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Article 26/2024

LabourEdge

What is the difference between the reasonable employer test and the reasonable decision-maker test and why is this of importance to, firstly, what happens at the workplace as to action taken by the employer against an employee, secondly, how the matter is to be dealt with at the CCMA or the relevant bargaining council and, thirdly, how the matter is to be dealt with on review?

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  • The fundamental elements of the reasonable employer test are as follows:
    • when an employer takes action against an employee, such as dismissing an employee, it uses various ‘tools’, including contractual rights and obligations and statutory rights and obligations
    • when an arbitrator at the CCMA or the relevant bargaining council arbitrates the dispute, it utilises the reasonable employer test, entailing, in essence, that, if the employer reasonably dismissed the employee, the arbitrator would not intervene – the consequences are that the employer’s view of fairness prevails and this is not an enquiry de novo
  • the reasonable employer test was finally rejected by the constitutional court in 2008 in Sidumo and Congress of SA Trade Unions v Rustenburg Platinum Mines the CCMA and Moropa NO  (2008) 19 SALLR 35 (CC); 2008 (2) SA 24 (CC)
  • The constitutional court in the above judgment preferred the reasonable decision-maker test which entails, inter alia, the following:
    • when the CCMA (or relevant bargaining council) arbitrator arbitrates, he/she sits as the reasonable decision maker
    • when executing this administrative function, the commissioner exercises his/her powers as set out in the applicable legislation
    • it is the commissioner’s sense of fairness that prevails
    • the aforesaid exercising of his/her administrative functions entails this being an enquiry de novo
    • the result of the above is that the grounds of review are those as set out in s145 read with s158(1)(g) of the LRA, and the test on review is whether or not the arbitrator performed his/her administrative functions as a reasonable decision maker
  • The ‘short test’ to determine whether or not an arbitration award is reviewable has been formulated in Goldfields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA (2013) 24 SALLR 41 (LAC); (2014) 35 ILJ 943 (LAC) as follows:
    • a determination whether or not the arbitrator considered the principal issue before him/her
    • a determination as to whether or not the arbitrator evaluated the facts presented at the hearing
    • a determination as to whether or not the conclusion reached by the arbitrator falls within the range of reasonable conclusions that he/she could have reached
  • It is, therefore, submitted that it is apparent that a piecemeal approach to relevant factors, to determine the success or not on review, should be avoided.
  • The real questions to be asked, with reference to the said Goldfields Mining judgment, are thus as follows:
    • were the parties given the 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 have arrived at based on the evidence?
  • And what about flaws in reasoning, failure to apply his/her mind, reliance on irrelevant factors and ignoring material factors?
  • Well, the ‘short answer’ is that the materiality of the irregularity should be determined with reference to 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?
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?