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Article 6/2024

LabourEdge

SACCAWU and Others v Makgopela, the CCMA and Cashbuild (Pty) Ltd 2023 (44 ILJ 1229 (LAC); (2023) 34 SALLR 73 (LAC) is the first labour appeal court judgment handed down, so referring to derivative misconduct, after the constitutional court judgment of NUMSA v Dunlop Mixing and Technical Services (2019) 30 SALLR 2 (CC).

The labour appeal court judgment must thus be seen in this light and with the background of the constitutional court taking the following approach:

  • an employee, innocent of the actual perpetration of misconduct, who elects not to disclose information about the misconduct to the employer, is not guilty of derivative misconduct
  • the duty to disclose information about misconduct to the employer is not based on trust and confidence
  • in the above regard, there is no duty of good faith towards the employer (so to speak, the employee is not the employer’s keeper)

Taking the above into account, what are the rules governing derivative misconduct formulated by the constitutional court and recently referred to by the labour appeal court in the Cashbuild judgment (supra)?

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  • The duty to disclose knowledge about unlawful conduct of an employee is not based on a unilateral fiduciary duty.
  • The duty to disclose can, however, be based on a reciprocal contractual duty of good faith created by contract between the employer and the employee that entails, inter alia, the following:
    • the employee is required to disclose to the employer knowledge of the unlawful conduct
    • in return, the employer contractually undertakes to provide safety to the employee
    • in return, the employer also undertakes to protect the employee before, when and after the disclosure
  • The presence at the scene of the misconduct is not a requirement for derivative misconduct to be applicable.
  • The two fundamental requirements for derivative misconduct to be applicable within the aforementioned reciprocal contractual environment entails the following:
    • prior or subsequent knowledge of the misconduct
    • intention to associate with the misconduct
    • evidence of such association with the misconduct

(see, further, NUM v Marley Pipe Systems (2023) 33 SALLR 22 (CC))

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?