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Article 03/2021

Labour Edge

What are the consequences of the fact that, in the LRA, there is no reference to a right not to be unlawfully dismissed nor are there processes or procedures for the enforcement of such a right?

  1. As the majority of the constitutional court said in Steenkamp and Others v Edcon Ltd (National Union of Metalworkers of SA intervening) (2016) 37 ILJ 564 (CC), at paragraph [132], there is no reference in the LRA to a right not to be unlawfully dismissed, nor are there processes or procedures for the enforcement of such a
  2. Edcon concerned a claim that the dismissals concerned had been unlawful and invalid because the employer had acted in breach of s189A(8). The employer conceded that it had breached the provision concerned, but contended that, although this may have rendered the resultant dismissals unfair, the LRA did not contemplate invalid dismissals, nor did it empower the labour court to grant orders declaring a dismissal invalid and of no force and The constitutional court upheld this position, noting that s191 of the LRA sets out the dispute procedure to be followed to resolve unfair dismissal disputes, but nowhere is there a procedure to be used for the validity or lawfulness or otherwise of a dismissal (see paragraph [131]).
  3. Edcon further concerned a conceded breach of the LRA. In essence, the constitutional court held that the LRA establishes its own remedies for breaches of its provisions, confined as they
  4. For example, s77(3) of the Basic Conditions of Employment Act 75 of 1997, as amended (‘BCEA’), provides that the labour court has concurrent jurisdiction with the civil courts to determine disputes that concern contracts of employment. Such disputes may well contemplate declarations of invalidity sought consequent on a breach of contract. are to fairness. But the labour court is accorded jurisdiction in respect of other statutes, where the lawfulness, legality or validity of employer or employee action may well be placed in issue.
  5. On the other hand, in Malinga and Others v KwaZulu-Natal Provincial Department of Education and Others (2020) 31 SALLR 101 (LC), the applicants’ pleadings disclosed no more than an averment that the department had acted in breach of its own circulars and that, in consequence, the termination of the applicants’ employment was The applicants’ claim was not one in contract, nor was it a claim of a breach of a fundamental right and nor was it a review. In short, there was no cause of action anchored in the LRA or any statute that, for the purposes of s157(1) of the LRA, conferred exclusive or concurrent jurisdiction on the labour court. In these circumstances, the labour court had no jurisdiction to entertain the present application.

July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?