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Article 35/2022

What are the principles governing substantive fairness of a dismissal and do such principles cater for a competent verdict (a finding of guilty on a different charge than a charge faced at the disciplinary enquiry)?

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The original approach entailed that a charge sheet is required to contain the charge(s)/allegation(s) that an employee is required to answer.  Therefore, for instance, where the element of intent is absent from the charge of fraud, the employee is to be found not guilty (National Commissioner, SAPS v Meyers [2012] 7 BLLR 688 (LAC).

However, subsequently, it was held that the above approach was unduly formalistic and the true enquiry was whether or not the dismissal was fair, with reference to the allegations against the employee or the standard of conduct required (Mashigo v SAPS [2018] 10 BLLR 943 (LAC).

The aforesaid identification of the true enquiry to be undertaken is based on the principle that disciplinary sanction may be imposed if:

  • the employee knew or reasonably should have known the workplace rule/standard
  • the workplace rule/standard had been contravened
  • no significant prejudice flowed from an incorrect categorisation of the alleged transgression (Woolworths v CCMA (2011) 32 ILJ 2455 (LAC), Mashigo judgment (supra) and SA Police Service v Magwaxaza and Others (2019) 30 SALLR 42 (LAC); (2020) 4 ILJ 408 (LAC)

The aforesaid three judgments of the labour appeal court also adopted the approach that all an employee is required to be informed of is that:

  • on a certain date, time and place
  • he/she allegedly acted wrongfully or
  • acted in breach of an applicable workplace standard/rule

In the light of the aforementioned summary of developments that took place, what is the content of a competent verdict within the labour law environment?

In EOH Abantu (Pty) Ltd v CCMA, Khumalo and Danney (2019) 30 SALLR 43 (LAC); (2019) 40 ILJ 2477 (LAC), referred to with approval in the SA Police Service judgment (supra), the following was stated in this regard:

  • an enquiry is not like a criminal trial where guilt is to be proven in respect of the charge the employee faces
  • the true enquiry is as stated in the Mashigo judgment (supra), namely, a determination as to whether or not the dismissal is fair with regard to the allegations made against the employee or the standard of conduct required from the employee
  • it is too formalistic to require guilt in respect of the charge (and elements) formulated by an employer
  • a competent verdict (another charge not mentioned) is therefore permitted if there is no prejudice to the employee – it is not a requirement that the competent verdict is to be mentioned in the charge sheet
  • it is, however, well-established that the employer cannot ordinarily change the charge or add a new charge after the commencement of the hearing if it is prejudicial to do so (Transport and General Workers Union and Another v Interstate Bus Lines (Pty) Ltd (1988) 9 ILJ 877 (IC); Samancor Chrome Ltd (Eastern Chrome Mines) v CCMA (2020) 31 SALLR 142 (LAC)).  Prejudice will be present if:
  • the employee would have conducted his or her defence differently or
  • would have had other defences (see also S v Mwali 1992 (2) SACR 281 (A))
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?

July 27, 2026

Before the BCEA Amendment Act of 2018 came into operation, if an employee was owed money in terms of a contract of employment, such employee’s only recourse was to utilise s77(3) of the BCEA to institute a claim with the labour court and the high court having concurrent jurisdiction.

In this period, before the BCEA Amendment Act of 2018, if monies were owed to an employee, in terms of a collective agreement, then, if the terms of such collective agreement had been incorporated into an employment contract, the above route was also the only avenue for such an employee.

Previous articles already dealt with some of the implications of s24 of the LRA. The CCMA only has jurisdiction over the interpretation or application of collective agreements and not the enforcement thereof.

What is the effect of the BCEA Amendment Act of 2018 on the dispute-resolution path for monies owed ito the National Minimum Wage Act (NMWA), a contract of employment, sectoral determination, or a collective agreement?