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Article 73/2021

Labour Edge

In Thaver v Pick ‘n Pay Retailers (Pty) Ltd (2020) 41 ILJ 2655 (CCMA), the employee’s attorney signed the referral form to arbitration (LRA Form 7.13) before the issue of legal representation had been canvassed (neither had the parties agreed to legal representation nor had an application for legal representation been determined by the CCMA at such stage).  Does the CCMA have the requisite jurisdiction to arbitrate an alleged unfair dismissal dispute in such circumstances?

In Pick ‘n Pay Retailers, the CCMA, per Commissioner Grobler, dealt with this issue as follows:

  1. in the matter of Adams v National Bargaining Council for the Road Freight and Logistics Industry and Others (C700/16) [2018] ZALCCT 36 (7 September 2018), the labour court was called upon to review a jurisdictional ruling issued by a commissioner that the said bargaining council lacked the necessary jurisdiction to determine a dispute at conciliation in circumstances where the applicant’s attorney had signed and submitted the LRA form 7.11 (as well as the LRA form 7.13);
  2. while it is trite that legal representation is not permitted at conciliation, the labour court went further when it analysed the rules which regulate proceedings at the bargaining council. The court opined that the NBCRFLI rule 27 was almost word for word the same as CCMA rule 25, that is, that legal representation is not automatically granted in instances where an employee was dismissed for misconduct or capacity;
  3. it is not in dispute that the applicant in casu was dismissed for misconduct;
  4. the court, per Snyman AJ, then turned its attention to the dictionary meaning of the word ‘entitled’ which appeared in the NBCRFLI rules, as well as in CCMA rule 25(1)(c), before it held, at paragraph [24] of the judgment, that:

‘The dictionary definition of “entitled” is “having the right or permission to do something”, or the “enforceable right to claim something”.  Synonyms for the word in this context are “qualified” or “authorised”.  Considering these definitions, the applicant does not have the enforceable right to be represented by Rossouw, who in turn would not be authorized to represent the applicant.  Simply put, Rossouw is not entitled to represent the applicant, and as such cannot sign the dispute referral forms.’;

  1. thereafter, the court, accordingly, held, at paragraph [23]:

‘It follows that, applying the above considerations, and conducting a textual, logical and common sense reading of the NBCRFLI Rules, the applicant’s attorney, Rossouw, was not “entitled” to represent the applicant in either of the conciliation or arbitration proceedings.’; and

  1. consequently, the CCMA held that it lacked the requisite jurisdiction to arbitrate the matter.

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?