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Article 29/2024

LabourEdge

The Code of Good Practice: Dismissal (Schedule 8 of the LRA) does not contemplate a criminal justice model incorporating formal charge sheets, formal procedures for leading and cross-examination of witnesses, formal rules of evidence and legal representation (see, inter alia, Avril Elizabeth Home for the Mentally Handicapped v CCMA and Others (2006) 10 SALLR 118 (LC); (2006) 27 ILJ 1644 (LC); [2006] 9 BLLR 833 (LC)).

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The CCMA recently, in FA v University of Witwatersrand (2023) 44 ILJ 929 (CCMA), as well as the labour court recently, in Mulaudzi v Property Practitioners Regulatory Authority (2023) 34 SALLR 77 (LC), indicated, once again, the difference between the 1956 LRA and the 1995 LRA, as follows:

1956 LRA

  • Under this Act, a criminal justice model was adopted, when the industrial court determined whether a dismissal constituted an unfair labour practice or not.
  • Consequently, in this environment, a formal disciplinary enquiry approach was adopted at the workplace, entailing, inter alia, the following:
    • the putting of a charge
    • the pleading to such charge
    • the leading of evidence-in-chief, cross-examination and re-examination
    • the taking into account of aggravating and mitigating factors, etc

1995 LRA

  • On the other hand, in the current unfair dismissal environment, elaborate procedural requirements at the workplace are inappropriate.
  • The following are the only elements of the statutory fairness required pertaining to dealing with misconduct at the workplace:
    • an investigation is to take place into the allegations
    • the employee is to be afforded an opportunity to respond
    • the employee has available the assistance of a representative
    • the employer must make a decision as to the outcome of the investigation
    • the employee is to be notified of such decision as well as notified of his/her right to refer the dispute for dispute resolution at an external body (i e CCMA, relevant bargaining council or procedure in terms of a collective agreement)
August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

August 10, 2026

What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?

In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

August 3, 2026

Where do delictual claims fit into dispute resolution options applicable to employment disputes?