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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)).

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?