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Article 14/2023

If the employer holds the viewpoint that it would never have employed an employee had it known about certain factors which the employee failed to disclose, what are the potential remedies for such an employer?

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  • If the employer operates in the public sector, then the following potential avenues exist:
    • an application to the labour court to set the employment contract aside
    • an application to the labour court to review the employer’s decision to appoint the employee
    • the institution of misconduct proceedings against the employee
    • but under no circumstances is the employer entitled to institute self-help like, for instance,
      suspension with or without pay

(MEC Eastern Cape and Another v Kirland Investments (Pty) Ltd 2014 (5) BCLR 547 (CC) and Chief Lesapo v North West Agricultural Bank and Another 2001 (1) SA 409 (CC))

  • On the other hand, if the employer operates within the private sector, the following potential
    avenues exist:

    • an application to the labour court in terms of s77(3) of the BCEA
    • the institution of misconduct proceedings
    • but under no circumstances it the employer entitled to self-help as set out above
September 28, 2026

What are the principles governing common purpose misconduct?

September 21, 2026

What are the principles governing an employee’s duty to disclose to his/her employer information about misconduct?

September 14, 2026

In Article 31, we dealt with the distinction between desertion and abscondment.

In Article 32, we dealt with the misconduct of deeming desertion.

In this article, we will deal with termination of employment by operation of law in the private sector – similar to deeming to be discharged in the public sector.