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Hein Steenberg
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Study Unit 1: Introduction to Labour law

 Labour law is a body of legal rules that regulates the relationship between:
1. Employers and employees
2. Employers and trade unions
3. Employer’s organisations and trade unions
 Labour law also considers the relationship between the state,
employers, employees, trade unions and the employer’s organisations.

 We distinguish between the following types of labour law:

a) Collective labour law: Concerns matters such as
collective bargaining, strikes and lock-outs.

b) Individual labour law: Relates to the enforcement, conclusion

and termination of a contract of employment.

Origin of labour law

The origin of the employment contract comes from the Roman law- Locatio
conductio
Locatio conductio has three main forms:

1. Locatio rei: Hiring and letting a thing for money (Slaves fell under this)

2. Locatio conductio operarum: Hiring and letting of personal services

for remuneration (Eg: Painting a wall for remuneration)

3. Locatio conductio operis: Forerunner of independent contractor.

 Professionals, in Roman law, could not conclude contracts of service, but

received an honorarium- Payment/ reward made to a person that did
something voluntarily

 In the past, the freedom of contract allowed the employer to give harsh labour
terms to the employee.
 These were often infringements of basic human rights and employees were very
often exploited
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 However, since constitutionalism and human rights became important, there was
a shift from the common law to statutory law
 Today, legislation largely overrides the common law, such as the Labour relations
act (LRA), the Basic conditions of employment act (BCEA) and the EEA
(Employment Equity Act).

Sources of Labour law

(In the correct order of importance)

1. Constitution of the Republic of South Africa

 (Section 9, 23, 33)

2. Legislation
 LRA, BCEA, EEA
 LRA establishes the CCMA (Commission for conciliation, arbitration and
mediation)

3. Case law

4. Common law and the contract of employment:

 Contains important rules relating to the individual contract of
employment
 "Living law" regulation.

5. Collective agreements and sectoral determinations:

 Written agreements concluded between employers and trade unions
 Remuneration, working hours and leave may be regulated by a collective
agreement.

6. International labour standards (ILS):

 Standards of the ILO are only binding if a member state has
ratified them (SA ratified them)
 They are more like guidelines
 Application: SANDU v Minister of defence- CC relied on ILO
provisions and allowed defence force members to unionize, even though
they were prohibited to do so previously.
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Key Labour institutions

1. National Economic Development and Labour Commission Act: (NEDLAC)

 Labour market chamber- consists of government representatives and
organized labour and businesses.
 Functions: Promote Economic growth, consider labour submissions to
parliament, conclude agreements of economic policy

2. Labour Relations Act (LRA):

 Essential services committee: Determines which sectors can be regarded
as essential and therefore can not go on strike.
 CCMA: Handles disputes that does not fall within the bargaining council’s
jurisdiction.
 Bargaining councils: Conclude collective agreements for sectors which
they are registered for. Upon registration, they handle disputes from that
sector.

3. Basic Conditions of Employment Act (BCEA)

 Employment conditions committee: Advises the minister on
mattersuch as: Sectoral determination, effect of government policies
and basic conditions.

4. Employment Equity Act (EEA):

Committee for Employment Equity- Its members are nominated by
NEDLAC. It advises the minister on codes of good practice, employment
equity and affirmative action.
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Study Unit 2: Individual Contract of Employment

 What is the goal of the contract of employment?

 Traditionally, the employer is in a position of power when concluding a
contract of employment.
 This created unfairness and very often discriminated against employees
who were in a desperate need for jobs.
 The contract of employment is therefore an intervention by the state and the
International Labour organisation (ILO) in order to create fairness and
equality.
 A written contract is only evidence of an employment contract and therefore
does not affect the legality of a contract (Kylie v CCMA)

 Academic debate: Does one still need an individual contract of employment,

when there is legislation and collective agreements governing employment?
 We still need such a contract, as there are many instances where such a
contract gives greater benefits to the holder than legislation and collective
agreements would confer (For example: CEO’s of businesses)

۩ Labour law has a dual regulation of common law and statutory provisions.
۩ In most instances, it is easier to enforce rights contained in legislation, and
therefore many employees follow this route.
۩ SA Maritime v McKenzie: It is unnecessary to imply a term in the contract of
employment if there is already given protection for that specific right in
legislation (The LRA in this case).

Definition of an Employment contract: it is an agreement between two legal parties

in terms of which one of the parties undertakes to place his/ her personal services
(Employee) at the disposal of the other party (Employer) for an indefinite or determined
period, in exchange for a fixed or ascertainable amount. This entitles the employer to
define the employee’s duties and to control the manner in which the employee
discharges them.
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Breaking it down to study easier:

 An agreement.
 Between two legal parties.
 Where one party places his personal services at the disposal of the other.
 For an indefinite or determined period.
 In exchange for remuneration (Fixed/ ascertainable).
 Which allows the other party (employer) to control and direct the other parties
actions.

NB!!!! The contract of employment is subject to the normal requirements for a

valid contract, namely:

a. Consensus
b. Possibility
c. Formalities
d. Legality
e. Legal Capacity

1. Consensus
 Parties must voluntarily agree to the aspects of the contract
 Universal Church of God v Myeni: Unfair dismissal dispute where the
court had to look if the pastor was an employee of the church by looking at
section 213 and 200A of the LRA
 CCMA and Labour court (LC) held that he was an employee, even though
the church regulations said he received subsistence, not remuneration.
 Labour appeal court (LAC) held that there was no contract and for that
reason there could not have been an employee relationship.

2. Possibility
 Impossible tasks stipulated in the contract can not be performed.
 Eg: Section 43 of the Basic conditions of Employment act (BCEA) prohibits
the employment of children under the age of 15 and prohibits the
employment of a person with dementia.
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3. Formalities
 Generally, there are no formalities required for a contract
 However, certain particulars need to be provided in the employment contract in
terms of section 29 of the BCEA
 This is to provide legal certainty.

4. Legality
 A contract may not contain illegal stipulations or as a whole, breach the law.
 A distinction is drawn between formally illegal contracts (Contract itself) or
the contract that stipulates the performance of illegal tasks.
 Kylie v CCMA 2010: Kylie was a sex worker employed in a massage
parlour. She was dismissed because of continuous substance abuse and
disruptive behaviour.
 Kylie claimed unfair dismissal.
 It was held in the Labour appeal court that, even though people
have “unclean hands” (As sex work is illegal in SA), they could still
be afforded protection in terms of the law, sourced from the
constitution.
 It was held that sex workers are inherently vulnerable and should
be protected
 However, remedies in the LRA for unfair dismissal (Such as
reinstatement), would not be available in this case.

5. Capacity
 General capacity, such as that of an insolvent, minors and mentally disabled
persons.

Tacit and Implied terms

Tacit terms: Unexpressed provision derived from the common intention of the
parties that can be inferred from the surrounding circumstances.
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 Such provisions can be read into a contract, as it is presumed that the

parties would have included it if they thought about it at the stage of the
conclusion of the contract. (CEPPWAWU v SAFCOL 2003).

 Incorporated terms and conditions: Where provisions that are

in the BCEA are not included in the employment contract, then these
terms will be read in.
 The contract of employment may therefore not have less favourable
conditions such as in the BCEA, but it may have more favourable
conditions- Statutory minimum terms and conditions.

Duties arising from the contract of employment:

Employee Employer

Enter and remain in service Receive employee into service

Maintain efficiency Remunerate employee

Remain obedient and respectful Provide a safe place of work

Serve the employers interest and act Duty of fair dealing

bona fide

 The BCEA however, does not deal with two types of provisions, namely
restraint of trade and vicarious liability.

Restraint of trade:

 Clause that prevents an employee from trading or opening

a business in the same industry as the employer’s business for a
certain amount of time.
 Magna Alloys and research v Ellis 1984: These
contracts are valid and enforceable, unless they are contrary to
public policy.
 The key factor to this public policy, is reasonableness.
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 Basson v Chilwan: Restraint of trade clause are contrary to public policy

if the consequence of the restraint of trade is unreasonable.
 4 Questions to be asked in this authorative test:
1. Is there an interest of one party that is worthy of protection?
2. If there is such an interest, is that interest threatened by the conduct
of the other party?
3. If there is such conduct, does the interest weigh up qualitatively and
quantitatively against the interest of the other party to be
economically active and productive?
4. Is there another aspect of public policy having nothing to do with
the relationship between the parties that requires that the restraint
should either be maintained or rejected?

 4 Steps Summarised: Interest worthy of protection; interest is

threatened by conduct; weigh up against the other party’s interest;
Public policy considerations.

Vicarious Liability

Legal liability imposed on the employer for the wrongs committed by

an employee if the employer ratified or authorised the actions.
NK v Minister of Safety and Security 2005: Police officers raped a
young girl while on employment duty. It was held that their employer
is vicariously liable.

Breach of Contract and Remedies

o Repudiation: A refusal to be bound by the contract eg: Where a party states

that they will not carry out an act that disables him from performing in terms of
the contract (Implied repudiation).
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o Fundamental breach of contract:

 Committed by the employer: Employee can accept the repudiation
and claim damages or get an order for specific performance.
 Committed by the employee: Employer can terminate the contract
without notice/ or claim damages/ or claim specific performance.
o Examples of these fundamental breaches: Employer does not pay the
employee’s salary;
o Employee is not complying with the duties the employer gives him.
o If there is a less serious breach of contract, then both parties can just claim
damages for the damages suffered.

Termination of the contract

1. Completion of the contract: Applies to fixed term contracts, regardless of

the first agreement. The second agreement takes precedence.
 Eg: Where I take on a contract to build a home for a year, but they
want double the size halfway through, I sign another contract for
another 2 years. My contract lapses after three years then, not 1
year.

2. By way of agreement: Mutual agreement by both the employer and the

employee.

3. Fundamental breach by one of the parties

4. One of the parties gives notice of the termination

5. The employer is insolvent- Refer to section 36 of the Insolvency act.

Study Unit 3: Parties to the Employment contract

Determination of employment relationship: It is worth noting that it is not always easy

to distinguish on employment of contract from any other given contracts such as a
contract of independent contract.
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 However in any given case it is always important to determine whether a

person who performs a certain task is an employee , since as indicated
above, only employees enjoy legislative protection in terms of labour
legislation.

 Only employees enjoy protection relating to the enjoyment of basic conditions

of employment in terms of the BCEA (Basic conditions of employment act

Locatio conductio operarum Locatio conduction operis

(Employee) (Independent contractor)

 Object is the rendering of personal  Object is the production of a certain

services between employer and specified service or the production of
employee a certain specified result.

 Employee renders service at the  Independent contractor is not obliged

behest of employer. to perform work personally unless
otherwise agreed.

 Employer may decide whether it  Independent contractor is bound to

wishes to have employee render perform specified work or produce
service specified result within a specified or
reasonable time.

 Employee is obliged to obey lawful,  Independent contractor is not

reasonable instructions regarding obliged to obey instructions
work to be done and manner in regarding manner in which task is to
which it is to be done be performed

 Terminated by the death of the  Not terminated by the death of the

employee contractor

 Terminates on completion of the  Terminates on completion of the specified

work or production of the specified result
agreed period
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Definition of an Employee

 The Common law had a very narrow interpretation of an employee

 However, this was expanded by the statutory definition of an employee.

 The definition is therefore divided into 2 parts:

1. Standard understanding (Common law) of an employee
2. Extended to include other types of employees.

Tests for the employment relationship

 Control test: The court has to establish whether the employer has sufficient
control over the services rendered by the agreed part
 It looks at how, when, where the services must been rendered.

 Economic test: The court looks at whether the party is financially dependent
on the employer party.
 Is the party solely dependent on the employer party for financial
subsistence?
 Was the employer allowed to work or could she work for someone
else?

 Organizational test: The court looks at whether a party was part and parcel
of the organization.
 Does he/she form part of the structure?
 Was work carried out an integral part of the business?

 Dominant /multiple impression test: The court looks at the overall

impression of the relationship between parties
 Court also looks at all the factors and weigh them together
 The court here also looks at the nature of the relationship
 Also consider all the factors mentioned in the other three tests
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Statutory Presumption: Who is an Employee?

Refer to section 200A of the Labour relations act (LRA) and section 83A of the
BCEA.
However, these sections are only applicable to people that earn below a certain
annual amount.1
There therefore exists a rebuttable presumption that a person is an employee
if one of the seven factors are available (refer to above)

Different types of employees- atypical employees

1. Temporary employees: Section 198A of the LRA

 Employees provided to a client by an agent
 The agent and the employee concludes the employment contract.
 Agent then pays a salary to the employee.

2. Fixed-term employees: Section 198B of the LRA

 Contract automatically terminates at the end of the period
 May not exceed 3 months, unless good reason can be provided for this.

3. Part time employees: Section 198C of the LRA

 Works less hours a day or less days of the week.
 Remuneration is calculated by way of hourly fees
 Full employee status and benefits.

۩ Interestingly, an employer is nowhere defined in labour legislation

۩ However, this can be determined by looking at the meaning of an employee and
then conclude that the employer is the person that offers the work to the
employee.

1
Please ensure you have the correct amount- This amount is regularly changed by the minister.
Last amount: R211 396,30
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Study unit 4: Basic Conditions of Employment Act (BCEA)

 Contains basic employment conditions that should be followed by employers

and employees.
 It regulates leave, termination of the contract and methods through which
labour rights can be enforced.
 Employment conditions may exceed those mentioned in the act, but may not
be less than the statutory minimum.

 NB! Applies to all EMPLOYEES. Therefore, if you do not qualify as an

employee, the BCEA is not applicable.
 Section 1: BCEA provisions do not apply to SANDF members, members of the
Intelligence- or Secret service.

Working hours

1. Maximum hours

 Maximum of 45 hours a week may be worked

 9 Hours a day if 5 days or less
 8 Hours a day if more than 5 days

 Instances where overtime is calculated:

 Work done in excess of either 45 hours is considered as overtime
 Work more than 8 hours if the workweek is more than 5 days is overtime.
 Work in excess of 9 hours a day with a 5 day workweek is considered
as overtime.
 Total overtime may not be more than 10 hours a week (unless otherwise
agreed in collective agreement)

 When can overtime be worked?

 Overtime can be done voluntarily, however, this may lead to an offence
 If the contract or a collective agreement confirms fixed overtime-
Employer can compel the employee to work overtime
 Employees can be obliged to work overtime in emergencies
 Dismissal on a reasonable refusal to work overtime is fair.
 Total hours overtime per day – not more than 12 hours.
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 Overtime payment:
 1.5 normal salary or hourly wage
 Alternatives ways of overtime payment:
 30 minutes off at full pay can be taken for every overtime hour worked at
normal pay
 90 Minutes of for overtime if there is no compensation for overtime,
except if there is an explicit agreement.

 Averaging overtime:
 Parties can agree that employees must work an average of 5 hours
overtime a week for a specific duration.

 Compressing overtime
 Parties may agree to more hours a day at normal pay
 As long as this does not exceed 12 hours a day or 45 hours a week.
 Example: If you work 12 hours for three days, then the other 2 days can
only be 6-hour workdays.

 Night work
 After 18:00- 6:00
 Must be consensual
 An extra form of compensation must be given (Such as an allowance).
 If an employee can not work at night as a result of his/ her health, then
the onus rests on the employee to properly prove this fact.

 Meal- and Rest breaks

 1 hour lunch for every 5 hours of work must be given.
 This can be reduced to a minimum of 30 minutes
 Rest break of at least 12 hours before the start of a new day must be
given.
 36 hours of rest break as a minimum per week.
 However, the contract of employment can determine otherwise.

 Sundays and Public Holidays

 Is to be paid at 1.5 or 2 times the normal rate if a Sunday/ Public Holiday
is a normal working day for the employee.
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 NB!: If it is a normal day of work, then 1.5 salary can be paid.

However, if it is not a normal day of work, the employee must be
paid 2 times his salary.
 If the employee is remunerated for a normal day’s work and the work
was done on a Sunday, then the employer can give off the equivalent of
the difference.
 Example: I work a Sunday at my normal wage, but my employment
contract states that I must receive 2 times the normal wage. Then, I can
take another day off.
 This off day must be taken within a month from the relevant Sunday.
 Employers may not compel employees to work on Sundays/ Public
holidays, except if there is an agreement.
 Public Holidays
 Employees must be paid a normal wage on public holidays if they do not
work.
 If Public holiday falls on a day they normally work (Mon-Fri for example),
then remuneration is at 2 times the normal wage.
 If not on a day normally worked (Saturday for example), then the normal
wage plus compensation must be given.

Annual Leave
 All employees are entitled to annual leave, except employees that work
less than 24 hours a month.
 21 days for every 12-month cycle.
 Annual cycle starts on the first day of employment or the first day after the
end of the previous cycle.
 Employer must grant leave within 6 months of the new leave cycle.
 If public holiday falls within the period of leave, then it must be added to
the leave.
 Alternatives:
 Leave can be reduced to 1 day for every 17 days worked or by 1 hour for
every 17 hours worked.
 Remuneration can also be given instead of leave.
 Leave is allowed to accumulate and to be taken in the following leave cycle.
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Sick Leave
 First 6 months: 1 day for every 26 days worked
 After 6 months, the amount normally worked within a period of 6 weeks for
every 36-month (3 year) cycle.
 Sick leave is taken at full salary

 Maternity leave
 Employees may not be dismissed due to pregnancy. This falls under unfair
dismissal.
 4 consecutive months of unpaid leave.
 Taken from 4 weeks before the due date or as prescribed by a doctor
 NB! Employees may not work within 6 weeks from the day of birth or the day of
miscarriage!

 Parental, Adoption and commissioning parental leave

 Parenting leave: Mia v State Information technology agency 2021
 Male was granted maternity leave.
 Adoption: Only one parent may take adoption leave, while the other parent may
take parental leave.
 One parent may take 10 weeks adoption leave, while another parent may take
10 days parental leave.
 Commissioning leave: Surrogacy: 1 parent may take 10 weeks commissioning
leave, while the other parent may take 10 days parental leave.

Family responsibility leave

 Applicable if the employee worked for longer than 4 months at 4

days per week for his employer.
 Entitled to 3 days family responsibility leave every 12-month cycle.
 Employer is entitled to require proof of family responsibility.

Notice of termination of contract

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 Employees working for less than 24 hours a month for employers

are not entitled to a notice period.
 If there are no specifications in the contract, the following rules apply:
1. 1 week notice for less than 6 months of work.
2. 2 weeks’ notice for 6-12 months worked
3. 4 weeks’ notice for longer than 12 months worked

 Employer gives notice

 Notice must be in writing, except where the employee is illiterate
 Employee can dispute the fairness of the termination.
 Termination can occur without notice if there is a material breach
 Employee must work the notice period, except if the employer remunerates him
with the amount he would have received with normal pay.
 Employee gives notice
 If the employee terminates the contract, then this must also be in writing.
 Same notice periods apply to the employee as to the employer

 Payment upon termination of the contract

 Payment owed:
 Overtime and Sunday work that was exchanged for off time, but the off
time is not yet taken.
 Annual leave due: Leave for current incomplete leave cycle at 1 day for
every 17 days worked.
 Termination of a fixed-term contract longer than 24 months
(Section 198B LRA) due to Insolvency:
 Severance pay: 1 week’s severance pay for every year of service.

۩ Variation of employment conditions (Section 49-50)

- Unilateral amendments to employment conditions by the employer forbidden

- May only be done by way of:
• Collective agreement between employer and trade union
• Collective agreement concluded by parties to a bargaining
council.
• Agreement between the employer and employees
• Sectoral determination issued by the Minister of Labour
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Study Unit 5: Dismissal

۩ Dismissal: The termination of an employment contract by the employer, by
way of words or conduct.
 The employee has the right to not be unfairly dismissed.
 Employer can dismiss the employee, provided that there are fair
reasons for it and a fair procedure is followed.
 Onus of proof that dismissal was unfair on employee (S191).
 NB!: Employment begins when the conclusion of the contract (Orally or
written) has taken place and can be before the actual rendering of
service has taken place (Jack v Director General)

 There are 3 grounds that are generally accepted as reasons for dismissal
(Section 188 of the LRA):

1. Misconduct: Behaviour of the employee for which he can be held

accountable.

2. Incapacity: Inability to perform the work that he was employed to do.

3. Operational requirements: Economical, structural or technological

requirements of the employer.

 Under Common law, there is no requirement for dismissal to be fair.

 The start of unfair Dismissal can be found in Section 185 of the LRA-Only
“employees” have the right to be unfairly dismissed

 Fair procedure: Dismissal should be executed fairly. If the dismissal was

procedurally unfair, then it can be said that, even if it was for a valid reason, the
dismissal is unfair (It would require a major lapse in procedure).
 Substantive unfairness: The reason for which an employee was dismissed
was unfair.
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 Procedural unfairness: The procedure of dismissal was unfair.

Unfair dismissal

Section 186(1)
(a) An employer terminated employment with or without notice

(b) Non-renewal of a fixed term contract

(c) Not allowing a new mother to return to work after maternity leave

(d) Selective re-employment: Where employees are fired and only a few are re-
employed.

(e) Constructive dismissal: Where the employer made the working conditions
intolerable.

(f) Section 197 dismissals: Where the new employer provides worse circumstances
than the old employer- The employee terminates the employment agreement.

Resignation or Dismissal?

 Resignation: Unilateral termination of a contract of employment by employee- The

important factor in determining whether it was a dismissal or a resignation, is the
intention (Animus) of the parties.

 Notice of termination of employment given by an employee is a final unilateral act, which,

once given, can not be withdrawn without the employer’s consent.

 It is not necessary for the employer to accept the resignation; otherwise an

unwilful situation will arise where the employee must keep working for the employer.

 Chemical energy v Allied workers Union 2018: Employee resigned in the heat of
the moment and came back the following day-employer refused to accept the
retraction of the resignation-was held to be a dismissal.

 Owerhoud v Hout Bay Fishing 2004: Onus is on employee to prove there was a
dismissal i.t.o. S192(1) LRA.

 Resignation must contain at least 4 weeks-notice if a employer is employed for more

than a year.
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 SABC v CCMA 2001: Abandonment of work: Termination of employment is accepted

once the employer accepts the breach of contract. Employees may be fired for
desertion.

1. Non-renewal of Fixed-term contracts {S186(1)(b)}

 Section 198B: Where the employee has a reasonable expectation of
renewal.
 The test for this is the reasonable person test
 Onus on employer to prove that there were circumstances that could
have led to the exception to the rule.
 SA Rugby Players 2005 case.
 People earning below the threshold will rely on section 198B
 People earning above the threshold will rely on Section 186(1)(b)

2. Pregnancy {S186(1)(c)}
 It is dismissal to refuse to allow an employee to return for work after maternity
leave.
 Read with section 187(1)(e).
 It is automatically presumed that such a dismissal is unfair.

3. Selective re-employment {S186(1)(d)}

 Where the employer dismissed a group of employees and only re-employ a few.
 This is a form of indirect dismissal.
 May also take place where the employer does not inform certain members that
they may re-apply.
 2 requirements:
 Was there a basis for the distinction?
 Did the employees find alternative work and don’t wish to come back

4. Constructive Dismissal {S186(1)(e)}

 Employee terminates the relationship, because the employer made
the working environment intolerable.
 Employee resigns because he has no other option-coerced
resignation
 Murray v Minister of Defense 2008: “Employer must be to blame”

 Termination of employment is very often related to a form of sexual

harassment and this could lead to vicarious liability
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 Pretorius v Britz 1997: Employee was continually harassed to

the point where she resigned out of desperation-Constructively
dismissed.
 Employer can also be liable to unfair discrimination in EEA.
 Grobler v Naspers: Vicarious liability awarded when she suffered
at the hands of the manager. Delictual damages were also claimed.
 Three Requirements to prove constructive dismissal:
 Solid Doors v Theron:
a. Employee must have terminated the agreement
b. Intolerable for the employee to continue
c. Conduct of the employer must have made it intolerable (Objective test used).

Resignation by the employee

 Internal disciplinary hearings can only take place until the employee resigns
 Once Parties have agreed on the essential terms of the contract, the employment
commences (Wyeth v Manqele; Jack v Director general)

Desertion/ Abscondment

 Desertion: Employee has no intention of returning to work, showed explicitly or

impliedly. (Requires intention- SA transport v Zebediela)
 Abscondment: When the employee has been absent from work so long, it is
implied that he does not have the intention of returning to work.
 SACWU v Dyasi 2001: If an employee cannot be traced, it can be assumed that
the employee breached the contract
 Desertion is thus a unilateral termination of employment by the employee.

Termination by operation of Law

 Contract that is terminated by some or other provision of the law

and not by the employee or the employer.
 These workers can not claim unfair dismissal in terms of section 186.
 Sometimes called an Automatic dismissal
 See Section 17(3)(a) of the Public Service Act 103 of 1994 (PSA)
 Same provisions in Section 14 of the Employment Educator’s act 76
of 1998
 22 | S t e e n b e r

 If an employee is absent for more than 1 calendar month, he is

deemed to be dismissed.
 Ramonetha v Transport Department 2017: Left work for four
months, but returned and worked there for 11 months, util he was told that he
was dismissed. Court found the fact that he was remunerated meant he was
reinstated

Contractual automatic terminations

Employers have in past tried to escape liability by allowing for terminations upon
certain events.
However, where the employee has freely and voluntary agreed to this, a different
approach is followed.

Transfer of Employment Contract

۩ Section 197: Where an employer acquires a business as a going concern, he is

under no obligation to keep all the employment contracts.
۩ However, Section 197 allows for such transfer.
۩ If the employment conditions are less favourable, it may be considered as
dismissal
۩ Conditions to be met:

There are requirements to be met first:

1) Transfer of the business as a going concern

2) Conditions provided by the new employer has to be substantially less favourable. Test
is less strict than “intolerable test”
3) Employee’s resignation has to be because of the substantially less favourable conditions.

4) If all of the above grounds are not established, then the existence of the dismissal or
resignation will remain valid.

Automatically unfair dismissals (5.2)

 Section 187 of the LRA provides for impermissible reasons of dismissal.

 Victims will be reinstated, unless they prefer compensation.
 23 | S t e e n b e r

Section 187: Reasons of automatically unfair dismissals

1) Dismissal for exercising a right in terms of the LRA

 Section 5 and 187(1) of the LRA

2) Employee participated in a strike

 No dismissal for protected strikes
 (SACWU v Afrox) Real and Proximate cause- the unprotected strike
must be the real cause for the dismissal.

3) Employee refused to do work normally done in a day

 Unless that work can prevent death, during negotiations the
employer may not use this as a ground of dismissal.

4) Refusal by employees to accept a demand between any matter of mutual

interest between employee and employer.

5) Pregnancy
 Women may not be dismissed due to pregnancy
 However, dismissal may take place if there are genuine operational
grounds.
6) Unfair discrimination
 Refer also to Section 6 of the Employment Equity Act (EEA)
 FAWU v Rainbow Chicken (Religion), CIWU v Johnson& Johnson (Sex).
 Retirement age: Fair dismissal once the age has been reached.

7) Transfer of business
 Discussed above.

8) Contravention of the Protected Disclosure’s act

 Better known as dismissal due to whistleblowing.
 Even if the whistle blower has false information, when he had a bona
fide belief that the information is true and correct, then he can not be
dismissed.
 Grieve v Denel 2003: Employee should not be aware (or could
reasonably have been expected to be aware) that the information is not
true.

Test for unfair dismissal

24 | S t e e n b e r

 Dominant or proximate cause.

 Legal causation- What was the real reason for the dismissal?

Dismissal for Misconduct (5.3)

 Fair ground of dismissal.

 Item 3(1) of the Code of good Practice: Every employer should implement such
a code that creates certainty as for the expected conduct of the employees.
 For example: Specialised rules for the food industry when it comes to hygiene.
 Item 3(2)-(5): Progressive discipline- Attempt rehabilitation
 For example, start with informal warnings, then formal warnings, deprivation of
benefits, demotion and suspension.
 Dismissal is therefore not appropriate with first offences, unless the first offence
is of a serious enough nature to warrant this.

Substantive fairness

Factors to take into account for misconduct:

 Whether or not the employee contravened a rule or standard regulating
conduct in or related to the workplace.
 If a rule or standard was contravened:
 Was the rule valid and reasonable?
 Was the employee aware or should he have been reasonably
aware of the rule?
 Is the rule consistently applied by the employer?
 Was dismissal the appropriate sanction for the
contravention of the rule.

Particular offences (Substantive aspect)

1. Gross dishonesty: Fraud or theft

۩ Anglo American Farms v Komjwayo: Dishonesty violates the trust between
the employee and the employer
۩ Theft: Seen in a very serious light
۩ Mayimbo v CCMA: The degree of the theft is irrelevant.
25 | S t e e n b e r

2. Conflict of interest
 Where an employee has a conflict of interest (Eg: has a business that is in
direct competition with the employer’s)
 Employee must advance the employers business.

3. Wilful damage to property

o Common negligence does not necessitate dismissal- no wilfulness
o However, where the employee showed gross negligence and did not care
whether he damaged the business property, then summary dismissal may
be fair.

4. Assault or fighting
o Physical assault is not required, but proper proof of threat is required.
o Assault outside or inside business premises also valid.
o Factors such as provocation, self defence and personal circumstances
must be considered.
o Conduct must be immediate after provocation and must be proportional to
the threat posed.
o Trident v MEIBC: Employee slapped another after a weekend for lewd
telephone calls she received. It was a fair dismissal.
o NUM v East Rand Gold and Uranium: Employees were involved in a fight
on the way home on a company bus. They were both dismissed
 Where it affects the reputation of the business, or it breaches the position
of special trust summary dismissal is fair.

5. Gross insubordination
 There is a difference between insolence (Rude, disrespectful) and gross
insubordination (Blatantly refuses to follow instructions).
 Has to be deliberate, serious or persistent to justify dismissal. Insolence is

6. Sexual Harassment:
 Persistent and unwanted sexual advances.
 Reddy v University of Natal: Employee hugged and kissed his female
colleague against her will and sat on her lap. She asked him to stop but he
persisted. He was found guilty of sexual harassment and dismissed.
 It was held to be substantively fair.
26 | S t e e n b e r

7. Abusive and racist language

 If it is serious, it may lead to dismissal.
 Can be a mitigating factor if provocation was present.
 Sedick v Krisray: Social media abusive words and racism may lead to
dismissal.

8. Intoxication on duty
o Employee may be dismissed if he/she shows up for work high or
intoxicated or uses substances on the premises.
o Can either be misconduct or incapacity
o Alcoholism is treated as incapacity.
o Tosca Labs v CCMA: Where an employee can perform his tasks normally
without any influence, then dismissal would be unfair. A breathalyser test is
also not sufficient.

9. Unauthorised use or possession of company property

 Company property may only be used for company purposes
 If there exists a prohibition of private use, this may justify dismissal.

10. Negligence
 Failure to exercise the degree of care required of a reasonable person.
 A single negligent act would not justify dismissal, however, gross negligence
might.

11. Time related offences

 Failure to perform duties in a timeous manner is an offence.
 Factors to consider for absenteeism: Reasons for absence, employee’s
service record and the employer’s treatment of past cases such as that.
 It is fair dismissal if the absence is of an unreasonable time period and has
a serious impact on the business.

12. Collective absenteeism

 Can be in the form of unprotected strikes
 Dismissal is fair, even when it is under or in cooperation with a trade union.
 27 | S t e e n b e r

Above we have covered the substantive aspect. Now, we will determine what procedural
aspects there are for dismissal.

Procedural Fairness

 An employee is entitled to a fair procedure before dismissal,

notwithstanding his guilt.
 Item 4 of the Code of good practice.

1. Investigation
o Inquiry before the decision to dismiss the employee.
o Interrogation with employees concerned and the culprit himself.
o Lie-detector tests, entrapment, telephones tapped (Within the legal
framework.

2. Fair hearing
 Proper notice.
 Employee aware of charges.
 Hearing precede decision.
 Hearing not unreasonably delayed.
 Employee present at hearing.
 Employee permitted representation.
 Employee may call witnesses.
 Presiding officer should be impartial.
 Decision with Reasons.

There is always the possibility of appeal.

Often encountered forms of misconduct

 Poor timekeeping and absence from work.

 Absence without leave or permission, Abscondment, Desertion.
 Poor or unacceptable attitude to the performance of work
 Insolence, Insubordination.
 Dishonesty.
 Violence.
28 | S t e e n b e r

 Infringing on dignity of other employees.

 Abuse of alcohol and drugs.

Incapacity as a ground for dismissal

 Incapacity: Misconduct can be defined as the wilful or negligent breach of

the contractual duties imposed upon the employees.
 Dismissal is, however, not the only remedy available to the employer-less
severe penalties may be imposed

Probationary employees

o Item 8(1), 8(3) and 8(4)

 Employee proves himself.
 Employer prohibited from abusing probation period.
 Employee assessed with proper guidance, training and instructions.
 Employee receives notice of specific poor standard form the employer.
 Must be given a reasonable chance to improve.

Incapacity can be divided into 2 different categories :

1. Incapacity due to poor work performance

 Eg: Where a mechanic can not fix a car, even though he was employed to
do just that, then that is incapacity.
 However, if he just completed a diploma and received no guidance while on
probation, then it must be taken into account.
 The employer has to look whether the employee can be helped by guiding
him and offering training and alternative positions.
29 | S t e e n b e r

 Item 9: Any person determining whether a dismissal for poor work

performance is unfair must consider:
 Whether or not the employee failed to meet a performance standard
 If the employee did not meet the standard, whether:
 The employee was aware or could have reasonably expected to be
aware of the standard.
 The employee was given a fair opportunity to meet the standard.
 Dismissal was the appropriate sanction for not meeting the standard.

2. Incapacity due to ill health or injury

 Determine the nature and the seriousness of the incapacity
 Item 10 and 11 is very important.
 The employer must follow these elements carefully and then apply them to
determine the level of incapacity and consider whether there can be made
accommodation for the employee.
 Seriousness of incapacity:
 Where an employee is only absent for a short period,
this obviously does not warrant dismissal.
 However, when the employee is absent over a long
time period or is repeatedly absent, then dismissal can be
justified for this ‘habitual absence”.
 This applies even to medical reasons
 With medical reasons one has to be careful, as it may
lead to automatically unfair dismissals.
 Questions to be asked:
 Is the person completely incapable of doing the job?
 Can he perform the work with the necessary
accommodation and support?

 Investigation:
 Employer is obliged to investigate the employee’s disability and
should attempt to accommodate the employee.
 A dismissal of this nature is unfair if there is no expert
evidence from the occupational health practitioner.
 30 | S t e e n b e r

Procedural fairness

Rests on the following factors:

 Appraisal to establish the reasons for unsatisfactory performance

 Counselling and assistance (Improvement plan)
 Reasonable time to improve
 Incapacity Enquiry

Substantive fairness

Rests on the following factors

o Did the employee fail to meet the performance standards?

o Was the employee aware of the required performance standard?
o Was the employee given a fair opportunity to reach the performance standard?
o Was dismissal the appropriate sanction for the incapacity?

 Senior and skilled workers are not entitled to the same amount of
trainingand guiding as junior employees

Poor work performance

 Item 8 and item 9 of the Code of Good Practice regulates poor work performance.
31 | S t e e n b e r

Dismissal for Operational requirements

 Reasons for operational dismissals: Economic, structural or technological

needs.
 Section 189/ 189A LRA.
 There can be large scale and small-scale retrenchments.
 Where there are large-scale retrenchments, section 189A will apply in
addition to section 189.
 Substantive fairness: If the same result can be achieved by other
means, then the dismissal will not be substantively fair.
 Was there really a need of the business that could only have been
addressed through retrenchments?
 Retrenchments must be absolutely necessary for the continuation of the
business.
 Procedural Fairness: Did the employer follow the steps as set out in the
LRA?
 Section 189 requires consultation and subjects of consultation.

Substantive fairness

 Fry’s Metal v Numsa: Dismissal for operational requirements is not merely

when a business makes a loss. It is also where a business tries to
maximize profits.

Procedural Fairness

 Consultation process:
 Section 189(1): Consultation process must start when the employer
contemplates dismissal.
 There must be a written notice of consultation
 Consultation can take place with trade unions/ workplace forums etc.
 Time frame: There is no time frame for consultation, but for large-scale
retrenchments Section 189(7)-(8) specifies it as 60 days.
 NB! It is important that the employer does not conduct the consultation
process with his mind made up already.
 Notice should contain:
 Reasons for retrenchment, number of employees affected,
when it will happen, selection criteria, severance packages and
the possibility of future re-employment.
32 | S t e e n b e r

 Topics in the consultation

 Measures taken to avoid dismissals.
 Measures taken to minimise number of employees affected.
 Measures taken to change the time of dismissals.
 Measures taken to mitigate the adverse effects of the dismissals.
 Selection criteria- must be fair (See below)
 Severance packages.

 It is important to remember that the final decision lays with the employer.
However, this must only be after the consultation process has been exhausted.
 The employer may return to consultation if there are certain aspects that have
been overlooked.

Fair selection criteria

 Criteria that have been agreed upon must be used.

 If there is no agreement, any fair and objective criteria can be used.
 LIFO: Last in first out is the best option.
 FIFO: First in first out: Can be bad for long standing employees and sometimes
even unjust.

Severance packages

 1 week for every year of continuous service

 However, if there is a higher amount then tha amount must be used.
 Where there is a lower amount, the employee can rely on Section 41(2),
safeguarding the employees right to severance pay.

 Section 189A: Large-scale retrenchments constitutes 10% and more

retrenchment of the current working force.
 When employer has between 50 and 200 employees: Large-scale
retrenchment where 10 are to be fired.
 More than 200 employees: Large-scale retrenchment where 10% are to be
retrenched.
 NB! Such retrenchments are calculated from the time notice of consultation in
terms of Section 189(3) is given.
33 | S t e e n b e r

 Therefore, employees retrenched in the past 12 months are INCLUDED in the

amount of retrenchments calculated.
 Where only one employee is retrenched: Employee can refer the case to the
Labour court or CCMA.
 Remember that the standard is that it must have been absolutely necessary
for the continuation of the business.
 Happens in smaller businesses.
34 | S t e e n b e r

Study Unit 6: Unfair Labour Practices

 Section 185 of the LRA:

 Every employee has the right not to be unfairly dismissed or subjected to unfair
labour practices.
 This is in concurrence with section 23(1) of the Constitution.
 The difference between the LRA and the Constitution, is that section 186 only
operates in one way and is applicable to the employee only.
 This implicates that a union can’t commit unfair labour practices against an
employer.
 However, section 23 operates to protect both employers and employees.

Unfair labour practices

 Section 186(2) of the LRA defines “unfair labour practices”.

 Includes the following between the employer and the employee:
1. Unfair promotion, demotion or probation of employees, as well as training and
giving of benefits to employees.
2. Unfair suspension or unfair disciplinary action
3. A failure or refusal by an employer to re-instate or re-employ a former
employee in terms of any agreement. / Dismissal.
4. Where an employee made a protected disclosure in terms of the protected
disclosures act (whistle blowers).
 Section 186 is an exhaustive list- meaning that there can not be claimed unfair
labour practices outside of the list.

 Section 186(2) forms of unfair labour practice

1. Section 186(2)(a): Promotion and demotion, probation, Training
2. Section 186(2)(b): Unfair suspension/ Disciplinary action
3. Section 186(2)(c): Failure to refusal by an employer to reinstate an
employee.
4. Section 186(2)(d): Protected disclosures (Whistleblowing)
 35 | S t e e n b e r

Massive problem: When can an employee use the LRA and when can an employee
use section 23 of the constitution?

NB!!!!!!- Vul aan

Unfair labour practices: Section 186(2)

 Way to answer these questions:

1. Define the applicable concept (Promotion/ demotion etc.)
2. Give the applicable section (S186(2)(a)
3. Define the requirements of the concept.
4. Give example of the concept (Eg: Example for promotion is salary increases
within parameters)
5. Case law
6. Apply the concept (promotion) and case law to the scenario given.

Exposition of concepts in terms of section 186(2)

1. Promotion:
 Definition: Elevation of status or level in the workplace, either by natural
progression or by application for a higher position.

 Requirements for promotion:

 There must be an existing employment relationship
 Compare the job to determine if it is really a promotion.

 Factors to consider: Real difference in status, level and remuneration.

 Examples: Level progression, Application for vacancies that is higher than the
previous position the employee held, salary increases within certain
parameters; upgrading of a post, change in status from casual employee, to
part-time employee, to permanent employee.
 Public Service association v Northern Cape province administration 1997.
36 | S t e e n b e r

2. Demotion
Definition: Diminution of remuneration levels, fringe benefits, status etc.
Status: An employee can be considered to be demoted, even when he/ she
retains her salary, but is moved to a lower ranking in the business.

Examples: Any diminution of responsibilities/ status/ remuneration

Unfairness of the demotion depends on objective standards- Can be when
there is arbitrary decision-making as well.
For example, if an employee steals from the employer, then demotion is fair
and actually a very considerate remedy from the employer who can in fact
dismiss the employee.

3. Probation
 Definition: Probation is where an employee is not fully employed
by the employer, but is employed for a “test period” before permanent
employment.
 Probation is there to put the employer in a position to make an
informed decision about the suitability of the employee.
 For example, pending a disciplinary hearing and when there is an
investigation into the conduct of the employee, then probation is
appropriate.
 Section 191(5A): Arbitration must immediately commence if the
dispute remains unresolved if it concerns:
 Unfair labour practices regarding probation
 Dismissal of the employee for any reason relating to the probation.

4. Training
 LRA places obligations on employers in certain aspects for training.
 Obligations may arise from the contract of employment or collective agreements.
 Employee can thus claim an unfair labour practice if training that is needed for
employment is withheld from him/ her.
 Employer must have taken action irrationally, arbitrarily or inconsistently.

5. Benefits
 Broad concept: Medical aid, pension funds etc.
 Two-pronged approach:
37 | S t e e n b e r

1.

1. Define the concept of benefit

 Schoeman v Samsung electronics 1999: Remuneration is not a

benefit for section 186(2)(a) of the LRA.

2. Refine the concept- difference between dispute of right and interest.

 NB! Appolo Tyres SA v CCMA 2013:
 The word “benefit” was wider and includes all benefits, including
remuneration.

6. Suspension
۩ Section 186(2)(b) of the LRA.

۩ Different types of suspension:

a. Preventative Suspension: Temporary Suspension pending a
disciplinary hearing
 With pay
 Employer wants to avoid an altercation between employees
 For example: If an employee is accused of sexual
harassment, the complainant can not be in the same office
then the accused person.

b. Punitive Suspension:
 Without pay (Progressive discipline)
 Suspension must fit the crime proportionally

۩ For suspension to be fair, there must be both procedural and substantive

fairness.
۩ Substantive fairness: Employer must have a justifiable reason for believing
the employee is involved in misconduct and that the suspension is necessary
۩ Procedural fairness:
 When an employee is suspended without pay, it is only fair that the
employee should have a hearing before being suspended.
 However, if the suspension is with pay, then it is preferable that the
employee submit reasons that could influence the decision to suspend.
38 | S t e e n b e r

 Employee has the right to be informed in writing regarding the nature of

the suspension, the time, and the reasons for suspension.
 Long v SA Breweries 2018: The employer must have a valid reason to
suspend (Such as to protect the integrity of the investigation
 MEC for Education v Gradwell: It is not necessarily a formal hearing
that can have the effect of procedural fairness.

7. Occupational Detriment
 Section 4(2) of the Protected disclosures act.
 3 requirements needed to establish this in terms of a protected disclosure:
1. Employee must have made a protected disclosure
2. Employer must have taken an act of reprisal
3. There must be a causal connection between the protected disclosure
and the detriment.

 When will there be protection for a protected disclosure?

 Disclosure must be made in good faith
 There must be a reasonable belief that the information is
substantially true
 Information: Rumours, suspicion and personal opinions do not
count as information.

Resolving unfair labour practices

 Section 191 LRA: Employee has 90 days from the act or the omission, or
within 90 days when the employee became aware of the unfair labour
practice.
 May be referred to conciliation by a bargaining council or the CCMA if there
is no bargaining council.
 If such a dispute remains unresolved, then it must be referred to arbitration
(Except if it is a protected disclosure i.t.o. S186(2)(d) of the LRA)
 If the employee is on probationary period, then the process of conciliation
and arbitration is compulsory.
39 | S t e e n b e r

Study Unit 7:

Discrimination and Employment Equity

Constitutional right to equality

 Substantive and formal equality-recall the difference from IURI275.
 NB! Go study section 6 of the Employment equity act and know what is contained
in the section

 Section 6(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, 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

(b) Distinguish, exclude or prefer any person on the basis of an inherent

requirement of a job.

 Section 6(1) is not an exhaustive list.

 Any discrimination on any listed, unlisted, or arbitrary ground that affects human
dignity, and that is not linked to a rationale goal, constitutes unfair discrimination.

Concepts contained in section 6 of the EEA

1. Protection: Who against who?

 Applies to all employers, employees and job applicants.
 Not just the employer can be held liable-any other person or entity can
be held liable.
 There is only an onus to implement affirmative action measures where
the employer is a designated “employer”.
 Unfair discrimination: Is the use of irrelevant criteria to distinguish
between individuals or groups, which has the purpose or effect of less
favourable consequences for members of one group in relation to those
of another or for one individual in relation to another.
 40 | S t e e n b e r

NB! Harksen v Lane- Three stage enquiry to determine discrimination.

Stage 1: Was there any differentiating conduct?

 Is there a factual foundation to the enquiry?

 Was there a difference in treatment or opportunity?

Stage 2: Does the differentiation constitute discrimination?

 A link must be established

 Was the conduct on a listed or an unlisted ground of discrimination.

Stage 3: Employer proves fairness of the alleged discrimination

 If the differentiation was on a prohibited ground, it is assumed to be unfair.

 However, the employer may have a defence against this.

Onus of proof: Proving discrimination

If the discrimination is on a listed ground, then it is presumed to be unfair.

Onus shifts to the employer to prove that it is fair.
If the discrimination is non an unlisted ground, then the onus rests on the person
alleging it to prove that the discrimination is unfair.
(See section 11 of the EEA)
There are two defences of an employer in terms of section 6(2) of the EEA:
1. Affirmative action measures consistent with the EEA.
2. Inherent requirement of the job.

Direct v Indirect Discrimination

 Direct: Where the discrimination is directly on a listed ground.

 Indirect: Where the action is seemingly neutral, but has the effect of
discriminating against someone.
41 | S t e e n b e r

Defences against Unfair discrimination

Section 6(2) of the EEA.

1. Inherent requirement of the Job:

 The nature of the work requires of the person to have specific characteristics
and attributes
 For example, when there is a film that is about Nelson Mandela’s life, a white
man can not play Mandela, as it is an inherent requirement of the role for
the actor to be a black man.
 Whitehead v Woolworths 1999: The job itself must posses an
indispensable attribute which is unescapably related to the job.
 Hofmann v SA Airways 2000: The term “inherent requirement” must be
very strictly interpreted.
 Guidelines to keep in mind: (NB)
 Employer may prefer an employee if it is necessary for the
governance of the business.
 “Inherent” refers to a very specific personal characteristic of the
employee.
 It should be a real necessity for the business to appoint the employee
(The need can only be fulfilled by an employee with that specific
characteristic)
 Employer must try to reasonably accommodate the characteristic
first.

2. Affirmative Action
 In order for the employer to prove that there is affirmative action in line with
the EEA, we must look at is “consistent” with the EEA.
 Section 15: Affirmative action measures are measures designed to ensure
that suitably qualified people from designated groups have equal
employment opportunities…..
 First defence under Affirmative action: General defence of fairness:
 Even in the absence of an inherent requirement or an affirmative action
measure, the employer may argue that the discrimination is fair.
 Leonard Dingler ERC v Leonard Dingler: Defence of general fairness
42 | S t e e n b e r

 The authority and principles of this defence has been developed in

Harksen v Lane.
 Concepts/ reasons for affirmative action that is fair:
i. Measures to identify and eliminate employment barriers,
including barriers which adversely affect members of designated
groups.

ii. Measure to further diversity in the workplace.

iii. Measures to make reasonable accommodation for people from

designated groups in ensuring equal opportunities and are equally
represented in the workforce
 Reasonable accommodation: Modification/ adjustment that
will allow for greater access or advancement of employment
equity.

iv. Measures to ensure equitable representation of suitably qualified

people from designated groups (Normally percentages).

v. Measures to retain and develop people from designated groups

and to implement appropriate training measures
 George v Liberty Life 1996: Quotas in the workplace
are valid and although it is discrimination, it is fair.

Forms of Listed discrimination

A. Harassment
 Unwelcome conduct against specific groups or persons
 Can either be persistent or be in one very serious incident.
 Sexual Harassment: Unwelcome conduct of a sexual nature
 Physical, verbal or non-verbal conduct.
 A single incident that is serious enough, may constitute sexual harassment.
 The employer has an obligation to prevent sexual harassment, and must
adopt a sexual harassment policy that is to be communicated to the
employees of the company. (Item 7 of the Code of sexual harassment).
43 | S t e e n b e r

 Employer should appoint someone to which these complaints can be

directed to.
 Vicarious liability: May arise of the employer does not take reasonable
steps to prevent the sexual harassment.
 A delictual claim under the common law may be brought.
 Claim for compensation i.t.o. the LRA and the EEA
(Overlapping).

B. Medical testing
 Section 8:
 Medical testing of an employer or an applicant is prohibited,
unless legislation requires it
 It is justifiable in the light of medical facts, employment conditions,
social policy, fair distribution of employee benefits or the inherent
requirements of a job.
 Section 7(1): Psychological testing
 Tests are prohibited, unless it has been scientifically shown that
the test is valid and reliable.
 Must be fairly applied against all the employees
 Must not be biased against a specific group or race etc.
 Section 7(2): HIV/ AIDS testing
 Any testing is prohibited, unless the court deems it to be justifiable.
 Factors considered in section 50(4).
 Section 6(4): Remuneration and benefits
 Equal payment for the same or similar work or work value.
 What must the employee prove:
 Identify the comparable employee.
 Prove that the work is the same, of equal value or similar
 Prove that there is a difference in payment on unacceptable grounds.

Dispute resolution

 Referral to the CCMA after 6 months from the date of the alleged discrimination.
 Bargaining councils do not have any jurisdiction in these matters.
 Conciliation is the first step. However, if this is unsuccessful, then the employer
may refer it to the Labour court or arbitration if the parties agreed to it.
44 | S t e e n b e r

 The 2014 amendment of the EEA made arbitration possible if the employee
earns less than the BCEA threshold (Refer to previous study units).

Employment Equity Plan

 This plan is the core of the procedure in implementing affirmative action in the
workplace.
 Every employer should have a drawn-up EE-plan.
 The plan must have the purpose and effect of reaching equal employment
opportunity.
 Drafting an EE plan:
1. Section 13 EEA: Consultation and analysis
 Must consult with the employees
 Must conduct an analysis (Collect information on policies,
procedures etc.)

2. Section 20 EEA: Aim of the EE plan:

 The employment equity plan must be aimed at achieving
“reasonable progress” towards employment equity.

 Enforcing the EE plan

 Self-regulatory: Every designated employer must assign at least one
senior manager that has the responsibility of executing and monitoring the
implementation of the plan.

 Reporting: Designated employers have to submit detailed reports on

the implementation of the EE plan to the Director-general and the
Employment Conditions Committee (ECC)- Section 21 EEA.
 Employers with more than 150 employees have to submit more
detailed reports than employers with less than 150 employees.

 Enforcement and monitoring

 Can be done by Labour inspectors or the director general.
 Court order to order compliance- Section 50(1) EEA.
45 | S t e e n b e r

Study Unit 8: Collective Labour law

 Definition: It is s a body of rules which regulates collective relationships between”

 Employee and the trade union they belong to
 Employer and the organisation the employer belongs to.
 The state and trade unions/ employer’s organisation.

 It differs from individual labour law, as it regulates the relationships that develop as
a result of employees deciding to act collectively through formation of trade unions
and bargaining collectively with the employer.
 Gives the employees greater bargaining power than they would have had
individually.
 Section 23 of the constitution and the LRA allows for collective bargaining.
 Section 2 of LRA: LRA does not apply to employees of the SANDF, SASS and NIA.

Types of Disputes

1. Dispute of right: Dispute about what the employee is entitled to.

2. Dispute of interest: A dispute about the future concerns of the employees
that is not based on any right, but aims to establishes new rights for the
employees.

Rights within a collective set-up

Right to Association

 Section 23 of the constitution protects the employee’s right to participate in

activities with trade unions.
 In line with the Constitution, section 4 of the LRA confirms that an employee has
the right to form and associate himself/ herself with a trade union.
 Section 213 LRA: Definition of trade union: means an association of employees
whose principal purpose is to regulate relations between employees and
employers, including any employers' organisations.
 It would be unfair to dismiss an employee on the basis that he belongs to a trade
union the employers do not approve of.
 46 | S t e e n b e r

 While the discussion above is about the positive right to associate themselves
with an employee, there is also the negative right of the employer to not associate
themselves.
 Dispute resolution in freedom of association Cases: Section 9 of the LRA
 Dispute must be referred to a bargaining council for conciliation
 If conciliation fails, then the dispute can be referred to the Labour court, or
voluntary arbitration in terms of section 141 of the LRA.

Organizational rights (Trade union)

۩ The LRA encourages collective bargaining, but there is no obligation on the

employer to bargain.
۩ Section 12 LRA: A registered trade union may have access to the workplace-
Trade union must be sufficiently representative.
۩ Section 13: Any trade union that is sufficiently representative may deduct levies
from the salaries of the members of that trade union.
۩ Section 15 LRA: Officers bearers of a trade union is allowed to take leave to
perform the work of their office (Usually unpaid).
 The period of time the office bearer takes leave of must be agreed upon by
the trade union and the employer.
۩ Union Representative: A union may choose representatives when the union has
at least ten members in the workplace.
۩ Disclosure of information: The employer is under no obligation to disclose legally
privileged information.
 Only relevant information must be disclosed. Disputes can be referred to the
CCMA for a determination of whether and what information is relevant.

 Acquiring Organizational rights:

 Majority of the employers must be members of the registered trade union.
 Members are normally understood as more than 50% of the trade union.
 Section 14 Trade union representatives: 10 members at least before
organizational rights can be acquired
 Section 18: Threshold agreement: An employer may establish a threshold
for the acquisition of organizational rights, as long as it applies equally to all
unions and organizations.
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 Minor Unions acquisition

 Section 21(8A): A minor trade union may be awarded organizational
rights by a CCMA arbitrator if there are no other major trade unions that
have those rights.
 However, the minor trade union must also be sufficiently
representative.

 The determination on whether the trade union enjoy certain level

of representativeness at the workplace is not quantitative in nature, that
is, it involves more than counting numbers and if that was the intention
of the legislature, the LRA could have expressly made provision for
numerical representation of employees at the workplace.

 Section 21(12): TES (Temporary employment services)

employeesare regarded as being part of the client for whom they work or
the organization through which they work

Section 21: Application procedure for acquiring organizational rights

 Peremptory- Application procedure must be followed specifically.

 A written notice accompanied by a certified copy of the registration
certificate of the trade union which must be submitted to the
employer.
 The notice must provide clear details relating to the type of
organizational right sought, method and workplace(s) which it intend to
exercise such right.
 The parties must meet after at least 30 days after receipt of written
notice by employer to try to conclude a collective agreement.
 Failure to meet agreement- the dispute must be referred to the
CCMA for conciliation by either party (section 22 of the LRA).
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Collective Agreements

 Section 23(1): of the Constitution provides that a collective agreement binds:

a. The parties to the agreement
b. The members of every party to the agreement.
c. The members of a registered trade union.

 What happens when people are part of a collective agreement, but are not part
of the trade union that concluded the collective agreement?
 When these employees are mentioned and they consent to it, they are also
bound by the collective agreement.

BARGAINING COUNCILS!!!!!

NB! Agency Shop v Closed Shop agreements

Agency Shop Agreement (Section 25) Closed Shop Agreement (Section 26)

Employers can deduct amounts from  Employee may only employ

the salaries of members who reap the members of a specific trade union.
benefits of trade unions, but are not  Can be concluded by more than
members of the trade unions one trade union
These employees are called “Free  Almost like an “exclusivity clause”.
riders”.
The amount deducted is referred to as
an “agency fee”
49 | S t e e n b e r

Study Unit 9: Strikes and Lockouts

 Section 23(2)(c) of the constitution confers a right to people to strike.

 This is in conjunction with section 64 of the LRA.
 Section 64: Employers cannot use lockout as a first remedy, but must use it as
a right as recourse
 Section 213 LRA:
 The partial or complete concerted refusal to work, or the retardation or
obstruction of work
 By persons who are or have been employed by the same employer or by
different employers
 For the purposes of remedying a grievance or resolving a dispute in
respect of any matter of mutual interest between employer and employee
 And every reference to work in this definition includes overtime work,
whether it is voluntary or compulsory.

Analysing the definition: Strikes

 Refusal to work: Does not need to be a complete refusal to work, but can
include work stoppages or slow strikes.
 Concerted action: A single employee can not strike- there must be some kind
of concerted action for it to be a strike.
 Where there is secondary strikes, both the previous and the current employees
must strike.
 The purpose of a strike: “Matter of mutual interest”.
 There must be a lawful demand for a strike to take place.

Analysing the definition: Lockout

 Section 213 LRA.

 Means 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.
50 | S t e e n b e r

1. The action taken by the employer: Employer must lock out the employee
from the workplace. This can be by simply closing the doors or not
permitting relevant employees to enter the premises.
2. Purpose of the action: Accepting a demand of mutual interest between
the employer and the employee.

Requirements for strikes and lockouts to be protected

 The LRA acknowledges the fact that sometimes strikes and lockouts will cause
economic harm and therefore it prescribes substantive and procedural
requirements for it to be protected.

Limitations and prohibitions on strikes

Substantive elements

1. Where arbitration is prescribed in terms of an agreement.

2. Persons engaged in essential, maintenance and minimum services.
3. A previous award or a collective agreement regulates the issue in dispute.
4. The issue in dispute is regulated by a determination.

Procedural elements (Section 64)

1. Section 64(1): Any matter must first be referred to conciliation at the

CCMA or bargaining council.
2. Section 64(1)(b): If conciliation has failed, or 30 days has passed from
the date of referral.
 Notice must be given at least 48 hours before the strike, or 7
days if the state is the employer.
 Notice must be in writing.

Section 64(3) Exceptions to procedural requirements

1. If the parties to the dispute are members to a council and the issue has
been dealt with in line with their constitution.
2. Conforms to the requirements in a collective agreement.
3. Employees strike in response to a lockout by the employer.
4. Employer locks out employees if they do not conform with requirements.
5. If an employer unilaterally changes terms.
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Secondary Strikes

 Falls within the ambit of the section 213 definition of “strike”.

 Requirements:
 Primary strike must comply with the procedural and substantive elements.
 Secondary employer must have notice at least 7 days prior to the strike and
14 days if the strike relates to dismissal on the basis of operational
requirements.
 Proportionality test: The nature and extent of the second strike must not
be more harmful than what is necessary to make an impact on the primary
employee’s business.

Employer’s response to a secondary strike

 Chubb Guarding v SATAWU: Secondary employer may apply to the labour

court for an interdict to limit the strike on the basis that it is disproportionate.
 Employer must give 48 hours-notice to the union before he brings such an
application to court and 5 days-notice if the union gave 10 days-notice.
 The union may ask the CCMA to investigate whether the employer’s claims
are justified.
 The court may refuse the application for the interdict if the CCMA
investigation has not been completed yet.
 The court must take the report into account before making an order
prohibiting or limiting a secondary strike.

Legal consequences of a protected strike/ lockout

 Protection against civil liability.

 Section 67: Protection against dismissal.
 Not absolute- Section 67(5) limits it in instances where:
 The employee’s conduct during a strike justifies a dismissal.
 Dismissal due to operational requirements.
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Legal consequences of an unprotected strike or lockout

a. Interdict
b. Compensation: Section 168
c. Dismissal of striking personnel (Section 68(5)).

 Factors the courts will take into account

 Seriousness of the failure to comply with the provisions of the LRA.
 The attempts made by the employees to comply.
 Whether the strike was in response to unfair conduct by the employer.

Picketing

 Protected by section 18 and 19 of the constitution and section 69 of the LRA.

 Definition: A picket may be defined as a public expression by the employees of
their grievances known to the general public and other relevant constituencies
and to elicit support for their cause from the public and those constituencies.
 Item 3(1) of the Code of Good practice explains the purpose of picketing.
 Mostly used to let their grievances known to the public.

 Requirements for a protected picket (Section 69(1))

1. Only a registered union may authorise a picket.

2. A picket must be peaceful.

3. The purpose of a picket must be to either support a protected strike, or to

show opposition to a lockout.

4. Location: Picketing may take place in any public place on the employer’s
premises, once permission has been granted by the employer.

NB! Section 69(6A)-(6C): No picket may take place where the employer and a registered
trade union have not concluded a collective agreement regarding the rules of picketing
53 | S t e e n b e r

 If there is no such agreement, the conciliating commissioner must establish the rules
and issue a certificate of non-resolution.
54 | S t e e n b e r

Study Unit 10: Dispute resolution

 Dispute of right: Dispute about something the employee has an

absolute right to- unfair dismissal for example.
 Use Dispute resolution/ CCMA etc. to resolve.
 Conciliation; arbitration/ adjudication.

 Dispute of interest: Dispute about something the employee wants to

change, but he does not really have a right to it (Eg: Salary increase).
 Use Collective bargaining and strikes to resolve.
 Conciliation; industrial action.

 Dispute resolution: Parties follow prescribed procedures to resolve labour

disputes between them.

 Purpose:
1. Attempt orderly agreement between parties.
2. If not possible, resolve the dispute using correct process.
3. In order to attempt to avoid strikes.

Processes followed

1. Conciliation  Golden rule- follow it first

 Conducted by: CCMA and
bargaining councils.

2. Arbitration  Conducted by CCMA and

bargaining council.

3. Adjudication  Labour court, labour appeal court

(Any court with jurisdiction)
55 | S t e e n b e r

Which disputes are referred where?

 LRA indicates which referral is applicable.

 Dismissal due to operational requirements, automatically unfair dismissal
and discrimination: Conciliation- Labour court.
 Unfair dismissal for misconduct and incapacity: Conciliation- arbitration.
 Organisational rights of a trade union: bargaining council, but to the CCMA for
conciliation and arbitration.

Statutory Dispute Resolution Institutions

a. CCMA: Resolves labour disputes independent from the state.

 Conciliation, arbitration and conciliatory arbitration.

b. Bargaining councils: Must be accredited by the CCMA- CCMA will issue a

certificate of accreditation.
 Will have the same powers as the CCMA, but only within a specific sector.
 Settlement agreements has the same force as an arbitration reward.
 Bargaining councils may determine their own procedures by way of collective
agreements.

c. Accredited agencies: Unfair dismissal and -labour practices disputes etc.

d. Labour courts: Normally after the process of conciliation/ arbitration has been
exhausted.

e. Constitutional court: When there is a fundamental constitutional right at stake.

Different Dispute Resolution Processes

1. Conciliation
 First procedure that is conducted at the CCMA.
 Within 30 days for unfair dismissals and 90 days for unfair labour practices.
 Process: Occurs without any prejudice and is private and confidential.
56 | S t e e n b e r

 Settlement agreement: Drafted and issued if the dispute was settled by

using conciliation.
 Certificate of non-resolution: If 30 days lapses from the date of
referral, then such a certificate must be issued.
 Section 191(6): The director of the CCMA can apply that a matter be
referred to the labour court.

2. Arbitration
 Can be either voluntary or compulsory
 For example, section 191 dismissals it would be compulsory for the
parties to refer to arbitration.
 There can also be an application (Using form 7.13)within 90 days after
the certificate of non-resolution is issued (Section 136).
 Presentation: Section 138: The commissioner may conduct the
procedure as he/ she deems appropriate for presenting evidence, cross-
examination ad concluding arguments.
 Finalising the arbitration (Section 138(7)): Writing the arbitration
award. Must be reasonable and contain a rationale/ justification.
 This award is final and binding, unless it is an advisory reward in
terms of section 64(2) (Refusal to bargain).
 Interesting point: Section 188A introduced the concept of pre-dismissal
arbitration, that takes the place of a disciplinary hearing.

3. Conciliatory arbitration (Con-arb).

 Two-staged process.
 (1) Conciliation is conducted.
 (2) Should the matter remain unresolved after the conciliation, then
arbitration commences immediately.
 The con-arb process is compulsory in the case of unfair dismissals
relating to misconduct and incapacity.
57 | S t e e n b e r

Overlapping jurisdictional issues

 Bargaining councils and the CCMA

 Here, we get three main jurisdictional issues arising mainly from unfair
dismissals and unfair labour practices
1. Whether the applicant is an employee
2. The time period
3. Section 191 apportions the jurisdiction for an arbitration between the CCMA
and the bargaining council.

 Labour Court and the High Court

 Section 157(1): Has exclusive jurisdiction on all matter falling within its
jurisdiction.
 Section 157(2): There is thus concurrent jurisdiction with the High Court for any
matter of alleged or threatened violation by the state in its capacity of an
employer. Can also be regarding any fundamental infringement in the bll of
rights.

Enforcement and review of Arbitration awards

 Section 143 LRA.

 The arbitration award by the commissioner is final and binding and it may
be enforced as if it were an order of the labour court.
 A party who fails to comply with the arbitration award, may be charged
with contempt of the court.
 An arbitration award ordering a party a sum of money, that money runs
interest from the date of the award in line with section 2 of the Prescribed Rate
of Interest Act 55 of 1975.
 Variation and rescission of awards:
 Any commissioner who has issued an arbitration award
may vary or rescind an arbitration reward or ruling on his own
accord.
 May also vary or rescind an arbitration award on
application from an affected party.
 When may it be varied or rescinded?
i. If the award or ruling was made in error in the absence of an affected
party.
ii. If there is an ambiguity or an obvious error in the ruling or award.
58 | S t e e n b e r

iii. If the ruling or the award was only granted because both the parties to
the proceedings were mistaken about something material to the case
at the time when the hearing was held.

Review of arbitration awards: Section 145

 Application must be done to the court within 6 weeks from the date
that the award was made.
 An application for review of an award does not interrupt the
prescription of the award.
 A review may be conducted on the four listed grounds:
1. Misconduct: If the commissioner committed misconduct in his/ her duties.

2. Gross irregularity: If the commissioner committed a gross irregularity in the

conduct of the arbitration proceedings.

3. Exceeded powers: If the commissioner exceeded his/ her powers.

4. Improperly obtained: If the award the commissioner awarded was

improperly obtained.

 Sidumo v Rustenburg Platinum Mine 2007:

 Test for review of the award: Whether the Arbitrator arrived at a
decision that a reasonable decision maker could have made.

Different procedures for different disputes

a. Unfair dismissals based on section 191: misconduct, incapacity, unfair labour

practices. Also used for constructive dismissal:
 Section 191(5A): Con-Arb process as elucidated above.

b. Dismissal for participating in an unprotected strike: Labour court

adjudication required, unless both parties agree in writing to arbitration in terms
of sections 133 and 141 of the LRA.
59 | S t e e n b e r

c. Dismissal for operational requirements: Referral to CCMA for conciliation. If,

after 30 days, the issue is unresolved, the matter may be referred to the labour
court. However the parties can also both in writing choose arbitration (Section
133/ 141).

Note!

Please note that these notes are not sufficient when used alone for examination
purposes. You may use them as a starting point and guideline, but be sure to add to
go through the textbook as well.

Good luck in studying for this difficult module!