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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.

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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.
November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?