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Article 07/2021

Labour Edge

If an employer deems it fit to include elaborate procedures in a contract of employment, which go beyond what is required in terms of the LRA, is the employer entitled to simply revert to the default position of the LRA?

The labour court, in Wereley v Productivity South Africa and Naidoo NO (2020) 31 SALLR 103 (LC), dealt with this issue as follows: the express incorporation of the code in the employee’s conditions of employment, both in the contract of employment and the code itself, suggested that it had been intended to create enforceable obligations, and not obligations which could simply be jettisoned at the whim of one party. If the content of the procedures was far less detailed and simply provided an opportunity to exercise the right to audi alteram partem within a rudimentary hearing framework, it might be more plausibly argued that the employer enjoyed greater freedom in determining the conduct of an inquiry. That was not the kind of procedure under consideration here. The fact that the employer had seen fit to include such an elaborate procedure in the contract of employment, which went beyond what is required of it in terms of the LRA, did not mean that it could simply revert to the default provisions of the LRA, when its own procedure did not suit it.

 

 

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?