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Article 14/2021

Labour Edge

It is settled law that an arbitrator of the CCMA or a bargaining council may peal away the husk of allegations and deal with the real dispute.  On what basis did the labour appeal court, in  Baise v Mianzo Asset Management (Pty) Ltd (2019) 30 SALLR 158 (LAC), recently find that the same approach is not applicable when a contractual dispute is referred to the labour court?

  1. Having invoked the LRA as the source of the claim to declare the agreement void, what right in terms of the LRA could be invoked to sustain that claim? The founding affidavit did not reveal an answer. If the appellant had meant to complain that the retrenchment was unfair, relying on the provisions of s189 not having been observed, it would first have had to refer a dispute to the CCMA for conciliation. However, that cause of action was not invoked. The case was not about an unfair retrenchment.
  2. Had the appellant meant to lodge a claim in contract in respect of which the labour court, in terms of s77(3) of the Basic Conditions of Employment 75 of 1997 (‘the BCEA’), could exercise civil jurisdiction? No express invocation of that power was made either.
  3. The labour court, without expressly saying so, had treated the case as a contractual dispute. By so doing, in the labour appeal court’s view, it had been generous, for otherwise the application should have been dismissed out of hand for incoherence.
  4. The incoherence was patent. Several questions arose. In the absence of expressly alleging that the labour court had to exercise civil jurisdiction pursuant to s77(3), could the labour court properly do so? Is it appropriate for the labour court to peel away the husk of the allegations and deal with the real dispute, as is required of commissioners of the CCMA? Can such an approach be competent where, unlike in the CCMA, the parties before the labour court are required to plead? More especially, if s158(1)(a)(iv) was expressly alleged as the competence of the labour court which was invoked, was it appropriate or even competent to have treated this matter as a civil claim?
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?