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Article 37/2023

On the basis of the constitutional court’s approach in McGregor v Public Health and Social Development Sectoral Bargaining Council and Others (2021) 32 SALLR 33 (CC), it is apparent that arbitrators and the courts are required to separately consider substantive fairness and procedural fairness issues when determining compensation.

It therefore appears not to be permissible for arbitrators and courts to consider fairness holistically, but what is required is to determine various relevant factors relating to substantive fairness and procedural fairness, independently, in determining compensation.

What is the recommended approach therefore to be followed in the light of the aforesaid approach of the constitutional court?

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The constitutional court, in McGregor, with reference to Liebowitz v Fernandes (2002) 23 ILJ 278 (LAC), identified the following approach that should be adopted when so determining compensation:

substantive fairness considerations

  • consideration must be given to the nature and extent of the misconduct (the reason for the dismissal plays an important role – e g dismissal on the basis of continual late coming is a less serious offence than dismissal on the basis of sexual harassment and this factor should be taken into account when determining compensation)
  • the attitude of the employee should also be considered
  • if the reason for which the employee was dismissed is serious, notwithstanding procedural unfairness, either no award for compensation should be made or it should be substantially limited

procedural fairness considerations

  • the degree of deviation from the required procedural fairness norm is important:
    • if it is insignificant, potentially such deviation should have a small influence on compensation
    • on the other hand, if such deviation is significant, it will potentially have a greater influence
      on the amount of compensation

In view of the aforesaid approach adopted by the constitutional court, it is submitted that, should there be non-compliance with the aforesaid principles, then potentially the award would be rendered reviewable

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?