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Article 33/2025

In terms of s34(1) of the BCEA, an employer may not make deductions from an employee’s remuneration unless, subject to s34(2), the employee agrees, in writing, or the deduction is made in terms of a law, collective agreement, court order or arbitration award.

In terms of s34(2) of the BCEA, a deduction in terms of s34(1) can only be made if:

  • the loss/damage occurred in the course of employment and the employee is at fault
  • the employer followed a fair procedure – i e give the employee a reasonable opportunity to show why deductions should not be made
  • the total amount of debt does not exceed the actual amount of loss/damage
  • the total deductions do not exceed a quarter of the employee’s remuneration in
    money

How did the labour appeal court, in North West Provincial Legislature and Another v National Education, Health and Allied Workers Union obo Members (2023) 34 SALLR 351 (LAC) apply the aforesaid statutory provisions if the employer erroneously made payment to employees while they were participating in a strike?

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The labour appeal court adopted, inter alia, the following approach:

  • the principle of no work no pay, applicable during a strike, whether lawful or unlawful (ito s67(3) of the LRA) is not in conflict with the aforesaid statutory provisions of the BCEA
  • there is a difference between an employer’s entitlement not to pay during a strike ito s67(3) of the LRA and an employer’s entitlement to deduct from the remuneration of employees ito s34 of the BCEA
  • although there is compliance with a fair procedure as required by s34(2)(b) of the BCEA, in the absence of such fair procedure leading to an agreement and in the absence of the other requirements being complied with (i e a law, collective agreement, court order arbitration award), the right to make deductions is not triggered
  • the no work, no pay principle, contemplated in s67(3) of the LRA, is not a law contemplated in s34(1)(b) 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?

August 3, 2026

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