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Article 25/2023

We all know that the constitutional court, in Sidumo and Congress of SA Trade Unions v Rustenburg Platinum Mines Ltd, the CCMA and Moropa NO (2008) 19 SALLR 35 (CC) rejected the reasonable employer test and introduced the reasonable decision-maker test, when dealing with reviews of arbitration awards. Since then, various approaches have been adopted to better understand the reasonable decision-maker test and what is set out hereunder is a summary of such test.

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The labour appeal court, in Goldfields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA (2013) 24 SALLR 41 (LAC), restated that a piecemeal approach to factors to determine unreasonableness should be avoided and the following questions should be asked in applying the reasonable decision- maker test:

  • were the parties given a full opportunity to have their say with regard to the dispute?
  • did the arbitrator correctly identify the dispute required to be arbitrated?
  • did the arbitrator understand the nature of the dispute required to be arbitrated?
  • did the arbitrator deal with the substantive merits of the dispute?
  • is the decision one that another arbitrator could reasonably arrive at based on the evidence?

The labour appeal court, in Head of Department of Education v Mofokeng and Others (2014) 25
SALLR 82 (LAC), referred, with approval, in Palluci Home Depot v Herskowitz (2015) 36 ILJ 1511
(LAC), further stated the following:

  • the failure by an arbitrator to apply his or her mind to material issues normally amounts to an
    irregularity
  • whether such irregularity will result in the setting aside of an award, in addition, must reveal
    misconception of the true enquiry or result in an unreasonable action
  • flaws in reasoning, failure to apply his or her mind, reliance on irrelevant factors, ignoring material factors, etc, are not enough to vitiate an award and must be assessed with reference to the following factors:
    • whether a wrong enquiry was undertaken, or whether the enquiry was undertaken in the
      wrong manner, or whether an unreasonable result was arrived at
    • the short test is to determine whether or not the aforesaid error or irregularity materially
      affected the result and this, in turn, leads to consideration of the following questions:

      • did it have a distorting effect on the arbitrator’s conception of the enquiry to be
        undertaken?
      • did it have a distorting effect on the delineation of the issues?
      • did it have a distorting effect on the ultimate outcome?
    • a material error or irregularity points to at least a prima facie unreasonable result and
      various factors are relevant to determine if indeed such unreasonableness exists, namely:

      • the general nature of the decision in issue
      • the range of relevant factors informing the decision
      • the nature of the competing interests impacted by the decision
      • whether a reasonable equilibrium was reached with regard to the objects of the LRA
    • provided the right question was asked and answered, a wrong answer will not necessarily
      be unreasonable – an arbitrator must have diverted from the correct path in conducting the
      arbitration and, as a result, failed to address the issues raised for determinationz
  • the result would be unreasonable if:
    • it is entirely disconnected to the evidence presented
    • it is unsupported by the evidence presented
    • it involves the arbitrator speculating

(referred to in Okhahlamba Local Municipality v Mabuya (2021) 32 SALLR 12 (LC))

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?