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Article 26/2021

Labour Edge

The traditional approach adopted in determining whether or not an employee is guilty of the alleged offence is to determine, on a balance of probabilities, whether or not he or she is guilty of the offence he or she was charged with (including all the elements of such offence).  On what basis did the labour appeal court recently, in SA Police Service v Magwaxaza and Others (2019) 30 SALLR 42 (LAC), reject such approach?

The labour appeal court, per Coppin JA (Waglay JP and Kathree-Setiloane AJA concurring), adopted a contrary approach by indicating the following:

  1. there was merit in the argument made by the employer in casu that both the arbitrator and the labour court had adopted an unduly formalistic approach and had made the cardinal mistake of wrongly focusing the enquiry on whether it had been proven, on a balance of probabilities, that the employee was guilty of the alleged offence indicated in the charge sheet, as if it were a criminal trial;
  2. the true enquiry had to be about determining, in a manner which was not unduly formalistic, whether the employee’s dismissal had been fair, taking into account the allegations made against the employee and the standard of conduct required of him (Mashigo v SAPS [2018] 10 BLLR 943 (LAC), paragraphs [14]–[17]). The approach of the arbitrator, on its own, had constituted a gross irregularity that justified a review of the award;
  3. the arbitrator, in casu, had let the employee off, scot-free, once the employer was unable to prove that the employee was guilty of the misconduct as charged – this conclusion was clearly incongruous, unreasonable, and was due to the approach adopted by the arbitrator;
  4. it seemed implicit in the arbitrator’s reasoning that the fact that the charges had not (at least expressly) mentioned the crime of culpable homicide, but of murder, meant that the charge(s) against the employee had not been proved and, therefore, no sanction had been justified;
  5. this was not only unreasonable, but unjustified in light of the following. On the assumption that there had been a charge of murder, in disciplinary proceedings there is no requirement for competent verdicts to be mentioned in the charge sheet, and, in the absence of prejudice, an employee may be found guilty of the offence that is a competent verdict (EOH Abantu (Pty) Ltd v CCMA, Khumalo and Danney (2019) 40 ILJ2477 (LAC); [2019] 12 BLLR 1304 (LAC); (2019) 30 SALLR 43 (LAC), paragraphs [16]–[17]); and
  6. In Mashigo, at paragraph [16], the labour appeal court referred, with approval, to what is stated in Woolworths v Commission for Conciliation Mediation and Arbitration and Others (2011) 32 ILJ 2455 (LAC), paragraph [32], namely, (quoting Le Roux and Van Niekerk The South African Law of Unfair Dismissal (Juta 1994) 102):

‘The principle in such cases is that provided a workplace standard has been contravened, which the employee knew (or reasonably should have known) could form the basis for discipline, and no significant prejudice flowed from the incorrect characterisation, an appropriate disciplinary sanction may be imposed. It will be enough if the employee is informed that the disciplinary enquiry arose out of the fact that on a certain date, time and place he is alleged to have acted wrongfully or in breach of the applicable rules or standards.’

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?