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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
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?