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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))
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?