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Article 68/2021

Labour Edge

When applying s198 of the LRA, what is the content of the so-called ‘second fiction’ recently identified by the labour court in Chep SA (Pty) Ltd v Shardlow NO and Others (2019) 30 SALLR 169 (LC)?


Chep SA adopted the following approach: s198A(3)(b) is said to be the ‘gateway’ to s198A(5), which provides for ‘deemed employees’ to be treated no less favourably than the deemed employer’s directly engaged or permanent employees. In order to access both their s198A(3)(b) right to be deemed permanent, and their 198A(5) right to be treated no less favourably than other employees, a worker must be working for a TES. This fiction was referred to in this judgment as the second fiction created by s198.

What are the principles governing common purpose misconduct?

What are the principles governing an employee’s duty to disclose to his/her employer information about misconduct?

In Article 31, we dealt with the distinction between desertion and abscondment.

In Article 32, we dealt with the misconduct of deeming desertion.

In this article, we will deal with termination of employment by operation of law in the private sector – similar to deeming to be discharged in the public sector.