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Article 3/2025

Schedule 8 to the LRA contains substantive and procedural requirements applicable to misconduct and incapacity scenarios. What is the suggested approach to determine whether, when a workplace rule has been breached, specific items of Schedule 8 are applicable in determining whether there is compliance with such fairness requirements?

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SCENARIO 1

If the applicable workplace rule is breached in a manner that entails the existence of mens rea (intention or negligence on the part of the employee) and wrongfulness is present:

  • the breach amounts to misconduct
  • items 1 to 5 and 7 of Schedule 8 are applicable

SCENARIO 2

If the applicable workplace rule (in this scenario entailing that you are not permitted to participate in unprotected strike action or the collective withdrawal of labour) is breached in a manner that entails the existence of mens rea (intention or negligence on the part of the employee) and wrongfulness is present:

  • the breach amounts to misconduct
  • items 6 and 7 of Schedule 8 are applicable

SCENARIO 3

If the applicable workplace rule is breached in a manner that entails the absence of mens rea (the employee neither intentionally nor negligently breached the workplace rule) and wrongfulness is present and, furthermore, such breach is on the basis of the ill-health or injury of the employee:

  • the breach amounts to incapacity ill-health/injury
  • items 10 and 11 of Schedule 8 are applicable

SCENARIO 4

If the applicable workplace rule is breached in a manner that entails the absence of mens rea (i e the employee does not intentionally or negligently breach such rule) and wrongfulness is present and, furthermore, such breach is not on the basis of the ill-health/injury of the applicable employee:

  • then, by default, the breach amounts to incapacity poor work performance
  • items 8 and 9 of Schedule 8 are applicable

From the above, the following are, amongst others, evident:

  1. it is not the nature of the workplace rule that determines whether a misconduct or incapacity procedure and approach should be adopted;
  2. it is the manner in terms of which the workplace rule is breached (and not the upfront categorisation of such workplace rule) that determines whether a misconduct or incapacity approach should be adopted; and
  3. thus, the mere fact that a workplace rule is contained in a disciplinary code does not necessarily mean that a misconduct approach should be adopted – similarly, the mere fact that the workplace rule is contained in a performance policy, does not necessarily mean that an incapacity poor work performance approach must be adopted when there are breaches of such workplace rule.
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?