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Article 20/2022

Previous articles focussed on the principle that the assessment criteria for appointment in a restructured position are not equivalent to selection criteria envisaged by s189 and s189A of the LRA [e.g. Article 16/2022]. 

What are the principles extracted from Telkom SA Soc Ltd v Van Staden (2021) 32 SALLR 8 (LAC); (2021) 42 ILJ 869 (LAC), SA Breweries (Pty) Ltd v Louw (2017) 28 SALLR 71 (LAC) and Pratten v Afrisun KZN (Pty) Ltd (2020) 31 SALLR 159 (LC) that govern such process?

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  • it is not unfair to require employees to compete in a placement process as part of the restructuring exercise entailing organisational structure changes, adjusting and streamlining roles and positions, etc
  • when competing for such positions, the employer is entitled to take into account both technical competencies and behavioural competencies and the criteria to determine such competencies are not selection criteria in terms of s189(2)(b) read with s189(7) of the LRA
  • however, the entire process, even though not constituting selection criteria, is subject to judicial scrutiny, which entails, inter alia, the following:
  • the labour court is entitled to scrutinise the entire placement process and decisions to determine if they are fair
  • the labour court, however, is not entitled to decide (i) what process it would have adopted and (ii) what placement decisions it would have preferred
  • the labour court is entitled to determine whether the process was subjective or not, arbitrary, capricious or inconsistent
  • when an employee is not placed on a competitive basis, only then do selection criteria for dismissal in terms of s189(7) of the LRA ‘kick in’, which must either be agreed upon or fair and objective
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?