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Article 6/2025

If the dismissal of the employee is found to be substantively unfair, how is the period of reinstatement to be calculated? If the dismissal of the employee is found to be substantively unfair, how is the amount of back pay to be calculated?

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The constitutional court, in Moroveke v Talana NO (2021) 32 SALLR 34 (CC), had this to say in respect of the question as to the period of reinstatement :

  • when determining such period, the factor to be considered is the period of unemployment – i e if the unfairly dismissed employee was only unemployed for two months, the period of reinstatement should be limited to this period of unemployment
  • the purpose of the reinstatement order should be to achieve the above objective and not be utilised to enrich or impoverish the employee

See, further, Toyota SA Motors v CCMA (2016) 37 ILJ 313 (CC)

In the above matter, the constitutional court had the following to say as to the amount of back pay:

  • in dealing with this issue, the factor to be considered is the amount that the employee was ‘out of pocket’ during the period of unemployment – if the employee was out of pocket to the extent of R100.00, then this should be the amount of back pay
  • the purpose of back pay is to make good the employee’s loss and not to punish the employer
  • in essence, back pay should reflect the difference between the amount that the employee would have earned, and indeed earned, during the period of unemployment

See, further, Davids v Boland Rugby [2011] ZALCCT 69

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?