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Article 15/2025

Under what circumstances may an employee be found to have breached a workplace standard or rule (the traditional finding of guilty) not mentioned in the original charge sheet (which should really be an investigation notification in terms of item 4 of Schedule 8 to the LRA)?
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  • The investigation (in terms of item 4 of Schedule 8 of the LRA) is not akin to a criminal trial where guilt is to be proven in respect of the ‘charge’ the employee faces.
  • As indicated in previous articles, the true enquiry is to determine whether or not the dismissal is fair, with relevance to the allegations against the employee and the standard of conduct required (Mashigo v SAPS [2018] 10 BLLR 943 (LAC)).
  • The approach is, therefore, that it is simply too formalistic to require guilt in respect of all the elements of the charge formulated by the employer.
  • It is, therefore, not surprising that the labour appeal court, in EOH Abantu (Pty) Ltd v CCMA, Khumalo and Danney (2019) 30 SALLR 43 (LAC); (2019) 40 ILJ 2477 (LAC), found that the employee may be found guilty of a competent verdict (another charge not mentioned in the traditional charge sheet) – or, more appropriately, another workplace standard or rule not specifically mentioned in the investigation notification.
  • What is important is to appreciate the fact that a competent verdict (i e breach of a workplace standard or rule, traditionally referred to as a charge) is not required to be mentioned in the traditional charge sheet, nor is it a requirement that it must have been formulated in the charge sheet as an alternative charge (the above approach was also followed in SAPS v Magwaxaza and Others (2019) 30 SALLR 42 (LAC); (2020) 4 ILJ 408 (LAC)).
  • The above approach is, however, subject to various safeguards, including the following ones:
    • an employer ordinarily cannot change the allegation, or add new allegations, after the commencement of the enquiry if it is prejudicial to do so – Transport and General Workers Union and Another v Interstate Bus Lines (Pty) Ltd (1988) 9 ILJ 877 (IC); and
    • an employer may not adopt too formalistic or technical an approach, seeing that the categorisation by the employer is irrelevant when considering the true enquiry to be undertaken – Durban Confectionary Works t/a Beacon Sweets v Majangaza (1993) 14 ILJ 663 (LAC).
  • In conclusion, what needs to be answered is the following question: when will it not be prejudicial to find an employee guilty of a competent verdict not mentioned in the traditional charge sheet? Briefly, prejudice will be regarded as being present if:
    • the employee would have conducted his/her defence(s) differently, or
    • the employee would have had other defence(s) available to him/her. (S v Mwali 1992 (2) SACR 281 (A))
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?