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Article 30/2024

LabourEdge

The scenario is as follows: the employee was appointed as an accountant: creditors at a municipality; Absa Bank alerted the municipality that there were possible fraudulent activities going on and the services of PricewaterhouseCoopers were used to conduct a forensic investigation; such investigation indicated that employee X, who did not have access via the internet to the municipality’s account, attempted to access such account; employee X was charged with misconduct in that he ‘failed to conduct himself with honesty and integrity by attempting to access the municipality’s account’; the employee was found guilty and dismissed; subsequently, the relevant bargaining council reinstated the employee and the municipality was unsuccessful in its attempt to overturn the arbitration award.

After reinstatement, the municipality continued to investigate the matter and, on this basis, formulated two different new charges, namely: ‘Dishonesty in deceiving the municipality by sharing your computer password with other employees whereby the computer was being used for fraudulent activities’ and/or ‘failure to comply with your employer’s IT policy by sharing your computer password with other employees resulting in the computer being used for fraudulent activities’ – employee X was dismissed by the municipality and the relevant bargaining council determined that the dismissal was fair.

With reference to the aforesaid factual circumstances, what approach did the labour court recently adopt in SA Municipal Workers obo Malatsi v Local Government Bargaining Council and Others (2023) 44 ILJ 1317 (LC); (2023) 34 SALLR 78 (LC)?

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The labour court, in the aforesaid matter, per Prinsloo J, adopted the following approach to determine whether an employer can institute disciplinary action for a second time for conduct that arose from the same set of facts:

  • in BMW SA v Van der Walt (2002) ILJ 113 (LC), it was held that fairness is the only yardstick to determine whether a second enquiry is permissible – in essence, the same approach was followed in Branford v Metrorail (2003) 24 ILJ 2269 (LC) and Executive Council Finance KwaZulu-Natal v Dorkin [2008] 6 BLLR 540 (LAC)
  • in SARS v CCMA [2008] 6 BLLR 540 (LAC), it was held that the second enquiry would only be invalid if not permitted in terms of an applicable instrument, such as a disciplinary code, collective agreement, etc (this approach was followed in NUM v Arcelormittal [2020] 2 ZALCJHB 167
  • consequently, it was held that the dismissal of employee X was fair
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?