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Article 44/2024

LabourEdge

Section 188A(11) of the LRA reads as follows: ‘Despite subsection (1), if an employee alleges in good faith that the holding of an enquiry contravenes the Protected Disclosures Act, 2000 (Act 26 of 2000), that employee or the employer may require that an enquiry be conducted in terms of this section into allegations by the employer into the conduct or capacity of the employee.’

In the scenario where an employer has instituted disciplinary action against the employee, what are the jurisdictional pre-conditions to be met before s188A(11) of the LRA could be applicable?

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  • In terms of the Protected Disclosures Act 26 of 2000 (‘the Act’), disclosure means disclosure of information regarding any conduct of the employer or employee, made by an employee who has reason to believe that the information shows or tends to show, inter alia, an impropriety (e g a criminal offence having been committed or likely to be committed, or a person failing, or likely to fail, to comply with legal obligations).
  • In terms of s9 of the Act, any disclosure made in good faith by an employee is protected if the following conditions are met:
    • the employee who makes it reasonably believes that the information disclosed and the allegations contained in it are substantially fair
    • the disclosure is not made for personal gain, excluding any reward payable, and
    • in all circumstances it is reasonable to make a disclosure
  • In terms of the Act, ‘occupational detriment’ means, inter alia, being subject to any disciplinary action, being dismissed, suspended, demoted, harassed or intimidated, being transferred against his/her will, etc.
  • The requirement of good faith entails that the allegation of contravention must have the element of honesty and sincerity – the contravention must exist prima facie
  • The labour court, in Mulaudzi v Property Practitioners Regulatory Authority (2023) 34 SALLR 77 (LC), identified the following jurisdictional preconditions before an employee may invoke s188A(11):
    • the employee must have made a protected disclosure (a disclosure made to a legal adviser (s5), employer (s6), member of cabinet or executive council of province (s7), public protector or auditor general (s8)) – thereafter, the employer must have subjected the employee, who made the protected disclosure, to occupational detriment
    • once subjected to occupational detriment, the employee has to allege, honestly and sincerely, that a causal connection exists between his/her protected disclosure and the occupational detriment meted out by the employer
    • if any of the jurisdictional facts are absent, the relevant bargaining council, accredited agency or the CCMA lacks the jurisdiction to entertain the request that the enquiry be conducted
  • The labour court, in the aforesaid matter, also indicated the following:
    • if the CCMA, accredited agency or bargaining council accede to the request to utilise s188A(11), without the jurisdictional requirements having been met, the employer may review the decision in terms of s158(1)(g) of the LRA, on the grounds of legality (Nxele v National Commissioner: Department of Correctional Services and Others (2018) 39 ILJ 1799 (LC); Jacobs and Others v National Commissioner of SAPS and Another (J194/21)
    • the request to conduct an enquiry in terms of s188A(11) does not terminate the internal disciplinary hearing – same is only terminated once the decision has been made by the body to accede to the establishment of such enquiry on the basis of the jurisdictional requirements having been met
  • The fact that an employee is entitled to relief when an employer metes out occupational detriment, in terms of s186(2) of the LRA, does not exclude such employee from also utilising his/her civil remedies and this entails:
    • the utilisation of the actio legis aquiliae to recover patrimonial losses, and
    • the utilisation of the actio iniuriarum to claim non-patrimonial losses for injuries to the employee’s reputation (fama and self-worth (dignitas))
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?