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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)
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?