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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
October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?