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Article 24/2025

In Enever v Barloworld Equipment (2024) 35 SALLR 115 (LAC), the employee claimed, amongst others, being unfairly discriminated against by her employer on the grounds of being tested positive for the use of cannabis, used for non-medicinal purposes. With reference to Harksen v Lane NO and Others 1997 (11) BCLR 1489 (CC) and the principles of such case applied by the constitutional court in Mbana v Shepstone & Wylie (2015) 36 ILJ 1805 (CC), what approach did the labour appeal court follow when applying s11 of the EEA?

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IF THE ALLEGED DISCRIMINATION EXISTS ON A LISTED GROUND

  • The presumption is that the discrimination is unfair.
  • The onus is on the employer to prove either of the following:
    • the discrimination did not take place as alleged, or
    • the discrimination is rational/not unfair/otherwise justifiable

IF DISCRIMINATION IS ALLEGED ON AN ARBITRARY GROUND (i e A NON- LISTED GROUND)

  • The onus is on the employee to prove:
    • the conduct complained of is irrational
    • the conduct complained of amounts to discrimination
    • such discrimination is unfair
  • A non-listed ground must ‘smell, taste and feel’ like a listed ground and the test being the following: whether it impacts human dignity or affects humans adversely in a comparably serious manner as the listed grounds.

See, further, Naidoo v Parliament of the Republic of South Africa (2020) 41 ILJ 1931 (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?