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Article 49/2022

In terms of s191(12) of the LRA, an employee being retrenched under certain limited circumstances has the choice of referring the matter either to arbitration or the labour court.  Is s191(12) of the LRA applicable if the individual employee’s dismissal formed part of a bigger retrenchment exercise involving other employees?

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Section 191(12) does not preclude an employee (who is consulted individually or dismissed individually) from having a dispute arbitrated by the CCMA simply because his retrenchment has formed part of a bigger retrenchment exercise involving other employees.

Commissioner Paul Botha, on 23 April 2014, in fact, issued a ruling to that effect in the unreported case of Van Rooyen Vermaak v PGC Group of Companies (Pty) Ltd.  He found that s191(12) applied and that the commission did have jurisdiction to arbitrate in a dispute where Mr Van Rooyen Vermaak had been one of a number of employees dismissed due to the respondent’s operational requirements, but where he had been consulted individually.

The employer, PGC Group of Companies (Pty) Ltd, took the ruling on review, but the labour court, in PGC Group of Companies (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (unreported case number JR1150/14, delivered on 14 August 2018), upheld his jurisdictional ruling, inter alia, stating the following:

‘[18] The first submission, that s191(12)(a) cannot apply when more than one employee is dismissed for operational reasons, cannot be correct.  Section 191(12)(a) must cater for a different scenario than paragraph (b).  Subsection 191(12)(a) finds application where more than one employee is dismissed for operational requirements and the employer has followed a consultation procedure that applied to that employee only.

[19] The second question is a question of fact as to whether the employer followed a consultation procedure that applied to that employee only.  The applicant (PGC Group) refers to documentation and indications that the third respondent (Van Rooyen Vermaak) was part of the general process.  In a sense he was.  That however is not the test.  The test is whether the employer followed a consultation process that applied to him.

[20] It is common cause that there was more than one employee affected.  The test however is whether the applicant (PGC Group) followed a process with the respondent (Van Rooyen Vermaak) separate from the rest.’

The court (at paragraphs [26] and [28]) concluded that there had been a process in general that had encompassed several employees, as opposed to the procedure that the employer had adopted in respect of Van Rooyen Vermaak.  The latter had been consulted on his own and the employer had concerned itself separately with his position whilst the wider process was continuing.  The court consequently held that Commissioner Botha’s finding had been correct and that the CCMA did have jurisdiction to arbitrate the dispute.

The employer’s subsequent application for leave to appeal was dismissed on 11 October 2018 and it had then petitioned the labour appeal court – also to no avail.  The case ultimately ended up in the constitutional court under case number CCT 74/19.  The constitutional court dismissed the employer’s application for leave to appeal on 22 May 2019, holding that it bore no reasonable prospects of success.

In Bouwer v South Zambezi Engineering Services (Pty) Ltd (2021) 42 ILJ 423 (CC), the CCMA, on the basis of what is stated above, concluded that in casu the applicant was the only person consulted and the only person dismissed and, therefore, the applicant qualified to exercise an election to refer the matter to the CCMA in terms of s191(12)(b) and s191(12)(c) of the LRA.

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?