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Article 16/2022

In Pratten v Afrisun KN (Pty) Ltd (2020) 31 SALLR 159 (LC), the employer, following consultations, decided to day away with a number of existing positions within its organisational structure and to introduce a number of new positions.  Pursuant to the new positions being filled, some employees found themselves likely to be without a job, and thus at risk of being retrenched, absent other alternatives.

What are the principles identified by the labour appeal court, in South African Breweries v Louw (2017) 28 SALLR 71 (LAC); (2018) 39 ILJ 189 (LAC), so recently applied by the labour court in the Pratten matter and applicable to the above scenario?

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  1. typically, retrenchments result from one of two reasons, namely:
  • a need to cut costs by reducing staff, i.e. the very objective is to dismiss some staff and a decision has been made which post will be declared redundant or, alternatively, which incumbents will be reduced (this scenario intrinsically envisages job losses)
  • the other main reason that results in retrenchments is the restructuring of the business to achieve aims related to efficiency and the like: some existing posts are no longer required because either the need falls away or the functions are distributed amongst existing or new posts or subsumed into fewer functional broader posts: the result is the dislocation of incumbents of such affected posts
  1. an incumbent of a redundant post (with referenced to the second reason for retrenchment as set out above) is not automatically dismissed: the person is merely dislocated and, only after opportunities to relocate that person into another suitable post have been explored and exhausted may he or she be fairly dismissed;
  2. what has inappropriately been labelled as ‘selection criteria’ is the inclusion of past performance ratings in the assessment process for a competitive process to select a new incumbent.  This is not a method to select employees to be dismissed and not regulated by s189(2)(b) of the LRA.  Equally so, in the Pratten matter, it was inappropriate to label as selection criteria the utilisation of psychometric testing in the competitive process to select a new incumbent;
  3. a dislocated employee, who applies for a new post and fails, and by reason thereof remains at the risk of dismissal, if other opportunities do not exist, does not convert the assessment criteria for competition for that post into selection criteria for dismissal;
  4. this is the case notwithstanding that, broadly speaking, it is possible to perceive the assessment process for the new post as part of a long, logical, causal chain, ultimately ending in dismissal;
  5. it is contrived to allege that the taking into account of performance ratings (in the case of Louw) and psychometric testing (in the case of Pratten) in a process of recruitment for a post is the utilisation of a method for selection for dismissal as contemplated in s189(2)(b) and s189(7) of the LRA;
  6. an employer who seeks to avoid dismissal for a dislocated employee and who invites the dislocated employee to compete for new posts therefore does not act unfairly and does not transgress s189(2)(b) or s189(7) of the LRA – being required to compete for such a post is not a method for selecting an employee for dismissal, but rather it is a legitimate method for seeking to avoid the need to dismiss a dislocated employee; and
  7. intrinsically, a competitive process for appointment makes assessments of the relative strengths and weaknesses of a candidate (and, obviously, such principle is equally applicable in respect of psychometric assessments utilised to evaluate the competitiveness of applicants for new jobs)
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?