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Article 27/2023

What are the potential remedies should a dismissal be substantively or substantively and procedurally unfair?

Is there a difference between such remedies if the dismissal is for misconduct or incapacity, as
opposed to operational requirements or automatically unfair dismissals?

What is the potential relief if the dismissal is only substantively unfair?

What was the approach adopted by the constitutional court?

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The labour appeal court, in SA Teachers Union obo Kruger v Gauteng Department of Education (2021) 32 SALLR 12 (LAC); (2021) 42 ILJ 827 (LAC), identified the following scenarios:

Scenario 1: the dismissal on the basis of misconduct or incapacity is substantively or substantively and procedurally unfair

  • the primary relief is reinstatement or re-employment, entailing:
    • the resumption of employment on the same terms and conditions as at the date of dismissal
    • the arbitrator has a discretion in respect of retrospectivity, with the limitation that it cannot be
      fixed earlier than the actual date of dismissal

(Equity Aviation Services v CCMA 2009 (1) SA 390 (CC), SACCAWU v Woolworths (2019) 40 ILJ 87 (CC), Sibiya v SAPS (2022) 33 SALLR 28 (LAC))

  • the alternative remedy is compensation

Scenario 2: the dismissal is on the basis of operational requirements or being automatically unfair and is found to be substantively or substantively and procedurally unfair

  • what is stated above under scenario 1 is equally applicable here, mutatis mutandis
  • however, in terms of s193(3) of the LRA, in addition, any other order considered to be
    appropriate may be made

Scenario 3: the dismissal is for misconduct, incapacity, operational requirements or being
automatically unfair, but is procedurally only branded as unfair

  • in terms of s193(2)(d) of the LRA, no reinstatement or re-employment is appropriate, but only
    compensation
  • the only exception to the above is s189A(13) of the LRA, where reinstatement may be ordered to
    ensure a procedurally fair operational requirements dismissal in terms of s189A of the LRA
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?