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Article 80/2021

Labour Edge

In respect of an order of reinstatement, what is the nature of the claim calculated from the day of the order granting reinstatement to the end of the judicial process challenging such order?

In respect of the so-called ‘second period’, calculated from the day after the judgment granting such order to the outcome of the judicial process challenging such order, the labour court recently, in Kubeka and Others v Ni-Da Transport (Pty) Ltd (2019) 30 SALLR 178 (LC), adopted the following approach:

  1. the court, in National Union of Metalworkers of SA obo Fohlisa and Others v Hendor Mining Supplies (2017) 38 ILJ 1560 (CC), had been evenly split on whether the debt incurred in respect of the second period had not perhaps been a contract debt. Madlanga J had viewed it as an artificial line to draw but Zondo DCJ, writing the second judgment, had found that, after the noting of an appeal, and until all appeals were exhausted, the portion of back pay occasioned by such a delay constituted a contractual debt. One of Madlanga J’s criticisms of this approach of Zondo DCJ was that it carved up the period during which there was non-compliance with the labour court’s order into separate periods that gave rise to different legal consequences;
  2. the ability to generate separate legal consequences, with respect, recommended the approach of Zondo DCJ to the labour court in casu. Accepting that an order in respect of the first period did not sound in money, could it not perhaps be that back pay associated with the second period, as a quantifiable contractual debt, did?;
  3. it is important to record that this matter was not about whether the applicants had been, at a colloquial level, entitled to the full amount of back pay for both the first and second periods. They plainly had been. However, the respondent had taken the point that the applicants had erred in not using the correct legal process to achieve the outcome which, barring the liquidation of the respondent, had otherwise been theirs for the taking. The labour court had considered whether, if, in terms of the second judgment in Hendor, claims for arrear wages for the second period were contractual debts, these amounts could not be claimed under s77(3) of the BCEA; and
  4. if one scanned Zondo DCJ’s views in the second judgment more widely, however, it appeared to him that contractual debts in respect of the second period only became due after the employer had reinstated the dismissed employees; and
  5. the labour court believed that there was simply no way of getting around the fact that the applicants had used the wrong process to obtain the relief they sought.

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?