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Article 31/2024

LabourEdge

In terms of s41(4) of the BCEA, an employee, who unreasonably refuses to accept an employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay.

Is a binding agreement between a retrenching employer and the alternative employer required for the above section to be applicable and what role does the retrenching employer have to play in arranging alternative employment for such section to be applicable?

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  • The labour court recently, in Servest Landscaping Turf Maintenance (Pty) Ltd v SACCAWU (2023) 34 SALLR 77 (LC); (2023) 44 ILJ 380 (LC), adopted the following approach:
    • a distinction is to be drawn between the scenario where the retrenching employer plays a role in arranging alternative employment with another employer and the scenario that existed in Irvin & Johnson Ltd v CCMA and Others (2006) 17 (3) SALLR 1 (LAC); (2006) 27 ILJ 935 (LAC) (where the retrenching employer made it a condition that the successful bidder for service it was outsourcing would have to employ all its existing staff)
    • the Irvin & Johnson judgment (LAC) is thus only authority for the viewpoint that the absence of such mutually binding undertaking entails that the retrenched employees will still be entitled to severance pay in terms of s41(4) of the BCEA
    • on the other hand, the labour court confirmed the approach adopted by the labour appeal court, in Vergenoeg vir Seniors v Stone and Others (JA45/08) [2010] ZALAC 35 (4 June 2010), to the effect that the retrenching employer is not required to pay severance pay if it ‘arranged’ the alternative employment and such offer was brought about as a result of its efforts
  • In casu, the labour court came to the following conclusions:
    • a collaborative process was underway between the retrenching employer and the new employer to hold interviews and to make offers to employees facing retrenchment
    • the retrenching employer had set the ball rolling by approaching the new employer to take on the staff it could not accommodate
    • the retrenching employer kept a close eye on the new employer’s recruitment of its staff and made its facilities and premises available
    • there was no evidence that interviews had in fact been a barrier to employment
    • consequently, the labour court in casu held that there was no obligation on the retrenching employer to pay the requisite severance pay in terms of s41(4) of the BCEA
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?