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Article 48/2024

LabourEdge

In the scenario where an employer incorrectly increases employees’ salaries and car allowances, are the employees entitled to approach the high court to determine whether or not the employer’s subsequent action in reversing such increases amounts to a breach in terms of s34 of the BCEA?

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  • The high court, in Ngcangula v Mhlontlo Local Municipality and Others; Nqekeho v Mhlontlo Local Municipality and Others (2022) 33 SALLR 267 (ECM); [2022] 12 BLLR 1177 (ECM), adopted the following approach:
    • in terms of s34 of the BCEA, the employer may not make any deduction from an employee’s remuneration unless:
      • the employee, in writing, agrees to the deduction in respect of the debt specified in an agreement, or
      • the deduction is permitted in terms of law, collective agreement, court order or arbitration award
    • in terms of s34(2) of the BCEA, a deduction made, in terms of s34(1)(a), is to reimburse the employer for loss or damage, only if:
      • the loss or damage occurred during the course of employment and due to the fault of the employee
      • the employer followed a fair procedure and gave the employee a reasonable opportunity to show why the deduction should not be made
      • the total amount of debt does not exceed the actual amount of loss or damage
      • the total deductions from the employee’s remuneration do not exceed one-quarter of the employee’s remuneration in money
    • it is also worthy to refer to s34(5) of the BCEA, that indicates that an employer may not require or permit an employee to repay any remuneration, except for overpayments resulting from an error in calculating remuneration
    • in casu, the employees based their claim on their contractual rights and the employer relied on s34(1) and s34(2) of the BCEA to justify its action
    • according to the labour court, the employer, in casu, was not able to place any reliance on a provision of law, collective agreement, court order or arbitration award
    • the civil courts and the labour court have concurrent jurisdiction to determine any matter concerning a contract of employment, irrespective of whether any basic condition of employment constitutes a term of the BCEA – with reference to Gcaba v Minister for Safety and Security 2010 (1) SA 238 (CC), the high court in casu held that it had jurisdiction to determine the labour dispute concerning the aforementioned contractual rights, dealing with the deduction from the employees’ remuneration already paid to them – the high court, in conclusion, found that the deductions from the employees were in breach of s34(1) of the BCEA (it was also found that the deductions constituted unfettered self-help by the state, taking the law into its own hands and, therefore, constituting a violation of s1(c) of the Constitution of the Republic of South Africa.

See, further, North West Provincial Legislature v National Education, Health and Allied Workers Union (2023) 34 SALLR 81 (LAC).

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?