Skip to main content

Article 27/2025

Recently, the labour court and the Public Health and Social Development Sectoral Bargaining Council (the bargaining council) had the opportunity to deal with the following different suspensions:

  • precautionary suspension on full pay
  • punitive suspension on no pay
  • suspension where the employee loses registration with a controlling body
  • precautionary suspension without pay
  • unlawful precautionary suspension

The purpose of this article is to, firstly, analyse the latest developments in the above regard and, secondly, to determine some of the principles so applicable to each potential type of suspension.

_____________________________________

Precautionary suspension on full pay

  • This type of suspension is covered by s186(2)(b) of the LRA.
  • One of the leading cases in this regard is Aminto Precast and Civil Engineering CC v CCMA and Others [2023] 6 BLLR 521 (LC) (Aminto) – so referred to by Arbitrator Makhanya in National Public Service Workers Union obo Lamprecht v Department of Health KwaZulu-Natal (unreported case number PSHS105-23/24) (Lamprecht).

Punitive suspension on no pay

  • Again, this type of suspension is covered by s186(2)(b) of the LRA.
  • Again, one of the leading cases is Aminto (LC), so referred to in Lamprecht (Bargaining Council award).

Where the employee is suspended because he/she lost registration with a controlling body

  • In Lamprecht (supra), the scenario was as follows: registration with the controlling body is an inherent requirement for an employee to perform his/her duties – such body being the Health Professions Council of South Africa (HPCSA), seeing that the employee was employed as an emergency care services shift leader. The employee lost the registration because the employee did not pay the relevant fees and, thus, the relevant licence held by the employee had expired.
  • Lamprecht (supra) ruled that, should the employer suspend the employee under the above circumstances (because he lost registration with the relevant controlling body), this does not amount to suspension contemplated in terms of s186(2)(b) of the LRA – seeing that s186(2)(b) of the LRA only provides for two types of suspensions, namely, a precautionary suspension and a punitive suspension.
  • So, on what basis can the employer challenge the inability of the employee to perform his/her services in this regard? – it is submitted that such basis is the ground of a supervening impossibility of performance, as set out in National Union of Mineworkers and Another v Samancor (2011) 32 ILJ 1618 (SCA), also applicable to the following scenarios:
    • imprisonment
    • military call-up
    • closed shop
    • any other legal prohibition on employment

Precautionary suspension without pay

  • This type of suspension is also covered by s186(2)(b) of the LRA.
  • The labour court, per Prinsloo J (in Strydom v Arcelormittal SA (2024) 35 SALLR 131 (CC)) (Strydom), expressed the viewpoint that, where an employee unreasonably delays the matter being proceeded with and has no intention of constructively participating in the investigation, the employer may be permitted to alter a precautionary suspension with pay to one without pay.
  • A procedural fairness requirement identified by the LC is that the employer may require the employee to submit reasons as to why the suspension should not be changed from a ‘with pay’ scenario to a ‘without pay’ scenario.
  • The above approach exists on the basis that a value judgment is to be made and such possibility be implemented if it is fair under all circumstances.

Unlawful precautionary suspension

  • This type of suspension is not catered for in section 187(b) of the LRA.
  • With reference to Chezi v SA Police Service and Others (2021) 42 ILJ 184 (LC), where it was held that, for the LC to have jurisdiction, the applicant is to identify the specific statutory provisions (in terms of the LRA or any other law) which confirm such jurisdiction, it was held in Strydom that there are no provisions in the LRA permitting the LC to have jurisdiction over an alleged unlawful precautionary suspension.
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?