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Article 35/2024

LabourEdge

In the scenario where an employer was not permitted to trade during the Covid-19 lockdown (i e hard lockdown), are the employees, who could not tender their services lawfully, entitled to their normal benefits, such as leave and bonus benefits?

What is the difference between the aforesaid scenario and the scenario where the employer was permitted to trade in some form during the national lockdown (i e soft lockdown) but elected not to do so on account of its evaluation that trading would not be profitable?

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The labour court, in Glen Carol (Pty) Ltd v National Bargaining Council for the Clothing Manufacturing Industry (2023) 44 ILJ 563 (LC); (2022) 33 SALLR 273 (LC), adopted the following approach to this scenario:

  • if the employer was not permitted to trade during the lockdown and the employees could not tender their services lawfully, this constitutes a form of temporary (subjective) impossibly of performance and the employer is not obliged to pay wages – seeing that the affected employees could not tender their services lawfully, under the above circumstances, the employer’s obligation to pay wages was equally suspended, including the entitlement to benefits, such as leave and bonus payment
  • however, different to the above is the scenario where the employer was permitted to trade in some form during the lockdown but elected not to do so – the affected employees could tender their services lawfully, but the employer refused to pay them and, under these circumstances, the defence of supervening impossibility of performance is not available to the employer (Matshazi v Mezepoli Melrose Arch (Pty) Ltd and Another (2021) 42 ILJ 600 (GJ))
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?