Skip to main content

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?

_____________________________________

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))
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?