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Article 56/2022

The labour appeal court recently, in Department of Rural Development and Agrarian Reform; Eastern Cape v General Public Service Sectoral Bargaining Council and Others (2020) 31 SALLR 150 (LAC); (2020) 41 ILJ 1321 (LAC), confirmed that, in respect of the non-promotion of an employee, interference by an arbitrator or the court is limited to very specific circumstances.  On what basis did the court make such a finding?

In the scenario where a preferred candidate for promotion did not take up the offer and the second best candidate was not so appointed, what are the considerations justifying the appointment and instatement into such post in respect of the second best candidate, as opposed to being awarded compensation?

Generally, there is no right to promotion and arbitrators and courts should hesitate before appointing an aggrieved employee to a post.  On what basis did the labour appeal court recently find that such deference would be less compelling where the employer has unfairly discriminated against the employee or acted otherwise egregiously?

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Murphy AJA (with Davis JA and Sutherland JA concurring), adopted the following approach in Department of Rural Development and Agrarian Reform (supra) in dealing with the above issues:

  • a decision on the merits of an unfair labour practice dispute stands to be reviewed in the light of whether it is one that no reasonable commissioner could reach.  The essential question for determination in this appeal, therefore, was whether the arbitrator’s finding, that the department’s omission to promote Musisi had been unfair and his deeming it reasonable to order the promotion, had been unreasonable
  • the department’s contention that restraint and deference were called for was not entirely misplaced, though somewhat overstated in the context of this case.  Courts and arbitrators should be reluctant to interfere with an employer’s decision to refuse promotion.  They will do so only when the decision or reasoning is assailable because there is evidence that the employer acted on the basis of some unreasonable, irrelevant or invidious consideration, or the decision was arbitrary, capricious or unfair, or the employer failed to apply its mind to the promotion or acted in bad faith (SA Police Service v Safety and Security Sectoral Bargaining Council and Others [2016] JOL 35883 (LC), at paragraph 41.3)
  • but equally, where there is no rational relationship between the decision not to promote, the purpose of the promotion and the information upon which the impugned decision is based, interference with the decision will be justified.  Because there is ordinarily no right to promotion, arbitrators and courts should hesitate before appointing the aggrieved employee to the post.  Such deference, however, will be less compelling where the employer has unfairly discriminated against an employee or acted otherwise egregiously.  Likewise, the remedy of instatement might be appropriate where it will cause no prejudice to another successful candidate because the post is vacant; or the employee proves that, but for the unfair conduct, he or she would have been appointed
  • in conclusion, the labour appeal court found that there was no basis for the labour court to interfere with the arbitrator’s finding and he had not erred in this regard – the aggrieved employee had been the only candidate eligible and suitable for appointment
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?