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Article 33/2022

The labour appeal court recently ruled that an employer cannot rely at arbitration on a reason for dismissal different from the reason for dismissal utilised internally.  What are the considerations to be taken into account in coming to such a conclusion and what are the consequences of this judgment?

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In Samancor Chrome Ltd (Eastern Chrome Mines) v CCMA and Others (2020) 31 SALLR 142 (LAC), the labour appeal court identified the following relevant principles:

  • an employer should notify the employee of any allegation of misconduct ‘using a form and language that the employee can reasonably understand’ (item 4(1), Schedule 8 Code of Good Practice: Dismissal)
  • while it is immaterial what label is given to the misconduct alleged, notice should be given in a manner which provides a reasonable degree of clarity so as to enable the employee to answer to the allegation raised (see Zeelie v Price Forbes (Northern Province) (1) (2001) 22 ILJ 2053 (LC), at 2063A-C; Mutual Construction Co Tvl (Pty) Ltd v Ntombela NO and Others [2009] ZALAC 14; (2010) 31 ILJ 901 (LAC); [2010] 5 BLLR 513 (LAC), at paragraph [41])
  • the arbitration hearing was one de novo with there being no bar on relevant additional evidence being adduced at arbitration.  This was so since the determination of the fairness of a dismissal at arbitration ‘is not reached with reference to the evidential material that was before the employer at the time of its decision but on the basis of all the evidential material before the arbitrator’ (County Fair Foods (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (1999) 20 ILJ 1701 (LAC); [1999] 11 BLLR 1117 (LAC), at paragraph [11]
  • it is, however, not open to an employer to alter or amend the reason for dismissal or to rely on an entirely different reason for such dismissal at arbitration, and there was no merit in the appellant’s submission that the employee’s misconduct ‘must be viewed through the prism of the contextualised version during the course of the domestic hearing and subsequent arbitration proceedings’.  To the extent that this suggested that it was permissible for the reason for dismissal to morph from that advanced by the employer at the time of dismissal to a different reason advanced at arbitration, this was simply not the case
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?