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Article 30/2021

Labour Edge

On what basis did the labour court recently hold, in De Kock v CCMA and Others (2019) 30 SALLR 177 (LC), that, when an unfair dismissal dispute is pursued, it does not mean, by implication, that a challenge of an earlier final written warning may be pursued as part of such unfair dismissal dispute?

The labour court recently, in De Kock, approached this issue as follows:

  1. the clear difference in the nature of the dispute, where it comes to an unfair dismissal dispute and an unfair labour practice dispute, has a consequence. This consequence is that each has its own distinct dispute resolution process. It follows that an unfair dismissal dispute must be pursued as such, and an unfair labour practice dispute must also be pursued as such. It cannot be legitimately contended that, when an unfair dismissal dispute is pursued by way of a referral to the CCMA, it would also, by implication, include a challenge of an earlier final written warning, even if that final written warning may have a bearing on the dismissal. The final written warning must be specifically challenged as an unfair labour practice. This must be done by a proper referral to conciliation served on the employer, following an unsuccessful conciliation at the CCMA;
  2. in National Union of Metalworkers of SA v Intervalve (Pty) Ltd and Others (2015) 36 ILJ 363 (CC); [2015] 2 BCLR 182 (CC), at paragraph [47], the constitutional court said:

‘In determining the objectives of s191, none of its provisions can be ignored. They must all be taken into account. That includes the requirement in s 191(3) that the employee must satisfy the council that a copy of the referral has been served ‘on the employer’. The general purpose of s191 provides the background against which the specific purpose of s191(3) must be understood. The subsection ensures that the employer party to a dismissal or unfair labour practice dispute is informed of the referral. The obvious objective is to enable the employer to participate in the conciliation proceedings, and, if they fail, to gird itself for the conflict that may follow’ (see also Mphahlele v Ephraim Mogale Municipality (2018) 39 ILJ 879 (LC), at paragraph [8]); and

  1. in the absence of a final written warning being challenged as an unfair labour practice, it simply cannot be challenged in the course of subsequent unfair dismissal proceedings. Even under the former LRA (Act 28 of 1956), the erstwhile industrial court recognised the necessity to distinguish between the challenge of a final written warning and a dismissal, and accepted that a final written warning cannot be challenged in subsequent litigation if it had not been specifically challenged earlier.
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?