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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
August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

August 10, 2026

What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?

In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

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Where do delictual claims fit into dispute resolution options applicable to employment disputes?