was in employment, whether as a
contributor or not, for at least 13 weeks before the date of application for ma-
ternity benefits.83 The Minister of Employment and Labour determines the scale
of benefits to be paid.84 The new Schedule 2 provides that depending on a
contributor’s income prior to becoming unemployed, the benefit to which he or
she is entitled must be calculated in one of two ways:
1. Contributors who earned less than a particular amount (the ‘benefit transi-
tion income level’) are entitled to a percentage of their previous pay; and
2. Contributors who earned more than the benefit transition income level are
entitled to a flat benefit, equal to the entitlement of a contributor previously
paid at the benefit transition income level.85
________________________

just reason, refuses or fails to undergo medical treatment or to carry out the instructions of
a medical practitioner, chiropractor or homeopath, the right to claim illness benefits is also
forfeited.
81 In terms of s 13(3)(a) a contributor’s entitlement to benefits accrues at a rate of one day’s
benefit for every completed five days of employment as a contributor subject to a max-
imum accrual of 365 days benefit in the four year period immediately preceding the day
after the date of ending of the period of employment. In terms of the 2016 amendments,
unemployment benefits must be paid to the unemployed contributor regardless of whether
or not he or she has received benefits within that four year cycle, if the contributor has
credits. However, it is significant that s 13(5)(a) provides that the days of benefits that a
contributor is entitled to in terms of such calculation may not be reduced by the payment
of maternity benefits in terms of Part D of the Act. Furthermore, s 13(5)(b) now expressly pro-
vides that ‘the payment of maternity benefits may not affect the payment of unemploy-
ment benefits’. These provisions effectively allow for so-called ‘double-dipping’. Even
though a female contributor only contributes once, she can, in principle, receive both
unemployment and maternity benefits. A recent provision states that if an application for
benefits is made within the four year cycle of a previous claim, the Fund must subtract the
number of days in respect of which benefits have already been paid in that cycle (s 13(6)).
82 S 24(4) and (5) of the UIA.
83 S 24(6) was added by Act 10 of 2016. Remember that the application for maternity bene-
fits may now be within 12 months from childbirth (s 25(1) as amended).
84 A ceiling is applied to the maximum remuneration on the basis of which benefits are cal-
culated.
85 For contributors earning below the benefit transition income level, the entitlement is calcu-
lated as follows: Benefit = Daily Income *IRR (where IRR is the Income Replacement Rate
corresponding to the contributor’s daily income). (A low rate of income replacement may
force mothers or contributors to return to work before having exhausted their maternity
leave entitlement. Financial constraints must, therefore, be considered from new perspec-
tives to promote greater equality in the workplace. The creation of a separate scheme for
maternity and adoption benefits, eg, which is financed by parties other than only those
involved in the current unemployment scheme, could be considered.) Contributors earn-
ing more than the benefit transition income level are entitled to a flat rate equal to the
benefit transition income level multiplied by the minimum IRR (currently 38 per cent).
526 Law@work

Benefits are thus payable in terms of a sliding scale or flat rate with reference to
an income replacement rate (IRR).86
It is regrettable that only females who work in the formal economy, who
accumulated credits and who were in employment for at least 13 weeks before
the application for benefits are entitled to maternity benefits. This is a direct
result of the inclusion of maternity under a social insurance scheme concerned
with (un)employment. Since there is no public national health insurance and
due to the absence of an obligation on employees to become members of
medical aid schemes,87 only limited health care services are available in the
public sector to those women who cannot afford private medical insurance.
Coverage in this context is incomplete, with the consequence that many per-
sons remain outside the social protection framework.88
Subject to section 14, only one contributor of adopting parents is entitled to
the adoption benefits contemplated in the Act in respect of each adopted
child if the child has been adopted in terms of the Child Care Act,89 the period

________________________

86 Sch 2 states that ‘The Income Replacement Rate (IRR) determines the percentage of a
contributor’s previous income to which the contributor is entitled in the form of benefits.
The IRR is a variable, so it defines a sliding scale. A contributor who previously earned a
low wage is entitled to receive benefits representing a larger portion of her or his previous
income than a contributor who previously earned a higher wage’. The current maximum
and minimum are set at 60 per cent and 38 per cent respectively and although the minis-
ter may, in consultation with NEDLAC, vary the minimum maximum income and flat re-
placement rate (see s 12(3)(b)) he or she cannot reduce the minimum IRR to any percent-
age below 38. The 2016 amendments improved the situation of female contributors as
maternity benefits must be paid at a rate of 66 per cent of the earnings of the beneficiary
at the date of application (s 12(3)(c)). However, this entitlement is subject to the maximum
income threshold set by the minister. From 1 April 2017 the rate of earnings is R212 539
(GN 231 in GG 40691 of 17 March 2017). The ILO Employment Promotion and Protection
Against Unemployment Convention 168 of 1991 provides that persons who become ‘un-
employed’ should receive cash benefits at a rate of not less than 45 per cent of previous
earnings. Even though contributors claiming maternity or adoption benefits are no longer
deemed to be ‘unemployed’ (see s 12(1) of the UIA), this steep sliding scale could still be
potentially vulnerable to attack for those earning above the maximum rate of earnings.
The reason for this is that international standards (as contained in the Maternity Protection
Convention 3 of 1919, the revised Maternity Protection Convention 103 of 1952 and the
Maternity Protection Convention 183 of 2000) refer to a minimum cash benefit relating to
66 per cent of previous earnings. South Africa will definitely be lacking with regard to the
rate of income replacement in the case of higher income contributors, particularly in the
light of the Maternity Protection Recommendation 95 of 1952, which promotes, where
reasonably practicable, benefits being awarded at a higher rate than 66 per cent of pre-
vious earnings (see also the Maternity Protection Recommendation 191 of 2000).
87 Unless so required in terms of the contract of employment.
88 In Minister of Health & others v Treatment Action Campaign & others 2002 (10) BCLR 1033
(CC), the court was not willing to accept budgetary constraints as a reason to refuse the
administering of anti-retroviral drugs to pregnant mothers and their babies in public health
institutions.
89 Act 74 of 1983. The Child Care Act was repealed by the Children’s Act 38 of 2005. In terms
of a proclamation by the (then) Deputy-President Ramaphosa in GNR 12 in GG 33076 of
26 March 2010 all sections of the Children’s Act of 2005 are now in full effect.
Employment and social protection 527

that the contributor was not working was spent caring for the child, and the
adopted child is below the age of two.90
Section 30(1) provides that the surviving spouse or a life partner91 of a de-
ceased contributor is entitled to the dependant’s benefits contemplated in the
Act. The application for benefits must be made within eighteen months of the
death of the contributor but on just cause shown, the commissioner may accept
an application after such period. Section 30(2) provides that any dependent
child92 of a deceased contributor is entitled to the dependant’s benefits if there
is no surviving spouse or life partner; or the surviving spouse or life partner has not
made application for the benefits within eighteen months of the contributor’s
death. Section 30(2A) provides that any nominated beneficiary of the deceased
contributor may claim dependant’s benefits if there is no surviving spouse, life
partner or dependent children of the deceased contributor.
Implicit in this regulation is the presumption that the surviving spouse or life
partner will assume responsibility for the dependent children of the deceased
contributor since the child can only qualify for the benefit if the spouse or life
partner does not apply for the benefit. The benefit payable to the dependant is
the unemployment benefit that would have been payable to the deceased
contributor if the contributor had been alive.93
A person convicted for the contravention of the Act may be fined and im-
prisoned.94

4.3 Old age and retirement

4.3.1 Introduction
The objective of retirement and old-age benefits is to guarantee qualifying per-
sons who have reached a certain age (normally 65 years) the means of a
decent standard of living for the remainder of their lives. International instru-
ments, for example ILO Convention 102 and the Invalidity, Old Age and Sur-
vivors’ Benefits Convention,95 envisage the payment of a benefit in the form of
________________________

90 S 27(1) of the UIA.

91 Neither ‘spouse’ nor ‘life partner’ is defined in the Act. However, a definition of ‘life part-
ner’ has been included in reg 1 of the Unemployment Insurance Regulations (GNR 400 in
GG 23283 of 28 March 2002): ‘any major person who is a party to the opposite sex or
same sex relationship with another major person, which relationship must be intended to
be permanent, exclude any other person and involve cohabitation, an obligation of mu-
tual emotional support between the parties and a reciprocal obligation to support one
another financially in circumstances where the one has the means to do so and the other
requires such support in order to maintain, without recourse to the Public funds, his or her
financial and social standing and standard of living’. Inserted by reg 3 in GNR 948 in
GG 32614 of 5 October 2009.
92 ‘Child’ is defined as meaning: ‘a person as contemplated in section 30(2) who is under
the age of 21 years and includes any person under the age of 25 who is a learner and
who is wholly or mainly dependent on the deceased’ (s 1).
93 S 30(3) of the UIA.
94 S 65 of the UIA.
95 Convention 128 of 1967.
528 Law@work

periodical payments throughout the contingency of old age until the death of
the beneficiary. Qualifying conditions are often set, relating to age and the com-
pletion of a qualifying period of employment or of contribution.

4.3.2 Overview of South African regulation

There is currently no public retirement insurance scheme in South Africa.96 Indi-
viduals therefore have to turn to private retirement provision. Employees have the
possibility of joining an occupational retirement vehicle.97 In principle, employers
and employees must choose between a pension and a provident fund.98 Trad-
itionally, the parties must also choose between a defined contribution and a
defined benefit fund.99 In recent years, defined contribution provident funds
have become more popular.100 For employers, a defined contribution fund
does not incur open-ended liability of defined benefit pension funds, while for
employees the prospect of a lump-sum payout is very attractive. Retirement
funds do not only pay out for retirement. Other benefits, for example death
benefits and ill-health or early-retirement benefits are also commonly provided
for in the rules of funds.
Independent contractors, the self-employed and other persons who do not
qualify to join an occupational retirement fund may secure private retirement
annuities. Many higher-income employees also make use of this option to top-
up their occupational retirement provision. Members are not allowed to access
their savings prior to attaining the age of 55.
This area is decidedly regulated – in the end, in the absence of a public
scheme, these private funds assume the responsibilities of a social insurance
scheme. The Pension Funds Act establishes the office of the Registrar of Pension
Funds, a Pension Funds Advisory Committee and regulates the role and powers
of the Minister of Finance. Greater transparency has been achieved through
legislation.101 All retirement funds must be registered with the Financial Services
Board.102

________________________

96 The Social Assistance Act 13 of 2004 (s 10) does make provision for a means-tested old-
age grant for men who have attained the age of 60 years (previously 65 years) and
women who have attained the age of 60 years. Most people employed in the informal
economy would end up relying on the old-age grant rather than occupational retire-
ment. This is due to the unorganised nature of the informal economy and the low levels of
income that mostly make it very difficult to contribute to a private fund.
97 There is no statutory obligation in terms of the Pension Funds Act 24 of 1956, to join a
retirement fund. Many contracts of employment do, however, require that employees
join the employer’s pension or provident fund.
98 In the case of a provident fund the contributions of members are not allowed as tax
deductions and, when the member reaches the retirement age, the whole benefit may
be accessed in a cash lump sum.
99 Benefits can take the form of monthly payments or lump sum payments.
100 Such a scheme is usually administered on a ‘total cost to company’ structure.
101 Eg since 1996 all boards of management of retirement funds must have member rep-
resentation on a 50:50 basis, with a minimum of four board members.
102 That is each fund that provides retirement benefits to its members who are resident South
African citizens. On registration a pension fund becomes a separate legal persona. In
continued on next page
Employment and social protection 529

An important development in this area of the law was the introduction of a

retirement funds adjudicator. The adjudicator’s decisions are binding on the
parties to a dispute. When a fund amalgamates with another fund, or is dissolved,
special provisions in the Pension Funds Act (contained in section 14) protect the
interests of members. During 2001, pension law was amended to address the
surpluses that many funds had accumulated. In addition, the Pension Funds
Second Amendment Act 39 of 2001, in section 14A of the Pension Funds Act,
also introduced prescribed minimum benefits.

4.3.3 The role of the employer and third parties

A pension fund is ‘an integral part of the employer-employee relationship’.103
Even though there is no statutory obligation on an employer to provide retirement
benefits to an employee, an employer does benefit from doing so. Advantages
of ‘sponsoring’ occupational retirement funds are highlighted by De Kock SM:104
A pension fund has advantages for both the employer and the employee. It assures
the employee a financially secure old age. Employees, especially those who have
to maintain others, seek employment in firms where membership of a pension fund
is available. Employers are thus able to offer that advantage to attract suitable
employees. The fact that long serving employees receive an adequate pension
removes the moral burden that would otherwise rest on an employer to ensure that
such employees do not starve when they are too old to work. The advantage is
gained only when the pension fund remains financially sound. Both the employer
and the employee have an interest in the continued existence of a financially
secure pension fund.
In South African law, an employer with discretionary powers in terms of the rules
of a fund has a duty to exercise those powers in good faith.105 In Chamber of
Mines of SA v Council of Mining Unions106 the Chamber of Mines brought an appli-
cation contending that the ‘all-white’ union was guilty of an unfair labour prac-
tice due to its refusal to allow employees of other races to become members of

________________________

Registrar of Pension Funds & another v Brian Angus NO & others 2007 (5) SA 1 (SCA) the
court confirmed that the Pension Funds Act does not apply to either a fund established by
an industrial council agreement or to one established separately from, but pursuant to,
such an agreement.
103 TEK Corporation Provident Fund v Lorentz (1999) 20 ILJ 2797 (SCA).
104 Van Coppenhagen v Shell and BPSA Petroleum Refineries (Pty) Ltd (1991) 12 ILJ 620 (IC)
at 626.
105 See Lorentz v TEK Corporation Provident Fund 1998 (1) SA 192 (W) at 229J. See also Erasmus
& others v Senwes Ltd & others (2006) 27 ILJ 259 (T) where the High Court held that an em-
ployer was not permitted to amend unilaterally the terms of a post-retirement health care
subsidy and that the employer had to exercise its discretion reasonably (also with ref-
erence to the right to fair labour practices). See ch 5 at para 2 ‘Contractual agreement
and variation of contractual terms’. See also Pretorius & another v Transport Pension Fund
& others [2019] 2 BPLR 303 (CC) where the appeal to the Constitutional Court against the
High Court’s upholding of exceptions in a class action against Transnet and its current
pension funds in the High Court was successful.
106 (1990) 11 ILJ 54 (IC).
530 Law@work

their pension fund. The Industrial Court held that the racially discriminatory prac-
tice could result in labour unrest and/or the relationship between the employer
and employees might be detrimentally affected. The application was thus
granted, the Council of Mining Unions (‘CMU’) was ordered to make provision
for admittance, and the Chamber was authorised to make the necessary rule
amendments. The court was therefore willing to find that relief could be granted
against third parties (in other words, outside the employer-employee relation-
ship).107
If the employer is guilty of discrimination by limiting access to a retirement
fund or in determining contributions and benefits, relief will be ordered against
that employer.108 If retirement fund rules form part of conditions of employment,
the employer will have to negotiate rule amendments with employees and/or
their representatives.109
An employer may wish to withhold a member’s pension benefits pending the
determination of his or her liability to the employer for damage resulting from
theft, dishonesty, fraud or misconduct. In Highveld Steel & Vanadium Corpor-
ation Ltd v Oosthuizen110 it was held that a pension fund has discretion to with-
hold the member’s pension benefits but it must be exercised with care. Pension
funds must ‘balance the competing interests with due regard to the strength of
the employer’s claim’.
Employees should not be disadvantaged by their employer’s non-compliance
with statutory duties or the rules of a pension fund. In Letsoalo v Private Security
Sector Provident Fund & others111 the adjudicator held that payment of any
benefit that is due to a member of a fund is regulated by the fund’s rules and
section 13 of the Pension Funds Act. The finding confirmed that an employer in a

________________________

107 See ch 8 regarding the definition of unfair labour practice in the LRA of 1995 (s 186(2)).
108 See Leonard Dingler Employee Representative Council v Leonard Dingler (Pty) Ltd [1997]
11 BLLR 1438 (LC).
109 SASBO v Bank of Lisbon International (1993) 14 ILJ 394 (IC).
110 2009 (4) SA 1 (SCA) at para 20. In South African Broadcasting Corporation SOC Limited v
South African Broadcasting Corporation Pension Fund & others [2019] 2 BPLR 332 (GJ) the
court quoted Moodley v Scottburgh/Umzinto North Local Transitional Council & another
2000 (4) SA 524 (D) with approval (para 81): ‘the Court [in Moodley] interpreted the word
“misconduct” as envisioned in section 37D(1)(b)(ii) of the Act and concluded that the
general word “misconduct” referred to therein must be interpreted to mean dishonest
conduct or at least, conduct involving an element of dishonesty, which would thus ex-
clude negligence. Accordingly, in terms of Moodley, only intentional conduct that con-
tains an element of dishonesty will qualify as one of the grounds upon which a fund may
deduct an amount from the employee’s benefit’. The withholding of pension benefits of
Mr Motsoeneng was allowed in terms of the Act (as interpreted in Highveld Steel) and the
rules of the fund since the SABC prima facie showed that Motsoeneng unlawfully received
payment of a success fee in the amount of R11 508 549,12 in circumstances as described
in Moodley and applied in SABC SOC Ltd.
111 [2014] JOL 31431 (PFA).
Employment and social protection 531

pension fund ‘at the very least owes a duty of good faith to its employees and
to assist its employees in the submission of claims to the fund’.112

4.4 Medical insurance

4.4.1 Introduction
Medical insurance aims to provide medical care not only of a preventative
nature but also to afford such care with the view of maintaining, restoring or
improving the health of protected persons, as well as their ability to work and
engage in social activities. ILO Convention 102 allows for qualifying conditions,
including a period of contribution, employment, residence or of a combination
of the above. The level and duration of benefits may also be limited under
certain circumstances.
Although medical and sickness benefits are payable under the South African
public social insurance schemes (in other words, the Compensation Fund and
the Unemployment Insurance Fund)113 there is currently no separate public
scheme that covers the contingency of health in South Africa. The National
Health Insurance Bill, 2019 contains provisions with the potential to change the
landscape in a far-reaching way that is not yet fully revealed.114

4.4.2 Overview of South African regulation

Given South Africa’s history, the public-sector health care programmes serve the
indigent and poor population while the more affluent sector of the community

________________________

112 Ibid at para 5.9, with reference to TEK Corporation Provident Fund & others v Lorentz [2000]
3 BPLR 227 (SCA) at 235. Lorentz dealt with a surplus, the employer’s taking a contribution
holiday, the creation of a new provident fund and the transfer to that new fund of most of
the members of the previous pension fund. In the absence of clear rules, many questions
arise regarding an employer’s right to benefit from the surplus (at para 16): ‘Defined
benefit pension funds do not exist to generate surpluses but they may arise when reality
and actuarial expectation do not coincide. In assessing the financial health of a pension
fund an actuary is gazing into the proverbial crystal ball to see what the future will hold’.
The court emphasised that an employer must show and act in good faith towards its em-
ployees. In the Letsoalo case (fn 111) failure to register an employee as a member and to
make contributions or lodge a death claim had to be rectified. The complainant was enti-
tled to be registered and the employer had to pay the death benefit as calculated ex
post facto. In another example, an employer incorrectly submitted a withdrawal claim
(instead of a disability claim form for a benefit based on dismissal due to ill health) to the
fund. The employer was found in breach of the duty of good faith to its employee as the
insurer was not made aware of and could not consider the claim for a disability benefit.
Since the employer did not notify the pension fund of the correct reason for the com-
plainant’s termination of employment the fund paid out the withdrawal benefit to the em-
ployee. The Pension Funds Adjudicator therefore held that the employer would have to
pay an ill-health benefit if the insurer assessed that the complainant qualified for it –
Khetsiwe v Fundsatwork Umbrella Pension Fund – Participating Employer: G Liviero & Son
(Pty) Limited (Plant Operators) & others [2015] JOL 32851 (PFA).
113 The Road Accident Fund, which is not an occupationally based scheme, also provides
for the payment of damages based on medical expenses and personal injuries.
114 GN 1014 in GG 42598 of 26 July 2019.
532 Law@work

is served by the private insurance sector. In Soobramoney v Minister of Health,

KwaZulu-Natal,115 Sachs J stated that a healthy life:
depends upon social interdependence: the quality of air, water, and sanitation
which the State maintains for the public good; the quality of one’s caring relation-
ships, which are highly correlated to health; as well as the quality of health care
and support furnished officially by medical institutions and provided informally by
families, friends and the community.
The quality of public-sector health care and support in South Africa has, how-
ever, been the subject of much criticism. Employees can, in general, choose
between insuring themselves against the risk of ill-health through private insur-
ance, or through becoming members of medical schemes. The definition of the
‘business of a medical scheme’ in the Medical Schemes Act116 is broad enough
to cater for all forms of insurance, managed care and employer arrangements
within the current environment. Therefore, regulation of these medical schemes
can prevent medical cover from being limited to insurance products that only
select the young and healthy for cover.
The principle of solidarity is the main difference between private insurance
and medical-scheme membership. Insurance cover individualises health cover
in that insurance products are commonly based on free-market principles
which make use of risk rating. The high costs involved in obtaining health cover-
age remains of great concern to workers and their families. Because of the high
costs of cover, membership of medical schemes is widespread amongst the
more well-off population since membership of a medical scheme is often, but
not always, a condition of employment. In the informal economy, workers usually
cannot afford membership of medical schemes.
The Medical Schemes Act introduced many improvements and protective
measures for consumers in this area. Some of these measures are:
l medical schemes must community-rate and cannot discriminate on the basis
of health status;
l all open schemes must accept all applicants, subject to specified anti-
selection protections;
l all medical schemes must offer a prescribed set of minimum benefits;117

________________________

115 1997 (12) BCLR 1696 (CC) at 1712E–F. In this case the right of access to health care services
(s 27(1) of the Constitution) and the right not to be refused emergency medical treat-
ment (s 27(3)) were considered. With regard to s 27(1), the Constitutional Court expressly
stated that the obligation on the state to provide access to health care is qualified by
s 27(2) and the task of deciding how scarce resources should best be allocated is that of
the responsible authority. The court adopted a conservative approach and stated that
the court will be slow to interfere with rational decisions which have been taken in good
faith (at 1706A). The court accepted, without evidence being led, that ‘an unqualified
obligation to meet these needs would not presently be capable of being fulfilled’ (at
1701E–F).
116 Act 131 of 1998.
117 See s 29(1)(o) of the Medical Schemes Act and ch 3, reg 8 of the Regulations to the
Medical Schemes Act GNR 1262 of 20 October 1999. In Council for Medical Schemes &
continued on next page
Employment and social protection 533

l medical schemes must cover the full cost of any prescribed minimum bene-
fits obtained from public-sector hospitals where schemes provide partial pri-
vate hospital cover;
l all institutions or organisations doing the business of a medical scheme must
register in terms of the Medical Schemes Act; and
l a mechanism of unfunded lifetime community rating has been introduced.
In addition to the measures described above, a medical scheme may not im-
pose a general or condition-specific waiting period on a person who applies
for membership or admission as a dependant, and who was previously a bene-
ficiary of a medical scheme, terminating less than 90 days immediately prior
to the date of application, where the transfer of membership is required as a
result of (a) change of employment; or (b) an employer changing or terminat-
ing the medical scheme of its employees (in which case such transfer must
occur at the beginning of the financial year);118 the definition of dependant
has been expanded to include people who are financially dependent on
the principal member (de facto dependants) and to same sex partners; and,
finally, the Council for Medical Schemes has been established as regulatory
authority.
As is the case in the private retirement industry, the governance of medical
schemes is entrusted to a board of trustees, of whom at least 50 per cent must
be elected from the members of the scheme.

________________________

another v Genesis Medical Scheme & others [2016] 1 All SA 15 (SCA) the court held (at
para 44) that ‘the law obliges medical schemes to pay the costs of treating PMB con-
ditions in full, and that is what Genesis must do’ regardless of whether the treatment was
obtained from the public or private sector.
118 See s 29A(6) of the Medical Schemes Act. S 29A regulates general and condition specific
waiting periods. A standard three-month waiting period for all people applying to join a
scheme with a break in membership longer than three months was retained by the 1998
Act (excluding prescribed minimum benefits that a scheme is required to include in its
benefits). Pre-existing condition waiting periods – a 12 month waiting period that applies
to all conditions that existed at application – are still applicable. As explained above, this
limitation will not apply to people who change schemes as a consequence of a change
of employer and who apply for membership within three months (prescribed minimum
benefits are also not subject to these waiting periods). In terms of ch 4, reg 13 of the Regu-
lations (fn 117) a medical scheme may apply premium penalties to a late joiner, which
penalties must be applied only to the portion of the contribution related to the member
or any adult dependant who qualifies for late joiner penalties. A ‘late joiner’ means: ‘an
applicant or the adult dependant of an applicant who, at the date of application for
membership or admission as a dependant, as the case may be, is 35 years of age or older,
but excludes any beneficiary who enjoyed coverage with one or more medical schemes
as from a date preceding 1 April 2001, without a break in coverage exceeding three con-
secutive months since 1 April 2001’. Penalty surcharges are aimed at preventing people
from opportunistically joining medical schemes only later in life, so undermining the soli-
darity and risk-pooling of the scheme.
534 Law@work

4.4.3 HIV and AIDS

The Human Immune Deficiency Virus (HIV) and the Acquired Immune Deficiency
Syndrome (AIDS) have, in a relatively short period, arguably become one of the
greatest humanitarian crises of the twenty first century.119
Even though empirical research regarding the number of workers denied em-
ployment opportunities or conversely being dismissed due to their status is hard
to come by, it is generally accepted that these figures must be high.120 An im-
portant consideration here is that in Southern Africa the disclosure and/or re-
porting of HIV/AIDS is extremely low. This is mainly attributed to the great degree
of stigmatisation and discrimination that still prevails in society.121
In terms of the EEA no person may unfairly discriminate directly or indirectly
against an employee, or applicant for employment, in any employment policy
or practice, on the basis of the employee or applicant’s HIV status.122 The Act
also regulates the medical testing of employees.123
The OHSA requires that an employer is obliged to provide, as far as is reason-
ably practicable, a safe working environment for its employees.124 This duty in-
cludes an obligation to ensure that the risk of occupational exposure to HIV is
minimised. The EEA Code of Good Practice on HIV and Employment submits

________________________

119 AIDS is the acronym for ‘acquired immune deficiency syndrome’. According to the Code
of Good Practice: Key aspects of HIV/AIDS and employment (GN 1298 in GG 21815 of
1 December 2000) AIDS is ‘the clinical definition given to the onset of certain life-
threatening infections in persons whose immune systems have ceased to function prop-
erly as a result of infection with HIV’. HIV is a virus that attacks and which may ultimately
destroy the body’s natural immune system.
120 The Code of Good Practice: Key aspects of HIV/AIDS and employment states at item 1.2:
‘It is recognised that the HIV/AIDS epidemic will affect every workplace, with prolonged
staff illness, absenteeism, and death impacting on productivity, employee benefits, occu-
pational health and safety, production costs and workplace morale’. See also The Sec-
ond Interim Report on Aspects of the Law Relating to AIDS. Pre-employment HIV Testing
South African Law Commission Project 85 (1998) at 39, referred to in Dupper & Garbers
(eds) Essential Discrimination Law (2004) at 210. The Law Commission’s report contains
statistics that an employee may be absent for up to 50 per cent of the time during his or
her last year of the illness. Dupper et al rightly submit that this position may equally apply
to any other life-threatening disease in its final stages.
121 In Hoffmann v South African Airways 2001 (1) SA 1 (CC) the Constitutional Court de-
scribed people living with HIV/AIDS as ‘one of the most vulnerable groups in our society’.
122 S 6(1) of the EEA.
123 S 7 of the EEA. In Joy Mining Machinery, a division of Harnischfeger (SA) (Pty) Ltd v NUMSA
& others (2002) 23 ILJ 391 (LC) the court appeared to have endorsed the approach that
the Labour Court had to sanction HIV-testing, even where such testing was voluntary and
anonymous. In Irvin & Johnson Ltd v Trawler & Line Fishing Union & others [2003] 4 BLLR 379
(LC) the court held that anonymous and/or voluntary testing did not fall within the ambit
of s 7(2) of the EEA, and that it did therefore not require the prior authorisation of the
Labour Court. However, in PFG Building Glass (Pty) Ltd v CEPPWAWU & others [2003] 5
BLLR 475 (LC) the court held that a person who has not consented couldn’t be tested,
even if the testing is anonymous, except with the leave of the Labour Court. See ch 6 for
a full discussion of these judgments.
124 S 8(1) of the OHSA.
Employment and social protection 535

that the risk of HIV transmission within most workplaces is minimal. However, it is
acknowledged that occupational accidents involving bodily fluids may occur,
particularly within the health care profession. Thus the code lists aspects regard-
ing promoting a safe working environment that should be dealt with in every
workplace policy.
An employee who contracts HIV because of an occupational accident (for
example, occupational exposure to infected blood or bodily fluids) may in prin-
ciple apply for benefits in terms of section 22(1) of the COIDA. Guidelines were
published regarding compensation for occupationally acquired HIV.125 Confirm-
ation of the diagnoses of occupationally acquired HIV infection will equate to
100 per cent impairment.126 Consequently, benefits will be payable in terms of
the Act. However, eligibility for benefits will lapse if there is no seroconversion
after six months from the date of the incident.127
There will be many hurdles to cross for an employee to successfully obtain
compensation under the compensation scheme. It is also debatable whether
the issue of privacy is sufficiently dealt with in the code.
As the period for initial testing is limited employers should be aware of their
obligations to assist employees to undergo the necessary testing in order to claim
and be eligible for benefits.128

5 Skills development and training

5.1 Introduction
Structural and long-term unemployment threatens the underpinnings of social
protection as demands made on social security increase while the available
resources to finance such measures suffer set-backs due to the worldwide phe-
nomenon of the ‘end of work’.129 It is questionable whether social security can
make a significant contribution to the increase of the level of employment in

________________________

125 Draft circular instruction regarding compensation for occupationally acquired HIV (GN 1349
in GG 27003 of 19 November 2004). According to the draft circular occupationally
acquired HIV infection may be defined as: ‘an infection contracted as a result of exposure
to an HIV infected source in a workplace, resulting in progressive weakening of the im-
mune system of an individual leading to the AIDS. The HIV infection must have been [sic]
arisen out of and in the course of employment’ (item 1).
126 Item 3.2.
127 Item 4.
128 In another context, see NM & others v Smith & others [2005] 3 All SA 457 (W) regarding
unauthorised disclosure of the names and HIV status of individuals in a biography and the
significance of the right to privacy even when regard is had to the recently accepted
defence of ‘reasonable publication’.
129 See Ben-Israel ‘Labour and Social Security: Is There a Conflict?’ in Engels and Weiss (eds)
Labour Law and Industrial Relations at the Turn of the Century: Liber Amicorum in Honour
of Roger Blanpain (1998) at 21. Where unemployment rates are high, there is not only a
higher number of applicants for unemployment benefits, the number of contributors to
the social insurance schemes is also reduced.
536 Law@work

any country.130 Social protection, including active labour market policies, skills
development and retraining, perhaps, could be more successful in achieving
this end.131 Where a worker’s qualifications and skills are improved, the chances
of reintegration into the labour market or employment may also be improved.132
The undeniable truth is, however, that often a large number of the unemployed
possess some qualifications or skills. Consequently, the inherent challenges in a
country where the unemployment rate remains alarmingly high are the creation
of jobs (in other words, vacancies) for qualified workers;133 and the growth of
appropriately or suitably skilled workers.134 To this end, any developmental pol-
icy should clearly target relevant sectors and workers for skills development
efforts to produce significant benefits.
However, the world of work is changing with one of the most important factors
being the increased availability and changing nature of information technology.135
This requires a ‘mental revolution’, particularly in the area of vocational training
and in responding creatively and aptly to new opportunities which the infor-
mation society offers. Technology has had, and will have, a major impact on
society and the economy.

5.2 Regulation of skills development

Two statutes are important to skills development and training in South African
workplaces: the Skills Development Act136 (SDA) and the Skills Development Levies
Act137 (SDLA). Two further Acts, the Employment Services Act138 (ESA) and the
________________________

130 Tomandl ‘Interdependences between Labour Law, Social Security Law and Unemploy-
ment’ in Engels and Weiss (fn 129) at 117–118.
131 It has been stated, however, that skills shortages in South Africa have left society on shaky
grounds. See Erasmus & Breier (eds) Skills Shortages in South Africa: Case Studies of Key
Professions (2009) and Solidarity Research Institute ‘Skills Shortages in South Africa: Sum-
mary of Facts per Sector regarding this Issue’ (25 January 2008) generally. Previous initia-
tives such as the National Skills Development Strategy, the Accelerated and Shared
Growth Initiative for South Africa and the Joint Initiative on Priority Skills Acquisition had
limited success, if any.
132 Tomandl (fn 130) at 117.
133 Employees who receive remuneration under a learnership agreement registered in terms
of the SDA are excluded from the ambit of the UIF (s 3(1)(b) of the UIA). The unemploy-
ment rate was at 29 per cent end of the second quarter of 2019, which represents a 16-
year high (Quarterly Labour Force Survey Q2: 2019 Statistics South Africa of 30 July 2019).
A worrying 6.2 million adults being unemployed. According to the QLFS Q2:2019: ‘There
were approximately 10,3 million persons aged 15–24 years . . . The percentage of young
persons aged 15–24 years who were not in employment, education or training (NEET) . . .
[was at] 32,3 per cent . . . Of the 20,4 million young people aged 15-34 years, 40,3 per
cent were not in employment, education or training’.
134 According to s 2(1)(g) of the SDA one of the Act’s purposes is to help work seekers find
work, retrenched workers re-enter the labour market and employers find qualified em-
ployees.
135 Blanpain ‘Work in the 21st Century’ (2017) 38 ILJ 740 at 742ff.
136 Act 97 of 1998.
137 Act 9 of 1999.
138 Act 4 of 2014.
Employment and social protection 537

Employment Tax Incentive Act139 (ETIA) will also be discussed in so far as they
relate to skills development.140
The administration and enforcement of these Acts are fragmented. Although
both the SDA and the SDLA fall under the auspices of the Department of Higher
Education and Training (DHET),141 the ETIA falls under the Minister of Finance and
the ESA under the auspices of the Minister of Employment and Labour.

5.3 The SDA, SDLA, ESA and ETIA

5.3.1 Broad outline
The SDA aims, inter alia, to develop the skills of the South African workforce gen-
erally and improve the quality of the working life of employees. It also seeks to
improve productivity in the workplace and the competitiveness of employers, to
promote self-employment and to increase the levels of investment in education
and training.142 The Act goes wider than the existing employment relationship as
it also provides unemployed people, currently at 29 per cent in the country, with
the opportunity to gain work experience and employment.143
The SDA encourages employers to use the workplace as an active learning
environment of good quality,144 to provide employees with opportunities to
acquire new skills and gain experience, and to employ people who otherwise
find it difficult to get employment.145 It further encourages workers to participate
in learning programmes,146 to improve the employment prospects of previously
disadvantaged people and to redress those disadvantages through training
and education.147 The SDLA finances the SDA by way of monthly levies from
employers that may not be deducted from a worker’s pay.148
National Skills Development Strategies (NSDS) have been implemented since
2001 but with mixed results.149

________________________

139 Act 26 of 2013.

140 Over and above these laws, the Adult Basic Education and Training Act 52 of 2000 pro-
vides for the establishment, government and funding of private and public centres which
offer training to adults and youths with less than a grade 9 education. These centres are
found in townships and rural areas. They mostly focus on numeracy and literacy and en-
able pupils to eventually engage in further skills development.
141 The administration of these Acts was taken over from the Department of Labour in 2011.
142 S 2(1)(a)–(b).
143 S 2(1)(c).
144 S 2(1)(f).
145 S 2(1)(c)(i)–(iv).
146 S 2(1)(d).
147 S 2(1)(e).
148 S 3. The levy payable by an employer is equivalent to one per cent of its payroll.
149 These aim to improve the effectiveness and efficiency of the skills development system,
literacy and numeracy shortcomings of the unemployed, training or tertiary education for
those leaving school to enter the formal workplace or making a livelihood for themselves
with quantitative targets, and the integration of these with related government pro-
grammes. (Du Toit (ed) et al Labour Relations Law: A Comprehensive Guide 6th ed (2015)
at 68–69).
538 Law@work

The ESA requires the Department of Employment and Labour to provide citi-
zens with free services including the registration of job seekers, placement
opportunities, matching of job seekers and vacancies, and advising work seek-
ers on access to training, and career information.150 In particular, the Act seeks
to provide new workers with opportunities to gain experience and to facilitate
access to training for work seekers.151 Moreover, it seeks to improve access to
the labour market while improving employment prospects. The number of vul-
nerable and young work seekers and of employees facing retrenchment pro-
vided the rationale for this Act.152 To facilitate this, the Department of Employ-
ment and Labour has set up a Public Employment Services Agency. The Act
also regulates and registers private employment agencies,153 and facilitates the
employment of foreign nationals.154
The ETIA came into force on 1 January 2014. It owes its existence to the gov-
ernment’s concern about the high unemployment rate, the need to share with
the private sector the costs of expanding job opportunities, and it focuses par-
ticularly on young work seekers.155 The Act offers employers in the private sector
a tax incentive, to encourage them to employ young people (18 to 29 years of
age, who earn less than R6 000 and operating inside a fixed place of business
within a special economic zone as designated by the Minister of Finance).156
The scheme was originally legislated to end on 28 February 2019 but given the
positive outcome with thousands of workers being employed to date, the Minis-
ter of Finance has extended the application of this Act with a further 10 years,
that is, until 28 February 2029.157

5.3.2 Scope of application

While the SDA aims to develop the skills of the South African workforce generally,
the SDLA does not apply to employers in the public service in the national or
provincial spheres of government, to municipalities in respect of which a certifi-
cate of exemption has been granted, to religious or charity organisations, to public
entities that get more than 80 per cent of their money from Parliament, or to
employers whose total pay to all its workers is less than R500 000 per year.158

________________________

150 S 5(1)(b)–(f). A national database – the Employment Services System of South Africa –
makes information available to job seekers for placement possibilities at registered em-
ployers. Job seekers are screened and matched in terms of their personal details, skills
and experience with employers’ employment and skills development opportunities (ss 5,
10, 11). Registered job seekers amounted to 618 570 and actual placements to 14 634 in
2014/15. Many job seekers could not be matched due to low skill levels.
151 S 2(1)(c)–(d).
152 S 5(1)(i) and (e).
153 S 13ff.
154 Ss 5(1)(i) and 8–9.
155 Preamble to the ETIA.
156 Ss 2; 6.
157 See Brits ‘Employing the youth – how the Employment Tax Incentive can benefit you’
available at https://www.bizcommunity.com/Article/196/512/193510.html, accessed on
16 August 2019.
158 S 4.
Employment and social protection 539

The ESA applies to all employers and employees.159 The ETIA applies to em-
ployers who are registered for the withholding and payment of employees’
tax,160 but excludes certain employers, namely national, provincial or local
government entities and public entities such as Denel, Eskom, the SAA, HSRC,
Finances Services Board and municipalities.161 The Act stipulates the employees
covered by the tax incentive described above.162

5.3.3 Institutional frameworks

5.3.3.1 The SDA
The SDA’s institutional framework comprises:163
l The National Skills Authority (NSA) – a body advising the minister on various
issues including national skills development policy and strategy and criteria
for allocations of funds from the National Skills Fund.164
l The National Skills Fund (NSF) – established in terms of the SDA165 and over-
seeing projects identified as national priorities.166
l Sector and education training authorities (SETAs)167 – responsible for de-
veloping sector-related skills plans and aligning them with the national skills
development strategy168 establishing learnerships169 (the latter having a dur-
ation of 12 months with learners generally earning a monthly stipend);170 im-
plementing sector plans;171 promoting learning programmes;172 liaising with

________________________

159 S 2(1). See also the definition of ‘employee’ in s 1, which is similar to that found in the
BCEA and the LRA.
160 In terms of the Income Tax Act 58 of 1962.
161 S 3.
162 S 6.
163 S 2(2).
164 Ss 4–5. The minister must appoint representatives of business, labour and the community
as nominated by NEDLAC to serve on the NSA. The tripartite composition of NEDLAC is
thus repeated in the NSA. Further provision is made for other representatives including
women, the youth, people with disabilities, and the State.
165 S 27.
166 S 28.
167 Ss 9–15 (SETAs) and ss 16–19 (learnerships).
168 Most government departments offer students opportunities for bursaries and government
learnerships. These encourage unemployed, educated students to have an opportunity
to further their experiene and skills (see GG 40730 vol 621 of 1 April 2017).
169 S 1. See the applicable regulations https://learnershipregulations2019-2020southafrica/
sa.co.za/learnershipsregulations, accessed on 16 August 2019.
170 See https://salearnership.co.za/government learnership, accessed on 16 August 2019.
171 SETAs thus register agreements between a learner and an employer or groups of employ-
ers if the latter falls within the scope of the SETA.
172 Workplace-based learning programmes adopt an educational approach with a quality
assured curriculum where knowledge is internalised, insight is gained and skills and com-
petencies are acquired through exposure; specific outcomes for employability need to be
achieved. Workplace-based skills programmes similarly adopt an educational approach
to achieve specific outcomes for increased employability, but without a quality assured
curriculum.
540 Law@work

the NSA and the Quality Council for Trades and Occupations (QCTO);173 and
submitting budgets and reports on service-level agreements to the Director-
General of the DHET.
The SETA Workplace-based Learning Programme Agreement Regulations
add to existing learnerships, apprenticeships, candidacies, internships for the
‘N’ Diploma and various categories of student internships.174 These relate
mainly to an occupational qualification in terms of the QCTO model, ie
knowledge, practical skills and work exposure modules.175
l The National Qualifications Framework (NQF) – a system established in terms
of the National Qualifications Framework Act176 ‘for the classification, registra-
tion, publication and articulation of quality-assured national qualifications’.177
l Skills development institutes – bodies that may provide advisory services
relating to skills development, mentoring and the recognition of prior learn-
ing, provide learning programmes and perform other functions necessary to
promote skills development.178
l Institutes in the Department of Employment and Labour who must do re-
search and analyse the labour market to determine skills development
needs for the country as a whole, each sector of the economy, and organs
of state; assist in the formulation of a national skills strategy and skills de-
velopment plans; provide information on skills to the Minister of Employment
and Labour, the NSA, SETAs, QCTO and others.179

5.3.3.2 The SDLA

Employers must register with SARS and pay the relevant levy.180 The levies thus
collected must be paid into the National Revenue Fund. Eighty per cent of the
collected funds are distributed to SETAs (employers may get some money back
as a refund if they train their workers) and twenty per cent to the NSF.181 The levy
scheme is administered by the Director-General of the DHET and the SARS
Commissioner.182
________________________

173 The QCTO is managed in terms of the Public Finance Management Act 1 of 1999 (s 26G
of the SDA). Its main function is to advise the minister on all policy matters concerning
occupational standards and qualifications in terms of the National Qualifications Frame-
work Act 67 of 2008.
174 Internships differ by distinguishing the period of time spent in a workplace as part of a
requirement for a Diploma, National Diploma, Higher Certificate, Advanced Certificate,
professional qualification, student internships categories 1, 2 and 3 or as part of a require-
ment for another occupational qualification of the QCTO (see GN 295 in GG 40730 of 29
March 2017).
175 These programmes also provide that an occupational qualification (or part of such) may
be obtained by time spent in a workplace.
176 Act 67 of 2008.
177 S 4.
178 Ss 22–26E of the SDA.
179 S 22.
180 S 6.
181 S 8.
182 S 2.
Employment and social protection 541

5.3.3.3 The ESA

The free services provided in terms of the ESA are financed by money from, inter
alia, the budget of the Department of Employment and Labour, the Unemploy-
ment Insurance Fund, the Compensation Fund, grants and donations.183
Productivity South Africa (that earlier resorted under the SDA) now falls under
the ESA.184 It aims to increase productivity levels in order to help the economy
grow. Its objectives are, inter alia, to promote a culture of productivity in work-
places, develop productivity competencies (including skills development and
training), facilitate and evaluate productivity improvement and competitive-
ness in workplaces, to keep a database of productivity and competitive sys-
tems, publish those systems, and undertake research and support initiatives with
the aim of preventing job losses.

5.3.3.4 The ETIA

Employment tax incentives are introduced and administered in terms of the
Income Tax Act’s framework for qualifying employees, namely, those who are
18 to 29 years of age.185 The initial end date of the incentive has been extended
by the President in his 2019 State of the Nation Address (SONA) from 31 Decem-
ber 2016 to 2029.186 The incentive is capped per employer at R20 million per year.
Allowances are also granted to learnerships and the end-date for these allow-
ances is 31 March 2022.187 The tax deduction value is based on the NQF level of
the learner with lower deductions for higher NQF levels. For learners with disabili-
ties, additional annual deductions have been made available. These targeted
allowances are a shift away from the general allowances available to all skills
levels.

5.4 Enforcement
Subject to the provisions of the SDA and ESA, the Labour Court has exclusive
jurisdiction in respect of all matters arising from the SDA and ESA.188 The Labour
Court may also review matters on any grounds permissible in law.189 The NSA has
the power to enter, question and inspect.190

________________________

183 S 12.
184 S 31(1).
185 Preamble to and ss 2 and 6 of the ETIA. The Preamble states that the government is con-
cerned about the unemployment rate in South Africa and recognises that the costs of
expanding job opportunities must be shared with the private sector. Government wants
to support employment growth and creation (ie, labour market activation of work seek-
ers) through the institution of an employment tax incentive.
186 Available at www.crs.co.za/wp-content/uploads/2017/01/CRS-news-Flash_January-2017_
SOUTHAFRICA-Taxation-Laws-Amendment-Bill.pdf. The SONA was delivered on 7 February
2019.
187 Ibid.
188 S 31(1) of the SDA and s 49 of the ESA. S 50 of the ESA provides for offences and penalties.
189 S 31(2) of the SDA and s 48 of the ESA.
190 S 5(2).
542 Law@work

Interest and penalties will be levied on late payment of levies in terms of the
SDLA.191 Levies may be recovered by SETAs.192 Labour inspectors appointed in
terms of the BCEA have the same powers as those of SARS officials.193

5.5 The National Development Plan

The National Development Plan (NDP) is highly relevant with regards to skills de-
velopment and training.194 The NDP provides, inter alia, for skills development in
the form of the National Youth Service which trains youths to be artisans. It is,
however, unclear to what extent the NDP is followed in South Africa. But recently
the President has emphasised the NDP and a focus on the poor, the marginal-
ised, the dispossessed and unemployed people.195 The President proposed, inter
alia, a huge skills development drive to better prepare young South Africans for
the workplace.
The President has further emphasised focussed efforts on reigniting growth
and creating jobs.196

6 Social protection of migrant workers

6.1 Introduction
Migrant workers often face difficulties in accessing social protection, in particu-
lar social security benefits. Not only do they frequently risk losing social security
entitlements in their country of origin, but they regularly also encounter restrict-
ive conditions in the host country’s national system of social security. For this
reason, the ILO has adopted an inclusive approach to try to improve the position
of migrant workers. There are two conventions that are particularly important to
________________________

191 Ss 11–12.
192 S 14.
193 Ss 15–19. See ss 68–70 and 73 of the BCEA. Labour inspectors collect levies paid by the
SETAs, enter workplaces, question people and inspect documents and records. They may
also secure written undertakings from employers who are not complying with particular
provisions (s 68(1A) of the BCEA). If such an employer persists in its non–compliance, the
Director-General may apply to the Labour Court to have the written undertaking made a
compliance order or eventually an order of court directing the employer to comply with
the undertaking. In certain instances inspectors may not issue compliance orders. The
BCEA as amended does not allow employers to object or appeal to the Labour Court
against a compliance order because these procedures were often used as delaying tac-
tics by employers.
194 This Plan was drawn up because various stakeholders did not support the New Growth
Path. The cure for poverty, it has been mooted, is to allow people to earn money through
their labour; therefore obstacles that hinder poor people attempting to earn money must
be removed. This includes removing the difficulties that employers face in hiring people
(Kane-Berman @liberty The Policy Bulletin of the IRR SARRI, 13 Feb 2014, ‘South Africa: A
12-point plan for prosperity’ at 2 et seq).
195 Moneyweb ‘Radical economic transformation: Zuma vs Ramaphosa’ available at
https://www.moneyweb.co.za/news/south-africa/radical-economic-transformation-zuma-
vs-ramaphosa/ 2 May 2017 (accessed on 4 May 2017); 2019 SONA( see fn 186).
196 Contained in the SONA. See fn 186.
Employment and social protection 543

migrant workers – the Equality of Treatment (Social Security) Convention197 and

the Maintenance of Social Security Rights Convention.198

6.2 South African public social insurance and migrant workers

Migrant workers enjoy coverage under the COIDA scheme. Although persons
employed outside South Africa are excluded from the Act, they may, while they
are temporarily performing work within the country, be entitled to compensation
in the event of occupational injuries or diseases – if arrangements have been
made with the commissioner.199 Where such an employee performs his or her
work inside the country for a period longer than 12 months, that employee is
deemed to be employed in the Republic and therefore enjoys the protection of
the Act.200 A non-resident employee, who qualifies for compensation in the
Republic and in another state following an occupational accident, must elect
to claim compensation either in terms of the COIDA or in terms of the law of the
other state.
Although it is generally accepted that periodical payments are preferable to
lump sum payments, a lump sum in lieu of a pension may be awarded to an
employee (or his or her dependant) who receives a pension and who is resident
outside the Republic or is absent from the Republic for a period or periods total-
ling more than six months.201 It appears therefore that in this instance it is the
exportability of benefits, rather than coverage as such, that could be improved.
Migrant workers will seldom enjoy coverage under the unemployment insur-
ance scheme as limitations exist. The UIA previously provided that persons who
enter the Republic for the purpose of carrying out a contract of service, ap-
prenticeship or learnership, are not covered by the UIA if there is a legal or a
contractual requirement (or any other agreement or undertaking) that such
persons must leave the Republic, or that such person be repatriated, upon
termination of the contract.202 In such a case the migrant worker and his or her
employer would therefore not have to contribute to the UIF, but would also not
be entitled to any benefits under the scheme. An unfortunate result of this regu-
lation was that migrant workers were often considered as ‘cheaper’ labour than
their South African counterparts. As discussed earlier, other fixed-term contract
workers who lose their employment because of the termination of their contracts
are entitled to receive benefits.203 The extension of coverage to migrant workers
is therefore welcomed as it promotes equal treatment.
________________________

197 Act 118 of 1962. This Convention requires that migrant workers should benefit from the
same conditions as nationals in a host country – particularly with reference to coverage
and entitlement to benefits.
198 Act 157 of 1982. This Convention requires that migrant workers should be able to receive
benefits to which they are entitled even when they move out of the territory of the state
that is obliged to make available such benefits.
199 S 23(3)(a) of the COIDA.
200 S 23(3)(b) of the COIDA. The same principles are also applicable to persons who ordinarily
work within the country, but who perform work on a temporary basis outside the country.
201 S 60(1) of the COIDA.
202 S 3(1)(d) of the UIA (now repealed).
203 See para 4.2 ‘Unemployment’ and s 16(1)(a)(i) of the UIA.
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Table of cases

Page
3M SA (Pty) Ltd v SACCAWU [2001] 5 BLLR 483 (LAC) .......................................... 495, 500
21st Century Life (Pty) Ltd v Nombewu (2019) 40 ILJ 1499 (LAC) ................................ 249

A
A Mauchle (Pty) Ltd t/a Precision Tools v NUMSA [1995] 4 BLLR 11 (LAC) .................. 432
Abels and Dialogue Group (Pty) Ltd (2009) 30 ILJ 2167 (CCMA) ................................ 164
ABSA Bank Ltd v Naidu [2015] 1 BLLR 1 (LAC) ................................................................ 309
ABSA Brokers (Pty) Ltd v Moshoana NO (2005) 26 ILJ 1652 (LAC) ............................... 264
Ackerman & another v United Cricket Board of SA (2004) 25 ILJ 353 (CCMA) ......... 287
Adcock Ingram Critical Care v CCMA & others
(2001) 22 ILJ 1799 (LAC) ................................................................................ 275, 302, 317
Administrator, Tvl v Traub 1989 (4) SA 731 (A) .................................................................. 91
Adriaanse / Swartklip Products [1999] 6 BALR 649 (CCMA) ................................. 131, 132
AECI Explosives Ltd (Zomerveld) v Mambalu (1995) 16 ILJ 1505 (LAC) ....................... 297
Africa Personnel Services (Pty) Ltd v Government of the
Republic of Namibia and others [2011] 1 BLLR 15 (NmS) ........................................... 71
African National Congress v Municipal Manager, George Local
Municipality & others [2010] 3 BLLR 221 (SCA) ........................................................... 239
Afrox Ltd v Laka & others [1999] 5 BLLR 467 (LC) ........................................................... 497
Afrox Ltd v SACWU & others; SACWU & others v Afrox Ltd [1997] 4 BLLR 382 (LC) .... 456
Agricultural Research Council v Ramashowana NO & others
(2018) 39 ILJ 2509 (LC) .................................................................................................. 247
Alfred McAlpine v TPA 1974 (3) SA 506 (A) ...................................................................... 90
Algoa Bus Company v SATAWU & others [2010] 2 BLLR 149 (LC) ................................ 472
Allen v Amalgamated Construction Co Ltd [2000] IRLR 119 (ECJ) ............................. 369
Allpass v Mooikloof Estates (Pty) Ltd t/a Mooikloof Equestrian Centre
[2011] 5 BLLR 462 (LC), (2011) 32 ILJ 1637 (LC) ................................................... 135, 284
Amazwi Power Products (Pty) Ltd v Turnbull [2008] 9 BLLR 817 (LAC) ......................... 249
Anglo American Farms Boschendal Restaurant v Komjwayo
(1992) 13 ILJ 573 (LAC) .................................................................................................. 300
Anglo Office Supplies (Pty) Ltd v Lotz (2008) 29 ILJ 953 (LAC) ..................................... 386
Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration & others [2013] 5 BLLR 434 (LAC) ...................................... 213, 214, 215, 481
April v Gen-Tech Engineering Services CC (2005) 26 ILJ 407 (BCA) ............................ 222
April v Workforce Group Holdings (Pty) Ltd t/a The Workforce Group
(2005) 26 ILJ 2224 (CCMA) ....................................................................................... 71, 74
559
560 Law@work

Page
Apsey v Babcock Engineering Contractors (Pty) Ltd (1995) 16 ILJ 914 (IC) ................. 85
ARB Electrical Wholesalers (Pty) Ltd v Hibbert
[2015] 11 BLLR 1081 (LAC), (2015) 36 ILJ 2989 (LAC) .......................... 135, 265, 266, 287
Arbuthnot v SA Municipal Workers Union Provident Fund (2012) 33 ILJ 584 (LC) ...... 226
Asara Wine Estate & Hotel (Pty) Ltd v Van Rooyen & others
(2012) 33 ILJ 363 (LC) .................................................................................................... 246
The Asphalt Venture Windrush Intercontinental SA & another v
UACC Bergshav Tankers AS 2017 (3) SA 1 (SCA) ....................................................... 254
Assign Services (Pty) Ltd v CCMA [2015] 11 BLLR 1160 (LC) ........................................... 73
Assign Services (Pty) Ltd v NUMSA [2018] 9 BLLR 837 (CC) ............................................. 73
Association of Mineworkers & Construction Union & others v
Anglogold Ashanti Ltd (2016) 37 ILJ 2320 (LC) ........................................................... 285
Association of Mineworkers & Construction Union & others v
Chamber of Mines of SA & others [2017] 7 BLLR 641 (CC) ............................. 41, 53, 55
Association of Mineworkers and Construction Union & others v
Chamber of Mines & others 2017 (6) BCLR 700 (CC) ................................................ 405
Association of Mineworkers and Construction Union & others v
Chamber of Mines of South Africa & others [2017] 7 BLLR 641 (CC)....... 434, 436, 440
Association of Mineworkers & Construction Union & others v
Piet Wes Civils CC & another
[2017] 5 BLLR 501 (LC), (2017) 38 ILJ 1128 (LC) ............................................. 78, 250, 251
Association of Mineworkers and Construction Union and others v
Royal Bafokeng Platinum Ltd and others [2018] 11 BLLR 1075 (LAC) ...................... 351
Association of Professional Teachers & another v Minister of Education & others
(1995) 16 ILJ 1048 (IC) ................................................................................................... 134
AST Holdings (Pty) Ltd v Roos [2007] 10 BLLR 891 (LAC) ................................................ 388
Astrapak Manufacturing Holdings (Pty) Ltd t/a East Rand Plastics v
Chemical, Energy, Paper, Printing, Wood and Allied Workers Union
[2013] 12 BLLR 1194 (LAC), (2014) 35 ILJ 140 (LAC) ............................................ 113, 359
Atkins v Datacentrix (Pty) Ltd [2010] 4 BLLR 351 (LC) ............................................ 134, 273
Atlantis Diesel Engines (Pty) Ltd v NUMSA (1994) 15 ILJ 1247 (A) ................................. 350
Aucamp v SARS (2014) 35 ILJ 1217 (LC) ......................................................................... 215
Autozone v Dispute Resolution Centre of Motor Industry and others
[2019] 6 BLLR 551 (LAC) ................................................................................................ 260
Aviation Union of SA & another v SA Airways (Pty) Ltd & others
(2011) 32 ILJ 2861 (CC) ................................................. 367, 368, 369, 370, 372, 382, 391
Aviation Union of SA obo Barnes & others v SA Airways (Pty) Ltd & others
[2010] 1 BLLR 14 (LAC) .................................................................................................. 382
Aviation Union of South Africa & others v South African Airways (Pty) Ltd,
LGM SA Facility Managers and Engineers (Pty) Ltd & others
[2008] 1 BLLR 20 (LC) ..................................................................................................... 381
Avril Elizabeth Home for the Mentally Handicapped v Commission for
Conciliation, Mediation & Arbitration (2006) 27 ILJ 1644 (LC) .................................. 313

B
Bagarette & others v Performing Arts Centre of the Free State & others
(2008) 29 ILJ 2907 (LC) .................................................................................................. 216
Ball v Bambalela Bolts (Pty) Ltd & another [2013] 9 BLLR 843 (LAC).............................. 96
Baloyi v M & P Manufacturers (2001) 22 ILJ 391 (LAC) .................................................. 348
Bandat v De Kock & another (2015) 36 ILJ 979 (LC) ............................................. 127, 519
Banking Insurance Finance & Assurance Workers Union v
Zurich Insurance Co Ltd (2014) 35 ILJ 2146 (LC) ........................................................ 387
Basson v Chilwan & others 1993 (3) SA 742 (A) ............................................................... 95
Table of cases 561

Page
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs & others
2004 (7) BCLR 687 (CC)......................................................................................... 122, 163
Baudach v United Tobacco Co Ltd (2000) 21 ILJ 2241 (SCA) ..................................... 253
Bayat v Durban Institute of Technology (2006) 27 ILJ 188 (CCMA) ............................ 237
Bayley v Constantia Greetings (Pty) Ltd [1997] 3 BLLR 298 (CCMA) ........................... 493
Beaurain v Martin NO & others (1) (2014) 35 ILJ 2443 (LC) ................................... 225, 226
Bedderson v Sparrow Schools Education Trust [2010] 4 BLLR 363 (LC) ............... 285, 288
Bensingh v Minister of Education & others (2003) 24 ILJ 1098 (C)................................ 501
Berg v Besselsen 1988 ECR 2559 (ECJ) ............................................................................ 369
Bessie and University of KwaZulu-Natal (2013) 34 ILJ 2130 (CCMA) ............................ 216
Bezer v Cruizer International CC (2003) 24 ILJ 1372 (LAC) ............................................. 85
Bezuidenhout v Ibhayi Engineering Contractors CC (2005) 26 ILJ 2477 (BCA) ............ 81
BIFAWU & another v Mutual & Federal Insurance Company Ltd
[2006] 2 BLLR 118 (LAC) ................................................................................................ 275
Biggar v City of Johannesburg (Emergency Management Services
(2017) 38 ILJ 1806 (LC) .................................................................................................. 158
BMD Knitting Mills (Pty) Limited v SA Clothing & Textile Workers Union
(2001) 22 ILJ 2264 (LAC) ................................................................................................ 341
BMW (SA) (Pty) Ltd v National Union of Metalworkers of South Africa &
another [2019] 2 BLLR 107 (LAC), (2019) 40 ILJ 1159 (LAC) ............................... 135, 288
Board of Executors Ltd v McCafferty [1997] 7 BLLR 835 (LAC)....................................... 84
Boer v Momo Developments CC & another [2005] JOL 13303 (T) .............................. 521
Bootes v Eagle Ink Systems KwaZulu-Natal (Pty) Ltd (2008) 29 ILJ 139 (LC) ................ 135
Borcherds v CV Pearce & Sheward t/a Lubrite Distributors
(1991) 12 ILJ 383 (IC) ....................................................................................................... 63
Botha v A Import Export International CC (1999) 20 ILJ 2580 (LC) .............................. 282
Botha v Du Toit Vrey & Partners CC [2006] 1 BLLR 1 (LC).............................................. 252
Boxer Superstores Mthatha & another v Mbenya
[2007] 8 BLLR 693 (SCA) ................................................................................ 102, 502, 503
Bracks NO & another v Rand Water & another [2010] 8 BLLR 795 (LAC) ................... 257
Branford v Metrorail Services (Durban) & others (2003) 24 ILJ 2269 (LAC) ................. 315
Brink v Kitshoff NO 1996 (4) SA 197 (CC) ................................................................. 122, 163
Brink v Legal Aid SA (2015) 36 ILJ 1020 (LC) ................................................................... 135
Brits v ABSA [2005] 2 BALR 167 (CCMA) .......................................................................... 127
Brown v Read Educational Trust [2006] 6 BALR 605 (CCMA) ....................................... 242
BTR Industries SA (Pty) Ltd v MAWU (1992) 13 ILJ 803 (A) .............................................. 497
Burger v Governing Body of Newcastle Senior Primary School
[2005] 2 BALR 175 (CCMA) ........................................................................................... 322
Burger and SA Post Office Ltd (2008) 29 ILJ 2305 (CCMA) .................................. 217, 219
Burman Katz Attorneys v Brand NO [2001] 2 BLLR 125 (LC) .................................. 369, 373
Business & Design Software (Pty) Ltd & another v Van der Velde
(2009) 30 ILJ 1277 (LAC) ........................................................................................ 290, 388

C
Callanan v Tee-Kee Borehole Castings (Pty) Ltd & another (1992) 13 ILJ 279 (IC)...... 85
Camdons Realty (Pty) Ltd v Hart (1993) 14 ILJ 1008 (LAC) ............................................. 84
Campbell Scientific Africa (Pty) Ltd v Simmers & others
[2016] 1 BLLR 1 (LAC), (2016) 37 ILJ 116 (LAC) .................................................... 127, 304
Cape Performing Arts Board v Schuster (1994) 15 ILJ 109 (LAC) ................................. 208
Cape Town City Council v Masitho & others (2000) 21 ILJ 1957 (LAC) ............... 308, 309
Carephone (Pty) Ltd v Marcus NO & others
[1998] 11 BLLR 1093 (LAC)............................................................................. 497, 498, 499
Case & another v Minister of Safety and Security & others
1996 (3) SA 617 (CC) ..................................................................................................... 396
562 Law@work

Page
CCMA & others v Law Society of the Northern Provinces
(incorporated as the Law Society of the Transvaal) (2013) 34 ILJ 2779 (SCA) ....... 494
CEPPWAWU / Pop Snacks [2009] 11 BALR 1156 (CCMA) ............................................. 406
CEPPWAWU v Hydro Colour Inks (Pty) Ltd & another [2011] 7 BLLR 655 (LC) ............. 375
CEPPWAWU & another v Glass and Aluminium 2000 CC
[2002] 5 BLLR 399 (LAC) ........................................................................ 239, 248, 253, 275
CEPPWAWU obo Gumede v Republican Press (Pty) Ltd
[2006] 6 BLLR 537 (LC) ........................................................................................... 345, 352
CEPPWAWU obo Konstable v Safcol [2003] 3 BLLR 246 (LC)........................................ 104
Ceramic Industries Ltd t/a Betta Sanitaryware v NCABAWU
(1997) 18 ILJ 671 (LAC) .......................................................................................... 454, 458
Chamber of Mines of SA v Council of Mining Unions (1990) 11 ILJ 54 (IC) ................. 529
Chamber of Mines of South Africa v Compensation Commissioner for
Occupational Diseases & others [2013] JOL 29891 (SCA) ........................................ 520
Chambers v Process Consulting Logistics (Pty) Ltd [2003] 4 BALR 405 (CCMA) .......... 82
Chartaprops 16 (Pty) Ltd & another v Silberman (2009) 30 ILJ 497 (SCA) .................... 91
Chauke v Lee Services Centre t/a Leeson Motors (1998) 19 ILJ 1441 (LAC) .............. 305
Chemical Energy Paper Printing Wood and Allied Workers Union & another v
Glass and Aluminium 2000 CC [2002] 5 BLLR 399 (LAC) ........................................... 266
Chemical, Energy, Paper, Printing, Wood & Allied Workers Union & others v
Print Tech (Pty) Ltd & others (2010) 31 ILJ 1850 (LC) .................................................. 378
Chemical, Energy, Paper, Printing, Wood & Allied Workers Union
obo Two Members and Leader Packaging (2005) 26 ILJ 1129 (BCA) .................... 219
Chevron Engineering (Pty) Ltd v Nkambule & others [2004] 3 BLLR 214 (LC)............. 505
Chinese Association of South Africa & others v Minister of Labour & others
case 59251/2007 TPD, dated 18 June 2007 ................................................................ 176
Chirwa v Transnet Ltd & others [2008] 2 BLLR 97 (CC) .................................................. 501
Chizunza v MTN (Pty) Ltd & others
[2008] 10 BLLR 940 (LC), (2008) 29 ILJ 2919 (LC) ......................................... 135, 137, 272
Christian v Colliers Properties [2005] 5 BLLR 479 (LC)..................................................... 289
Chubb Guarding SA (Pty) Ltd v SATAWU [2005] JOL 15040 (LC) ................................. 466
City of Cape Town v Freddie & others
[2016] 6 BLLR 568 (LAC), (2016) 37 ILJ 1364 (LAC) .............................................. 133, 297
City of Johannesburg Metropolitan Municipality v SAMWU
[2011] 7 BLLR 663 (LC) ................................................................................................... 454
City of Tshwane Metropolitan Municipality v Engineering Council of SA
& another [2010] 3 BLLR 229 (SCA), (2010) 31 ILJ 322 (SCA) ............................. 227, 292
City Power (Pty) Ltd v Grinpal Energy Management Services (Pty) Ltd & others
[2015] 8 BLLR 757 (CC) .................................................................................................. 374
CMS Support Services (Pty) Ltd v Briggs [1997] 5 BLLR 533 (LAC) .................................. 85
Co-operative Workers Association v Petroleum Oil & Gas Co-operative of SA
[2007] 1 BLLR 55 (LC) ............................................................................................. 134, 147
Coates Brothers v Shanker [2003] 12 BLLR 189 (LAC) .................................................... 497
Coetzee v Comitis & others (2001) 22 ILJ 331 (C) ............................................................ 96
Coetzee v Lebea (1999) 20 ILJ 129 (LC) ......................................................................... 490
Coetzee v Zeitz Mocaa Foundation Trust & others [2018] 9 BLLR 909 (LC) ................. 100
Coetzer & others v Minister of Safety & Security & another
(2003) 24 ILJ 163 (LC) .................................................................................................... 143
Coin Security Group (Pty) Ltd v Adams & others [2000] 4 BLLR 371 (LAC) ................. 458
Coin Security Group (Pty) Ltd v SANUSO (1998) 19 ILJ 43 (C) ...................................... 469
Collins v Volkskas Bank (Westonaria Branch), a division of ABSA Bank Ltd
[1994] 12 BLLR 73 (IC) .................................................................................................... 134
Colonial Mutual Life Assurance Society v MacDonald 1931 AD 412 ...................... 60, 63
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Columbus Joint Venture t/a Columbus Stainless Steel v NUMSA
[1997] 10 BLLR 1292 (LC) ............................................................................................... 466
Colyer v Dräger SA (Pty) Ltd [1997] 2 BLLR 184 (CCMA) .............................................. 493
Commercial Catering & Allied Workers Union & others v Woolworths (Pty) Ltd
(2019) 40 ILJ 87 (CC) ..................................................................................................... 261
Commercial Stevedoring Agricultural and Allied Workers Union (CSAAWU)
obo Dube & others v Robertson Abattoir [2016] 12 BLLR 1163 (LAC)...................... 278
Communication Workers Union and Daily Dispatch (2010) 31 ILJ 1496 (CCMA) ...... 405
Communication Workers Union v Mobile Telephone Networks (Pty) Ltd
(2003) 24 ILJ 1670 (LC) .................................................................................. 224, 226, 496
Compensation Commissioner v Van Vuuren [2015] JOL 33943 (GP) ......................... 517
Concor Projects (Pty) Ltd t/a Concor Opencast Mining v Commission for
Conciliation, Mediation and Arbitration & others [2014] 6 BLLR 534 (LAC) .............. 47
Conti Print CC v CCMA & others [2015] 9 BLLR 865 (LAC) ................................... 245, 246
Continental Tyre SA (Pty) Ltd v NUMSA [2008] 9 BLLR 828 (LAC) ................................. 350
COSAWU v Zikhethele Trade (Pty) Ltd & another [2005] 9 BLLR 924 (LC) ................... 379
COSAWU obo Nyakazu v Prestige Cleaning Services (Pty) Ltd
(2010) 31 ILJ 1950 (CCMA) ............................................................................................. 74
Council for Medical Schemes & another v Genesis Medical Scheme & others
[2016] 1 All SA 15 (SCA) ................................................................................................ 533
Council for Scientific and Industrial Research v Fijen
[1996] 6 BLLR 685 (A) ......................................................................................... 93, 98, 238
County Fair Foods (a division of Astral Operations Ltd) v
Hotel, Liquor, Catering, Commercial and Allied Workers Union & others
[2006] 5 BLLR 478 (LC) ........................................................................................... 462, 464
County Fair Foods (Pty) Ltd v CCMA [1999] 11 BLLR 1117 (LAC) ......................... 259, 490
County Fair Foods (Pty) Ltd v FAWU & others [2001] 5 BLLR 494 (LAC) ....................... 466
County Fair Foods (Pty) Ltd v OCGAWU & another [2003] 7 BLLR 647 (LAC)............. 341
Crowhurst v ABSA Investment Management Services (Pty) Ltd (AIMS)
[2004] 6 BLLR 540 (LC) ................................................................................................... 353
Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp & others
[2002] 6 BLLR 493 (LAC) ................................................................................ 133, 297, 298
Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck
(2007) 28 ILJ 307 (SCA) ...................................................................................... 69, 75, 519
Cullen and Distell (Pty) Ltd (2001) 10 CCMA 6.9.3 ........................................................ 205
Cupido v GlaxoSmithKline SA (Pty) Ltd (2005) 26 ILJ 868 (LC) ..................................... 174
CWIU v Plascon Decorative (Inland) (Pty) Ltd (1999) 20 ILJ 321 (LAC) ............... 454, 469
CWIU v Ryan [2001] 3 BLLR 337 (LC)................................................................................ 500
CWIU v Sopelog CC (1993) 14 ILJ 144 (LAC) .................................................................. 429
CWIU & others v Algorax (Pty) Ltd (2003) 24 ILJ 1917 (LAC) ................................. 278, 341
CWIU & others v Latex Surgical Products (Pty) Ltd (2006) 27 ILJ 292 (LAC) ................ 344
CWU & another v Mobile Telephone Networks (Pty) Ltd [2003] 8 BLLR 741 (LC) ....... 291
CWU & others v SA Post Office Ltd (2005) 26 ILJ 1679 (LC) .......................................... 469

D
Dagane v Safety and Security Sectoral Bargaining Council & others
[2018] 7 BLLR 669 (LC) ................................................................................................... 298
Damelin (Pty) Ltd v Solidarity obo Parkinson & others [2017] 7 BLLR 672 (LAC) ......... 325
Daniels and Robben Island Museum (2010) 31 ILJ 1959 (CCMA) ............................... 216
Datt v Gunnebo Industries (Pty) Ltd
[2009] 5 BLLR 449 (LC), (2009) 30 ILJ 2429 (LC) ................................................... 135, 252
Dauth v Brown & Weirs Cash and Carry [2002] 8 BLLR 837 (CCMA) ........................... 297
David Crouch Marketing CC v Du Plessis (2009) 30 ILJ 1828 (LC) ................................. 96
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De Beer v SA Export Connection CC t/a Global Paws [2008] 1 BLLR 36 (LC) .... 272, 283
De Beer v Thompson & Son 1918 TPD 70 .......................................................................... 60
De Beer NO v North-Central Local Council and
South-Central Local Council & others 2002 (1) SA 429 (CC) ...................................... 83
De Beers Consolidated Mines Ltd v CCMA & others [2000] 5 BLLR 578 (LC).............. 481
De Beers Group Services (Pty) Ltd v NUM [2011] 4 BLLR 319 (LAC) ............................. 355
De Necker v Member of the Executive Council for the Department of
Health, Free State Province (Mosoeu NO & others as third parties)
[2014] JOL 32175 (FB) ............................................................................................ 518, 519
Democratic Union of Security Workers and Squires Foods (Pty) Ltd
t/a Morton’s (2008) 29 ILJ 2815 (CCMA) ..................................................................... 406
Denel (Pty) Ltd v Gerber [2005] 9 BLLR 849 (LAC) ......................................... 64, 67, 84, 85
Department of Correctional Services & another v
Police & Prisons Civil Rights Union & others
[2011] 32 ILJ 2629 (LAC) ........................................................ 121, 127, 131, 134, 135, 136
Department of Correctional Services and another v
Police and Prisons Civil Rights Union & others [2013] 7 BLLR 639 (SCA) ................... 286
Department of Correctional Services & another v POPCRU & others
[2012] 2 BLLR 110 (LAC) ........................................................................................ 138, 286
Department of Home Affairs & another v Ndlovu & others
[2014] 9 BLLR 851 (LAC) ................................................................................................ 300
Department of Home Affairs & another v Public Servants Association & others
(2017) 38 ILJ 1555 (CC) ................................................................................................. 481
Department of Justice v CCMA & others (2004) 25 ILJ 248 (LAC)............................... 212
Department of Justice & Constitutional Development v
Van der Merwe NO & others (2010) 31 ILJ 1184 (LC) ................................................ 480
Diamond & others v Daimler Chrysler SA (Pty) Ltd & another
(2006) 27 ILJ 2595 (LC) .................................................................................................. 432
Dierks v University of South Africa [1999] 4 BLLR 304 (LC) ............................................. 242
Dikobe v Mouton NO & others [2016] 9 BLLR 902 (LAC) ............................................... 307
Dince & others v Department of Education North West Province & others
(2010) 31 ILJ 1193 (LC) .................................................................................................. 218
Dines v Initial Services [1994] IRLR 336 (EAT) ................................................................... 380
Director-General, Department of Labour v Win-Cool Industrial
Enterprise (Pty) Ltd [2007] 9 BLLR 845 (LC) .................................................................. 186
Director-General: Department of Labour & another v Comair Ltd
(2009) 30 ILJ 2711 (LC) .................................................................................................. 187
Director-General of the Department of Labour v Jinghua Garments (Pty) Ltd
[2007] JOL 19127 (LC) ................................................................................................... 186
Dis-Chem Pharmacies Ltd v Malema & others (2019) 40 ILJ 855 (LC) ........................ 474
Discovery Health v CCMA [2008] 7 BLLR 633 (LC) ............................................. 62, 82, 255
Ditsamai v Gauteng Shared Services Centre [2009] 5 BLLR 456 (LC) ......................... 159
Dlamini v Toyota SA Manufacturing (2004) 25 ILJ 1513 (CCMA) ......................... 204, 205
Dlamini & others v Green Four Security [2006] 11 BLLR 1074 (LC) ........ 135, 136, 140, 286
Douglas & others v Gauteng MEC for Health [2008] 5 BLLR 401 (LC) ......................... 386
Du Preez v Minister of Justice and Constitutional Development & others
[2006] 8 BLLR 767 (SE) .................................................................................................... 165
Dudley v City of Cape Town & another
(2008) 29 ILJ 2685 (LAC), 2004 (8) BCLR 805 (CC) ...................................... 173, 174, 506
Duma v Minister of Correctional Services & others (2016) 37 ILJ 1135 (LC) ........ 132, 136
Duncanmec (Pty) Ltd v Gaylard NO [2018] 12 BLLR 1137 (CC) .................................. 298
Dunwell Property Services CC v Sibande & others [2012] 2 BLLR 131 (LAC) .............. 263
Dyokhwe v De Kock NO & others [2012] 10 BLLR 102 (LC) ............................................. 75
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E
Early Bird Farms (Pty) Ltd v FAWU & others [2004] 7 BLLR 628 (LAC) .................... 276, 469
East Rand Proprietary Mines Ltd v UPUSA (1996) 17 ILJ 1134 (LAC) ............................. 333
Eastwood & another v Magnox Electric plc [2004] UK HL 35 ....................................... 102
Edcon Ltd v Pillemer NO & others [2010] 1 BLLR 1 (SCA) ...................................... 260, 300
Edgars Consolidated Stores Ltd v FEDCRAW [2004] 7 BLLR 649 (LAC) ........................ 414
Edgars Consolidated Stores Ltd v SACCAWU & others
[2010] 12 BLLR 1282 (LC) ....................................................................................... 386, 388
Edgars Stores (Pty) Ltd v SACCAWU [1998] 5 BLLR 447 (LAC) ...................................... 480
Ehlers v Bohler Uddeholm Africa (Pty) Ltd (2010) 31 ILJ 2383 (LC) ............................... 132
Ekhamanzi Springs (Pty) Ltd v Mnomiya [2014] 8 BLLR 737 (LAC) ................................ 283
Ellerines Holdings v CCMA & others [1999] 9 BLLR 917 (LC).......................................... 301
Enforce Security Group v Fikile & others (2017) 38 ILJ 1041 (LAC) ............................... 250
Enterprise Foods (Pty) Ltd v Allen & others [2004] 7 BLLR 659 (LAC) .................... 341, 350
Ephraim v Bull Brand Foods (Pty) Ltd (2010) 31 ILJ 951 (LC) ......................................... 484
Equity Aviation v SATAWU [2012] 12 BLLR 245 (SCA) ..................................................... 276
Equity Aviation Services (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration & others [2008] 12 BLLR 1129 (CC) ................................ 261
Equity Aviation Services (Pty) Ltd v SA Transport & Allied Workers Union & others
(2009) 30 ILJ 1997 (LAC) ................................................................................................ 276
Equity Aviation Services (Pty) Ltd v SATAWU & others
[2009] 10 BLLR 933 (LAC)............................................................................................... 463
ER24 Holdings v Smith & another [2007] JOL 19898 (SCA) ........................................... 517
Erasmus v Ikwezi Municipality & another (2016) 37 ILJ 1799 (ECG) ............................. 157
Erasmus & others v Senwes Ltd & others (2006) 27 ILJ 259 (T) ...................... 104, 105, 529
Eskom v Marshall & others (2002) 23 ILJ 2251 (LC) ......................................................... 204
Eskom Holdings Ltd v Fipaza & others [2013] 4 BLLR 327 (LAC).................................... 301
Ethekwini Metropolitan Municipality: Durban Metropolitan Police Services v
Khanya & others (DA9/2012) [2014] ZALAC 48 (18 September 2014) ..................... 141
Evans v Japanese School of Johannesburg
(2006) 27 ILJ 2607 (LC), [2006] 12 BLLR 1146 (LC) ....................................... 135, 251, 288
EWN v Pharmaco Distribution (Pty) Ltd (2016) 37 ILJ 449 (LC) ............. 136, 152, 153, 274
Exactics-Pet (Pty) Ltd v Petalia NO & others (2006) 27 ILJ 1126 (LC) ........................... 298
Experian SA (Pty) Ltd v Haynes & another (2013) 34 ILJ 529 (GSJ) .............................. 387

F
FAWU v The Cold Chain (Pty) Ltd & another [2010] 1 BLLR 49 (LC) ..................... 369, 376
FAWU v Ngcobo [2013] 12 BLLR 1035 (CC) ...................................................................... 47
FAWU v Pets Products (Pty) Ltd [2000] 7 BLLR 781 (LC) ................................................. 471
FAWU & another v The Cold Chain [2007] 7 BLLR 638 (LC) .................................. 274, 399
FAWU & others v Rainbow Chicken Farms [2000] 1 BLLR 70 (LC) ................ 127, 135, 454
FAWU & others v SA Breweries Ltd
(2004) 25 ILJ 1979 (LC), [2004] 11 BLLR 1093 (LC) ....................................... 265, 346, 347
FAWU obo Meyer v Rainbow Chickens [2003] 2 BALR 140 (CCMA) ........................... 254
Fedlife Assurance Ltd v Wolfaardt
(2001) 22 ILJ 2407 (SCA), [2001] 12 BLLR 1301 (SCA) ................................... 98, 102, 502
Feinberg v African Bank Ltd (2004) 21 ILJ 217 (LC) ....................................................... 501
Feldman (Pty) Ltd v Mall 1945 AD 733 .............................................................................. 92
Ferguson v Basil Read (Pty) Ltd [2013] 3 BLLR 274 (LC) ................................................. 253
Ferodo (Pty) Ltd v De Ruiter (1993) 14 ILJ 974 (LAC) ..................................................... 265
FGWU v Minister of Safety and Security (1999) 20 ILJ 1258 (LC) .......................... 453, 464
Fidelity Guards Holdings (Pty) Ltd v Pearmain [1998] 3 BLLR 334 (SE) ........................... 96
Fidelity Guards Holdings (Pty) Ltd v PTWU [1997] 9 BLLR 1125 (LAC) ........................... 459
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Fijen v Council for Scientific & Industrial Research (1994) 15 ILJ 759 (LAC) ................ 249
First Garment Rental (Pty) Ltd v CCMA & others [2015] 11 BLLR 1094 (LAC) .............. 259
Fleet Africa (Pty) Ltd v Nijs [2017] 5 BLLR 450 (LAC) ....................................................... 386
Floraline v SASTAWU [1997] 9 BLLR 1223 (LC) ................................................................. 454
Foodgro, a Division of Leisurenet v Keil (1999) 20 ILJ 2521 (LAC)................................. 378
Footwear Trading CC v Mdlalose [2005] 5 BLLR 452 (LAC) ...................................... 83, 84
Forecourt Express (Pty) Ltd v SATAWU & another (2006) 27 ILJ 2537 (LAC) ................ 290
Foreningen af Arbejdsledere i Danmark v Daddy’s Dance Hall
1988 ECR 739 (ECJ) ............................................................................................... 369, 379
Fourie v Capitec Bank [2005] 1 BALR 29 (CCMA) ......................................................... 264
Fourie v Provincial Commissioner of the SA Police Service
(North West Province) & another (2004) 25 ILJ 1716 (LC) ......................................... 177
Fourie v Stanford Driving School & 34 Related Cases (2011) 32 ILJ 914 (LC) ............. 484
Fourways Mall (Pty) Ltd & another v SACCAWU & another
(1999) 20 ILJ 1008 (W)............................................................................................ 474, 501
Francisca Sánchez Hidalgo ea v Asociación de Servicios Aser and
Sociedad Cooperativa Minerva 1998 ECR 8237 (ECJ) ............................................. 371
Franmann Services (Pty) Ltd v Simba (Pty) Ltd & another (2013) 34 ILJ 897 (LC) ...... 384
Fraser v Caxton Publishers [2005] 3 BALR 323 (CCMA) ................................................. 326
Fredericks v MECS Africa Project Support (2005) 26 ILJ 2484 (BCA) ............................ 429
Fredericks & others v MEC for Education and Training, Eastern Cape & others
(2002) 23 ILJ 81 (CC) ............................................................................................... 55, 505
Free Market Foundation v Minister of Labour & others [2016] 8 BLLR 805 (GP).......... 436
Free State Provincial Government (Department of Agriculture) v Makae
(in his capacity as Commissioner of the CCMA, Free State Province &
Presiding Officer) & others [2006] 11 BLLR 1090 (LC) ................................................. 256
Freshmark (Pty) Ltd v CCMA & others (2003) 24 ILJ 373 (LAC)............................. 340, 360
Fry’s Metals (Pty) Ltd v National Union of Metalworkers of SA & others
(2003) 24 ILJ 133 (LAC) .................................................................................. 278, 340, 343
Future of SA Workers Union obo AB & others v Fedics (Pty) Ltd & another
(2015) 36 ILJ 1078 (LC) .................................................................................................. 156

G
G4S Cash Solutions SA (Pty) Ltd v Motor Transport Workers Union of
SA & others (2016) 37 ILJ 1852 (LAC) ........................................................................... 452
Gaga v Anglo Platinum Ltd & others (2012) 33 ILJ 329 (LAC) ...................................... 134
Galane and Green Stone Civils CC [2015] 1 BALR 60 (CCMA) ........................... 213, 219
Ganes & another v Telekom Namibia (2004) 23 ILJ 995 (SCA) ................................ 93, 94
Gauteng Provinsiale Administrasie v Scheepers & others
(2000) 21 ILJ 1305 (LAC) ................................................................................................ 202
Gaylard v Telkom SA Ltd [1998] 9 BLLR 942 (LC) ............................................................ 211
Gbenga-Oluwatoye v Reckitt Benckiser South Africa (Pty) Ltd & another
[2017] 1 BLLR 1 (CC) ...................................................................................................... 253
Gcaba v Minister for Safety & Security & others [2009] 12 BLLR 1145 (CC) ........ 501, 503
Gebhardt v Education Labour Relations Council & others
(2013) 34 ILJ 1183 (LC) .................................................................................................. 204
General Food Industries Limited v FAWU [2004] 7 BLLR 667 (LAC) .............................. 350
General Food Industries Limited t/a Blue Ribbon Bakeries v FAWU & others
[2004] 9 BLLR 849 (LAC) ................................................................................................ 346
Genric Mai (Pty) Ltd v Industrial Council for the Iron, Steel, Engineering &
Metallurgical Industry & others (1995) 16 ILJ 51 (A) ................................................... 429
George v Liberty Life Association of Africa Ltd (1996) 17 ILJ 571 (IC) ......................... 176
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George v Western Cape Education Department & another
(1995) 16 ILJ 1529 (IC) ................................................................................................... 134
Georgieva-Deyanova v Craighall Spar [2004] 9 BALR 1143 (CCMA) ........................... 82
Germishuys v Upington Municipality (2000) 21 ILJ 2439 (LC) ....................................... 135
Gibb v Nedcor Ltd [1997] 12 BLLR 1580 (LC).................................................................. 490
Goddard v Metcash Trading Africa (Pty) Ltd (2010) 31 ILJ 104 (LC) ........................... 343
Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA & others
[2014] 1 BLLR 20 (LAC) .................................................................................................. 324
Goldgro (Pty) Ltd v McEvoy (2019) 40 ILJ 1202 (LAC) ................................................... 292
Gordon v Department of Health, KwaZulu-Natal [2004] 7 BLLR 708 (LC) ................... 181
Gotso v Afrox Oxygen Ltd [2003] 6 BLLR 605 (Tk) ........................................................... 501
Govender v Dennis Port (Pty) Ltd (2005) 26 ILJ 2239 (CCMA) ............................. 201, 219
Govender and Umgungundlovu District Municipality
(2016) 37 ILJ 724 (CCMA) ............................................................................................. 152
Grieg v Afrox Limited (2001) 22 ILJ 2102 (ARB) ............................................................... 347
Grieve v Denel (Pty) Ltd [2003] 4 BLLR 366 (LC), (2003) 24 ILJ 551 (LC) ............... 291, 496
Griggs v Duke Power Company (1971) 401 US 424 ....................................................... 131
Grinpal Energy Management Services (Pty) Ltd v
City Power Johannesburg (Pty) Ltd & others (2013) 34 ILJ 905 (LC) ........................ 373
Grobler v Naspers Bpk & another [2004] 5 BLLR 455 (C) ......................... 92, 127, 129, 156
Grootboom v National Prosecuting Authority & another
[2013] 5 BLLR 452 (LAC) ................................................................................................ 255
Grootboom v National Prosecuting Authority & another [2014] 1 BLLR 1 (CC)......... 255
Group 4 Falck (Pty) Ltd v DUSWO [2003] 4 BALR 422 (CCMA) ............................. 406, 407
Gumede and Crimson Clover 17 (Pty) Ltd t/a Island Hotel
(2017) 38 ILJ 702 (CCMA) ............................................................................. 133, 134, 157
Gunter v Compensation Commissioner (2009) 30 ILJ 2341 (O) ................................... 518

H
Halgang Properties CC v Western Cape Workers Association
[2002] 10 BLLR 919 (LAC)............................................................................................... 486
Harksen v Lane NO & others 1997 (11) BCLR 1489 (CC) ....................... 125, 136, 137, 168
Harley v Bacarac Trading 39 (Pty) Ltd (2009) 30 ILJ 2085 (LC) ..................................... 219
Harmse v City of Cape Town [2003] 6 BLLR 557 (LC) ............................................ 135, 172
Harsco Metals SA (Pty) Ltd & another v Arcelormittal SA Ltd & others
(2012) 33 ILJ 901 (LC) .................................................................................................... 376
Head of the Dept of Education v Mofokeng [2015] 1 BLLR 50 (LAC) ......................... 499
Health & other Service Personnel Trade Union of SA & another v
Public Health & Welfare Sectoral Bargaining Council & others
[2014] JOL 31963 (LC) ................................................................................................... 204
Health & Other Service Personnel Trade Union of SA & others v
MEC for Health, Eastern Cape & others (2017) 38 ILJ 890 (LAC) ............................. 205
Health & Other Services Personnel Trade Union of SA obo Tshambi v
Department of Health, KwaZulu-Natal (2016) 37 ILJ 1839 (LAC) ..................... 439, 480
Healy v Workmen’s Compensation Commissioner & another
(2009) 30 ILJ 859 (E) ....................................................................................................... 518
Heath v A & N Paneelkloppers (2015) 36 ILJ 1301 (LC)................................................. 284
Helderberg International Importers (Pty) Ltd v McGahey NO & others
[2015] 4 BLLR 430 (LC) ................................................................................................... 257
Hendricks v Cape Peninsula University of Technology & others
(2009) 30 ILJ 1229 (C) ............................................................................................ 129, 156
Henn v SA Technical (Pty) Ltd (2006) 27 ILJ 2617 (LC) .................................................. 178
Herbst v Elmar Motors (1999) 20 ILJ 2465 (CCMA) ........................................................... 64
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Herholdt v Nedbank Ltd (Congress of South African Trade Unions
as amicus curiae) [2013] 11 BLLR 1074 (SCA)............................................................. 499
Hextex & others v SA Clothing and Textile Workers Union & others
(2002) 23 ILJ 2267 (LC) .................................................................................................. 468
Heyneke v Umhlatuze Municipality (2010) 31 ILJ 2608 (LC) ......................................... 218
Hibbert v ARB Electrical Wholesalers (Pty) Ltd
(2013) 34 ILJ 1190 (LC), [2013] 2 BLLR 189 (LC) ................................................... 135, 288
High Rustenburg Estate (Pty) Ltd v National Education Health &
Allied Workers Union obo Cornelis & others (2017) 38 ILJ 1758 (LAC) ..................... 388
Highveld Steel & Vanadium Corporation Ltd v Oosthuizen 2009 (4) SA 1 (SCA) ...... 530
Hoch v Mustek Electronics (Pty) Ltd (2000) 21 ILJ 365 (LC) ........................................... 300
Hoffmann v SA Airways (2000) 21 ILJ 2357 (CC) .................................................... 135, 264
Hoffmann v SA Airways (2000) 21 ILJ 891 (W) ................................................................ 135
Hoffmann v South African Airways 2001 (1) SA 1 (CC) ................................................. 534
Holgate v Minister of Justice (1995) 16 ILJ 1426 (E) ....................................................... 101
Horn v LA Health Medical Scheme 2015 (7) BCLR 780 (CC) .......................................... 34
Hospersa and Zuid-Afrikaanse Hospitaal (1997) 2 LLD 29 (CCMA) ............................. 404
HOSPERSA & another v MEC for Health [2003] 12 BLLR 1242 (LC) ............................... 255
HOSPERSA & another v MEC for Health, Gauteng Government
(2008) 29 ILJ 2769 (LC) .................................................................................................. 218
HOSPERSA & another v MEC for Health, Gauteng Provincial Government
[2008] 9 BLLR 861 (LC) ........................................................................................... 219, 218
HOSPERSA & another v Northern Cape Provincial Administration
(2000) 21 ILJ 1066 (LAC) ........................................................................................ 202, 203
HOSPERSA obo Venter v SA Nursing Council [2006] 6 BLLR 558 (LC) .......................... 135
Hurley v Mustoe [1981] ICR 490 ....................................................................................... 120
Hydraulic Engineering Repair Services v Ntshona & others (2008) 29 ILJ 163 (LC) ...... 64
Hydro Colour Inks (Pty) Ltd v CEPPWAWU [2011] 7 BLLR 637 (LAC) ..................... 389, 390

I
IMATU & others v Rustenburg Transitional Local Council
[1999] 12 BLLR 1299 (LC) ............................................................................... 275, 398, 399
IMATU obo Falck & another/City of Cape Town (Helderberg Administration)
[2003] 3 BALR 298 (CCMA) ........................................................................................... 219
IMATU obo Verster v Umhlathuze Municipality [2011] 9 BLLR 882 (LC) ....................... 213
Imperial Cargo Solutions (Pty) Ltd v SA Transport & Allied Workers Union & others
(2017) 38 ILJ 2479 (LAC) ................................................................................................ 452
Imvula Quality Protection (Pty) Ltd v UNISA [2018] 12 BLLR 1151 (LAC) ...................... 383
Independent Municipal & Allied Trade Union & another v
City of Matlosana Local Municipality & another (2014) 35 ILJ 2459 (LC) ....... 224, 230
Independent Municipal and Allied Workers Union v Greater Louis Trichardt
Transitional Local Council (2002) 21 ILJ 1119 (LC) ............................................. 142, 143
Independent Municipal & Allied Workers Union & another v
City of Cape Town (2005) 26 ILJ 1404 (LC) ......................................................... 120, 140
Indwe Risk Services (Pty) v Van Zyl: In re Van Zyl v Indwe Risk Services (Pty) Ltd
(2010) 31 ILJ 956 (LC) .................................................................................................... 484
Info DB Computers v Newby & another (1996) 17 ILJ 32 (WLD) .................................... 96
Insurance & Banking Staff Association & another v Old Mutual Services &
Technology Administration & another [2006] 6 BLLR 566 (LC) ................................. 357
Intertech Systems (Pty) Ltd v Sowter (1997) 18 ILJ 689 (LAC) ....................................... 127
Irvin & Johnson Ltd v CCMA & others [2006] 7 BLLR 613 (LAC) ............................ 359, 360
Irvin & Johnson Ltd v Trawler & Line Fishing Union & others
[2003] 4 BLLR 379 (LC) ................................................................................... 154, 155, 534
Table of cases 569

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J
J v M Ltd (1989) 10 ILJ 755 (IC) ......................................................................................... 127
Jabari v Telkom SA (Pty) Ltd [2006] 10 BLLR 924 (LC) .................................................... 332
Jacot-Guillarmod v Provincial Government, Gauteng (1999) 20 ILJ 1689 (T) ...... 89, 502
James v Eastleigh Borough Council [1990] IRLR 288 ..................................................... 121
Janda v First National Bank [2006] 12 BLLR 1156 (LC) ................................................... 270
Jansen v Legal Aid (2018) 39 ILJ 2024 (LC) .................................................................... 134
Jansen v Minister of Correctional Services of the Republic of South Africa
(2010) 31 ILJ 650 (LC) ............................................................................................ 135, 136
Jansen v Pressure Concepts (2005) 26 ILJ 2064 (BCA).................................................. 323
Jansen van Vuuren v SA Airways (Pty) Ltd (2013) 34 ILJ 1749 (LC) ...................... 135, 141
Jantjies and Barloworld Handling (2013) 34 ILJ 2165 (BCA) ......................................... 204
Jardine v Tongaat Hulett Sugar Ltd
[2003] 7 BLLR 717 (LC), (2002) 23 ILJ 547 (CCMA) ...................................... 109, 332, 333
Jenkin v Khumbula Media Connexion (Pty) Ltd [2010] 12 BLLR 1295 (LC).................. 370
Johannes v Polyoak (Pty) Ltd [1998] 1 BLLR 18 (LAC) ..................................................... 93
Johnson v Unisys Ltd [2001] UK HL 31 .............................................................................. 102
Jooste v Kohler Packaging Ltd [2003] 12 BLLR 1251 (LC) ............................................. 109
Jooste v Score Supermarket Trading (Pty) Ltd
(1999) 20 ILJ 525 (CC), 1998 (9) BCLR 1106 (CC) ................................................. 98, 519
Jooste v Transnet t/a South African Airways (1995) 16 ILJ 629 (LAC) .......................... 245
Jordaan v Bloemfontein Transitional Local Authority & another
2004 (3) SA 371 (SCA) ..................................................................................................... 91
Jordaan v CCMA & others [2010] 12 BLLR 1235 (LAC) ......................................... 246, 247
Joseph v University of Limpopo & others (2011) 32 ILJ 2085 (LAC) .............................. 241
Joslin v Olivetti Systems and Networks Africa (Pty) Ltd (1993) 14 ILJ 227 (IC) ............. 332
Joy Mining Machinery, a division of Harnischfeger (SA) (Pty) Ltd v
NUMSA & others (2002) 23 ILJ 391 (LC) ............................................................... 153, 534

K
K v Minister of Safety and Security [2005] 8 BLLR 749 (CC) ............................................ 91
Kadiaka v Amalgamated Beverage Industries (1999) 20 ILJ 373 (LC) ........ 132, 138, 139
Karan t/a Karan Beef Feedlot & another (2010) 31 ILJ 2449 (LC)................................ 135
Kasipersad v CCMA [2003] 2 BLLR 187 (LC) ................................................................... 486
Kebeni v Cementile Products (Ciskei) (Pty) Ltd (1987) 8 ILJ 442 (IC)........................... 366
Keil v Foodgro (a Division of Leisurenet) [1999] 4 BLLR 345 (LC) .................................. 386
Kelly Industrial Ltd v CCMA & others [2015] 6 BLLR 606 (LC) ........................................ 240
Kelman v Care Contract Services Ltd [1995] ICR 260 (EAT) ......................................... 380
Kem-Lin Fashions CC v Brunton & another (2001) 22 ILJ 109 (LAC) ..................... 436, 438
Kem-Lin Fashions CC v Brunton & another
[2002] 7 BLLR 597 (LAC), (2002) 23 ILJ 882 (LAC) ........................................................ 504
Kgasago & others v Meat Plus CC (1999) 20 ILJ 572 (LAC) .......................................... 476
Kgethe & others v LMK Manufacturing & another [1997] 10 BLLR 1303 (LC) ............. 373
Kgethe & others v LMK Manufacturing & another (1998) 19 ILJ 524 (LAC) ................ 373
Khetsiwe v Fundsatwork Umbrella Pension Fund – Participating Employer:
G Liviero & Son (Pty) Limited (Plant Operators) & others
[2015] JOL 32851 (PFA) ................................................................................................. 531
Khumalo and Enforce Security Services (Pty) Ltd (2017) 38 ILJ 711 (CCMA) ............. 135
Khutshwa v SSAB Hardox (2006) 27 ILJ 1067 (BCA) ............................................... 303, 334
Kievits Kroon Country Estate (Pty) Ltd v Mmoledi & others
[2014] 3 BLLR 207 (SCA) ................................................................................ 110, 296, 334
Kirsten v Southern Cross Manufacturing Co Ltd (2006) 27 ILJ 2471 (CCMA) .............. 251
Klusener and KZN Cricket (Pty) Ltd (2016) 37 ILJ 2916 (CCMA) ................................... 241
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Knox D’Arcy Ltd v Shaw 1996 (2) SA 651 (W) ................................................................... 95
KO and Kuasa Commodities 332 t/a Twin Peak Spur Steak Ranch
(2016) 37 ILJ 735 (CCMA) ............................................................................................. 127
Koka v Director-General: Provincial Administration North West Government
[1997] 7 BLLR 874 (LC) ................................................................................................... 215
Konigkramer and National Regulator for Compulsory Specifications
(2015) 36 2421 (CCMA) ................................................................................................ 215
Kotze & Genis (Edms) Bpk v Potgieter 1995 (3) BCLR 349 (C) ........................................ 95
Krishna v University of KwaZulu-Natal (2012) 33 ILJ 1688 (LC) ...................................... 387
Kroukam v SA Airlink (Pty) Ltd
[2005] 12 BLLR 1172 (LAC)............................................. 261, 263, 272, 273, 274, 280, 399
Kruger v SA Police Service (2003) 24 ILJ 477 (BCA) ....................................................... 204
KwaZulu-Natal Tourism Authority & others v Wasa [2016] 11 BLLR 1135 (LAC) ........... 101
‘Kylie’ v CCMA & others [2008] 9 BLLR 870 (LC) .............................................................. 83
‘Kylie’ v CCMA & others
[2010] 7 BLLR 705 (LAC), 2010 (10) BCLR 1029 (LAC) ..................................... 62, 82, 396
‘Kylie’ v Van Zyl t/a Brigittes [2007] 4 BALR 338 (CCMA) ................................................ 83

L
L-A J v Afrox Oxygen Ltd [2015] 12 BLLR 1213 (LC)........................................................ 291
LAD Brokers (Pty) Ltd v Mandla [2001] 9 BLLR 1137 (LAC) .............................................. 72
Lagadien v University of Cape Town (2000) 21 ILJ 2469 (LC) ....................................... 132
Lahrs v SAR&H 1931 CPD 289 ............................................................................................. 97
Langemaat v Minister of Safety & Security & others (1998) 19 ILJ 240 (T)................... 134
Langeveldt v Vryburg Transitional Local Council & others
[2001] 5 BLLR 501 (LAC) ................................................................................................ 501
Larbi-Odam v Members of the Executive Committee for Education
(North-West Province) & another 1998 (1) SA 745 (CC) ........................................... 136
Le Roux v CCMA & others [2000] 6 BLLR 680 (LC) ......................................................... 497
Lebowa Platinum Mines Ltd v Hill
[1998] 7 BLLR 666 (LAC), (1998) 19 ILJ 1112 (LAC) ...................................... 127, 298, 333
Legodi & others and Northern Cape Provincial Legislature
(2012) 33 ILJ 2213 (CCMA) ................................................................................... 216, 217
Leonard Dingler Employee Representative Council v
Leonard Dingler (Pty) Ltd [1997] 11 BLLR 1438 (LC) ................................................... 530
Leonard Dingler Employee Representative Council v
Leonard Dingler (Pty) Ltd (1998) 19 ILJ 285 (LC) ................................ 120, 121, 130, 131
Letsoalo v Private Security Sector Provident Fund & others
[2014] JOL 31431 (PFA) ......................................................................................... 530, 531
Letsoalo & another v Minister of Police & others;
Sesing v Minister of Police & others [2016] 8 BLLR 793 (LC) ....................................... 231
Lewis v Media 24 Ltd (2010) 31 ILJ 2416 (LC) ......................................................... 127, 135
Liberty Group Ltd v M (2017) 38 ILJ 1318 (LAC) ............................................................. 156
Liberty Life Association of Africa Ltd v Niselow (1996) 17 ILJ 673 (LAC) ...... 62, 63, 64, 90
Lifeguards Africa (Pty) Ltd v Raubenheimer (2006) 27 ILJ 2521 (D) ............................... 95
Linda Erasmus Properties Enterprises (Pty) Ltd v Mhlongo & others
(2007) 28 ILJ 1100 (LC) .................................................................................................... 64
Lobtrans SA (Pty) Ltd v MTWUSA & others [2006] JOL 17557 (LC) ................................ 453
Long v Prism Holdings Ltd & another (2012) 33 ILJ 1402 (LAC) .................................... 373
Long v SA Breweries (Pty) Ltd (2019) 40 ILJ 965 (CC) .................................................... 218
Lorentz v TEK Corporation Provident Fund 1998 (1) SA 192 (W) ................................... 529
Lotter v SA Red Cross Society (2006) 27 ILJ 2486 (CCMA) .................................... 332, 333
Lottering & others v Stellenbosch Municipality [2010] 12 BLLR 1306 (LC) ................... 248
Table of cases 571

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Louw v Acting Chairman of the Board of Directors of the
North West Housing Corporation & another (2000) 21 ILJ 482 (B) ............................. 89
Louw v Golden Arrow Bus Services (Pty) Ltd (2000) 21 ILJ 188 (LC)..................... 137, 147
Lowies v University of Johannesburg [2014] JOL 32066 (LC) ........................................ 226
LTE Consulting (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration
(2017) 38 ILJ 2787 (LC) .................................................................................................. 301
Ludick v Rural Maintenance (Pty) Ltd [2014] 2 BLLR 178 (LC) ...................................... 109

M
McInnes v Technikon Natal [2000] 6 BLLR 701 (LC) ....................................................... 242
Mackay v ABSA Group & another [1999] 12 BLLR 1317 (LC) ........................................ 282
McPherson v University of KwaZulu-Natal & another (2008) 29 ILJ 674 (LC) ............... 136
Mafomane v Rustenburg Platinum Mines Ltd [2003] 10 BLLR 999 (LC) ............... 272, 285
Magagane v MTN SA (Pty) Ltd & another
[2013] 8 BLLR 768 (LC); (2010) 31 ILJ 322 (SCA) .......................................................... 226
Magna Alloys & Research SA (Pty) Ltd v Ellis 1984 (4) SA 874 (A) .................................. 95
Magson Speed Weave Manufacturing (Pty) Ltd (2009) 30 ILJ 2196 (CCMA)............ 219
Mahlangu & another v The Minister of Labour & others
(Case no 79180/15 of 23 May 2019) ..................................................................... 69, 517
Makhanya v University of Zululand [2009] 8 BLLR 721 (SCA) ........................................ 102
Makibinyane v Nuclear Energy Corporation of SA & another
(2009) 30 ILJ 2731 (LC) .................................................................................................. 174
Makoti v Jesuit Refugee Service SA (2012) 33 ILJ 1706 (LC) ......................................... 127
Makume v Hakinen Transport CC; Moyi v Inkhunzi Contractors (Pty) Ltd;
Shashape v Tswaing Local Municipality (2011) 32 ILJ 928 (LC) ................................ 484
Malamlela v SA Local Government Bargaining Council & others
(2018) 39 ILJ 2454 (LAC) ................................................................................................ 301
Maloba v Minaco Stone Germiston (Pty) Ltd & another (2000) 21 ILJ 1795 (LC) ...... 373
Maluti-A-Phofung Local Municipality v Rural Maintenance (Pty) Ltd & another
[2016] 1 BLLR 13 (LAC) .................................................................................................. 375
Manana v Department of Labour & others [2010] 6 BLLR 664 (LC) ............................ 206
Mangena & others v Fila South Africa (Pty) Ltd & others
[2009] 12 BLLR 1224 (LC) ....................................................... 132, 133, 134, 135, 137, 147
Mangope v SA Football Association [2011] 4 BLLR 391 (LC) ........................................ 330
Mankayi v Anglogold Ashanti Ltd (2010) 31 ILJ 1065 (SCA) ......................................... 519
Mankayi v Anglogold Ashanti Ltd (2011) 32 ILJ 545 (CC) ...................................... 98, 520
Mantzaris v University of Durban Westville & others (2000) 21 ILJ 1818 (LC) ............... 501
Mapulane v Madibeng Local Municipality & another [2010] 6 BLLR 672 (LC) .......... 217
Maqubela v SA Graduates Development Association (2014) 35 ILJ 2479 (LC) ......... 230
Marais v Member of the Executive Council, Department of Education,
Eastern Cape Province (2008) 29 ILJ 1697 (E) .............................................................. 99
Maritime Industries Trade Union of SA & others v Transnet Ltd & others
(2002) 23 ILJ 2213 (LAC) ................................................................................................ 209
Maritz v Calibre Clinical Consultants (Pty) Ltd & another (2010) 31 ILJ 1436 (LC) ..... 343
Marsland v New Way Motor & Diesel Engineering (Pty) Ltd
[2009] 30 ILJ 169 (LC)..................................................................................................... 136
Martin & East (Pty) Ltd v National Union of Mineworkers & others
(2014) 35 ILJ 2399 (LAC) ................................................................................................ 317
Masango v Liberty Group Ltd (2012) 33 ILJ 414 (LC)..................................................... 158
Maseko v CCMA [2003] 11 BLLR 1148 (LC) .................................................................... 497
Mashava v Cuzen & Woods Attorneys (2000) 21 ILJ 402 (LC).............................. 272, 284
Masondo v Crossway (1998) 19 ILJ 171 (CCMA) ........................................................... 134
Mathews v GlaxoSmithKline SA (Pty) Ltd [2007] 3 BLLR 230 (LC) ................................. 361
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Matsekoleng v Shoprite Checkers (Pty) Ltd [2013] 2 BLLR 130 (LAC) .................. 261, 263
Matsi and JP Hugo Residence CC t/a Hoffe Park Accommodation Centre
(2013) 34 ILJ 1018 (CCMA) ........................................................................................... 219
MATUSA v Central Karoo District Municipality [2019] 2 BLLR 159 (LC) ......................... 403
Mawethu Civils (Pty) Ltd & another v National Union of Mineworkers
[2016] 7 BLLR 661 (LAC) ................................................................................................ 215
Mazista Tiles (Pty) Ltd v NUM & others [2005] 3 BLLR 219 (LAC) ................................... 343
Mbana v Shepstone & Wylie (2015) 36 ILJ 1805 (CC) ................................... 133, 134, 137
Mbatha v University of Zululand 2014 (2) BCLR 123 (CC) ............................................... 55
Mbayeka & another v MEC for Welfare, Eastern Cape 2001 (4) BCLR 374 (T) .......... 501
Mbhele and Fidelity Services v SA Municipal Workers Union & another
(2016) 37 ILJ 1935 (CCMA) ................................................................................... 134, 286
Mdamba and Masibambane Recruitment (2009) 30 ILJ 2200 (CCMA) .................... 219
Mdluli v SA Police Service (2003) 24 ILJ 1186 (BCA) ...................................................... 210
MEC for Education, KwaZulu-Natal & others v Pillay 2008 (1) SA 474 (CC) ................ 110
MEC for the Department of Health, Free State Province v EDN
[2014] 12 BLLR 1155 (SCA) ............................................................................................ 518
MEC for Tourism, Environment and Economic Affairs: Free State v
Nondumo, ZM & others [2005] 10 BLLR 974 (LC) ........................................................ 262
MEC for Transport: KwaZulu-Natal & others v Jele
[2004] 12 BLLR 1238 (LAC)..................................................................................... 200, 204
MEC Public Works, Northern Province v CCMA & others
[2003] 10 BLLR 1027 (LC) ............................................................................................... 497
Media 24 Ltd & another v Grobler
[2005] 7 BLLR 649 (SCA), (2005) 26 ILJ 1007 (SCA) ......................... 92, 98, 127, 134, 157
Mediterranean Textile Mills (Pty) Ltd v SACTWU & others
[2012] 2 BLLR 142 (LAC) ................................................................................................ 263
Mere v Tswaing Local Municipality & another (2015) 36 ILJ 3094 (LC) ....................... 216
Metal & Allied Workers Union v Hart Ltd (1985) 6 ILJ 478 (IC) ....................................... 418
Metsimaholo Local Municipality v South African Local Government
Bargaining Council & others [2016] 5 BLLR 435 (LAC) ............................................... 305
Meyers v Abramson 1952 (3) SA 121 (C) ........................................................................ 101
Mgolozeli v Gauteng Department of Finance & another
(2015) 36 ILJ 1602 (LC) .................................................................................................. 164
Mhlambi v Matjhabeng Municipality & another (2003) 24 ILJ 1659 (O) ..................... 501
Mhlongo & others v FAWU & another [2007] 1 BLLR 141 (LC) ...................................... 433
Mhlungu & another v Gremick Integrated Security Specialists
(a division of Servest (Pty) Ltd) (2001) 22 ILJ 1030 (CCMA)....................................... 255
MIA v State Information Technology Agency (Pty) Ltd
(2015) 38 ILJ 1905 (LC) .......................................................................................... 131, 134
Mills v Drake International SA (Pty) Ltd (2004) 25 ILJ 1519 (CCMA) ............................. 255
Minister of Correctional Services v Mthembu NO (2006) 27 ILJ 2114 (LC) .................. 311
Minister of Correctional Services v Police and Prisons Civil Rights Union obo
Mmoledi & others [2016] 6 BLLR 637 (LC).................................................................... 256
Minister of Defence & Military Veterans v Thomas 2016 (1) SA 103 (CC) ................... 519
Minister of Defence & others v SA National Defence Force Union & others
(2006) 27 ILJ 2276 (SCA) ............................................................................................ 34, 50
Minister of Finance & another v Van Heerden
[2004] 12 BLLR 1181 (CC) ...................................................... 122, 142, 163, 166, 168, 176
Minister of Health & another NO v New Clicks SA (Pty) Ltd and others
(Treatment Action Campaign and another as amici curiae)
2006 (2) SA 311 (CC) ....................................................................................................... 51
Minister of Health & others v Treatment Action Campaign & others
2002 (10) BCLR 1033 (CC)............................................................................................. 526
Table of cases 573

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Minister of Home Affairs v Fourie (Doctors for Life International &
others amici curiae); Lesbian and Gay Equality Project & others v
Minister of Home Affairs 2006 (1) SA 524 (CC) ........................................................... 134
Minister of Justice v Hofmeyr 1993 (3) SA 131 (A) ............................................................ 99
Minister of Justice v Khoza 1966 (1) SA 410 (A) .............................................................. 518
Minister of Justice & Constitutional Development v Tshishonga
[2009] 9 BLLR 862 (LAC) ................................................................................................ 266
Minister of Labour v General Public Service Sectoral Bargaining
Council & others [2007] 5 BLLR 467 (LC) ..................................................................... 217
Minister of Police v Mbilini 1983 (3) SA 705 (A) ................................................................. 99
Minister of Police v Rabie 1986 (1) SA 117 (A).................................................................. 92
Minister of Safety & Security & another v Govender
(2011) 32 ILJ 1145 (LC) .................................................................. 133, 134, 135, 158, 173
Minister of Safety & Security v F [2011] 3 All SA 149 (SCA) .............................................. 91
Minister of Safety & Security v Jordaan t/a Andre Jordaan Transport
(2000) 21 ILJ 2585 (SCA) .................................................................................................. 91
Minister of Safety & Security v Safety and Security Sectoral
Bargaining Council & others [2010] 4 BLLR 428 (LC ........................................... 205, 206
Minister of Safety & Security & others v Naidoo
[2015] 11 BLLR 1129 (LAC)............................................................................................. 170
MISA/SAMWU obo members v Madikor Drie (Pty) Ltd [2006] 1 BLLR 12 (LC) ..... 359, 387
MITUSA & others v Transnet Ltd & others [2002] 11 BLLR 1023 (LAC) ........................... 210
Miyambo v CCMA & others [2010] 10 BLLR 1017 (LAC) ............................................... 260
Miyambo v CCMA (2010) 31 ILJ 2031 (LAC) .................................................................. 300
Miyeni and Chillibush Communications (Pty) Ltd (2010) 31 ILJ 3054 (CCMA) ........... 332
Mkhonto v Ford NO & others [2000] 7 BLLR 768 (LAC) .................................................. 265
MM & G Engineering (Pty) Ltd v NUMSA & others (2005) 26 ILJ 1326 (LAC) ............... 470
Modikwa Mining Personnel Services v CCMA & others (2013) 34 ILJ 373 (LC)........... 133
Modise & others v Steve’s Spar Blackheath (2000) 21 ILJ 519 (LAC)........................... 314
Mokhele & others v Schmidt NO & another (2016) 37 ILJ 2662 (LC) ................... 289, 290
Mokoena & another v Garden Art (Pty) Ltd & another (2008) 29 ILJ 1196 (LC) ........ 127
Mokone v Sahara Computers (Pty) Ltd (2010) 31 ILJ 2827 (GNP) ............................... 127
Moloi v Euijen & others [1997] 8 BLLR 1022 (LC) ............................................................. 497
Moloka v Greater Johannesburg Metropolitan Council (2005) 26 ILJ 1978 (LC)....... 203
Molusi v Ngisiza Bonke Manpower Services CC (2009) 30 ILJ 1657 (CCMA) ............... 74
Monare v South African Tourism & others [2016] 2 BLLR 115 (LAC) ............................. 258
Mondi Ltd – Mondi Kraft Division v CEPPWAWU & others (2005) 26 ILJ 1458 (LC) ...... 469
Mondi Paper v PPWAWU (1997) 18 ILJ 84 (D) ................................................................ 501
Monyakeni and SA Police Service & others (2008) 29 ILJ 3111 (BCA) ......................... 181
Monyela & others v Bruce Jacobs t/a LV Construction (1998) 19 ILJ 75 (LC) ............ 104
Moodley v Department of National Treasury & others
[2017] 4 BLLR 337 (LAC) ................................................................................ 261, 310, 316
Moodley v Fidelity Cleaning Services (Pty) Ltd t/a Fidelity Supercare
[2005] 6 BLLR 588 (LC) ................................................................................................... 347
Moodley v Scottburgh/Umzinto North Local Transitional Council and another
2000 (4) SA 524 (D) ........................................................................................................ 530
Moses v Safika Holdings (Pty) Ltd (2001) 22 ILJ 1261 (CCMA) ........................................ 82
Moslemany v Unilever plc & another [2006] 12 BLLR 1167 (LC) ..................................... 34
Motala & another v University of Natal 1995 (3) BCLR 374 (G) ............................ 177, 189
Motaung v Department of Education & others (2013) ILJ 1199 (LC) .......................... 135
Motingoe v Head of the Department, Northern Cape Department of
Roads & Public Works & others (2014) 35 ILJ 2492 (LC) ............................................. 230
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Motor Industry Staff Association v Macun NO & others (2016) 37 ILJ 625 (SCA)........ 503
Motsamai v Everite Building Products (Pty) Ltd [2011] 2 BLLR 144 (LAC) ............ 127, 134
Mozart Ice Cream Classic Franchises (Pty) Ltd v Davidoff & another
(2009) 30 ILJ 1750 (C) ...................................................................................................... 96
Mputle and Neotel (Pty) Ltd (2017) 38 ILJ 263 (CCMA)................................................ 213
Msipho and Plasma Cut [2005] 26 ILJ 2276 (BCA) ......................................................... 217
Msomi v Protea Security Services [2004] 3 BALR 360 (CCMA) ..................................... 207
Msunduzi Municipality v Hoskins [2017] 2 BLLR 124 (LAC) ............................................. 301
Mtati v KPMG Services (Pty) Ltd [2017] 3 BLLR 315 (LC) ................................................ 239
Muller v Unilong Freight Distributors (Edms) Bpk [1996] 2 BLLR 137 (LAC) ..................... 91
Munsamy v Minister of Safety & Security & another
(2013) 34 ILJ 2900 (LC) .......................................................................................... 142, 178
Murray v Independent Newspapers (2003) 24 ILJ 1420 (CCMA) ................................ 206
Murray v Minister of Defence [2008] 6 BLLR 513 (SCA) ......................................... 245, 247
Mutale v Lorcom Twenty Two CC (2009) 30 ILJ 634 (LC) .............................................. 133
Mutual and Federal Insurance Co Ltd v BIFAWU [1996] 4 BLLR 403 (A) ...................... 418
Mwamwende v University of KwaZulu-Natal (2006) 27 ILJ 2174 (CCMA) ................... 206
MWU v Eskom [1999] 9 BLLR 1089 (IMSSA) ...................................................................... 181

N
Naidoo v Minister of Safety & Security & another (2013) 34 ILJ 2279 (LC) .......... 142, 169
Nampesca (SA) Products (Pty) Ltd v Zaderer (1999) 20 ILJ 549 (C) .............................. 95
Nape v INTCS Corporate Solutions (Pty) Ltd [2010] 8 BLLR 852 (LC) .............................. 75
NAPTOSA and others v Minister of Education, Western Cape, and others
2001 (2) SA 112 (C) .......................................................................................................... 51
NAPTOSA & others v Minister of Education, Western Cape Government & others
(2001) 22 ILJ 889 (C) ...................................................................................................... 203
NASUWU & another v Pearwood Investments (Pty) Ltd
t/a Wolf Security & another [2009] 3 BLLR 229 (LC) ................................................... 361
Natal Die Casting (Pty) Ltd v President, Industrial Court & others
(1987) 8 ILJ 245 (D) .......................................................................................................... 14
National Automobile & Allied Workers Union (now known as
National Union of Metalworkers of SA) v Borg Warner SA (Pty) Ltd
(1994) 15 ILJ 509 (A) .............................................................................................. 244, 452
National Bargaining Council for the Road Freight Industry & another v
Carlbank Mining Contracts (Pty) Ltd & another [2012] 11 BLLR 1110 (LAC) ........... 258
National Coalition for Gay & Lesbian Equality v Minister of Justice
1999 (1) SA 6 (CC) ......................................................................................... 122, 133, 163
National Commissioner of the South African Police & another v Myers
[2018] 9 BLLR 882 (LAC) ................................................................................................ 263
National Education Health & Allied Workers Union obo Lucas v
Department of Health (Western Cape)
(2004) 25 ILJ 2091 (BCA) ............................................................... 164, 288, 320, 321, 323
National Education Health & Allied Workers Union obo Tati and
SA Local Government Association (2008) 29 ILJ 1777 (CCMA) ............................... 242
National Entitled Workers Union v Ministry of Labour & others
(2010) 31 ILJ 574 (LAC) .................................................................................................. 424
National Health Laboratory Service v Yona & others
[2015] 10 BLLR 1002 (LAC)..................................................................................... 245, 246
National Labor Relations Board v Hearst Publications (1944) 322 US 111 ..................... 59
National Transport Movement & others v Passenger Rail Agency of SA Ltd
[2018] 2 BLLR 141 (LAC) ................................................................................................ 305
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National Union of Leatherworkers v Barnard NO & another
(2001) 22 ILJ 2290 (LAC) ................................................................................................ 237
National Union of Metal Workers of South Africa & others v
Abancedisi Labour Services [2013] 12 BLLR 1185 (SCA) ............................................. 74
National Union of Metal Workers of South Africa obo Fohlisa & others v
Hendor Mining Supplies A Division of Marschalk Beleggings (Pty) Ltd
[2014] 2 BLLR 185 (LC) ................................................................................................... 262
National Union of Metalworkers of SA v Aunde SA (Pty) Ltd
(2010) 31 ILJ 133 (LC) .................................................................................................... 352
National Union of Metalworkers of SA v Genlux Lighting (Pty) Ltd
(2009) 30 ILJ 654 (LC) .................................................................................................... 343
National Union of Metalworkers of SA v Intervalve (Pty) Ltd
2015 (2) BCLR 182 (CC)................................................................................................. 486
National Union of Metalworkers of SA and Transnet SOC Ltd
(2016) 37 ILJ 755 (BCA) ......................................................................................... 219, 220
National Union of Metalworkers of SA & another v Aveng Trident Steel
(A Division of Aveng Africa Property Limited) & others
[2019] 9 BLLR 899 (LAC) ................................................................................................ 343
National Union of Metalworkers of SA & others v
SA Five Engineering (Pty) Ltd & others (2007) 28 ILJ 1290 (LC) ................................... 71
National Union of Metalworkers of SA obo Matlala & others v
Active Distributors (2006) 27 ILJ 633 (BCA).................................................................. 384
National Union of Metalworkers of SA obo Members v
Timken SA (Pty) Ltd (2009) 30 ILJ 2124 (LC) ................................................................. 344
National Union of Metalworkers of SA obo members v
Transnet Soc Ltd (2019) 40 ILJ 583 (LC) ....................................................................... 398
National Union of Metalworkers of SA obo Nganezi & others v
Dunlop Mixing and Technical Services (Pty) Ltd (CCT 202/18, 28 Feb 2019) ........... 94
National Union of Metalworkers of South Africa & others v
Aveng Trident Steel (A Division of Aveng Africa) (Pty) Ltd & another
(JA 25/18 of 13 June 2019) ........................................................................................... 279
National Union of Metalworkers of South Africa & others v
General Motors of South Africa (Pty) Ltd [2009] 9 BLLR 914 (LC) ............................. 350
National Union of Metalworkers of South Africa obo Motloba v
Johnson Controls Automotive SA (Pty) Ltd & others [2017] 5 BLLR 483 (LAC) ........ 275
National Union of Metalworkers of South Africa obo Nganezi & others v
Dunlop Mixing and Technical Services (Pty) Limited & others
(Casual Workers Advice Office as amicus curiae) 2019 (8) BCLR 966 (CC) .......... 305
National Union of Metalworkers of South Africa (NUMSA) v
CBI Electric African Cables [2014] 1 BLLR 31 (LAC) ................................................... 470
National Union of Metalworkers of South Africa (NUMSA) obo members v
South African Airways SOC Ltd & another [2017] 9 BLLR 867 (LAC) ................ 435, 481
National Union of Mineworkers v Black Mountain Mining (Pty) Ltd
[2014] ZALAC 78 ............................................................................................................ 342
National Union of Mineworkers and Paintrite Contractors CC
(2008) 29 ILJ 806 (CCMA) ............................................................................................. 410
National Union of Mineworkers & others v East Rand Gold & Uranium Co Ltd
(1986) 7 ILJ 739 (IC) ....................................................................................................... 303
National Union of Mineworkers on behalf of Mashao & others and
Eskom Holdings SOC Ltd (Generation Division, Koeberg Operating Unit)
(2014) 35 ILJ 290 (CCMA) ............................................................................................. 209
National Union of Public Service & Allied Workers on behalf of
Mani & others v National Lotteries Board
2014 (3) SA 544 (CC), (2014) 35 ILJ 1929 (CC)............................................ 280, 317, 396
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National Union of Public Service and Allied Workers Union (NUPSAWU)
obo Mani & others v National Lotteries Board [2013] 8 BLLR 743 (SCA).................. 280
National Union of Textile Workers v Stag Packing (Pty) Ltd & another
1982 (4) SA 151 (T) ......................................................................................................... 101
Naude v Member of the Executive Council, Department of Health,
Mpumalanga (2009) 30 ILJ 910 (LC) ........................................................... 135, 136, 285
Ncane v Lyster NO & others (2017) 38 ILJ 907 (LAC) ..................................................... 204
NCAWU obo Tobias & others/Pick ’n Pay Family Supermarket
[2003] 12 BALR 1413 (CCMA) ....................................................................................... 219
Ndamse v University College of Fort Hare & another 1966 (4) SA 137 (E) .................... 99
Ndikumdavyi v Valkenberg Hospital & others [2012] 8 BLLR 795 (LC) ......................... 238
Ndima v Waverley Blankets Ltd [1999] 6 BLLR 577 (LC) ................................................ 373
Ndimande and Hlangasa (2009) 30 ILJ 1667 (CCMA).................................................. 259
Ndlela & others and Philani Mega Spar (2016) 37 ILJ 277 (CCMA)............................. 132
Ndlovu v Pather (2006) 27 ILJ 2671 (LC) ......................................................................... 284
NEHAWU v University of Cape Town & others [2000] 7 BLLR 803 (LC) ......................... 367
NEHAWU v University of Cape Town & others [2002] 4 BLLR 311 (LAC) ....................... 367
NEHAWU v University of Cape Town & others
(2003) 24 ILJ 95 (CC) ................................. 42, 45, 54, 55, 64, 83, 201, 367, 374, 378, 505
NEHAWU & others v University of Pretoria [2006] 5 BLLR 437 (LAC).............................. 350
NEHAWU obo Barnes v Department of Foreign Affairs [2001] 6 BALR 539 (P) ............ 303
NEHAWU obo Thomas v Department of Justice (2001) 22 ILJ 306 (BCA) ................... 181
NEHAWU obo Zuma & KZN Legislature (2017) 38 ILJ 717 (CCMA) ............................... 151
Netherburn Engineering CC t/a Netherburn Ceramics v Mudau NO & others
[2009] 4 BLLR 299 (LAC) ................................................................................................ 413
Netherburn Engineering CC t/a Netherburn Ceramics v Mudau NO & others
[2009] 6 BLLR 517 (CC) .................................................................................................. 493
Neuwenhuis v Group Five Roads & others [2000] 12 BLLR 1467 (LC) .......................... 345
New Clicks SA (Pty) Ltd v CCMA & others (2008) 29 ILJ 1972 (LC) .............................. 261
New Forest Farming CC v Cachalia & others [2003] 10 BLLR 105 (LC) ....................... 330
New Justfun Group (Pty) Ltd v Turner & others (2018) 39 ILJ 2721 (LC) ......................... 96
New Way Motor & Diesel Engineering (Pty) Ltd v Marsland
[2009] 12 BLLR 1181 (LAC)..................................................................................... 136, 284
NEWU v CCMA & others [2004] 2 BLLR 165 (LC) .................................................... 199, 201
Ngema & others v Screenex Wire Weaving Manufacturers (Pty) Ltd & another
(2013) 34 ILJ 1470 (LAC) ................................................................................................ 386
Ngobeni v Minister of Communications & another (2014) 35 ILJ 2506 (LC) ............... 230
Ngwabe and Imvula Quality Protection (Pty) Ltd
(2017) 38 ILJ 724 (CCMA) ..................................................................................... 134, 157
Ngwenya v Premier of KwaZulu-Natal [2001] 8 BLLR 924 (LC) ..................................... 217
Nicholson v East Rand Pty Mines Ltd 1910 WLD 235 ........................................................ 97
Nicosia v Workmen’s Compensation Commissioner 1954 (3) SA 897 (T) .................... 517
Niselow v Liberty Life Association of Africa Ltd (1998) 19 ILJ 752 (SCA) ........................ 63
NK v Minister of Safety & Security (2005) 26 ILJ 1205 (CC) ........................................... 157
Nkanyiso Eustace Buthelezi v Municipal Demarcation Board
(2004) 25 ILJ 2317 (LAC) ................................................................................................ 344
Nkopane v Independent Electoral Commission [2007] 2 BLLR 146 (LC)..................... 343
Nkosi v Embhuleni Tribal Authority [2007] JOL 19165 (CCMA) ..................................... 216
NM & others v Smith & others [2005] 3 All SA 457 (W) ................................................... 535
Nogcantsi v Mnquma Local Municipality & others (2017) 38 ILJ 595 (LAC) ....... 237, 256
Nogoduka v Minister of the Department of Higher Education &
Training & others [2017] 6 BLLR 634 (ECG) .................................................................. 239
Nokes v Doncaster Collieries Ltd [1940] All ER 549 (HL) ................................................ 365
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Nombakuse v Dept of Transport (2013) 34 ILJ 671 (LC) ................................................ 136
Norman Tsie Taxis v Pooe NO & others (2005) 26 ILJ 109 (LC) ...................................... 493
Northern Cape Forests v SA Agricultural & Allied Workers & others
(1997) 18 ILJ 971 (LAC) .................................................................................................. 432
Northern Cape Provincial Administration v
Commissioner Hambidge NO & others (1999) 20 ILJ 1910 (LC) ....................... 211, 431
Northern Province Local Government Association v CCMA & others
[2001] 5 BLLR 539 (LC) ................................................................................................... 264
Ntsabo v Real Security CC (2003) 24 ILJ 2341 (LC) ....................................................... 289
Ntsabo v Real Security CC [2004] 1 BLLR 58 (LC) ............................................ 92, 127, 156
Ntsundu and Three Cities Inn on the Square (Pty) Ltd
(2016) 37 ILJ 1192 (LAC) ........................................................................................ 127, 136
NUCCAWU v Transnet Ltd t/a Portnet [2001] 2 BLLR 203 (LC) ........................................ 81
NULAW v Barnard NO & another [2001] 9 BLLR 1002 (LAC) ......................................... 252
NUM v Council for Mineral Technology [1999] 3 BLLR 209 (LAC) ................................. 310
NUM v Ezulwini Mining Co (Pty) Ltd [2017] 1 BLLR 47 (LC) ............................................ 358
NUM v Libanon Gold Mining Co Ltd (1994) 15 ILJ 585 (LAC) ......................................... 91
NUM & another v CCMA & others [2009] 8 BLLR 777 (LC) ............................................ 254
NUM & others v Anglo American Research Laboratories (Pty) Ltd
[2005] 2 BLLR 148 (LC) ................................................................................................... 344
NUM & others v Billard Contractors CC & another (2006) 27 ILJ 1686 (LC) ................ 315
NUM obo Snyders & others and Sonop Delwery [2005] 8 BLLR 858 (CCMA) ............. 456
NUMSA v Assign Services & others [2017] 10 BLLR 1008 (LAC) ....................................... 73
NUMSA v Buthelezi & others v LTR Appointments CC
[2005] 9 BALR 919 (MEIBC) ............................................................................................ 242
NUMSA v Staman Automatic CC & another [2003] 11 BLLR 1167 (LC) ....................... 384
NUMSA v Tiger Wheels Limited Group [2001] 12 BLLR 1353 (LC) .................................. 353
NUMSA & another v Success Panelbeaters & Service Centre CC
t/a Score Panelbeaters and Service Centre (1999) 20 ILJ 1851 (LC) ...................... 386
NUMSA & others v Atlantis Forge (Pty) Ltd
(2005) 26 ILJ 1984 (LC), [2005] 12 BLLR 1238 (LC) ....................................... 314, 317, 470
NUMSA & others v Bader Bop (Pty) Ltd & another
[2003] 2 BLLR 103 (CC), 2003 (2) BCLR 182 (CC),
(2003) 24 ILJ 305 (CC) ........................................... 33, 48, 55, 83, 404, 408, 420, 450, 459
NUMSA & others v Fry’s Metals (Pty) Ltd
(2005) 26 ILJ 689 (SCA), [2005] 5 BLLR 430 (SCA) ............................................... 278, 505
NUMSA & others v Hendor Mining Supplies [2003] 10 BLLR 1057 (LC) ......................... 457
NUMSA & others v Kaefer Thermal Contracting Services (Pty) Ltd
[2002] 6 BLLR 570 (LC) ................................................................................................... 353
NUMSA & others v Pro Roof Cape (Pty) Ltd (2005) 26 ILJ 1705 (LC) ............................ 470
NUMSA & others v SA Five Engineering & others [2005] 1 BLLR 53 (LC) ....................... 356
NUMSA obo Fete & Formex Engineering (2003) 24 ILJ 2412 (BCA).............................. 219
NUMSA obo Khanye & another v Havco Manufacturing (Pty) Ltd
(2003) 24 ILJ 1764 (BCA) ............................................................................................... 221
NUMSA obo members v Behr Climate & Control [2004] 3 BALR 364 (CCMA) ........... 412
NUMSA obo Sithole v Highveld Steel & Vanadium Corporation Ltd
[2003] 10 BALR 1117 (MEIBC) ........................................................................................ 399
Nxele v Chief Deputy Commissioner, Corporate Services, Department of
Correctional Services & others [2008] 29 ILJ 2708 (LAC) ........................... 206, 219, 220
Nxumalo v Minister of Correctional Services & others (2016) 37 ILJ 177 (LC) ............. 224
Nxumalo & others v Industrial Contract Catering Services t/a Corporate Chefs
[2006] 4 BALR 423 (CCMA) ........................................................................................... 360
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O
Oak Industries (SA) (Pty) Ltd v John NO (1987) 8 ILJ 756 (N) .......................................... 63
OCGAWU v Woolworths (Pty) Ltd [1997] 7 BALR 813 (CCMA)..................................... 406
OCGAWU & another v Volkswagen of South Africa (Pty) Ltd & another
[2002] 1 BALR 60 (CCMA) ............................................................................................. 405
OCGAWU obo Member and KLK Landbou BPK (2009) 30 ILJ 2538 (CCMA) ............. 414
Oerlikon Electrodes SA v CCMA & others [2003] 9 BLLR 900 (LC) ................................ 298
Old Mutual Life Assurance Co SA Ltd v Gumbi
[2007] 4 All SA 866 (SCA), [2007] 8 BLLR 699 (SCA) ...................... 41, 102, 283, 313, 502
Organisation of Labour Affairs (OLA) v
Old Mutual Life Assurance Company (SA) [2003] 9 BALR 1052 (CCMA) ........ 406, 407
Ouwehand v Hout Bay Fishing Industries (2004) 25 ILJ 731 (LC) .................................. 238
Owen & others v Department of Health, KwaZulu-Natal (2009) 30 ILJ 2461 (LC) ...... 243
Oy Liikenne AB v Liskojärvi and Juntunen [2001] IRLR 171 (ECJ) ......................... 379, 380

P
Palace Engineering (Pty) Ltd v Ngcobo & others
[2014] 6 BLLR 557 (LAC) ........................................................................ 324, 327, 328, 330
Palluci Home Depot (Pty) Ltd v Herskowitz & others [2015] 5 BLLR 484 (LAC) ............ 330
Pam Golding Properties (Pty) Ltd v Erasmus & others (2010) 31 ILJ 1460 (LC).............. 65
Parexel International (Pty) Ltd v Chakane NO & others (2018) 39 ILJ 644 (LC).......... 319
Parexel International (Pty) Ltd v Chakane NO & others
[2019] 11 BLLR 1245 (LAC)............................................................................................. 319
Parliament of the RSA v Charlton [2010] 10 BLLR 1024 (LAC) ................ 67, 223, 229, 291
PE Rack 4100 CC v Sanders & others (2013) 34 ILJ 1477 (LAC) .................................... 385
Pecton Outsourcing Solutions CC v Pillemer & others
[2016] 2 BLLR 186 (LC) ........................................................................................... 240, 250
Pedzinski v Andisa Securities (Pty) Ltd (formerly SCMB Securities (Pty) Ltd)
[2006] 2 BLLR 184 (LC) ................................................................................................... 292
Perumal v Minister of Safety & Security & others [2001] 8 BLLR 953 (LC)............. 219, 220
Perumall and Saficon Industrial Equipment (Pty) Ltd t/a Toyota Forklifts
(2011) 32 ILJ 1011 (BCA) ............................................................................................... 221
Peteni and SA Police Service & another (2013) 34 ILJ 228 (BCA) ................................ 204
PFG Building Glass (Pty) Ltd v CEPPWAWU & others [2003] 5 BLLR 475 (LC)....... 155, 534
Phaka & others v Bracks & others [2015] 5 BLLR 514 (LAC) ............................................ 63
Pharmaceutical Manufacturers Association of SA: In re:
Ex parte President of the Republic of South Africa 2000 (2) SA 674 (CC) ................ 54
Pharmaco Distribution (Pty) Ltd v EWN (2017) 38 ILJ 2496 (LAC) ................................. 121
Phenithi v Minister of Education & others (2006) 27 ILJ 477 (SCA) ............................... 256
Phillips v Fieldstone Africa (Pty) Ltd & another (2004) 25 ILJ 1005 (SCA)....................... 93
Photocircuit SA (Pty) Ltd v De Klerk NO & others (1991) 12 ILJ 289 (A) ....................... 429
Phutiyagae v Tswaing Local Municipality [2006] JOL 17477 (LC) ................................ 216
Picardi Hotels Ltd v FGWU [1999] 6 BLLR 601 (LC) ................................................. 453, 473
Piet Wes Civils CC & another v Association of Mineworkers &
Construction Union & others [2018] 12 BLLR 1164 (LAC) ............................................. 77
Pikitup Johannesburg (SOC) Ltd v Mutero (2019) 40 ILJ 1030 (LAC) ........................... 263
Piliso v Old Mutual Life Assurance Co (SA) Ltd & others
(2007) 28 ILJ 897 (LC) ............................................................................................ 127, 156
Pillay v NuMetro Theatres [2004] 11 BALR 1365 (BC) ..................................................... 324
Pillay and Old Mutual Property (Pty) Ltd (2015) 36 ILJ 1961 (CCMA) .......................... 156
Pioneer Foods (Pty) Ltd v Workers against Regression & others
(2016) 37 ILJ 2872 (LC) .................................................................................................. 149
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Police & Prisons Civil Rights Union v SA Correctional Services Union & others
[2018] 11 BLLR 1035 (CC) .......................................................................................... 33, 34
Police & Prisons Civil Rights Union & others v
Minister of Correctional Services & another (2013) 34 ILJ 690 (LC).......................... 134
Police & Prisons Civil Rights Union obo Dhanarajan and SA Police
Service & others (2013) 34 ILJ 235 (BCA) .................................................................... 204
Police & Prisons Civil Rights Union obo Sephanda & another v
Provincial Commissioner, SA Police Service, Gauteng Province & another
(2012) 33 ILJ 2110 (LC) .................................................................................................. 219
Ponties Panel Beaters Partnership v NUMSA & others [2009] 2 BLLR 99 (LAC) ............ 374
POPCRU v SACOSWU [2018] 11 BLLR 1035 (CC) ............................................................ 409
POPCRU & others v Department of Correctional Services & another
[2010] 10 BLLR 1067 (LC), 2010 (9) BCLR 921 (LC) ...................................... 131, 273, 286
Porter Motor Group v Karachi [2002] 4 BLLR 357 (LAC) ........................................ 345, 346
Potgieter v National Commissioner of the SA Police Service & another
(2009) 30 ILJ 1322 (LC) .................................................................................................. 156
Potgieter v Tubatse Ferrochrome & others
(2014) 35 ILJ 2419 (LAC), [2012] 5 BLLR 509 (LC) ........................................................ 226
President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC) .......... 53, 122, 163
President of the Republic of South Africa & others v Reinecke
[2014] 5 BLLR 419 (SCA) .................................................................................................. 67
Pretoria City Council v Walker 1998 (2) SA 363 (CC) .................................................... 121
Pretoria Society for the Care of the Retarded v Loots
(1997) 18 ILJ 981 (LAC) .......................................................................................... 245, 246
Pretorius v Compensation Commissioner & another (2010) 31 ILJ 1117 (O) .............. 518
Pretorius v Transport Pension Fund [2018] 7 BLLR 633 (CC) ........................................ 7, 42
Pretorius & another v Transnet Pension Fund & others
[2018] 7 BLLR 633 (CC) .......................................................................................... 199, 201
Pretorius & another v Transport Pension Fund & others
[2019] 2 BPLR 303 (CC) ................................................................................................. 529
Protekon (Pty) Ltd v CCMA & others [2005] 7 BLLR 703 (LC) ................ 202, 211, 212, 213
PSA v Minister of Justice and Constitutional Development
[2001] 11 BLLR 1250 (LC) ............................................................................................... 462
PSA obo Dalton & another v Department of Public Works
[1998] 9 BALR 1177 (CCMA) ......................................................................................... 205
PSA obo Karriem v SAPS & another [2007] 4 BLLR 308 (LC) .................................. 143, 174
PSA obo Matemane v Department of Education, Arts, Culture and Sport
[2005] 5 BALR 555 (CCMA) ........................................................................................... 216
PSA obo Members v Minister of Health (2019) 40 ILJ 193 (LC) ..................................... 515
Public Servants Association obo Lessing v Safety and
Security Services Bargaining Council and others [2014] 5 BLLR 484 (LC)................ 255
Public Servants Association of SA v Safety & Security
Sectoral Bargaining Council & others (2007) 28 ILJ 1300 (LC).................................. 428
Public Servants Association of SA on behalf of de Bruyn v
Minister of Safety & Security & another (2012) 33 ILJ 1822 (LAC) ............................ 500
Public Servants Association of South Africa v Minister of Justice and
Constitutional Development & others [2001] 11 BLLR 1250 (LC) .............................. 459
Public Servants Association of South Africa obo Members v
Minister of Health and others [2019] 1 BLLR 71 (LC)................................................... 496

Q
Queenstown Fuel Distributors CC v Commission for Conciliation,
Mediation and Arbitration (2000) 21 ILJ 1197 (LC) .................................................... 497
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R
R v AMCA Services 1959 (4) SA 207 (A) ............................................................................ 60
R v McDonald 1935 TPD 153 ............................................................................................ 452
Radebe & another v Premier, Free State Province & others
[2012] 12 BLLR 1246 (LAC)............................................................................................. 228
Ramoroka and Robben Island Museum (2012) 33 ILJ 400 (CCMA) ............................ 204
Rand Tyres & Accessories (Pty) Ltd v Industrial Council for the
Motor Industry (Tvl), Minister for Labour & Minister for Justice
1941 TPD 108 .......................................................................................................... 432, 481
Rand Water v Stoop (2013) 34 ILJ 576 (LAC) ................................................................. 103
Rand Water Board v CCMA (2005) 26 ILJ 2028 (LC) ..................................................... 314
Randles v Chemical Specialities Ltd [2010] 7 BLLR 730 (LC) ................................ 231, 292
Random Logic (Pty) Ltd t/a Nashua, Cape Town v Dempster
(2009) 30 ILJ 1762 (C) ...................................................................................................... 96
Raol Investments (Pty) Ltd t/a Thekwini Toyota v Madlala
(2008) 29 ILJ 267 (SCA) .................................................................................................. 133
Rawlins v Kemp t/a Centralmed [2011] 1 BLLR 9 (SCA) ................................................ 264
RAWUSA v Schuurman Metal Pressing (Pty) Ltd [2005] 1 BLLR 78 (LC) ........................ 357
Reddy v Siemens Telecommunications (Pty) Ltd (2007) 28 ILJ 317 (SCA) .............. 95, 96
Reddy v University of Natal [1998] 1 BLLR 29 (LC).......................................................... 129
Reeves & another v Marfield Insurance Brokers CC & another
1996 (3) SA 766 (A) .................................................................................................... 94, 96
Regent Insurance Co Ltd v CCMA & others (2013) 34 ILJ 410 (LC) ............................. 246
Registrar of Pension Funds & another v Brian Angus NO & others
2007 (5) SA 1 (SCA) ....................................................................................................... 529
Reynhardt v University of South Africa (2008) 29 ILJ 725 (LC) .............................. 133, 144
Rheinmetall Denel Munition (Pty) Ltd v National Bargaining Council for the
Chemical Industry & others [2015] 6 BLLR 633 (LC) ................................................... 327
Road Accident Fund v Monjane (2007) 28 ILJ 2516 (SCA) .......................................... 515
Robinson v Randfontein Estates Gold Mining Co 1921 AD 168 ..................................... 93
Robinson v Sun Couriers [2001] 5 BLLR 511 (CCMA)...................................................... 328
Roscher v Industrial Development Corporation & others
(2018) 39 ILJ 2489 (LAC) ................................................................................................ 301
Rubenstein v Price’s Daelite (Pty) Ltd (2002) 23 ILJ 528 (LC) ........................................ 251
Rubin Sportswear v SACTWU & others [2004] 10 BLLR 986 (LAC) ................................. 287
Rural Maintenance (Pty) Ltd & another v
Maluti-A-Phofung Local Municipality 2017 (1) BCLR 64 (CC) ........... 372, 375, 376, 383
Rustenburg Platinum Mine v South African Equity Workers Association
obo Bester and others [2018] 8 BLLR 107 (CC)........................................................... 297
Rustenburg Platinum Mines Ltd v Mouthpiece Workers Union
[2002] 1 BLLR 84 (LC) ..................................................................................................... 472
Rustenburg Platinum Mines Ltd (Rustenburg Section) v CCMA & others
[2003] 7 BLLR 676 (LAC) ........................................................................................ 311, 311
Rustenburg Platinum Mines Ltd (Rustenburg Section) v CCMA & others
[2006] 11 BLLR 1021 (SCA) ............................................................................ 259, 307, 498

S
S v Boesak 2001 (1) BCLR 36 (CC) ..................................................................................... 54
S v Makwanyane 1995 (3) SA 391 (CC) .............................................................. 32, 53, 168
SA Airways v SATAWU & others (2006) 27 ILJ 1034 (LC) ................................................. 465
SA Airways (Pty) Ltd v Jansen van Vuuren & another (2014) 35 ILJ 2774 (LAC) ........ 215
SA Bank of Athens Ltd v Cellier NO & others (2009) 30 ILJ 197 (LC) ............................ 241
SA Breweries v FAWU (1989) 10 ILJ 844 (A) ..................................................................... 451
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SA Breweries (Pty) Ltd v Hansen & others [2016] 5 BLLR 516 (LC) ................................ 133
SA Breweries (Pty) Ltd v Hansen & others (2017) 38 ILJ 1766 (LAC) ............................. 297
SA Breweries (Pty) Ltd v Louw [2018] 1 BLLR 26 (LAC) ................................................... 347
SA Broadcasting Corporation v McKenzie [1999] 1 BLLR 1 (LAC) ........................... 62, 64
SA Broadcasting Corporation Limited v Adv J Grogan NO & another
(2006) 27 ILJ 1519 (LC) .................................................................................................. 304
SA Commercial & Allied Workers Union & others v JDG Trading (Pty) Ltd
(2019) 40 ILJ 140 (LAC) .................................................................................................. 350
SA Commercial Catering & Allied Workers Union v Irvin & Johnson Ltd
(1999) 20 ILJ 2302 (LAC) ........................................................................................ 308, 309
SA Commercial Catering & Allied Workers Union & others v
Woolworths (Pty) Ltd (2019) 40 ILJ 87 (CC) ......................................... 261, 262, 263, 342
SA Commercial Catering & Allied Workers Union obo Afrika & Swartz v
Bredasdorp Spar (1998) 19 ILJ 947 (CCMA) ............................................................... 222
SA Diamond Workers Union v Master Diamond Cutters Association of SA
(1982) 3 ILJ 87 (IC) ........................................................................................................... 14
SA Equity Workers Association obo Bester v Rustenburg Platinum Mine & another
(2017) 38 ILJ 1770 (LAC) ................................................................................................ 133
SA Maritime Safety Authority v McKenzie [2010] 5 BLLR 488 (SCA) ..................... 102, 503
SA Metal & Machinery Co (Pty) Ltd v Gamaroff [2010] 2 BLLR 136 (LAC) .......... 135, 288
SA Municipal Workers Union & another v Nelson Mandela Bay Municipality
(2016) 37 ILJ 1203 (LC) .................................................................................................. 134
SA Municipal Workers Union & another v
SA Local Government Bargaining Council & others (2015) 36 ILJ 441 (LAC) ......... 248
SA Municipal Workers Union v Rand Airport Management Company
(Pty) Ltd & others and the Outsourcing of Services’ (2005) 26 ILJ 66 ...................... 372
SA Municipal Workers Union obo Peterson v City of Cape Town & others
(2009) 30 ILJ 1374 (LC) .................................................................................................. 127
SA Municipal Workers Union National Fund v Arbuthnot
(2014) 35 ILJ 2434 (LAC) ................................................................................................ 226
SA National Defence Union v Minister of Defence & another
(1999) 20 ILJ 2265 (CC) ....................................................................... 7, 33, 41, 46, 50, 60
SA National Defence Union v Minister of Defence & others
(2003) 24 ILJ 1495 (T) (SANDU I) ................................................................................ 49, 50
SA National Defence Union v Minister of Defence & others
(2003) 24 ILJ 2101 (T) (SANDU II) ............................................................................... 49, 50
SA National Defence Union v Minister of Defence & others
[2007] 9 BLLR 785 (CC) .................................................................... 51, 203, 397, 400, 420
SA National Defence Union v Minister of Defence & others
case no. 15790/2003, unreported (SANDU III) ........................................................ 49, 50
SA National Defence Union & another v Minister of Defence & others
2003 (9) BCLR 1055 (T) ..................................................................................................... 44
SA Police Service v Gebashe & others (2016) 36 ILJ 1628 (LAC) ................................. 214
SA Police Service v Public Service Association of SA & others
(2015) 36 ILJ 1828 (LAC) ................................................................................................ 178
SA Police Service v Safety & Security Sectoral Bargaining Council & others
(2012) 33 ILJ 453 (LC) .................................................................................................... 246
SA Police Service v Salukazana & others
(2010) 31 ILJ 2465 (LC); [2010] 10 BLLR 764 (LC) ......................................... 206, 219, 220
SA Police Service v Solidarity obo Barnard (Police & Prisons Civil Rights Union
as amicus curiae) (2010) 31 ILJ 742 (LC) ............................................................. 133, 145
SA Police Union obo Buckus and SA Police Services
(2012) 33 ILJ 2755 (BCA) ............................................................................................... 206
SA Post Office Ltd v Govender (2003) 24 ILJ 1733 (LC)................................................. 493
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SA Post Office Ltd v Mampuele [2010] 10 BLLR 1052 (LAC) ......................................... 237
SA Revenue Service v CCMA [2017] 1 BLLR 8 (CC) ...................................................... 297
SA Rugby Players’ Association (SARPA) & others v SA Rugby (Pty) Ltd & others;
SA Rugby (Pty) Ltd v SARPU & another [2008] 9 BLLR 845 (LAC) .............................. 242
SA Rugby (Pty) Ltd v CCMA & others [2006] 1 BLLR 27 (LC) ......................................... 241
SA Technical Officials Association v President of the Industrial Court
(1985) 6 ILJ 186 (A) ........................................................................................................ 496
SA Transport and Allied Workers Union & others v
Khulani Fidelity Security Services (Pty) Ltd (2011) 32 ILJ 130 (LAC) .......................... 340
SA Transport & Allied Workers Union obo Dlamini and
Transnet Freight Rail & another (2009) 30 ILJ 1692 (ARB) .................................. 121, 133
SAA (Pty) Ltd v SATAWU [2010] 3 BLLR 321 (LC) ............................................................. 463
SACCAWU v Garden Route Chalets (Pty) Ltd [1997] 3 BLLR 325 (CCMA) ......... 210, 435
SACCAWU v Southern Sun Hotel Interests (Pty) Ltd [2017] 1 BLLR 90 (LC) .................. 357
SACCAWU & another v Amalgamated Retailers (Pty) Ltd [2002] 1 BLLR 95 (LC) ...... 352
SACCAWU & another v Shakoane & others [2000] 10 BLLR 1123 (LAC) ..................... 486
SACTWU v Sheraton Textiles (Pty) Ltd [1997] 5 BLLR 662 (CCMA) ................................ 406
SACTWU v Stuttafords Department Stores Ltd (1999) 20 ILJ 2692 (LC) ........................ 475
SACTWU & others v Discreto – a Division of Trump & Springbok Holdings
[1998] 12 BLLR 1228 (LAC)..................................................................................... 341, 342
SACTWU & others v Rubin Sportswear [2003] 5 BLLR 505 (LC) ...................................... 251
SACWU & another v NCP Chlorchem (Pty) Ltd [2007] 7 BLLR 663 (LC)....................... 297
SACWU & others v Afrox Ltd
[1999] 10 BLLR 1005 (LAC), (1999) 20 ILJ 1718 (LAC) .......... 273, 274, 277, 278, 290, 470
SACWU obo Sithole v Afrox Gas Equipment Factory (Pty) Ltd
[2006] 6 BALR 592 (MEIBC) ............................................................................................ 249
SADTU obo Makua v Mpumalanga Education Department
[1999] 5 BALR 638 (IMSSA) ............................................................................................ 131
SAEWA obo members v Aberdare Cables [2007] 2 BALR 106 (MEIBC) ...................... 216
Sajid v Mohamed NO & others [1999] 11 BLLR 1175 (LC) ............................................. 216
SALGA v SAMWU [2008] 1 BLLR 66 (LC) .......................................................................... 467
SALGA v SAMWU [2011] 7 BLLR 649 (LAC) ...................................................................... 468
SALSTAFF obo Bezuidenhout v Metrorail [2001] 9 BALR 926 (AMSSA) ......................... 245
Salstaff obo Nel v Spoornet [1999] 4 BALR 524 (IMSSA) ................................................ 204
Samancor Tubatse Ferrochrome v MEIBC & others [2010] 8 BLLR 824 (LAC) ............. 254
Samancor Tubatse Ferrochrome v Metal & Engineering Industries
Bargaining Council & others (2010) 31 ILJ 1838 (LAC) .............................................. 318
Samuels v B&G Displays (2005) 26 ILJ 1145 (BCA) ......................................................... 249
SAMWU v Jada & others (2003) 22 ILJ 1344 (W) ............................................................ 421
SAMWU v Rand Airport Management Co Ltd [2005] 3 BLLR 241 (LAC) ...................... 371
SAMWU & another v SALGA & others [2010] 8 BLLR 882 (LC) ...................................... 386
Sanders v Cell C Provider Co (Pty) Ltd & others (2010) 31 ILJ 2722 (LC) ..................... 385
SANDU v Minister of Defence & another 1999 (4) SA 469 (CC) ................................... 396
SANDU v Minister of Defence & others; Minister of Defence & others v
SA National Defence Union & others [2006] 11 BLLR 1043 (SCA)..................... 418, 420
Sanlic House of Locks (Pty) Ltd v Strydom (2014) 35 ILJ 2287 (LC) ............................... 385
Sappi Fine Papers v PPWAWU (1998) 19 ILJ 246 (SE) ..................................................... 501
Sappi Forests (Pty) Ltd v CCMA & others (2009) 30 ILJ 1140 (LC) ........................ 216, 219
Sappi Novaboard (Pty) Ltd v Bolleurs (1998) 19 ILJ 784 (LAC) ..................................... 300
Sappi Novaboard (Pty) Ltd v Bolleurs [1998] 5 BLLR 460 (LAC) .............................. 93, 103
SAPS v Safety & Security Bargaining Council [2010] 8 BLLR 892 (LC) .......................... 205
SAPTU obo members v Mbete [2003] 10 BALR 1182 (CCMA) ...................................... 414
SAR&H v Cruywagen 1938 CPD 219 ................................................................................. 97
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SASBO v Bank of Lisbon International (1993) 14 ILJ 394 (IC) ......................................... 530
SATAWU & others v Equity Aviation Services (Pty) Ltd
[2006] 11 BLLR 1115 (LC) ............................................................................... 276, 462, 466
SATAWU v Coin Reaction (2005) 26 ILJ 1507 (LC) .......................................................... 454
SATAWU v Garvas & others
[2012] 10 BLLR 959 (CC), 2012 (8) BCLR 840 (CC) .......................................... 47, 52, 474
SATAWU v Moloto [2012] 12 BLLR 1193 (CC) .......................................................... 463, 469
SATAWU v Old Mutual Life Assurance Company South Africa Ltd
[2005] 4 BLLR 378 (LC) ................................................................................................... 252
SATAWU obo Dube & others v
Fidelity Supercare Cleaning Services Group (Pty) Ltd [2015] 8 BLLR 837 (LC) ........ 240
SATAWU obo Finca v Old Mutual Life Assurance Company (SA) Ltd & another
[2006] 8 BLLR 737 (LC) ........................................................................................... 133, 157
SATAWU obo Machinini/Fidelity Security Services (Pty) Ltd
[2011] 1 BALR 107 (CCMA) ................................................................................... 219, 220
Schierhout v Minister of Justice 1926 AD 99 ................................................................... 101
Schmidt v Spar und Leihkasse der Fruheren Amter Bordesholm, Kiel und
Cronshagen [1994] IRLR 302 (ECJ) ...................................................................... 374, 379
Schoeman v Longgrain CC (2006) 27 ILJ 2496 (CCMA) ................................................ 66
Schoeman v Samsung Electronics SA (Pty) Ltd [1997] 10 BLLR 1364 (LC) ........... 200, 211
Schoeman & another v Samsung Electronics (Pty) Ltd
[1997] 10 BLLR 1364 (LC) ............................................................................................... 453
Schutte & others v Powerplus Performance (Pty) Ltd (1999) 20 ILJ 655 (LC) .............. 369
Schweitzer v Waco Distributors [1998] 10 BLLR 1050 (LC) ............................................. 251
Scribante v Avgold Limited: Hartebeesfontein Division
[2000] 11 BLLR 1342 (LC) ............................................................................................... 265
Securicor (SA) (Pty) Ltd v Lotter (2005) 26 ILJ 1029 (E) .................................................. 387
Sekgobela v State Information Technology Agency (Pty) Ltd
(2008) 29 ILJ 1995 (LC) .................................................................................................. 230
Semenya v CCMA & others [2006] 6 BLLR 521 (LAC) .................................................... 315
Septoo v City of Johannesburg (2018) 39 ILJ 580 (LAC) ............................................... 101
Sheridan v The Original Mary-Ann’s at the Colony (Pty) Ltd
(1999) 20 ILJ 2952 (LC) .................................................................................................. 134
Shoprite Checkers (Pty) Ltd v CCMA & others (2008) 29 ILJ 2581 (LAC) .................... 300
Shoprite Checkers (Pty) Ltd v Ramdaw NO & others (2001) 22 ILJ 1515 ............ 497, 498
Shoprite Checkers (Pty) Ltd v Samka & others [2018] 9 BLLR 922 (LC) ........................ 157
Shoprite Checkers (Pty) Ltd v Tokiso Dispute Settlement & others
[2015] 9 BLLR 887 (LAC) ................................................................................................ 307
Sibiya and Mhlathuze Water (2008) 29 ILJ 2633 (CCMA) ..................................... 216, 219
Sidumo v Rustenburg Platinum Mines Ltd & others [2007] 12 BLLR 1097 (CC) ........... 259
Sidumo & another v Rustenburg Platinum Mines Ltd & others
[2007] 12 BLLR 1097 (CC) .......................................................... 40, 41, 295, 310, 490, 499
Sikhosana v Sasol Synthetic Fuels (2000) 21 ILJ 649 (LC) ............................................... 351
Simba (Pty) Ltd v FAWU [1997] 5 BLLR 602 (LC).............................................................. 452
Sime Darby Hudson & Knight (Pty) Ltd v Lerena (2018) 39 ILJ 2413 (WCC)................ 299
Simela & others v MEC for Education, Province of the Eastern Cape & another
[2001] 9 BLLR 1085 (LC) ................................................................................................. 201
Simmers v Campbell Scientific Africa (Pty) Ltd (2014) 35 ILJ 2866 (LC) ...................... 127
Simmers v Campbell Scientific Africa (Pty) Ltd & others [2014] 8 BLLR 815 (LC) ........ 304
Singh v Minister of Justice & Constitutional Development
(SA National Council for the Blind as amicus curiae) (2013) 34 ILJ 2807 (EqC) ..... 134
Singh & others v Mondi Paper (2000) 21 ILJ 966 (LC) .................................................... 346
Sisonke Partnership t/a DSV Healthcare v Medtronic SA (Pty) Ltd & others
(2017) 38 ILJ 2812 (LC) .................................................................................................. 384
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Sithole v Nogwaza NO & others (1999) 20 ILJ 2710 (LC) ............................................... 211
Skinner v Minister of Public Works & another [1998] JOL 4223 (SE) .............................. 515
Skorbinski v Bezuidenhout t/a DB Transport (2009) 30 ILJ 2847 (EC) ............................ 522
Smit v Workmen’s Compensation Commissioner
1979 (1) SA 51 (A) ................................................................ 60, 62, 63, 64, 67, 90, 93, 100
Smith v The Kit Kat Group (Pty) Ltd
[2016] 12 BLLR 1239 (LC), (2017) 38 ILJ 483 (LC) ......................................... 134, 265, 288
Smith v Staffing Logistics (2005) 26 ILJ 2097 (BCA) ........................................................ 333
Solid Doors (Pty) Ltd v Commissioner Theron & others (2004) 25 ILJ 2337 (LAC) ........ 246
Solidarity v Minister of Safety & Security (Police & Prisons Civil Rights Union as
amicus curiae) (2016) 37 ILJ 1012 (LC) ....................................................................... 170
Solidarity & another v Public Health and
Welfare Sectoral Bargaining Council & others [2013] 4 BLLR 362 (LAC) ................. 255
Solidarity & others and Department of Correctional Services & others
(2016) 37 ILJ 1995 (CC) ......................................................... 164, 171, 188, 189, 191, 206
Solidarity obo Barnard v SA Police Service (2010) 31 ILJ 742 (LC) ....................... 133, 144
Solidarity obo Barnard v SA Police Service (Vereeniging van
Regslui vir Afrikaans as amicus curiae) (2014) 35 ILJ 416 (SCA) ............................... 133
Solidarity obo Christiaans v Eskom Holdings Ltd (2006) 27 ILJ 1291 (ARB) .................. 178
Solidarity obo Kotze v PHWSBC & others [2010] 11 BLLR 1203 (LC).............................. 255
Solidarity obo Labuschagne v Commissioner of the SA Revenue Service
(JS732/2011 dated 14 May 2015) ................................................................................ 182
Solidarity obo Pretorius v City of Tshwane Metropolitan & another
(2016) 37 ILJ 2144 (LC) .................................................................................................. 182
Solidarity obo Van der Walt & others v SA Police Service & others
(2013) 34 ILJ 2943 (LC) .................................................................................................. 165
Solidarity obo Van Tonder v Armaments Corporation of SA (SOC) Ltd &
others (2019) 40 ILJ 1539 (LAC) .................................................................................... 246
Sondlo / University of Fort Hare [2011] 5 BALR 551 (CCMA) ......................................... 332
Soobramoney v Minister of Health, KwaZulu-Natal 1997
(12) BCLR 1696 (CC) ..................................................................................................... 532
South Africa (SOC) Ltd v CCMA & others [2016] 5 BLLR 461 (LC) ................................ 331
South African Airways (Pty) Ltd v Aviation Union of South Africa & others
[2011] 2 BLLR 112 (SCA) ................................................................................................ 382
South African Airways (Pty) Ltd v GJJVV [2014] 8 BLLR 748 (LAC) ............... 135, 139, 141
South African Broadcasting Corporation SOC Limited v South African
Broadcasting Corporation Pension Fund & others [2019] 2 BPLR 332 (GJ) ............. 530
South African Correctional Services Workers Union (SACOSWU) v
Police and Prisons Civil Rights Union (POPCRU) & others
[2017] 9 BLLR 905 (LAC) ................................................................................................ 409
South African Municipal Workers’ Union & others v
Ethekwini Municipality & others [2016] 12 BLLR 1208 (LAC) ...................................... 301
South African Municipal Workers Union obo Manentza v
Ngwathe Local Municipality & others [2015] 9 BLLR 894 (LAC) ............................... 258
South African National Security Employers Association v TGWU & others
[1998] 4 BLLR 364 (LAC) ................................................................................................ 457
South African Police Service v Police and Prisons Civil Rights Union &
another 2011 (9) BCLR 992 (CC) .................................................................................. 460
South African Police Service v Solidarity obo Barnard (Police and
Prisons Civil Rights Union as amicus curiae)
2014 (10) BCLR 1195 (CC)............................................................................. 133, 146, 171
South African Police Services v Solidarity obo Barnard [2013] 3 BCLR 320 (LAC)...... 133
South African Revenue Service v CCMA & others
2017 (1) SA 549 (CC), 2017 (2) BCLR 241 (CC) ................................................... 261, 298
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South African Revenue Service v Commission for Conciliation,
Mediation and Arbitration and others [2014] 1 BLLR 41 (LAC) ................................. 316
South African Revenue Services v Ntshintshi & others
[2013] 9 BLLR 923 (LC) ........................................................................................... 214, 215
South African Transport and Allied Workers Union v Garvis & others
[2011] 12 BLLR 1151 (SCA) .................................................................................... 474, 475
South African Transport and Allied Workers Union (SATAWU) & others v
Moloto NO & another [2012] 12 BLLR 1193 (CC) ....................................................... 276
Southern v Franks Charlesly and Co [1981] IRLR 278 (CA) ........................................... 239
Southern Life Association v CCMA [2001] 3 BLLR 375 (LC) ........................................... 500
Southern Sun Hotel Interests (Pty) Ltd v CCMA & others
[2009] 11 BLLR 1128 (LC) ................................................................................................. 82
Southern Sun Hotel Interests (Pty) Ltd iro Southern Sun Waterfront Hotel v
CCMA & others [2011] 10 BLLR 1012 (LC) ................................................................... 238
Spar Group Ltd v Sea Spirit Trading 162 CC t/a Paledi
[2018] 10 BLLR 1000 (LAC)............................................................................................. 369
Spijkers v Gebroeders Benedik Abattoir v Alfred Benedik en Zonen BV
[1986] 2 CMLR 296 (ECJ) ............................................................................... 372, 374, 375
Standard Bank of South Africa v CCMA & others [2008] 4 BLLR 356 (LC) .................. 322
State Information Technology Agency (Pty) Ltd v Sekgobela
[2012] 10 BLLR 1001 (LAC)..................................................................................... 230, 292
State Information Technology Agency (SITA) (Pty) Ltd v CCMA & others
[2008] 7 BLLR 611 (LAC) ................................................................................ 61, 62, 65, 84
Steenkamp v Edcon Limited 2016 (3) BCLR 311 (CC) .................................................. 358
Stewart Wrightson (Pty) Ltd v Thorpe 1977 (2) SA 943 (A) ............................................ 100
Steyn v SA Airways (2008) 29 ILJ 2831 (CCMA) .............................................................. 323
Stojce v University of KZN (Natal) & another [2007] 3 BLLR 246 (LC) ... 133, 134, 136, 141
Stokwe v MEC, Department of Education, Eastern Cape
Province & another [2005] 8 BLLR 822 (LC) ................................................................ 134
Stoman v Minister of Safety & Security & others
2002 (3) SA 468 (T), [2002] JOL 9408 (T) ....................................................................... 143
Stoman v Minister of Safety & Security & others (2002) 23 ILJ 1020 (LC) ............. 176, 177
Strategic Liquor Services v Mvumbi NO & others [2009] 9 BLLR 847 (LC) .................... 219
Stratford & others v Investec Bank Ltd & others (2015) 36 ILJ 583 (CC) ........................ 97
Strydom v Nederduitse Gereformeerde Gemeente Moreleta Park
(2009) 30 ILJ 868 (EqC) .................................................................................. 127, 134, 141
Strydom v Usuko Ltd [1997] 3 BLLR 343 (CCMA) ............................................................ 493
Sun Couriers (Pty) Ltd v CCMA & others (2002) 23 ILJ 189 (LC) ................................... 328
Süzen v Zehnacker Gebaudereinigung GmbH Krankenhausservice
[1997] IRLR 255 (ECJ) ............................................................................................. 371, 372
SVA Security (Pty) Ltd v Makro (Pty) Ltd – a Division of Massmart & others
(2017) 38 ILJ 2376 (LC) .................................................................................................. 383
Swanepoel v Department of Water Affairs and Forestry
[2005] 12 BALR 1272 (GPSSBC) ..................................................................................... 242
Swart v Greenmachine Horticultural Services
(a division of Sterikleen (Pty) Ltd) (2010) 31 ILJ 180 (LC) ................................... 127, 134
Swart v Mr Video (Pty) Ltd (1998) 19 ILJ 1315 (CCMA) ................................................. 130

T
Taljaard v Basil Read Estate (2006) 27 ILJ 861 (CCMA)................................................... 66
TDF Network Africa (Pty) Ltd v Faris [2019] 2 BLLR 127 (LAC) ........................................ 287
TDF Network (Pty) Ltd v Farris (2019) 40 ILJ 326 (LAC) ................................................... 135
TEK Corporation Provident Fund v Lorentz (1999) 20 ILJ 2797 (SCA) ........................... 529
TEK Corporation Provident Fund & others v Lorentz [2000] 3 BPLR 227 (SCA) ............ 531
Tekwini Security Services v Mavana (1999) 20 ILJ 2721 (LC) ................................ 369, 381
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TGWU v Bayete Security Holdings (1999) 20 ILJ 1117 (LC) ............................................ 137
Tharatt v Volume Injection Products (Pty) Ltd [2005] 6 BALR 652 (MEIBC) ......... 207, 326
Thekiso v IBM South Africa (Pty) Ltd [2007] 3 BLLR 253 (LC) .................................. 174, 347
Themba v Mintroad Sawmills (Pty) Ltd [2015] 2 BLLR 174 (LC) ..................................... 262
Themba and African Meter Reading (2013) 34 ILJ 2159 (CCMA) ............................... 216
Theron v Minister of Correctional Services & another
(2008) 29 ILJ 1275 (LC) .......................................................................... 219, 220, 227, 230
Thiso & others v Moodley NO & others (2015) 36 ILJ 1628 (LC) .................................... 215
Tibbett and Britten (South Africa) (Pty) Ltd v Marks & others
[2005] 7 BLLR 717 (LC) ................................................................................................... 264
Tiger Wheels Babelegi (Pty) Ltd v NUMSA (1999) 20 ILJ 677 (LC) ................................. 462
TMS Group Industrial Services (Pty) Ltd t/a Vericon v
Unitrans Supply Chain Solutions (Pty) Ltd & others [2014] 10 BLLR 974 (LAC) ......... 377
TMT Services & Supplies (Pty) Ltd v Commission for Conciliation, Mediation &
Arbitration & others (2019) 40 ILJ 150 (LAC) ............................................................... 301
Toyota SA Motors (Pty) Ltd v CCMA & others
[2016] 3 BLLR 217 (CC) .......................................................................... 239, 249, 261, 262
Toyota SA Motors (Pty) Ltd v Radebe & others (2000) 21 ILJ 340 (LAC)...................... 300
Trans-Caledon Tunnel Authority v CCMA & others [2013] 9 BLLR 934 (LC) ................. 214
Transnet Ltd v CCMA & others (2008) 29 ILJ 1289 (LC) ................................................. 264
Transnet Ltd v CCMA & others [2001] 6 BLLR 684 (LC) .................................................. 210
Transnet Ltd & others v Chirwa [2007] 1 BLLR 10 (SCA) ................................................. 498
Transnet Rail Engineering v Mienies & others [2015] 11 BLLR 1144 (LAC) .................... 324
Transport & Allied Workers Union of SA v Putco Ltd (2016) 37 ILJ 1091 (CC) .............. 476
Transport & Allied Workers Union of SA v Transnet (Pty) Ltd & others
(2014) 35 ILJ 526 (LC) .................................................................................................... 372
Transport & Allied Workers Union of SA obo Ngedle & others v
Unitrans Fuel & Chemical (Pty) Ltd (2016) 37 ILJ 2485 (CC) ............................. 276, 454
Transportation Motor Spares v NUMSA (1999) 20 ILJ 690 (LC) ...................................... 462
Trident Steel (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration & others (2005) 26 ILJ 119 (LC) .................................................................. 334
Trio Glass t/a The Glass Group v Molapo NO & others (2013) 34 ILJ 2662 (LC) .......... 253
TSB Sugar RSA Ltd (now RCL Food Sugar Ltd) v Dorey (2019) 40 ILJ 1224 (LAC)........ 292
Tshaka and Vodacom (Pty) Ltd (2005) 26 ILJ 568 (CCMA) .................................. 321, 323
Tshishonga v Minister of Justice & Constitutional Development & another
[2007] 4 BLLR 327 (LC) ................................................................... 224, 225, 226, 227, 291
TSI Holdings (Pty) Ltd & others v NUMSA & others [2006] 7 BLLR 631 (LAC) ......... 454, 455
Tsietsi v City of Matlosana Local Municipality & another (2015) 36 ILJ 2158 (LC) ...... 216
Twalo v Minister of Safety & Security & another (2009) 30 ILJ 1578 (Ck) ..................... 518

U
UASA v Impala Platinum Ltd & others [2010] 9 BLLR 986 (LC) ...................................... 409
UASA obo Davidtz & others v Kloof Gold Mining Company Ltd
[2005] 7 BALR 787 (CCMA) ........................................................................................... 316
UASA obo Zulu and Transnet Pipelines (2008) 29 ILJ 1803 (ARB) .......................... 127, 129
Uber Technology Services (Pty) Ltd v National Union of Public Service and
Allied Workers (NUPSAW) and others [2018] 4 BLLR 399 (LC).................................. 6, 59
Union of Refugee Women & others v Director: Private Security Industry
Regulatory Authority & others (2007) 28 ILJ 537 (CC) ................................................. 81
United Association of South Africa obo Members/De Keur Landgoed (Edms) Bpk
[2014] 7 BALR 738 (CCMA) ........................................................................................... 214
United National Breweries (Pty) Ltd v Khanyeza & others
[2006] 4 BLLR 321 (LAC) ................................................................................................ 352
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United National Public Servants Association of SA v Digomo NO & others
[2005] 12 BLLR 1169 (SCA) ............................................................................................ 502
United People’s Union of SA v Registrar of Labour Relations
(2010) 31 ILJ 198 (LC) .................................................................................................... 424
Universal Church of the Kingdom of God v Myeni & others
[2015] 9 BLLR 918 (LAC) ...................................................................................... 61, 65, 66
University of Cape Town v Auf der Heyde [2001] 12 BLLR 1316 (LAC) ................ 142, 242
University of Pretoria v Commission for Conciliation, Mediation &
Arbitration and others [2012] 2 BLLR 164 (LAC).......................................................... 242
University of SA v Solidarity obo Marshall & others (2009) 30 ILJ 2146 (LC) ................. 219
University of South Africa v Reynhardt (2010) 31 ILJ 2368 (LAC) .......................... 133, 144
UPUSA obo members v Harmony Gold Mine [2003] 9 BALR 1062 (CCMA) ................ 409
UPUSA obo Members/Computicket [2010] 9 BALR 1008 (CCMA) .............................. 404
Urquhart v Compensation Commissioner [2006] 1 BLLR 96 (E) .................................... 518
Uys v Imperial Car Rental (Pty) Ltd (2006) 27 ILJ 2702 (LC)........................................... 284

V
Vac Air Technology (Pty) Ltd v Metal and Engineering Industries
Bargaining Council & others [2006] 11 BLLR 1125 (LC) .............................................. 493
Van Alphen v Rheinmetall Denel Munition (Pty) Ltd (2013) 4 ILJ 3314 (LC) ............... 224
Van Blerk and Tshwane University of Technology (2012) 33 ILJ 1248 (CCMA)........... 204
Van Coppenhagen v Shell and BPSA Petroleum Refineries (Pty) Ltd
(1991) 12 ILJ 620 (IC) ..................................................................................................... 529
Van der Merwe and Agricultural Research Council (2013) 34 ILJ 3366 (CCMA) ...... 319
Van der Velde v Business and Design Software (Pty) Ltd & another (1)
[2006] 10 BLLR 995 (LC) ......................................................................... 273, 274, 290, 388
Van Heerden v SA Pulp & Paper Industries Ltd 1946 AD 385 ......................................... 97
Van Zyl v Workmen’s Compensation Commissioner 1995 (1) SA 708 (N) ................... 515
Vanachem Vanadium Products (Pty) Ltd v National Union of
Metalworkers of SA & others [2014] 9 BLLR 923 (LC) .................................................. 481
Vanadium Technology (Pty) Ltd v NUMSA (1997) 18 ILJ 740 (LC) ....................... 475, 476
Vidar Rubber Products (Pty) Ltd v CCMA & others (1998) 19 ILJ 1275 (LC)................ 422
Viljoen v Smit (1997) 18 ILJ 61 (A) ...................................................................................... 92
Viney v Barnard Jacobs Mellet Securities (Pty) Ltd (2008) 29 ILJ 1564 (LC) ................ 264
Visser v Mopani District Municipality & others [2012] 3 BLLR 266 (SCA) .............. 261, 263
Visser v Vodacom [2002] 10 BALR 1031 (AMSSA) .......................................................... 204
Vista University v Botha [1997] 5 BLLR 614 (LC) .............................................................. 434
Vodacom (Pty) Ltd v CWU [2010] 8 BLLR 836 (LAC) ............................. 405, 457, 458, 459
Vodacom (Pty) Ltd v Motsa & another [2016] 5 BLLR 523 (LC) ............................. 95, 100
Volvo (Southern Africa) (Pty) Ltd v Yssel
[2010] 2 BLLR 128 (SCA), (2009) 30 ILJ 2333 (SCA) ............................................... 93, 299
Vorster v Rednave Enterprises CC t/a Cash Converters Queenswood
[2008] 11 BLLR 1111 (LC) ............................................................................................... 284

W
Wagenaar v United Reform Church in SA [2005] 1 BALR 127 (CCMA) ....................... 332
Wallace v Du Toit [2006] 8 BLLR 757 (LC) ................................................................ 136, 141
Walters v Transitional Local Council of Port Elizabeth & another
(2000) 21 ILJ 2723 (LC) .................................................................................................. 135
Waltons Stationery Co (Edms) Bpk v Fourie 1994 (4) SA 507 (O) ................................... 95
Wardlaw v Supreme Mouldings (Pty) Ltd (2004) 25 ILJ 1094 (LC) ................................ 243
Wardlaw v Supreme Mouldings (Pty) Ltd (2007) 28 ILJ 1042 (LAC) ............................. 258
Wardlaw v Supreme Mouldings (Pty) Ltd [2007] 6 BLLR 487 (LAC) .............................. 283
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Waverley Blankets Ltd v CCMA [2001] 1 BLLR 114 (LC) ................................................ 435
Waverley Blankets Ltd v CCMA
[2003] 3 BLLR 236 (LAC), (2003) 24 ILJ 388 (LAC) ................................................ 373, 435
Welch v Kulu Motors Kenilworth (Pty) Ltd & others (2013) 34 ILJ 1804 (LC)................. 373
Western Cape Education Department v General Public Service
Sectoral Bargaining Council & others [2013] 8 BLLR 834 (LC) .................................. 247
Western Cape Education Department & another v George
(1996) 17 ILJ 547 (LAC) .................................................................................................. 134
Western Cape Gambling & Racing Board v CCMA & others
(2015) 36 ILJ 2166 (LC) .................................................................................................. 214
Western Platinum Refinery Ltd v Hlebela & others
[2015] 9 BLLR 940 (LAC) .................................................................................. 93, 305, 306
Westraat v SA Police Service (2003) 24 ILJ 1197 (BCA) ................................................. 204
WESUSA/Isidingo Security Services [2007] 7 BALR 678 (CCMA) ................................... 405
White v Medpro Pharmaceuticals (Pty) Ltd [2000] 10 BALR 1182 (CCMA) ................ 328
Whitehead v Woolworths (Pty) Ltd (1999) 20 ILJ 2133 (LC) .......................... 134, 139, 239
Whitehead v Woolworths (Pty) Ltd [1999] 8 BLLR 862 (LC) ............................................. 64
Willemse v Patelia NO & others [2007] 2 BLLR 164 (LC) ......................................... 143, 182
WL Ochse Webb & Pretorius (Pty) Ltd v Vermeulen
[1997] 2 BLLR 124 (LAC) ........................................................................................ 101, 245
Wolfaardt & another v Industrial Development Corporation of SA Limited
(2002) 23 ILJ 1610 (LC) .................................................................................................. 347
Woolworths (Pty) Ltd v Mabija & others [2016] 5 BLLR 454 (LAC) ................................ 260
Woolworths (Pty) Ltd v Whitehead (2000) 21 ILJ 571 (LAC) .......................................... 134
Woolworths v Whitehead’ (2002) 4 TSAR 783 ................................................................. 282
WUSA v Crouse NO & another [2005] 11 BLLR 1156 (LC) .............................................. 421
Wyeth SA (Pty) Ltd v Manqele & others [2005] 6 BLLR 523 (LAC) .................... 62, 64, 239
Wylie v Standard Executors & Trustees (2006) 27 ILJ 2210 (CCMA) ............................. 321

X
Xstrata South Africa (Pty) Ltd (Lydenburg Alloy Works) v National Union of
Mineworkers obo Masha & others [2017] 4 BLLR 384 (LAC)...................................... 261

Y
Yebe v University of KwaZulu-Natal (Durban) [2007] 1 BALR 77 (CCMA) ................... 242
Yeni v South African Broadcasting Corporation [1997] 11 BLLR 1531 (CCMA) ......... 208
Young v Coega Development Corporation (Pty) Ltd (1)
[2009] 6 BLLR 597 (EC) ........................................................................................... 231, 292
Young, James and Webster v United Kingdom (1981) 4 EHHR 38................................. 52
Younghusband v Deca Contractors (SA) Pension Fund and its Trustees
(1999) 20 ILJ 1640 (PFA) ................................................................................................ 212

Z
Zabala v Gold Reef City Casino [2009] BLLR 94 (LC) .................................................... 135
Zapop (Pty) Ltd v CCMA & others [2016] 9 BLLR 910 (LAC) ......................................... 266
Zeman v Quickelberge & another (2011) 32 ILJ 453 (LC)............................................... 84
Zikhethele Trade (Pty) Ltd v COSAWU obo members & others
[2008] 2 BLLR 163 (LAC) ................................................................................ 380, 381, 382
Zondi v PPM Security Services (Pty) Ltd (2009) 30 ILJ 981 (CCMA) .............................. 334
Table of statutes
Page
A Basic Conditions of Employment Act
Arbitration Act 42 of 1965 ...................... 503
s 33 ........................................................ 497
B s 23 ........................................................ 323
Black Labour Relations Regulation Act
48 of 1953 ............................................... 13
Basic Conditions of Employment Act
3 of 1983
s 1(1) ........................................................ 62
Basic Conditions of Employment Act
75 of 1997 ........ 4, 8, 12, 15, 16, 59, 62, 64,
68, 70, 72, 77, 83, 87, 89, 90,
105, 108, 111, 197, 213, 267,
275, 277, 483, 488, 496, 539
Ch 3 ....................................................... 109
Ch 8 ....................................................... 459
Ch 10 ..................................................... 484
s 1 .................................................. 107, 358
s 2(a) ....................................................... 44
s 3(3) ...................................................... 107
s 4 .............................................. 4, 107, 484
s 6(1) ...................................................... 107
s 6(3) ...................... 107, 109, 158, 159, 189
s 9 .......................................................... 115
s 9(1) ................................................ 63, 108
s 9(2) ...................................................... 108
s 10 ................................................ 108, 115
s 11 ........................................................ 109
s 12 ........................................................ 109
s 14 ................................................ 108, 452
s 14(5) .................................................... 108
s 15 ........................................................ 108
s 16 ........................................................ 108
s 18 ........................................................ 108
s 20 ........................................................ 106
589
Page
75 of 1997 – continued
s 20(2) .................................................... 109
s 22 ........................................................ 110
s 23(1) .................................................... 110
s 23(2) .................................................... 110
s 25 ................................................ 110, 243
s 27 ........................................................ 106
s 27(1) .................................................... 111
s 27(2) .................................................... 111
s 27(4) .................................................... 111
s 27(5) .................................................... 111
s 29 .................................................. 74, 112
s 31 ........................................................ 112
s 32 ........................................................ 111
s 33A(1) ................................................. 112
s 34(1) .............................................. 91, 112
s 34(1)(a) ............................................... 112
s 34(2) .............................................. 91, 112
s 35 ................................................ 150, 358
s 35(5) .............................................. 97, 358
s 37 ........................................................ 112
s 37(1) .................................................... 100
s 37(6) .................................................... 100
s 38 ........................................................ 113
s 40(b) ................................................... 109
s 41 .......... 97, 113, 253, 358, 359, 360, 361
s 41(4) .................................................... 360
s 41(6) ............................................ 361, 489
s 43(1) ............................................ 113, 119
s 43(3) .................................................... 114
s 44(1) .................................................... 114
s 44(1A) ................................................. 114
s 44(2) .................................................... 114
s 46 ........................................................ 114
s 47 ........................................................ 114
590
Page
Basic Conditions of Employment Act
75 of 1997 – continued
s 48 ........................................................ 114
s 48(3) .................................................... 114
s 49 ........................................................ 115
s 50 ........................................................ 115
s 50(2)(b) ............................................... 114
s 55 ........................................................ 149
s 55(1) .................................................... 114
s 55(4) .................................................... 114
s 55(4)(o) ............................................... 114
s 55(6) .................................................... 114
s 55(7) .................................................... 114
s 55(8) .................................................... 114
s 57 ........................................................ 114
s 59 ........................................................ 183
s 63 ........................................ 112, 116, 484
s 64 ........................................................ 112
s 64(1) .................................................... 484
s 65 ........................................................ 484
s 68 ................................................ 116, 542
s 68(1) .................................................... 484
s 68(1A) ................................................. 542
s 68(3) .................................................... 484
s 69 ........................................................ 542
s 69(1) .................................................... 484
s 69(2A) ................................................. 116
s 69(5) .................................................... 485
s 70 ........................................................ 542
s 73 ................................................ 116, 542
s 73A ...................................... 116, 485, 489
s 73A(1) ................................................. 485
s 73A(3) ................................................. 116
s 73A(4) ................................................. 485
s 73A(5) ................................................. 485
s 73(2) .................................................... 485
s 74(2) .................................................... 489
s 77 ........................................................ 116
s 77(1) .................................................... 115
s 77(1A) ................................................. 115
s 77(3) .................... 101, 103, 116, 496, 503
s 77A(e) ................................................. 103
s 83A ........................................................ 65
s 84 ........................................................ 358
s 84(2) .................................................... 359
Sch 1...................................................... 108
BCEA see Basic Conditions of
Employment Act 75 of 1997
Black Labour Relations Regulation
Act 48 of 1953 ........................................ 13
Broad-Based Black Economic
Empowerment Act 53 of 2003 ........... 175
Law@work
Page
C
Child Care Act 74 of 1983 ..................... 526
Children’s Act 38 of 2005 ....................... 526
COIDA see Compensation for
Occupational Injuries and Diseases
Act 130 of 1993
Commission for Gender Equality
Act 39 of 1996 ...................................... 159
preamble .............................................. 159
Compensation for Occupational Injuries
and Diseases Act
130 of 1993 ... 62, 65, 68, 83, 515, 516, 523
s 1 ........................................ 69, 75, 83, 519
s 1(xix)(v) ................................................. 69
s 22(1) .................................................... 535
s 23(3)(a) ............................................... 543
s 23(3)(b) ............................................... 543
s 35 .................................... 75, 98, 518, 519
s 35(1) ...................... 97, 517, 519, 520, 522
s 37 ........................................................ 519
s 60(1) .................................................... 543
s 91(5) .................................................... 496
Sch 3...................................................... 519
Compensation for Occupational Injuries
and Diseases Amendment
Act 61 of 1997 ...................................... 515
Constitution of the Republic of
South Africa, 1996 ........... 5, 23, 49, 51, 83,
98, 99, 101, 113, 116, 122,
132, 139, 143, 149, 157, 165,
171, 190, 245, 250, 280, 281,
312, 391, 395, 398, 406, 419,
436, 437, 451, 463, 475, 504
Ch 2 ......................................................... 32
s 1 .................................................. 121, 163
s 8 ............................................................ 41
s 8(2) ........................................................ 41
s 8(3) ........................................................ 41
s 9 ...... 40, 82, 121, 123, 124, 125, 163, 519
s 9(1) .............................................. 121, 168
s 9(2) ....................... 43, 121, 142, 167, 168,
169, 170, 176, 177, 182
s 9(3) .............................................. 133, 167
s 10 .......................................... 40, 396, 511
s 14 .......................................................... 40
s 15 ........................................................ 396
s 16 ........................................................ 472
s 17 ............................................ 47, 48, 396
s 18 .................................. 40, 396, 401, 472
s 19 ........................................................ 396
s 22 .................................................... 40, 95
Table of statutes
Page
Constitution of the Republic of
South Africa, 1996 – continued
s 23 ..................... 33, 39, 40, 41, 42, 43, 44,
45, 46, 47, 48, 54, 64, 74, 82,
105, 197, 201, 238, 408, 450
s 23(1) ................... 7, 39, 42, 43, 44, 45, 54,
102, 197, 199, 201, 203, 237
s 23(2) .................................. 33, 39, 46, 450
s 23(2)(a) ............................................... 401
s 23(2)(b) ............................................... 397
s 23(2)(c) ............................................... 457
s 23(3) ............................................ 7, 39, 46
s 23(4) ........................................ 39, 46, 397
s 23(4)(c) ............................................... 400
s 23(5) ............................ 7, 50, 51, 419, 420
s 27 .................................................... 40, 54
s 27(1) .................................................... 532
s 27(1)(c) ............................................... 511
s 27(2) ............................................ 511, 532
s 27(3) .................................................... 532
s 28 ........................................................ 113
s 32 .......................................................... 40
s 33 .......................................... 40, 498, 499
s 33(1) .................................................... 498
s 34 ........................................................ 391
s 36 .............................. 48, 52, 53, 201, 401
s 36(1) ............................ 40, 41, 52, 96, 401
s 39 ........................................ 32, 33, 34, 54
s 39(1) .......................................... 32, 33, 40
s 39(2) ........................................ 34, 54, 102
s 167(4)(a) ............................................... 54
s 167(7) .................................................... 54
s 168 ...................................................... 505
s 168(3) .................................................. 505
s 168(3)(a) ............................................. 505
s 172(1)(A) .............................................. 54
Constitution of the Republic of
South Africa, 1996 – continued
s 173 ........................................................ 41
s 195(1) .................................................. 145
s 195(1)(i) .............................................. 189
s 199(7) .................................................. 400
s 205(2) .................................................. 145
s 205(3) .................................................. 145
s 213 .............................................. 194, 396
s 223 ........................................................ 34
s 232 .................................................. 32, 82
s 233 ...................................... 32, 40, 50, 82
s 239 ...................................................... 498
Constitution of the Republic of South
Africa Act 200 of 1993 ............. 14, 39, 197
s 8(3)(a) ................................................. 182
s 27 .......................................................... 39
s 27(4) ...................................................... 47
591
Page
Constitution Seventeenth Amendment
Act of 2012 ........................................... 505
Correctional Service Act
111 of 1998 ........................................... 189
s 96(3)(c) ............................................... 189
CSA see Correctional Service
Act 111 of 1998
D
Defence Act 44 of 1957 ..................... 33, 46
E
EEA see Employment Equity
Act 55 of 1998
Employment Equity Act
55 of 1998 .......... 12, 15, 16, 62, 63, 65, 68,
77, 83, 89, 127, 128, 129, 130,
131, 135, 138, 143, 144, 145, 146,
156, 163, 165, 166, 169, 170, 171,
172, 175, 176, 177, 178, 181, 187,
188, 189, 190, 197, 199, 209, 230,
284, 304, 320, 321, 483, 484, 488
Ch II .............................. 117, 124, 125, 160,
173, 174, 189, 192, 193, 289
Ch III ............. 124, 142, 159, 160, 161, 164,
173, 174, 189, 192, 193
Ch V ...................................... 158, 173, 174
s 1 ................................. 131, 147, 152, 164,
174, 175, 176, 321
s 2 .......................................................... 123
s 2(a) ..................................................... 164
s 2(b) ..................................................... 163
s 3 ............................................................ 34
s 3(d) ..................................................... 125
s 4(1) ...................................................... 124
s 4(3) ...................................................... 124
s 5 .......................................................... 124
s 6 ........................... 64, 124, 125, 133, 137,
147, 173, 205, 274, 282, 286
s 6(1) ...... 126, 132, 147, 148, 149, 150, 534
s 6(2) ........................ 43, 124, 139, 141, 168
s 6(3) ...................................................... 124
s 6(4) ...................................... 148, 183, 184
s 6(5) ...................................................... 148
s 7 ............................ 64, 153, 154, 155, 534
s 7(1)(a) ................................................. 152
s 7(1)(b) ................................. 152, 153, 155
s 7(2) .............................. 153, 154, 155, 534
s 8 .................................................... 64, 155
s 9 ............................................ 64, 124, 199
s 10(1) .................................................... 289
s 10(2) .................................... 158, 487, 496
s 10(3) .................................................... 496
592
Page
Employment Equity Act 55 of 1998
– continued
s 10(4) .................................................... 496
s 10(5) .................................................... 496
s 10(6) .................................... 158, 230, 496
s 10(6)(aA) ............................ 158, 191, 489
s 10(6)(b) ....................................... 158, 191
s 10(7) .................................................... 496
s 10(8) .................................................... 158
s 11 ........................................ 138, 139, 148
s 11(1) .................................................... 138
s 11(2) .................................................... 138
s 13(2)(d) ............................................... 182
s 14 ........................................................ 174
s 15 ................................ 142, 173, 180, 187
s 15(1) ............................................ 164, 166
s 15(2) ............................ 164, 166, 180, 181
s 15(2)(d) ....................................... 164, 209
s 15(3) .................................................... 164
s 15(4) ............................................ 144, 165
s 16 ........................................ 179, 185, 186
s 16(2) .................................................... 180
s 17 ................................................ 179, 185
s 18(1) .................................................... 180
s 19 ................................ 179, 180, 182, 185
s 19(1) ............................................ 179, 180
s 20 ................ 172, 173, 179, 180, 182, 191
s 20(1) .................................................... 180
s 20(2) .................................................... 180
s 20(3) .................................................... 178
s 20(4) .................................................... 173
s 20(5) .................................................... 173
s 20(7) .................................................... 182
s 21 ........................................ 179, 182, 191
s 21(1) .................................................... 183
s 21(4A) ................................................. 183
s 21(4B) .................................................. 183
s 21(6) .................................................... 183
s 22 ................................................ 182, 185
s 22(1) .................................................... 183
s 22(2) .................................................... 183
s 23 ........................................................ 191
s 24 ................................................ 179, 185
s 24(1) .................................................... 179
s 24(2) .................................................... 179
s 25 ........................................................ 182
s 25(1) .................................................... 183
s 25(2)(a) ............................................... 183
s 25(3) .................................................... 183
s 26 ........................................ 182, 183, 185
s 27 ........................................................ 183
s 27(1) .................................................... 184
s 27(2) .................................................... 184
s 27(4) .................................................... 184
Law@work
Page
Employment Equity Act 55 of 1998
– continued
s 28 ........................................................ 184
s 29 ........................................................ 184
s 30(1) .................................................... 184
s 30(2) .................................................... 184
s 34 ........................................................ 184
s 35 ................................................ 185, 484
s 36 ........................................................ 185
s 36(2) .................................................... 185
s 37(1) .................................................... 185
s 37(6) .................................................... 185
s 41 ........................................................ 159
s 41(1) .................................................... 192
s 41(2) .................................................... 192
s 42 ........................................................ 187
s 42(1) .................................................... 187
s 42(2) .................................................... 191
s 42(3) .................................................... 191
s 42(4) .................................................... 191
s 43 ................................................ 186, 187
s 44 ........................................ 186, 187, 191
s 45 ................................................ 186, 187
s 48 ........................................................ 159
s 48(2) .................................................... 191
s 49 ........................................................ 192
s 50 ........................................................ 192
s 50(1)(g) ............................................... 184
s 50(1)(h) ............................................... 192
s 50(2) ............................................ 144, 159
s 50(2)(d) ............................................... 174
s 50(4) .................................................... 153
s 50(5) .................................................... 192
s 53 ................................................ 192, 193
s 53(3) .................................................... 184
s 53(4) .................................................... 192
s 53(5) .................................... 160, 191, 193
s 54 ........................................................ 184
s 54(1)(a) ............................................... 177
s 55 ................................................ 182, 184
s 57 ........................................................ 179
s 59(4) .................................................... 191
s 60 .......................... 92, 129, 133, 157, 158
s 60(1) .............................................. 92, 156
s 60(2) .................................................... 156
s 60(3) .................................................... 156
s 60(4) .................................................... 156
Sch 1...................... 182, 185, 186, 191, 192
Sch 4...................................................... 174
Employment Equity Amendment Act
47 of 2013 ............................................. 163
Table of statutes
Page
Employment of Educators Act
76 of 1998
s 14(1)(a) ............................................... 256
s 14(2) .................................................... 256
Employment Services Act
4 of 2014 ................................... 70, 75, 536
long title .................................................. 75
s 1 .................................................... 76, 539
s 2 .......................................................... 538
s 2(1) ...................................................... 539
s 2(1)(c)–(d) .......................................... 538
s 4 .......................................................... 538
s 5(1) ........................................................ 76
s 5(1)(b)–(f) ........................................... 538
s 5(1)(i) .................................................. 538
s 6 .................................................... 76, 538
s 7 ............................................................ 76
s 8 .......................................................... 538
s 8(1) ........................................................ 77
s 8(2)(a) ................................................... 77
s 8(2)(b) ................................................... 77
s 8(2)(c) ................................................... 77
s 9 .......................................................... 538
s 10(1) ...................................................... 76
s 12 ........................................................ 541
s 13 ........................................................ 538
s 13(1) ...................................................... 76
s 13(2) ...................................................... 76
s 13(3) ...................................................... 76
s 15(1) ...................................................... 76
s 31(1) .................................................... 541
s 48 ........................................................ 541
s 49 ........................................................ 541
s 50 ........................................................ 541
Employment Tax Incentive Act
26 of 2013 ..................... 537, 538, 539, 541
preamble.............................................. 538
s 2 .......................................................... 538
s 3 .......................................................... 539
s 4 .......................................................... 538
s 6 .................................................. 538, 541
ESA see Employment Services Act 4 of
2014
ETIA see Employment Tax Incentive Act
26 of 2013
G Ch IV ............. 276, 277, 356, 456, 465, 471
General Intelligence Laws Amendment
Act 11 of 2013 ...................................... 107
H preamble ................................................ 47
Health Professions Act 56 of 1974 ......... 155
593
Page
I
Immigration Act 13 of 2002................ 76, 82
s 19(2) .................................................... 241
s 49(3) ...................................................... 77
Income Tax Act 58 of 1962 .................... 539
Industrial Conciliation Act
11 of 1924 ............................... 12, 426, 456
s 24 .......................................................... 60
Industrial Conciliation Act 36 of 1937 ..... 13
Industrial Conciliation Act
28 of 1956 ............................................... 13
Industrial Relations Amendment Act
95 of 1982 ....................................... 43, 197
Insolvency Act 24 of 1936 .............. 390, 524
s 9(4A) ..................................................... 97
s 38 .......................................... 97, 252, 390
s 38(9) .................................................... 252
s 38(10) .................................................. 390
s 98A ........................................................ 97
L
Labour Laws Amendment Act
10 of 2018 ............................................. 111
Labour Relations Act
28 of 1956 ...... 13, 14, 24, 43, 48, 198, 240,
244, 245, 300, 313, 396, 421,
426, 451, 475, 479, 491
s 1 .................................................... 43, 197
s 1(1) ........................................................ 62
s 1(3)(d) ................................................... 71
Labour Relations Act
66 of 1995 ......... 4, 12, 14ff, 15, 24, 40, 41,
46ff, 53ff, 59, 62ff, 67ff, 76ff,
89, 93, 101, 106, 123, 133, 135,
139, 140, 147, 156, 159, 181,
197, 207ff, 217, 218, 222, 236ff,
246ff, 251, 254ff, 259, 264, 275ff,
286, 289, 291, 311, 313, 317,
321, 330, 331, 340, 362, 366,
367, 374, 380, 381, 385, 539
Ch II ............................... 395, 396, 399, 492
Ch III .............................................. 404, 406
Ch III, Part A .......................................... 409
Ch III, Part E .......................................... 419
Ch V .............................................. 274, 439
Ch VI ..................................................... 421
Ch VIII ............ 223, 235, 236, 288, 401, 425
s 1 ........................................ 34, 39, 47, 417
594
Page
Labour Relations Act
66 of 1995 – continued
s 1(c) ..................................................... 403
s 1(d) ..................................................... 403
s 1(d)(i) .................................................. 417
s 1(d)(ii) ................................................. 417
s 1(d)(iv) ................................................ 480
s 2 .................................................... 46, 396
s 3 ............................................................ 34
s 3(b) ....................................................... 54
s 4 .................................................. 396, 398
s 4(1)(b) ................................................. 401
s 4(2) ...................................................... 398
s 4(2)(a) ................................. 280, 281, 396
s 5 .................................. 250, 274, 399, 471
s 5(1) .............................................. 397, 471
s 5(1)(c)(iii) ............................................ 280
s 5(2) .............................................. 274, 397
s 5(2)(a) ................................................. 397
s 5(2)(b) ................................................. 397
s 5(2)(c) ......................................... 396, 397
s 5(2)(c)(iii) ............................................ 398
s 5(2)(c)(vi) ........................................... 275
s 5(2)(c)(vii) ................................... 275, 281
s 5(3) ...................................................... 398
s 5(4) ...................................................... 398
s 6(1) ...................................................... 399
s 6(2) ...................................................... 399
s 7 .................................................. 397, 399
s 7(4) ...................................................... 399
s 8 .................................................... 46, 399
s 9 .......................................... 400, 482, 492
s 10 ........................................................ 400
s 11 ........................................................ 404
s 12 ................ 395, 404, 407, 409, 410, 459
s 12(4) .................................................... 410
s 13 ................ 395, 404, 407, 409, 410, 459
s 14 ................................ 395, 404, 411, 459
s 14(4) .................................................... 412
s 14(5) .................................................... 411
s 15 ................ 395, 404, 407, 409, 411, 459
s 16 ........................ 180, 395, 404, 411, 491
s 16(2) ............................................ 353, 411
s 16(3) .................................................... 411
s 16(4) .................................................... 412
s 16(5) .................................................... 353
s 16(8) .................................................... 412
s 16(9) .................................................... 412
s 16(10) .................................................. 412
s 16(11) .................................................. 412
s 16(12) .................................................. 412
s 16(13) .................................................. 412
s 16(14) .................................................. 412
s 17 ........................................................ 410
Law@work
Page
Labour Relations Act 66 of 1995
– continued
s 18 ........................................................ 409
s 19 ........................................................ 409
s 20 ........................................ 408, 409, 410
s 21 ................ 406, 408, 413, 414, 488, 491
s 21(1) .................................................... 413
s 21(2) .................................................... 413
s 21(3) .................................................... 414
s 21(6) .................................................... 405
s 21(7) .................................................... 414
s 21(8) .................................... 114, 406, 413
s 21(8A) ................................................. 407
s 21(8C) ......................................... 407, 409
s 21(11) .................................................. 414
s 22 ................................................ 413, 491
s 22(5) .................................................... 413
s 23 ........................................ 174, 432, 433
s 23(1)(d) .......................... 47, 53, 405, 433,
434, 435, 436
s 23(3) .................................................... 105
s 23(4) ............................................ 414, 435
s 23(5) .......................................... 47, 48, 49
s 24 ................................................ 438, 439
s 24(1) .................................... 438, 479, 488
s 24(2) ............................................ 488, 491
s 24(3) .................................................... 491
s 24(4) .................................................... 491
s 24(5) .................................................... 491
s 24(6) ............................................ 403, 491
s 24(7) .................................................... 491
s 25 .................................... 51, 52, 400, 402
s 26 ............................ 51, 52, 400, 401, 402
s 26(1) .................................................... 400
s 26(2) .................................................... 400
s 26(3)(d) ............................................... 402
s 26(5) ............................................ 400, 425
s 26(6) ............................................ 400, 425
s 26(7) .................................................... 402
s 26(7)(b) ............................................... 425
s 26(9) ............................................ 400, 425
s 26(11) .................................................. 491
s 26(15) .................................................. 400
s 26(16) .................................................. 402
s 27 ........................................................ 427
s 27(2) .................................................... 427
s 27(4) .................................................... 427
s 28 ........................................................ 429
s 28(1)(c) ....................................... 429, 491
s 29 ........................................................ 427
s 29(1) .................................................... 427
s 29(12) .................................................. 428
s 29(13) .................................................. 428
s 29(14) .......................................... 428, 500
Table of statutes
Page
Labour Relations Act
66 of 1995 – continued
s 30 ........................................................ 428
s 30(1)(h) ............................................... 431
s 30(1)(i) ................................................ 431
s 30(1)(j) ................................................ 431
s 31 ................................................ 174, 435
s 32 ........................................ 388, 435, 437
s 32(1) ............................................ 436, 437
s 32(2) .................................... 436, 437, 438
s 32(3)(a)–(g) ........................................ 437
s 32(5) .................................................... 438
s 32(5A) ................................................. 438
s 36(2) ............................................ 430, 431
s 37 ........................................................ 430
s 37(4)(c) ............................................... 431
s 41(3) .................................................... 431
s 42 ........................................................ 190
s 42(a) ........................................... 188, 190
s 43 ........................................................ 492
s 43(3) .................................................... 432
s 45 ........................................................ 491
s 51 ................................................ 431, 481
s 51(2)(a)(i) ........................................... 492
s 51(2)(b) ............................................... 492
s 51(3) ............................................ 491, 492
s 52 ........................................................ 492
s 61(5) .................................................... 491
s 61(6) .................................................... 491
s 61(7) .................................................... 491
s 61(8) .................................................... 491
s 62 ........................................................ 491
s 63 ........................................................ 491
s 64 ........................................ 463, 476, 483
s 64(1) .................... 413, 450, 463, 471, 492
s 64(1)(a) ....................... 455, 462, 473, 476
s 64(1)(a)(i) ........................................... 462
s 64(1)(a)(ii)................................... 462, 473
s 64(1)(b) ............................... 276, 462, 463
s 64(1)(c) ............................................... 476
s 64(1)(d) ............................................... 462
s 64(2) ............................................ 419, 464
s 64(4) .................................................... 464
s 64(5) .................................................... 464
s 65 ........................ 404, 456, 457, 463, 483
s 65(1)(a) ....................................... 457, 458
s 65(1)(b) ............................................... 458
s 65(1)(c) ............... 204, 456, 458, 459, 483
s 65(2) .................................................... 413
s 65(2)(a) ............................................... 459
s 65(2)(b) ....................................... 413, 459
s 65(3) .................................................... 457
s 65(3)(a)(i) ........................................... 459
s 66 ........................................ 465, 466, 467
595
Page
Labour Relations Act
66 of 1995 – continued
s 66(1) .................................................... 465
s 66(2) .................................................... 466
s 67 ................................................ 473, 476
s 67(2) .................................................... 469
s 67(3) .................................................... 469
s 67(4) ............................ 276, 453, 457, 470
s 67(5) .................................................... 413
s 67(7) .................................................... 425
s 67(8) .................................................... 469
s 68(1)(b) ....................................... 471, 476
s 69 ................................................ 472, 473
s 69(1) .................................................... 472
s 69(2) .................................................... 473
s 69(3) .................................................... 473
s 69(6C) ................................................. 473
s 69(8) ............................................ 474, 491
s 69(9) ............................................ 474, 491
s 69(10) .......................................... 474, 491
s 69(11) .................................................. 474
s 69(12) .................................................. 474
s 69(13) .................................................. 474
s 69(14) .................................................. 474
s 70 ........................................................ 460
s 70A ...................................................... 460
s 70C...................................................... 461
s 72 ........................................................ 461
s 74 ................................................ 461, 492
s 75 ........................................................ 461
s 75(1) .................................................... 460
s 76 ................................................ 278, 475
s 76(1)(a) ............................................... 475
s 76(1)(b) ....................................... 399, 475
s 77 ........................................ 468, 481, 482
s 77(1) .................................................... 468
s 77(3) .................................................... 484
s 78 ........................................................ 441
s 78(a) ................................................... 398
s 80 ........................................................ 440
s 83(3)(b) ............................................... 442
s 83(3)(c) ............................................... 442
s 84 ........................................................ 516
s 84(2) .................................................... 443
s 84(3) .................................................... 516
s 84(5) ............................................ 443, 516
s 84(5)(a)–(c) ........................................ 516
s 86 ........................................................ 491
s 86(7) .................................................... 488
s 89 ........................................................ 491
s 92 ........................................................ 445
s 94 ........................................................ 491
s 95(1) .................................................... 422
596
Page
Labour Relations Act
66 of 1995 – continued
s 95(2) .................................................... 422
s 95(5) .................................................... 422
s 95(5)(c) ............................................... 425
s 95(5)(d) ............................................... 425
s 95(5)(p) ............................................... 425
s 95(5)(q) ............................................... 426
s 95(6) ............................................ 422, 423
s 95(7) .................................................... 422
s 95(8) .................................................... 422
s 96(1) .................................................... 423
s 96(6) .................................................... 500
s 96(7) .................................................... 424
s 97(1) .................................................... 424
s 97(2) .................................................... 424
s 97(3) .................................................... 424
s 106(2A) ............................................... 424
s 106(2B) ................................................ 424
s 107 ...................................................... 421
s 112 ...................................................... 485
s 113 ...................................................... 485
s 114(1) .................................................. 485
s 114(3) .................................................. 485
s 115 ........................................................ 17
s 127 ...................................................... 492
s 127(2) .................................................. 491
s 127(4)(a) ............................................. 492
s 127(5A) ............................................... 492
s 133(1) .................................................. 487
s 134 ...................................................... 480
s 135 ...................................................... 486
s 135(1) .................................................. 487
s 135(2) .................................................. 487
s 135(3) .................................................. 487
s 136(1) .................................................. 489
s 136(1)(b) ............................................. 489
s 136(5) .................................................. 489
s 137(1) .................................................. 489
s 137(2) .................................................. 489
s 137(3) .................................................. 489
s 138(1) .................................................. 490
s 138(2) .................................................. 490
s 138(7)(a) ............................................. 490
s 138(10) ................................................ 490
s 142(1)(a)–(f) ....................................... 487
s 142A .................................................... 487
s 143 ...................................................... 116
s 145 ...................................... 496, 498, 499
s 145(1) .................................................. 496
s 145(1)(b) ............................................. 496
s 145(1A) ............................................... 496
s 145(2) .......................................... 497, 499
Law@work
Page
Labour Relations Act
66 of 1995 – continued
s 145(2)(a) ............................................. 499
s 145(2)(a)(ii)......................................... 499
s 150A .................................................... 465
s 150B .................................................... 465
s 150C.................................................... 465
s 150D .................................................... 465
s 152 ...................................................... 495
s 153(1) .................................................. 495
s 153(2) .................................................. 495
s 157 ...................................... 292, 500, 505
s 157(1) .......................... 495, 500, 502, 503
s 157(2) .................................. 500, 502, 503
s 157(3) .................................................. 503
s 158 ...................................................... 495
s 158(1) .................................................. 231
s 158(1)(a)(i)–(vii) ................................. 495
s 158(1)(b) ............................................. 496
s 158(1)(c) ..................................... 487, 496
s 158(1)(d) ............................................. 496
s 158(1)(e) ............................................. 496
s 158(1)(f) .............................................. 496
s 158(1)(g) ..................................... 496, 500
s 158(1)(h) ............................. 255, 496, 500
s 158(1)(i) .............................................. 496
s 158(1)(j) .............................................. 496
s 158(2) .................................................. 504
s 162 ...................................................... 505
s 167 ...................................................... 504
s 168 ...................................................... 495
s 173(1) .................................................. 504
s 173(4) .................................................. 504
s 182 ...................................................... 504
s 183 ...................................................... 504
s 185 ........................................................ 63
s 185(a) ................................................. 100
s 186 ........ 44, 111, 216, 238, 242, 244, 524
s 186(1) .................................... 43, 236, 278
s 186(1)(a) ..................................... 237, 254
s 186(1)(b) ....................... 77, 240, 241, 242
s 186(1)(c) ............................................. 243
s 186(1)(d) ............................................. 244
s 186(1)(e) ..................... 244, 245, 248, 257
s 186(1)(f) ...................................... 247, 391
s 186(2) ........................... 44, 198, 199, 200,
201, 203, 488, 530
s 186(2)(a) .................... 199, 204, 205, 206,
209, 211, 212, 213
s 186(2)(b) ..................... 199, 215, 219, 220
s 186(2)(c) ............................. 199, 221, 244
s 186(2)(d) ............................. 199, 223, 230
Table of statutes
Page
Labour Relations Act 66 of 1995
– continued
s 187 ........... 43, 44, 72, 124, 236, 258, 271,
272, 273, 274, 279, 289, 290, 291
s 187(1) .......................................... 111, 255
s 187(1)(a) ..................................... 276, 470
s 187(1)(b) ............................................. 277
s 187(1)(c) ............................. 104, 278, 279
s 187(1)(d) ..................................... 275, 279
s 187(1)(d)(i) ......................................... 281
s 187(1)(d)(ii)......................................... 281
s 187(1)(e) ............................. 124, 282, 283
s 187(1)(f) ...................... 124, 153, 273, 284
s 187(1)(g) ..................................... 289, 390
s 187(1)(h) ............................................. 223
s 187(2) .......................................... 285, 288
s 187(2)(a) ............................................. 286
s 187(2)(b) ..................................... 286, 288
s 188 ............................... 43, 100, 250, 258,
295, 339, 341, 455
s 188(1) .......................................... 236, 318
s 188A ............................................ 490, 491
s 188A(1) ............................................... 490
s 188A(5) ............................................... 490
s 188A(7) ............................................... 491
s 188A(8) ............................................... 491
s 188A(11) ............................................. 231
s 189 ............... 44, 277, 290, 339, 342, 347,
348, 349, 350, 352, 358, 386, 443
s 189(1) .......................................... 351, 352
s 189(1)(c) ............................................. 352
s 189(3) ......................... 348, 349, 350, 353,
354, 355, 357, 361
s 189(5) .................................................. 353
s 189(6) .................................................. 353
s 189A ............. 44, 339, 342, 347, 348, 349,
350, 354, 355, 356, 357, 358, 459
s 189A(2) ............................................... 355
s 189A(7) ............................................... 357
s 189A(8) ............................................... 357
s 189A(8)(b)(i)....................................... 355
s 189A(8)(b)(ii) ...................................... 459
s 189A(13) ..................................... 267, 357
s 189A(19) ............................................. 341
s 190(1) .......................................... 257, 260
s 190(2)(a) ............................................. 257
s 190(2)(b) ............................................. 257
s 190(2)(c) ............................................. 257
s 190(2)(d) ............................................. 256
s 191 .............. 203, 257, 458, 482, 483, 492
s 191(1)(a)(i) ......................................... 230
s 191(1)(a)(ii)......................................... 230
s 191(1)(b)(i) ......................................... 486
597
Page
Labour Relations Act 66 of 1995
– continued
s 191(1)(b)(ii)................................. 230, 487
s 191(2) .................................................. 487
s 191(2A) ............................................... 257
s 191(3) .................................................. 487
s 191(5)(a)(i) ................................. 483, 488
s 191(5)(a)(ii)......................................... 488
s 191(5)(a)(iii) ........................................ 488
s 191(5)(a)(iv) ............................... 230, 488
s 191(5)(b) ............................................. 413
s 191(5)(b)(i) ......................................... 483
s 191(5A) ....................................... 257, 491
s 191(5A)(a) .......................................... 491
s 191(5A)(b) .................................. 231, 491
s 191(12) ................................................ 257
s 191(13) ................................................ 496
s 191(13)(a) ........................................... 231
s 192 ...................................................... 258
s 192(1) .......................................... 236, 271
s 192(2) .......................................... 247, 272
s 193 ...................................................... 262
s 193(1) .......................................... 260, 262
s 193(2) .................................................. 261
s 193(3) .................................................. 261
s 193(4) .................................................. 230
s 194 .............................. 101, 263, 265, 356
s 194(4) .......................................... 230, 262
s 196 ...................................................... 492
s 197 ........... 44, 45, 73, 247, 248, 287, 289,
290, 366, 367, 368, 369, 370, 371,
372, 373, 374, 376, 377, 378, 379,
380, 381, 382, 383, 384, 385,
386, 387, 388, 389, 390, 391, 435
s 197(1) .................................................. 389
s 197(1)(a) ..................................... 370, 371
s 197(1)(b) ............................. 369, 380, 381
s 197(2) .................. 368, 386, 387, 389, 391
s 197(2)(c) ............................................. 386
s 197(2)(d) ............................................. 344
s 197(3) .......................................... 361, 387
s 197(6)(b) ............................................. 389
s 197(7) .................................................. 388
s 197(7)(a) ............................................. 388
s 197A ........................... 247, 253, 289, 290,
366, 389, 390, 435
s 197A(1) ............................................... 389
s 197A(2)(a) .......................................... 289
s 198 ........................................................ 71
s 198(3) .................................................... 72
s 198(4) .............................................. 72, 92
s 198(4B)(a) ............................................. 74
s 198(4D) ................................................. 74
598
Page
Labour Relations Act 66 of 1995
– continued
s 198(4F) .................................................. 76
s 198(5) .................................................... 78
s 198A ................................................ 70, 72
s 198A(1) ................................................. 72
s 198A(3)(a) ............................................ 72
s 198A(3)(b) ............................................ 74
s 198A(3)(b)(i)......................................... 73
s 198B ........................................ 70, 72, 250
s 198B(1) .......................................... 77, 250
s 198B(2) .................................................. 78
s 198B(3) ............................................ 77, 78
s 198B(4) .................................................. 78
s 198B(5) ............................................ 77, 78
s 198B(6) .................................................. 79
s 198B(8) .................................................. 79
s 198B(9) .................................................. 79
s 198B(10) ................................................ 79
s 198B(10)(a)......................................... 113
s 198C................................................ 70, 72
s 198C(1)(a) ............................................ 80
s 198C(1)(b)(i) ........................................ 80
s 198C(1)(b)(ii)........................................ 80
s 198C(2) ................................................. 80
s 198C(3)(a) ............................................ 80
s 198C(3)(b) ............................................ 80
s 198C(5) ................................................. 80
s 198C(6) ................................................. 80
s 198D ................................................ 70, 72
s 198D(2) ........................................... 73, 79
s 199 ...................................................... 435
s 199(2) .................................................. 105
s 200A ................................................ 61, 65
s 200A(2) ................................................. 62
s 200A(4) ................................................. 62
s 200B ...................................................... 85
s 213 ......... 63, 82, 211, 237, 239, 266, 330,
339, 349, 405, 421, 424, 430,
432, 451, 453, 455, 456, 459,
460, 468, 477, 480, 481, 487, 493
Sch 1, item 3 ......................................... 431
Sch 2...................................................... 441
Sch 7, item 2(1)(a) ............... 123, 139, 147
Sch 7, item 2(2)(b) ....................... 181, 182
Sch 7, item 15 ....................................... 431
Sch 8................................................ 44, 316
Labour Relations Amendment Act
6 of 2014 ....... 202, 237, 238, 407, 456, 460
LRA see Labour Relations Act 66 of 1995
LRAA see Labour Relations Amendment
Act 6 of 2014
Law@work
Page
M
Medical Schemes Act
131 of 1998 ........................................... 532
s 29(1)(o) ............................................... 532
s 29A ...................................................... 533
s 29A(6) ................................................. 533
Merchant Shipping
Act 57 of 1951 ...................................... 107
MHSA see Mine Health and Safety
Act 29 of 1996
Mine Health and Safety Act
29 of 1996 ............................................. 515
s 2(1) ...................................................... 516
Mineral and Petroleum Resources Devel-
opment Act 28 of 2002
s 52 ........................................................ 358
N
National Economic, Development and
Labour Council Act 35 of 1994 ............ 16
s 5(1)(c) ................................................... 16
National Minimum Wage Act
9 of 2018 ............................. 4, 62, 106, 514
s 1 .................................................... 62, 485
s 3 .......................................................... 106
s 4 .......................................................... 107
National Qualifications Framework
Act 67 of 2008 ...................................... 540
s 4 .......................................................... 540
NMWA see National Minimum Wage Act
9 of 2018
O
Occupational Diseases in Mines and
Works Act 78 of 1973 ..................... 98, 515
Occupational Health and Safety
Act 85 of 1993 ...... 62, 65, 68, 69, 496, 515
s 1 ............................................................ 69
s 8(1) ...................................................... 534
s 35(3) .................................................... 496
s 38(1) .................................................... 516
s 38(2) .................................................... 516
ODMWA see Occupational Diseases in
Mines and Works Act 78 of 1973
OHSA see Occupational Health and
Safety Act 85 of 1993
P
PDA see Protected Disclosures Act 26 of
2000
Table of statutes
Page
Pension Funds Act 24 of 1956 ................ 528
s 13 ........................................................ 530
s 14 ........................................................ 529
s 14(1)(c) ............................................... 388
s 14A ...................................................... 529
s 37D(1)(b)(ii) ........................................ 530
Pension Funds Second Amendment
Act 39 of 2001 ...................................... 516
PEPUDA see Promotion of Equality and
Prevention of Unfair Discrimination
Act 4 of 2000
PHA see Protection from Harassment
Act 17 of 2011
Private Security Industry Regulation
Act 56 of 2001 ........................................ 81
s 23(1) ...................................................... 81
Promotion of Administrative Justice
Act 3 of 2000 ....................... 194, 256, 380,
493, 498, 499
preamble.............................................. 498
Promotion of Equality and Prevention
of Unfair Discrimination Act
4 of 2000 ....... 123, 126, 138, 141, 165, 225
s 1 .......................................................... 126
Protected Disclosures Act
26 of 2000 ...... 44, 199, 222, 226, 227, 228,
229, 230, 231, 290, 292, 496
preamble.............................................. 223
s 1 .......................................................... 291
s 1(i) ....................................................... 224
s 1(iv) ..................................................... 225
s 1(vi) ..................................................... 224
s 1(ix)(a) ................................................ 225
s 1(ix)(b) ................................................ 225
s 1(ix)(c) ................................................ 225
s 1(ix)(d) ................................................ 225
s 1(ix)(e) ................................................ 227
s 2(3)(a) ................................................. 223
s 2(3)(b) ................................................. 223
s 3 .................................................. 223, 230
s 4(1) ...................................................... 231
s 4(2) ...................................................... 291
s 4(2)(b) ......................................... 231, 232
s 4(3) ...................................................... 231
s 4(4) ...................................................... 231
s 5 .......................................................... 225
s 6 .......................................................... 225
s 7 .................................................. 225, 226
s 8 .................................................. 225, 226
s 8(1) ...................................................... 226
s 8(2) ...................................................... 226
s 9 .......................................... 225, 227, 229
s 9(1) ...................................... 227, 228, 229
599
Page
Protected Disclosures Act 26 of 2000
– continued
s 9(1)(b) ................................................. 227
s 9(1)(b)(i) ............................................. 228
s 9(1)(b)(ii)............................................. 228
s 9(2) .............................................. 228, 229
s 9(3) .............................................. 228, 229
Protection from Harassment Act
17 of 2011 ............................................. 126
Public Finance Management Act
1 of 1999 ............................................... 540
Public Holidays Act 36 of 1994
s 2(2) ...................................................... 108
Public Service Act, Proclamation
103 of 1994 ................................... 189, 431
s 7(2) ...................................................... 430
s 11(2)(b) ............................................... 189
s 17(3) .................................................... 255
s 17(3)(a) ....................................... 255, 256
s 17(3)(a)(ii)........................................... 255
s 17(3)(b)(ii)........................................... 256
R
Regulation of Gatherings Act
205 of 1993 ..................................... 47, 474
s 11 .................................................... 47, 48
Road Accident Fund Act 56 of 1996..... 515
Road Accident Fund Amendment
Act 19 of 2005 ...................................... 515
S
SDA see Skills Development Act
97 of 1998
SDLA see Skills Development Levies
Act 9 of 1999
Sexual Offences Act 23 of 1957 .............. 83
Skills Development Act
97 of 1998 .......... 15, 62, 63, 65, 68, 75, 83,
209, 507, 522, 538, 540
s 1 .......................................................... 539
s 2(1)(a) ................................................. 537
s 2(1)(b) ................................................. 537
s 2(1)(c) ................................................. 537
s 2(1)(c)(i) ............................................. 537
s 2(1)(c)(ii) ............................................. 537
s 2(1)(c)(iii) ............................................ 537
s 2(1)(c)(iv) ........................................... 537
s 2(1)(d) ................................................. 537
s 2(1)(e) ................................................. 537
s 2(1)(f) .................................................. 537
s 2(1)(g) ................................................. 536
s 2(2) ...................................................... 539
600
Page
Skills Development Act
97 of 1998 – continued
s 3 .......................................................... 537
s 4 .......................................................... 539
s 5 .......................................................... 539
s 5(2) ...................................................... 541
s 9 .......................................................... 539
s 10 ........................................................ 539
s 11 ........................................................ 539
s 12 ........................................................ 539
s 13 ........................................................ 539
s 14 ........................................................ 539
s 15 ........................................................ 539
s 16 ........................................................ 539
s 17 ................................................ 106, 539
s 18 ........................................................ 539
s 19 ................................................ 489, 539
ss 22–26E ............................................... 540
s 22 ........................................................ 540
s 26G ..................................................... 540
s 27 ........................................................ 539
s 28 ........................................................ 539
s 31(1) .................................................... 541
s 31(2) .................................................... 541
Skills Development Levies
Act 9 of 1999 .......... 15, 507, 536, 537, 538
s 2 .......................................................... 540
s 6 .......................................................... 540
s 8 .......................................................... 540
s 11 ........................................................ 542
s 12 ........................................................ 542
s 14 ........................................................ 542
ss 15–19 ................................................. 542
s 17 ........................................................ 107
Social Assistance Act
13 of 2004 ............................................. 514
s 10 ........................................................ 528
South African Schools Act
84 of 1996.............................................. 113
Superior Courts Act 10 of 2013 .............. 503
U Act 4 of 2002 ........................................ 523
UIA see Unemployment Insurance Act
63 of 2001
UICA see Unemployment Insurance
Contributions Act 4 of 2002
Unemployment Insurance Act
63 of 2001 .......................... 16, 62, 65, 111,
488, 496, 522, 536
Law@work
Page
Unemployment Insurance Act
63 of 2001– continued
s 1 .................................................... 68, 527
s 3(1) ...................................................... 523
s 3(1)(d) ................................................. 543
s 3(2) ...................................................... 523
s 5(d) ..................................................... 522
s 12(1) .................................................... 526
s 12(1A) ................................................. 524
s 12(1B) .................................................. 524
s 12(3) .................................................... 524
s 12(3)(b) ............................................... 526
s 12(3)(c) ............................................... 526
s 13(3)(a) ............................................... 525
s 13(5)(a) ............................................... 525
s 13(5)(b) ............................................... 525
s 13(6) .................................................... 525
s 14 ................................................ 523, 526
s 16(1)(a) ............................................... 524
s 16(1)(a)(i) ........................................... 543
s 16(1)(c) ............................................... 522
s 16(3) .................................................... 524
s 20(1) .................................................... 524
s 20(2) .................................................... 524
s 24(4) .................................................... 525
s 24(5) .................................................... 525
s 24(6) .................................................... 525
s 25(1) ............................................ 523, 525
s 27(1) .................................................... 527
s 30(1) .................................................... 527
s 30(2) .................................................... 527
s 30(2A) ................................................. 527
s 30(3) .................................................... 527
s 36(1) .................................................... 523
s 37(2) .................................................... 489
s 61(1) .................................................... 496
s 65 ........................................................ 527
Sch 2.............................................. 525, 526
Unemployment Insurance Amendment
Act 10 of 2016 ...................................... 525
Unemployment Insurance Contributions
s 5(2) ...................................................... 523
s 6(2) ...................................................... 523
W
Workmen’s Compensation Act
30 of 1941 ............................................. 515
Index
Page
A affirmative action – continued
absence from work
conduct justifying dismissal ........ 296–297
cultural reasons ......... 110, 296n, 334–335
desertion distinguished ..... 296n, 299–300
imprisonment ....................................... 334
intermittent absence .......................... 322
medical incapacity .................... 319–324
public servant .............................. 255–256
sick leave ..................................... 109–110
abusive language .......................... 297–298
access to workplace.............................. 410
accident arising out of
employment ....................................517n
acting allowance ................................... 215
actio injuriarum ......................................... 99
adoption benefits ........................... 526–527
advisory arbitration......................... 464–465
advisory arbitration panel ..................... 465
affirmative action
see also employment equity plan
absolute barrier ........................... 165, 170
affirmative action measures ...... 164–166
assessment of compliance ........ 187–191
balance between efficiency
and representativeness ........ 143–146
Black people................................ 175, 176
bypassing equality legislation
and relying on Constitution .......... 171
cause of action based on
equality right .......................... 172–174
Chinese people ................................... 176
Citizenship ............................................ 176
Coloured people ........ 177, 178, 188–189
601
Page
defence to unfair
discrimination ................. 125, 141–146
degrees of
disadvantage ................ 177–178, 189
designated employers........................ 174
designated groups ...................... 175–176
determining employee’s status ......... 176
disabled people .................................. 175
dismissal based on operational
requirements .................................. 347
duties of designated employers ........ 179
Indian people .............. 169–170, 175, 177
Labour Court powers and
jurisdiction ....................................... 192
national and regionally
economically active
population .... 169n, 170–171, 187–191
numerical goals
not quotas .............. 164, 169, 189–190
order for compliance by
non-designated employer ........... 174
origin and purpose ...................... 163–164
personal disadvantage versus
group membership ................ 176–177
police ........................... 144–146, 169–172,
177–178, 181n
poor people ...................................... 166n
public service.................................... 165n
race versus class ............................... 166n
reasonable accommodation ............ 164
slow pace of transformation ........... 165n
state contracts ............................ 192–193
suitably qualified people............ 173, 178
targets already met ............................ 144
602
Page
affirmative action – continued
test for validity of
measures ................ 142–143, 166–172
women ................................................. 175
age discrimination ................. 130, 135, 251,
287–288
agency shop agreement ........ 52, 400–403
alcohol abuse and
alcoholism .......................... 298, 322–323
annual leave ........................................... 109
anti-retroviral drugs...............................285n
anti-Semitism .........................................297n
appeal
from Labour Appeal Court......... 504–505
from Labour Court ............................... 504
to Labour Court ................................... 496
appearance-based
discrimination ............................ 135–136
arbitration
advisory award ............................ 464–465
arbitrable disputes ..... 458–459, 481–483,
488–489
bargaining council constitution
dispute ............................................ 428
benefits dispute ........................... 212, 213
binding agreement, effect on
right to strike ................................... 458
choice of arbitrator ............................. 489
collective agreement dispute ... 438–439
conduct of proceedings ............ 489–490
costs ...................................................... 490
disclosure of information dispute411–412
failure of conciliation .......................... 489
fair administrative action ................... 498
Form 7.13 .............................................. 489
legal representation ................... 492–494
organisational rights dispute ...... 413–414
pre-dismissal arbitration .............. 490–491
proceedings in terms of LRA,
viewed as ....................................... 279
reasons for award ............................... 490
refusal to bargain dispute .......... 418, 419
review of award .......................... 496–500
severance pay dispute .............. 360–361
suspension dispute .............................. 216
unfair discrimination
dispute ............................ 158–159, 191
unfair dismissal dispute ............... 257–258
unfair labour practice dispute ........... 230
workplace forum dispute ........... 444, 445
assault .............................. 298–299, 302–303
audi alteram partem rule ...................... 314
Law@work
Page
automatically unfair dismissal
causation ..................................... 273–274
closed shop or
agency shop dispute .................... 403
compensation ..................................... 271
exercising right or taking
proceedings under LRA ........ 279–281
‘main reason’ for dismissal ................. 271
onus of proof................................ 271–273
pregnancy ......................... 124n, 282–284
protected disclosure ................... 290–292
refusal to accept demand re
matter of mutual interest ...... 278–279
refusal to do work normally
done by strikers ...................... 277–278
remedies............................................... 271
shop steward ............... 275–276, 316–317
strike or protest action 276–277, 470–471
trade union activities .................. 274–276
transfer of business as going
concern .......................... 287–288, 390
unfair discrimination ................. 124n, 284
B
ballot for strike or lock-out ............. 425–426
bargaining council ................... 17, 426–427
accreditation ....................................... 492
collective agreement ......... 429, 435–438
constitution .......................................... 428
criticism of centralised
bargaining .............................. 426–427
dispute resolution
function........................... 429–430, 492
establishment....................................... 427
excluded disputes ............................ 491n
minority trade union ......................... 428n
objections to registration ............ 427–428
parties ................................................... 427
powers and functions ......................... 429
public service............................... 430–431
registration ................................... 427–428
regulatory function ............................. 429
sector and area .................................. 428
unfair dismissal dispute .................... 429n
unfair labour practice
dispute .................................... 230–231
Barnard principle ............ 171, 188–189, 206
Basic Conditions of Employment
Act 75 of 1997
excluded persons ................................ 107
overview ................................. 15, 105–107
BCEA see Basic Conditions of
Employment Act 75 of 1997
Index
Page
beard ..................................... 140–141, 286n
belief
unfair discrimination ............................ 135
benefits
unfair labour practice................. 210–215
Bill of Rights ................................................ 39
see also labour relations rights
development of common law ............ 41
horizontal application........................... 41
interpretation ............................. 32–34, 40
limitation of rights ...................... 41, 52–53
bipolar disorder ..................... 152–153, 274n
birth
unfair discrimination ............................ 135
Black Labour Relations Regulation
Act 48 of 1953...................................... 13
Black woman ........................................175n
Botha Commission ..........................13, 498n
breach of contract
common-law versus statutory
remedies ................................. 100–103
material breach .................................. 100
breathalyser testing ..............................298n
bullying ..................................................... 126
bumping .......................................... 345–346
C employer’s insolvency, effect of .... 435n
cancellation of contract ....................... 101
capability approach to labour law .......... 7
capacity see incapacity
casual worker ............................................ 81
CCMA see Commission for Conciliation,
Mediation and Arbitration
certificate of service .............................. 113
Charter of Fundamental
Social Rights ................................... 34–35
check-off facilities .................................. 410
child employment .......................... 113–114
Chinese person ....................................... 176
citizenship
affirmative action ................................ 176
unfair discrimination ............................ 136
clinical depression ................................324n
closed shop
agreement............. 51–52, 400–403, 425
codes of good practice
disabled people ........................289n, 321
603
Page
codes of good practice – continued
dismissal ............. 207–209, 300n, 304–305,
307, 310–311, 313–314,
316–317, 318, 319, 321, 322–324,
325–327, 327–328, 329–330
dismissal based on operational
requirements .......... 340, 353, 360, 362
equal pay for work of equal
value ............................... 148, 150–151
HIV/AIDS ............................... 155, 534–535
ILO codes ............................................... 26
picketing ...................................... 472–475
sexual harassment ............... 127–130, 304
state contracts .................................... 193
unfair dismissal ............................. 295–296
Who is an Employee? ............... 62, 66–68
collective agreement
definition....................................... 105, 432
bargaining council agreement
binding effect........................... 435–436
extension to non-parties ......... 436–438
regulatory function of
bargaining councils ................... 429
binding effect
bargaining council
agreement .......................... 435–436
employers and employees
bound by agreements ...... 432–435
dispute resolution ........................ 438–439
extension to non-parties ............. 434–435
bargaining council
agreement .......................... 436–438
statutory council agreement ......... 432
matter of mutual interest .................... 432
more favourable terms
than BCEA ...................................... 106
organisational rights .................... 410–414
parties ................................................... 432
signature............................................... 432
subject matter ..................................... 432
termination ........................................... 435
variation of employment
contract .......................... 103–105, 435
collective bargaining see also bargaining
council; collective agreement; work-
place forum
definition............................................... 417
Charter of Fundamental Social
Rights ........................................... 34–35
constitutional right ................... 7, 419–420
ILO Convention........................ 26, 51, 420
LRA purpose ................................. 417–418
604
Page
collective bargaining – continued
no duty to bargain .... 34, 48–49, 418–420
parties see employers’ organisation;
trade union
right to engage in ........................... 47–51
social justice perspective ............... 10–12
statutory councils ........................ 431–432
UN Global Compact............................. 36
voluntary system .......................... 417–419
wages ............................................... 96–97
Coloured person ............. 177, 178, 188–189
Commission for Conciliation, Mediation
and Arbitration
arbitration process see arbitration
collective agreement dispute ... 438–439
con-arb......................................... 231, 491
conciliation process .................... 486–488
disclosure of information dispute ...... 412
fair administrative action ........... 498–500
Form 7.11 .............................................. 491
functions ................................. 17, 485–486
organisational rights dispute ...... 413–414
overview ................................................. 17
severance pay dispute ...................... 361
time limits for referrals to ............. 486–487
unfair discrimination dispute ...... 158–159
unfair dismissal dispute ............... 257–258
unfair labour practice
dispute .................................... 230–231
workplace forum dispute ................... 445
Commission for Employment Equity ..... 184
Commission for
Gender Equality ........................ 159–160
company see also director of company
corporate social responsibility ....... 12, 36
employee operating through,
for tax reasons ............................ 84–85
piercing corporate veil ......................... 84
UN Global Compact............................. 36
comparable full-time employee ............ 80
compensation
automatically unfair dismissal ............ 271
occupational injury or disease
see compensation for occupational
injuries and diseases
strike damage ............................. 471–472
unfair dismissal ............................. 263–266
compensation for occupational injuries
and diseases
accident arising out of
employment.................................517n
building industry ................................517n
Law@work
Page
compensation for occupational injuries
and diseases – continued
calculation of
compensation........................ 520–521
common law ....................................... 516
dependants of deceased
employee ....................................... 521
employee: definition ..................... 69, 520
employer: definition ......................... 517n
forfeiture where serious and
wilful misconduct ................... 520–521
migrant worker .................................... 543
mining industry .......................... 517n, 520
negligence of employer ............ 518–519
no civil action against
employer ........................ 517, 519–520
no-fault basis ...................... 516n, 517–519
occupational injury: definition ........ 518n
permanent disablement .................... 521
post-traumatic stress disorder ......... 518n
rape ................................................... 518n
scheduled or non-scheduled
disease ......................................... 519n
statutory scheme............. 97–98, 516–521
temporary disablement...................... 521
temporary employment services ........ 75
competence ....................................... 90–91
competitiveness.......... 9, 235, 426, 537, 541
compliance order ......... 116, 185, 186–187,
488–489, 495
Comsec ................................................... 124
con-arb ............................................ 231, 491
conciliation ...................................... 486–488
conditions of employment ................ 89–90
annual leave........................................ 109
basic conditions as terms of
contract .......................................... 107
children......................................... 113–114
contractual conditions
see contract of employment
enforcement and dispute
resolution ................ 115–116, 484–485
family responsibility leave ................... 111
forced labour ....................................... 114
maternity leave ........................... 110–111
non-variable conditions ..................... 115
payment of remuneration.......... 111–112
prohibited practices ........................... 112
sectoral determinations...................... 114
sick leave...................................... 109–110
sources.............................................. 89–90
statutory conditions..................... 105–107
Index
Page
conditions of employment – continued
termination of employment ....... 112–113
transfer of business ...... 247–248, 386–387
unilateral change ....................... 466–467
variation of basic conditions ............. 115
working time ................................ 107–109
written particulars of employment .... 111
conduct justifying dismissal
absenteeism ................................ 296–297
abusive language ....................... 297–298
alcohol and drug abuse .................... 298
assault ........................................... 298–299
changing lesser sanction to
dismissal ........................................316n
collective misconduct ................ 308–309
conflict of interest................................ 299
continued employment
intolerable .............................. 295–296
criminal conduct outside
workplace .............................. 302–303
damage to property........................... 299
derivative misconduct................ 305–306
desertion ...................................... 299–300
disciplinary enquiry or
investigation ................................... 313
dishonesty .................................... 300–301
dispensing with enquiry .............. 317–318
fair reason for dismissal ............... 295–296
first offence .......................................... 296
inquiry by arbitrator ..................... 490–491
insubordination .................................... 301
intimidation .................................. 301–302
negligence........................................... 302
off-duty conduct ......................... 302–303
onus of proof................................ 258–260
procedural fairness of
dismissal .................................. 313–315
re-opening disciplinary
enquiry .................................... 315–316
sexual harassment............................... 304
shop steward ............................... 316–317
substantive fairness of dismissal
appropriateness of
dismissal ............................... 310–312
awareness of rule ............................. 307
code of good practice........... 304–305
commissioner’s approach ...... 310–312
consistent application
of rule ................................... 307–310
contravention of rule of
conduct .............................. 305–306
validity or reasonableness
of rule ................................... 306–307
605
Page
conduct justifying dismissal – continued
time-related offence .................. 296–297
unprotected strike ....................... 314–315
confidential information ................ 412–413
conflicts of interest...................... 93, 94, 299
conscience
unfair discrimination ................. 135, 285n
Constitution, 1996 ..................................... 39
see also Bill of Rights;
interim Constitution
application of international law .... 32–34
development of common law ............ 41
Constitutional Court, jurisdiction of ....... 506
constitutional framework ................... 39–41
collective bargaining, right to
engage in ................................... 47–51
fair labour practices, right to ......... 42–45
jurisdictional issues ........................... 54–55
insulation clause .................................... 39
interpretation of legislation giving
effect to constitutional rights ......... 83
limitation of rights ............................ 52–53
trade unions and employers’
organisations
right to form, join and participate
in the activities of ......................... 46
rights of .......................................... 46–47
constitutional rights see also Bill of Rights;
equality; labour relations rights
dignity ....................................... 98–99, 511
fair administrative action............ 498–500
social security ...................................... 511
constructive dismissal ..................... 244–247
requirements ........................................ 247
contract of employment
see also employee obligations;
employer obligations
breach, common-law versus
statutory remedies ................. 100–103
enforcement of conditions of
employment................................... 116
more favourable terms than BCEA ... 106
restraint clause ................................ 94–96
source of rights and obligations .... 89–90
termination ..................... 99–100, 112–113
transfer of business see transfer of
business as going concern
unlawful contracts .......................... 81–83
variation of terms ................ 103–105, 435
written particulars of employment .... 111
corporate governance and
social responsibility ........................ 12, 36
606
Page
corporatist labour market ........................ 16
criminal conduct outside
workplace .................................. 302–303
cultural belief
absence from
work ....................... 110, 296n, 334–335
unfair discrimination ............................ 135
CV
false claims................................... 300–301
D
daily rest period .............................. 107, 108
damage to property .............................. 299
damages
breach of contract ..................... 100–101
death
termination of employment ....... 100, 254
decent work ...................... 31, 509, 511, 514
Declaration of Philadelphia .... 26, 395, 509
deductions from remuneration
allowable deductions ......................... 112
trade union subscriptions ................... 410
Defence Force member
application of BCEA ................... 106, 107
employee, akin to ................................. 50
exclusion from LRA ................................ 50
exclusion from unfair discrimination
provisions ........................................ 124
trade union
membership .......... 33, 50, 396n, 400n
worker, as ............................................... 46
demotion
unfair labour practice................. 206–207
Department of Employment
and Labour .......................................... 16
dependant’s benefits ............................ 527
deregulation of labour market ........... 9–10
derivative misconduct ................... 305–306
desertion ................................ 296n, 299–300
diabetes........................................... 120, 140
dignity .......................................... 98–99, 511
Director-General
application for compliance
order........................................ 186–187
report to ....................................... 182–183
review powers ..................................... 186
director of company
employees petitioning for
removal................................... 280–281
termination of directorship ......... 249–250
Law@work
Page
disabled person
affirmative action ................................ 175
code of good practice ........... 289n, 321
dismissal for incapacity............... 288, 318
reasonable
accommodation ........... 320–321, 322
unfair discrimination ............................ 134
discipline
consistency .................................. 307–310
criminal conduct outside
workplace .............................. 302–303
dismissal for misconduct see conduct
justifying dismissal
dispensing with enquiry .............. 317–318
enquiry or investigation ...................... 313
first offence .................................. 295–296
procedural fairness ..................... 313–315
progressive discipline .......................... 296
re-opening enquiry ..................... 315–316
discrimination see affirmative action;
unfair discrimination
disguised employment................. 61, 83–85
dishonesty ........................................ 300–301
dismissal see also dismissal based on
operational requirements incapacity;
unfair dismissal
definition....................................... 237–248
client or customer requesting ............ 333
code of good practice .............. 207–209
constructive dismissal.................. 244–247
date .................................... 256–257, 260n
misconduct see conduct justifying
dismissal
operational reasons see dismissal
based on operational requirements
pre-dismissal arbitration .............. 490–491
strikers
based on operational
requirements ....................... 276–277
protected strike ........ 276–277, 470–471
unprotected strike ... 314–315, 469–470
dismissal based on operational
requirements
affirmative action ................................ 347
bumping ....................................... 345–346
competitiveness and profitability ...... 343
consultation process
decision to dismiss may not be final
prior to consultation ........... 349–350
disclosure of information ......... 353–354
identifying appropriate
consulting party.................. 351–352
large-scale retrenchments ..... 354–358
Index
Page
dismissal based on operational
requirements – continued
meaningful joint consensus-seeking
process ................................ 352–353
non-unionised employees .............. 352
notice of invitation ................... 349–350
determining appropriate
legal regime ........................... 348–349
disclosure of information ............ 353–354
dispute resolution ........................ 482–483
employee becoming
independent contractor .............. 343
facilitation .................................... 356, 357
fair reasons for dismissal .............. 341–343
fixed-term contract ..................... 343–344
flexible working hours, conversion to 342
large-scale retrenchments
notice of termination of
employment ....... 356–357, 358, 359
procedure................................. 354–358
when appropriate ........... 339, 348–349
last in, first out............................... 344–345
no fault dismissal .................................. 339
notice of contemplation of
dismissal .................................. 349–350
operational requirements:
definition ................................. 339–340
preferential rehiring ..................... 361–362
procedural fairness
consultation see consultation process
determining appropriate
regime ................................. 348–349
large-scale
retrenchments ............ 267, 357–358
reapplication for employment
where all positions redundant...... 347
redundancy and retrenchment
distinguished .................................. 340
refusal to accept offer of
alternative employment ....... 360–361
residual obligation to act fairly .. 347–348
selection criteria .......................... 344–347
severance pay .................... 113, 358–361
small-scale retrenchments ......... 339, 348
strike and
lock-out ........... 276–277, 356, 470–471
substantive fairness ..................... 341–343
dispute resolution............................ 479–480
see also Labour Court
appropriate method .................. 480–483
arbitration..................................... 488–491
bargaining council...................... 491–492
607
Page
dispute resolution – continued
CCMA see Commission for Concili-
ation, Mediation and Arbitration
classification of disputes
arbitrable disputes .................. 458–459,
480–482, 488–489
disputes of right and
interest ................ 201–203, 455–456,
480–481, 482
exercise of economic power ......... 482
justiciable disputes ... 458–459, 480–482
collective agreement
dispute .................................... 438–439
compliance order ...................... 116, 185,
186–187, 488–489, 495
con-arb......................................... 231, 491
conciliation .................................. 486–488
conditions of employment
dispute .................................... 484–485
dispute: definition ................................ 480
dismissal based on operational
requirements dispute .................... 486
essential services ......................... 461–462
labour inspectors ......................... 483–485
matter of mutual interest ............ 480–483
organisational dispute ................ 413–414
probation dispute................................ 231
protected closure dispute.................. 231
severance pay dispute ...................... 361
unfair dismissal dispute ................ 257–258
unfair labour practice dispute ... 230–232
workplace forum dispute ................... 445
domestic worker
minimum wage ............................... 96–97
organisational rights, limits on
exercise of ...................................... 410
unemployment insurance .................. 523
double jeopardy ..................... 303, 315–316
dreadlocks............................................... 286
dress code ............................. 140–141, 286n
driver’s licence ............................. 141n, 331
drug abuse and addiction .... 298, 322–323
drunkenness .................................... 298, 306
duty to bargain ............. 34, 48–49, 418–420
E
e-lancer ................................................. 5, 59
EEA see Employment Equity Act 55 of
1998
EEP see employment equity plan
Ekurhuleni Declaration ............................. 17
608
Page
election official ......................................... 77
employee .................................................. 59
common law ............................. 60–61, 64
factors to be
considered ........................... 64, 66–68
ILO Recommendation .................... 61–62
independent contractor
distinguished ........................ 60–61, 64
labour legislation ............................. 62–65
NEDLAC code............................ 62, 66–68
origin of discourse ........................... 60–61
person operating through company,
etc for tax reasons ..................... 84–85
person recruited but not yet
working ............................................. 64
presumption of employment ......... 65–68
services through front company ......... 65
social security legislation ................ 68–69
tests .................................................64, 67n
employee obligations
good faith ................................ 93–96, 103
reporting for duty and
competence.............................. 90–92
respect and obedience ................. 92–93
employer: definition ........................... 83–85
employer obligations
payment of remuneration ............. 96–97
respect and dignity......................... 98–99
safe working conditions .................. 97–98
employers’ organisation
see also collective bargaining
definition............................................... 421
constitution .................................. 422–423
registration ................... 421–422, 423–424
rights of ............................................. 46–47
employment agency
private see temporary employment
services
public ................................................ 75–77
Employment Conditions Commission
statement as to remuneration and
benefits ................................... 183–184
Employment Equity Act 55 of 1998
see also affirmative action;
employment equity plan
Labour Court powers and
jurisdiction ....................................... 192
monitoring and enforcement .... 184–185
notice to employees concerning
provisions ........................................ 183
overview ................................................. 15
Law@work
Page
Employment Equity Act – continued
prohibition of unfair discrimination
see unfair discrimination
state contracts ............................ 192–193
employment equity plan
analysis of employment policies,
practices and procedures ........... 180
application by Director-General to
Labour Court for compliance
order ........................................ 186–187
appointment of affirmative action
candidate without ................ 181–182
assessment of compliance ........ 187–191
consultation with employees ..... 179–180
contents ....................................... 180–181
copies ................................................... 183
disclosure of information .................... 180
duty to prepare ........................... 180–182
fine for non-compliance ......... 186n, 191
Labour Court powers and
jurisdiction ....................................... 192
labour inspector’s enforcement
powers ............................................ 185
managers’ responsibility for
monitoring and implementing ..... 179
records.................................................. 183
report to Director-General ......... 182–183
review by Director-General ............... 186
employment relationship
see also non-standard employment
identifying employee see employee
identifying employer ....................... 83–85
presumption of employment ......... 65–68
when relationship commences ........... 64
employment services
Act 4 of 2014 ............................ 75–77, 538
application of statutory
provisions ................................ 538–539
financing of free services ................... 541
private services see temporary
employment services
employment tax incentives
Act 26 of 2013 ...................................... 538
allowances available ......................... 541
application of provisions .................... 539
enforcement ................................ 541–542
exclusions ............................................. 539
qualifying employees ......... 538, 539, 541
end of work ............................................. 535
equal pay ........................................ 147–152
Index
Page
equality see also affirmative action;
unfair discrimination
constitutional dimension ............ 121–123
formal and substantive
equality ........................... 122–123, 163
monitoring and enforcement ............ 160
nature and purpose .................... 119–121
essential services
definition....................................... 459–460
designated services ............................ 460
dispute resolution ................................ 461
protest action .............................. 468–469
strike .............................................. 460–461
Essential Services Committee
dispute resolution ................................ 461
powers and functions ................. 460–461
ethnic origin
unfair discrimination ............................ 135
F genuineness of trade union................... 422
fair administrative action ............... 498–500
fair labour practices
see also unfair labour practice
constitutional right........................... 42, 44
fairness .............................................. 42, 45
labour practices: definition ............ 43–44
family responsibility
leave ..................................................... 111
unfair discrimination ............................ 134
farm workers
minimum wage ............................... 96–97
fixed-term contract
definition................................................. 77
automatic termination clause ... 250–251
differential treatment............................ 79
exceeding three months ........ 77–78, 251
exclusions ............................................... 72
protection under LRA ..................... 77–79
refusal to renew, as dismissal ..... 240–243
termination for operational
reasons ............................ 78n, 343–344
forced labour .......................................... 114
foreign national
definition........................................... 76–77
affirmative action ..............................176n
illegal worker .................................... 81–83
restrictions on employment............ 76–77
‘framework’ agreements......................... 11
franchise agreement ............................. 385
free-market model of labour............... 8–10
609
Page
freedom of association .................... 40, 395
automatically unfair dismissal .... 274–276
Charter of Fundamental
Social Rights ............................... 34–35
closed shop and agency shop
agreements ............................ 400–403
Declaration of Philadelphia ......... 26, 395
exceptions to right ...................... 400–403
ILO Committee ...................................... 30
ILO Convention.............................. 26, 395
LRA provisions ...................... 395, 396–400
senior management ................... 275, 398
UN Global Compact............................. 36
Universal Declaration of
Human Rights ................................. 395
freedom of expression ........................ 396n
G
gender discrimination ............................ 133
gig economy............................................... 6
Global Compact ...................................... 36
globalisation ................................ 30–31, 365
go-slow..................................................... 452
going concern ................................ 373–377
good faith .................................... 93–96, 103
gross insubordination........................ 93, 301
H
harassment
definition............................................... 126
dismissible offence .............................. 304
unfair discrimination ............ 125, 126–127
workplace examples .......................... 127
Harksen test ............................. 136–137, 168
High Court,
jurisdiction of ................ 55, 102, 500–504
high-earning employee
exclusion from basic conditions ........ 107
fixed-term contract ............................... 78
part-time........................................... 79–80
presumption of employment,
non-application ......................... 65–68
TES worker ............................................... 74
working hours ....................................... 115
history of labour law
post-1994 .......................................... 14–16
pre-1995............................................ 12–14
HIV/AIDS
code of good practice ...................... 155
610
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HIV/AIDS – continued
medical testing .................... 153–155, 534
occupationally acquired ................... 535
safe working environment.......... 534–535
unfair discrimination ............ 135, 284, 534
hours of work ................................... 107–108
I of job .......................... 139–141, 286–287
illegal worker ....................................... 81–83
illness or injury see also HIV/AIDS;
medical insurance
drug- or alcohol-related ..... 298, 322–323
exhaustion of sick leave or
medical benefits ............................ 323
fair reason for dismissal ............... 318–324
illness benefits ...................................... 516
intermittent absence .......................... 322
investigation and
on-going discussion ....................... 324
lung disease ......................................... 507
medical certificate ..................... 323–324
occupational disease or injury
see occupational health and safety
permanent incapacity ....... 320, 321–322
reasonable
accommodation ........... 320–321, 322
sick leave ..................................... 109–110
supervening impossibility of
performance .................. 254, 321–322
temporary incapacity ........................ 322
ILO see International Labour Organization
imprisonment................................... 254, 334
incapacity
definition............................................... 318
disability ................................................ 318
fair reason for dismissal ............... 318–319
incompatibility ............................. 331–333
inquiry by arbitrator ............................. 482
lack of qualification ............................ 331
medical incapacity .................... 319–324
misconduct distinguished .................. 318
poor work performance ............. 324–331
incompatibility ................................ 331–333
independent contractor
characteristics ................................. 60–61
employee distinguished ........... 60–61, 63
temporary employment
services distinguished ...................... 72
Indian person .................. 169–170, 175, 177
Industrial Conciliation
Act 11 of 1924................................ 12–13
employee: definition ...........................60n
Law@work
Page
Industrial Conciliation Act 36 of 1937 ..... 13
Industrial Conciliation Act 28 of 1956 ..... 13
Industrial Court .................................. 14, 494
informal economy .. 18, 509n, 511, 512–513
information technology ......................... 536
inherent requirements
insolvency of employer
collective agreement, effect on .... 435n
suspension of employment
contracts .................................. 97, 252
transfer of business as
going concern ....... 253, 366, 389–390
voluntary and compulsory
liquidation distinguished ....... 252–253
insourcing ........................................ 382–384
inspector see labour inspector
insubordination ................. 93, 280–281, 301
interim Constitution ................................... 39
International Labour Organization (ILO)
art 24 complaints ................................... 29
art 26 complaints ............................. 29–30
codes of practice ................................. 26
Committee of Experts ..................... 27–29
Committee on Freedom of
Association ....................................... 30
Conference Committee ...................... 29
Conventions ............................... 25, 26–27
Declarations ......................... 10, 26, 31, 35
Employment Relations
Recommendation ..................... 61–62
establishment......................................... 23
fact-finding mission ............................... 24
General Surveys..................................... 29
Global Commission on the
Future of Work .................................. 31
globalisation and ............................ 30–31
Governing Body .............................. 24–25
International Labour Conference ....... 24
International Labour Office .................. 25
priority conventions ............................... 27
ratification of conventions ............. 25, 26
recommendations .......................... 25–26
South African
membership ................... 10, 23–24, 39
standards
core standards ............................. 26–27
forms of ......................................... 25–26
relevance in
South African law ................... 32–35
structure............................................ 24–25
Index
Page
International Labour Organization
(ILO) – continued
supervisory bodies and
mechanisms ............................... 27–30
international labour standards ................ 23
ILO standards see International Labour
Organization
relevance in South African law ..... 32–35
SADC Charter ........................................ 35
UN Global Compact............................. 36
interpretation of labour legislation ......... 83
intimidation...................................... 301–302
intoxication ...................................... 298, 306
J libertarian perspective ..................... 8–10
judicial review
arbitration award ........................ 496–500
jurisdiction
Constitutional Court ................ 54–55, 506
constitutional matters ............. 54–55, 505
High Court .................... 102, 116, 500–504
Labour Appeal Court ........... 55, 504–505
Labour Court......................... 55, 115, 116,
494–496, 500–504
magistrates’ courts.............................. 116
small claims court ................................ 116
L
Labour Appeal Court
appeal from ................................. 504–505
composition ......................................... 504
jurisdiction .................................... 504–505
powers and functions ......................... 504
Labour Court
appeal from ......................................... 504
appeal to ............................................. 497
background ......................................... 494
composition ......................................... 495
conciliation as jurisdictional
precondition .................................. 486
conditions of employment
dispute .................... 115–116, 484–485
employment equity jurisdiction ......... 192
governing principles .........................479n
jurisdiction .................... 495–496, 497–504
justiciable disputes ...... 458–459, 481–484
orders available .......................... 495–496
overlap with High Court
jurisdiction ............................... 500–502
picketing dispute................................. 474
powers and functions ................. 495–496
review of arbitration award ....... 496–500
611
Page
Labour Court – continued
seat ....................................................... 495
status ..................................................... 494
unfair discrimination dispute ...... 158–159
unfair dismissal dispute ....................... 258
unfair labour practice dispute based
on occupational detriment.......... 231
labour inspector
enforcement powers .. 116, 185, 483–485
labour law
constitutional protections....................... 7
as a discipline ...................................... 1–8
‘framework’ agreements ..................... 11
key labour market institutions, 16–17
post-1994 .......................................... 14–16
potential developments ................. 17–20
pre-1995............................................ 12–14
purpose of ........................ 4–5, 7–8, 10–11
social justice perspective ............... 10–12
sources.............................................. 89–90
Labour Relations Act 66 of 1995 4–5, 15, 39
amendments ......................................... 17
development ................................... 14–15
employee: definition ............................. 63
foundations ...................................... 12–13
interpretation in compliance with
international standards ............. 34–35
labour relations rights see also freedom of
association
application beyond employment
relationship ............................. 7, 42–43
collective bargaining ..... 47–51, 419–420
constitutionalisation .............................. 10
direct enforcement bypassing
labour legislation ........................... 203
‘everyone’........................................ 42–43
fair labour practices........................ 42–45
jurisdictional issues ........................... 54–55
limitation of rights ............................ 52–53
organisational rights see right to
organise
social justice perspective ............... 10–12
strike .............................. 28n, 276, 449–450
worker: definition ............................. 46, 62
laissez-faire approach .......................... 8–10
language discrimination ........................ 134
last in, first out .................................. 344–345
leave
accumulated leave pay .................... 215
annual leave........................................ 109
family responsibility leave ................... 111
612
Page
leave – continued
maternity leave ........................... 110–111
sick leave ..................................... 109–110
trade union activities .......................... 411
legal representation
arbitration..................................... 492–493
not permitted at
conciliation............... 487–88, 492–493
libertarian perspective ......................... 8–10
LIFO ................................................... 344–345
limitation of rights ................................ 52–53
lock-out
definition............................................... 475
ballot ............................................. 425–426
collective agreement
prohibiting .............................. 457–458
indemnities ........................................... 476
minority union members ..................... 476
no right to lock out ...................... 450, 475
notice ................................................... 476
offensive or defensive................. 475–476
procedural requirements ................... 476
replacement labour ................... 475–476
secondary lock-out ............................. 475
single employee .................................. 453
substantive limitations ......................... 476
unprotected lock-out,
compensation for loss ................... 476
LRA see Labour Relations Act 66 of 1995
M see also National Minimum Wage Act
magistrates’ courts
employment status of magistrate .....67n
jurisdiction ............................................ 116
maintenance services
definition............................................... 460
protest action .............................. 468–469
strike .............................................. 460–461
majority trade union ............................... 409
marital status
unfair discrimination ............................ 134
maternity leave
entitlement ................................... 110–111
refusal to allow employee to
resume work after .......................... 243
matter of
mutual interest.......... 278–279, 429–430,
432, 449–450, 480–483
meal interval ........................................... 108
medical certificate ................. 110, 323–324
medical incapacity ........................ 319–324
Law@work
Page
medical insurance
HIV/AIDS ....................................... 534–535
ILO Convention.................................... 531
medical scheme ......................... 532–533
private insurance ................................ 532
public health care .............................. 532
waiting period ..................................... 533
medical testing ....................... 152–155, 534
member of parliament
employment status ............ 67n, 223, 291
whistle-blowing ............................ 223, 291
mental health
unfair discrimination ......................... 284n
merchant shipping
exclusion from BCEA ........................... 107
migrant worker ................................ 542–543
compensation for occupational
injuries and diseases ...................... 543
ILO conventions .......................... 82n, 543
UN Convention ................................... 82n
unemployment insurance .................. 543
unfair dismissal ....................................... 82
mines and works
occupational injuries and
diseases .................................. 515–516
minimum age .......................................... 113
minimum services
definition............................................... 460
strike action .......................................... 460
minimum wage ..... 15, 96–97, 106, 107, 514
National Minimum Wage
Commission ...................................... 15
minority trade union ......... 33–34, 409, 428n
misconduct see conduct justifying
dismissal
misrepresentation of
qualifications ............................. 300–301
moonlighting .......................... 68, 299, 305n
motor vehicle accident ...................... 515n
multiple sclerosis...................................... 321
N
National Academy of Intelligence
exclusion from unfair discrimination
provisions ........................................ 124
National Development Plan .................. 542
National Economic Development and
Labour Council
Code of Good Practice:
Who is an Employee?.......... 62, 66–68
Index
Page
National Economic Development and
Labour Council – continued
function .................................................. 16
structure.................................................. 16
National Intelligence Agency
exclusion from unfair discrimination
provisions ........................................ 124
national minimum wage see minimum
wage
National Minimum Wage Act
9 of 2018 ................................. 4, 106–107
worker: definition ................................... 62
National Minimum Wage
Commission ................................. 15, 106
National Qualifications Framework ...... 540
National Skills Authority .......................... 539
National Skills Development
Strategies ........................................... 537
National Skills Fund ................................. 539
nationality
unfair discrimination ............................ 135
NEDLAC see National Economic
Development and Labour Council
negligence
employee, dismissal of........................ 302
employer, compensation for
injury or disease ..................... 518–519
NMWA see National Minimum Wage Act
non-standard employment ..................... 70
fixed-term employee ...................... 77–79
part-time employee........................ 79–80
temporary employment
services ....................................... 70–77
notice of intended strike ................ 462–464
O 169–172, 177–178, 181n
obedience .......................................... 92–93
occupational health and safety
see also compensation for
occupational injuries and diseases
dismissal for incapacity ...................... 323
employee: definition ............................. 69
lung disease ......................................... 515
mines and works .......................... 515, 516
motor vehicle accident ...................515n
safe working
environment ....... 97–98, 515, 534–535
statutory framework .................... 515–516
workplace forum, role of .................... 516
off-duty conduct ............................ 302–303
613
Page
old age benefits ............................. 527–528
organisational rights see right to organise
outsourcing.............................. 370, 377–385
overtime
permitted overtime ..................... 108–109
refusal to work ............................. 451–452
P
parliamentary service
strike ...................................................... 460
part-time employee
definition........................................... 79–80
comparable full-time employee ......... 80
exclusions ............................................... 80
multiple employers ............................. 84n
protection under LRA............................ 80
particulars of employment ...................... 74
pension fund
defined contribution or defined
benefit..................................... 528–529
discrimination ....................................... 530
employer providing..................... 530–531
regulation of private funds ......... 528–529
transfer of business as
going concern ............................... 388
withholding of benefits ....................... 530
permanent casual .................................... 81
personal relationship between
employees ......................................... 299
petty pilfering .......................................... 300
picketing .......................................... 472–475
‘platform economy’ ............................. 6, 59
police
absence from work ..................... 255–256
affirmative action ............... 43n, 144–146,
rape by ............................................. 91–92
strike ...................................................... 460
political opinion
unfair discrimination ............................ 135
political dispute....................................... 482
polygraph test ......................................... 340
poor work performance
dismissal after probation ............ 327–329
fair reason for dismissal ....... 318, 324–325
investigation and
proof........................ 328–329, 329–330
medical condition ............................ 324n
misconduct distinguished................... 324
probationary employee ............. 325–327
614
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poor work performance – continued
procedural requirements ........... 329–331
single occasion.................................... 329
warning......................................... 330–331
‘pop-up economy’ .................................... 6
post-traumatic stress disorder .............518n
pregnancy see also maternity leave
automatically unfair
dismissal ........................ 124n, 282–284
failure to disclose................................. 284
maternity benefits ............................... 525
unfair discrimination .................... 134, 139
unmarried woman ...................... 283–284
prejudice ................................................. 120
presumption of employment ............ 65–68
probation
dismissal for poor work
performance .......... 207–209, 325–327
dispute resolution ................................ 231
employee’s character and
suitability ......................................... 327
period ................................... 207–208, 325
promoted employee .................. 327, 331
purpose ........................................ 208, 325
unfair labour practice......... 207–209, 231
proceedings under LRA
automatically unfair dismissal .... 279–281
productivity ............................................. 541
Productivity South Africa ....................... 541
prohibited employment practice ......... 112
promotion see also affirmative action
probation period ......................... 327, 331
unfair labour
practice .................. 203–206, 230–231
proportionality ... 52, 168–172, 287, 467–468
protected disclosure
definition............................... 225–227, 291
automatically unfair dismissal .... 290–291
burden of proof ................... 229, 231–232
disclosure: definition ................... 224–225
dismissal for making .................... 291–292
dispute resolution ................................ 231
general protected disclosure .... 227–229
good faith ............................... 225n, 227n
information covered .........................224n
interdicting
disciplinary inquiry ................. 291–292
member of parliament ............... 223, 291
occupational detriment:
definition ................................. 224, 291
personal gain .....................................227n
Law@work
Page
protected disclosure – continued
persons to whom made ............. 225–226
reason to believe ............................. 224n
statutory provisions ...................... 222–223
substantially true ............................... 227n
unfair labour practice based
on occupational
detriment ........................ 223, 229–230
protected strike ............................... 456–457
immunities
breach of contract or
delict .................................... 469–470
compensation for loss ............. 471–472
discrimination ................................... 471
dismissal..................... 276–277, 470–471
non-union
employees etc ............... 463, 468–469
picketing in support .................... 472–474
procedural limitations
advisory arbitration .................. 464–465
certificate of outcome or
expiry of 30-day period ............. 462
notice of intended strike ......... 462–464
referral for conciliation .................... 462
remuneration during ........................... 469
substantive limitations
arbitration agreement .................... 458
arbitration award, collective agree-
ment or determination .............. 459
collective agreement
prohibiting strike ................. 457–458
dispute must be referred to arbi-
tration or Labour Court ...... 458–459
essential, minimum and
maintenance services ....... 459–461
list of ................................................... 457
unlawful conduct ........................ 469–470
protest action
definition............................................... 468
automatically unfair dismissal .... 276–277
criteria for protection .................. 468–469
liability for damage .................... 47n, 474
right to engage in ............................... 468
socio-economic dispute .................... 482
provident fund
defined contribution or
defined benefit .............................. 528
regulation of private funds ......... 527–528
transfer of business as
going concern ............................... 388
psychological injury ............................ 98–99
psychometric testing .............................. 155
public employment services ..... 75–77, 538
Index
Page
public holidays ........................................ 108
public service
definition............................................... 430
absence from work ..................... 255–256
affirmative action ..............................165n
bargaining councils .................... 430–431
judicial review of decision by
state employer ............................... 500
suspension from work .................. 215–218
Public Service Co-ordinating
Bargaining Council ................... 430–431
purchase of goods from employer ...... 112
Q liabilities on ............................. 388–389
qualifications
lack of, justifying dismissal .................. 331
misrepresentation as to .............. 300–301
R
race
abusive language ....................... 297–298
false accusation of racism .... 133n, 297n
ground of discrimination .... 133, 529–530
rape ............................................ 91–92, 518n
reasonable
accommodation .............. 320–321, 322
redundancy see also dismissal based
on operational requirements
definition............................................... 340
registration of trade union
see trade union
regulated flexibility ........... 70, 105, 108–109
reinstatement or re-employment
circumstances in which not
ordered ........................................... 263
concepts distinguished ...................... 262
employee acceding to
employer’s demands ..................278n
refusal as unfair labour
practice .................................. 221–222
remedies for unfair dismissal ...... 260–262
selective re-employment ................... 244
religious discrimination ........... 135, 140–141
remuneration
definition.......................................97n, 211
amount ............................................. 96–97
back pay on reinstatement or
re-employment .............................. 262
benefits ......................................... 210–215
deductions
allowable deductions ..................... 112
trade union subscriptions ................ 410
615
Page
remuneration – continued
duty to pay ...................................... 96–97
employer’s insolvency .......................... 97
equal pay ..................................... 147–152
income differentials .......... 183–184, 412n
information to employee ........... 111–112
minimum wage ....... 96–97, 106, 107, 514
mode of payment............................... 111
records.................................................. 112
severance pay .................... 113, 358–361
strike, during ......................................... 469
Sundays and public holidays ............. 108
transfer of business,
resignation ....................................... 248–250
constructive dismissal.................. 244–247
subsequent retraction ........ 238–239, 249
restraint of trade ................................. 94–96
retirement
age as inherent requirement
of job ............................................... 141
continuation in employment
after retirement age...................... 252
early retirement ........................... 214, 252
fairness of dismissal on reaching
retirement age ....................... 287–288
pension and provident funds..... 527–531
termination of employment
contract .................... 99–100, 251–252
retirement funds adjudicator ................ 529
retrenchment see also dismissal based
on operational requirements
definition............................................... 340
right to organise ...................... 395, 403–404
access to workplace .......................... 410
change in representative
thresholds........................................ 426
Charter of Fundamental
Social Rights ............................... 34–35
collective agreement ................. 409, 413
deduction of trade union
subscriptions ................................... 410
disclosure of information ............ 411–412
dispute resolution ........................ 413–414
domestic sector ................................... 410
election and functions of trade
union representatives .................... 411
ILO Conventions ............................ 26, 395
leave for trade union activities .......... 411
LRA provisions .............................. 395, 404
majority trade union ........................... 409
minority trade union ............................ 407
616
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right to organise – continued
notice of intention to
exercise rights......................... 413–414
purpose ........................................ 403–404
qualifying trade unions ............... 404–406
strike securing
organisational rights .............. 407–408
sufficiently representative
union ....................................... 406–408
withdrawal of rights ............................. 414
workplace for organisational
purposes ................................. 404–406
riot damage ....................................47n, 474
Road Accident Fund claim .................515n
S recent case law .......................... 129–130
SADC .......................................................... 35
safe working
conditions .............. 97–98, 515, 534–535
second-generation
contracting out ................. 370, 378–383
secondary lock-out ................................ 475
secondary strike
definition....................................... 465–466
collective agreement procedures,
requirement to follow .................... 466
lawfulness of primary strike ................. 466
limitations on right ....................... 466–468
notice of intention to strike......... 465, 466
reasonable nature and
extent ...................................... 466–467
right to engage in ....................... 465–466
sympathy strike distinguished............. 466
secret profit ......................................... 93, 94
Secret Service
exclusion from unfair discrimination
provisions ........................................ 124
sector and education training
authorities .................................. 539–540
sectoral determination
power to make .................................... 114
wages ..................................................... 97
senior management
freedom of association .............. 275, 398
strike demanding dismissal ................. 455
Sen, Amartya .............................................. 7
SETAs ................................................. 539–540
settlement or waiver
termination of employment ............... 253
severance pay
computation ................................ 358–359
Law@work
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severance pay – continued
dispute resolution ................................ 361
entitlement to ...................... 113, 358–360
fixed-term contract ............................. 113
rationale for ................................. 359–360
refusal to accept alternative
employment........................... 360–361
sex change ........................................... 273n
sex worker ............................ 81, 82–83, 396n
sexual harassment
definition.................................... 126n, 128
codes of good practice ..... 127–130, 304
dismissible offence .............................. 304
employer’s liability ... 92, 98, 129, 156–158
increase in incidence ......................... 127
safe working environment ......... 98, 157n
unfair dismissal ..................................... 289
sexual orientation
unfair discrimination ....... 133n, 134, 141n
shift pattern, changes to ....... 277, 279, 452
shop steward
automatically unfair
dismissal .................. 275–276, 316–317
disciplinary action against ......... 316–317
disclosure of information to ........ 411–412
election and functions........................ 411
leave for trade union activities .......... 411
short time .............................................. 214n
sick baby .............................................. 283n
sick leave ......................................... 109–110
skills development and training
Adult Basic Education and
Training Act 52 of 2000 ............... 537n
enforcement ................................ 541–542
impact of information technology.... 536
institutes in Department of
Employment and Labour .............. 540
internships ............................................. 540
levies
collection and distribution .............. 540
enforcement ............................ 541–542
exemptions ....................................... 538
late payment ................................... 542
requirement to pay ......................... 540
Skills Development Levies
Act 9 of 1999 ................. 15, 537, 538
National Development Plan .............. 542
National Qualifications Framework ... 540
National Skills Authority ....................... 539
National Skills Development
Strategies ........................................ 537
Index
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skills development and
training – continued
National Skills Fund .............................. 539
productivity .......................................... 541
sector and education training
authorities ............................... 539–540
Skills Development Act
97 of 1998 ................. 15, 489, 536–537
skills development institutes ............... 540
social protection, role of ............ 535–536
statutory framework .... 536–537, 538–539
unfair labour practice................. 209–210
workplace-based learning...............539n
social assistance ..................................... 512
social insurance ...................................... 512
social justice perspective .......... 10–12, 509
social protection ............................. 509–511
definition............................................... 512
constitutional right............................... 511
contingency-based system ............... 514
ILO standards ............... 509–510, 513–514
informal economy..... 509n, 511, 512–513
medical insurance ...................... 532–535
migrant workers ........................... 542–543
occupational injuries and
diseases .................................. 515–521
old age and retirement
benefits ................................... 527–531
right to dignity ...................................... 511
risk-based system................................. 514
skills development and
training .................................... 535–542
social security distinguished ............... 512
solidarity systems .......................510n, 532
underlying values ................................ 510
unemployment insurance .......... 522–527
work ethic principle ..........................510n
social security .................................. 512–513
socio-economic dispute ........................ 482
soldier see Defence Force member
solidarity principle .........................510n, 532
South African Development Community
(SADC)
Charter of Fundamental
Social Rights ............................... 34–35
specific performance ............................ 101
state contract
employment equity reports ....... 192–193
State Security Agency
exclusion from BCEA ........................... 107
617
Page
statutory council
dispute resolution function ................. 492
powers and functions ................. 431–432
rationale for ......................................... 431
strike see also protected strike
definition............................................... 451
automatically unfair dismissal .... 276–277
ballot ............................................. 425–426
compensation for loss ................. 471–472
concerted refusal ........................ 451, 453
demanding supervisor’s
dismissal .......................................... 455
dismissal of strikers
based on operational
requirements ....................... 276–277
protected strike ........ 276–277, 470–471
unprotected strike ... 314–315, 469–470
disputes of right
and interest .................... 201–203, 456
essential, minimum and
maintenance services .......... 459–461
intimidation and threats ............. 301–302
matter of mutual interest .................... 456
minority trade union ........................ 33–34
notice ........................................... 462–464
organisational rights, securing .... 407–408
partial refusal to work ......................... 451
persons who are or have been
employed ............................... 452–453
picketing in support .................... 472–474
purpose ........................................ 453–456
refusal to do work
normally done by strikers ...... 277–278
refusal to work ............................. 451–452
refusal to work overtime ..................... 451
remedying grievance or
resolving dispute .................... 453–456
remuneration during ........................... 469
replacement labour ................... 475–476
retardation or obstruction
of work .................................... 451–452
right to strike ................. 28n, 276, 449–451
secondary strike .......................... 465–468
single employee .................................. 453
sympathy strike .................................... 466
unprotected strike,
dismissal for ............. 314–315, 470–471
violent strike ........................................... 17
sufficiently representative
union ........................................... 406–408
suicide attempt............................... 265–266
Sunday work ............................................ 108
618
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supervening impossibility of
performance ............ 254–255, 321–322,
334–335
Supreme Court of Appeal
appeal from
Labour Appeal Court ............ 504–505
suspension
unfair labour practice................. 215–218
sympathy strike ....................................... 466
T threats .............................................. 301–302
taxation
employee operating through
company etc ............................. 84–85
incentives for employing
young workers ........................ 538, 541
teacher
absence from work ..................... 255–256
temporary employment services
definition................................................. 71
application for vacancy with client ... 74
automatic termination of
employment............................... 74–75
background ..................................... 70–71
compensation for occupational
injuries and diseases ........................ 75
exceeding three months ................ 72–73
fixed-term employee sent to ......... 74, 75
independent contractors
distinguished .................................... 72
placement fees ..................................... 76
protection of employees
under LRA ................................... 71–75
registration ............................................. 76
TES as employer ............................... 71–72
written particulars of employment ...... 74
termination of employment
see also resignation; retirement;
unfair dismissal
absence from work ..................... 255–256
by employer, with or
without notice ........................ 237–239
certificate of service ........................... 113
condition not met ............................... 256
death ............................................ 100, 254
directorship .................................. 249–250
effluxion of time or happening
of specified event ................. 250–251
employer’s insolvency .......... 97, 252–253
illness or incapacity ............................. 254
methods ................................................. 99
mutual agreement.............................. 253
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termination of employment – continued
notice of termination .................. 112–113
severance pay .................................... 113
supervening impossibility of
performance ......... 254–255, 321–322,
334–335
terms and conditions of employment
see conditions of employment
TES see temporary employment services
theft .................................................. 300, 306
time-related offence ...................... 296–297
trade union see also collective
bargaining; freedom of association;
shop steward
definition.................................... 396n, 421
access to workplace .......................... 410
automatically unfair dismissal for
union activities ....................... 274–276
closed shop and agency shop
agreements .................... 400–403, 425
conscientious objection to
membership ........................... 402, 425
constitution .................................. 422–423
consulting party in large-scale
retrenchment ......................... 351–352
corporate status .................................. 424
deduction of subscriptions ................. 410
Defence Force
member ........... 7n, 33, 46, 396n, 400n
disclosure of information to ........ 411–412
expulsion from...................................... 425
free riders .............................................. 403
genuineness ......................................... 422
illegal purpose .................................. 396n
independence .................................... 422
lawful activities ................................. 396n
leave for union activities .................... 411
majority union ...................................... 408
minority union ................. 46–47, 407–408,
409, 428n
name .................................................... 422
no personal liability for loss ................. 424
organisational rights see right to
organise
refusal of membership ........................ 425
refusal to join ........................................ 425
registration ........................................... 421
cancellation ..................................... 424
certificate ................................. 423–424
criteria to be met ..................... 421–422
effect ................................................. 424
procedure......................................... 423
Index
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trade union – continued
representativeness
change in thresholds ....................... 426
sufficiently representative
union .................................... 406–408
workplace for organisational
purposes .............................. 404–406
right to form, join and
participate in ................................... 46
rights of ............................................. 46–47
senior management ........... 275, 398–399
union security arrangements ......... 51–52
victimisation ................................. 397, 399
traditional healer .......... 110, 296n, 334–335
training see skills development and
training
transfer for disciplinary reasons ............. 220
transfer of business as going concern
agreement varying statutory
consequences ....................... 385–387
automatically unfair
dismissal .......................... 289–290, 390
background ................................. 365–366
business: definition ...................... 370–372
change in shareholding ..................... 373
common law ....................................... 365
conditions of employment ......... 387–388
consulting parties ................................ 386
date of transfer .................................... 388
declaratory order pre-transfer ........... 391
disposal of assets ................................. 373
formalities ..................................... 388–389
franchise agreement .......................... 385
going concern: definition........... 373–377
insolvency .................... 253, 366, 389–390
insourcing ..................................... 382–384
legal consequences ................... 385–386
less favourable conditions of
employment........... 249, 387, 390–391
liability for leave pay etc ............ 388–389
merger .................................................. 385
municipal functions ................ 374n, 375n
no duty to consult ............................... 389
notarial bond, perfection of .............. 369
objection to transfer of
employment................................... 387
outsourcing .......................... 370, 377–385
pension provisions ............................... 388
remedies for breach of
statutory provisions ................ 390–391
second-generation
contracting out.............. 370, 378–383
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transfer of business as going
concern – continued
service provision ................. 371–372, 376,
377–384
statutory provisions .............................. 366
temporary employment
services ................................... 384–385
transfer: definition ........................ 369–370
transfer of assets .......................... 373–374
transfer of employment
contracts ................ 366–368, 385–386
warehousing functions ............ 369n, 377
transport to and from work .................... 214
triangular relationships ....................... 70–71
trust and confidence ............... 98, 299, 300
U
Uber drivers ............................................ 6, 59
UIF see Unemployment Insurance Fund
UN Global Compact ................................ 36
Unemployment Insurance Fund
adoption benefits........................ 526–527
benefits payable ......................... 523–524
dependant’s benefits ......................... 527
domestic worker ............................... 524n
employee: definition ....................... 68–69
employer contributions.................... 523n
fraudulent claim ............................... 523n
illness benefits ...................................... 524
Income Replacement Rate ............... 526
maternity benefits ....................... 525–526
migrant worker ............................ 542–543
purpose of scheme ............................. 522
reasons for unemployment ................ 524
sliding scale .......................................... 526
statutory regulation ..................... 523–527
unemployment rate .......... 4n, 19–20, 536n
unfair discrimination see also equality
application of provisions .................... 124
arbitrary grounds ......................... 132–133
automatically unfair
dismissal ........................ 124n, 284–289
‘but for’ test ......................................... 121
defences
affirmative action ............ 125, 141–146
other considerations ........................ 139
inherent requirements
of job.................... 139–141, 286–287
direct and indirect
discrimination ......................... 130–131
discrimination: definition..................... 123
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unfair discrimination – continued
dispute procedures and
remedies ................................. 158–159
duty to eliminate ................................. 124
employer’s liability....................... 156–158
employment policies and
practices covered................. 131–132
equal pay for equal work or
work of equal value .............. 147–152
excluded persons ................................ 124
grounds ........................ 124–125, 132–136
harassment as...................... 125, 126–127
Harksen test .......................... 136–137, 168
intention irrelevant .............................. 121
multiple discrimination ......................175n
nature of....................................... 120–121
origin and purpose of prohibition ...... 123
proving discrimination
burden of proof........................ 137–138
showing differentiation and
linking to ground of
discrimination ..................... 136–137
scope of prohibition ................ 131–132
statutory prohibition................. 124–125
unfair dismissal
automatically unfair see automatically
unfair dismissal
background ................................. 235–236
burden of proof ................... 236, 258–260
code of good practice .............. 295–296
commissioner’s approach to
determining fairness ...... 259, 310–312
constructive dismissal ................. 244–247
date of dismissal ................ 256–257, 260n
dispute resolution ........................ 257–258
employer’s common-law right
to terminate employment ...... 99–100
High Court jurisdiction ......................... 102
illegal worker .................................... 81–83
ILO Convention ........................... 235–236
migrant worker ................................ 81–82
misconduct .................................. 259–260
pregnancy .........................................111n
prior to commencing work ................ 239
refusal to allow employee to resume
work after maternity leave ........... 243
refusal to renew fixed-term
contract .................................. 240–243
remedies
common-law versus statutory
remedies ............................. 100–103
compensation .......................... 263–266
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Page
unfair dismissal – continued
remedies – continued
reinstatement or
re-employment................... 262–263
statutory remedies ........................... 260
resignation subsequently
retracted ........................ 238–239, 249
restraint of trade, effect on .................. 96
selective re-employment ................... 244
termination of employment by
employer, with or without
notice ...................................... 237–239
transfer of business .............................. 249
unprotected strike ....... 314–315, 469–470
unfair labour practice
definition................................. 43, 198–199
arising between employer
and employee ............................... 199
background ................................... 43, 197
benefits ......................................... 210–215
codification in LRA .............................. 198
demotion...................................... 206–207
dispute resolution ........................ 230–232
disputes of right and interest ...... 201–203
employer claiming ...................... 199–200
historical overview....................... 197–198
identity of employer ............................ 200
Industrial Court jurisprudence .............. 14
labour practice: definition ................. 200
occupational detriment due to
protected disclosure ............. 222–230
other unfair disciplinary action
short of dismissal..................... 219–220
probation ..................................... 207–209
promotion .................................... 203–206
refusal to reinstate or re-employ
in terms of agreement .......... 221–222
reliance on constitutional right
or LRA .............................................. 203
suspension .................................... 215–218
training .......................................... 209–210
whether closed list....................... 200–201
Universal Declaration of
Human Rights..................................... 395
unlawful dismissal
restraint of trade, effect on .................. 96
unlawful instructions ............................... 301
V
Van Reenen Commission ............. 13, 498n
vicarious liability
rape .................................................. 91–92
sexual harassment ........... 92, 98, 129, 156
Index
Page
victimisation..................................... 397, 399
voluntarism ................................................ 51
volunteer
exclusion from BCEA ........................... 107
exclusion from NMWA......................... 106
W customs and practices ............... 103–104
wages see remuneration
warnings
disciplinary procedure ................ 219–220
poor work performance ............. 330–331
weekly rest period .................................. 108
weekly working time....................... 107–109
whistle-blowing see protected disclosure
White women ........................ 175n, 177–178
Wiehahn Commission...............13, 43, 498n
reforms introduced by .... 13–14, 420, 498
winding-up
termination of employment ....... 252–253
women see also pregnancy
Commission for
Gender Equality ..................... 159–160
equal pay............................. 148, 150–151
gender discrimination ......................... 134
White women and
affirmative action ........ 175n, 177–178
Women Empowerment and
Gender Equality Bill .........................175n
work ethic principle ..............................510n
work permit
requirement ..................................... 76–77
withdrawal or expiry............................ 255
worker: definition ................................ 46, 62
worker participation see workplace
forum
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Page
working time
basic conditions .......................... 107–109
high-earning employees .................... 115
variation of basic conditions.............. 115
workplace
definition....................... 398–399, 434–435
workplace forum ............................ 439–440
consultation with
disclosure of information ................. 444
process ...................................... 443–444
subject matter .......................... 442–443
disclosure of information .................... 444
dispute resolution ................................ 445
eligible employees ...................... 440–441
establishment............................... 440–441
full-time member ................................. 445
functions ............................................... 442
health and safety role ........................ 516
joint decision-making powers ............ 444
meetings............................................... 442
relationship with collective
bargaining .............................. 439–440
representative trade union:
definition ......................................... 441
written particulars of employment ....... 111
written undertaking by employer ......... 116
Y
young worker
employment schemes .......................... 76
minimum age ...................................... 113
tax incentives for employing ...... 538, 541
Z
zero-hour contract worker ....................... 59