Skip to main content

Article 6/2022

What factors are to be taken into account to determine whether or not an offer of alternative employment is lawful, as opposed to fair?

_____________________________________

In the Erasmus judgment [Article 4/2022], the employee rejected the offer of employment for, inter alia, the following reasons: it could not be expected of her to return to work after being treated the way she had been treated by her employer, she feared that she would not be able to cope with the work when returning, the perpetrator was still in a position of power in the municipality and, lastly, the people aligning themselves with the perpetrator indicated their dislike of her.

The high court, in essence, held that the same principles applicable in the labour law environment would also be applicable here within the delictual environment and entailed, amongst other things, that, if the employer created an intolerable environment, it was not lawful to expect the employee to mitigate her losses by returning to such intolerable environment.

It, furthermore, had to be determined whether or not the offer made by the municipality amounted to an impermissible circumvention of its recruitment procedures.

In Khanyile v Minister of Education and Culture, KwaZulu–Natal and Another (2006) 27 ILJ 769 (N), it was held that an appointment contrary to applicable statutory requirements is unlawful – an application of this process requires the following question to be determined: whether the reservation of a post on its organigram for Erasmus, for the purposes of settling a claim for future loss of earnings, contravenes the municipality’s recruitment policies and is, thus, unlawful?

With reference to s195 of the Constitution and s51 and s67 of the Local Government Municipal Systems Act 32 of 2000 (‘the Systems Act’), the municipality in casu sought to ensure fair and proper placement of municipal employees on its organigram by a placement policy and a relocation policy – both having been approved by the council of the municipality.

The following is a summary of such principles applicable to both placement and relocation: (i) posts will first be advertised internally and internal candidates will be given preference; (ii) in exceptional circumstances, where it is critical for service delivery and where specialised skills are required and no suitable internal candidates exist, posts will be advertised externally so that members of the public can apply; (iii) should there be no suitable applicants internally, other applicants may be considered in terms of normal selection/promotion criteria; (iv) approval of external filling of vacancies are to be obtained from the placement committee.

In terms of Khanyile, appointments in contravention of policies would be ultra vires and invalid (a municipality, as organ of state, has no authority to disregard its own policies).

The consequence of unlawful or unfair placement are as follows: (i) an aggrieved external candidate can claim that the appointment was unlawful in terms of PAJA; (ii) an internal candidate could claim that the failure to appoint constitutes an unfair labour practice; (iii) any person with locus standi can apply to have the settlement agreement set aside.

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?