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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?

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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
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?

August 10, 2026

What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?

In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

August 3, 2026

Where do delictual claims fit into dispute resolution options applicable to employment disputes?