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Article 4/2024

LabourEdge

The Labour Relations Act 66 of 1995 (‘LRA’) has created a statutory formula to be applied when dealing with breaches of workplace rules.  Depending on the manner in terms of which the relevant workplace rule has been breached, various items of Schedule 8 of the LRA would be applicable.  What is the approach to be adopted to determine which items of Schedule 8 are applicable when judging the statutory fairness of an employer’s conduct?

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Scenario 1: misconduct

  • If the employee breached a workplace rule with fault (intentionally or negligently) and in a wrongful manner, then, in essence, the employee committed misconduct
  • Misconduct generally is to be treated in terms of items 1 to 5 and 7 of Schedule 8.
  • On the other hand, misconduct, entailing the participation in an unprotected strike and the collective withdrawal of labour, is to be dealt with in terms of items 6 and 7 of Schedule 8

Scenario 2: ill-health/injury

If the employee fails to comply with a workplace rule in a faultless scenario (i e without intention or negligent) but still wrongfully, and the basis for non-compliance with such workplace rule is his/her ill-health or injury, then items 10 and 11 of Schedule are applicable.

Scenario 3: poor-work performance

  • Scenario 3 is similar to scenario 2, but the only difference is that the reason for such non-compliance is not the ill-health/injury of the employee, but the employee’s poor work performance.
  • Treating an employee for poor work performance is thus the default position if non-compliance with a workplace rule has not been established on the basis of ill-health/injury and such non-compliance is faultless – items 8 and 9 of Schedule 8 of the LRA are then applicable.
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?