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Article 3/2026

LabourEdge

Like its predecessor, namely, Schedule 8 to the LRA, the Code deals with probation.  In the above regard, the following indicates the similarities between the Code and the said repealed Schedule 8:

  • item 14 (the requirement to serve probation) corresponds with item 8(1)(a) of Schedule 8
  • item 15 (the purpose of probation) corresponds with item 8(1)(b) and item 8(1)(c) of Schedule 8
  • item 16 (the period of probation) corresponds with item 8(1)(d) of Schedule 8
  • item 17 (guidance during probation) corresponds with item 8(1)(e) of Schedule 8
  • item 18 (the principles regulating the decision not to confirm appointment post probation) corresponds with items 8(1)(h) and item 8(1)(j) of Schedule 8

But what happens if, despite the aforesaid probationary period and the principles regulating same, subsequent to such period (alternatively, without the assistance of such period), the performance delivered by the employee is branded unsatisfactory?

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Unsatisfactory performance of the probation

Item 19 of the Code (in line with items 8(2) and 8(4) of the repealed Schedule 8) requires the following before the employer could dismiss an employee for unsatisfactory performance:

  • the employer is required to give the employee appropriate evaluation, instruction, training, guidance or counselling
  • if, after a reasonable period provided for improvement, the employee continues to perform unsatisfactorily (obviously, after having been given the appropriate evaluation, instruction, training, guidance or counselling)
  • before dismissing, the employer should give the employee an opportunity to respond to the allegations of unsatisfactory performance

Guidelines for dismissal on the basis of incapacity poor work performance

In line with the repealed item 9(a) of Schedule 8, item 20(1)(a) of the Code requires that the first consideration is to determine whether or not the employee has indeed failed to meet the required standard.

Furthermore, in terms of item 20(1)(b) of the Code, any person determining whether a dismissal for poor work performance is unfair, should, secondly, consider whether:

  • the employee was aware, or reasonably could have been expected to have been award, of the required standard
  • the employee was given a fair opportunity to meet the standard
  • the standard was reasonably achievable (a requirement not previously contained in item 9(b) of the repealed Schedule 8)
  • the dismissal was the appropriate sanction for not meeting the standard

There are exceptions to the requirement that an employer must warn an employee that, if performance does not improve, dismissal may follow – these exceptions are contained in item 20(2) of the Code and were not part of the repealed Schedule 8 but, indeed, are in line with case law developments.  The two exceptions to the requirement that an employee must be so warned are as follows:

  • managers and senior employees – whose knowledge and expertise enables them to judge whether their performance is adequate or not
  • employees with a high degree of professional skill – covering those circumstances where a departure from the high standard would have severe consequences justifying dismissal
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?