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Article 29/2023

The labour appeal court recently, in Mthethwa v CCMA (2022) 33 SALLR 26 (LAC), reiterated some very important principles governing the peremptory nature of the relief of reinstatement or reemployment.

In the light of the above, what approach should be adopted by the labour court or the arbitrator when considering such relief?

It is not always properly understood that reinstatement or re-employment is the peremptory relief should a dismissal be found to be substantively or substantively and procedurally unfair unless s193(2)(a) to s193(2)(d) is obviously applicable. With reference to the approach of the constitutional court in, inter alia, Equity Aviation Services v CCMA 2009 (1) SA 390 (CC) and Billiton Aluminium v Khanyale (2010) 31 ILJ 273 (CC), how did the labour appeal court recently, in Mthethwa v CCMA (2022) 33 SALLR 26 (LAC), deal with the obligations of an arbitrator or a judge of the labour court to probe any factors relevant as exceptions to the relief of reinstatement or re-employment?

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In Mthethwa, the following approach was adopted:

  • the word ‘must’ in s193(2), indicating the relief of reinstatement or re-employment, is peremptory
  • this entails, inter alia, that the labour court, or the arbitrator, is obliged to reinstate or re-employ (if
    indeed a decision is made that the employee is entitled to relief), unless s193(2)(a) to s193(2)(d)
    is applicable

(SAMWU v Ethekweni Municipality [2019] 1 BLLR 46 (LAC))

  • in simple terms, once substantive unfairness has been established, it is peremptory or obligatory
    to reinstate, unless the above statutory exceptions exist – the labour court, or the arbitrator, is,
    therefore, obliged to probe any factor relevant to such exceptions

(DHL v National Bargaining Council for the Road Freight Industry [2014] 9 BLLR 860 (LAC))

In applying the aforesaid principles to the facts of the case, the labour appeal court held, in Mthethwa, that the basis upon which reinstatement or re-employment did not take place, namely, that employment for the employee would be unsafe taking into account the physical security of the employee, amounted to subjective thinking and clearly constitutes an irregularity

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?