Skip to main content

Article 47/2021

Labour Edge

Which principles govern breaches of contracts in the employment sphere?

In Naidoo and Another v Standard Bank SA Ltd and Another (2019) 30 SALLR 183 (LC), the labour court recently stated the following:

  1. in Sihlali v SA Broadcasting Corporation Ltd (2010) 31 ILJ 1477 (LC), the court held that, where an employee resigns without giving the required notice period, that employee breaches the employment contract;
  2. in this situation, what would be the recourse available to the employer? This question was aptly answered in Vodacom (Pty) Ltd v Motsa and Another [2016] 5 BLLR 523 (LC); (2016) 37 ILJ 1241 (LC), which was quoted with approval in Sihlali as follows:

‘When an employee gives the required notice the contract terminates at the end of the notice period. When an employee leaves his or her employment without giving the required period of notice the employee breaches the contract. Ordinary contractual rules dictate that the employer may hold the employee to the contract and seek an order of specific performance requiring the employee to serve the period of notice. Alternatively, the employer may elect to accept the employee’s repudiation, cancel the contract and claim damages.’;

  1. a different view was expressed in Coetzee v Zeitz Mocca Foundation Trust and Others (2018) 39 ILJ 2529 (LC) and the unreported case of Mzotsho v Standard Bank South Africa Limited (J2426-18 handed down on 10 July 2018). In Coetzee, the court seems to suggest that Mtati was no longer persuasive since the correct reflection of the law was the one expounded in Vodacom;
  2. Vodacom restated the contractual principle that an employer, who is confronted with an immediate resignation in breach of the contract of employment, could hold the employee to the contract by seeking an order for specific performance;
  3. since it is accepted that the resignation terminates the contract of employment unilaterally, the order of specific performance would, in essence, reinstate the contract and direct performance with its terms;
  4. it is accepted that an order for the specific performance of a contract of employment will, in the exercise of the court’s discretion, not normally be granted (see Masetlha v President of the Republic of South Africa 2008 (1) SA 566 (CC); 2008 (1) BCLR (CC)). However, it does not mean it would never be granted.  A typical example is to be found in Nationwide Airlines (Pty) Ltd v Roediger and Another [2006] JOL 17221 (W), where an airline captain was held to his contractual undertaking to give three months’ notice; and

whilst the labour court in the present matter had concurred with both Coetzee and Mzotsho on contractual principles, it had, however, disagreed with the view that Standard Bank could proceed with the disciplinary hearing without first approaching the court for an order for specific performance.  There was no legal basis for such an approach.

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?