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Article 49/2025

The labour court is afforded jurisdiction ito s77(1), read with ss77(3), of the BCEA to hear and determine any matter concerning a contract of employment, irrespective of whether a basic condition of employment constitutes a term of contract.

A number of supreme court of appeal decisions expressly stated that the dispute- resolution procedure provided for in the LRA does not defeat an employee’s right to rely on common law recourse, e g Fedlife Assurance Ltd v Wolfaardt 2002 (1) SA 49 (SCA) (Fedlife), Makhanya v University of Zululand [2009] 8 BLLR 721 (SCA) (Makhanya) and SA Maritime Safety Authority v McKenzie 2010 (3) SA 601 (SCA) (McKenzie).

Subsequent to the handing down of the aforementioned supreme court of appeal judgments, the constitutional court also dealt with the issue of the employee’s entitlement to common law remedies in Chirwa v Transnet and Others [2007] ZACC 23 (Chirwa), Gcaba v Minister of Safety and Security [2009] 12 BLLR 1145 (CC) (Gcaba), Steenkamp and Others v Edcon Ltd [2016] ZACC 1 (Steenkamp), Zungu v Premier of the Province of KwaZulu-Natal and Others [2008] 4 BLLR 323 (CC) (Zungu) and Baloyi v Public Protector [2021] 4 BLLR 325 (CC) (Baloyi). In essence, the approach adopted by the constitutional court has come to be relied upon by both the high court and the labour court to assume jurisdiction in disputes, stemming from dismissals referred as contractual dismissals. How did the labour appeal court recently view the aforesaid development that, in essence, permits a litigant the option of pursuing a claim, either on contractual grounds, or, alternatively, fairness grounds?

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The LAC, in PRASA and Nine Others v Onica Martha Ngoye and Two Others (2024) 35 SALLR 120 (LAC), had the following to say:

  • the SCA, in Fedlife, Makhanya and McKenzie, adopted the approach that the LRA rights are not the only rights an employee is entitled to
  • however, the SCA, in the majority judgment of Fedlife, adopted a different approach by indicating that the LRA comprehensively deals with the constitutional right to fair labour practices (s23 of the Constitution) and defeats the right to non-LRA recourses
  • the LAC in casu regarded this minority judgment as ‘far more persuasive’ than the approach adopted in Fedlife, Makhanya and McKenzie by the SCA
  • the LAC accepted that it is bound by the constitutional court judgment of Baloyi, but expressed concerns about the disadvantages of recognising a claim outside the LRA in indicating, inter alia, the following:
    • such approach overrides respect for the purpose-built employment framework in order to prevent a dual system of law
    • if contractual claims are permitted to be pursued and, if successful, there is still no guarantee in getting the job back or damages being awarded
  • seeing that the LAC is bound by the constitutional court judgment of Baloyi, an investigation as to the lawfulness or otherwise of a dismissal is to take place – however, what is to be determined is what happens if it is found that unlawfulness exists
  • once unlawfulness has been established, the primary remedy is specific performance, but it is not automatically granted
  • the court is to exercise a discretion whether to grant specific performance or not – some relevant factors in this regard are:
    • the facts and circumstances of the breach
    • the nature of the employment contract
    • the interaction between the parties
    • the potential conflict at the workplace
    • whether the employer still has a need for the employee
  • the alternative remedy to specific performance is damages, but will only be granted to the extent proven
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?