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Article 20/2024

LabourEdge

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC), what are the prescription principles applicable, firstly, to the dismissal of an employee and, secondly, to the award of the CCMA or the relevant bargaining council?

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  • It is submitted that the correct approach to be adopted to prescription is that as set out by the constitutional court in Food & Allied Workers Union obo Gaoshubelwe v Pieman’s Pantry (Pty) Ltd (2018) 39 ILJ 1213 (CC)
    • This approach has consistently been followed by the labour appeal court in, inter alia, National Union of Mineworkers obo Majebe v Civil & General Contractors CC (2021) 42 ILJ 1027 (LC), and the labour court (e g the Van Rensburg judgment (supra))
  • With reference to the aforesaid, the following relevant principles can be extracted:
    • the Prescription Act is applicable to all claims in terms of the LRA
    • a claim for reinstatement (with or without back pay), re-employment or compensation is a ‘debt’ as envisaged in the Prescription Act
    • a three-year period is applicable to such debt
    • the referral of an unfair dismissal claim or ‘unfair labour practice claim’ to the CCMA or the relevant bargaining council interrupts prescription and prescription remains interrupted until any review proceedings in relation to the process are finalised (including appeals) – a review and appeal in this regard is a ‘process’ ito s15(1) of the Prescription Act
    • the award in respect of which the claim is granted is also a debt in terms of the Prescription Act – it prescribes three years after being issued unless, once again, interrupted
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?