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Article 31/2023

As has been the case as set out in article 30/2023, reinstatement or re-employment is the primary remedy but for the existence of the statutory defences.

Article 30/2023 dealt with s193(2)(b) of the LRA, whereas this article deals with the application of s193(2)(c) of the LRA.

What is the content of the defence of not being reasonably practicable to reinstate or re-employ as recently applied by the labour appeal court in Sibiya v SAPS (2022) 33 SALLR 28 (LAC), based on the viewpoint originally expressed by the constitutional court in 2019?

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In Sibiya, the labour appeal court followed the approach originally identified in Xstrata SA v NUM (2016) 39 ILJ 2313 (LAC); (2016) 27 SALLR 3 (LAC), and approved by the constitutional court in SACCAWU v Woolworths (2019) 40 ILJ 87 (CC), which entails the following:

what is the meaning of the phrase ‘not reasonably practicable’?

  • the term ‘practicable’ does not mean ‘practical’ and entails not practically feasible
  • something is not feasible if it is beyond possible and, therefore, what is required is that the situation would render reinstatement not practically feasible
  • a compelling operational burden exists to discharge the onus in this regard

what are the relevant and irrelevant factors?

  • a survey of the applicable case law indicates that the following factors are regarded as irrelevant:
    • short service
    • the fact that the dismissal took place a long time before the award was handed down
    • the employee needed further training
    • the original job no longer exists, etc
  • however, a survey of such case law indicates that at least the following two factors are regarded
    as relevant to determine the content of s193(2)(c) of the LRA:

    • the employer is facing liquidation
    • the employer is relocating

is there an onus on the employer to show that the reinstatement is thus not reasonably practicable?

  • the constitutional court, in Booi, and the labour appeal court, in Mthethwa, specifically rejected an
    approach that the onus is on the employer to show the existence of such a defence and that the
    arbitrator cannot mero motu, on the totality of the evidence, make such a finding
  • the view is thus held that, irrespective of the evidence presented, it is the statutory duty of the
    arbitrator to deal with this potential defence before making any appropriate award

the applicable review test?

  • the review test of the reasonable decision maker, as formulated in Sidumo, is applicable and that
    entails, inter alia, that:

    • s145(2)(a) grounds remain applicable (the presence of misconduct, gross irregularity, the
      arbitrator exceeding his or her powers or an award improperly obtained)
    • once established, it is not required to utilise specifically the ‘reasonable decision-maker test’

(see, further, Herholdt v Nedbank Ltd 2013 (6) SA 224 (SCA))

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?