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Article 36/2021

Labour Edge

On what basis will an employer be entitled to dismiss an employee who has been imprisoned?

The labour court recently, in Molehe v Public Health and Social Development Sectoral Bargaining Council and Others (2019) 30 SALLR 182 (LC), adopted the following approach:

  1. the applicant had relied on the principle that ‘incapacity’ in labour law could also arise from imprisonment. However, as the labour appeal court, in Samancor Tubatse Ferrochrome v Metal and Engineering Industries Bargaining Council and Others (2010) 3 ILJ 1838 (LAC), stated:

‘[13]   …[I]n principle, it cannot be the case that the law has developed an inflexible rule; that is that incapacity which is outside of the control of the employee cannot be a cause for dismissal.’;

  1. the labour court noted that the above labour appeal court judgment had, in fact, been overturned on appeal because of the way the review test had been applied. However, that incapacity, outside the control of an employee, can lead to either a fair or unfair dismissal was reaffirmed; and
  2. in National Union of Mineworkers and Another v Samancor Ltd (Tubatse Ferrochrome) and Others (2011) 32 ILJ 1618 (SCA); [2011] 11 BLLR 1041 (SCA), the supreme court of appeal stated as follows:

‘It was submitted before us by its counsel that Samancor had not purported to dismiss Mr Maloma for fault on his part (that is, for the disciplinary offence of absenteeism).  He was dismissed because he was no longer capable of performing his employment duties (that is, for incapacity).  Reminding us of the ordinary consequences for a contract of the inability of one party to perform, counsel submitted that the inability of Mr Maloma to present himself for work in itself entitled Samancor to bring the employment to an end, which is what it had purported to do.

The submission is not altogether correct.  While ordinary principles of contract permit a contracting party to terminate the contract if the other party becomes unable to perform, that is not the end of the matter in the case of employment.  The question that still remains in such cases is whether it was fair in the circumstances for the employer to exercise that election.  In making that assessment the fact that the employee is not at fault is clearly a consideration that might and should properly be brought to account.  But the fact that Mr Maloma was not at fault was not the sole reason for the arbitrator’s decision.  Another consideration that he took account of – and it was clearly decisive of his decision – was that there was “no evidence that [Mr Maloma] was occupying such a key position in the company that necessitated his dismissal after ten days of absence”…’

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?