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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.

September 7, 2026

The previous article dealt with the distinction between misconduct constituting desertion and misconduct constituting abscondment – see, further, in this regard, Okhahlamba Local Municipality v Mabuya (2021) 32 SALLR 12 (LC).

In this article, what we attempt to do is provide some clarity as to a very different misconduct, namely, the misconduct of deeming desertion.

August 31, 2026

What is the difference between desertion and abscondment?

August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?