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Article 13/2025

In the preceding articles, we have dealt with the reasonable decision-maker test introduced by Sidumo v Rustenburg Platinum Mines Ltd the CCMA and Moropa NO
(2008) 19 SALLR 35 (CC).

But, there is also another test to be applied in review proceedings. The aim of this article is to highlight the approach to be adopted to determine which test is to be applied on review.
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  1. In essence, the dispute to be resolved determines the test to be applied. (Jonsson Uniform Solutions (Pty) Ltd v Brown and Others (DA10/2012)
    (13 February 2014)
  2. If legal or jurisdictional findings are challenged, the reasonable decision-maker test is not to be applied, but the correctness test is to be applied, so formulated in, inter alia, SA Rugby Players Association and Others v SA Rugby (Pty) Ltd and Others [2008] 9 BLLR 845 (LAC).
  3. If the factual findings of the arbitrator are challenged on review, then the reasonable decision-maker test, as formulated in the Sidumo judgment, is to be applied.
  4. On the other hand, if, on review, the legal or jurisdictional issues are inextricably linked to the factual findings, then the reasonable decision-maker test, as formulated in the Sidumo judgment, is to be applied.

See, further, Pikitup Johannesburg (Soc) Ltd v Muguto and Others (2019) 30 SALLR 186 (LC).

October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?