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Article 34/2023

The constitutional court, in McGregor v Public Health and Social Development Sectoral Bargaining Council and Others (2021) 32 SALLR 33 (CC), identified the different discretions applicable when an arbitrator, firstly, makes the decision to award compensation and, secondly, determines the amount of compensation – not to be confused with the amount of back pay which was covered in articles 32/2023 and 33/2023.

What are the principles to be extracted from this judgment of the constitutional court that would be applicable during arbitrations and court proceedings when dealing with the issue of compensation?

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With reference to, inter alia, Rawlins v Kemp t/a Centralmed (2010) 31 ILJ 2325 (SCA); [2012] 1 BLLR 9 (SCA), the constitutional court had the following to say in respect of the discretion to be exercised when considering compensation:

the application of s193(1)(c) of the LRA

  • an application of this statutory provision finds application as to the arbitrator’s or court’s decision to award compensation, and not determining the amount of compensation
  • this entails the exercise of a judicial discretion – entailing that the reviewing or appeal body’s power to interfere is not limited and that it can come to its own decision on the merits
  • whether or not such judicial discretion has been correctly exercised entails an application of the
    reasonable decision-maker test

(see, further, Campbell v Simmers (2016) 37 ILJ 116 (LAC))

an application of s194 of the LRA

  • an application of this section is required to determine the amount of compensation
  • this entails the exercise of a narrow discretion, meaning that the reviewing or appeal body will only interfere on limited grounds with such amount
  • such limited grounds of interference have been identified by the constitutional court in National Coalition of Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) as to include the following:
    • the discretion was not exercised judicially
    • the decision-maker was influenced by wrong principles
    • the decision-maker was misdirected on the facts
    • the decision was not one that could reasonably have been made with reference to the relevant facts and applicable principles
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?