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Article 21/2022

What are the incompatibility principles recently identified by the labour appeal court in, inter alia, Zeda Car Leasing (Pty) Ltd t/a Avis Fleet v Van Dyk?

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  1. In Mgijma v Member of the Executive Council, Gauteng Department of Education (2014) 25 SALLR 558 (LC), incompatibility was identified as the inability or failure of an employee to maintain a harmonious relationship with his or her colleagues and relevant factors that needed to be considered included the following:
  • personal conflicts
  • management style
  • inability to integrate into culture and the environment
  • lack of confidence
  • not being able to do the job according to the owner/senior colleague
  1. in Zeda Car Leasing, such non-harmonious relationship was analysed with reference to the corporate culture of the business and not getting on with fellow employees;
  2. in Jabari v Telkom SA [2006] 10 BLLR 924 (LC) and Zeda Car Leasing, incompatibility was categorised as incapacity in terms of s188 of the LRA.  The onus is on the employer to prove that the employee is responsible for the disharmony in the workplace
  3. Mgijma identified the following obligations of an employer when dealing with the alleged incompatibility:
  • the institution of remedial action
  • providing assistance to solve incapacity, including counselling and relationship-building by objectives
  • giving the employee the opportunity to consider the allegations and preparing a response
  • providing the employee with the opportunity of putting his or her version
  • if it is found that the employee is responsible for the disharmony, the employee must be provided with an opportunity to remove the cause of disharmony
  • the employee must be placed in an alternative positon if remedial action has failed

See also Wright v St Mary’s Hospital (1997) 13 ILJ 987 (IC); SA Quilt Manufacturers v Radebe (1994) 15 ILJ 115 (LAC)

  1. if it is found that a senior employee is responsible for the said incompatibility, a more flexible approach than what is set out above may be followed

Brereton v Bateman Industrial Corporation (2000) 21 ILJ 442 (IC)

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?