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Article 16/2023

Is an employer entitled to institute a second disciplinary enquiry relating to a new and different charge as compared to the original disciplinary enquiry?

Is an employer entitled to, after having informally handed down a sanction, to subject an employee toa formal enquiry?

After a first enquiry, is an employer entitled to ask the employee to make representations as to why the original sanction should not be altered?

Is an employer entitled to substitute a sanction where same is not permitted by such employer’s
disciplinary code?

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The labour court, in Moloantoa v CCMA (2021) 32 SALLR 46 (LC), in essence, identified the following
scenarios:

Scenario 1: the second enquiry relates to a new and different charge based on newly-discovered evidence

  • this scenario does not entail the changing of an original sanction and is permitted, subject to what is stated hereunder
  • BMW (SA) v Van der Walt (2002) ILJ 113 (LAC) established fairness as the only yardstick in the above regard

Scenario 2: after having informally implemented discipline, the employer conducts a formal disciplinary enquiry, leading to a different sanction

  • this action of the employer is permitted subject to what is stated hereunder
  • this scenario was specifically dealt with by the labour appeal court in Branford v Metrorail (2003)
    24 ILJ 2269 (LAC), where it was stated that fairness is the only yardstick – with reference to
    NUMSA v Vetsak 1996 (4) SA 577 (A), where it was held that both the interests of the employee
    and the employer must be considered to reach a balanced and equitable assessment

Scenario 3: after the first enquiry, the employee is required to make representations as to why the
sanction should not be altered

  • it appears that such approach will also be permitted and that the only yardstick is fairness
  • Branford is not authority that this scenario amounts to a second enquiry being held

Scenario 4: no substitution of a sanction permitted

  • In SARS v CCMA [2008] 6 BLLR 540 (LAC), it was held that substituting a sanction under these
    circumstances will lead to an invalid action on the part of the employer and does not amount to
    procedural unfairness
  • the viewpoint is held that such approach deprives the employer of the opportunity to justify its
    action and, in any case, is contrary to Steenkamp v Edcon [2016] 4 BLLR 335 (CC) and Branford

In Moloantoa, the labour court held that it was bound to follow SARS and made the finding that the
action of the employer attracted invalidity and not mere procedural unfairness.

It is also to be remembered that, if the substitution of a sanction is contrary to a collective agreement,
then s24 of the LRA is applicable.

Lastly, when exceptional circumstances are present, an employer may also approach the labour court
to alter the sanction (Executive Council Finance KwaZulu-Natal v Dorkin [2008] 6 BLLR 540 (LAC)).

November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?