Skip to main content

Article 9/2025

The constitutional court, in Sidumo and Congress of SA Trade Unions v Rustenburg Platinum Mines Ltd, the CCMA and Moropa NO (2008) 19 SALLR 35 (CC), signalled the end of the reasonable employer test to be utilised when an arbitration award is taken on review. How does the pre-Sidumo scenario differ from the post-Sidumo
scenario that is currently applicable?

_____________________________________

PRE-SIDUMO SCENARIO

In this scenario, the following principles applied:

  • when the employer dismissed an employee, it utilised various ‘tools’, including statutory rights and obligations, as well as contractual rights and obligations
  • when the CCMA arbitrated the dismissal dispute, it utilised the reasonable employer test, entailing that the employer’s view of fairness prevailed and that the CCMA arbitrator only interfered with such viewpoint if the employer did not behave like a reasonable employer
  • the enquiry at the CCMA was not an enquiry de novo

POST-SIDUMO SCENARIO
In this scenario, the following principles are applicable:

  • when the CCMA arbitrates a dismissal dispute, the arbitrator sits as a reasonable decision-maker
  • the arbitrator performs an administrative function and is obliged to properly exercise its administrative powers
  • the commissioner’s view of fairness prevails and no longer the employer’s view of fairness
  • the reasonable decision-maker test is applied within an enquiry de novo
  • when the LC reviews the decision of the commissioner, the following considerations are applicable:
    • the grounds of review, as set out in s145(2) of the LRA, are still applicable, namely:
      • whether or not the commissioner committed misconduct in relation to his or her duties as an arbitrator;
      • whether or not the commissioner committed a gross irregularity;
      • whether or not the commissioner exceeded his/her powers;
      • whether or not the award has been improperly obtained
  • apart from the above, the grounds of review, as set out in s158(1)(g) of the LRA, are still applicable, namely, subject to s145, the LC may review the performance of any function provided in the LRA, on any ground permissible in law
  • thus, the grounds of review set out in the LRA have been maintained and are subsumed by the constitutional requirement of reasonableness
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?