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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
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?