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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)
October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?