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Article 15/2023

What are the factors to be taken into account to determine whether misconduct committed outside the workplace, not in execution of duties and outside working hours, including the use of social media, could be addressed by an employer and be subject to disciplinary procedures?

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  • The first issue to be appreciated is to understand that dealing with misconduct outside the
    workplace, when not in execution of duties and outside of working hours, entails a standard of
    ethical conduct to be observed that is so obvious that employees need not be reminded of same
    in any disciplinary code, e g it is obvious to everyone that racial comments cannot be made on
    Facebook outside the workplace and outside working hours

(Tibbett and Britten v Marks (2005) 26 ILJ 940 (LC))

  • Secondly, it is important to also appreciate that disciplinary action can only be taken if a sufficient nexus or bearing on the employment relationship has been established

(Biggar v City of Johannesburg (2017) 38 ILJ 1806 (LC))

  • Thirdly, it is important to also appreciate that the existence or otherwise of such sufficient nexus
    entails a multi-faceted enquiry with reference to, inter alia, the following factors:

    • the size of the employer
    • the nature and size of the workforce
    • the nature of the work performed by the employer and the relevant employee
    • the capacity of the employee to do the job
    • the position of the employer in the marketplace and profile
    • the relationship between the employee and the victim
    • the impact of the misconduct on the workforce
    • the relationship between the employer and the employee

(Hoechst v CWIU (1993) 14 ILJ 1449 (LAC), Edcon v Cantamessa [2020] 2 BLLR 186 (LC),
Makhoba v CCMA (2022) 33 SALLR 10 (LC))

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?