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Article 20/2025

Section 189A of the LRA is applicable to dismissals based upon the operational requirements of an employer who employs more than 50 employees and, in essence, contemplates dismissing at least 10 of such employees.

In terms of s189A(13) of the LRA, if an employer does not comply with a fair procedure, a consulting party may approach the labour court by way of an application for an order compelling compliance with a fair procedure or interdicting or restraining the employer from dismissing an employee prior to complying with a fair procedure, or directing the employer to reinstate an employee until it has complied with a fair procedure, or, alternatively, if none of the above are applicable, to make an award of compensation.

In terms of s189A(18) of the LRA, the labour court may not adjudicate a dispute about the procedural fairness of a dismissal, based upon the employer’s operational requirements, in any dispute referred to it in terms of s191(5)(b)(ii) of the LRA.

The labour appeal court, in the Regenesys matter, relying on Steenkamp v Edcon Ltd [2019] 11 BLLR 1189 (CC) (CC Steenkamp II) and Solidarity obo Members v Barloworld Equipment Southern Africa (2022) 43 ILJ 1757 (CC) (CC Barloworld) adopted the approach that the labour court’s jurisdiction to determine a dispute about procedural fairness of a dismissal for operational requirements is completely ousted, irrespective of whether the dispute was referred to the labour court in terms of secton191(5)(b)(ii) or s189A(13) of the LRA.

On what basis did the constitutional court find that such approach is inconsistent with an employee’s fundamental right to fair labour practices enshrined in s23(1) and s34 of the Constitution?

Furthermore, how did the constitutional court deal with the following issues:

  • in a s189A scenario, where there is non-compliance with a fair procedure, at what stage must an application be brought in terms of s189A(13)?
  • when can an order for compensation in terms of s189A(13)(d) be claimed as a standalone remedy?
  • how is compensation in terms of s191 to be compared with compensation in terms of s189A(13)(d) of the LRA?

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IS THE LABOUR COURT’S JURISDICTION TO DETERMINE A DISPUTE ABOUT PROCEDURAL FAIRNESS OF A DISMISSAL FOR OPERATIONAL REQUIREMENTS COMPLETELY OUSTED?

  • The ousting of the jurisdiction of the LC, irrespective of whether the dispute is referred to the LC in terms of s191(5)(b)(ii) or s189A(13), may have an effect on various fundamental rights of an employee.
  • The answer may affect the employee’s fundamental right to fair labour practices (s23(1) of the Constitution), the right of every person to have his/her justiciable disputes adjudicated by a court in a public hearing (s34 of the Constitution) and the right to approach a competent court alleging that the right in the Bill of Rights had been infringed (s38 of the Constitution).

AT WHAT STAGE MUST AN APPLICATION BE BROUGHT IN TERMS OF s189A(13) OF THE LRA?

  • An order to compel an employer to comply with a fair procedure (s189A(13)(a)) must be brought before, or at the start, or during the consultation when the dismissal is not imminent or, alternatively, no dismissal as yet has taken place.
  • An order interdicting and restraining the employer from dismissing an employee prior to complying with a fair procedure (s189A(13)(b)) must be brought when the dismissal is imminent, but has not as yet happened, without a fair procedure.
  • An application directing the employer to reinstate the employee until there is compliance with a fair procedure (s189A(13)(c)) must be brought when the dismissal has taken place without a fair procedure, when it is appropriate to reverse the dismissal and consultation is capable of being put back on track.
  • An application for the award of compensation, if the above three subsections are not applicable (s189A(13)(d)), must be brought when an order in terms of the above subsections is inappropriate and, thus, when an order of reinstatement is inappropriate – it is to hold the employer responsible for failure to comply with a fair procedure and compensate the employee for such infringement.

WHEN CAN AN ORDER FOR COMPENSATION IN TERMS OF s189A(13)(d) OF THE LRA BE CLAIMED AS A STANDALONE REMEDY?

  • This standalone remedy is applicable under the following circumstances:
    • the time-lapse between the date of the dismissal and the date of adjudication is so long that it cannot reasonably be expected that the employer should resume consultation
    • an order in terms of s189A(13)(a) or (b) or (c) is inappropriate
    • in short, an order of reinstatement is inappropriate

COMPARISON BETWEEN COMPENSATION IN TERMS OF s191 AND s189A(13)(d) OF THE LRA

  • There is no difference in the purpose of compensation in these separate provisions – the purpose in both these provisions is to afford the employee relief for the right that he/she has to procedural fairness and that has been infringed.
  • There is also very little difference in the route to be followed in claiming compensation, except that, in the case of s189A(13)(d):
    • such compensation is only available if an order in terms of s189A(13)(a) to
      (c) is inappropriate
    • the application must be brought within 30 days of the employer giving notice to terminate, or, if no notice is given, within 30 days of the dismissal (subject to condonation granted in terms of s189A(17) of the LRA)
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?