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Article 8/2022

Is there a difference between an organ of state, such as a municipality, offering employment to settle a claim and an employer in an unfair dismissal dispute offering such a settlement?

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In Erasmus v Dr Beyers Naude Local Municipality and Jack (2021) 32 SALLR 6 (ECG), the following approach was adopted:

  • the municipality argued that it was ‘not really’ making an appointment but legitimately settling a claim
  • the high court held that it was not correct that the municipality could rely on a transfer policy, seeing that it was only applicable to employees in the employ of the municipality and Erasmus (seeing that she had resigned) was not an employee at the stage the offer was made – this is different from settling a dismissal matter by means of reinstatement because reinstatement does not entail the conclusion of a fresh contract of employment
  • furthermore, it was held that an organ of state is not entitled to fill vacancies for ulterior purposes, such as the settling of litigation
  • consequently, it was further held that an agreement reached by Erasmus to fill a vacancy would not pass constitutional muster, would be contrary to public policy and thus unenforceable (Corruption Watch NPC and Others v President of the Republic of South Africa; Nxasana v Corruption Watch NPC and Others 2018 (10) BCLR 1179 (CC), at paragraph [29])
October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?