A Practical Guide to

Labour Law
Ninth Edition
 A Practical Guide to
Labour Law
Ninth Edition

Authors

JV du Plessis
BA LLB LLD (Unisa)
Advocate of the High Court
Emeritus Professor of Mercantile Law

MA Fouché
BIuris LLB NHD PSE
Advocate of the High Court
Professor of Labour Law
Senior Commissioner of the CCMA and bargaining councils

Editor

MA Fouché

Members of the LexisNexis Group worldwide

South Africa LexisNexis (Pty) Ltd
www.lexisnexis.co.za
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© 2019
First Edition 1994; reprinted 1996
Second Edition 1996; reprinted 1997, 1998
Supplement to the Second Edition 1998
Third Edition 1998; reprinted 1999, 2000, 2001
Fourth Edition 2001
Fifth Edition 2002; reprinted 2003, 2004, 2005
Sixth Edition 2006; reprinted 2007, 2011
Seventh Edition 2012
Eighth Edition 2015; reprinted 2016, 2017, 2018 (twice)

ISBN softcover 978-0-6390-0442-6

e-book 978-0-6390-0443-3

Copyright subsists in this work. No part of this work may be reproduced in any form or by any means without the
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Whilst every effort has been made to ensure that the information published in this work is accurate, the authors,
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reliance upon the information contained therein.
 PREFACE

The main objective of this book is to simplify the study of Labour Law, yet at the same time to
encourage independent thinking and greater understanding of the subject.
The first edition of A Practical Guide to Labour Law was welcomed and very well received at
academic institutions and in practice. The second edition was necessitated by the introduction of
the new Labour Relations Act of 1995. Subsequent editions followed to include new legislation,
such as the Employment Equity Act, the Skills Development Act, the Skills Development Levies Act,
the new Unemployment Insurance Act and the Unemployment Insurance Contributions Act. The
amendments to the Labour Relations Act and the Basic Conditions of Employment Act in 2002 were
incorporated in the fifth edition. The sixth and seventh editions included amendments to all the
Acts, as well as an overview of other relevant legislation that a labour practitioner should be aware
of.
Labour legislation received considerable attention over the past number of years and significant
changes were made to the Basic Conditions of Employment Act, the Employment Equity Act and
the Labour Relations Act in 2013 and 2014 and again in 2018 and 2019. The amendments to the
EEA came into operation on 1 August 2014. The 2013 amendments to the BCEA came into operation
on 1 September 2014 and the 2018 amendments came into effect on 1 January 2019. The 2014
amendments to the LRA came into operation on 1 January 2015 and the 2018 amendments took
effect on 1 January 2019. In addition to these amendments, the new National Minimum Wage Act
and the Labour Laws Amendment Act were enacted. All these amendments and the new legislation
have been included in this, the ninth, edition.
A Practical Guide to Labour Law is aimed at and can fruitfully be used by all involved in the
study and practice of Labour Law. For non-legal students this book should suffice as a primary
source for their studies; the studying of decided cases will not only be interesting, but will also
improve their insight. Law students will find this book an indispensable aid in their study of Labour
Law. It will complement their study material and the inclusion of case studies and appendices will
elevate their studies to a more advanced level.
Labour Law and industrial relations practitioners may also find the book useful for the purpose
of revising or referring to the most recent principles applicable to a particular aspect. Decided cases,
prescribed forms and Codes of Good Practice have been included.
Each chapter covers specific but salient aspects which are encountered daily in the study and
practice of Labour Law. A chapter starts off by giving the most important current principles
applicable to the topic under discussion and this is followed by questions and case studies to aid in
the application of the legal principles in question. Some of the case studies are based on actual
court and CCMA cases and, where applicable, reference is made to those cases. Some of the
prescribed forms have also been included, such as referring a dispute to the CCMA to show the
reader how things work in practice.
The authors would like to extend their sincere gratitude to the management and staff of
LexisNexis for their assistance in the preparation and publication of the ninth edition of this
publication.
Editor May
2019
v
 A Practical Guide to Labour Law

vi

NOTE TO THE READER

In this publication any reference to one gender includes the
other unless the text specifically states otherwise.
Reference to one gender only is not intended to be
discriminatory.
 CONTENTS

Page
Preface .................................................................................................................................. v

Part 1: Common Law

1 Introduction ................................................................................................................... 3
1.1 Background .......................................................................................................... 3
1.2 Sources of Labour Law rules ............................................................................... 4
1.3 Lexical order of sources and rules ......................................................................
4
Questions ....................................................................................................................... 7
2 Common law contract of employment ......................................................................... 9
2.1 Introduction ......................................................................................................... 9
2.2 Nature of locatio conductio operarum (contract of employment) ........................ 9
2.3 Conclusion of the contract .................................................................................. 14
2.4 Essentialia of the employment contract ............................................................... 15
2.4.1 Specified work ........................................................................................ 15
2.4.2 Remuneration......................................................................................... 16
2.5 Conditions of employment .................................................................................. 16
2.6 Duties of employer ............................................................................................... 17
2.6.1 To accept the employee into his service ............................................... 17
2.6.2 To provide the employee with work ...................................................... 17
2.6.3 To pay the remuneration agreed upon ................................................ 18
2.6.4 To pay a quantum meruit ......................................................................... 18
2.6.5 To provide safe working conditions ...................................................... 19
2.6.6 To comply with statutory duties ............................................................ 19
2.7 The employee’s remedies .................................................................................... 19
2.7.1 Cancellation ............................................................................................ 20
2.7.2 Specific performance ............................................................................. 20
2.7.3 Damages .................................................................................................. 20
2.7.4 Refusal to work ....................................................................................... 20
2.7.5 Statutory remedies ................................................................................. 20
2.8 The employee’s duties ......................................................................................... 21
2.8.1 To make his services available ............................................................... 21
2.8.2 To warrant his competence ................................................................... 21
2.8.3 To obey the employer ............................................................................ 22
2.8.4 To be subordinate to the employer ...................................................... 22
2.8.5 Maintaining bona fides ............................................................................ 22
2.8.6 To exercise reasonable care when using the employer’s property ..... 23
 A Practical Guide to Labour Law

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2.8.7 To refrain from misconduct .................................................................. 23

2.9 The employer’s remedies .................................................................................... 23
2.9.1 Summary dismissal ................................................................................. 23
2.9.2 Specific performance ............................................................................. 24
2.9.3 Damages .................................................................................................. 24
2.9.4 Statutory remedies ................................................................................. 25
2.10 Termination of the contract of employment ..................................................... 25
2.10.1 By notice ................................................................................................. 25
2.10.2 By the effluxion of time or completion of a specific task .................... 26
vii
viii

2.10.3 By agreement .......................................................................................... 26

2.10.4 By the death of the employee ................................................................ 26
2.10.5 By insolvency ........................................................................................... 26
2.10.6 By the illness of the employee ............................................................... 27
2.10.7 By impossibility of performance ............................................................ 27
2.10.8 By cancellation (summary termination) ............................................... 27
2.10.9 Redundancy of post ............................................................................... 28
2.11 The employer’s delictual liability ........................................................................ 28
2.11.1 Employer/employee relationship ......................................................... 28
2.11.2 The delict must have been committed by the employee in the
scope of employment ............................................................................. 28
2.11.3 The employer’s liability for the delicts of an independent
contractor ............................................................................................... 30
2.12 Restraint of trade ................................................................................................. 30 2.13 The
employer and third parties .......................................................................... 31 Questions
....................................................................................................................... 32
Appendix ........................................................................................................................ 35

Part 2: Social Legislation

3 Basic conditions of employment & minimum wages .................................................. 49
3.1 Introduction ......................................................................................................... 49
3.2 Objectives of legislation setting minimum standards ........................................ 50
3.3 Definitions ............................................................................................................ 51
3.4 Application ........................................................................................................... 53
3.5 Conditions of employment .................................................................................. 54
3.6 Chapter 2: Regulation of working time .............................................................. 54
3.6.1 Ordinary working hours ........................................................................ 55
3.6.2 Overtime ................................................................................................. 55
3.6.3 Compressed working week .................................................................... 56
3.6.4 Averaging of hours of work ................................................................... 56
3.6.5 Meal intervals and rest periods .............................................................. 56
3.6.6 Work on Sundays and public holidays .................................................. 56
3.6.7 Night work .............................................................................................. 57
3.7 Leave ..................................................................................................................... 57
3.7.1 Annual leave ........................................................................................... 58
3.7.2 Sick leave ................................................................................................. 58
3.7.3 Maternity leave ....................................................................................... 59
3.7.4 Parental leave.......................................................................................... 60
3.7.5 Adoption leave ........................................................................................ 60
3.7.6 Commissioning parental leave .............................................................. 60
3.7.7 Family responsibility leave ..................................................................... 61
3.8 Particulars of employment and remuneration ................................................... 62
3.9 Termination of employment ............................................................................... 64
3.10 Minimum wages ................................................................................................... 65
3.10.1 Minimum wage in terms of the NMWA ................................................ 65
3.10.2 Exemptions ............................................................................................. 67
3.11 Prohibition of employment of children and forced labour .............................. 68
3.12 Variation of conditions of employment .............................................................. 68
3.12.1 Variation by agreement .......................................................................... 68
3.12.2 Variation by ministerial determination ................................................. 68
3.12.3 Sectoral determinations ......................................................................... 69
3.13 National Minimum Wage Commission ............................................................... 72
3.14 Monitoring and enforcement ............................................................................. 72
3.15 Dispute resolution ................................................................................................ 74
3.16 General ................................................................................................................. 75
Contents ix

Page
Questions .......................................................................................................................
76 Appendices
.................................................................................................................... 80
4 Employment Equity Act 55 of 1998 .............................................................................. 97
4.1 Introduction ......................................................................................................... 97
4.2 Constitutional equality ......................................................................................... 97
4.2.1 The equality clause ................................................................................. 97
4.2.2 The affirmative action clause ................................................................. 98
4.2.3 The anti-discrimination clause .............................................................. 98
4.2.4 Proof of discrimination .......................................................................... 98
4.3 The objectives of the Employment Equity Act ................................................... 100
4.4 Application of the Employment Equity Act ....................................................... 100
4.5 Chapter II – Prohibition of unfair discrimination ............................................. 101
4.5.1 Meaning of “unfair discrimination” ...................................................... 101
4.5.2 Provisions of Chapter II ......................................................................... 102
4.5.3 Dispute resolution .................................................................................. 103
4.6 Chapter III – Affirmative action .......................................................................... 105
4.6.1 Affirmative action measures .................................................................. 105
4.6.2 Duties of designated employers ............................................................ 105
4.7 Commission for Employment Equity .................................................................. 107
4.8 Monitoring, enforcement and legal proceedings .............................................. 108
4.8.1 Labour inspectors ................................................................................... 108
4.8.2 The Director-General ............................................................................. 108
4.8.3 The Labour Court .................................................................................. 109
4.9 Protection of employee rights ............................................................................. 109 4.10
General provisions ............................................................................................... 110
Questions ....................................................................................................................... 110
Appendices .................................................................................................................... 116
5 Unemployment insurance laws ..................................................................................... 135
5.1 Introduction ......................................................................................................... 135
5.2 Definitions ............................................................................................................ 135
5.3 Application of the Unemployment Insurance Act ............................................. 136
5.4 Framework of the Unemployment Insurance Act ............................................. 136
5.4.1 Unemployment Insurance Fund ........................................................... 136
5.4.2 Unemployment Insurance Board .......................................................... 137
5.4.3 Unemployment Insurance Commissioner ............................................ 137
5.4.4 Claims officers ........................................................................................ 137
5.4.5 Director General .................................................................................... 137
5.5 Benefits ................................................................................................................. 137
5.5.1 Right to benefits ..................................................................................... 137
5.5.2 Calculation of benefits ........................................................................... 138
5.5.3 Unemployment benefits ........................................................................ 139
5.5.4 Illness benefits ........................................................................................ 141
5.5.5 Maternity benefits .................................................................................. 142
5.5.6 Parental benefits ..................................................................................... 142
5.5.7 Adoption benefits ................................................................................... 143 5.5.8
Commissioning parental benefits ......................................................... 144
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5.5.9 Dependants’ benefits .............................................................................
145
5.5.10 General provisions relating to benefits .................................................
146
5.6 Dispute resolution ................................................................................................ 146
5.7 Enforcement ......................................................................................................... 147
5.8 Duties of employer ............................................................................................... 147
5.9 Miscellaneous ....................................................................................................... 148 5.10
Unemployment Insurance Contributions Act 4 of 2002 ................................... 149
Questions ....................................................................................................................... 150
Appendices .................................................................................................................... 150
6 Compensation for Occupational Injuries and Diseases Act 130 of 1993 ..................
167
6.1 Introduction ......................................................................................................... 167
6.2 Application of the Act .......................................................................................... 168
6.3 Duties of employer ............................................................................................... 168
6.4 Procedure to claim compensation ...................................................................... 169
6.5 The right to compensation .................................................................................. 169
6.6 Compensation ...................................................................................................... 170
6.6.1 Temporary disablement .........................................................................
170
6.6.2 Permanent disablement .........................................................................
171
6.6.3 In the event of the death of an employee .............................................
171
6.6.4 Compensation for occupational diseases ..............................................
172
6.6.5 Increased compensation ........................................................................
172
6.7 Claiming compensation from the employer or a third party ............................ 172 6.8
Occupational Diseases in Mines and Works Act 78 of 1973 .............................. 173
Questions ....................................................................................................................... 173
Appendices .................................................................................................................... 177
7 Occupational Health and Safety Act 85 of 1993 ......................................................... 187
7.1 Introduction .........................................................................................................
187
7.2 Application of the Act ..........................................................................................
187
7.3 Advisory Council for Occupational Health and Safety ......................................
188
7.4 Duties of employers .............................................................................................
188
7.5 Duties of employees .............................................................................................
189
7.6 Health and safety representatives .......................................................................
189
7.7 Health and safety committees .............................................................................
190
Contents xi

Page
7.8 Inspectors .............................................................................................................
191
7.9 Miscellaneous .......................................................................................................
192 7.10 Mine Health and Safety Act 29 of 1996
.............................................................. 193 Questions
....................................................................................................................... 193
Appendix
........................................................................................................................ 196
8 Skills development ........................................................................................................ 199
8.1 Introduction .........................................................................................................
199
8.2 Skills development strategy .................................................................................
200
8.3 The skills development strategy in the context of legislation and other
policy proposals .................................................................................................... 200
8.4 Skills Development Act 97 of 1998 ......................................................................
201
8.4.1 Introduction ...........................................................................................
201
8.4.2 Purposes of the Act ................................................................................
201
8.4.3 Structures of learning ............................................................................
202
8.4.4 Skills development programmes ...........................................................
204
8.4.5 Financing of skills development ............................................................
206
8.4.6 Legal proceedings ..................................................................................
206
8.5 Skills Development Levies Act 9 of 1999 ............................................................ 207
8.6 Payment of
grants................................................................................................. 207
Questions ....................................................................................................................... 208
Appendix ........................................................................................................................ 209
9 Employment Services Act 4 of 2014 ............................................................................. 219
9.1 Introduction .........................................................................................................
219
9.2 Definitions ............................................................................................................
219
9.3 Framework of the Act ..........................................................................................
220
9.3.1 Public employment services ...................................................................
220
9.3.2 Private employment agencies ................................................................
221
9.3.3 Productivity South Africa .......................................................................
221
9.3.4 Supported Employment Enterprises .....................................................
221
xii A Practical Guide to Labour Law

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9.3.5 Employment Services Board ..................................................................
222

9.4 Work schemes .......................................................................................................

222

9.5 Employment of foreigners ...................................................................................

222

9.6 Monitoring and enforcement .............................................................................

222

Questions .............................................................................................................................. 223

Part 3: Labour Relations

10 Development of South African Labour Law ............................................................... 227

10.1 Introduction .........................................................................................................

227

10.2 National Economic, Development and Labour Council Act 35 of 1994 .......... 228

10.2.1 Establishment of NEDLAC ....................................................................

228

10.2.2 Objectives and functions of NEDLAC ..................................................

229

Questions ....................................................................................................................... 230

11 Labour Relations Act 66 of 1995 .................................................................................. 231

11.1 Introduction .........................................................................................................

231

11.2 Application of the LRA ........................................................................................

233

11.3 Atypical employment ...........................................................................................

235

Questions ....................................................................................................................... 238

12 Framework of the Labour Relations Act...................................................................... 241

12.1 Introduction .........................................................................................................

241

12.2 Trade unions and employers’ organisations ......................................................

242

12.3 Bargaining councils .............................................................................................

244
Contents xiii

Page
12.3.1 Establishment of a bargaining council .................................................
244

12.3.2 Functions of bargaining councils ..........................................................

245

12.3.3 Bargaining councils in the public service .............................................

245

12.4 Statutory councils .................................................................................................

247

12.4.1 Establishment and registration of statutory councils ...........................

247

12.4.2 Powers and functions of statutory councils ..........................................

247

12.5 Commission for Conciliation, Mediation and Arbitration (CCMA) ................... 248

12.5.1 Establishment of the CCMA ..................................................................

248

12.5.2 Functions of the CCMA .........................................................................

248

12.6 Labour Court ........................................................................................................

249

12.6.1 Composition ...........................................................................................

249

12.6.2 Jurisdiction ..............................................................................................

249

12.6.3 Powers and functions of the Labour Court ..........................................

250

12.6.4 General provisions relating to the Labour Court ................................

250

12.7 Labour Appeal Court ...........................................................................................

251

12.7.1 Composition ...........................................................................................

251

12.7.2 Jurisdiction ..............................................................................................

251

12.8 Workplace forums ................................................................................................

252
xiv A Practical Guide to Labour Law

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Questions ....................................................................................................................... 252

13 Freedom of association ................................................................................................. 255

13.1 Introduction .........................................................................................................

255

13.2 Employee rights ....................................................................................................

255

13.3 Employer rights ....................................................................................................

256

13.4 Trade union and employers’ organisation rights ..............................................

257

13.5 Freedom of association disputes .........................................................................

257

Questions ....................................................................................................................... 257

14 Collective bargaining .................................................................................................... 259

14.1 Introduction .........................................................................................................

259

14.2 Recognition and the duty to bargain ..................................................................

259

14.3 Organisational rights ...........................................................................................

260

14.3.1 Right of access to workplace ..................................................................

264

14.3.2 Deduction of trade union subscriptions or levies ................................

264

14.3.3 Leave for trade union activities .............................................................

265

14.3.4 Trade union representatives ..................................................................

265

14.3.5 Disclosure of information ......................................................................

266

14.3.6 Exercise of organisational rights ...........................................................

266

14.3.7 Resolution of disputes about organisational rights ..............................

267
Contents xv

Page
14.4 Collective bargaining structures ..........................................................................
268

14.4.1 Bargaining councils ................................................................................

268

14.4.2 Statutory councils ...................................................................................

269

14.4.3 Workplace forums ..................................................................................

269

14.5 The bargaining process .......................................................................................

269

14.5.1 Bargaining unit .......................................................................................

269

14.5.2 Bargaining levels ....................................................................................

270

14.5.3 Bargaining agenda .................................................................................

270

14.5.4 Bargaining conduct ................................................................................

270

14.6 Collective agreements ..........................................................................................

271

14.6.1 Legal effect of collective agreements ....................................................

271

14.6.2 Agency shop agreements .......................................................................

272

14.6.3 Closed shop agreements ........................................................................

273

14.6.4 Funding agreements ..............................................................................

273

14.6.5 Resolution of disputes about collective agreements ............................

274

Questions ....................................................................................................................... 275

Appendices .................................................................................................................... 278

15 Strikes and lockouts ...................................................................................................... 291

15.1 Introduction .........................................................................................................

291
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15.2 A right to strike ....................................................................................................
291

15.3 Definition of a strike ............................................................................................

292

15.4 Prohibited strikes (absolute limitations on industrial action) ..........................

292

15.4.1 Essential services .....................................................................................

293

15.4.2 Maintenance services .............................................................................

294

15.5 Protected strikes ...................................................................................................

294

15.6 Consequences of a strike .....................................................................................

296

15.7 Other forms of industrial action .........................................................................

297

15.7.1 Secondary strikes ....................................................................................

297

15.7.2 Picketing .................................................................................................

298

15.7.3 Protest action to promote or defend socio-economic interests ..........

299

15.8 Determining the nature and status of industrial action ....................................

300

15.9 Lockouts ...............................................................................................................

302

Questions ....................................................................................................................... 303

Appendices .................................................................................................................... 307

16 Worker participation ..................................................................................................... 331

16.1 Introduction .........................................................................................................

331

16.2 Establishment of a workplace forum ..................................................................

332

16.3 Worker participation ...........................................................................................

333
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Page
16.3.1 Disclosure of information ......................................................................
333

16.3.2 Matters for consultation .........................................................................

333

16.3.3 Joint decision-making ............................................................................

334

16.4 Dispute resolution ................................................................................................

335

Questions ....................................................................................................................... 335

Appendix ........................................................................................................................ 336

17 Dismissals ....................................................................................................................... 341

17.1 Introduction .......................................................................................................
341
17.2 Definition of dismissal .......................................................................................
342
17.3 Automatically unfair dismissals .........................................................................
345
17.4 Date of dismissal ................................................................................................
347
17.5 Requirements for a fair dismissal ......................................................................
347
17.5.1 Substantive fairness .............................................................................
347
17.5.2 Procedural fairness .............................................................................
348
17.6 Dismissal for misconduct ...................................................................................
349
17.7 Dismissal for incapacity .....................................................................................
351
17.8 Dismissal for operational requirements ...........................................................
354
17.9 Disputes about unfair dismissals .......................................................................
356
17.10 Remedies for unfair dismissal ........................................................................... 360
17.11 Transfer of the contract of employment ..........................................................
361 Questions
....................................................................................................................... 363
Appendices
.................................................................................................................... 371
18 Unfair labour practices ................................................................................................. 381
18.1 Introduction .......................................................................................................
381
18.2 Definition of “unfair labour practice” ..............................................................
382
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Page
18.3 Promotions .........................................................................................................
383
18.4 Demotions ..........................................................................................................
386
18.5 Benefits and training .........................................................................................
387
18.6 Unfair suspension and other disciplinary action ............................................. 389
18.7 Refusal to reinstate or re-employ ......................................................................
390
18.8 Probation ............................................................................................................
391
18.9 Protected Disclosures Act of 2000 ....................................................................
392
18.10 Job applicants .....................................................................................................
395 18.11 Dispute resolution
............................................................................................. 396 Questions
....................................................................................................................... 396
19 Dispute resolution ......................................................................................................... 403
19.1 Introduction .........................................................................................................
403
19.2 Structures for dispute resolution ........................................................................
403
19.3 Dispute resolution by councils ............................................................................
405
19.3.1 Accreditation ..........................................................................................
405
19.3.2 Jurisdiction of councils ..........................................................................
405
19.3.3 Referral of dispute to council ................................................................
406
19.3.4 Subsidies, fees and confidentiality ........................................................
407
19.4 Dispute resolution by the CCMA ........................................................................
407
19.4.1 CCMA jurisdiction ..................................................................................
407
19.4.2 Conciliation ............................................................................................
409
19.4.3 Arbitration ..............................................................................................
410
19.4.4 The arbitration award ............................................................................
411
19.4.5 Powers of CCMA commissioners ...........................................................
412
19.5 Con-arb .................................................................................................................
413
19.6 Inquiry by arbitrator ............................................................................................
413
19.7 Labour Court ........................................................................................................
414 19.8 Dispute resolution of specific disputes
Contents xix

Page
............................................................... 415 Questions
....................................................................................................................... 425
Appendices
.................................................................................................................... 428
20 Other relevant legislation ............................................................................................. 439
20.1 Introduction .........................................................................................................
439
20.2 Other labour legislation ......................................................................................
439
20.2.1 Public Service Act ...................................................................................
439
20.2.2 Employment of Educators Act ...............................................................
440

20.2.3 Local Government: Municipal Systems Act ..........................................

441

20.3 Other legislation ..................................................................................................

442

20.3.1 Extension of Security of Tenure Act .....................................................

443

20.3.2 Promotion of Access to Information Act ..............................................

444

20.3.3 Promotion of Administrative Justice Act ..............................................

446

20.3.4 Intercepting and Monitoring Prohibition Act .....................................

448

20.3.5 Electronic Communications and Transactions Act .............................

449

20.3.6 Regulation of Interception of Communications and provision of

Communication-related Information Act ............................................. 449

20.3.7 Protection of Personal Information Act ...............................................

450

20.3.8 Broad Based Black Economic Empowerment Act ...............................

452

Bibliography ......................................................................................................................... 455

Table of cases ....................................................................................................................... 457

xx A Practical Guide to Labour Law

Page
PART 1
COMMON LAW
 1
INTRODUCTION

1.1 Background

Labour Law is divided into individual and collective labour law. Historically, the employment
contract was regarded as a form of lease (see Chapter 2) and, in keeping with the individualistic
nature of Roman-Dutch law, dealt with only the individual aspects of the employment relationship.
This relationship fell squarely within the private domain and, with the exception of employment in
the civil service, was regulated by the common law rules governing contracts.
Collective labour law, on the other hand, does not have its roots in Roman-Dutch law, but is
regulated largely by legislation. Collective labour law concerns itself with the relationships
between employers and trade unions, between employers inter se and between trade unions
inter se. The product of collective bargaining, i.e. negotiations between trade unions and employers
or employers’ organisations, is collective agreements which take precedence over the provisions
contained in individual contracts of employment.
The individualistic and voluntary rights-based regulation of the employment relationship has
changed dramatically since the emergence of trade unionism and the increased intervention of the
State in the sphere of employment by means of legislation. Although the port of entry into the
employment relationship remains the common law contract of employment, regulated mostly by
principles derived from Private Law, it may well be argued that the conduct of the parties is
regulated largely by statute law and rules created in terms of those statutes, such as the Basic
Conditions of Employment Act (BCEA) and collective agreements in terms of the Labour Relations
Act (LRA). It is for this reason that some authors question the nature of the modern employment
relationship: is it a purely contractual (a consensual) relationship or should it be viewed as one of
status?
A contractual relationship is one in which the parties enjoy great freedom to reach agreement
on the content of the rules that are to govern their respective rights and obligations in terms of the
contract entered into. Drawing on the analogy of marriage, the status view holds that, once the
parties have voluntarily entered into the relationship, the law automatically imposes rights and
duties on them without their having much say in formulating the rules that will govern their
relationship. To a large extent the regulation of the employment relationship has moved into the
public law domain, although its origins were and remain in Private Law.
Common law places the individual employee in a weak position vis-à-vis his employer and offers
little or no protection to the employee. Common law, for example, does not provide for maximum
working hours and paid leave. The common law rule of “no work, no pay” prevails. In terms of
common law a job applicant, having the freedom to contract, has the choice to commit himself
contractually to work for, for example, seven days a week, 15 hours per day and with no provision
for paid holiday or sick leave. Labour legislation is thus necessary to provide better protection for
an employee and to counter this kind of
3
4 A Practical Guide to Labour Law

asymmetry in employment contracts by creating, inter alia, minimum conditions of employment

which the parties may not ignore even if both are perfectly willing to do so.

1.2 Sources of Labour Law rules

Labour Law is derived from many sources, not all of which are necessarily applicable to a particular
situation. The following are considered the main sources of Labour Law: • common law – that is, all
legal rules not found in legislation. The sources of common law are Roman-Dutch law, English law,
decisions of the superior courts and custom and practice;
• the provisions of a contract of employment;
• legislation, for example the Labour Relations Act 66 of 1995 (LRA), the Basic Conditions of
Employment Act 75 of 1997 (BCEA), the National Minimum Wage Act 9 of 2018 (NMWA), the
Unemployment Insurance Act 63 of 2001 (UIA), the Occupational Health and Safety Act 85 of
1993 (OHASA) and the Compensation for Occupational Injuries and Diseases Act 130 of 1993
(COIDA);
• collective agreements, which include agreements entered into at sectoral level, as well as
agreements struck between employers and trade unions at enterprise or shop floor level; •
international labour standards, particularly those contained in conventions and
recommendations of the International Labour Organisation;
• custom and practice; and
• constitutional provisions. In terms of the Constitution of the Republic of South Africa of 1996
employers and employees are guaranteed certain rights, inter alia, the right to freedom of
association and the right to bargain collectively. These rights are contained in Chapter 2 of the
Constitution – the Bill of Rights – which constitutes the highest law of the land. This means that
the State is not allowed to pass legislation which takes away guaranteed rights, although it may
place restrictions on the exercise of those rights.

1.3 Lexical order of sources and rules

Common law views the employment contract (location conductio operarum) as an ordinary
commercial contract, voluntarily entered into by two parties.
The imposition of rules on parties to an agreement may cause conflict between those externally
derived rules and the provisions of the contract the parties have agreed to. The various labour
statutes, serving divergent social objectives, may themselves come into conflict. Because of the
many sources of rules governing a variety of employment relationships, it is important to know
which rules take precedence. If, for example, an employer is required to give a certain period of
notice for the termination of employment in terms of the individual employment contract and
this period differs from the required notice period in a collective agreement, which in turn differs
from the provisions regulating notice periods in the BCEA, which is the binding norm? Are there
any other laws that apply in respect of that specific sector? The answers to these questions will
determine which provision should take precedence. Likewise, an employee who is required to
work overtime may find that Chapter 2 of the BCEA is not applicable to him because he earns in
excess of the BCEA threshold amount determined by the Minister; or an applicable collective
agreement may permit or require him to work those hours.
Introduction 5

It is thus necessary, in every situation where a multiplicity of laws governs the employment
relationship, to determine which of those laws take precedence. An overview of the hierarchy of
the various labour laws is provided here to facilitate an understanding of which rules apply.

From the above diagram the following is clear:

• common law applies as the default option where no other rule applies in a particular situation;
• individual contracts of employment override the common law;
• the BCEA takes precedence over common law and a contract of employment. However, if the
contract of employment provides more favourable conditions of employment than those
contained in the BCEA, the contract will prevail and not the BCEA;2
• collective agreements concluded outside a bargaining council take precedence over common law
principles, contracts of employment and the BCEA (except for the core
rights);
________________________

1 The core rights are the following, contained in the BCEA: the arrangement of working time with due regard to
health, safety and family responsibilities (s 7); the maximum of 45 hours ordinary working time per week (s 9); the
protection afforded to employees who perform regular night work (s 17(3) and (4)); the entitlement to sick leave
(ss 22–24), maternity leave (s 25), parental leave (s 25A), adoption leave (s 25B) and commissioning parental leave
(s 25C); the entitlement to annual leave (s 20), although annual leave may by collective agreement be reduced to
two weeks per year; and the provisions contained in Ch 6 of the BCEA relating to the prohibition of child labour and
forced labour. Note that the provisions relating to parental, adoption and commissioning parental leave have not
6 A Practical Guide to Labour Law
yet taken effect as at the date of going to print (June 2019). Once the Labour Laws Amendment Act 10 of 2018
comes into operation these provisions will apply.
2 S 4(c) of the BCEA.

• ministerial determinations and sectoral determinations take precedence over the com-mon law,
contracts of employment and the BCEA;
• collective agreements concluded in a bargaining council take precedence over all the preceding
provisions.3 A council collective agreement may, of course, not vary the core rights contained in
the BCEA, except that annual leave may be reduced to two weeks per year;
• the core rights in the BCEA and the national minimum wage are subject only to constitu-tional
norms. A contract, collective agreement or sectoral determination may deviate from the
prescribed minimum, provided it is more favourable.
The following guidelines may prove useful when determining which set of laws apply:
Step 1: Determine the agreed terms and conditions of employment, that is, the employment
conditions the employer and employee agreed upon in their contract of employment
(whether verbal or written).
Step 2: Determine whether the provisions of the BCEA apply. In the majority of instances the BCEA
will apply, but in a few exceptional cases all or some of the provisions of the BCEA do not
apply, such as in the case of a person who earns in excess of the BCEA threshold amount
(determined by the Minister in terms of section 6(3) of the BCEA) or a senior managerial
employee.
Step 3: If the BCEA or some of its provisions are applicable, compare the relevant provisions with
those contained in the contract of employment. The most favourable provision takes
precedence. For example, if the employment contract provides for 22 days’ annual leave,
it will prevail because it is more favourable than the 21 days provided for in the BCEA.
Conversely, if the contract provides for 18 days’ leave, the BCEA takes precedence because
its provision of 21 days’ leave is the minimum standard and is more favourable.
Step 4: Determine whether a ministerial or sectoral determination is applicable. If it is, the relevant
provisions of the BCEA and contract of employment can be ignored because a
determination takes precedence, regardless of whether it is more or less favourable. A
determination may, of course, not vary the core rights of an employee. If it does, the
provision in the determination varying a core right is null and void and the provisions of
the BCEA in this regard will apply.
Step 5: Determine whether a collective agreement regulates the issue in question. If so, the
collective agreement takes precedence over all the other provisions, regardless of whether
the provision in the collective agreement is more or less favourable than any of the other
provisions. A collective agreement may, of course, not vary the core rights of an employee,
except that a collective agreement concluded in a bargaining council may reduce annual
leave to two weeks per year. Any provision in a collective agreement that varies a core right
in contravention of the BCEA may be ignored. The BCEA will prevail in such an instance.
Step 6: If a collective agreement is in existence, determine whether the agreement was concluded
in a bargaining council or at plant level. A council collective agreement always takes
precedence over a collective agreement concluded outside a bargaining council.
Step 7: If none of the above applies, refer to the common law rules.
The above diagram does not reflect sector specific legislation, such as the Merchant Shipping Act
57 of 1951 and various statutes regulating employment in the public sector (e.g. nursing, education,
SAPS and correctional services). As a general rule, the sources in the
________________________

3 S 49 of the BCEA & s 199 of the LRA.

Introduction 7

diagram apply only if one of the sector specific Acts does not cater for a particular situation. The
sector specific Acts take precedence over the illustrated sources, but remain subordinate to the Bill
of Rights which remains the supreme law of the land. Furthermore, if a provision in a sector specific
Act (or any other employment law) is in conflict with the relevant provisions in the LRA, the LRA
applies (s 210 of the LRA).
Finally, the fact that common law appears at the bottom of the hierarchy must not lead to the
conclusion that it is irrelevant. The continued relevance of the common law, despite the existence
of so many other sources of Labour Law, can be ascribed to the fact that the Constitution requires
the courts to interpret common law principles in accordance with constitutional values, thereby
ensuring that the common law retains its dynamic ability to adapt to a changing society.
Furthermore, common law remains relevant because it provides the basis for the modern day
contract of employment. It is in terms of common law that the contract is concluded and that the
parties derive a number of rights and obligations. Common law still regulates breach of contract
and, to a large extent, remedies for breach, as well as termination of the contract and a variety of
other issues. The next chapter deals with the common law contract of employment and, because
the common law cannot be ignored, it should be studied with care.

Questions

Question 1
Briefly explain which of the following applies in the event of a conflict between their provisions:
3.1 the contract of employment and a collective agreement; (2)
3.2 the contract of employment and common law; (2)
3.3 a collective agreement and the Basic Conditions of Employment Act. (2)
Question 2
When Billy was employed as a factory worker at Unisex Clothing Manufacturers (Pty) Ltd he and his
employer concluded a contract of employment in terms of which Billy would, inter alia, be entitled
to 21 consecutive days’ annual leave. (This provision is in accordance with the provisions of the
BCEA.) Approximately two years after Billy’s appointment he joined the Leather and Textiles
Workers’ Union. Both the union and the company (via the employers’ organisation it belonged to)
were parties to the bargaining council for the textile industry. The parties to the council then
negotiated a collective agreement which provided for 25 consecutive days’ annual leave. Explain
whether Billy would be entitled to
21 or 25 consecutive days’ annual leave. (4)

Question 3
Jonas is an employee at a private security company. He works six days per week. In terms of his
contract of employment he is required to work eight-and-a-half hours per day. The BCEA limits
normal working hours to a maximum of 45 hours per week and eight hours per day. A sectoral
determination, promulgated in terms of the BCEA, applies and provides for a maximum of 40 hours
per week and seven hours per day. Which of these provisions are applicable to Jonas? Motivate
your answer. (4)

Question 4
8 A Practical Guide to Labour Law
John’s contract of employment provided for better motor vehicle benefits than those provided for
in a collective agreement entered into between his employer and the union. When John insists on
the benefits as per his contract, the employer refuses to grant those benefits, relying on the
collective agreement. John feels that this is unfair because nothing prevents an employee and an
employer from entering into a contract that provides better benefits than those provided for in a
collective agreement. The agreement in question provides for actual benefits and other conditions
of employment rather than just the minima. Explain, with reference to case law, which provisions
should take precedence. (10)
Hint: See Ekurhuleni Metropolitan Municipality Germiston and Van Rooyen (2002) 23 ILJ 1104
(ARB); The National Bargaining Council for the Road Freight Industry & Another v Carlbank Mining
Contract (Pty) Ltd & Another unreported, JA 52/10, 20 March 2012 (LAC).
 2
COMMON LAW CONTRACT OF EMPLOYMENT

2.1 Introduction

The contract of employment is traditionally considered a sub-species of the common law contract
of lease, with its origins in the Roman law. Roman law distinguished three types of lease
agreements:
• locatio conductio rei or the rental of a thing;
• locatio conductio operarum or the hiring of services – the so-called ordinary contract of
employment (service);
• locatio conductio operis or the hiring of a piece of work.
In this chapter locatio conductio operarum or the ordinary contract of employment will be
considered as it forms the basis of the “modern” employment contract – the foundation upon which
more complicated relationships are constructed.
The ordinary contract of employment involves the rendering of labour or services by the
employee to his employer for remuneration, while the employee subjects himself to the supervision
and control of the employer. The employee consequently sacrifices his freedom to some extent by
subjecting himself to the authority of his employer. The employer decides how his labour is to be
applied and utilised.
The common law principles applicable to contracts of employment form part of individual Labour
Law, which means that the parties to the agreement, the employer and employee, negotiate the
terms of their contract individually and freely. In contrast is collective Labour Law, provided for in
the Labour Relations Act (LRA) and in terms of which a group of employees (a trade union)
negotiates with a single employer or a group of employers (employers’ organisation) on matters of
mutual interest, such as employment conditions.
The common law principles are still applicable but they have been greatly augmented by legal
provisions. In instances where labour legislation is silent on a particular issue, the common law
applies.

2.2 Nature of locatio conductio operarum (contract of employment)

Locatio conductio operarum or the ordinary contract of employment may be defined as a reciprocal
contract in terms of which an employee places his services at the disposal of another person or
organisation – the employer – at a determined or determinable remuneration in such a way that
the employer is clothed with authority over the employee and exercises supervision regarding the
rendering of the employee’s services.
10 A Practical Guide to Labour Law

In contrast, locatio conductio operis or the contract of letting and hiring of (piece) work is
concluded between an employer and an independent contractor and may be described as a

9
reciprocal contract between the parties in terms of which the independent contractor undertakes
to build, manufacture, repair or alter a corporeal thing within a certain period and in return the
employer undertakes to pay the contractor a reward.
The contractor is an independent third party and does not form part of the employer’s
enterprise. The contractor undertakes to do a certain piece of work against payment but, as
opposed to the employee in terms of the ordinary contract of employment, he is not subject to the
control of the employer. He decides how and when the work will be done within the broader
parameters of the contract. This means that, although he has discretion as to how and when to
perform, he is obliged to produce the required results within the stipulated time or within a
reasonable time if no time has been stipulated. Upon proper completion of the work by the
contractor, the contract is terminated. Examples of contractors who accept work on this basis are
building contractors and contractors who undertake the building of dams, bridges and roads.
A third type of contract in terms of which one person renders services to another is the rendering
of professional services. This includes services rendered by an attorney, advocate, auditor or doctor.
In this instance a contract of mandate is concluded between the parties. It differs from the ordinary
contract of employment in that the person who is rendering the services is not subjecting himself
to the authority of the other person and he is performing professional services, whereas the
ordinary employee normally performs tasks of a more general nature.
A contract of mandate may be defined as a contract in terms of which the mandatory undertakes
to perform a mandate for the mandator, for example a mandate given to a doctor to treat the
mandator or a mandate to an attorney to act on behalf of the mandator in a court case.
In the contract of mandate the mandatory therefore performs a specific mandate given to him
by the mandator. He must perform the mandated acts, but is not subject to the authority of the
mandator.
It is not always easy to distinguish between an employee, an independent contractor and a
mandatory. The employment relationship is sometimes even confused with agency. It is, however,
necessary to determine whether a person who performs a task for another is an employee because
only an employee enjoys legislative protection and has access to the dispute resolution mechanisms
created under the LRA, such as the CCMA (Commission for Conciliation, Mediation and Arbitration)
and the Labour Court. Only employees enjoy the freedom of association to join trade unions and
the protection afforded by the Basic Conditions of Employment Act (BCEA). Furthermore, only
employees are entitled to social security benefits in terms of the Unemployment Insurance Act (UIA)
and the Compensation for Occupational Injuries and Diseases Act (COIDA).
An important feature of the ordinary contract of employment is that the employee is subject to
the authority and supervision of the employer. This element of control – referred to as the control
test – is distinctive of the ordinary contract of employment and has been used to distinguish
between the ordinary contract of employment and other contracts in terms of which work is
performed. In terms of the control test the employer does not need to have absolute authority over
the employee, but some degree of control is required. Control in this context refers to the fact that
an employer may issue instructions, which have to be obeyed, while also prescribing the manner
and time in which a task has to be completed. The Court, in R v Feun 1954 (1) SA 58 (T), observed
as follows:
Complete control in every respect is . . . not essential . . . and some degree of freedom from control is not
incompatible with the relationship . . . Whether the control exercised is such as to lead to the inference
that the engaged person is a servant (employee) is therefore a question of degree.
In terms of the control test the distinction between an employee and an independent contractor is
thus to be found in the fact that the employer has some degree of control, enabling him to decide
how the labour of the employee is to be utilised. The element of control is to a large degree absent
in the case of an independent contractor.
Common law contract of employment 11

The control test proved inadequate to distinguish conclusively between employees and
independent contractors. The courts adopted other tests in the quest to determine the existence
of an ordinary employment relationship. The test that finally found favour with both the courts and
academics is the “dominant impression” or “mixed” test. The dominant impression test requires a
consideration of all the facts as they appear from the agreement between the parties, their
practices and customs and the evidence led in court. The resultant impression will enable one to
decide whether or not the relationship between the parties is an ordinary contract of employment.
While no list can be exhaustive, the following factors tend to indicate the existence of an
employment relationship:
• that the person who alleges to be an employee is obliged to render his services personally and
is not allowed to delegate this obligation;
• that he has to keep fixed hours and is paid a regular wage or salary;
• that he is subject to the alleged employer’s disciplinary code;
• that he is entitled to benefits, such as a pension fund or medical aid scheme; and
• that he is subject to a degree of control by the employer.
None of these factors is conclusive in itself, but collectively they assist in determining whether a
person is, in fact, an employee. It may thus happen that a person who does not keep fixed hours
and who earns a commission is an employee.
The following cases offer interesting examples.
In Leon-Cachet v De Jager 1994 3 LCD 47 (IC) the “employee” did not receive a salary and had a
claim for remuneration only for a specific task done; thus, he was paid for production rather than
service time. No PAYE had been deducted. The Court held that this person was not an employee,
but an independent contractor.
The judgment of the Labour Appeal Court in Borchards v Pearce & Sheward t/a Lubrite
Distributors 1993 2 LCD 28 (LAC) is significant:
an employee was a person who made over his or her capacity to produce to another, whereas an
independent contractor, by contrast, was a person whose commitment was the production of a given
result by his or her labour. In the first case what was transacted was the capacity to work, whereas in the
second case what was transacted was the product of it. This meant that the surrender of the capacity to
work was what lay at the heart of the relationship between employee and employer. The terms of the
contract would determine the relationship, although the parties’ own perception of their relationship and
the manner in which the contract was carried out in practice might, in areas not covered by the strict
terms of the contract, assist in determining the nature of the relationship.
In this case the “employee” had been offered a position as an independent agent to promote the
products of the employer in a particular area. The Court was satisfied that the object of the contract
was not the rendering of personal services; neither was the intention that the “employee” would
“make over” or “surrender” his capacity to work. He was required to produce a specified result. He
was thus an independent contractor and not an employee. Other factors considered by the Court
in deciding that he was an independent contractor included the following: he earned commission
only; he was remunerated only when he produced results; he was not registered as an employee
with the Department of Labour; no deductions for tax purposes had been made; the control
exercised over him was minimal; he could take leave whenever he wanted; and he received no leave
or sick leave pay.
See also Callanan v Tee-Kee Borehole Casings (Pty) Ltd & Another 1993 2 LCD 43 (IC); Liberty
Life Association of Africa Ltd v Niselow [1996] 7 BLLR 825 (LAC); Niselow v Liberty Life Association
of Africa Ltd (1998) 19 ILJ 752 (SCA); SABC v McKenzie [1999] 1 BLLR 1 (LAC); Gordon v St John’s
Ambulance Foundation [1997] 3 BLLR 313 (CCMA), [1997] 6 BLLR 785 (CCMA); CMS Support
Services v Briggs [1997] 5 BLLR 533 (LAC); Medical Association of SA v Minister of Health & Another
[1997] 5 BLLR 562 (LC); Opperman v Research Surveys (Pty) Ltd [1997] 6 BLLR 807 (CCMA); SATDU
v Marine Taxi’s CC [1997] 6 BLLR 823 (CCMA); Board of Executors Ltd v McCafferty [1997] 7 BLLR
835 (LAC); LAD Brokers v Mandla [2001] 9 BLLR 993 (LAC); Denel (Pty) Ltd v Gerber [2005] 9 BLLR
849 (LAC); State Information Technology Agency (Pty) Ltd v CCMA & Others (2008) 29 ILJ 2234
12 A Practical Guide to Labour Law

(LAC); Discovery Health Ltd v CCMA & Others (2008) 29 ILJ 1480 (LC); “Kylie” v CCMA & Others
(2010) 31 ILJ 1600 (LAC); Sanlam Life Insurance Ltd v CCMA & Others (2009) 30 ILJ 2903 (LAC);
De Lange v ABSA Makelaars (Edms) Bpk (2010) 31 ILJ 885 (SCA); Pam Golding Properties (Pty)
Ltd v Erasmus & Others (2010) 31 ILJ 1460 (LC); St Clair v CFS Aviation CC t/a Corporate Flight
Services (2010) 31 ILJ 486 (CCMA); J & J Freeze Trust v Statutory Council for the Squid & Related
Fisheries of SA & Others (2011) 32 ILJ 2966 (LC); Workforce Group (Pty) Ltd v CCMA & Others
(2012) 33 ILJ 738 (LC).
Although the dominant impression test is generally accepted and applied nowadays, it remains
difficult to determine whether a person is in fact an employee. To aggravate the situation employers
have increasingly started to appoint persons as “independent contractors” rather than employees
in an attempt to escape the onerous liabilities brought about by the various labour laws. If a person
is an independent contractor and not an employee the employer saves, for example, the
contributions towards unemployment, injuries on duty and skills development. Moreover, the
employer is then not compelled to comply with the BCEA or similar legal provisions and does not
have to register the person as an employee with the Department of Labour and SARS. In
consequence, the independent contractor does not enjoy legislative protection as legislation
applies to employees only.
The ulterior motives of employers to appoint persons as independent contractors and the
resultant lack of legislative protection in such instances have been curbed in two ways:
• by court (or CCMA) decisions in terms of which the true nature of the relationship between the
parties needs to be determined; and
• by section 83A of the BCEA (mirrored by s 200A of the LRA).
Even if a person is described as an independent contractor in a contract, it remains necessary to
determine the true nature of the relationship between the parties. On numerous occasions the
courts have held that the label of “independent contractor” is not conclusive. The realities of the
relationship – and not the label – will determine whether the contract is one of operarum or operis.
See in this regard McKenzie v SABC [1996] 5 BLLR 635 (IC), [1999] 1 BLLR 1 (LAC) and Building
Bargaining Council (Southern & Eastern Cape) v Melmons Cabinets CC & Another [2001] 3 BLLR
329 (LC).
Section 83A of the BCEA (and section 200A of the LRA), which took effect in August 2002,
introduced a rebuttable presumption of who an employee is. Section 83A provides as follows:
83A. Presumption as to who is employee
(1) A person who works for, or renders services to, any other person is presumed, until the contrary
is proved, to be an employee, regardless of the form of the contract, if any one or more of the
following factors is present:
(a) the manner in which the person works is subject to the control or direction of
another person;
(b) the person’s hours of work are subject to the control or direction of another person;
(c) in the case of a person who works for an organisation, the person is a part of that
organisation;
(d) the person has worked for that other person for an average of at least 40 hours per
month over the last three months;
(e) the person is economically dependent on the other person for whom that person
works or renders services;
(f) the person is provided with tools of trade or work equipment by the other person;
or (g) the person only works for or renders services to one person.
(2) Subsection (1) does not apply to any person who earns in excess of the amount determined by
the Minister in terms of section 6(3).
(3) If a proposed or existing work arrangement involves persons who earn amounts equal to or
below the amounts determined by the Minister in terms of section 6(3), any of the contracting
parties may approach the CCMA for an advisory award about whether the persons involved in
the arrangement are employees.
Common law contract of employment 13

The effect of this section is that a person who earns less than the BCEA threshold (determined by
the Minister from time to time, currently R205 433-30 per annum) is presumed to be an employee
if any of the above indicators is present. The onus is on the employer to prove the contrary. The net
result of section 83A is that, if an employer fails to prove that a person is an independent contractor,
that person is deemed to be an employee. This ultimately defeats the employer’s ulterior motive
of circumventing the law and thereby depriving the other person, who is in fact an employee, of
the legislative rights and protection accorded employees.
Either party to the work arrangement may, in terms of section 83A(3) of the BCEA, approach the
CCMA for an advisory award about whether the person is an employee, but only if the alleged
employee earns less than the BCEA threshold amount.
In 2006 a code was promulgated to assist in determining whether a person is an employee. The
Code of Good Practice: Who is an Employee1 is based, in the main, on the control and dominant
impression tests, the section 83A presumption and case law (see the Appendix to this chapter).
In summary, to determine whether a person who is doing work for another is an “employee” or
an independent contractor, the following must be considered:
• the definition of “employee” in the applicable statute;
• the dominant impression test;
• the Code of Good Practice; and
• if the alleged employee earns less than the BCEA threshold, section 83A of the BCEA (or s 200A
of the LRA).
It has already been mentioned that only employees enjoy legislative protection and have access to
labour dispute resolution forums such as the CCMA and the Labour Court. For a person to be an
employee a valid employment contract must exist and one of the requirements for a valid contract
is lawfulness. This particular requirement received some attention in recent years because of
constitutional prerequisites, the definition of “employee” in the LRA and the concept of fairness,
which is the cornerstone of Labour Law. It was always accepted that a valid employment contract
entails the rendering of lawful services – until a prostitute decided to take the law head-on.
In “Kylie” v Van Zyl t/a Brigittes [2007] 4 BALR 338 (CCMA) Kylie, a sex worker, was employed
by a massage parlour to perform sexual services for reward. She was dismissed for alleged
infractions of a strict regime of rules in the workplace. She referred a dismissal dispute to the CCMA.
The CCMA Commissioner ruled that the CCMA lacked jurisdiction to arbitrate the dispute because
her work was prohibited by the Sexual Offences Act and that, for the same reason, her contract of
employment was invalid. According to the CCMA Commissioner, section 23 of the Constitution of
1996 and the LRA did not apply to workers who did not have a valid and enforceable contract. Kylie
took the CCMA ruling on review.
In “Kylie” v CCMA & Others [2008] 9 BLLR 870 (LC) the Labour Court accepted that Kylie was
an employee as envisaged in section 213 of the LRA. It was held that the definition of “employee”
in section 213 is sufficiently wide to include workers without valid contracts of employment.
Although she performed illegal work, the relationship between Kylie and her employer was
undoubtedly an employment relationship. The Court, however, was of the view that the real
question was whether, as a matter of public policy, courts and other tribunals should sanction illegal
contracts by upholding the rights of the parties under statutes and the Constitution. The issue was
not the consequences of the lack of a valid contract, but the effect this lack had on the powers of
the tribunal or court called on to enforce the parties’ claims. It was held that the fundamental
principle was that courts would not sanction or encourage illegal activities. The Court observed that
a contract for the performance of illegal activities was contra bonos mores (against the good morals)
and, therefore, unenforceable under common law or labour legislation. It held that even though
the
________________________

1 G
N 1774 of 1 December 2006.
14 A Practical Guide to Labour Law

person performing illegal work may be an employee in terms of the statutory definition, protection
afforded employees by the LRA and the Constitution did not apply and to grant relief would
encourage illegal activities. The decision of the Labour Court was taken on appeal.
In “Kylie” v CCMA & Others [2010] 7 BLLR 705 (LAC) the Labour Appeal Court agreed with the
Labour Court that Kylie was an employee, but disagreed with the Labour Court’s view that the
Constitution and the LRA did not apply to sex workers. The Labour Appeal Court confirmed that
courts should generally desist from recognising illegal contracts, but observed that flexibility was
permitted. The Labour Appeal Court continued as follows:
The express purpose of the LRA is ‘to advance economic development, social justice, labour, peace and the
democratisation of the work place’. That set of principles can be traced to section 23 of the Constitution. This
was designed to ensure that the dignity of all workers is respected and that the workplace is predicated on the
principles of social justice, fairness and respect for all. If the purpose of the LRA is to achieve these goals, courts
must safeguard those employees who are particularly vulnerable to exploitation because they are economically
and socially weaker than their employers. Many sex workers in this country are particularly vulnerable and are
exposed to exploitation and abuse . . . There was, accord-
2 i
ngly, no reason why she [Kylie] should not be entitled to the constitutional protection of her dignity.
Having concluded that Kylie was an employee and entitled to legal protection, the Court expressed
the view that sex workers like Kylie would not be entitled to the full range of remedies afforded
unfairly dismissed employees. To order the reinstatement of a sex worker would, according to the
Court, be manifestly against public policy. The Court did, however, believe that an order for
compensation would be appropriate for procedural unfairness.
It is not only sex workers who enjoy legislative protection; illegal immigrants do too. In Discovery
Health Ltd v CCMA & Others [2008] 7 BLLR 633 (LC) the Labour Court upheld a CCMA
commissioner’s ruling that the CCMA had jurisdiction to determine the fairness of the dismissal of
an Argentine national who was dismissed when his employer discovered that his valid work permit
had expired. In arriving at its decision, the Court considered on the one hand the provisions of the
Immigration Act that sanctions the employment of illegal immigrants and, on the other hand,
section 39(2) of the Constitution and held that foreigners need to be protected because an
unscrupulous employer, prepared to risk criminal sanction [under the Immigration Act] . . . might employ a foreign
national and at the end of the payment period, simply refuse to pay her the remuneration due, on the basis of the
invalidity of the contract. In these circumstances, the worker would be
3 d
eprived of a remedy in contract, and [be] . . . without a remedy in terms of labour legislation.
In Ndikumdavyi v Valkenberg Hospital & Others [2012] 8 BLLR 795 (LC) a foreign national was
afforded the protection of the LRA. The employer offered a Burundian national with refugee status
a permanent position in contravention of legislation, but withdrew the offer when the employee’s
refugee status was about to expire. The Court held that a contract concluded in contravention of a
statute but involving lawful work gave rise to an employment relationship and that the termination
of that relationship constituted a dismissal.4

2.3 Conclusion of the contract

The contract of employment, like any other contract, must comply with the basic requirements for
a valid contract. The general principles of the law of contract, and particularly the principles
applicable to a lease, are applicable mutatis mutandis.
The general rule is that formalities are not required for the conclusion of an employment
contract. Consequently, the contract need not be reduced to writing in order to be valid, although
it is, of course, advisable to have a written agreement. Take note that, in
________________________

2 “Kylie” v CCMA & Others [2010] 7 BLLR 705 (LAC) par 40.
3 Discovery Health Ltd v CCMA & Others [2008] 7 BLLR 633 (LC) par 30.
Common law contract of employment 15

4 The Employment Services Act 4 of 2014 regulates the employment of foreigners.

terms of section 29 of the BCEA, an employer is required to supply the employee with written
particulars of his employment, such as hours of work and remuneration; the BCEA, however, does
not require a written contract as such.
An employment contract may be concluded expressly by way of a verbal or written agreement
or it may be concluded tacitly. It is tacitly concluded where one can deduce from the conduct of the
parties that they intended to conclude a contract of employment.
Custom and practice can give rise to tacit terms in the contract. The court will accept such tacit
terms if: (a) they are an inevitable consequence of the agreement between the parties; (b) they are
not in conflict with other terms in the contract or with existing law; (c) there is acceptable evidence
for the existence of the custom; and (d) both parties were aware of the custom or if it was common
practice in the industry and area.
Employees are often given a letter of appointment when they are employed. Such a letter may
either include the terms of the contract in full or it may be attached to a contract, a separate
document. If the contract has been reduced to writing, the parol evidence rule applies. The contract
may, of course, be amended by subsequent agreement between the parties.
In Ingwane v Med-Afrique [1997] 2 BLLR 210 (CCMA) it was emphasised that writing was not a
requirement for an employment contract and, therefore, that the absence of a letter of
appointment made no difference to the existence of the employment relationship.
Employment contracts have also entered the technological age and can be concluded by
electronic means such as SMS or e-mail. In Mncube v Transnet (2009) 30 ILJ 698 (CCMA) it was held
that an offer of employment made by SMS is a valid offer. In terms of section 22 of the Electronic
Communications and Transactions Act 25 of 2002 a contract concluded by way of data messages is
concluded at the time when and the place where the acceptance of the offer is received by the
offeror. A data message is regarded as having been received when the complete message enters an
information system designated or used for the purpose of receiving data messages and is capable
of being retrieved and processed by the person to whom it has been addressed (in accordance with
the reception theory). In practice this means that if, for example, the offeree’s e-mail message
containing his acceptance is displayed in the inbox of the offeror’s e-mail system, the contract is
concluded, irrespective of whether the offeror has opened or read the message. In Jafta v Ezemvelo
KZN Wildlife (2009) 30 ILJ 131 (LC) the Court held that an e-mail message sent by J to E, accepting
an offer of employment, had not been received by E because it had not entered E’s information
system. By contrast, the Court accepted the SMS sent by J accepting the offer as a valid acceptance
when it was received by an Ezemvelo employee. The contract was thus concluded when the SMS
was received.

2.4 Essentialia of the employment contract

In addition to the basic requirements for any contract to be valid, the essential elements or
requirements of the contract of employment need to be observed. These requirements or
essentialia concern the parties’ consensus as to the work the employee will have to perform and
the remuneration payable by the employer.

2.4.1 Specified work

When the contract is concluded, the parties must agree on the work the employee will be required
to perform. The employee is obliged to do the agreed work, as well as any unspecified task related
to the main work, provided that it is not unlawful or beyond the area of expertise of the employee.
When the employee is employed to perform a specified task and he is then required to perform
a different task, which constitutes a reduction in his status, he is entitled to resile from the contract
and claim damages. In Smith v Cycle and Motor Trade Co 1922 TPD 324 a person was employed as
16 A Practical Guide to Labour Law

a stores controller. Upon arrival at work one morning he found that he had been demoted to an
ordinary storeman but with retention of his previous salary scale. The Court held that he was
entitled to resile from the contract and claim damages. In Groenewald v Cradock Munisipaliteit en
’n Ander 1980 (4) SA 217 (E) the employee was a shift worker at the municipal power station. When
the power station closed down he was offered the position of a parking metre attendant or assistant
ambulance driver, with retention of his salary. The employee rejected the offer and instituted legal
action. The Court found that the alternative positions resulted in a reduction of status and that he
was not obliged to accept the offer.
Although these cases were decided many years ago, the underlying principles still hold true: the
employer and employee must agree on the work to be done, the employee must perform that work
and related tasks and the employer cannot change the work substantially, unless there is justifiable
reason to do so. In light of the developments of Labour Law over the past few decades an employer
who changes work without reason and without the agreement of the employee may well fall foul
of the fundamental right to fair labour practices.

2.4.2 Remuneration
The parties must agree on the remuneration to be paid to the employee at the conclusion of the
contract. Remuneration may be payable in cash and/or in kind (in natura). If remuneration is
payable in money, the amount thereof need not be fixed, such as R5 000 per month, but it must at
least be reasonably ascertainable. It may, for example, be determined by recourse to trade usage,
i.e. the going rate payable for that job in that trade and area. Remuneration may also consist of a
share in the profits of the organisation or commission. Where remuneration is paid in kind, a value
must be attached thereto.
Common law does not prescribe minimum wages and the parties are at liberty to agree in their
contract on any amount. Legislation, on the other hand, prescribes minimum wages. The most
common ways of prescribing minimum wages are sectoral determinations and collective
agreements. And, since the National Minimum Wage Act 9 of 2018 (NMWA) has come into effect
on 1 January 2019 a minimum standard has been set and no contract, sectoral determination or
collective agreement may prescribe an amount less than the national minimum.

2.5 Conditions of employment

Common law does not prescribe any conditions of service and the parties are at liberty to negotiate
matters such as hours of work, wages or salaries, leave and so on. The parties can, for example,
agree on the employee working 14 hours per day at a rate of R10 per hour and taking unpaid leave.
Legislation has, of course, curbed the free negotiation of employment conditions so that an
employer and employee, while still able to negotiate, can only agree on terms and conditions within
the parameters of the labour laws.
At common law any absence from work is unpaid. The rule of “no work, no pay” applies, unless
the parties agree otherwise.
Holiday or annual leave is, in terms of common law, a privilege. This means that an employee is
not as a matter of course entitled to any paid holiday leave. The employer and employee may,
however, upon conclusion of the contract agree that the employer will grant the employee a certain
number of days’ holiday leave. This leave may then be taken only after completion of a certain
prescribed period (e.g. a year’s service). Leave may not be taken on a pro rata basis during the year.
Should the services of the employee be terminated before the prescribed period (e.g. a year)
expires, he will not be entitled to pro rata payment. Thus, the employee loses all right to payment
in respect of leave not taken when leaving the service of the employer. If, however, the employer
requested the employee not to take his leave, the latter will be entitled to payment for leave not
taken. In terms of the common law, notice to terminate service may not run concurrently with
holiday leave.
Common law contract of employment 17

In terms of legislation an employee is entitled to paid holiday (annual) leave. Section 20 of the
BCEA provides for a minimum of 21 consecutive days’ annual leave. This leave must be taken
annually and may not run concurrently with notice of termination of service.
At common law sick leave is not paid leave; an employee is paid only for the period actually
worked. The parties may agree on paid sick leave when they conclude their contract of employment.
If the period of sickness is brief, the employer may not terminate the services of the employee. If,
however, the employee is absent for an unreasonably long period his services may be terminated.
What constitutes an unreasonable period differs from instance to instance. In Myers v Sieradzki
1910 TPD 869 the Court decided that an absence of six consecutive weeks was unreasonable in the
case of an employee who was paid monthly. His employer was entitled to dismiss him.
The BCEA changed the common law position. Sick leave is now paid leave. Section 22 of the BCEA
provides for 30 or 36 working days’ paid sick leave during a three-year cycle, depending on whether
the employee works a five-day or six-day week. However, if an employee cannot produce a medical
certificate after two days of absence, the employer is not obliged to pay the employee.
At common law remuneration was always determined by the parties through negotiation and
agreement. Employees desperate for employment often agreed to very low wages. Their position
was somewhat improved by determining minimums in sectoral determinations under the BCEA or
in collective agreements concluded in terms of the LRA. Since the National Minimum Wage Act
came into operation on 1 January 2019 a national minimum has been laid down. No employee may
be paid less than the national minimum (see Chapter 3).

2.6 Duties of employer

An employer has a number of duties arising from the contract of employment. Should the employer
refuse or fail to comply with these obligations it would be committing breach of contract and the
employee then has certain remedies at his disposal (see par 2.7 below).
The duties of the employer are the following:
• to accept the employee into his service
• to provide the employee with work
DUTIES • to pay the agreed remuneration
OF • to pay a quantum meruit
EMPLOYER • to provide safe working conditions
• to comply with statutory duties

2.6.1 To accept the employee into his service

Because the rendering of services is a prerequisite for the payment of remuneration, it follows that
the employer will be committing material breach of contract should it fail to take the employee into
his service. The employee will then be entitled to claim damages amounting to his actual loss, in
other words, the amount he would have earned in respect of the incomplete part of his period of
service. It appears to be virtually incomprehensible that an employer will employ someone and
then not give him any work to do. Reported cases show, however, that this is not quite as singular
as it may seem.

2.6.2 To provide the employee with work

From South African case law it appears that the employer is generally not legally bound to provide
work to the employee. The employer therefore does not commit breach of contract if it fails to give
work to the employee to do, provided it pays the employee the agreed remuneration.
Under some circumstances, however, an employer is obliged to provide work and a failure to do
so would constitute a breach of contract:
18 A Practical Guide to Labour Law

• where the amount of the remuneration is based on the amount of work done, as in the case of
someone doing piece work or a salesman;
• where the failure to provide work brings about a reduction in the status of the employee;
• where the employer has undertaken to train the employee in a certain profession or trade;
• where a person’s earning capacity is linked to the publicity which he receives from the work he
does, for example an actor. This person’s employer must provide him with work in order to
ensure his professional success.
It should be noted that, in terms of the LRA, an employer is allowed to withhold work from
employees in the form of a lock-out, which is the employer’s counterpart of the employees’ right
to strike.

2.6.3 To pay the remuneration agreed upon

It is certainly the employer’s most important obligation to pay the employee the agreed
remuneration. Remuneration may be paid in money and/or in natura, depending on the agreement
between the parties.
Common law prescribes that payment must be made at the intervals the parties agreed on or, in
the absence of an agreement, at the end of the period of service. Where an employee is working
for an undetermined period, payment must be made at regular intervals. Reference can be made
to trade usages in the particular industry and area in order to determine the time of payment. The
rule is that an employee must first render services before becoming entitled to payment.
The question arises whether the employee is entitled to any remuneration if he has failed to
work or if his work has not measured up to the required standard. The answer to this depends upon
the circumstances surrounding his failure to work or to render work of a satisfactory quality.
In the case of absence due to illness, the employee is, in terms of South African common law,
entitled to payment only for the period actually worked. In other instances where the employee is
prevented from working by vis major, the employer is not relieved of the obligation to pay
remuneration. The employee is entitled to full payment in the case of suspension. In terms of the
common law suspension without payment appears to be possible only when the parties agree to it,
but in terms of labour relations practices and case law suspension without pay nowadays seems
acceptable as a disciplinary sanction in instances of serious misconduct.
It is to be noted that the BCEA changed the common law position regarding payment (e.g.
payment must be made within seven days after completion of the period for which the
remuneration is payable) and, in terms of the NMWA, parties may not agree on remuneration less
than the prescribed amount (see Chapter 3).

2.6.4 To pay a quantum meruit

Where an employee or a contractor absconds from or abandons the job before completion, he is
not entitled to any remuneration – not even pro rata payment in respect of the work actually
completed. If the non-completion is, however, due to repudiation by the employer, the employee
or contractor must be rewarded.
The payment of a quantum meruit is, however, obligatory where the employee (or contractor)
was bona fide in not completing the work. A quantum meruit is a reasonable remuneration for
services rendered. Where, for example, the employee believes in good faith that he has given
sufficient notice of termination or where the contractor believes in good faith that he has completed
his task, he is entitled to a reasonable remuneration.
The claim for a quantum meruit is based in unjust enrichment. The remuneration payable to the
employee or contractor is calculated in accordance with the employer’s enrichment as a result of
the services rendered or the extent to which the employee or contractor has been impoverished,
whichever is the lesser amount.

2.6.5 To provide safe working conditions

Common law contract of employment 19

It is an obligation of the employer to provide safe working conditions for the employee. This duty is
not clearly defined at common law and probably encompasses the provision of safety equipment,
properly trained supervisory staff and a safe system in terms of which the work is to be carried out.
This means that the employer must take reasonable steps to ensure the safety of its employees.
An employer’s failure to take reasonable steps to ensure safety will lead to the employer being
held liable in the case of injury. In this regard the doctrine of volenti non fit injuria must be borne
in mind. If an employee has knowledge of a hazardous state of affairs and comprehends the nature
thereof, yet subjects himself voluntarily to the hazard and it leads to injury or death, the liability of
the employer will be excluded. This is equal to the employee’s consenting to the harm which might
befall him.
In order to hold the employer liable for compensation in the case of injury or death, it is
necessary to prove that the act or omission which caused the employee’s injury or death was due
to the fault of the employer or a person for whose actions the employer assumes responsibility,
that the act or omission was unlawful and that the employee sustained damages and/or personal
injuries.
Legislation changed the common law position. An employer is no longer held personally liable
for injuries and death at work (save in some prescribed instances). The Compensation for
Occupational Injuries and Diseases Act 130 of 1993 (COIDA) establishes the Compensation Fund to
which employers contribute and if an employee suffers injury or death, compensation is paid from
the Fund.

2.6.6 To comply with statutory duties

In addition to the common law duties, legislation imposes a host of other obligations on employers,
for example, the duty to provide paid annual and sick leave and to observe prescribed working
hours. These duties derive from the BCEA, a collective agreement or sectoral determination. An
employer is also required to pay an employee at least the national minimum wage. An employer
has to eliminate discrimination in the workplace in order to ensure equality and opportunities to
employees. And, in terms of the Unemployment Insurance Act and COIDA an employer must
contribute towards the Unemployment Insurance Fund and the Compensation Fund respectively.
Lastly, an employer is required to pay levies for the purposes of skills development. These duties
are discussed in Chapters 3–8.

2.7 The employee’s remedies

If the employer fails to comply with any of its obligations or fails to comply with them properly, it is
in breach of contract and the employee has certain remedies against the employer.
• cancellation of the employment contract
REMEDIES OF • claiming specific performance
EMPLOYEE • claiming damages
• refusal to work
• statutory remedies

2.7.1 Cancellation
Material breach of contract by the employer allows the employee to resile from the contract.
Examples of a material breach include a reduction in status and the non-payment of the agreed
remuneration.
When the employee claims cancellation of the contract, it amounts to a summary termination
of the contract, as opposed to the employee giving due notice of termination.
20 A Practical Guide to Labour Law

If the breach of contract is not material, cancellation of the contract is generally not an available
remedy and the employee may possibly succeed with a claim for damages.

2.7.2 Specific performance

At common law the rule is that the courts will not grant specific performance where an employment
contract has been breached due to the personal nature of the contract. The employer will not, for
example, be ordered to reinstate the employee or to comply with the contractual obligations in any
way.
Specific performance in the form of reinstatement after an unfair dismissal warrants attention.
Traditionally reinstatement of the employee was never ordered; he was simply entitled to a claim
for damages. A new trend was initiated by the decision in National Union of Textile Workers &
Others v Stag Packings (Pty) Ltd & Another 1982 (4) SA 151 (T). The Court held that, although
reinstatement would normally not be ordered, specific performance was not excluded as a remedy
for the employee.
It follows then that specific performance, specifically in the form of reinstatement, is in fact
available to the employee. Since the Stag Packings judgment, reinstatement has become
commonplace, as can be seen in the large number of decisions by the old Industrial Court (under
the 1956 LRA), the provisions of the LRA of 1995 and the decisions of the Labour Court and CCMA.
The courts have a discretion to refuse specific performance and award damages instead if they
deem it to be in the public interest that specific performance should not be granted. The fact that
the relationship between employer and employee has irretrievably broken down is usually a
persuasive factor not to order specific performance, but rather consider damages/compensation.

2.7.3 Damages
If an employee suffers damages as a result of the employer’s breach of contract he can claim
damages. The amount of damages is calculated in accordance with the remuneration which he
would have received if the breach of contract had not taken place. The employee must, however,
take reasonable steps to mitigate his losses.

2.7.4 Refusal to work

The courts have held that employees may refuse to work if their employer has committed a breach
of contract. In one case the employer had failed to pay his employees their weekly wages on a
Friday, as a result of which the employees collectively refused to work after reporting for duty on
the following Monday. The court considered the refusal by the employees justified: just as an
employer is not obliged to pay employees who fail to comply with their contractual obligations –
“no work, no pay” – the employees may refuse to work if the employer fails to abide by its
obligations – “no pay, no work”.

2.7.5 Statutory remedies

Despite labour legislation and its prescripts, the common law remedies referred to above are still
available to employees if they want to rely on an employer’s breach of contract.
Labour legislation, however, provides for remedies in a variety of instances where an employee
does not have to prove breach of contract on the part of the employer, but only that the employer
had acted unfairly. The most common of these are unfair dismissals and unfair labour practices for
which the LRA prescribes particular remedies, namely reinstatement, re-employment or
compensation.
Thus, if an employee wishes to pursue a contractual claim, proceedings must be instituted in a
court of law with jurisdiction, such as the Magistrates’ Court or High Court. If, however, the
employee wishes to rely on the alleged unfairness perpetrated by the employer, the dispute
resolution path in the LRA must be followed and the LRA remedies will apply.
Common law contract of employment 21

The BCEA allows an employee who alleges that his employer has not paid him, or has underpaid
him, to approach the Department of Labour or the CCMA for assistance to get payment.

2.8 The employee’s duties

A contract of employment creates, expressly or tacitly, the following obligations for an employee:

2.8.1 To make his services available

An employee is obliged to make his personal services available to the employer. It follows, therefore,
that the employee is not entitled to wages or a salary if his services are for some reason not
available to the employer (as opposed to his services being available, but not being utilised). At
common law it does not matter what the cause for the non-availability of services is. The rule at
common law is “no work, no pay”. The employee who is absent due to factors beyond his control,
for example illness, is treated in the same manner as the employee who deliberately refuses to
work, for example, by participating in a strike.
The employer may not force the employee to perform work other than agreed upon, unless the
parties have agreed to the performing of other work.
The employee must commence working on an appointed day and render his services consistently
at the times agreed upon. He must obey all lawful instructions loyally and accurately. If he is absent
without reason or consent, he is committing breach of contract. A deliberate refusal to work is
generally regarded as a sufficient reason for a summary dismissal, but the employer will have to
ensure that dismissal in the given circumstances is also fair. If the employee occasionally arrives late
for work, it will not justify his dismissal, but if he persists in arriving late, despite numerous
warnings, the employer may dismiss him.

2.8.2 To warrant his competence

The employee must obviously be able to do the work for which he was appointed because, at
conclusion of the contract, he tacitly guarantees that he is suitable for the work. The courts have
held that every contract of employment contains an implied warranty of reasonable efficiency or
competence. The standard of competence that the employer is entitled to expect will depend on
factors such as the capacity in which the employee is engaged, his level of skills and training and
any promises made by the employee concerning his skills and abilities.
If the employee proves to be unsuitable for the work, he breaches the warranty of competence,
thereby committing breach of contract. According to the labour courts he may, however, not be
summarily dismissed. A single act of incompetence is normally not sufficient to justify a dismissal.
The employee must first be granted an opportunity to improve his performance and the employer
must give him proper orders and possibly also training.
It is customary for employees to be appointed for a probationary period. A provision in the
employment contract allowing for probation makes it possible for an employer to terminate the
contract upon expiry of the probationary period if the employee’s performance does not meet the
22 A Practical Guide to Labour Law

required standards. At common law nothing prevents the employer from terminating the contract
on or before expiry of the probationary period by simply giving notice of termination. In terms of
the LRA, however, the probationary employee whose performance is unsatisfactory may not be
given notice and have his contract terminated, unless a fair procedure has been followed. The
employer is required to evaluate the employee’s performance regularly and give assistance,
guidance and training. If these measures do not aid in improving the employee’s performance, the
employee must be afforded an opportunity to state why he should not be dismissed, in other words,
the employee must have an opportunity to defend himself.

2.8.3 To obey the employer

The employer is in a position of authority in relation to the employee and is, therefore, entitled to
issue instructions to the employee. The employee is obliged to obey the employer and to perform
all reasonable and lawful instructions punctually. Disobedience amounts to a breach of contract,
but will not in all cases justify the dismissal. Each instance must be judged on its own merits. The
employee will be acting within his rights if he refuses to obey an unlawful or unreasonable order
and consequently will not expose himself to dismissal.

2.8.4 To be subordinate to the employer

Because the employer is in a position of authority the employee is obliged to be subordinate to the
employer and show due respect. The employee commits breach of contract if he does not display
the required respect. Insubordination can take various forms, ranging from less serious to very
serious forms of misconduct. Examples of insubordination include the refusal to obey a lawful
instruction; writing an offensive letter to the employer; using rude language to a superior; and
passing insulting remarks to the employer’s customers.

2.8.5 Maintaining bona fides

While an employee is in service he obtains information about his employer’s business. The
employee is obliged to act in good faith and not to do anything that may harm the relationship of
trust. He may not, for example, disclose information to the opposition (e.g. trade secrets) or use
information for personal gain. If he does so it is serious misconduct, a breach of contract that will
generally justify dismissal.
In order to protect its own interests, the employer often includes a restraint of trade clause in
the contract of employment. The effect of a restraint of trade is that the employee may not start a
business similar to that of the employer or work for the competition after leaving his employer’s
service for a specified period and in a specified area. If, however, the employee is conducting a
private business in his free time, causing the employer no damage whatsoever, he is acting within
his rights and may not be dismissed.
Any form of dishonesty amounts to a breach of the duty of good faith and justifies dismissal.
Examples of dishonest behaviour include receiving secret commissions, theft of the employer’s
property and defrauding the employer.
The maintenance of good faith means that the employee is obliged to promote the business
interests of the employer. He must dedicate his normal working hours to the business of his
employer and may not work for another employer. He may not even work for another employer
after hours if the interests of the latter are in conflict with those of the first employer.

2.8.6 To exercise reasonable care when using the employer’s property

The employee must at all times exercise reasonable care when using the property of the employer.
Negligent behaviour by the employee whereby damage is caused to the employer’s property
constitutes a breach of contract. Similarly, unreasonable use of the employer’s property for
personal ends will be a breach of contract.

2.8.7 To refrain from misconduct

Common law contract of employment 23

The employee must at all times act in accordance with acceptable practices, standards and policies
of his employer and may, therefore, not make himself guilty of misconduct. Examples of
misconduct include dishonesty, drunkenness, gross negligence, incompetence, rudeness and
assault. Misconduct constitutes a breach of contract and may justify dismissal in appropriate
circumstances.
Regarding previous misconduct, there is generally no duty on the employee to disclose his
previous misdemeanours upon entering the service of a new employer. Should his silence, however,
amount to fraud in light of his working conditions, there is a duty to disclose previous misconduct,
for example where his previous misconduct disqualifies him from his new employment.

2.9 The employer’s remedies

If the employee commits breach of contract by not complying fully and properly with his obligations
he is in breach of contract and the employer has recourse to the following remedies:
• summary termination (cancellation)
• specific performance
REMEDIES OF • damages
EMPLOYER • statutory remedies

2.9.1 Summary dismissal

Summary dismissal is the termination of an employee’s services without giving the prescribed
notice and is, therefore, a cancellation of the contract, also called summary termination of the
contract or, in every day parlance, dismissal. The employer is entitled to dismiss the employee
summarily when the latter has committed a material breach of contract, for example, where the
employee’s behaviour amounts to a repudiation of the contract of employment or constitutes
positive malperformance of a serious nature.
The following common law grounds for the summary dismissal of an employee have crystallised:
• incompetence to do particular work;
• serious negligence when performing duties;
• refusal to work;
• unreasonable absences from work without reason or consent or unreasonable absences as a
result of illness. This includes persistent late arrival for work despite various previous warnings;
• disobedience of reasonable commands within the purview of the employee’s work;
• rude behaviour to the employer;
• secret profits or commissions made at the expense of the employer or competing with the
employer and thereby violating the relationship of trust;
• disclosure of trade secrets or the misuse of information obtained through his employ-ment;
• dishonesty in the scope of his duties, for example fraud and theft. Dishonesty must be proved;
• putting the employer’s property to private use;
• other forms of misconduct, such as drunkenness or assaulting co-workers or customers; and
• insubordination, rebelliousness and any conduct undermining discipline or the employ-er’s
authority.
At common law only a valid reason for dismissal, like those mentioned above, is required. The
employer is not obliged to hold an investigation or hearing before dismissing an employee.
24 A Practical Guide to Labour Law

Dismissal can be effected with or without notice. Dismissal without notice is referred to as summary
dismissal.
In contrast, the LRA, in section 188, requires a valid reason and a fair procedure in order to ensure
a fair dismissal. An unfair dismissal is a breach of contract and infringes the fundamental right of an
employee to fair labour practices. This means the employer must have a valid reason (e.g. serious
misconduct) and follow a procedure in which the employee is afforded an opportunity to defend
himself. A “fair procedure” invariably involves some kind of disciplinary hearing.
When an employee is dismissed the employer is entitled to ask the employee to leave the work
premises. Should the employee refuse, the employer may not take the law into its own hands and
eject the dismissed employee; it will have to obtain a court order to achieve the ejectment of the
employee.
When an employee is dismissed he is, in terms of common law, entitled to any remuneration still
due to him for work done (unless his work is so wanting in quality that it can validly be rejected by
the employer). In terms of legislation a dismissed employee is entitled to outstanding remuneration
for time served and payment of all annual leave days to his credit. If an employee is summarily
dismissed he is not entitled to notice pay. If he is dismissed on notice he may be required to work
during the notice period; alternatively, the employer may exempt him from working the notice
period but must then pay him in lieu of notice.

2.9.2 Specific performance

In some instances specific performance will not be an appropriate order if an employee is in breach
of contract. It may be that the employee’s future conscientious performance of his duties cannot
be guaranteed or that the trust relationship between the employer and employee has irretrievably
broken down. The courts will, for example, be loath to compel a deserting or thieving employee to
return to his employer. In such cases the employer will be entitled to damages only.
Specific performance may in other circumstances be the appropriate order to make. For example,
if employees participate in a strike the employer may ask the court to issue an interdict to halt the
strike. Similarly, if an ex-employee is subject to a restraint of trade, the employer may obtain an
interdict to stop the ex-employee from breaching the terms of the restraint.

2.9.3 Damages
Whether the contract is cancelled or specific performance is demanded, the employer is entitled to
claim damages from the employee if the behaviour or negligence of the latter causes damages or
losses. On the same basis the employer may claim damages from the employee if he abandoned
his employment in a way which caused the employer losses. If the employee abandons the work
and thereby does not complete his tasks, he will not be entitled to any remuneration – not even for
the work completed – unless the remaining portion of the period of service is so slight that damages
will sufficiently compensate the employer. The employer is then entitled to compensation based on
enrichment. The onus is on the employer to prove that the losses flowed from the employee’s
breach of contract.

2.9.4 Statutory remedies

The remedies referred to above are the common law remedies available to an employer. Where the
employer wishes to rely on an employee’s breach of contract in order to claim one of these
remedies, proceedings will have to be instituted in a court of law with jurisdiction. Apart from the
common law remedies, an employer may follow the dispute resolution measures created in the
LRA, BCEA and other labour legislation.

2.10 Termination of the contract of employment

Common law contract of employment 25

ee

ost

2.10.1 By notice
Where the contract of employment was concluded for an unlimited duration, it may be terminated
by either party on notice.
Common law does not prescribe notice periods. A party is required to give notice for the period
as agreed to in the contract or, in the absence of an agreement, for a reasonable period. The usual
payment interval generally offers a guide of what a reasonable notice period would be (although
the courts will consider surrounding circumstances). If an employee is paid weekly, notice of one
week would be considered reasonable. Conversely, if an employee is paid on a monthly basis, a
month’s notice would be reasonable.
Notice can be given by either party: the employee may give notice that he intends to resign or
the employer may give notice of termination to the employee. Common law does not require notice
to be writing, although it is advisable to put it in writing.
The statutory position is that notice of the prescribed period (as prescribed in the BCEA,
collective agreement or sectoral determination) must be given and such notice must be in writing,
unless the employee is illiterate.
Prior to the commencement of the LRA of 1995 it was possible for an employer to give the
required notice and then terminate the services of an employee, for whatever reason or for no
reason at all. This is no longer possible. In terms of section 186(1)(a) of the LRA termination of
employment on notice constitutes a dismissal, unless the employer has a valid reason to terminate
services. In this context the LRA recognises as valid reasons the serious misconduct of the employee,
the employee’s incapacity or the employer’s operational requirements. Accordingly, if an employer
gives notice of termination without one of these reasons underlying the intended termination, the
termination will be considered a form of dismissal and the employee is entitled to challenge the
fairness of the dismissal.

2.10.2 By effluxion of time or completion of a specific task

A contract of employment can be concluded for a limited duration or for the performance of a
specific task. An employee is, for example, employed for a specified period (e.g. 1 January until 30
June). Or, an employee is employed to design a suite of computer programs.
A contract of this nature is referred to as a “fixed-term contract” and comes to an end when the
specified period expires or when the task is completed. Notice is not required because at conclusion
of the contract the employee was informed that his employment would be for a limited period or
until the job is done.
As a general rule a fixed-term contract may not be terminated before the specified period has
expired or before the task has been completed, unless the employee’s conduct or capacity or the
employer’s operational requirements justify an early termination.
26 A Practical Guide to Labour Law

Where the employee continues in service, with the approval of the employer, after expiration of
the specified period or completion of the job, the contract is deemed to have been tacitly renewed
on the same terms.
A fixed-term contract offers little or no security to an employee and it is for this reason that trade
unions have for a considerable time objected to limited duration contracts. To address the concerns
surrounding fixed-term contracts, the legislature inserted section 198B in the LRA (with effect 1
January 2015).
Section 198B seeks to provide protection to lower income employees5 who are employed for a
limited duration.
An employee to whom section 198B of the LRA applies may not be employed in terms of a fixed-
term contract for more than three months, unless the work the employee is employed to do is of
a limited duration or the employer has a justifiable reason to fix the period of employment (e.g.
replacing an employee who is temporarily absent; temporary increase in the volume of work; a
student employed to gain practical work experience, etc.). An employee on a fixed term may not be
treated less favourably than permanent employees and, if the contract does not meet the
requirements of section 198B (i.e. the contract is not genuinely a fixed-term contract as defined),
the employee is deemed to be employed for an indefinite duration.

2.10.3 By agreement
The parties may terminate the contract between them by mutual agreement.

2.10.4 By the death of the employee

The general rule is that the death of the employer does not terminate the contract of employment,
while the death of the employee terminates the contract due to impossibility of performance
because an employee is required to render personal services.

2.10.5 By insolvency
Prior to 2003 the insolvency of the employer terminated the contract of employment (s 38 of the
Insolvency Act of 1936). In such a case an employee was entitled to claim damages from the
insolvent estate, i.e. he could claim his salary for a maximum period of two
________________________

5 Employees earning below the BCEA threshold, i.e. the threshold amount determined by the Minister in terms of s
6(3) of the BCEA.
months and outstanding annual leave pay for a maximum period of 21 days (s 100 of the Insolvency
Act).
Because employees were left without recourse upon the employer’s insolvency, section 38 of the
Insolvency Act was amended in January 2003 (see the Insolvency Amendment Act 33 of 2002, which
came into operation on 1 January 2003). The effect of the amended section 38 is that employment
contracts no longer terminate automatically upon the employer’s insolvency.
The amended section 38 provides for the suspension of the employment contracts and, if
necessary, termination in a process akin to dismissal for the employer’s operational requirements
(retrenchment).
In terms of the amended section 38 employment contracts are suspended with effect from the
date of the sequestration order. During the period of suspension an employee is not required to
render services, he is not entitled to any remuneration and no employment benefits accrue to him.
The trustee (or liquidator) of the sequestrated estate may terminate the contracts of
employment only after he has complied with the requirements of section 38. He is required to
consult with, inter alia, any registered trade union whose members are likely to be affected by the
termination of the contracts or with the employees themselves. (See section 38 of the Insolvency
Act and section 189 of the LRA for the specific hierarchy of persons who must be consulted. Section
189 is discussed in chapter 17.) The purpose of the consultation process is to endeavour to reach
Common law contract of employment 27

consensus on appropriate measures to save the whole or part of the business of the insolvent
employer. With the consent of the trustee, a creditor of the insolvent employer may participate in
the consultations.
The rationale behind the prescribed consultations is that, if the employer’s business can be
saved, all or some of the employees may continue in employment and will not lose their jobs. If,
however, it is not possible to save the business and thereby secure the continued employment of
the employees, the contracts of employment terminate 45 days after the date of appointment of
the trustee (or liquidator), unless the trustee (or liquidator) and an employee have agreed on
continued employment.
An employee whose contract has been suspended or terminated is entitled to claim
compensation from the employer’s insolvent estate for losses suffered as a result of the suspension
or termination. An employee whose contract has been terminated is further entitled to claim
severance pay in terms of section 41 of the BCEA.
The insolvency of the employee does not terminate the employment contract, except where an
employee is prohibited from practising a particular profession in terms of the Insolvency Act (s 23).

2.10.6 By the illness of the employee

The illness of the employee does not normally terminate the contract of service, but an employer
is entitled to dismiss the employee, therefore to terminate the contract, if the absence due to illness
continues for an unreasonable period. At common law it is not necessary to follow any procedure
before terminating the contract in these circumstances, but the LRA requires that a fair procedure
be followed.

2.10.7 By impossibility of performance

If it is objectively impossible for the employee to perform, he is not committing breach of contract
and the contract of employment is terminated by the impossibility.

2.10.8 By cancellation (summary termination)

If one of the parties commits a material breach of contract, the other party is entitled to resile from
the contract, for example, the summary dismissal of an employee in the event of serious
misconduct.
2.10.9 Redundancy of post
The redundancy of a post offers a valid reason to the employer for terminating the services of an
employee, provided he gives the employee sufficient notice of such termination. A post becomes
redundant only when no employee can be required to perform the duties attached to the post
anymore. If, however, all or some of the duties attached to the post still exist, the employer is guilty
of a breach of contract if he terminates the services of the employee. At common law no procedure
is required before the contract is terminated, but the LRA requires that the retrenchment
procedures in sections 189 and 189A (where applicable) be followed.

2.11 The employer’s delictual liability

As a rule an employer is liable to third parties for delicts committed by its employees, provided the
delict was committed in the scope of the employee’s employment. This doctrine, known as vicarious
liability, is contentious because the general idea is that the person who commits a delict should be
held liable and not somebody else.
In order to hold the employer liable for the delicts of his employee, the following requirements
must be proved:
• there must be an employer/employee relationship; and
28 A Practical Guide to Labour Law

• the delict must have been committed by the employee in the course of the performance of his
duties, that is, “in the scope of employment”.

2.11.1 Employer/employee relationship

Before the employer can be held liable for delicts committed by an employee, the existence of an
ordinary contract of employment (locatio conductio operarum) must be proved. Refer to paragraph
2.2 above in this regard. The person must be an “employee” at the time the delict is committed.

2.11.2 The delict must have been committed by the employee in the scope of
employment
The employer is not liable to third parties for all delicts committed by its employee, but only for
those committed in the scope of employment. It follows then that the employer’s liability is
dependent upon the employee having committed the delict in the course of the performance of his
duties.
Whether an act falls within the scope of an employee’s duties is a question of fact and depends
on the particular circumstances of each case. Over the years the courts have developed the concept
of “scope of employment” and identified the following circumstances as falling within the scope of
an employee’s employment:
• If the delict is committed while the employee is actually working – i.e. while he is occu-pied with
the execution of his duties – he is obeying the orders of his employer and doing his work. Should
the employee in the process of working commit a delict which causes damage to a third party,
the employer is liable. In Hendrickz v Cutting 1937 CPD 417 the employee was a lorry driver.
While performing his duties, he stopped at a filling station for fuel. He lit a cigarette, causing a
fire in which the pump attendant was injured. The employer was held liable. In Minister of
Justice v Khoza 1966 (1) SA 410 (A) two police constables were going about their work, inter
alia, guarding prisoners. One of the constables aimed a pistol at the other in jest. The pistol went
off accidently and the second constable was injured. The employer was held liable.
• If a delict is committed while the employee is acting within the scope of his employment,
whether during or after working hours, his employer is liable. In Sauer NO v Duursema 1951 (2)
SA 222 (D) a postman was driving a vehicle belonging to the post office without the necessary
authority. As a result of his negligence an accident occurred and another vehicle was damaged.
The employer was held liable because the trip undertaken was connected with the delivery of
mail – the work for which the postman had been employed. In K v Minister of Safety and Security
[2005] 8 BLLR 749 (CC) three policemen in full uniform, on duty and driving an official South
African Police Service vehicle offered a woman a lift home. On the way they stopped, raped her
and left her at the roadside. The Court held that the employer was liable for the damages
suffered by the woman. See also F v Minister of Safety and Security [2012] 3 BLLR 244 (CC).
• When an employee performs an illegal act while acting in the course of his duties, the employer
is liable for the delict committed. Therefore, the employer is liable when the employee commits
an illegal act, if compliance with the employer’s orders requires that act. In Mkize v Martens 1914
AD 382 the employer supplied his two employees with food. The employees made a fire to cook
the food. The fire caused damage to a third party. The court decided that the making of the fire
was essential for the execution by the employees of their duties and the employer was held
liable.
• If an employee performs an act which has been prohibited by the employer, but which
nevertheless promotes the employer’s interests the employer is liable for the delict committed
by the employee. In General Tyre & Rubber Co (SA) Ltd v Kleynhans & Another 1963 (1) SA 533
(N) the employee drove a tractor on a public road, contrary to the orders of his employer. As a
result of his negligence an accident occurred. The employer was held liable for the damages
caused to a third party. In Moghamat v Centre Guards CC [2004] 1 All SA 221 (C) the employee,
a security guard, was not allowed to carry a firearm while on duty. One night, while on duty, he
Common law contract of employment 29

had his personal firearm in his possession and failed to put to it away. M was accidentally shot
and suffered severe injuries. The Court concluded that the security guard had been negligent
and, because he was on duty when the delict was committed, his employer was liable.
• When an employee commits a delict while partly promoting the interests of his employer and
partly his own, the employer will be liable. In Feldman v Mall 1945 AD 743 the employee had
to deliver goods and then immediately return to his place of work. On the way back he deviated
from the route to partake of drink with his friends. Later, on his way back to his workplace, he
knocked down and killed a pedestrian. The Court decided that he had abandoned his work only
partially to promote his own interests. He was, however, still promoting the interests of the
employer because he had retained control of the vehicle and was taking it back to work. The
employer was held liable. The same viewpoint was held in Minister of Safety and Security v
Jordaan t/a Andre Jordaan Transport 2000 (4) SA 21 (SCA) and Roux v Evkom [2002] 2 All SA 462
(T).
• When the employee totally abandons his work in order to promote his own interests, he is acting
outside the scope of his employment – he is “on a frolic of his own” – and his employer will not
be held liable for any delict committed by him; the employee is personally liable. The reason for
this is to be found in the fact that the delict has not been committed in the course of the
employee’s duties. In Rossouw v Central News Agency 1948 (2) SA 267 (W) the employee gave a
lift to a hitch-hiker. As a result of the employee’s negligence the hitch-hiker was injured. The
Court decided that the giving of a lift had nothing to do with the work of the employee. The
employer was not held liable. In Carter & Co (Pty) Ltd v McDonald 1955 (1) SA 202 (A) the
employee used his employer’s bicycle to go to the market for private reasons. He knocked down
and injured a pedestrian. The Court found that the employee was promoting his own interests
when the accident occurred. The employer was not held liable. In Ess Kay Electronics (Pty) Ltd
& Another v First National Bank of Southern Africa Ltd [2001] 1 All SA 315 (A) an employee of
the bank issued fraudulent bank drafts, causing the appellants some damage. The appellants
argued that the employee had been acting within the scope of his employment and wanted to
hold the bank (as employer) liable. The Court observed that the test was whether or not the
actions of the employee had been authorised. On the evidence the Court concluded that the
employee had failed to follow the bank’s stipulated procedures in issuing bank drafts.
Consequently, everything the employee did relative to the drafts was outside the scope of his
actual authority and the course of his employment. The employer was not held liable. See also
Energy Measurements (Pty) Ltd v First National Bank of South Africa Ltd [2000] 2 All SA 396
(W). In Absa Bank Ltd v Bond Equipment (Pretoria) (Pty) Ltd [2001] 1 All SA 1 (A) the Court held
that the theft of cheques by an employee from his employer cannot be said to be an act carried
out in the course and scope of employment. Theft is committed solely for an employee’s own
interest and, therefore, falls outside the scope of his authority and employment. The employer
cannot be held vicariously liable for the actions of such a delinquent employee.
In PE v Ikwezi Municipality & Another [2016] 7 BLLR 723 (ECG) the Court noted that the vicarious
liability of an employer for the unlawful acts of their employees had been considerably expanded
since the adoption of the Constitution in 1996. In this case the plaintiff was sexually molested by
her superior during working hours. The molester was summoned to a disciplinary hearing, found
guilty and was given a final written warning and suspended without pay. The plaintiff sued both the
employer (municipality) and the molester, claiming that the municipality was vicariously liable for
the actions of the molester. The municipality submitted that the molester was not acting within the
scope of his duties and, therefore, that the municipality could not be held liable. Furthermore, the
municipality had taken reasonable steps to protect the plaintiff from further harm by subjecting the
molester to disciplinary action. The Court observed that in molesting the plaintiff, the molester had
been acting solely for his own purposes and objectives. However, the molester had been in a
position of trust as a senior employee and the superior of the plaintiff. The trust inherent in the
relationship between him and the municipality established a causal link between his employment
and any wrongful act. When this trust was abused and breached, so it was held, the employer is
vicariously liable.6
30 A Practical Guide to Labour Law

Before an employer can be held liable, the commission of a delict by the employee must be
proved. This means that the employee must have caused harm to another by his unlawful act or
omission. The employer will be liable only for a delict which could be claimed from the employee.
The employer and his employee are liable as co-defendants in solidum. Where the employer pays
the full amount of the damages the amount can be recovered from the employee.

2.11.3 The employer’s liability for the delicts of an independent contractor

The employer is not liable for the delicts of an independent contractor. There have, however, been
cases where the employer was held liable, but on the basis of its own conduct. In order to determine
the liability of the employer in this case, his neglect to take preventative action should be borne in
mind.
In the following instances the employer was held liable for delicts caused by his own acts and
those of the independent contractor:
• where the employer gave incomplete instructions to the independent contractor;
• where the employer gave instructions to the independent contractor to do something which he
himself was not authorised to do;
• where the employer gave an unlawful instruction to the independent contractor or ratified the
unlawful act of the contractor;
• where the acts the employer instructed the contractor to perform are potentially danger-ous
and the employer neglected to take precautionary steps.

2.12 Restraint of trade

A restraint of trade clause is commonly included in employment contracts (or a restraint agreement
accompanies a contract of employment). In terms of a restraint of trade an
________________________

6 Also see Minister of Defence v Von Benecke [2013] JOL 30736 (SCA).
employee is prevented from starting his own business in competition with his employer or from
working for the employer’s competitors for a specified period in a specified geographical area after
leaving the employ of his employer.
A restraint is in fact restricting the freedom of the employee to conduct commercial activities at
his own discretion or to work for an employer of his choice. In terms of our common law it is against
public policy to restrict the freedom of another to conduct activities as he wishes and, therefore, a
restraint agreement is unlawful and void.
It is necessary, however, that the employer’s interests be protected. Think of the situation where
an employee gains useful information about clients and trade secrets while working for his
employer. After resigning this employee starts his own business and will, in all likelihood, use the
information to pursue his own interests to the detriment of his ex-employer. The ex-employer needs
to be protected. Such protection is secured by way of a restraint of trade agreement.
The courts have subscribed to the common law rule that a restraint is against public policy and
consequently void. However, the courts, realising that an employer’s interests need to be protected,
qualified the common law rule by deciding that if a restraint is reasonable, it is valid and
enforceable. In order to determine whether a restraint is reasonable the following will be taken into
consideration: • the area and period of the restraint;
• whether a restraint agreement has been concluded merely to prevent healthy competi-tion or
whether it was concluded to genuinely protect the employer’s interests;
• the nature of the business; and
Common law contract of employment 31

• whether the employee has been prevented by the restraint from utilising his own skills, expertise
and experience.
A restraint will, for example, be judged unreasonable if the employee is prevented from using his
own skills to generate an income. Similarly, a restraint will be void if the period and/or area in which
the employee may not conduct business similar to that of his former employer’s is deemed
unreasonable in relation to the latter’s business. Every case will be judged on its own merits to
determine the reasonableness, and hence the validity or otherwise, of the restraint.
An interdict may be requested by an employer to prevent the ex-employee from breaching the
terms of the restraint agreement and, should the court find the restraint to be reasonable, the
interdict will be granted. If the restraint is found reasonable in general, but only the area or the
period is considered unreasonable, the court may reduce the area or the period to ensure the
reasonableness and, therefore, the validity of the agreement of restraint.
The constitutionality of a restraint of trade has been tested on occasion and the courts have
found that a restraint is a justifiable limitation to a person’s right to engage freely in any trade,
occupation or profession, provided that it is reasonable and in public interest. See Magna Alloys
and Research (SA) (Pty) Ltd v Ellis 1984 (4) SA 874 (A); Waltons Stationery Co (Edms) Bpk v Fourie
1994 (4) SA 507 (O); Wespro (Cape Town) v Stephenson [1995] 4 BLLR 86 (IC); Fisher v Clinic
Holdings Ltd [1995] 8 BLLR 27 (IC); Kotze & Genis (Edms) Bpk v Potgieter 1995 (3) SA 783 (C); Knox
D’Arcy Ltd v Shaw 1996 (2) SA 651 (W); Fidelity Guards Holdings (Pty) Ltd v Pearmain [1998] 3
BLLR 335 (SE).

2.13 The employer and third parties

The general rule is that a person is bound by a contract only if he himself agreed to it. An employer
can, however, be bound by a contract if someone acts as its agent or representative. The agent may
of course not exceed the bounds of his authority.
Ordinarily an employee does not act as the representative or agent of his employer. A contract
may, however, provide that the employee acts as an agent in given circumstances or the employee
may be seen as an agent by the operation of the doctrine of estoppel. According to the doctrine of
estoppel the employer will be bound by a contract concluded by its employee if the employer
indicated to a third party, by words or implication, that the employee was acting on its behalf. The
third party must have acted on the strength of this representation. Estoppel prevents the employer
from denying that the employee was authorised to act on his behalf. Consequently the employer
will be held to the terms of the contract.

Questions

Question 1
Discuss in detail, with reference to decided cases and other authority, how one will determine
whether a person is an “employee” or an independent contractor. (20)

Question 2
Discuss the common law duty of an employee to maintain bona fides (good faith). (10)

Question 3
Ben was an assistant manager in the storeroom of Cytex (Pty) Ltd for ten years. One Monday
morning he was informed by the general manager that an assistant manager was no longer required
32 A Practical Guide to Labour Law

in the storeroom and that he would be transferred to the factory plant as a supervisor. He would,
however, retain his present salary.
Discuss Ben’s legal position in detail with reference to case law. (10)

Question 4
Mr Adonis Smith appoints three people to work as general labourers in his small car component
manufacturing company. He explains to them that he cannot afford to pay the minimum wage as
stipulated by the bargaining council. They are only too pleased to have a job and agree to work for
less than the prescribed minimum.
4.1 Explain whether such an agreement is valid and enforceable. (4)
Hint: A contract of employment must comply with the minimum terms of any applicable legislation,
a sectoral determination or collective agreement.
4.2 Assume that Mr Smith employed the labourers to work on his farm. Would he and the
labourers be at will to agree on any rate of pay per hour? (2) Hint: Schedule 1 of the
National Minimum Wage Act.

Question 5
An administrative assistant, Sebastian Stroud, is asked by a director of the company Stroud works
for to take a client to the airport in one of the company’s luxury German cars. On the way back from
the airport Stroud causes an accident due to his own negligence and both the company car and the
other person’s car are damaged. Assume that it will cost R20 000 to repair the company car and
R10 000 to repair the other car.
5.1 Can the other person claim R10 000 from the company to have his car repaired?
Give reasons for your answer. (5)
5.2 Assume that Stroud has to compensate the company for the damages to the company car. Can
this amount be deducted from his wages? Give reasons for your answer. (2)

Question 6
Andrew is working at XYZ Co as a representative, selling farming implements. His remuneration
consists of commission amounting to 12% of the selling price of every item sold. He does not have
to go to the office every day and he arranges his appointments to suit him.
He has to submit a monthly report on all sales at the end of each month. His job description gives
him a free hand as to the manner in which an item is sold, provided that if he sold same for cash
and the selling price exceeded R100 000, he had to get the written permission of his general
manager. One Saturday morning Andrew meets with a farmer with whom he has an appointment.
The farmer buys irrigation equipment to the value of R120 000 cash. Andrew concludes the
transaction without contacting his manager for permission. On his way back home he causes an
accident in which a Mr Nel’s car is damaged and he (Nel) is seriously injured.
6.1 Is Andrew an employee? Explain your answer with reference to the common law, the
presumption in section 83A of the BCEA and section 200A of the LRA and the Code of Good
Practice: Who is an employee? (20)
6.2 Would your answer differ if Andrew worked for a basic salary plus commission and his job
description compelled him to report every appointment he had arranged and every sale he
had concluded to his manager? Explain. (4)
6.3 Assume that Andrew is an employee. Mr Nel wishes to sue for medical expenses and repair
costs to his car. He approaches you for advice. Advise him. (5)
6.4 Assume that Andrew had gone to this farm for a personal visit (not for business) and the accident
(as described above) took place. Mr Nel wishes to sue for medical expenses and repair costs
to his car. Advise him. (5)

Question 7
Common law contract of employment 33

Miss Sunshine works as a sex worker for Adult World CC. It is not in dispute that she performs sex
deeds for reward, works 12 hours a day, 7 days a week and lives in accommodation provided by the
employer (as payment in kind). She is dismissed without a hearing and for allegedly breaching rules
relating to entertaining customers privately and not in the name of the business. She wants to refer
a dismissal dispute to the CCMA.
Advise Miss Sunshine of her prospects of success, giving reasons for your advice and considering
the latest case law in this regard. (20)
Hint: See “Kylie” v Van Zyl t/a Brigittes [2007] 4 BALR 338 (CCMA); “Kylie” v CCMA & Others
[2008] 9 BLLR 870 (LC); “Kylie” v CCMA & Others [2010] 7 BLLR 705 (LAC).

Question 8
Ms Disco visited a nightclub with her boyfriend. In the early hours of the morning she needed a lift
home because she and her boyfriend had had a fight. A policeman on standby duty, Mr Stalker, in
casual clothes and in an unmarked police vehicle, saw Ms Disco walking along the road. He stopped
and offered her a lift home. Because she believed he was a policeman, she trusted him and accepted
his offer. On their way to her home Mr Stalker assaulted and raped her. Can SAPS, Mr Stalker’s
employer, be held vicariously liable for what he did to Ms Disco? (10)
Hint: See F v Minister of Safety and Security [2012] 3 BLLR 244 (CC); PE v Ikwezi Municipality &
another [2016] 7 BLLR 723 (ECG).

Question 9
Breathe Easy (Pty) Ltd is a respiratory home care company which imports, rents, sells, markets and
distributes respiratory equipment in a highly competitive industry. It distributes equipment to
patients who suffer from respiratory problems and has established long-term relationships with
many of them. Mpho used to be an employee of Breathe Easy. Her contract of employment with
the company contained both a confidentiality clause and a restraint of trade. In terms of the
contract she had agreed not to disclose any confidential information, including trade secrets and
clients’ names acquired during the course of her employment. She further agreed not to approach
or entice away any of Breathe Easy’s customers or employees or to work for a competitor company
for a period of 12 months after leaving Breathe Easy. After her resignation Mpho joined Air For All
(Pty) Ltd, a company competing with Breathe Easy for a market share in the same industry.
Would Breathe Easy, in your opinion, be successful in relying on the restraint of trade to which
Mpho had agreed? What are Breathe Easy’s prospects of success in interdicting Mpho from working
for and disclosing confidential information to Air For All? (10)
Hint: See Continuous Oxygen Suppliers (Pty) Ltd t/a Vital Aire v Meintjes & Another (2012) 33 ILJ
629 (LC).

Question 10
John Vikuluzi, a Burundian national, obtained refugee status in South Africa. While in the country
he obtained a degree in nursing and was officially informed that he could work as a health
professional. After obtaining endorsement of his right to work whilst retaining his refugee status,
he applied for a permanent position as a professional nurse at the Valentina Hospital. The post was
offered to him and he accepted it. After three weeks’ service in the new position he was informed
that he could only be employed on a fixed-term contract because his refugee status was about to
expire and it would be in contravention of the applicable legislation to retain him on a permanent
basis. Valentina Hospital accordingly withdrew the offer of permanent employment, relying on a
revised policy of the National Health Care Council in terms of which only South African citizens who
were fit and proper persons could be appointed. John contended that the policy discriminated
against foreign nationals and sought reinstatement to the full-time position he had occupied.
Discuss John’s prospects of success. (10)
Hint: See Ndikumdavyi v Valkenberg Hospital & Others [2012] 8 BLLR 795 (LC); Discovery Health
Ltd v CCMA & Others [2008] 7 BLLR 633 (LC). Also refer to section 198B of the LRA.
34 A Practical Guide to Labour Law

Appendix

GN 1774 of 1 December 2006

Code of Good Practice: Who is an Employee

PART 1
1. This Code of Good Practice is issued by NEDLAC in terms of section 200A(4), read with section 203,
of the Labour Relations Act 66 of 1995 (LRA).
2. This Code sets out guidelines for determining whether persons are employees. Its purpose
is –
(a) to promote clarity and certainty as to who is an employee for the purposes of the Labour
Relations Act and other labour legislation;
(b) to set out the interpretive principles contained in the Constitution, labour legislation and
binding international standards that apply to the interpretation of labour legislation, including
the determination of who is an employee;
(c) to ensure that a proper distinction is maintained between employment relationships which
are regulated by labour legislation and independent contracting;
(d) to ensure that employees – who are in an unequal bargaining position in relation to their
employer – are protected through labour law and are not deprived of these protections by
contracting arrangements;
(e) to assist persons applying and interpreting labour law to understand and interpret the variety
of employment relationships present in the labour market including disguised employment,
ambiguous employment relationships, atypical (or non-standard) employment and triangular
employment relationships.
Application
3. In terms of section 203(3) and (4) of the LRA, any person interpreting or applying one of the
following Acts must take this Code into account for the purpose of determining whether a particular
person is an employee in terms of –
(a) Labour Relations Act 66 of 1995 (LRA);
(b) Basic Conditions of Employment Act 75 of 1997 (BCEA);
(c) Employment Equity Act 55 of 1998 (EEA); or (d) Skills Development Act 97 of 1998
(SDA).
4. The Code should also be taken into account in determining whether persons are employees in terms
of the Occupational Health and Safety Act 85 of 1993, the Compensation for Occupational Injuries
and Diseases Act 130 of 1993 and the Unemployment Insurance Act 63 of 2001. In applying these
Acts, it must be borne in mind that the definitions of an employee in those statutes differ from that
contained in the LRA. However, there are sufficient similarities for the Code to be of considerable
assistance in determining who is covered by these statutes. These statutes are discussed further in
Part 6 of the Code.
5. Part 1 of this Code deals with the application of the Code and issues of interpretation.
6. Part 2 of this Code deals with the rebuttable presumption as to who is an employee in terms of
section 200A of the LRA and section 83A of the BCEA. Any person applying or interpreting those
sections must take this Code into account.
7. Part 3 of this Code, deals with the interpretation of the definition of “employee” contained in the
LRA, the BCEA, the EEA and the SDA.
8. Part 4 of the Code deals with determining the employment status of persons employed by
temporary employment services.
9. Part 5 of the Code deals with the principles of interpretation that are applicable to interpreting the
statutory presumptions of employment and the statutory definitions of an employee.
Common law contract of employment 35

10. Part 6 deals with the extent to which the Code is of assistance in determining employment status
for purposes of the Occupational Health and Safety Act 85 of 1993, the Compensation for
Occupational Injuries and Diseases Act 130 of 1993 and the Unemployment Insurance Act 63 of
2001.
11. While every person applying or interpreting one of these statutes must take the Code into account,
the Code is not a substitute for applying binding decisions of the courts. The Code therefore refers
to many of the most important and helpful decisions of the courts on these issues. (A table of cases
cited together with their references is attached to the Code.)

PART 2
THE PRESUMPTION AS TO WHO IS AN EMPLOYEE
12. The 2002 amendments to the LRA and BCEA introduce a provision into each Act creating a
rebuttable presumption as to whether a person is an employee and therefore covered by the Act.
These provisions are found in section 200A of the LRA and section 83A of the BCEA. These sections
only apply to employees who earn less than a threshold amount determined from time to time by
the Minister of Labour in terms of section 6(3) of the BCEA.
13. A person is presumed to be an employee if they are able to establish that one of seven listed factors
is present in their relationship with a person for whom they work or to whom they render services.
Before examining the seven factors, it is necessary to describe the general operation of the
presumption.
14. Subject to the earnings threshold, the presumption applies in any proceedings in terms of either
the BCEA or LRA in which a party (“the applicant”) alleges that they are an employee and one or
more of the other parties to the proceedings disputes this allegation.
15. In order to be presumed to be an employee, an applicant must demonstrate that –
(a) they work for or render services to the person or entity cited in the proceedings as their
employer; and
(b) any one of the seven listed factors is present in their relationship with that person or entity.
(These factors are discussed in paragraph 18 of the Code.)
16. The presumption applies regardless of the form of the contract. Accordingly, a person applying the
presumption must evaluate evidence concerning the actual nature of the employment relationship.
The issue of the applicant’s employment status cannot be determined merely by reference to either
the applicant’s obligations as stipulated in the contract or a “label” attached to the relationship in a
contract. Therefore a statement in a contract that the applicant is not an employee or is an
independent contractor must not be taken as conclusive proof of the status of the applicant.
17. The fact that an applicant satisfies the requirements of the presumption by establishing that one of
the listed factors is present in the relationship does not establish that the applicant is an employee.
However, the onus then falls on the “employer” to lead evidence to prove that the applicant is not
an employee and that the relationship is in fact one of independent contracting. If the respondent
fails to lead satisfactory evidence, the applicant must be held to be an employee.
18. The presumption comes into operation if the applicant establishes that one of the following seven
factors is present –
(a) “the manner in which the person works is subject to the control or direction of another
person”
The factor of control or direction will generally be present if the applicant is required to obey the
lawful and reasonable commands, orders or instructions of the employer or the employer’s
personnel (for example, managers or supervisors) as to the manner in which they are to work.
It is present in a relationship in which a person supplies only labour and the other party
directs the manner in which he or she works. In contrast, control and direction are not present
if a person is hired to perform a particular task or produce a particular product and is entitled
to determine the manner in which the task is to be performed or the product produced. It is
an indication of an employment relationship that the “employer” retains the right to choose
which tools,
36 A Practical Guide to Labour Law

staff, raw materials, routines, patents or technology are used. Likewise, the fact that an
employer is entitled to take disciplinary action against the person as a result of the manner
in which the person works is a strong indication of an employment relationship.
(b) “the person’s hours of work are subject to the control or direction of another person”
This factor will be present if the person’s hours of work are a term of the contract and the contract
permits the employer or person providing the work to determine at what times work is to be
performed. However, the fact that the contract does not determine the exact times of
commencing and ending work does not entail that it is not a contract of employment.
Sufficient control or direction may be present if the contract between the parties determines
the total number of hours that the person is required to work within a specified period.
Flexible working time arrangements are not incompatible with an employment relationship.
(c) “in the case of a person who works for an organisation, the person forms part of that
organisation”
This factor may apply in respect of any employer that constitutes a corporate entity. It does not
apply to individuals employing, for instance, domestic workers. The factor will be present if
the applicant’s services form an integrated part of the employer’s organisation or operations.
A person who works for or supplies services to an employer as part of conducting their own
business does not form part of the employer’s organisation. Factors indicating that a person
operates their own business are that they bear risks such as bad workmanship, poor
performance, price hikes and time over-runs. In the case of employment, an employer will
typically bear these types of risks.
(d) “the person has worked for that other person for an average of at least 40 hours per month
over the last three months”
If the applicant is still in the employment of the employer, this should be measured over the three
months prior to the case commencing. If the relationship has terminated, it should be
measured with reference to the three-month period preceding its termination.
(e) “the person is economically dependent on the other person for whom he or she works or
renders services”
Economic dependence will generally be present if the applicant depends upon the person for whom
they work for the supply of work. An employee’s remuneration will generally be his or her
sole or principal source of income. On the other hand, economic dependence will not be
present if the applicant is genuinely self-employed or is running their own business. A self-
employed person generally assumes the financial risk attached to performing work. An
important indicator that a person is genuinely self-employed is that he or she retains the
capacity to contract with others to work or provide services. In other words, an independent
contractor is generally free to build a multiple concurrent client base while an employee is
bound to a more exclusive relationship with the employer.
An exception to this is the position of part-time employees. The fact that a part-time employee is
able to work for another employer in the periods in which he or she is not working does not
affect his or her status as an employee. Likewise, the fact that a full-time employee may be
able to take on other employment that does not conflict with the interests of their employer
in their spare time is not an indication of selfemployment.
(f) “the person is provided with the tools of trade or work equipment by the other person”
This provision applies regardless of whether the tools or equipment are supplied free of cost
or their cost is deducted from the applicant’s earnings or the applicant is required to re-pay
the cost. The term “tools of trade” is not limited to tools in the narrow sense and includes
items required for work such as books or computer equipment.
(g) “the person only works for or renders services to one person”
This factor will not be present if the person works for or supplies services to any other person. It is
not relevant whether that work is permitted in terms of the relationship or whether it involves
“moonlighting” contrary to the terms of the relationship.
Common law contract of employment 37

19. If any one of the factors listed in the preceding paragraph is established, the applicant is presumed
to be an employee. An “employer” that disputes that an applicant is an employee must be given
the opportunity to rebut the presumption by leading evidence concerning the nature of the working
relationship. After hearing this evidence, and any additional evidence provided by the applicant or
any other party, the presiding officer must rule on whether the applicant is an employee or not.
20. In cases in which the presumption is not applicable, because the person earns above the threshold
amount, the factors listed in the presumption (and discussed above) may be used as a guide for the
purpose of determining whether a person is in reality in an employment relationship or is self-
employed.

PART 3
INTERPRETING THE DEFINITION OF AN EMPLOYEE
21. The LRA defines an employee as –
“(a) any person, excluding an independent contractor, who works for another person or for the
State and who receives, or is entitled to receive, any remuneration; and
(b) any other person who in any manner assists in carrying on or conducting the business of an
employer,
and ‘employed’ and ‘employment’ have meanings corresponding to that of ‘employee’”.
22. The interpretation given to the term “employee” by the courts prior to the insertion into the LRA of
the presumption as to who is an employee, remains relevant. This is so because –
(a) the presumption only applies to employees who earn less than the earnings threshold
determined by the Minister;
(b) in the case of employees who earn less than the threshold amount, the employer may lead
evidence to rebut the presumption, and establish that they are not an “employee”. For
example, if the person who claims to be an employee establishes that he or she has worked
for the other person for an average of at least 40 hours over the last three months, he or she
must be presumed to be an employee. The “employer” may, however, lead evidence that that
person is an independent contractor engaged to perform a particular task. The court or
tribunal will then have to determine whether that person is an employee.
23. Sub-paragraph (a) of the definition of an “employee” in the LRA includes any person who works for
another person and who receives, or is entitled to receive, remuneration, unless that person is an
independent contractor. In general terms, this reflects the common law distinction between
employees and independent contractors.
24. Sub-paragraph (b) contemplates that other categories of persons who assist in carrying on or
conducting businesses also fall within the statutory definition of an “employee”. Subparagraph (b)
has the consequence that persons who are not engaged in terms of a contract of employment may
nevertheless be statutory employees. The courts have not yet delineated the precise ambit of
persons who should be classified as employees because they fall within the terms of sub-paragraph
(b).
25. In 1970 the then Appellate Division4 interpreted wording similar to that contained in subparagraph
(b) and concluded that it did not include persons who work for another as an independent
contractor. While the courts have not delineated the precise categories of employees who will be
covered, it has been held that this part of the definition contemplates the assistance that a person
may render to a person other than their employer. A category of persons who clearly fall within the
terms of sub-paragraph (b) are unpaid workers who work for an employer.
When does a person become an employee?
26. The definition of an “employee” includes a person who has concluded a contract of employment to
commence work at a future date. Accordingly, it is not a requirement that the person has
commenced work in order to be classified as an employee in terms of labour legislation.

Distinguishing between an employee and an independent contractor

27. When deciding whether a person is an employee rather than an independent contractor, the courts
follow an approach usually referred to as the “dominant impression” test. In terms of this approach,
38 A Practical Guide to Labour Law

it is necessary to evaluate all aspects of the contract and the relationship and then make a
classification based on the “dominant impression” formed in that evaluation. Accordingly, there is
no single factor that decisively indicates the presence or absence of an employment relationship.
In this regard, the approach differs from that used when applying the presumption as the
presumption comes into play if one of the listed criteria is present. That there is no single decisive
criterion that determines the presence or absence of an employment relationship does not mean
that all factors should be given the same weighting.
28. To determine whether a person is an employee, our courts seek to discover the true relationship
between the parties. In certain cases, the legal relationship between the parties may be gathered
from a construction of the contract that the parties have concluded. However, in practice, an
interpretation of the wording of the contract will only determine the matter definitively if the
parties expressly admit that the contract is consistent with the realities of the relationship or elect
not to lead evidence concerning the nature of the relationship. The parol evidence rule that
prevents oral evidence being lead to interpret a contract, has no application in determining whether
or not a person is an employee for the purposes of labour legislation.
29. However, the contractual relationship may not always reflect the true relationship between the
parties. In these cases, the court must have regard to the realities of that relationship, irrespective
of how the parties have chosen to describe their relationship in the contract. Adjudicators should
look beyond the form of the contract to ascertain whether there is an attempt to disguise the true
nature of the employment relationship or whether there is an attempt by the parties to avoid
regulatory obligations, such as those under labour law or the payment of tax. Our courts have
frequently noted that the inequality of bargaining power within an employment relationship may
lead employees to agree to contractual provisions that do not accord with the realities of the
employment relationship. This is particularly important in the case of low paid workers who may
have agreed to be classified as independent contractors because of a lack of bargaining power.
30. Disguised employment is a significant reality in the South African labour market and has been dealt
with in a number of reported decisions. The Employment Relationship Recommendation, 2006 of
the International Labour Organisation states that a “disguised employment” relationship occurs
when the employer treats an individual as other than an employee in a manner that hides his or
true legal status as an employee”. It is an established principle of our law that the label attached to
a contract is of no assistance where it is chosen to disguise the relationship. A contract that
designates an employee as an independent contractor, but in terms of which the employee is in a
subordinate or dependent position, remains a contract of service. In other cases, employers have
claimed that a person who was formerly an employee has been “converted” into an independent
contractor. If the person has previously performed the same or similar work as an employee, this is
a very strong indication that he or she remains an employee. Likewise, the fact that other employees
employed by the same employer, or by other employers in the same sector, to perform the same
or similar work under similar conditions are classified as employees may be a factor indicating that
the person is an employee.
31. It is consistent with the purposes of the LRA and other labour legislation to classify as employees,
workers who have agreed to contracts purporting to classify them as independent contractors. The
fact that a person provides services through the vehicle of a legal entity such as a company or a
closed corporation does not prevent the relationship being an employment relationship covered by
labour legislation. It is necessary to look beyond the legal structuring to ascertain the reality of the
employment relationship and determine whether the purpose of the arrangement was to avoid
labour legislation or other regulatory obligations. However, where a person has made
representations to an agency such as the SA Revenue Services that they are not an employee in
order to gain tax benefits, it may be appropriate for a court or arbitrator to refuse to grant them
relief on the basis that they have not instituted the proceedings with “clean hands”.

Factors
32. In the initial decision adopting the “dominant impression” test, the then Appellate Division listed
six factors to distinguish a contract of employment from a contract for services concluded by an
independent contractor. These factors, which are frequently cited in judgments, are tabulated
Common law contract of employment 39

below and discussed in turn. These six factors are not a definitive listing of the differences between
the two types of contract.
Employee Independent Contractor

1. Object of the contract is to render personal Object of contract is to perform a specified work
services. or produce a specified result.

2. Employee must perform services personally. Independent contractor may usually perform
through others.
3. Employer may choose when to make use of Independent contractor must perform work (or
services of employee. produce result) within period fixed by contract.

4. Employee obliged to perform lawful commands Independent contractor is subservient to the

and instructions of employer. contract, not under supervision or control of
employer.
5. Contract terminates on death of employee. Contract does not necessarily terminate on death
of employee.
6. Contract also terminates on expiry of period of Contract terminates on completion of work or
service in contract. production of specified result.
Rendering of personal services
33. In terms of the common law, an employee renders personal services, while an independent
contractor is contracted to produce a specified result. An employee is contracted to work and the
labour itself is the object of a contract of employment. An independent contractor is contracted to
deliver a completed product and the result of the labour is the object of the contract.
34. The Supreme Court of Appeal (SCA) has cited with approval an alternative formulation of this core
distinction proposed by the author Brassey who describes the difference in the following terms –
“an employee is a person who makes over his or her capacity to produce to another; an independent
contractor is a person whose commitment is the production of a given result by his or her labour”.
35. The acceptance of this formulation of the object of the contract does not alter the SCA’s continued
application of a multi-factoral approach in the form of the “dominant impression” test. The object
of the contract therefore remains one of the factors that must be taken into account in determining
the nature of the contract. An individual engaged to perform specified work may nevertheless be
an employee if other aspects of the relationship sufficiently resemble an employment relationship.
This may be the case, for example, if the employee is required to perform the specified work
personally and under close supervision by the employer.

Employee must perform personally

36. A key defining feature of an employment relationship is that the employee is required to perform
services personally when required to do so by the employer. This has been described
by the courts as the employee being “at the beck and call” of the employer. An independent
contractor need not perform the service personally and may use the services of other people, unless
the contract expressly provides otherwise. Accordingly, a contractual provision requiring a
contractor to perform personally does not always mean that the relationship is one of employment.
Similarly, the fact that an employee may be permitted or required to arrange a substitute during
absences does not in itself imply he or she is an independent contractor.
37. The fact that a person employs, or is entitled to employ, other people to assist in performing the
allocated tasks will not always be inconsistent with an employment relationship, although it is an
indication that the relationship is one of independent contracting. In some sectors of the economy,
it is a practice for sub-contractors to be engaged to work and required to recruit other workers to
assist them. This requirement does not in itself exclude the sub-contractors from the possibility of
being classified as employees. It will still be necessary to examine the relationship between the
principal and sub-contractor, as well as the relationship between the principal and the persons
engaged by the sub-contractor, to ascertain if the relationship is one of employment. Depending
40 A Practical Guide to Labour Law

upon an examination of all the factors, including, for instance, the extent of control exercised by the
principal subcontractor, it is feasible that both the sub-contractor and the workers that he or she
has engaged may be employees of the principal contractor. A relevant factor would be the extent
to which the employer exercises control over a decision to terminate the services of persons
engaged by the sub-contractor.

Employer may choose when to make use of services of employee

38. The courts conventionally state that an employer has the right to determine whether to require an
employee to work, while an independent contractor is bound to perform or produce as specified by
the contract. An employer will however, in most circumstances, be liable to pay an employee who
tenders his or her services, even where the employer does not require the employee to work.

Employer’s right of control

39. An employee is subject to the employer’s right of control and supervision while an independent
contractor is notionally on a footing of equality with the employer and is bound to produce in terms
of the contract. The right of control by an employer includes the right to determine what work the
employee will do and how the employee will perform that work. It can be seen in an employer’s
right to instruct or direct an employee to do certain things and then to supervise how those things
are done.
40. The employer’s right of control is likely to remain, in most cases, a very significant indicator of an
employment relationship. The greater the degree of supervision and control to be exercised, the
greater the probability that the relationship is one of employment. The right of control may be
present even where it is not exercised. The fact that an employer does not exercise the right to
control and allows an employee to work largely or entirely unsupervised, does not alter the nature
of the relationship.
41. A court may conclude that a contract of employment exists even if the employer exercises a
relatively low degree of control because of the presence of other factors in the relationship that are
indicative of employment. In some cases, particularly in the case of workers with high levels of skills
or occupying senior positions within a company, the normal indications of control may not be
present but nevertheless the relationship may be one of employment because, for instance, of their
degree of integration into the employer’s organisation.

Termination of contract on death of employee

42. The fifth of the original characteristics suggested that a contract of employment terminates on the
death of an employee, while the death of an independent contractor does not necessarily terminate
the relationship. It has been observed that this distinction may be of limited value as the death of
an individual who is an independent contractor may terminate the relationship.
Termination of contract on expiration of period of service
43. The sixth characteristic is that a contract of service terminates on the expiration of the period of
service while a contract of work terminates on completion of the relevant work or task. Again, this
distinction is of very little practical value in dealing with difficult cases. It is not uncommon for the
life of a contract of employment to be defined by reference to a project on which an employee is
engaged.

Other characteristics of a contract of employment

44. The six factors listed are not an exclusive list of the factors that should be considered when assessing
whether an employment relationship exists. The factors in section 200A of the LRA and section 83A
of the BCEA that form part of the presumption of employment also serve as a useful guide to be
used in this process. The comments on each of these factors in Part 2 of the Code are therefore
relevant in considering whether a person is an employee. The remainder of this Part of the Code
deals with a number of other considerations that may be relevant to determining whether an
employment relationship exists in particular cases.

Remuneration and benefits

Common law contract of employment 41

45. A worker’s remuneration and benefits may assist in determining their employment status. The fact
that an employee receives fixed payment at regular intervals which is made regardless of output or
result tends to be a strong indication of an employment relationship. This type of payment regime
would generally be inappropriate for persons who are genuinely self-employed.
46. Likewise, the fact that a person is a member of the same medical aid or pension scheme as other
employees of the employer is an indication that they are an employee. Other factors which may be
indicative of an employment relationship are –
(a) the inclusion in a contract of payments in kind for items such as food, lodging or transport;
(b) the inclusion in a contract of provision for weekly rest periods and annual leave will usually
be consistent with an employment relationship;
(c) the provision of benefits that are designed to reward years of service with their employer.
47. Many employees receive variable payments that depend on their performance, such as
commissions or bonuses based on productivity, attendance or other factors. The receipt of variable
payments in this form is not inconsistent with an employment relationship. The fact that an
employee does not receive a conventional salary or wage package, or does not have the same
medical aid or pension as other employees, should not be relied upon as the only basis for deciding
that he or she is or is not an employee.
48. It is not inconceivable that a remuneration package can be structured to create an appearance of
an independent contracting relationship which is at variance with the underlying nature of the
employment relationship. However, the manner and method of payment may be one factor along
with others that lead to a conclusion that a person is not an employee.

Provision of training
49. The provision by an employer of training in the employer’s methods or other aspects of its business
is generally an indication of an employment relationship. Usually, a genuinely selfemployed person
would be responsible for ensuring their own training. However, provision of training as part of a
contractual arrangement is not necessarily inconsistent with a relationship of independent
contracting.

Place of work
50. The place at which work takes place may sometimes be taken into account as a factor determining
the nature of an employment relationship. However, great caution needs to be taken in using this
factor. The fact that a person works regularly at the employer’s premises and
has no other place of work can be an indication of an employment relationship. However, this might
not be the case where the work is of such a nature (for instance, repairs to machinery or equipment)
that it has to be performed at the employer’s premises or if the contractor leases premises from
the employer independently of its contract for work or services. The fact that a person does not
work at the employer’s premises is not necessarily inconsistent with an employment relationship.
It is conceivable that homeworkers, working from their own premises or those of fellow employees,
are employees because of factors such as the extent of control that the employer exercises over the
manner in which they work.

Conclusion
51. The determination by a court or tribunal as to whether a person is an employee or an independent
contractor has important consequences. In particular, independent contractors are not afforded the
protection of labour legislation.
52. Courts, tribunals and officials must determine whether a person is an employee or independent
contractor based on the dominant impression gained from considering all relevant factors that
emerge from an examination of the realities of the parties’ relationship.

PART 4
EMPLOYEES OF TEMPORARY EMPLOYMENT SERVICES
42 A Practical Guide to Labour Law

53. The LRA and the BCEA specifically regulate the employment of persons who are procured for, or
provided to, a client by temporary employment services. Temporary employment services are one
type of the wider category of triangular employment relationships. A temporary employment
service is a person or business who –
(a) procures or provides employees to perform work or render services for a client; and (b)
remunerates those employees.
54. Both of these elements must be present for the person providing or procuring the employees to fall
within the definition of a temporary employment service.
55. An arbitrator or court which is required to determine whether section 198 of the LRA or section 83
of the BCEA is applicable must be satisfied that the relationship between the client and the
temporary employment service is a genuine arrangement and not a subterfuge entered into for the
purpose of avoiding any aspect of labour legislation.
56. Whether or not an individual supplied to a client by a temporary employment service is an
employee of the client or an independent contractor must be determined by reference to the actual
working relationship between the worker and the “client” for whom the worker provides services
or works. The relationship between the worker and the temporary employment service is relevant
to the extent that it may give some indication of the relationship between the worker and the
client. The relationship between the worker and the client must be assessed in the light of the
normal criteria used to determine the existence of an employment relationship. Therefore, for
example, it would be appropriate to examine factors such as the extent to which the client issues
instructions to the worker or any other relevant factor. The presumption of employment is
applicable to cases involving persons engaged by temporary employment services, if the employees
earn less than the prescribed earnings threshold.
57. If it is found that the individual has an employment relationship with the client, then for the
purposes of the LRA and the BCEA –
(a) the individual is an employee of the temporary employment service; (b) the temporary
employment service is the individual’s employer.
58. However, the client is jointly and severally liable for any contravention by a temporary employment
service of any terms and conditions of employment in a bargaining council collective agreement, an
arbitration award, or any sectoral determination or provision of the BCEA. In addition, in terms of
section 57(2) of the Employment Equity Act, the client and the temporary employment service are
jointly and severally liable for any act of discrimination committed by the temporary employment
service on the express or implied instructions of the client.
PART 5
INTERPRETATION OF LABOUR LEGISLATION
59. Any person who is considering the application of either the presumption of employment or the
definition of an employee in a particular statute is engaged in the interpretation of that statute.
Accordingly, they must be mindful of the approach that must be adopted to the interpretation of
labour legislation.
60. Section 3 of the LRA provides that any person applying the Act must interpret its provisions –
(a) to give effect to its primary objects;
(b) in compliance with the Constitution; and
(c) in compliance with the public international law obligations of the Republic.
61. The Constitutional Court has stated that section 3 of the LRA is an express injunction to interpret
the provisions of the LRA purposively. A “purposive” approach to interpretation considers a
statutory provision broadly so as to give effect to the Constitution and to the underlying purpose of
the statute. This may result in a generous interpretation of the relevant provision.
62. In order to interpret labour legislation in compliance with the Constitution, a commissioner,
arbitrator or judge must interpret its provisions in a way that ensures the protection, promotion
and fulfilment of constitutional rights, in particular the labour rights contained in section 23 of the
Constitution. If more than one interpretation can be given to a provision, the decision-maker must
Common law contract of employment 43

choose the interpretation that best gives effect to the Constitution, provided this does not unduly
strain the language of the statute or infringe any protected right. The Labour Appeal Court extended
the literal construction of the definition of an employee to include persons who have concluded
contracts of employment to commence at a future date because a literal translation resulted in
gross hardship, ambiguity and absurdity. The Constitutional Court has noted that security of
employment is a core value of the LRA and this should be taken into account in determining whether
a person is an employee and therefore entitled to protection against unfair dismissal.
63. Section 39(2) of the Constitution requires that “when interpreting any legislation, and when
developing the common law or customary law, every court, tribunal or forum must promote the
spirit, purport and objects of the Bill of Rights”. The Constitutional Court has confirmed that the
common law must be interpreted in a way that develops the common law and ensures that it is
consistent with constitutional principles.
64. Section 23 of the Constitution establishes the fundamental rights in respect of labour relations. In
particular, section 23(1) and (2) provide that –
“(1) Everyone has the right to fair labour practices
(2) Every worker has the right – (a) to
form and join a trade union;
(b) to participate in the activities and programmes of a trade union; and (c) to strike.”
65. The Constitutional Court has confirmed that the major source of South Africa’s public international
law obligations in respect of labour law, is the Conventions and Recommendations of the
International Labour Organisation (ILO). Two supervisory bodies ensure the application and
observation of these Conventions: the Committee of Experts on the Application of Conventions and
Recommendations, and the Freedom of Association Committee of the Governing Body of the ILO.
66. In certain instances, these bodies have expressed views on the categories of workers covered by
particular Conventions. Article 2 of the Convention concerning Freedom of Association and
Protection of the Right to Organise 87 of 1948 guarantees the right of “workers and employers
without distinction whatsoever, to establish and join organisations of their own choosing, without
prior state authorisation.” The Freedom of Association Committee has held that the criteria for
determining whether persons are covered by Convention 87 is not based on the existence of an
employment relationship and self-employed workers in general should enjoy the right to organise.
South Africa has ratified Convention 87 and compliance with its provisions therefore constitutes a
public international law obligation.
67. The ILO has adopted an Employment Relationship Recommendation that addresses issues of criteria
that define an employment relationship, as well as indicators that are associated with an
employment relationship. A copy of the Recommendation is attached to this Code.
68. Section 3(d) of the Employment Equity Act specifically provides that the Act should be interpreted
in compliance with the ILO’s Discrimination (Employment and Occupation) Convention 111 of 1958.

PART 6
INTERPRETATION OF THE DEFINITION OF AN EMPLOYEE IN OTHER LEGISLATION
ADMINISTERED BY THE MINISTER OF LABOUR

Unemployment Insurance Act 63 of 2001

68. For the purposes of the Unemployment Insurance Act 63 of 2001, (UIA) an employee is –
“any natural person who receives remuneration or to whom remuneration accrues in respect
of services rendered or to be rendered by that person, but excludes any independent
contractor”;
Persons applying or interpreting the UIA should take Parts 2 and 3 of this Code into account when
deciding whether a person is an independent contractor and therefore excluded from the ambit of
the Act.
Compensation for Occupational Injuries and Diseases Act 130 of 1993
69. For the purposes of the Compensation for Occupational Injuries and Diseases Act an employee is –
44 A Practical Guide to Labour Law

“a person who has entered into or works under a contract of service or of apprenticeship or
learnership, with an employer, whether the contract is express or implied, oral or in writing, and
whether the remuneration is calculated by time or by work done, or is in cash or in kind, and
includes –
(a) a casual employee employed for the purpose of the employer’s business;
(b) a director or member of a body corporate who has entered into a contract of service or
of apprenticeship or learnership with the body corporate, in so far as he acts within the
scope of his employment in terms of such contract;
(c) a person provided by a labour broker against payment to a client for the rendering of a
service or the performance of work, and for which service or work such person is paid by
the labour broker;
(d) in the case of a deceased employee, his dependants, and in the case of an employee who
is a person under disability, a curator acting on behalf of that employee;
but does not include –
(i) a person, including a person in the employ of the State, performing military
service or undergoing training referred to in the Defence Act, 1957 (Act 44
of 1957), and who is not a member of the Permanent Force of the South
African Defence Force;
(ii) a member of the Permanent Force of the South African Defence Force
while on “service in defence of the Republic” as defined in section 1 of the
Defence Act, 1957;
(iii) a member of the South African Police Force while employed in terms of
section 7 of the Police Act, 1958 (Act 7 of 1958), on “service in defence of
the Republic” as defined in section 1 of the Defence Act, 1957;
(iv) a person who contracts for the carrying out of work and himself engages
other persons to perform such work;
(v) a domestic employee employed as such in a private household;”
70. The central issue that will be raised when interpreting this definition is whether a person is
employed in terms of a contract of service and has not been specifically excluded in terms of the
definition. Again, persons interpreting and applying this definition should take Parts 2 and 3 of this
Code into account.
Occupational Health and Safety Act, 85 of 1993
71. For the purposes of the Occupational Health and Safety Act 85 of 1993 (OHSA), an employee is –
“any person who is employed by or works for an employer and who receives or is entitled to
receive any remuneration or who works under the direction or supervision of an employer or
any other person”;
The definition differs substantially from that in other labour legislation. A person is an employee and
therefore covered by OHSA, if they –
(a) are employed by, or work for, an employer and are entitled to receive remuneration; or
(b) work under the direction or supervision of an employer or any other person.
Nevertheless, a person applying or interpreting the definition should take Parts 2 and 3 of this Code into
account when determining whether a person is “employed by or works for an employer” or whether
they “work under the direction or supervision of an employer”.
72. Unlike the position under the LRA and BCEA, a temporary employment service is not the employer
for the purposes of compliance with OHSA. The definition of an employer in OHSA provides that a
labour broker as defined in the LRA is not the employer of employees that it provides to a client.
This provision must now be read as excluding temporary employment service (as contemplated
under the LRA and BCEA) from being the employer for the purposes of OHSA. Accordingly, the client
to whom a worker is supplied by a temporary employment services must meet the obligation of an
employer under OHSA.
PART 2
SOCIAL LEGISLATION
 3
BASIC CONDITIONS OF EMPLOYMENT &
MINIMUM WAGES

3.1 Introduction

At common law the employment contract is viewed as an ordinary commercial contract, voluntarily
entered into by two parties, the employer and the employee (see Chapter 2). The prospective
employee enjoys the freedom to contract and if he wishes to commit himself contractually to work,
for example, for seven days a week and ten hours a day at a pay rate of R5 per day, with no provision
for holidays or sick leave it is his choice. This places the employee in a weak and vulnerable position
vis-à-vis his employer. He enjoys little (or no) protection regarding hours of work, pay, annual and
sick leave and other conditions of employment that we know are required for the welfare of any
human being. The employer is in a much stronger position, can negotiate exploitative employment
conditions with the employee and can dismiss the employee almost at will.
Legislative intervention was necessary to guard against this kind of asymmetry and exploitation
in employment contracts. Minimum conditions of employment were enacted over the course of
many years to provide a degree of protection to employees and it was, and still is, not permissible
to ignore the minimums even if both the employer and employee are willing to do so.
Immediately before the democratic elections in 1994, under the old dispensation, conditions of
employment and wages were regulated by two statutes: the Basic Conditions of Employment Act 3
of 1983 (BCEA) and the Wage Act 5 of 1957. The BCEA established minimum conditions of
employment, in the main providing for daily and weekly working hours, overtime, meal intervals,
payment for work on Sundays and public holidays, annual and sick leave and notice to terminate
employment. The BCEA of 1983 did not provide for minimum wages. The Wage Act did so by
allowing the Minister of Labour to promulgate wage determinations in terms of which minimum
wages and other conditions of employment were established for particular sectors (after
investigations and recommendations by the Wage Board).
The newly elected, democratic government embarked on a process of reforming our labour laws.
The Labour Relations Act 28 of 1956 (LRA) was replaced by the LRA 66 of 1995. Other new legislation
was enacted (e.g. the Employment Equity Act and the Skills Development Act) and existing statutes
were amended. Of particular significance was the enactment of the new BCEA 75 of 1997. The 1983
BCEA and the Wage Act were repealed and the new BCEA incorporated and refined the provisions
of the two repealed Acts and expanded the rights of employees. The new BCEA was made applicable
to more employers and employees and include a number of new minimum standards, such as
averaging of working hours, night work, maternity and family responsibility leave and more.
The making of wage determinations under the old Wage Act was replaced by the making of
sectoral determinations under the new BCEA. The BCEA of 1997, like the 1983 Act, does not
prescribe minimum wages. Wages are prescribed by way of sectoral determinations, promulgated
in terms of Chapter 8 of the BCEA. A sectoral determination also includes

49
Basic conditions of employment & minimum wages 49

employment conditions applicable in the sector to which it applies. Once a sectoral determination
has been promulgated, it takes precedence over the provisions of the BCEA.
The BCEA is of considerable importance for the day-to-day administration of personnel matters
as it sets the minimum standards and is always applicable in the absence of collective agreements
and sectoral determinations (or, if a contract of employment is more favourable than the BCEA, the
contract applies).
Sectoral determinations, in terms of which minimum wages are laid down, apply to specific
sectors. In the absence of a sectoral determination a collective agreement can be concluded to
prescribe minimum wages. Many such agreements have been concluded in, inter alia, the metal
industry, civil engineering sector, road freight sector, motor industry and many more. Although
many employees are covered by either a sectoral determination or a collective agreement on wages
and are consequently protected against exploitative and unfair pay, many employees work in
sectors and industries where no prescribed minimums apply. Their wages are determined by the
employer or by negotiations between the employer and individual employee. Those wages are
generally low and some argue that even the prescribed wages cannot be considered a living wage.
It is for this reason that government, prompted by organised labour, decided to set a minimum
wage across the board. After extensive deliberations the National Minimum Wage Act 9 of 2018
(NMWA) was enacted in 2018 and took effect on 1 January 2019.
Alongside the enactment of the NMWA, amendments to the BCEA and the LRA were introduced
by the Basic Conditions of Employment Amendment Act 7 of 2018 and Labour Relations
Amendment Act 8 of 2018, both of which came into operation on 1 January 2019. The Labour Laws
Amendment Act 10 of 2018 was also signed into law and the date of its commencement is awaited.1

It is no longer possible to read the BCEA in isolation. In order to fully grasp the minimum standards
that apply in every work situation, the following Acts must be read together:
• the Basic Conditions of Employment Act 75 of 1997, as amended;
• the Labour Laws Amendment Act 10 of 2018 (which inserts additional types of leave into the BCEA);
and
• the National Minimum Wage Act 9 of 2018.

3.2 Objectives of legislation setting minimum standards

The Basic Conditions of Employment Act 75 of 1997 (BCEA) was adopted by Parliament on 26
November 1997 and came into operation on 1 December 1998. Significant amendments to the Act
took effect on 1 August 2002 when the Basic Conditions of Employment Amendment Act 11 of 2002
was enacted. Further important amendments were introduced by the Basic Conditions of
Employment Amendment Act 20 of 2013, which took effect on 1 September 2014 and the most
recent amendments were introduced by the Basic Conditions of Employment Amendment Act 7 of
2018 and the Labour Laws Amendment Act 10 of 2018. The BCEA amendments took effect on 1
January 2019; the Labour Laws Amendment Act has, save for sections 9 and 10, not yet
commenced.
The purpose of the BCEA is in the main to advance economic development and social justice by
ensuring that the working conditions of unorganised and vulnerable employees meet minimum
standards that are socially acceptable. Effect is given to the right to fair labour practices, found in
section 23(1) of the Constitution, by establishing and enforcing basic employment conditions.
________________________

1 As at the date of going to print (June 2019) the Labour Laws Amendment Act 10 of 2018 has not yet come into
operation, save for ss 9 & 10 thereof that took effect on 1 March 2019.
50 A Practical Guide to Labour Law

Whilst the BCEA provides, amongst many other conditions of employment, for different types of
leave, the Labour Laws Amendment Act expands leave entitlements to include parental leave,
adoption leave and commissioning parental leave. These types of leave will take effect only when
the Labour Laws Amendment Act comes into operation.
Whereas the BCEA creates a set of minimum standards, variation of the minimums are permitted
by way of collective bargaining, sectoral determinations, contracts of employment and ministerial
determinations.
The National Minimum Wage Act 9 of 2018 (NMWA) was signed on 23 November 2018 and came
into effect on 1 January 2019. The NMWA seeks to establish a minimum wage across the board,
which will be revised annually. The purpose is to improve the wages of the lowest paid workers and
to protect workers from unreasonably low wages. No employee may be paid less than the minimum
wage, unless the NMWA allows for exceptions or unless an employer has received exemption under
the NMWA.

3.3 Definitions

Some of the more important definitions, as provided for in section 1 of the BCEA, are the following:
basic condition of employment means a provision of this Act [BCEA] or sectoral determination that
stipulates a minimum term or condition of employment and includes the national minimum wage;
domestic worker means an employee who performs domestic work in the home of his or her employer
and includes a gardener, a person employed by a household as a driver of a motor vehicle and a person
who takes care of the children, the aged, the sick, the frail or the disabled, but does not include a farm
worker; employee means:
(a) any person, excluding an independent contractor, who works for another person or for the State
and who receives or is entitled to receive any remuneration; and
(b) any other person who in any manner assists in carrying on or conducting the business of an
employer.
This definition mirrors the definition of “employee” in the Labour Relations Act (see the discussion
in Chapter 11). In summary, to determine the existence of the ordinary employment relationship
(i.e. the common law contract of employment or locatio conduction operarum), the dominant
impression test is used (see Chapter 2 par 2.2). Because of statutory provisions enacted since 2002,
it is no longer possible to apply the dominant impression test in isolation. Consideration also has to
be given to the presumption created in section 83A of the BCEA (and in s 200A of the LRA) as to
who is an employee, as well as the Code of Good Practice: Who is an Employee (see the Appendix
to Chapter 2). And, if the protections against discrimination in section 79(1) of the BCEA are in
question, “employee” also includes a former employee and an applicant for employment.
Section 83A of the BCEA creates a rebuttable presumption of who an employee is. This means
that if any one of the following factors exists, the person who renders a service is presumed to be
an employee and the onus is on the employer to prove the contrary. Section 83A(1) provides as
follows:
83A. Presumption as to who is employee
(1) A person who works for, or renders services to, any other person is presumed, until the contrary is proved,
to be an employee, regardless of the form of the contract, if any one or more of the following factors
is present:
(a) the manner in which the person works is subject to the control or direction of another person;
(b) the person’s hours of work are subject to the control or direction of another person;
(c) in the case of a person who works for an organisation, the person is a part of that organisation;
(d) the person has worked for that other person for an average of at least 40 hours per month over the last
three months;
Basic conditions of employment & minimum wages 51

(e) the person is economically dependent on the other person for whom that person works or renders
services;
(f) the person is provided with tools of trade or work equipment by the other person; or (g) the person
only works for or renders services to one person.
In terms of section 83A(2) the presumption does not apply to persons who earn more than the
threshold amount determined by the Minister in terms of section 6(3) of the BCEA (currently R205
433-30 per annum2), commonly known as the “BCEA threshold”. A person who earns less than the
threshold amount or his alleged employer may approach the CCMA for an advisory award as to
whether he is in fact an employee or not (s 83A(3)).3
Section 82 of the BCEA specifies that a person (an employee, not an independent contractor)
whose services have been procured for or provided to a client by a temporary employment service
(TES or labour broker) is the employee of that TES and the TES is that person’s employer.
Lastly, any ministerial notice in terms of which a category of persons are deemed to be
employees for the purposes of the BCEA also need to be taken into account (s 83).
farm worker means an employee who is employed mainly in or in connection with farming activities and
includes an employee who wholly or mainly performs domestic work in a home on a farm; remuneration
means any payment in money and/or in kind, made or owing to any person in return for that person
working for any other person, including the State;4 senior managerial employee means an employee who
has the authority to hire, discipline and dismiss employees and to represent the employer internally and
externally; temporary employment service means any person who, for reward, procures for or provides to
a client other persons who render services or performs work for that client and who are remunerated by
the temporary employment service; wage means the amount of money paid or payable to an employee
in respect of ordinary hours of work or, if they are shorter, the hours an employee ordinarily works in a
day or week.

The Labour Laws Amendment Act 10 of 2018 inserted new definitions into the BCEA. The following
definitions are of importance for the purposes of parental types of leave: adoption order means an
adoption order as envisaged in the Children’s Act 38 of 2005; adoptive parent has the meaning assigned to it in
section 1 of the Children’s Act; prospective adoptive parent means a person who complies with the
requirements set out in section 231(2) of the Children’s Act.
Some of the definitions found in the NMWA, in section 1 and Schedule 1, are the same or similar to
those in the BCEA, but the NMWA also contains other definitions of which the most important are:
employer means any person who is obliged to pay a worker for the work that the worker performs for that
person.
It must be noted that the BCEA does not define “employer”.
National minimum wage means the national minimum wage determined in Schedule 1 and
adjusted annually in terms of section 6 [of the NMWA].
Schedule 1 to the NMWA lays down the national minimum wage.

________________________

2 This amount is reviewed and amended by the Minister of Labour from time to time and refers to gross pay before
deductions (such as income tax, pension, medical and similar contributions), but excludes overtime pay, subsistence
and transport allowances, achievement awards and payments (contributions) made by the employer in respect of
the employee – GN 531 in GG37795 of 1 July 2014. See also fn 4.
3 All references to sections appearing in brackets in this Chapter refer to sections in the BCEA, unless otherwise
specified.
4 The Minister may, in terms of s 35(5) of the BCEA, determine whether any category of payment, whether in money
or in kind, forms part of remuneration for the purposes of calculations made in terms of the BCEA.
Notably, the NMWA does not refer to an “employee” as the BCEA and other Acts do. It rather
refers to a “worker”.
Worker means any person who works for another and who receives or is entitled to receive any
payment for that work, whether in money or in kind.
52 A Practical Guide to Labour Law

3.4 Application

The BCEA applies to both the public and private sectors and covers all employees and employers,
except members of the State Security Agency and unpaid volunteers working for an organisation
serving a charitable purpose. These two categories of employees are totally excluded from the BCEA
(s 3(1)).
The NMWA applies to all workers and employers, except members of the SA National Defence
Force, National Intelligence Agency and the SA Secret Service. Like the BCEA, the NMWA also does
not apply to volunteers, i.e. persons performing work for another who do not receive or are not
entitled to receive any remuneration (s 3 of the NMWA).
Certain categories of employees are not totally excluded from the BCEA, but only from some of
its provisions. They are the following:
Category Exclusion

Persons undergoing vocational training The BCEA applies to them except to the extent
that their employment is regulated by the
provisions of any other law (s 3(2))
Persons employed on vessels at sea in respect of Excluded from the BCEA, except for s 41
which the Merchant Shipping Act 57 of 1951 (severance pay); s 62A (definition of “employee”
applies for the purposes of monitoring and
enforcement); and Chapters 3–6 (leave;
particulars of employment; termination of
employment; prohibition of child and forced
labour); and except to the extent provided for in
a sectoral determination and the
NMWA (s 3(3))
Senior managerial employees and employees Excluded from ss 9–18 (ordinary working hours;
engaged as sales staff who travel to the premises overtime; compressed working week; averaging
of customers and who regulate their own hours of working hours; maximum hours prescribed by
of work
Minister; meal intervals; rest periods; Sunday
work; night work; public holidays) (s 6(1))

Employees who work less than 24 hours per Excluded from Chapter 2 (ss 9–18); Chapter 3 (all
month for an employer types of leave); Chapter 4 (particulars of
employment and remuneration); Chapter 5
(termination of employment and payments)

Employers who employ fewer than five Excluded from s 29(1)(n), (o) and (p) (certain
employees particulars to be provided in writing); and ss 30,
31 and 33 (informing employees of their rights;
keeping of records; information
about remuneration)
Employees engaged in unexpected work which Excluded from ss 9, 10(1), 14(1), 15(1), 17(2) and
must be done without delay and which cannot be 18(1) (ordinary hours of work; overtime; meal
performed during ordinary working hours intervals; daily and weekly rest periods; night
work; work on public holidays)
continued
Basic conditions of employment & minimum wages 53

Category Exclusion

Employees whose employment is subject to a Employees to whom a council or other collective

bargaining council collective agreement or other agreement is applicable are subject to that
collective agreement or to a sectoral agreement and the agreement and not the BCEA
applies. Similarly, where a sectoral determination
determination or individual agreement (contract) is applicable the BCEA does not apply. A contract
of employment is applicable only if it is more
favourable than the
BCEA

Employees who earn more than the BCEA Excluded from ss 9, 10, 11, 12, 14, 15, 16, 17(2)
threshold, determined by the Minister in terms of and 18(3)6 (ordinary working hours; overtime;
section 6(3) (currently R205 433-30 per annum5) compressed working week; averaging of hours;
meal intervals; daily and weekly rest periods;
Sunday work; allowances and transport for night
work; pay for work on public holidays)

3.5 Conditions of employment

The BCEA provides for minimum conditions of employment, while the NMWA prescribes the
national minimum wage.
Chapter 2 of the BCEA regulates working hours and related aspects. Chapter 3 provides for
different types of leave: annual leave, sick leave, maternity leave and family responsibility leave.
The Labour Laws Amendment Act, once in operation, will add three new types of leave: parental
leave, adoption leave and commissioning parental leave. Chapter 4 of the BCEA requires and
employer to provide employment and remuneration information to an employee in writing and
Chapter 5 deals with termination of employment. Chapter 6 prohibits the employment of child and
forced labour.
Each of these employment conditions is discussed below. Minimum wages, as prescribed by the
NMWA, follow thereafter.

3.6 Chapter 2: Regulation of working time

Chapter 2 of the BCEA regulates working time by providing for ordinary working hours, overtime, a
compressed working week, averaging of hours, meal intervals and rest periods, night work, Sunday
work and work on public holidays.
In terms of section 7 of the BCEA employers have to regulate working time with due regard to
the health and safety of employees, the Code of Good Practice on the Regulation of Working Time
(see Appendix 2) and the family responsibilities of employees. Section 7 is applicable to all
employees, also to those excluded from some of the provisions of the BCEA.
The Minister may, on grounds of health and safety, prescribe maximum ordinary and overtime
hours for any category of employees. Such a determination is issued on the advice of the Chief
Inspector (appointed under the Occupational Health and Safety Act or the
________________________

5 See fn 2. In order to determine what an employee earns, “earnings” is defined in GN 531 in GG 37795 of 1 July 2014
as “the regular annual remuneration before deductions, i.e. income tax, pension, medical and similar payments, but
54 A Practical Guide to Labour Law

excluding similar payments (contributions) made by the employer in respect of the employee: Provided that
subsistence and transport allowances received, achievement awards and payments for overtime worked shall not be
regarded as remuneration.” 6 GN 531 in GG37795 of 1 July 2014.
Mine Health and Safety Act) and after consultation with the National Minimum Wage Commission
(s 13.)
For the purposes of regulating working hours “day” is defined in section 8 as a period of 24 hours
measured from the time when an employee normally commences work.

3.6.1 Ordinary working hours (s 9)

Section 9 regulates ordinary hours of work as follows:
Weekly hours Daily hours

A maximum of 45 hours per week • If working for 5 days or fewer per week: maximum of 9
hours per day
• If working for more than 5 days per week: maxi-mum of
8 hours per day
• If an employee’s duties include serving the public, the
maximum may by agreement be extended by 15
minutes per day up to a maximum of 60 minutes per
week to enable the employee to continue performing
those duties after the completion of ordinary hours of
work
One of the goals of the BCEA is to ultimately reach a 40-hour working week with a maximum of
eight ordinary hours per day. Schedule 1 to the BCEA establishes procedures for the progressive
reduction of the maximum ordinary working hours by way of collective bargaining, sectoral
determinations and recommendations made by the National Minimum Wage Commission or
Department of Labour.

3.6.2 Overtime (s 10)

Overtime may be worked only by agreement between employer and employee (s 10(1)). Such an
agreement lapses after one year if it was concluded at the commencement of or within the first
three months of employment (s 10(5)).
Although no limit is placed on overtime hours per day, section 10(1A) prohibits work for more
than 12 hours on any day. The 12 hours include ordinary and overtime hours. Thus, if an employee
ordinarily works nine hours per day, he could be required or permitted to work another three hours
on the same day, which would then constitute overtime. However, an employee may not work more
than ten hours overtime per week.
A collective agreement may increase the maximum of ten hours overtime per week to 15 hours
per week, provided that the increased overtime hours will not apply for more than two months in
any 12-month period (s 10(6)).
Per day Per week Remuneration
Basic conditions of employment & minimum wages 55

No limit on overtime 1½ hourly rate or by agreement, the

hours per day (but Maximum of 10 hours normal hourly rate plus paid time off at a
ordinary and overtime overtime per week rate of 30 minutes for every hour of
hours together may not (s 10(1)) or
exceed 12 hours per overtime worked or by agreement, no pay
in terms of a collective in respect of the overtime hours; only paid
day) agreement, 15 hours
time off at the rate of 90 minutes for every
maximum per week. The
15-hour maximum hour of overtime worked
applies for only two
months in any 12-
month period

3.6.3 Compressed working week (s 11)

A written agreement between the employer and employee may allow the employee to work a
maximum of 12 hours per day (including the meal interval) without receiving overtime pay,
provided that the employee does not work more than 45 ordinary hours or more than ten hours’
overtime in any week or on more than five days in any week. This allows for employees to work a
compressed working week, for example, only three or four days per week, but longer hours per day
without forfeiting any pay or the employer having to incur the expense of paying overtime rates.

3.6.4 Averaging of hours of work (s 12)

Ordinary hours of work and overtime may, in terms of a collective agreement, be averaged over a
maximum period of four months, subject to an average of ordinary hours not exceeding 45 hours
per week and an average of overtime not exceeding five hours per week.
The first two collective agreements providing for averaging working hours each lapse after 12
months, i.e. these arrangements must be reviewed on an annual basis for the first two years, after
which the parties may agree to extend such an agreement indefinitely.

3.6.5 Meal intervals and rest periods (ss 14–15)

In terms of section 14 of the BCEA an employee must be given a meal interval of at least one hour
after five hours of continuous work (i.e. work which continues unless interrupted by an interval of
60 minutes). The parties may by agreement reduce the meal interval to a 30-minute interval or, if
an employee works fewer than six hours per day, dispense with the meal interval altogether.
The meal interval is unpaid and an employee may not be required to work during the interval,
unless some duties cannot be left unattended and cannot be performed by another employee. An
employee who performs such work or who is required to be available for work during the interval
must be remunerated. An employee must also be remunerated for any portion of a meal interval
that exceeds 75 minutes, unless the employee lives on the premises at which the workplace is
situated.
Section 15 introduces daily and weekly rest periods: a daily rest period of at least 12 consecutive
hours between ending and recommencing work and a weekly rest period of at least 36 consecutive
hours, which must include Sunday, unless otherwise agreed.
Rest periods may be varied by written agreement between the employer and employee. The
daily rest period may be reduced to ten hours for an employee who lives on the work premises and
whose meal interval lasts three or more hours. In respect of weekly rest periods an agreement may
provide for a rest period of at least 60 consecutive hours every two weeks or the weekly rest period
may be reduced by up to eight hours in any week, provided the rest period in the following week is
extended equivalently.
56 A Practical Guide to Labour Law

3.6.6 Work on Sundays and public holidays (ss 16 & 18)

Section 16 regulates work on Sundays and section 18 work on public holidays. A distinction has to
be made between an employee who works regularly on Sundays (i.e. a Sunday is a normal working
day) and an employee who works on Sundays on occasion. Work on public holidays may be
performed only by agreement between employer and employee.

Sunday work Public holiday work

• An employee who ordinarily works on Sun- • An employee who works on a public holi-day
days must be paid 1½ times his hourly rate for which would otherwise have been an ordinary
every hour worked working day must be paid:
• An employee who does not ordinarily work on – at least double his daily rate;
Sundays must be paid double his hourly rate
for every hour worked OR
– his normal daily rate plus the amount for
• If payment for every hour worked amounts to
actual time worked
less than the ordinary daily pay, the employee
must be paid the daily rate whichever is the greater
• Instead of the remuneration referred to, the • An employee who does not work on a public
parties may agree on the ordinary rate plus holiday (which would otherwise be a working
day) the employee must be paid one day’s pay
time off, i.e. the employee must receive his
ordinary hourly rate and paid time off • An employee who works on a public holi-day
equivalent to the difference in value between which does not fall on an ordinary working
the ordinary wage received and the wage the day must be paid his daily wage plus pay for
employee is entitled to in terms of the above actual work performed on that day
Sunday rates
Work performed on a Sunday by an employee who does not normally work on Sundays is
considered overtime and the hours so worked form part of the overtime hours.
If a shift worked by an employee falls on a Sunday and another day, the whole shift is deemed to
have been worked on the Sunday, unless the greater portion of the shift was worked on the other
day, in which case the whole shift is deemed to have been worked on the other day. The same
provision is applicable to work on public holidays.
In terms of section 2(2) of the Public Holidays Act 36 of 1994 a public holiday is exchangeable for
any other day by agreement between employer and employee.

3.6.7 Night work (s 17)

Section 17 of the BCEA regulates night work. Two types of night work are catered for, each attracting
different obligations for employers:
• “night work” is defined as work done between 18:00 and 06:00 the following morning. The
employer must pay the employee an allowance, which may be a shift allowance or which may
take the form of reduced working hours. Transportation must be available between the
employee’s place of residence and the workplace at the commencement and conclusion of
the employee’s shift;
• “night work on a regular basis” is defined as work of more than one hour between 23:00 and
06:00 the following morning on at least five occasions per month or 50 occasions per year. An
employer who requires an employee to perform night work on a regular basis has to inform
the employee of any health and safety hazards associated with the work. At the request of
the employee, the employer must enable him to undergo a medical examination concerning
those hazards and, where practicable, transfer the employee to suitable day work if he suffers
from a health condition associated with the performance of night work.
Basic conditions of employment & minimum wages 57

3.7 Leave

Chapter 3 of the BCEA regulates leave. Different types of leave are catered for: annual leave, sick
leave, maternity leave, family responsibility leave and, as a result of the Labour Law Amendment
Act, adoption leave, parental leave and commissioning parental leave.
The leave provisions do not apply to employees who work less than 24 hours per month. The
provisions of the BCEA similarly do not apply to any portion of leave that is granted in excess of the
statutory minimum, unless an agreement provides otherwise.

3.7.1 Annual leave (ss 20 & 21)

Annual leave is governed by sections 20 and 21 of the Act. Annual leave is leave with full pay and is
calculated over a 12-month cycle.
Annual leave
• Leave with full pay
• Annual leave is calculated over a 12-month leave cycle (cycle starts on the commencement date of
employment and on every anniversary date thereafter)
• A minimum of 21 consecutive days’ leave per cycle must be granted to an employee
or
• by agreement, one day for every 17 days of completed work or one hour for every 17 hours worked
• The leave entitlement must be extended by one day for every public holiday that falls within the
leave period

Leave must be taken as consecutive days, but an employer may grant occasional days of leave during
the cycle. The minimum number of days leave, as prescribed, must be taken and may not be
“traded” for money. Where more than the prescribed minimum days leave is granted to an
employee, for example in a contract or collective agreement, the days in excess of the prescribed
minimum may be accumulated, subject to conditions laid down by the employer.
Annual leave must be granted to the employee within the first six months of completion of the
leave cycle or at a time the parties agree upon, but leave can only be taken at the approval of the
employer and when operational requirements allow for the absence of the employee.
Leave may not run concurrently with a period of notice to terminate services or any period of
leave the employee is entitled to (sick leave, maternity leave, etc), except a period of unpaid leave.
Remuneration in respect of the leave period must be paid to the employee on the last day of
work before the leave commences or, by agreement, on the usual pay day. If an employee has leave
days to his credit upon termination of employment he must be paid for those days (s 20(11), read
with s 40). In terms of section 40(b) annual leave not yet taken must be paid out and, in terms of
section 40(c), leave is calculated on the basis of one day for every 17 days worked where
employment is terminated before an annual leave cycle has been completed.

3.7.2 Sick leave (ss 22–24)

Sick leave is calculated over a three-year (36 months) cycle and is leave with full pay.

Sick leave
• Leave with full pay
• Sick leave is calculated over a 36-month leave cycle
• An employee is entitled, over the three-year period, to the total of the number of days he would
ordinarily work in six weeks, e.g. if an employee works five days per week, he would work 30 days
in six weeks, which gives him 30 days’ sick leave in the sick leave cycle
58 A Practical Guide to Labour Law

• The employee is entitled to the full complement of sick leave at any time during the leave cycle,
provided the first six months of employment have been completed
• During the first six months of employment the employee is limited to one day’s paid sick leave for
every 26 days worked
Sick leave is paid leave, in other words the employee is entitled to his normal daily rate of pay for
every day he takes sick leave, provided he does not exceed his leave entitlement. The employer and
employee may, however, agree to reduce sick leave pay to not less than 75% of the employee’s
normal pay, but then the number of days leave must be increased proportionately. Payment for sick
leave must take place on the usual pay day.
A medical certificate is required after two days of absence. If an employee is absent on more
than two occasions in an eight-week period a medical certificate is required for any number of days’
absence, even for one day. If no proof of illness is submitted the employer is not obliged to pay the
employee. An employer is required to assist an employee who lives on the employer’s premises to
obtain a medical certificate.
A medical certificate is valid and acceptable only if issued by a medical practitioner or a person
who has been certified and registered with a professional council.
The above provisions relating to sick leave are not applicable to an employee whose inability to
work was caused by an accident or occupational disease as defined in the Compensation for
Occupational Injuries and Diseases Act of 1993 or the Occupational Diseases in Mines and Works
Act of 1973, except in respect of any period during which no compensation was payable to the
employee in terms of those Acts.

3.7.3 Maternity leave (s 25)

An employee is entitled to four months’ maternity leave. Maternity leave is unpaid leave, but the
employer and employee can agree on payment or payment may be negotiated by way of a collective
agreement. If an employee receives no payment during her maternity leave, or less than her normal
income, she can claim maternity benefits under the Unemployment Insurance Act.
The employee is required to notify her employer four weeks in advance and in writing of the
intended date of commencement of maternity leave and the return date to work.

Maternity leave
• Maternity leave is four consecutive months.
• Maternity leave commences at any time from four weeks before the expected date of con-finement
OR on an agreed date OR on a date necessitated by the employee’s health or that of her unborn
child (as certified by a medical practitioner or midwife).
• An employee may not work for six weeks after the birth of her child, unless a medical practitioner
or a midwife certifies that she is fit to do so.
• An employee who has a miscarriage during the third trimester or bears a stillborn child is entitled
to maternity leave for six weeks after the miscarriage or stillbirth.

Section 26 of the BCEA provides protection to a pregnant employee or one who is nursing a baby.
An employer may not require or permit a pregnant employee or one who is nursing a baby to
perform work hazardous to her health or that of her child. Where the employee performs night
work, the employer must offer her suitable alternative employment during her pregnancy and for
six months after the birth of her child on conditions not less favourable than her normal conditions
of employment.
The Minister is required, in terms of section 87, to issue a Code of Good Practice for the
protection of this category of employee. The Minister has indeed done so and the “Code of Good
Practice on the Protection of Employees during Pregnancy and after the Birth of a Child” was
published in GNR.1441 of 1998 (see Appendix 3).
Basic conditions of employment & minimum wages 59

It is to be noted that an employer’s refusal to allow the employee to resume work after her
maternity leave constitutes a dismissal (s 186(1)(c) of the LRA) and the dismissal of an employee on
account of her pregnancy, intended pregnancy or any reason related to her pregnancy constitutes
an automatically unfair dismissal (s 187(1)(e) of the LRA).
3.7.4 Parental leave (s 25A)
Section 25A is inserted into the BCEA by the Labour Laws Amendment Act of 2018 (once the latter
is in operation). In terms of the new section 25A any parent is entitled to ten days’ parental leave
when a child is born or adopted.
• An employee who is a parent is entitled to parental leave upon the birth or adoption of a child.
• Parental leave is ten (10) consecutive days per occasion.
• Parental leave commences on:
the day the child is
born or
the date an adoption order is granted or the date a child is placed in the care of the prospective
adoptive parent, whichever date is the earlier.
• The employee must notify the employer in writing of the commencement date of the leave and the
return date after leave, such notification to be given one month before the expected birth or
adoption date.
• Parental leave is unpaid, but the employee may claim parental benefits under the Unem-ployment
Insurance Act (or negotiate payment with the employer).

An adoptive parent is a person who has adopted a child in terms of any law (s 1 of the Children’s
Act). A prospective adoptive parent is a person who qualifies to adopt a child, is older than 18 and
fit and proper (i.e. suitable) to be entrusted with parental responsibilities and who has been
assessed and found fit by a social worker (s 231(2) of the Children’s Act).
An adoption order is an order given by a competent court that places a child in the permanent
care of the adoptive parent (ss 228 & 242 of the Children’s Act).

3.7.5 Adoption leave (s 25B)

Section 25B is inserted into the BCEA by the Labour Laws Amendment Act of 2018 (once the latter
is in operation). In terms of the new section 25B any adoptive parent is entitled to adoption leave
of ten weeks.

• An employee who is an adoptive parent is entitled to adoption leave, provided the child being
adopted is younger than two years old.
• Adoption leave is ten (10) consecutive weeks.
• An adoptive parent is entitled to adoption leave or parental leave. If an adoption order is made in
respect of two parents or if a court places a child in the care of two prospective adoptive parents,
one is entitled to adoption leave and the other to parental leave (at their election).
• Adoption leave commences on the date an adoption order is granted or the date a child is placed
in the care of the prospective adoptive parent, whichever date is the earlier.
• The employee must notify the employer in writing of the commencement date of the leave and
the return date after leave, such notification to be given one month before the date of the adoption
order or the date the child is placed in the care of the parent.
• Adoption leave is unpaid, but the employee may claim adoption benefits under the Unem-
ployment Insurance Act (or negotiate payment with the employer).

3.7.6 Commissioning parental leave (s 25C)

60 A Practical Guide to Labour Law

Section 25C is inserted into the BCEA by the Labour Laws Amendment Act of 2018 (once the latter
is in operation). In terms of the new section 25C a commissioning parent in a surrogate agreement
is entitled to commissioning parental leave of ten weeks.
A “commissioning parent” is a person who enters into a surrogate motherhood agreement with
a surrogate mother, i.e. an adult woman who enters into a surrogate motherhood agreement with
the commissioning parent. A surrogate motherhood agreement is an agreement between a
surrogate mother and a commissioning parent in which it is agreed that the surrogate mother will
be artificially fertilised for the purpose of bearing a child for the commissioning parent and in which
the surrogate mother undertakes to hand over such a child to the commissioning parent upon its
birth, or within a reasonable time thereafter, with the intention that the child concerned becomes
the legitimate child of the commissioning parent (s 1 of the Children’s Act).

• An employee who is a commissioning parent in a surrogate agreement is entitled to com-

missioning parental leave.
• Commissioning parental leave is ten (10) consecutive weeks.
• A commissioning parent is entitled to commissioning parental leave or parental leave. If the
surrogate agreement has two commissioning parents, one is entitled to commissioning parental
leave and the other to parental leave (at their election).
• Commissioning parental leave commences on the date the child is born.
• The employee must notify the employer in writing of the commencement date of the leave and
the return date after leave, such notification to be given one month before the expected birth date
of the child.
• Commissioning parental leave is unpaid, but the employee may claim commissioning parental
benefits under the Unemployment Insurance Act (or negotiate payment with the employer).

3.7.7 Family responsibility leave (s 27)

An employee who works for at least four days a week for an employer is entitled to family
responsibility leave. This entitlement accrues to the employee once the first four months of
employment have been completed.
Family responsibility leave
• Family responsibility leave is three days during an annual leave cycle (which can be varied by a
collective agreement).
• An employee is entitled to family responsibility leave when: – his child is born7 or is ill;
– his spouse, life partner, parent, adoptive parent, grandparent, child, adopted child, grandchild or
sibling dies.
• Family responsibility leave is paid leave; the employee is entitled to his ordinary daily pay (to be
paid on the usual pay day).
• The employer may require proof of the event for which leave is/was required.
• Unused days do not accrue.

________________________

7 At present the father of a child is entitled to family responsibility leave when his child is born. This position will
change once the additional types of leave take effect. The entitlement to family responsibility leave upon the
birth of a child will fall away and the father will become entitled to parental leave.
3.8 Particulars of employment and remuneration (Ch 4 ss 28–35)
Basic conditions of employment & minimum wages 61

Chapter 4 of the BCEA does not apply to an employee who works fewer than 24 hours per month.
Employers who employ fewer than five employees are exempt from some of the provisions of
Chapter 4 (s 28).
In terms of section 29 an employer is required to provide certain information in writing to an
employee upon his appointment. This information relates to the particulars of the employer and
employee, the employee’s occupation and place of work, the date of commencement of duties,
ordinary hours and days of work, wages, overtime pay, any payment in kind and the value thereof,
the intervals of payment of remuneration, deductions from the employee’s remuneration, leave,
notice period or, if employment is for a fixed period, the date when employment is to terminate,
council or sectoral determinations applicable to the employer’s business (not required if the
employer employs fewer than five employees) and a list of any other documents that form part of
the contract of employment (not required if the employer employs fewer than five employees) (s
29(1)).
The information must be explained to the employee in a language he understands (s 29(3)).
Every employer is required to keep a record of each employee’s name and occupation, time
worked and remuneration paid and, if an employee is younger than 18, the date of birth. This
information must be kept for a period of three years from the date of the last entry in the record (s
31). An employer who employs fewer than five employees is exempt from keeping these records.
All employers are required to display in all the official languages spoken in the workplace the
rights of employees under the BCEA (s 30). This requirement does not apply to an employer who
employs fewer than five employees.
Remuneration is paid in South African currency on a daily, weekly, fortnightly or monthly basis.
Payment can be made in cash, by cheque or by direct deposit into the employee’s banking account
not later than seven days after the completion of the period in respect of which the remuneration
is payable or upon the termination of the contract of employment (s 32). With each payment the
employer must give to the employee information in writing to show the gross pay, including pay for
overtime, Sundays and public holidays, the net pay after deductions, the details of the deductions
made and the hours or period for which the payment is made (s 33).
Wages are calculated by reference to the number of hours an employee ordinarily works. An
employee is deemed to work 45 hours in a week (unless he ordinarily works fewer hours in a week)
and nine hours per day or, if the employee works more than five days per week, seven and a half
hours per day. If the employee works a compressed week, the number of hours per day is taken into
account (s 35).
An employee’s monthly remuneration is four-and-one-third times his weekly remuneration or
wage. Conversely, the weekly wage is four-and-a-third of the monthly remuneration (s 35(3)).
If an employee’s remuneration or wage is calculated, either wholly or in part, on a basis other
than by time (hours) or if his remuneration or wage fluctuates significantly from period to period,
any payment to that employee must be calculated by reference to his remuneration or wage during
the preceding 13 weeks (s 35(4)).
The Minister may, by notice in the Gazette and after consultation with the National Minimum
Wage Commission and NEDLAC, determine whether a particular category of payment, in money or
in kind, forms part of an employee’s remuneration (s 35(5)). The Minister issued a regulation in this
regard in 2003.8
________________________ 8 GN

691 of 23 May 2003.

For the purposes of calculating annual leave, pay in lieu of notice and severance pay, the
following are included:
• housing allowance/subsidy or housing received as a benefit in kind;
62 A Practical Guide to Labour Law

• car allowance of provision of a car, except to the extent that the car is provided to enable the
employee to work;
• the employer’s contributions towards medical aid, pension or provident fund;
• funeral or death benefit schemes; and • any cash or in kind payment other than a payment to
enable the employee to work (e.g. an equipment, tool or similar allowance or the provision of
transport or the payment of a transport allowance to enable the employee to travel to and from
work).
The following must be excluded from the calculation:
• any relocation allowances;
• gratuities and gifts from the employer;
• share incentive schemes;
• discretionary payments not related to an employee’s hours of work or performance;
• an entertainment allowance; and • an education or schooling allowance.
Section 34 prohibits deductions from an employee’s wage or salary, unless the employee agrees
thereto in writing or unless a deduction is required or permitted by law, a collective agreement, a
court order or an arbitration award.
An employee may agree to a deduction in order to reimburse an employer for loss or damage
only if: • the loss or damage occurred in the course of employment and was due to the fault of the
employee;
• the employer has followed a fair procedure and has given the employee a reasonable
opportunity to show why the deduction should not be made;
• the total amount of the debt does not exceed the actual amount of the loss or damage; • the
total deductions from the employee’s remuneration do not exceed one-quarter of the
employee’s remuneration in money (s 34(2); a similar provision is found in s 5(4) of the NMWA).
If the deduction is in respect of any goods purchased by the employee, the nature and quantity of
the goods are to be specified.
An employer may not require or permit an employee to repay any remuneration received, except
for overpayments made as a result of an error in calculating his remuneration. The employer may
also not require or permit an employee to acknowledge receipt of an amount greater than the
remuneration actually received (s 34(5)).
Section 33A prohibits certain payments by employees. An employer may not require or accept
any payment by or on behalf of an employee or potential employee in respect of the employment
of, or the allocation of work to, any employee and may further not require an employee or potential
employee to purchase goods, products or services from the employer or a business or person
nominated by the employer, unless the contract of employment or a collective agreement requires
participation in a scheme involving the purchase of specific goods or services at a fair and
reasonable price and the employee receives a financial benefit from participating in the scheme.
A benefit fund is a pension, provident, retirement, medical aid or similar fund. Where an
employer deducts an amount from the employee’s remuneration for payment to a benefit fund,
such an amount must be paid to the fund within seven days from the date the deduction was made,
unless the rules of the fund prescribe a shorter period. Any contribution by the employer to the
fund for the benefit of the employee must also be paid within the seven days or shorter period
referred to.

3.9 Termination of employment (Ch 5 ss 36–42)

Basic conditions of employment & minimum wages 63

Chapter 5 of the BCEA does not apply to an employee who works fewer than 24 hours per month
for an employer.
The minimum periods of notice to terminate services are prescribed in section 37 and are as
follows:

Termination of employment
• One week’s notice if the employee has been employed for six months or less
• Two weeks’ notice if the employee has been employed for more than six months, but less than one
year
• Four weeks’ notice if the employee has been employed for one year or more
• Notice to or by farm and domestic workers may not be shorter than four weeks once they have
completed six months of employment

A collective agreement may permit a notice period shorter than the prescribed four weeks’ notice
period in respect of employees who have been employed for a year or more (other than domestic
and farm workers, who must receive at least four weeks’ notice once they have completed six
months of employment), in which case the notice period may not be reduced to less than two
weeks.
Notice must be given in writing, except when it is given by an illiterate employee. If an employee
is unable to understand the notice, it must be explained in an official language he reasonably
understands.
The provisions of Chapter 5 do not affect the right of a dismissed employee to dispute the
lawfulness or fairness of the dismissal in terms of the LRA or any other law. Neither is the right of
an employer or an employee to terminate a contract of employment without notice for any cause
recognised by law affected.
Employers have the right to offer payment in lieu of notice (s 38), although this right is somewhat
curtailed in respect of an employee who resides in accommodation on the premises of the employer
or on premises supplied by him. Where the services of an employee who receives accommodation
from his employer are terminated without the required notice period or where payment in lieu of
notice is given, the employer is required to provide the employee with accommodation for a period
of one month or until the contract of employment could lawfully have been terminated (whichever
is the longer period). If an employee elects to remain in accommodation after the employer has
terminated his or her contract of employment by payment in lieu of notice, the remuneration that
the employer is required to pay instead of notice is reduced by that portion of the remuneration
that represents the agreed value of the accommodation for the period that the employee remains
in the accommodation (s 39).
Upon termination of employment an employer must pay to the employee the following amounts
(s 40):
• overtime pay not yet paid or payment in respect of time off that the employee was given in lieu
of overtime or Sunday work and not yet taken;
• remuneration for any period of annual leave due that the employee has not taken;
• in respect of the employee’s annual leave entitlement during an incomplete annual leave cycle,
either one day’s remuneration in respect of every 17 days on which the employee worked or was
entitled to be paid or remuneration calculated on any other basis, whichever is the more
favourable to the employee. This provision is applicable only if the employee has been in
employment longer than four months;
64 A Practical Guide to Labour Law

• notice pay if the notice period is not worked;

• any outstanding wages/salary; and
• severance pay is payable only if an employee is retrenched (dismissed for the operational
requirements) or if the employee loses his job because of the employer’s insolvency
(s 41).9
Note that severance pay (in addition to other payments due) is payable only in the case of
retrenchment or insolvency. Severance pay is at least one week’s remuneration for each completed
year of continuous service with the employer. An employee who unreasonably refuses to accept
the employer’s offer of alternative employment with that employer or any other employer is not
entitled to any severance pay. The payment of severance pay does not affect an employee’s right to
any other amount payable according to law.
If there is a dispute about the entitlement to severance pay only, the employee may in writing
refer the dispute to a bargaining council with jurisdiction or to the CCMA if no council has
jurisdiction. The council or the CCMA must conciliate and arbitrate the dispute. If the Labour Court
is adjudicating a dispute about a dismissal based on the employer’s operational requirements, it
may determine the amount of severance pay. (Originally the provisions relating to severance pay
were contained in section 196 of the LRA, but were removed from the LRA and included in section
41 of the BCEA in 1997.)
In addition to the statutory payments an employer is required to make, the employer is also
required to issue, upon termination of employment, a certificate of service. The certificate of
service is not a testimonial, but provides details of the employee’s work, such as the name and
address of the employer, the commencement and termination dates of employment, the job title
of the employee and a description of his work, the remuneration rate at the date of termination
and, if the employee so requests, the reason for termination.

3.10 Minimum wages

3.10.1 Minimum wage in terms of the NMWA

Part and parcel of an employee’s employment conditions is remuneration. Remuneration or wages
are determined in a contract of employment or by way of a sectoral determination issued under
the BCEA or in a collective agreement. No wage may be less than the minimum prescribed by the
NMWA (s 4(4) & (5)),10 but a wage in a contract, a collective agreement or any other legal prescript
which is more favourable takes precedence (s 4(7)).
The NMWA applies to all employers and workers, the only exclusions being volunteer workers
and members of the SANDF, National Intelligence Agency and SA Secret Service
(s 3).
The national minimum wage appears in Schedule 1 to the NMWA. The minimum wage must be
adjusted, at first, within two years from the commencement of the NMWA (1 January 2019) and
thereafter annually (s 4(1) & (2)).

________________________

9 In terms of s 198B(10) of the LRA severance pay is also payable to some fixed-term contract employees. If an
employee has been employed for the exclusive purpose of working on a specified project and the contract endures
Basic conditions of employment & minimum wages 65

for more than 24 months the employer must, on expiry of the contract, pay to the employee one week’s
remuneration for each completed year of the contract.
10 Sections referred to in par 3.10 refer to sections (or regulations) in the NMWA.

National minimum wage Exclusions

• R20 per hour for each ordinary hour worked • Farm workers: R18 for each ordinary hour
(item 1 of Sch 1 of the NMWA) worked
• Domestic workers: R15 for each ordinary hour
worked
• Workers on an extended public works
programme: R11 for each ordinary hour
worked (s 4(3) of the NMWA provides for a
proportional increase in the wage when the
national minimum is adjusted)
• Learners in a learnership agreement (in terms
of the Skills Development Act): wage depends
on the NQF level of the training and the credits
earned by the learner (ranging between R301-
01 and R1 755-84 per week – Sch 2 to the
NMWA).11

• Employees/workers who earn less than the

BCEA threshold and who work fewer than four
hours on any day must be paid as if they
worked four hours on that day
(s 9A of the BCEA)
For the purpose of calculating the minimum wage the following payments are excluded: • payments
made to enable a worker to work, including transport, equipment, tool, food an accommodation
allowances (unless a sectoral determination specifies the contrary); • payments in kind, including
board or accommodation (unless a sectoral determination specifies the contrary);
• gratuities such as tips, bonuses or gifts; • any
other prescribed category of payment.
This effectively means that the actual payment per hour must be at least R20 (or the other
prescribed minimums). A worker is entitled to the minimum wage for every hour of work and a
worker earning below the BCEA threshold who works fewer than four hours on any day is entitled
to at least four hours’ pay (s 5(2) of the NMWA and s 9A of the BCEA). Deductions from a worker’s
wages must meet the requirements of section 34 of the BCEA (s 5(4)).
The National Minimum Wage Commission must review the minimum wage annually and make
recommendations to the Minister for an adjustment of the wage. In conducting the review, the
Commission must promote the alleviation of poverty and the reduction of inequality and wage
differentials. The Commission must further consider factors such as inflation, the cost of living,
productivity, ability of employers to continue carrying on business and the likely impact of an
adjustment of the minimum wage (s 7).
An employer who unilaterally amends wages or other conditions of employment in an attempt
to circumvent the payment of the minimum wage is guilty of an unfair labour practice and the
worker can pursue the conciliation and arbitration routes provided for in the LRA (s 4(8)). In other
words, the worker must refer the dispute within 90 days for conciliation and if the dispute is not
resolved, refer it to arbitration within 90 days from the date of the outcome certificate. The
66 A Practical Guide to Labour Law

principles applicable to the arbitration of any other unfair labour practice equally apply to this type
of unfair labour practice.
________________________

11 See appendix 6.

3.10.2 Exemptions
An employer or an employers’ organisation representing a member may apply, in the prescribed
manner, for an exemption from paying the prescribed minimum wage (s 15(1)). The Minister has
published regulations12 to govern applications for exemption.
The application must be lodged on the National Minimum Wage Exemption System in the form
required by the system (reg 2(2)). This is an on-line system managed by the Department of Labour
and is accessible on line at https://nmw.labour.gov.za or at any office of the Department. The system
captures all applications, submissions made in respect of an application or by affected persons and
exemptions granted or withdrawn (reg 6).
The application must include all the details of an employer (name, address, etc.) together with
the employer’s UIF registration number, Compensation Fund registration number, SARS number,
company registration number, nature of the business, any sectoral determination or collective
agreement binding on the employer, whether a bargaining council has jurisdiction and the number
of workers, details of their work and their wages. The application must be supported by financial
statements of the current and previous two years (save a private household is required to provide
an annual income and expenditure statement) (Sch 2 to the Regulations).
An employer who intends applying for exemption must consult a trade union representing the
affected workers or, if there is no union, the workers themselves and provide them with a copy of
the application. A copy of the application must also be provided to the bargaining council with
jurisdiction (reg 2(3)(b) & 2(5)).
The Director General of Labour is the delegated authority dealing with exemption applications.
The DG (or other authorised person) must consider the application and determine whether or not
the employer can afford to pay the national minimum wage. In order to make such a determination
the decision process in Schedule 1 to the Regulations must be followed (reg 2(4)).
An exemption will be granted only if the DG is satisfied that the employer cannot afford the
minimum wage, the employer has consulted, in a meaningful manner, with the union or affected
employees and the employer has complied with statutory payments (e.g. UIF, COIDA) (reg 2(3) &
(10)). Where an exemption is granted, the wage to be paid and the period for which the exemption
is granted, which may not be more than 12 months, must be specified. Conditions may be attached
to the exemption (s 15(2) & reg 2(6)). The wage to be paid under the exemption may not be less
than 90% of the prescribed minimums (reg 2(7)).
An employer is required to display a copy of the exemption notice at the workplace and give
copies thereof to the union, bargaining council and every worker who requests a copy (reg 4).
An exemption may be withdrawn if it is found that the employer has given false or incorrect
information, if the employer is not complying with the exemption notice or if the employer’s
financial position has improved to the extent that it can afford the minimum wage (reg 5(1)). In
addition, any affected person may apply for the withdrawal of an exemption, provided the
employer was consulted and the union or affected employees have been given a copy of such
application (reg 5(2) & (3)). If an exemption is withdrawn, a notice thereof must be published on
the exemption system and the employer must provide copies thereof to the union, affected workers
and the bargaining council (reg 5(4)).
Basic conditions of employment & minimum wages 67

________________________

12 GN 1401 of 19 December 2018 (GG 42124).

3.11 Prohibition of employment of children and forced labour
(Ch 6 ss 43–48)

The minimum age for employment is 15 years. No person may require or permit a child who is under
15 years of age or under the minimum school-leaving age (whether 15 or older) to perform any
work or provide any services. Section 31(1) of the South African Schools Act 84 of 1996 requires
every parent to cause every learner for whom he or she is responsible to attend school until the last
school day of the year in which the learner reaches the age of 15 or the ninth grade, whichever
comes first.
This means that children who are 15 years of age or older and above the minimum school leaving
age, but under the age of 18, are protected and their employment is regulated. The Minister may
impose conditions on or prohibit the work of children 15 years and older who are no longer subject
to compulsory schooling and may issue regulations relating to the medical examinations of children
who perform work. Section 44(1A) enables the Minister to make regulations to give effect to South
Africa’s international law obligations dealing with work by children.
It is an offence to require or permit a child to perform any work or provide any services that are
inappropriate for a person of the child’s age or that places at risk the child’s wellbeing, education,
physical or mental health or spiritual, moral or social development. It is also an offence to assist any
person to require or permit a child to work in contravention of the Act or to discriminate against a
person who refuses to permit a child to work in contravention of the Act. Forced labour is also
prohibited.

3.12 Variation of conditions of employment (Ch 7 ss 49–50)

The conditions of employment contained in the BCEA may be varied by collective agreements
concluded in or outside bargaining councils, individual agreements (contract of employments),
ministerial determinations and sectoral determinations.

3.12.1 Variation by agreement (s 49)

Bargaining council agreements take preference over other collective agreements and the latter, in
turn, take preference over individual agreements (s 49(4)).
• Bargaining council collective agreements may vary, replace or exclude any condition of
employment, provided they do not reduce the core rights of an employee, i.e. the protection
afforded to employees regarding ordinary working hours and the arrangement of working time
with due regard to health, safety and family responsibilities; the protection in section 17(3) and
(4) of the BCEA relating to regular night work; an employee’s entitlement to sick leave; an
employee’s entitlement to maternity leave and, once the Labour Laws Amendment Act of 2018
takes effect, also the entitlement to parental, adoption and commissioning parental leave; the
entitlement to annual leave may be reduced, but not to less than two weeks; and the protection
against child and forced labour (s 49(1)).
• Other collective agreements may replace or exclude a basic condition of employment to the
extent permitted by the BCEA or a sectoral determination (s 49(2)). Examples of conditions of
employment that may be varied include overtime, weekly rest periods, Sunday work and sick
leave pay.
68 A Practical Guide to Labour Law

• Individual agreements or contracts of employment may vary conditions of employment within

the limits set by the BCEA or a sectoral determination (s 49(3)), such as overtime, weekly rest
periods, Sunday work and sick leave pay.

3.12.2 Variation by ministerial determination (s 50)

The Minister may by way of a ministerial determination replace or exclude any basic condition of
employment contained in the BCEA. Such a ministerial determination may be made at the
Minister’s own initiative or on application by an employer and/or a registered employer’s
organisation (s 50(1)).
Where a determination is made at the Minister’s initiative, the advice of the National Minimum
Wage Commission must be sought and the determination must be published in the Government
Gazette (s 50(3)). A determination applicable to the public service must be made in consultation
with the Minister of Public Service and Administration and a determination dealing with the
employment of children must be made in consultation with the Minister of Welfare and Population
Development (s 50(5) & (6)).
Where an employer or employers’ organisation applies for a determination to be made every
registered trade union representing the employees must consent to the application or, if consent
cannot be obtained, the employer or employers’ organisation must serve a copy of the application
on the union or employees (if not represented by a union) (s 50(7)). If the Minister issues a
determination on application the period of its applicability, and any conditions the Minister wishes
to attach to the determination, must be specified. The determination is published in the
Government Gazette (s 50(8)).
All determinations must be displayed at the workplace and unions and employees must be
notified thereof (s 50(10)).
A ministerial determination may not vary the protections afforded employees relating to regular
night work, maternity leave and child labour, but a determination may be made in respect of
children younger than 15 or the school leaving age in order to allow them to participate in
advertising, sport, artistic and cultural activities (s 50(2)).
A ministerial determination in respect of ordinary working hours, overtime, meal intervals, rest
periods and annual leave may be made, but only if the provisions in the determination are on the
whole more favourable than those contained in the BCEA and if the making of a determination has
been agreed to in a collective agreement or if it is necessitated by the operational circumstances of
the sector or if it applies to the agricultural or private security sectors (s 50(2A)).
The Minister has issued ministerial determinations, varying the provisions of the BCEA, for the
small business sector (i.e. employers with fewer then employees),13 the welfare sector14 and in
respect of expanded public works programmes.15

3.12.3 Sectoral determinations (Ch 8 ss 51–58)

The Minister may make a sectoral determination, establishing basic conditions of employment and
minimum wages for employees in a particular sector and area (s 51(1)).
If a sectoral determination which was in operation at the time the NMWA took effect (1 January
2019) prescribes wages that are higher than the national minimum wage, the wages and benefits
in that determination must be increased proportionally when the national minimum wage is
adjusted (s 51(3)).
Despite any provision in a sectoral determination, an employer is required to pay a learner in a
learnership agreement at least the minimums that are prescribed in Schedule 2 to the NMWA (s
51(4)).
Basic conditions of employment & minimum wages 69

Before making a sectoral determination, the Minister must direct the National Minimum Wage
Commission to investigate the existing conditions of employment in the sector and area concerned.
The Commission, of its own accord or at the direction of the Minister,

________________________

13 GNR 1295 of 5 November 1999. This determination does not apply to

the employment of domestic workers, the public service, employers with
more than one business and a business formed by the division of an
existing business.
14 GNR 655 of 20 July 2001. 15 GNR 347 of 4 May 2012.
determines the terms of reference for the investigation which are then published in the Government
Gazette, inviting written representations by members of the public (s 52(1)–(3)).
An investigation may be conducted at the written request of an employer or employee
organisation in a sector and area. The request is submitted to the Minister who will ask the
Commission to advise whether an investigation ought to be conducted or the Minister may direct
the Commission to conduct an investigation (s 52(4)).
During an investigation any person who may be able to provide relevant information may be
questioned or be required to furnish information, books, documents or objects that are material to
the investigation (s 53).
Upon completion of an investigation and after considering representations made by members of
the public, the Commission must prepare a report with recommendations and submit a copy to the
Minister for consideration. A copy must also be submitted to the Director General for noting (s 54(1)
& (2)).
When advising the Minister, the Commission must consider aspects such as the cost of living,
alleviation of poverty, conditions of employment and wage differentials and inequality in the sector
an area concerned (s 54(3)).
The Minister considers the report and may decide to make a sectoral determination or to refer
the report back to the Commission for reconsideration (s 55(1) - (3)).
A sectoral determination is published in the Government Gazette and binds those employers and
employees identified in the determination. Employers must keep a copy of the determination at the
workplace.
A sectoral determination takes precedence over the provisions in the BCEA (s 57) and remains
binding until it is amended, cancelled or superseded by a new sectoral determination (s 56(1)).
A sectoral determination generally includes the following provisions (s 55(4)):
• minimum wages and the manner and timing of the payment of wages;
• the adjustment of remuneration by way of providing for minimum rates or minimum increases;
• conditions of employment, such as hours of work, overtime, work on Sundays and public
holidays, night work, leave and so forth, although a sectoral determination may not reduce
maternity leave or the protection afforded employees who perform regular night work;
• regulation of payment of remuneration in kind;
• regulation of task-based work, piecework, homework, sub-contracting and contract work;
• minimum standards for housing and sanitation for employees who reside on their employ-ers’
premises;
• travelling and other work-related allowances;
• minimum conditions of employment for trainees;
70 A Practical Guide to Labour Law

• regulation of pension, provident, medical aid, sick pay, holiday and unemployment schemes or
funds;
• minimum conditions of employment for persons other than employees;
• the threshold of representativeness for a registered trade union to have the organisa-tional right
of access to employers’ premises and the right to deduction of trade union subscriptions in
respect of workplaces covered by the sectoral determination; and • establish the method for
determining the employment conditions of labour tenants who has the right to occupy and use
part of a farm (as contemplated in s 3 of the Land Reform (Labour Tenants) Act 3 of 1996).
A sectoral determination may not be made in respect of the following (s 55(6) & (7)): • reducing
the protection afforded by section 7 of the BCEA, providing for the regulation of working time with
due regard to health, safety and family responsibilities;
• reducing the protection afforded to employees doing regular night work;
• reducing an employee’s entitlement to maternity leave;16 • ordinary working hours may be
changed in a sectoral determination, provided the hours are more favourable than those
contained in the BCEA;
• child or forced labour, save that a sectoral determination may be made to allow for the
employment of children in advertising, sport, artistic and cultural activities;17
• any matter that has been included in a sectoral determination which has been in effect for less
than 12 months;
• employers and employees who are bound by bargaining or statutory council collective
agreements. If a sectoral determination was in existence and thereafter a collective agreement
is concluded, the sectoral determination ceases to be binding and the collective agreement
prevails (s 56(2)18).
The Minister has promulgated a number of sectoral determinations:
• Sectoral Determination 1: Contract Cleaning Sector, South Africa (GN 622 of 14 May 1999);
• Sectoral Determination 2: Civil Engineering Sector, South Africa (GNR.204 of 2 March 2001);
• Sectoral Determination 3 (repealed by Sectoral Determination 6);
• Sectoral Determination 4: Clothing and Knitting Sector, South Africa (GNR.1007 of 13 October
2000);
• Sectoral Determination 5: Learnership (GN 519 of 15 June 2001);
• Sectoral Determination 6: Private Security Sector, South Africa (GNR.1250 of 30 November 2001,
corrected by GNR.879 of 9 September 2005 and amended by GN 786 of 2015), which repealed
Sectoral Determination 3;
• Sectoral Determination 7: Domestic Worker Sector, South Africa (GNR.1068 of 15 August 2002);
• Sectoral Determination 8 (repealed by Sectoral Determination 13);
• Sectoral Determination 9: Wholesale and Retail Sector, South Africa (GNR.1600 of 19 December
2002, replaced by GN 162 of 2016);
• Sectoral Determination 10: Children in the Performance of Advertising, Artistic and Cultural
Activities, South Africa (GNR.882 of 29 July 2004);
• Sectoral Determination 11: Taxi Sector (GNR.409 of 28 April 2005);
• Sectoral Determination 12: Forestry Sector, South Africa (GNR.219 of 17 March 2006); and
Basic conditions of employment & minimum wages 71

• Sectoral Determination 13: Farm Worker Sector, South Africa (GNR.149 of 17 February 2006),
which repealed Sectoral Determination 8;
• Sectoral Determination 14: Hospitality Sector, South Africa (GNR 437 of 15 May 2007, GNR 541
of 2008).
________________________

16 The 2018 amendments omitted to add parental, adoption and commissioning parental leave in the context of
sectoral determinations (whereas these have been added in the context of collective agreements varying
conditions of employment). It must be accepted as an oversight and once the new types of leave come into
operation it can safely be presumed that the Minister will not be allowed to reduce such entitlements in a sectoral
determination.
17 Such a determination has been made: Sectoral Determination 10: Children in the Performance of Advertising,
Artistic and Cultural Activities, South Africa. The Minister has issued a Code of Good Practice for the employment
of children in the performance of advertising, artistic or cultural activities to regulate child labour in advertising,
dancing, film, modelling, television and theatre performances (GNR.479 of 27 May 2005). The Code must be read
in conjunction with the sectoral determination. The Code does not impose any legal obligation, but provides
guidelines to employers.
18 S 56(2) erroneously refers to “collective agreements as contemplated in s 55(6)(a) or (b)”. The cross reference is
incorrect.
3.13 National Minimum Wage Commission (Ch 3 of NMWA)

The Wage Board was established in terms of the Wage Act 5 of 1957. When the Wage Act was
repealed by the BCEA of 1997 the Wage Board was abolished and the Employment Conditions
Commission (ECC) took its place.
The ECC was established in terms of Chapter 9 of the BCEA with the primary aim of advising the
Minister on sectoral determinations and matters concerning basic conditions of employment. These
included the effect of the policies of the government on employment, the trends in collective
bargaining, employment of children and conditions of employment in the public service.
When the National Minimum Wage Act took effect and the BCEA was amended on 1 January
2019 the ECC was abolished and the National Minimum Wage Commission (the “Commission”) was
established (s 8 of the NMWA).
Like its predecessor, the Commission serves as an advisory body to the Minister. It advises on
sectoral determinations, measures to reduce income differentials and any matter concerning
employment conditions. In addition, the Commission must review the national minimum wage,
recommend adjustments thereto and report to the Minister on the impact the minimum wage has
on the economy, collective bargaining and the reduction of income differentials (s 11 of the NMWA).
An important function assigned to the Commission is the conduct of investigations into the
possible making of a sectoral determination, a function that was previously undertaken by the
Director General (see sectoral determinations, above).
The Commission comprises of a chairperson and three independent experts with knowledge of
the labour market and employment conditions, appointed by the Minister, plus three members
nominated by organised labour, three nominated by organised business and three by organised
community (s 9 of the NMWA). The members hold office for five years. The Minister provides a
secretariat to assist with the functioning of the Commission and budgets funds for the Commission
in the budget of the Department of Labour (ss 13 & 14 of the NMWA).

3.14 Monitoring and enforcement (Ch 10 Part A)

72 A Practical Guide to Labour Law

Under the BCEA of 1983 an employer’s non-compliance with provisions of the BCEA resorted in the
main within the criminal justice system. The majority of contraventions under the BCEA constituted
criminal offences and a guilty verdict invited a fine or imprisonment.
The BCEA of 1997 transferred compliance and enforcement issues to an administrative system:
labour inspectors are appointed in the Department of Labour (DoL) (or, where a bargaining council
has jurisdiction, designated agents are appointed) to monitor and enforce compliance with
employment laws (s 63). Labour inspectors and accredited bargaining council agents promote,
monitor and enforce compliance with employment laws by advising employers and employees of
their rights and obligations in terms of any law, conducting inspections and investigating complaints
(s 64).
Labour inspectors have wide powers to investigate complaints relating to non-compliance of
employment laws, as well as where an inspector suspects that an employer has failed to comply
with employment laws. Typical complaints lodged by employees with the DoL are those concerning
non- or under-payment, which range from the payment of wages to overtime pay, outstanding
annual leave and notice pay.
Where a complaint has been lodged or where an inspector has reasonable grounds to believe
that an employer has failed to comply with employment laws, the inspector may enter any
workplace or place where employment services are provided in order to question persons and to
conduct an investigation without a warrant or advance notice (save private homes may be entered
only with the consent of the owner/occupier or the Labour Court) (ss 65–67).
Where an employer is found wanting, the inspector may try to secure a written undertaking from
the employer, i.e. an undertaking that the employer will comply. If the employer continues in its
non-compliance, the inspector may issue a compliance order.
The consequences of an employer not observing a written undertaking or compliance order have
changed with the 2018 amendments. Prior to 1 January 2019 the DoL was entitled to launch an
application in the Labour Court to have a written undertaking or compliance order made an order
of court. The 2018 amendments removed this power from the Labour Court and the jurisdiction to
deal with non-compliance now vests in the CCMA (s 69). Where an employer fails to comply with a
written undertaking or a compliance order, an inspector may approach the CCMA to have it made
an arbitration award (ss 68(3) & 73). An employer who objects to a compliance order may refer a
dispute to the CCMA.

Written undertaking (s 68)

• A labour inspector who has reasonable grounds to believe that an employer has not com-plied with
any provision of the BCEA, NMWA or unemployment insurance laws may endeavour to secure
from the employer a written undertaking to comply. This may be done by meeting with or serving
a prescribed document on the employer (s 68(1)).
• In endeavouring to secure the undertaking, an inspector may seek to obtain an agreement between
an employer and employee as to the amount owed to the employee. Once an agreement has been
obtained, the inspector may arrange for payment of such an amount to the employee or, at the
employee’s written request, to receive payment on his behalf (s 68(2)).
• If the employer fails to comply with the written undertaking, the inspector (on behalf of the
Director General) may approach the CCMA to have the undertaking made an arbitration award (s
68(3)). The application must be made on BCEA Form 15 and must be supported by an affidavit and
other documentation (CCMA Rule 31B).
Basic conditions of employment & minimum wages 73

Compliance orders (ss 69–73)

• A labour inspector who has reasonable grounds to believe that an employer has not complied with
a provision of the BCEA, the NMWA or any unemployment insurance law may issue a compliance
order, which must set out:
– the name of the employer and the location of every workplace to which the order
applies;
– the provision(s) the employer has failed to comply with and the conduct that constitutes non-
compliance;
– any amount that the employer is required to pay to an employee or, in the case of the national
minimum wage, the amount the employer is required to pay which may include a fine in terms
of section 76A;19
– any steps that the employer is required to take, including the cessation of the contravention in
question and the period within which those steps must be taken; and
– the maximum fine that may be imposed on the employer for non-compliance in accordance
with Schedule 2 to the BCEA (s 69(1) & (2)).
continued
________________________

19 In terms of s 76A of the BCEA a fine may be imposed on an employer who pays its employee less than the national
minimum wage. The fine is twice the value of the under-payment or twice the employee’s monthly wage,
whichever is the greater. For second or further under-payments the fine is thrice the value of the under-payment
or thrice the employee’s monthly wage, whichever is the greater.
• A copy of the compliance order must be served on the employer and every affected employee (or
their representative) and the employer is required to display a copy of the order in a prominent
place (s 69(3) & (4)).
• The employer must comply with the compliance order within the time period stated in the order
or the employer has the option of referring a dispute concerning the compliance order to the CCMA
within that period (s 69(5)).
• An inspector may not issue a compliance order in respect of an amount owed to an employee in
terms of the BCEA or the NMWA if:
– the employee earns in excess of the BCEA threshold amount;
– any proceedings for the recovery of the owed amount have been instituted in the CCMA or a
court of law (unless the proceedings have been withdrawn);
– if the owed amount has prescribed (i.e. if the employer was directed to pay the owed amount
on a date more than 36 months before the date the employee lodged a complaint or the date
a written undertaking was secured or a compliance order was issued)
(s 70).
• If an employer fails to comply with a compliance order, an inspector (on behalf of the Director
General) may apply to the CCMA to have the order made an arbitration award (s 73(1)). The
application must be made on BCEA Form 15 and must be supported by an affidavit and other
documentation (CCMA Rule 31B).
• A compliance order will be made an award if the CCMA is satisfied that the order was served on
the employer and that the employer has not objected to the order by referring a dispute to the
CCMA (s 73(2)).
• The Department of Labour must publish on its website a list of all employers who were issued with
compliance orders (s 76A(4)).

3.15 Dispute resolution

74 A Practical Guide to Labour Law

A significant departure from the previous dispensation is the fact that the CCMA now has the
jurisdiction to deal with non-compliance with employment laws by an employer. Prior to the 2018
amendments (which took effect on 1 January 2019) the Department of Labour (DoL), through its
inspectors, enforced compliance by way of written undertakings and compliance orders and if an
employer failed or refused to comply, by approaching the Labour Court. (Bargaining council agents
had the same powers.)
The amendments place non-compliance now under the jurisdiction of the CCMA.
A labour inspector has the power to refer disputes concerning any failure to comply with the
BCEA, the NMWA, the Unemployment Insurance Act and the Unemployment Insurance
Contributions Act to the CCMA (s 64(1)(dA). In addition, an inspector can approach the CCMA to
have a written undertaking or a compliance order made an arbitration award (ss 68(3) & 73(1)).
Prior to the 2018 amendments the CCMA did not have jurisdiction to entertain payment claims,
unless such a claim was consolidated and referred together with a dismissal dispute to the CCMA (s
74(2)). An employee who complained about non- or under-payment had to approach the DoL (or a
bargaining council with jurisdiction) to claim outstanding monies. Or, the employee could, of course,
institute proceedings in a court of law. It was not possible to approach the CCMA to claim
outstanding monies if that was the only claim. This position has also changed.
In terms of the new section 73A an employee or worker who earns below the BCEA threshold is
entitled to refer any dispute concerning the failure to pay an amount to the CCMA if that amount is
owing in terms of the BCEA, the NMWA, a contract of employment, a sectoral determination or a
collective agreement. Such a dispute is subject to compulsory con-arb. Employees earning in excess
of the threshold will have to institute proceedings in the Labour Court or any other court with
jurisdiction.
The CCMA (and the Labour Court) retains its jurisdiction, as before the amendments, to
determine a payment claim under the BCEA or the NMWA if it was consolidated with a dismissal
dispute (s 74(2)). If a payment claim is determined by the CCMA or the Labour Court in conjunction
with a dismissal dispute, a compliance order cannot be issued in respect of those monies (s 74(2A).
If a dispute concerns the entitlement to severance pay only, it can be referred to the CCMA or a
council for conciliation and arbitration (s 41). A dispute concerning any amount that is owing to an
employee as a result of a contravention of the BCEA or the NMWA may be consolidated with the
claim for severance pay (s 74(3)).
Part C of Chapter 10 of the BCEA (ss 78 & 79) bestows certain rights on employees (including ex-
employees and job applicants) and protects employees against discrimination when these rights
are exercised. An employee may, for example, lodge a complaint with a labour inspector or his union
if the employer is not complying with the BCEA or the NMWA; an employee may discuss his
employment conditions with fellow employees; an employee may refuse to agree with any
condition that contravenes the BCEA, the NWA or a sectoral determination; an employee may
inspect records relating to his employment; and an employee may participate in proceedings in
terms of the BCEA. No person may discriminate against an employee (including an ex-employee or
a job applicant) by not allowing him to exercise his rights or prejudicing him in any way for exercising
a right or refusing to do what is not lawful or disclosing information that he is entitled to disclose.
Disputes about the interpretation or application of Part C of Chapter 10 were, prior to the 2018
amendments, conciliated by the CCMA or a council and, if unresolved, adjudicated by the Labour
Court. As from 1 January 2019, when the amendments took effect, this position changed. The CCMA
now has exclusive jurisdiction to conciliate and arbitrate disputes of this nature (s 80). A dispute
about a contravention of the BCEA or the NMWA may be consolidated with a dispute concerning
Part C (s 74(1)).
An employer must pay interest on any amount due and payable in terms of the BCEA or NMWA
at the rate prescribed by the Prescribed Rate of Interest Act 55 of 1975 (s 75).
Basic conditions of employment & minimum wages 75

The Labour Court has exclusive jurisdiction to grant civil relief arising from a breach of sections
33A (prohibited conduct by employers), 43, 44, 46, 48 (child and forced labour), 90 (confidentiality)
and 92 (obstruction, undue influence, fraud) of the BCEA.
The Labour Court can review the performance of any function provided for in the BCEA (s 77(2))
and has concurrent jurisdiction with the civil courts to hear and determine any matter concerning
a contract of employment, irrespective of whether any basic condition of employment constitutes
a term of that contract (s 77(3)).

3.16 General

Temporary employment services (s 82): A temporary employment service (TES) is also known as a
labour broker. A labour broker is a person who provides, for reward, to its clients persons who will
render services for the client. This means that the labour broker employs people and then deploys
those people to work for its clients. The labour broker is the employer and the person who is
employed, is the employee of the labour broker. Independent contractors are, of course, excluded
because they are not employees. The TES and the client are jointly and severally liable if the TES
does not comply with the BCEA or an applicable sectoral determination in respect of those
employees who are deployed to the client.
The position of a TES and its employees is somewhat different under the LRA. Section 198 of the
LRA provides, like section 82 of the BCEA, that the TES is the employer and the person who performs
work at the client’s workplace is the employee of the TES. However, a distinction is made between
the employee who earns below the BCEA threshold and the one who earns more than the
threshold. Section 198A of the LRA applies to those employees earning below the threshold and
defines a “temporary service” as work for a client for a period not exceeding three months, work
which forms a substitute for an employee of the client who is temporarily absent or work that falls
within a category of work that has been determined to be a temporary service in a bargaining
council collective agreement, a sectoral determination or ministerial notice. An employee who
performs a temporary service, as defined, is the employee of the TES. However, if the employee
performs work that is not genuinely a temporary service he is deemed, for the purposes of the LRA,
to be the employee of the client and the client is deemed to be the employer. The employee’s
employment is then deemed to be of an indefinite duration (unless a fixed-term contract as defined
in s 198B of the LRA has been concluded) and the employee may not be treated less favourably than
the actual employees of the client, unless justifiable reasons exist for different treatment.20
Duration of employment (s 84): For the purposes of determining the duration of an employee’s
employment with an employer, previous employment with the same employer must be taken into
account if the break between the periods of employment was less than one year. For example, if an
employer has to decide whether to pay an employee severance pay upon retrenchment and the
employee had worked for two years, then left and after eight months returned to the employer, the
eight-month interval is ignored and the employee must be paid for all his years of service.
Codes of Good Practice (s 87): The Minister must, after consulting NEDLAC, issue a Code of Good
Practice on the Arrangement of Working Time and a Code of Good Practice on the Protection of
Employees during Pregnancy and after the Birth of a Child. Any other codes of good practice may
also be issued and the Minister may change or replace any such code. Any person interpreting or
applying the Act must take the relevant codes of good practice into account.
Confidentiality (s 90): It is an offence for any person to disclose information which he has
acquired in the performance of his powers or duties and which relates to the financial or business
affairs of another person, except if the information is disclosed in terms of an employment law, for
the purposes of the proper administration of the BCEA or for the purposes of the administration of
justice.
76 A Practical Guide to Labour Law

Questions

Question 1
The Minister of Labour must, in terms of section 6(3) of the BCEA, determine an amount (the “BCEA
threshold”) in order to exclude higher earners from some of the provisions of the BCEA. State what
the current threshold is, the earnings that are included and disregarded to calculate an employee’s
remuneration and then explain which provisions of the BCEA do not apply to those employees
earning in excess of the threshold. (15)

Question 2
Anna is employed as an operator in chocolate manufacturing company. She works from Monday to
Friday every week. She earns below the BCEA threshold.
2.1 Explain what her ordinary working hours per day and per week should be. (2)
2.2 She starts working at 7:00 and gets a lunch interval of one hour at 12:00. Does her
lunch break form part of her working hours? (2)
________________________

20 See Assign Services (Pty) Ltd v NUMSA & Others [2018] 9 BLLR 837 (CC) for a discussion of the deeming provision
created in s 198A of the LRA.
2.3 Seven months after Anna started her employment she wants to take a week’s leave to attend
her cousin’s wedding. Explain her leave entitlements and whether she is entitled to a week’s
leave. (5)
2.4 Anna is pregnant and is expecting her child in five months’ time. Explain what type of leave she
is entitled to and whether she is entitled to pay, if any, during her leave. (6)
2.5 Anna gives birth to a baby girl on 6 September. Her husband is employed at an insurance
company. Is he entitled to any leave? (4)
2.6 Assume Anna is not married, but has been living with her partner for six years. They decide to
adopt a baby and on 30 January the court issues an adoption order, making them the parents
of a two-month old baby boy. Explain whether Anna or her partner or both are entitled to
any leave and, if so, whether they are entitled to any payment during the leave. (6)
2.7 Anna started her employment on 1 February. On 22 May her father passes away and she wants
to take family responsibility leave. Explain whether she is entitled to any leave. (5)
2.8 Assume Anna started her employment on 1 February 2019. Her employment contract stipulated
that she would be earning R17 per hour. At the time a sectoral determination was in place
and provided for R17.22 per hour. Her employer paid her R17 per hour, in accordance with
the contract.
(a) Explain whether Anna is entitled to R17 or R17.22 per hour or whether any other wage applies.
(3)
(b) Anna worked on Workers’ Day, a Wednesday, for three hours. Explain and calculate the
payment that is due to her. (6)
(c) Anna believes she is not receiving the correct wages and declares a dispute. Explain the dispute
resolution path she needs to follow to have her dispute resolved. (6)

Question 3
3.1 A factory worker works from Monday to Friday for eight hours per day, earning R22 per hour.
Calculate the payment he must receive if he worked the following hours on a Sunday:
(a) 3 hours; (3)
Basic conditions of employment & minimum wages 77

(b) 6 hours. (3)

3.2 Assume that this employee works in a hospital (not a factory) and that his normal working week
includes Sundays. Will his Sunday pay be calculated in the same manner as for the factory
worker? (3)

Question 4
Xolile started his employment with ABC Printers on 1 February 2018. He works from Monday to
Friday every week.
4.1 Briefly explain his entitlement to paid sick leave. (4)
4.2 On 24 March 2018 he fell ill and his doctor booked him off for ten days. Explain whether he is
entitled to ten days’ paid sick leave. (3)
4.3 Would your answer be different if he fell ill and was booked off for ten days on
24 October 2018? Briefly explain. (3)

Question 5
Thandi works at Beauty Wise, a health and beauty shop, together with 11 other employees.
5.1 Thandi wants to resign because she can get a job at another company. Advise her as to what
notice she is required to give and the manner in which she has to give notice. (3)
5.2 Advise her employer what payments should be made to Thandi upon her departure from Beauty
Wise. (5)
5.3 Assume Thandi was retrenched (dismissed for operational requirements), in other words she
did not resign. Advise her employer what payments should be made to her when she is
retrenched. (6)
5.4 Assume Beauty Wise became insolvent.
(a) Explain what the effect of the employer’s insolvency is on Thandi’s contract of employment.
(5)
Hint: See Chapter 2 paragraph 2.10 and s 38 of the Insolvency Act.
(b) Explain what payments should be made to Thandi if her services are terminated because of
the employer’s insolvency. (6)
Hint: See s 41 of the BCEA.

Question 6
John is retrenched from B&M Fisheries after ten years of service. His monthly salary is R15 000 at
the time of retrenchment.
6.1 Calculate the amount of severance pay that must be paid to John. (3)
6.2 Assume that John worked for B&M for three years, resigned and nine months later returned to
B&M to take up another position at the company. Thus, at the time of his retrenchment he had had
two periods of service with B&M with a nine month break in between. Explain how his severance
pay must be calculated. (3) Hint: See s 84 of the BCEA.
6.3 Assume that, when John was retrenched, his employer informed him that a position was
available for him at B&M’s sister company at a slight reduction in salary (some R200 per
month less than what he earned at B&M) and that, after consultation, the sister company
was willing to employ him.
(a) Because of the reduction in salary John rejects the offer of employment at the sister company.
Is John entitled to severance pay? (3)
(b) Because John refuses the alternative position that was offered to him, B&M retrenches him
without paying any severance pay. John is of the opinion that he is entitled to severance pay.
78 A Practical Guide to Labour Law

Explain the procedures he must follow to have his dispute about entitlement to severance pay
be resolved. (4)

Question 7
Lindiwe is employed as a cashier at a supermarket. When she assumes duties she signs a contract
of employment which provides for pay, hours of work, leave and a number of other employment
conditions. A sectoral determination has been issued for the retail sector. The union which Lindiwe
joined some seven months after she started her employment concludes a collective agreement with
the employer which also provides for conditions of employment and minimum wages. There are
now three sets of employment conditions and they are not the same. Explain which set of
conditions will apply. (10)
Hint: s 49 of the BCEA.

Question 8
Explain the dispute resolution procedures that must be followed to have the following disputes
resolved:
8.1 bank employees who earn between R9 000 and R12 000 per month often work overtime and
during their lunch breaks without receiving any additional remuneration. Their complaints
and requests for payment receive no attention; (8)
8.2 an employee is retrenched (dismissed for operational requirements) after 11 months of service.
He receives no payments. When the employee enquires about severance pay and notice pay
the employer advises that he is not entitled to severance pay and that he had worked during
his notice period before getting dismissed. The employee believes payments are due to him;
(5)
8.3 an employee complains about not being paid the correct wages and when his employer ignores
his complaints, he lodges a complaint with a labour inspector. The employer is furious and
dismisses him; (5)
8.4 an employer is investigated after employees have complained about too little overtime pay. The
inspector who conducts the investigation finds that the employer indeed underpaid the
employees and in a meeting with the employer, he secures a written undertaking from the
employer in terms of which the employer undertakes to pay back-pay within 14 days. The
employer fails to abide by his undertaking; (3)
8.5 a labour inspector issues a compliance order, ordering an employer to pay an employee the
national minimum wage. The employer ignores the compliance order. (3)

Question 9
Indicate, with reasons, whether the following statements are true or false:
9.1 a cleaner in an office suite works only two hours per day and three days a week. She must be
paid for two hours per day. (2)
9.2 John is the father of a new born baby. He is entitled to 12 consecutive days' parental leave.
(2)
9.3 Annie is a commissioning parent in a surrogate motherhood agreement. She is entitled to eight
weeks’ commissioning parental leave. (2)
9.4 John and Annie are two commissioning parents in a surrogate motherhood agreement. They
are both entitled to commissioning parental leave. (2)
9.5 Vivian is entitled to seven days’ family responsibility leave when her life partner passes away.
(2)
Basic conditions of employment & minimum wages 79

9.6 An employer is obliged to provide and pay for transport to its employees performing night work.
(2)
9.7 The owner/manager of a bicycle shop is permitted to require his employees to buy, at a 25%
discount, parts and accessories for their bicycles at the shop. (2)
9.8 An employer is permitted to promise a bonus payment to its employees if the employees agree
not to lodge a complaint with a labour inspector regarding their long working hours without
overtime pay. (2)

Appendix 1

AN EXAMPLE OF A CONTRACT OF EMPLOYMENT

• It is advisable that a written contract, signed by both parties, be drawn up. This form may be used for
the purpose.
• It is further advisable that both the employer and the employee should have a copy of the contract.
• Any changes to the terms and conditions should be in writing.
• Any reference to the Act refers to the Basic Conditions of Employment Act of 1997.
This agreement is between: And

Employee: Employer:
Next of kin:
Address: Address:
Tel at work: Tel at work:
Home:
TERMS AND CONDITIONS OF EMPLOYMENT
80 A Practical Guide to Labour Law

1. Job title

Duties

Starting date

2. Pay R per Hour/day/week/month

which will be paid daily/weekly/fortnightly/monthly

The value of the wage includes payment in kind.

Additional benefits (payment in kind) e.g. food, accommodation, use of land, transport allowance, etc:
Accommodation: R ..........................
Food: R ..........................
Transport allowance: R ..........................
Use of land etc: R .......................... Other: R
..........................

continued
Basic conditions of employment & minimum wages 81

Deductions from wages:

....................... : R ..........................
....................... : R ..........................
....................... : R ..........................
....................... : R .......................... ....................... :
R ..........................
[Section 34 of the Act prohibits deduction from an employee’s wage except in accordance with a
written authority from the employee.]
Proof of payment of wages must be retained.

Overtime (rate per hour)

Method of payment Cash/cheque/transfer to bank or building society account

Bonus(if any)

3. Meal intervals are as follows .......................................................................................................

...........................................................................................................................................................
...........................................................................................................................................................
subject to the following conditions:
• the interval must be one hour after five hours’ work;
• it may be reduced by agreement to 30 minutes;
• it may be dispensed with if the employee works less than six hours per day;
• it does not form part of the hours of work and is, therefore, unpaid, but if the employee is
required to work during meal intervals he must be remunerated;
• any portion of a meal interval in excess of 75 minutes must be remunerated, unless the employee
lives on the work premises.

4. Overtime
The employee hereby agrees to work the following overtime:
...........................................................................................................................................................
On condition that:
• the weekly overtime will not exceed ten hours;
• overtime will be paid at not less than 1½ times the employee’s hourly rate; OR
• the parties agree to no pay for overtime but to time off instead.
5. Work on Sundays
..........................................................................................................................................................
(stipulate here whether the employee will be required to work on Sundays) subject to
the following conditions:
• payment must be not less than the rate for an ordinary day’s work or 1½ times the hourly rate if the
employee normally works on a Sunday, whichever is the larger amount;
82 A Practical Guide to Labour Law

• if the employee does not normally work on Sundays payment is double the hourly rate or a day’s
wage, whichever is the larger amount;
• parties may agree to the ordinary rate of pay plus time off equivalent to additional pay the employee
would have received.
Basic conditions of employment & minimum wages 83

continue
d
6. Public holidays
The parties agree to not fewer than the following public holidays:
New Year’s Day, Human Rights Day, Good Friday, Family Day, Freedom Day, Workers’ Day, Youth Day,
National Women’s Day, Heritage Day, Day of Reconciliation, Christmas Day and Day of Goodwill.
If an employee works on a public holiday which falls on what would have been an ordinary working
day he must be paid:
• at least double his daily rate; or
• his normal daily rate plus the amount for actual time worked whichever is the larger amount.
7. Annual leave
• Leave is a minimum of 21 consecutive days per annum with full pay; or
• parties may agree on one day for every 17 days worked or one hour for every 17 hours worked.
• Leave must be granted not later than six months after completion of the annual leave cycle
(every 12 consecutive months of employment); and
• may not run concurrently with sick leave or a period of notice.
8. Sick leave
The employee is entitled to ....... working days’ sick leave per 36-month cycle with full pay, provided
the first six months of employment have been completed. During the first six months of employment
the employee is entitled to one day for every 26 days worked. Once the first six months of employment
have been completed, the employee is entitled to take any or all of the leave days to his credit at any
time during the cycle.
(An employee is entitled to a number of sick leave days per cycle equivalent to the number of days he
normally works in a six-week period. Therefore, if he works six days per week he is entitled to 36 days’
leave per cycle; if he works five days per week he is entitled to 30 days’ leave per cycle; if he works
four days per week he is entitled to 24 working days per cycle and so forth.)
The employer and employee may agree to reduce sick leave pay to not less than 75% of the employee’s
normal pay, provided the number of sick leave days is increased proportionately.
9. Maternity leave
• The employee is entitled to four months’ maternity leave, which will commence four weeks before
the expected date of confinement.
• Maternity leave is paid/unpaid . . . . . . .. If paid, the rate of payment is …….…….. . If unpaid, the
employee is entitled to claim maternity benefits under the Unemployment Insurance Act.
10. Family responsibility leave
• The employee is entitled to three days’ leave with full pay during an annual leave cycle of 12
months.
• Leave can be taken only in the following events: when a child is born,21 is ill or dies or when a parent,
grandparent or sibling dies.
• The employee must provide proof of the event for which leave is sought.
NOTE: An employee is entitled to family responsibility leave only if he works four days or more per
week and has completed the first four months of employment.

continued
________________________

21 Once the Labour Laws Amendment Act of 2018 comes into operation family responsibility leave for the birth of a
child will fall away and the parent will then be entitled to parental leave.
84 A Practical Guide to Labour Law

11. Parental leave22

• Parental leave is ten consecutive days.
• Leave to commence when a child is born, when a court issues an adoption order or when a child
to be adopted is placed in the care of the prospective adoptive parent(s). • The employee has to
notify the employer in writing and at least one month before the commencement date of the
intention to take leave and of the commencement and end dates of the leave;
• Parental leave is paid/unpaid ………….. . If paid, the rate of payment is ………………. If unpaid, the
employee is entitled to claim parental benefits under the Unemployment Insurance Act.
12. Adoption leave23
• An adoptive parent of a child younger than two years is entitled to ten consecutive weeks adoption
leave OR parental leave.
• Leave to commence on the date a court grants the adoption order or the date the child is placed
in the care of the adoptive parent(s).
• The employee has to notify the employer in writing and at least one month before the
commencement date of the intention to take leave and of the commencement and end dates of
the leave.
• Adoption leave is paid/unpaid ………….. . If paid, the rate of payment is ………………. If unpaid, the
employee is entitled to claim adoption benefits under the Unemployment Insurance Act.
13. Commissioning parental leave24
• An employee who is a commissioning parent in a surrogate motherhood agreement is entitled to
ten consecutive weeks leave OR parental leave.
• Leave to commence on the date the child is born.
• The employee has to notify the employer in writing and at least one month before the
commencement date of the intention to take leave and of the commencement and end dates of
the leave.
• Commissioning parental leave is paid/unpaid ………….. . If paid, the rate of payment is ……………….
If unpaid, the employee is entitled to claim benefits under the Unemployment Insurance Act.
14. Notice to terminate services
The following periods of notice apply:
• where the employee has been employed for six months or less, one week’s notice;
• where the employee has been employed for more than six months, but less than one year, two
weeks’ notice;
• where the employee has been employed for more than one year, four weeks’ notice;
• where the employee is a farm or domestic worker who has been employed for more than six
months, four weeks’ notice.

15. Miscellaneous
The parties may further agree to the following:
probationary period(s), time off, pension and/or medical aid schemes, training, funeral benefits and
other allowances, such as housing, school fees etc.

continued
________________________

22 Pending the commencement of the Labour Laws Amendment Act of 2018.

23 Pending the commencement of the Labour Laws Amendment Act of 2018.
24 Pending the commencement of the Labour Laws Amendment Act of 2018.
Basic conditions of employment & minimum wages 85

16. Certificate of service

The parties may agree that, upon termination of the contract of employment, the employer will furnish
the employee with a certificate of service.

......................................................... ...........................................................
Employer Employee
It is advisable that a witness also sign the contract.

......................................................... ...........................................................
Witness Witness
86 A Practical Guide to Labour Law

Appendix 2

SCHEDULE
CODE OF GOOD PRACTICE ON THE ARRANGEMENT OF WORKING TIME

1. Objectives
The objective of this Code is to provide information and guidelines to employers and employees
concerning the arrangement of working time and the impact of working time on the health, safety and
family responsibilities of employees.

2. Application
2.1 This Code is issued in terms of section 87(1)(a) of the Basic Conditions of Employment Act, 1997
(Act No. 75 of 1997), (BCEA) and must be read in conjunction with the BCEA, particularly Chapter Two,
which governs the regulation of working time.
2.2 Section 7 of the BCEA requires employers to regulate the working time of each employee:
2.2.1 in accordance with the provisions of any Act governing occupational health and safety;
2.2.2 with due regard to the health and safety of employees;
2.2.3 with due regard to this Code of Good Practice;
2.2.4 with due regard to the family responsibilities of employees.
2.3 This Code applies to all employers and employees covered by the BCEA. This Code of Good
Practice is of particular significance for employees who perform shift work or regular night work and to
their employers.
2.4 The norms established by this Code are general and may not be appropriate for all workplaces.
A departure from the Code may be justified in proper circumstances. For example, the number of
employees employed in an establishment may warrant a different approach.

3. Relationship to health and safety laws

3.1 The regulation of working time is closely connected to the protection and promotion of the
health and safety of employees and, in some cases, members of the public.
3.2 Employers may be required to take working-time schedules into account in complying with their
general duties to provide and maintain a working environment that is safe and without risk to the health
of employees in terms of the Occupational Health and Safety Act, 1993 (Act No. 85 of 1993), (OHASA)
and the Mine Health and Safety Act, 1996 (Act No. 29 of 1996), (MHSA).
3.3 Key aspects of these Acts are the following:
3.3.1 Employers must conduct a risk assessment. This requires that they identify hazards and assess
the risk that they pose to the health and safety of employees. The results of the risk assessment must be
recorded.
3.3.2 Employers must implement appropriate measures to eliminate or control hazards identified in
the risk assessment.
3.3.3 Employers must train and supply information to employees about the risks to their health and
safety and the measures taken to control such risks.
3.3.4 Elected worker health and safety representatives and committees are entitled to partici-pate in
the risk assessment and control of hazards.
3.3.5 Employees have a duty to take reasonable steps to protect their own health and safety and that
of other employees.
3.4 Employers who engage employees to perform regular night work must ensure that these
employees are informed of the health and safety hazards associated with the work that they would
perform. This provision of the BCEA reiterates the obligation on employers in terms of OHASA and
Basic conditions of employment & minimum wages 87

MHSA.(an employee is regularly working at night if he or she works more than one shift per week (or 50
shifts per year) of which more than one hour falls after 23:00 or before 06:00)
4. Design and evaluation of shift systems
4.1 The design of shift rosters must be sensitive to the impact of these rosters on employees and
their families. This information can be obtained during consultations, negotiations or by circulating
individual questionnaires to employees.
4.2 The information that an employer may require on the effect of shift rosters includes:
4.2.1 the ranked preferences of employees for different shift systems (this should include factors such
as rate of rotation, length of shift, extension of operating time, starting and finishing times of shifts,
weekends off, off-duty periods);
4.2.2 the employee’s views of the advantages and disadvantages of the existing or proposed shift
system;
4.2.3 aspects of the employee’s work that could affect the determination of a suitable shift length;
4.2.4 how an existing or proposed shift schedule affects or might affect the health and safety of
employees;
4.2.5 means, costs and availability of transport to and from the place of residence and the personal
security of the employee while commuting;
4.2.6 the childcare needs of the employees.
4.3 The information that will be required will depend on whether an employer is introducing a shift
system for the first time or is re-evaluating or redesigning a shift system.

5. Arrangement of shifts
The following recommendations apply to the arrangement of shift work:
5.1 Overtime should be avoided, especially in occupations involving special hazards or heavy
physical or mental strain.
5.2 The changeover from one shift to another during the working day should, where appropriate,
include a brief period of overlap of the two crews in order to pass on any information that is needed by
the subsequent crew.
5.3 If appropriate and if it is possible within legal requirements, workers whose skills are
interchangeable should be allowed to exchange a shift with another worker.
5.4 The shift schedule should be displayed or distributed for easy access by all workers, and should
be presented in a readily understandable form.
5.5 Workers should receive reasonable notice in advance of scheduled hours of work and of any
foreseeable changes to the schedule.
5.6 Arrangements should be considered to accommodate the special needs of workers such as
pregnant and breast-feeding workers, workers with family responsibilities, older workers, disabled
workers or workers with health problems, and also workers with personal preferences for the scheduling
of their own free time.

6. Design of shift rosters

The following factors should be taken into account in the design of rosters for semi-continuous and
continuous shift work:
6.1 The frequency of night work, weekend work and work on public holidays should be limited as
much as possible for each worker.
6.2 The frequency of shift rotation should take account of the difficulties workers may have in
adapting to night work.
6.3 It is preferable that shifts be rotated in a forward direction (morning to afternoon to night),
bearing in mind workers’ preferences, local conditions and difficulties in scheduling a long period of rest
after spells of night shifts.
88 A Practical Guide to Labour Law

6.4 Night shifts should be no longer than morning and afternoon shifts. Where long night shifts are
used they should be carefully reviewed to find ways to avoid excessive fatigue. Successive long night shifts
should be avoided to the extent practicable.
6.5 Rest periods for shift workers should be scheduled to fall on weekends a certain minimum
number of times during a given period.
7. Performance of safety-critical tasks
7.1 Employers should take particular care in the timing of safety-critical tasks in shift cycles and
during individual shifts.
7.2 These should, to the greatest extent possible, not be undertaken at a time when the employees
involved may be fatigued or have low levels of alertness.
7.3 This is of particular importance to employers, such as operators of major hazard installations
whose activities have a direct impact upon the public, and operators of services such as mass
transportation or goods transportation.
8. Health assessment and counselling
8.1 In terms of section 17(3)(b) of the BCEA an employer, if requested by an employee who is
performing regular night work, must make arrangements for the employee to undergo a medical
examination. An employee is entitled to have such an examination at the time of commencing regular
night work and thereafter at regular intervals while he or she continues to work regularly at night.
8.2 The examination should be performed by a medical practitioner or by a health professional who
could refer employees to a medical practitioner in appropriate cases. This could include qualified staff
employed in a workplace clinic. The cost of the examination is for the account of the employer although
arrangements could be made for the cost to be covered through medical aid.
8.3 The timing of these examinations should be determined by individual or collective agreement
in the light of the employee’s health status, the nature of the work the employee performs and the
employee’s working hours.
8.4 The examination should cover:
8.4.1 any difficulties the employee may be having in adapting to night-work routines;
8.4.2 any health problems that the employee is manifesting;25
8.4.3 any psychological, emotional and social stresses experienced by the employee, strat-egies that
may help the employee cope with night work and educational input on the risks of shift work;
8.4.4 insomnia and symptoms of sleep deprivation such as irritability and chronic fatigue;
8.4.5 use of medication, the effectiveness of which depends upon circadian (daily body) rhythms;
8.4.6 diet and use of caffeinated drinks, alcohol, sleeping pills, and cigarettes.
8.5 In certain circumstances, it may be appropriate to advise certain individuals against shift work.
These circumstances include where the effectiveness of medication is fundamentally affected by
circadian (daily body) rhythms, workers with gastro-intestinal or cardiovascular disorders, and epileptics.
8.6 The examination should also include educational input on the health risks that may be
associated with the employee’s work schedule and as coping strategies that may assist the employee.
9. Working environment
Employers should regularly assess whether the work environment, in particular the lighting and heating,
are adequate for the health, safety and physical comfort of employees, particularly night workers.
________________________

25 Among the health conditions that should be investigated are mild asthma; non-insulin-dependent diabetes
mellitus; cardiac risk factors like hypertension, elevated cholesterol; depression; seizures; frequent indigestion;
mild irritable bowel syndrome; Crohn’s disease; peptic ulcer; weight loss and general nutritional status.
10. Management services
Basic conditions of employment & minimum wages 89

10.1 Employers should provide appropriate management services to employees working outside of
ordinary hours. Depending on the nature of the business, some aspects of management services should
be available at all times to nightshift employees.
10.2 Services that should be available at night include:
10.2.1 first aid services;
10.2.2 qualified safety supervision;
10.2.3 occupational health services, in particular counselling on nutrition and fatigue-
related problems;
10.2.4 emergency services in case of accidents, including transportation to hospitals.
10.3 Employers who engage employees on night work should ensure that:
10.3.1 there is adequate security for employees at the workplace;
10.3.2 employees are able to obtain safe, affordable transportation between their places of
residence and their workplace;
10.3.3 there are adequate eating facilities;
10.3.4 there are adequate rest rooms and change-rooms.
10.4 Administrative services should be sufficient, so that employees working nights do not have to
use their off-duty time to have contact with services such as the wages or personnel department. This
could be achieved by making these services available at the start or end of shifts by introducing rosters
that permit employees working at night to have contact during this time.
10.5 The need for and extent of administrative services will depend on the type of shift patterns.
The need will be greatest if employees are working at night for long periods or permanently; there will
be less of a need if employees change rapidly from day shift to night shift.
10.6 Employees working at night should not be disadvantaged in having access to education and
training.
10.7 Collective bargaining, trade union activities and the activities of participative bodies such as
workplace forums or health and safety committees should be arranged so as to allow employees who
work at night to participate.
10.8 An agreement to reduce employees’ meal intervals to 30 minutes in terms of section 14(5)(a)
of the BCEA should not be concluded if it may have the effect of endangering the health and safety of
employees.
10.9 Employers must ensure that employees receive adequate rest periods.
10.10 The number and duration of rest pauses during the shift and rotation should be adapted to the
workload. Particular attention must be given to the scheduling of rest periods for employees who are
engaged in:
10.10.1 physically and mentally strenuous work;
10.10.2 work involving manual lifting;
10.10.3 work involving repetitive movement;
10.10.4 monotonous work;
10.10.5 shifts of longer than eight hours.

11. Coping strategies

Employers should provide appropriate and up-to-date information to employees about coping strategies,
both in the workplace and at home. Strategies that will assist employees to cope with shift work and
night work include:
11.1 maintaining a regular sleeping routine;
11.2 taking steps to block out noise and light for employees who have to sleep in the day;
11.3 maintaining a healthy diet;
11.4 exercise and relaxation.
Glossary
90 A Practical Guide to Labour Law

Continuous shift work: the employer operates 24 hours per day, seven days per week, all year round.
Semi-continuous shift work: the employer operates 24 hours per day without a daily break, but with a
break at the weekend.
Discontinuous shift work the employer operates fewer than 24 hours per day with at least one daily
break. A “two-shift” system is the most common discontinuous shift system.
Short or part-time shifts: daily scheduled working hours that are substantially shorter than eight hours.
Long shifts: daily scheduled working hours that are substantially longer than eight hours.
Rotating (or alternating) shifts: workers alternate between different shifts. There are three key elements
to rotation:
(i) the direction of rotation: rotation can either be forward (clockwise, for instance, morning to
afternoon to night) or backward (counter-clockwise). In forward or advancing shifts, the starting
time of one shift in a shift worker’s schedule is always later on the 24-hour clock than the previous
shift. In a continuous shift system workers will work a morning shift. In backward or delaying rosters,
one shift always begins at an earlier time than the previous shift;
(ii) the frequency: employees may change shifts every week or at shorter or longer intervals;
(iii) the length of the cycle: the period required for a complete schedule of rotation, after which the
cycle is repeated.
Fixed (or permanent) shifts: employees work permanently on a single shift.
Basic conditions of employment & minimum wages 91

Appendix 3

SCHEDULE
CODE OF GOOD PRACTICE ON THE PROTECTION OF EMPLOYEES
DURING PREGNANCY AND AFTER THE BIRTH OF A CHILD
1. Introduction
1.1 Many women work during pregnancy and many return to work while they are still
breastfeeding.
1.2 The objective of this Code is to provide guidelines for employers and employees concerning the
protection of the health of women against potential hazards in their work environment during pregnancy,
after the birth of a child and while breast-feeding.
2. Application of the Code
2.1 This Code is issued in terms of section 87(1)(b) of the Basic Conditions of Employment Act
(BCEA) 75 of 1997.
2.2 It is intended to guide all employers and employees concerning the application of section 26(1)
of the BCEA which prohibits employers from requiring or permitting pregnant or breastfeeding
employees to perform work that is hazardous to the health of the employee or that of her child.
2.3 Workplaces may be affected differently depending upon the type of business and sector they
are engaged in and the physical, chemical and biological hazards to which employees may be exposed in
the workplace.
2.4 The norms established by this code are general and may not be appropriate for all workplaces.
A departure from the code may be justified in the proper circumstances. For example, the number of
employees employed in an establishment may warrant a different approach.
3. Contents This Code:
3.1 sets out the legal requirements relevant to the protection of the health and safety of pregnant
and breast-feeding employees;
3.2 sets out a method for assessing and controlling the risks to the health and safety of pregnant
and breast-feeding employees;
3.3 lists the principal physical, ergonomic, chemical and biological hazards to the health and safety
of pregnant and breast-feeding employees and recommends steps to prevent or control these risks. These
are listed in Schedules One to Four, which are included for guidance and are not exhaustive.
4. Legal requirements
4.1 The Constitution protects the right to bodily and psychological integrity, which includes the
right to make decisions concerning reproduction [section 12(2)] and gives every person the right to health
services, including reproductive health care [section 27(1)(a)].
4.2 No person may be discriminated against or dismissed on account of pregnancy.26
4.3 Employers are required to provide and maintain a work environment that is safe and without
risk to the health of employees. This includes risks to the reproductive health of employees. These duties
are established in terms of both the Occupational Health and Safety Act (OHASA) 85 of 1993 and the
Mine Health and Safety Act (MHSA) 27 of 1996. Key aspects of these Acts are:
4.3.1 employers must conduct a risk assessment, which involves identifying hazards, assessing the
risk that they pose to the health and safety of employees. and recording the results of the risk
assessment.
________________________

26 The relevant provisions establishing this right are s 9(3) and (4) of the Constitution; s 187(1) of the Labour Relations
Act 66 of 1995 and s 6 of the Employment Equity Act of 1998.
92 A Practical Guide to Labour Law

4.3.2 employers must implement appropriate measures to eliminate or control hazards identified in
the risk assessment;
4.3.3 employers must supply employees with information about and train them in the risks to their
health and safety and the measures taken to eliminate or minimise them;
4.3.4 elected worker health and safety representatives and committees are entitled to participate in
the risk assessment and control of hazards;
4.3.5 employees have a duty to take reasonable steps to protect their own health and safety and that
of other employees.

5. Protecting the health of pregnant and breast-feeding employees

5.1 Section 26(1) of the BCEA prohibits employers from requiring or permitting a pregnant
employee or an employee who is breast-feeding to perform work that is hazardous to the health of the
employee or the health of her child. This requires employers who employ women of childbearing age to
assess and control risks to the health of pregnant or breast-feeding employees and that of the foetus or
child.
5.2 Employers should identify, record and regularly review:
5.2.1 potential risks to pregnant or breast-feeding employees within the workplace;
5.2.2 protective measures and adjustments to working arrangements for pregnant or
breast-feeding employees.
5.3 Where appropriate, employers should also maintain a list of employment positions not
involving risk to which pregnant or breast-feeding employees could be transferred.27
5.4 Employers should inform employees about hazards to pregnant and breast-feeding employees
and of the importance of immediate notification of pregnancy.
5.5 Workplace policies should encourage women employees to inform employers of their
pregnancy as early as possible to ensure that the employer is able to identify and assess risks and take
appropriate preventive measures.
5.6 The employer should keep a record of every notification of pregnancy.
5.7 When an employee notifies an employer that she is pregnant her situation in the workplace
should be evaluated. The evaluation should include:
5.7.1 an examination of the employee’s physical condition by a qualified medical profes-
sional;
5.7.2 the employee’s job;
5.7.3 workplace practices and potential workplace exposures that may affect the
employee.
5.8 If the evaluation reveals that there is a risk to the health or safety of the pregnant employee or
the foetus, the employer must:
5.8.1 inform the employee of the risk;
5.8.2 after consulting the employee and her representative, if any, determine what steps
should be taken to prevent the exposure of the employee to the risk by adjusting the employee’s
working conditions.
5.9 The employee should be given appropriate training in the hazards and the preventive measures
taken.
5.10 If there is any uncertainty or concern about whether an employee’s workstation or working
conditions should be adjusted, it may be appropriate in certain circumstances to consult an occupational
health practitioner. If appropriate adjustments cannot be made, the employee should be transferred to
an alternative position in accordance with section 26(2) of the BCEA.
________________________

27 In terms of s 26(2) of the BCEA an employer must offer suitable alternative employment to an employee during
pregnancy if her work poses a danger to her health or safety or that of her child or if the employee is engaged in
Basic conditions of employment & minimum wages 93

night work (between 18:00 and 06:00), unless it is not practicable to do so. Alternative employment must be on
terms that are no less favourable than the employee’s ordinary terms and conditions of employment.
5.11 Employers must keep the risk assessment for expectant or new mothers under regular review.
The possibility of damage to the health of the foetus may vary during the different stages of pregnancy.
There are also different risks to consider for workers who are breast-feeding.
5.12 Arrangements should be made for pregnant and breast-feeding employees to be able to attend
antenatal and postnatal clinics as required during pregnancy and after birth.
5.13 Arrangements should be made for employees who are breast-feeding to have breaks of 30
minutes twice per day for breast-feeding or expressing milk each working day for the first six months of
the child’s life.
5.14 Where there is an occupational health service at a workplace, appropriate records should be kept
of pregnancies and the outcome of pregnancies, including any complications in the condition of the
employee or child.
6 The identification and assessment of hazards
6.1 Physical hazards
The control of physical hazards in the workplace includes the recognition, evaluation and control of:
6.1.1 exposure to noise, vibration, radiation, electric and electromagnetic fields and radioactive
substances;
6.1.2 work in extreme environments;
6.1.3 control of the thermal environment (heating and air conditioning).
Schedule One describes the extent to which certain of these physical agents may constitute a hazard to
the health and safety of pregnant and breast-feeding employees and suggests methods to prevent or
control these hazards.
6.2 Ergonomic hazards
The application of ergonomics involves ensuring that work systems are designed to meet the employee’s
e needs for health, safety and comfort. A range of ergonomic risk factors may pose hazards to the health
and safety of pregnant and breast-feeding employees and should be identified and assessed as part of
the risk assessment programme. These include:
6.2.1 heavy physical work;
6.2.2 static work posture;
6.2.3 frequent bending and twisting;
6.2.4 lifting heavy objects and movements requiring force;
6.2.5 repetitive work;
6.2.6 awkward postures;
6.2.7 no rest;
6.2.8 standing for long periods;
6.2.9 sitting for long periods.
Schedule Two describes the extent to which some of these factors may constitute a hazard to the health
and safety of pregnant and breast-feeding employees and suggests methods to prevent or control these
hazards.
6.3 Chemical hazards
Contact with harmful chemical substances may cause infertility and foetal abnormalities. Some chemicals
can be passed to the baby during breast-feeding and could possibly impair the health and the
development of the child.
The Hazardous Chemical Substances Regulations, 1995, issued under OHASA, apply to all employers
who carry out activities, which may expose people to hazardous chemical substances. These employers
must assess the potential exposure of employees to any hazardous chemical substance and take
94 A Practical Guide to Labour Law

appropriate preventive steps. The Regulations set maximum exposure levels for some 700 hazardous
chemical substances.
The Hazardous Chemical Substances Regulations require employers to inform and train employees
about, and in any substance to which they are or may be exposed. This must include information on any
potential detrimental effect on the reproductive ability of male or female employees.
Regulation 7(1) of the General Administrative Regulations, 1996, under OHASA requires
manufacturers, importers, sellers and suppliers of hazardous chemical substances used at work to supply
a Material Safety Data Sheet (MSDS) which must include information on any reproductive hazards. Every
employer who uses a hazardous chemical substance must be in possession of the relevant MSDS and
must make it available on request to affected persons.
With the exception of the Lead Regulations, there are no regulations, which set maximum exposure
levels of specific applications for women of childbearing age or pregnant women.28 In view of the absence
of occupational health standards for the exposure of pregnant or breastfeeding women to chemical
substances, care should be taken to minimise exposure to chemicals, which can be inhaled, swallowed or
absorbed through the skin. Where this cannot be achieved, employees should be transferred to other
work in accordance with section 26(2) of the BCEA.

6.4 Biological hazards

Many biological agents, such as bacteria and viruses, can affect the unborn child if the mother is infected
during pregnancy. Biological agents may also be transferred through breast-feeding or by direct physical
contact between mother and baby. Health workers, including service workers in health-care facilities and
workers looking after animals or dealing with animal products are more likely to be exposed to infection
than other workers. Employees who have close contact with young children, such as teachers and edu-
care workers, are at increased risk of exposure to rubella (German measles) and varicella (chicken pox).
Universal hygiene precautions are required to prevent disease. These include high standards of
personal hygiene, surveillance of staff in high-risk areas, appropriate sterilisation and disinfecting
procedures, designation of persons to be responsible for health and safety, the use of protective clothing
and gloves and the avoidance of eating or smoking in laboratories or other risk areas.
Some of the biological agents that are known to constitute a hazard to the health of breastfeeding or
pregnant women are listed in Schedule Four.

7 Aspects of pregnancy that may affect work

Employers and employees should be aware of the following common aspects of pregnancy that may
affect work:
7.1 As a result of morning sickness employees may be unable to perform early shift work. Exposure
to nauseating smells may also aggravate morning sickness.
7.2 Backache and varicose veins may result from work involving prolonged standing or sitting.
Backache may also result from work involving manual handling.
7.3 More frequent visits to the toilet will require reasonable access to toilet facilities and
consideration of the employee’s position if leaving the work she performs unattended poses difficulties.
7.4 The employee’s increasing size and discomfort may require changes of protective clothing,
changes to work in confined spaces and changes to her work where manual handling is involved. Her
increasing size may also impair dexterity, agility, co-ordination, speed of movement and reach.
7.5 The employee’s balance may be affected making work on slippery or wet surfaces difficult.
7.6 Tiredness associated with pregnancy may affect the employee’s ability to work overtime and to
perform evening work. The employer may have to consider granting rest periods.

________________________

28 European Council Directive 92/321EEC classifies some 200 substances and preparations as falling into one of the
following categories: possible risks of irreversible effects (R40), may cause cancer (R45), may cause heritable
genetic damage (R46), may cause harm to the unborn child (R61), possible risk of harm to the unborn child (R63),
may cause harm to breastfed babies (R64). The actual risk to health of these substances can only be determined
Basic conditions of employment & minimum wages 95

after a risk assessment of a substance at a place of work. In other words, although the substances listed may
have the potential to endanger health or safety, there may be no risk in practice: for example, when exposure is
below the level that might cause harm.
96 A Practical Guide to Labour Law

Appendix 4

Basic Conditions of BCEA 4

Employment Act, 1997
PAYSLIP
Section 33

NAME OF EMPLOYER: ...................................................................................

READ THIS FIRST


ADDRESS: .........................................................................................................
............................................................................................................
............................................................................................................
NAME OF EMPLOYEE: ................................................................................... ID NO:
.......................................... EMPLOYEE NUMBER: ...........................
WHAT IS THE PURPOSE OF OCCUPATION/GRADE:................................................................................. PAY
THIS FORM? PERIOD: FROM ................... TO .............................................................
This form is a record of information
about remuneration. BASIC WAGE: ...................................................................................................
MANNER OF PAYMENT: m PER HOUR m PER DAY m PER WEEK
WHO FILLS IN THIS
FORM? Rate No. of Rand
The employer. hours earned

WHERE DOES THIS FORM Ordinary hours worked .......... ................ ..................
GO? Overtime worked .......... ................ ..................
To the employee. Sundays time worked .......... ................ ..................
Public holidays time worked .......... ................ ..................
INSTRUCTIONS
Payment in kind .......... ................ ..................
This information must be given to
each employee –  At the Allowances (specify) .......... ................ ..................
workplace or at a place agreed to by
the employee; and ............................................... .......... ................ ..................
 during the employee’s ordin-ary ............................................... .......... ................ ..................
working hours or within 15
minutes of the commencement TOTAL R
or conclusion of those hours.
 The full value of remunera-tion
including payment in kind must DEDUCTIONS: P.A.Y.E. ..............................................................
be specified.
UIF ....................................................................
 This is only a model and not a
UNION ............................................................. OTHER (Full
prescribed form. Completing a
document in another format details) .....................................................
containing the same ...........................................................................
information is sufficient
compliance with the regulation. TOTAL
R

TOTAL AMOUNT DUE R

m PER FORTNIGHT m PER MONTH

Basic conditions of employment & minimum wages 97

Appendix 5
98 A Practical Guide to Labour Law

BCEA 5

Basic Conditions of
Employment Act, 1997 CERTIFICATE OF SERVICE
Section 42
I ..........................................................................................................
(name and designation of person)
READ THIS FIRST


of

.............................................................................................................
(full name of employer)

WHAT IS THE PURPOSE OF address: ..............................................................................................

THIS FORM?
............................................................................................................. in
This form is proof of employment
with an employer. the ..................................................................................... (trade)
declare that

WHO FILLS IN THIS .............................................................................................................

FORM? (full name of employee)
The employer.
.............................................................................................................
(I.D. no.)
WHERE DOES THIS FORM was in employment
GO?
from .............................................. until ............................................
To the employee.

as

INSTRUCTIONS .............................................................................................................
This form may be issued upon (type of work/occupation)
termination of employment.
.............................................................................................................
any other information .......................................................................
NOTE
In terms of section 42(g) the reason On termination of service this employee was earning: R ................
for termination of employment
must only be given if requested by ............................................................................. (amount in words)
the employee.

This is only a model and not a m per hour m per day m per week m per fortnight
prescribed form. Completing a
document in another format m per month m per year
containing the same information is
sufficient compliance with the
regulation.
............................................... .................................................
Employer’s signature Date

Appendix 6
Basic conditions of employment & minimum wages 99

Minimum wages for learners in a learnership agreement

Schedule 2 to the National Minimum Wage Act

NQF level Credits already earned by Minimum allowance per

learner week

Levels 1 to 2 0–120 R301.01 R601.99

121–240

Level 3 0–120 R301.01

121–240 R566.93
241–360 R928.11

Level 4 0–120 R301.01

121–240 R602.05
241–360 R928.11
361–480 R1354.51
Levels 5 to 8 0–120 R301.01
121–240 R652.15
241–360 R975.75
361–480 R1374.61
481–600 R1755.84
 4
EMPLOYMENT EQUITY ACT 55 OF 1998

4.1 Introduction

In this chapter we discuss a field of our law that has undergone dramatic changes over the last two
decades. When the first edition of this book was published the Industrial Court, armed with its
equitable jurisdiction, developed this branch of the law on a case-by-case basis as a sub-species of
the jurisprudence on unfair labour practice under the Labour Relations Act of 1956. Since 1994 we
have seen far-reaching constitutional changes and statutory initiatives, such as the adoption of the
final Constitution of the Republic of South Africa of 1996, the new Labour Relations Act of 1995,
implemented on 11 November 1996, a new Basic Conditions of Employment Act and the
Employment Equity Act 55 of 1998. Chapter 2 of the Equity Act, dealing with unfair discrimination,
came into operation on 9 August 1999. The rest of the Act took effect on 1 December 1999. Some
significant amendments to the EEA were enacted on 1 August 2014 when the Employment Equity
Amendment Act
47 of 2013 took effect.
Constitutional equality, as formulated in section 9 of the Constitution, forms the backdrop of the
Employment Equity Act and should always be considered when studying employment equity. The
relevant provisions in the Constitution will be discussed briefly before consideration is given to the
Employment Equity Act.

4.2 Constitutional equality

The Bill of Rights, in Chapter 2 of the Constitution, bestows on every South African a number of
fundamental rights, one of which is the right to equality. Everybody is equal before the law and
nobody may unfairly discriminate against another.
Section 9 of the Constitution reads as follows:
9. Equality
(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the
achievement of equality, legislative and other measures designed to protect or advance
persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more
grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour,
sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
(4) No person may unfairly discriminate directly or indirectly against anyone on one or more
grounds in terms of subsection (3). National legislation must be enacted to prevent or
prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is
established that the discrimination is fair.
Employment Equity Act 55 of 1998 101

4.2.1 The equality clause (s 9(1))

In terms of section 9(1) everyone is equal before the law. The right to equal protection of the law is
thus guaranteed. This section can be regarded as the typical embodiment of

97
equality as a fundamental value that must be upheld. As the Constitutional Court, in Prinsloo v Van
der Linde 1997 (3) SA 1012 (CC), so succinctly put it: “human beings are inherently equal in dignity”.
It follows then that treatment which impairs the fundamental dignity of a person is unfair.

4.2.2 The affirmative action clause (s 9(2))

In the old South Africa many people were discriminated against unfairly and measures were
required to address the inequities of the past. In the workplace in particular it is necessary to
introduce measures to ensure equal opportunities for all those people who were disadvantaged by
the discriminatory laws and practices of the past. It is a well-known fact that women and black
people did not generally enjoy the same benefits and advantages as white men.
Equality includes equal enjoyment of all rights and freedoms, not only in society in general, but
also in the workplace. Hence the requirement in section 9(2) that measures be taken to protect and
advance people who have been disadvantaged by unfair discrimination. Affirmative action is the
measure introduced by law to create equal opportunities in the workplace for all peoples of South
Africa. Affirmative action entails the appointment and advancement of previously disadvantages
persons.
Affirmative action was initially denounced by some as reverse discrimination. It is not within the
scope of this book to analyse the theories and philosophies for and against this argument. Suffice it
to say that, if one accepts that discrimination is aimed at excluding some people (as was the case in
the old South Africa), affirmative action cannot be discrimination because its aim is to include rather
than to exclude. Affirmative action is necessary as a positive action to overcome institutionalised
discrimination. Anti-discrimination laws are not sufficient to achieve this because they only disallow
discriminatory behaviour; they do not mandate inclusive measures, as affirmative action does. See
inter alia Motala & Another v University of Natal 1995 (3) BCLR 374 (D); Minister of Finance &
Another v Van Heerden 2004 (6) SA 121 (CC).
Affirmative action and the laws around it evolved since its introduction in the late 1990s. It is
clearer what is expected of employers when they appoint job applicants to vacant posts or
promoting employees. It was, for example, held in SAPS v Solidarity obo Barnard (2014 (6) SA 123
(CC) that an employer may refuse to appoint or promote a person from a designated group if that
group is already adequately or over-represented in a particular occupational level. The same
approach was adopted in Solidarity & Others v Department of Correctional Services & Others
(POPCRU & Another as amici curiae) 2016 (10) BCLR 1349 (CC) and the Constitutional Court
confirmed that this principle (the so-called Barnard principle) is applicable to all the designated
groups, as well as to gender (i.e. male and female). The Court further held that, in trying to achieve
the targets in the employment equity plan, an employer is required to consider both the national
and regional economically active population. It is incorrect to consider only national demographics.

4.2.3 The anti-discrimination clause (s 9(3) & (4))

Discrimination means different treatment of different people. It is not discrimination per se that
should be eradicated, but unfair discrimination. Unfair discrimination is different treatment of
people on an arbitrary ground or using inappropriate criteria to differentiate between one person
or group and another. Fair discrimination, on the other hand, is, according to the Oxford Dictionary,
“the careful observation of distinctions, having good judgement”, in other words to differentiate on
just grounds. The Basic Conditions of Employment Act, for example, prohibits the employment of
pregnant women for a period of four months. This is discrimination based on gender, but it is not
unfair. Thus, the failure to differentiate accurately and justly constitutes unfair discrimination.
102 A Practical Guide to Labour Law

It is not differentiation as such that is prohibited by the Constitution and the EEA, but invidious
differentiation – that is, unfair discrimination. See Chirach Tyre Company (Pty) Ltd t/a Falcon Tyre
Centre v Minister of Trade and Industry & Another 1997 (3) BCLR 319 (T); Union of Refugee Women
v Director: Private Security Industry Regulatory Authority 2007 (4) SA 395 (CC).
In terms of section 9(3) no-one may unfairly discriminate, directly or indirectly, against another
person on any of the following grounds: race, gender, sex, pregnancy, marital status, ethnic or social
origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and
birth.
This list of “stated (or “listed”) grounds” is preceded by the word “including”, which indicates
that unfair discrimination is not limited to the stated grounds only. This is not a closed list and other
grounds of differentiation, not mentioned in section 9(3), may also result in unfair discrimination.
Section 9(3) and (4) refers to direct and indirect unfair discrimination. Direct discrimination
occurs where a person is treated differently because he or she belongs to a particular category and
such treatment is to his or her disadvantage. If, for example, an advertisement calls for males only
to apply for a position, it constitutes direct discrimination against women. In contrast, indirect
discrimination is present where prima facie neutral criteria are used to differentiate, but these so-
called objective criteria operate to the systematic disadvantage of a particular category of persons.
If, for example, a minimum weight or height is required for a certain job, it will exclude more women
than men from being able to apply for the position. In the context of section 9(3) and (4) see
Langemaat v Minister of Safety and Security & Others 1998 (4) BCLR 444 (T); National Coalition for
Gay and Lesbian Equality & Others v Minister of Home Affairs & Others 2000 (2) SA 1 (CC);
Hoffmann v South African Airways 2001 (1) SA 1 (CC); Satchwell v President of the Republic of South
Africa 2002 (6) SA 1 (CC); Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC).
In City Council of Pretoria v Walker 1998 (3) BCLR 257 (CC) it was held that conduct which may
appear to be neutral and non-discriminatory may nonetheless result in discrimination. For this
reason the legislature included both direct and indirect unfair discrimination in section 9, thereby
demonstrating its concern about not only discriminatory conduct as such, but also the
consequences of conduct that may appear non-discriminatory. Proof of an intention to discriminate
is not required. What is required, is that differentiation must be proved and also that the
differentiation was unfair. Both elements must be determined objectively.

4.2.4 Proof of discrimination

If discrimination on one of the stated grounds is alleged, the presumption is that the discrimination
is unfair. The onus is then on the respondent to show that the discrimination is not unfair. For
instance, an unsuccessful female applicant for a job alleges gender discrimination by the employer.
If she can prove that there are a disproportionate number of males in the workplace the
presumption is that the employer is unfairly discriminating against females. The employer will have
to prove that the discrimination is not unfair. This can be done by showing that every effort was
made to employ females, without success; or by showing that maleness is a necessary qualification
for the job in question. It should be noted that this so-called “business necessity defence” is a very
narrow defence against a claim of discrimination. The mere fact that certain types of work have
traditionally been reserved for men or are regarded as unsuitable for women will not stand
constitutional scrutiny in the absence of rational and/or empirical proof.
If discrimination is alleged on a ground not listed in section 9(3), the onus is on the person who
alleges discrimination to show that there was discrimination and that it was unfair. See Harksen v
Lane NO & Others 1997 (11) BCLR 1489 (CC); Larbi-Odam & Others v Member of the Executive
Council for Education & Another 1997 (12) BCLR 1655 (CC).
These principles have now been incorporated in the Employment Equity Act. The amended
section 11 of the EEA requires an employer against whom a claim of unfair discrimination on a listed
ground is brought to prove that such discrimination did not take place as alleged or is rational and
not unfair, in other words the differential treatment is justifiable. If unfair discrimination is alleged
on an arbitrary ground in terms of section 6 of the EEA, the employee bears the burden to prove
that the conduct complained of is not rational, that it amounts to discrimination and that it is unfair.
Employment Equity Act 55 of 1998 103

4.3 The objectives of the Employment Equity Act

In the preamble to the Employment Equity Act (EEA) the need for anti-discriminatory and
affirmative action measures is recognised. The principal objective of the EEA is to achieve equity in
employment through promoting equal opportunities and fair employment practices. This can be
done through the elimination of unfair discrimination and the implementation of affirmative action
to redress disadvantages experienced by people from designated groups. The purpose is to ensure
that these people enjoy equitable representation in all occupational levels of an employer’s
workforce (s 2).
To achieve this objective the Act requires employers to eliminate unfair discrimination in their
employment policies and practices. Furthermore, designated employers must prepare and
implement employment equity plans. An equity plan must contain specific affirmativeaction
measures to achieve equitable representation at all occupational levels. Designated employers must
further take measures to progressively reduce disproportionate income differentials and must
report to the Department of Labour on their implementation and progress of employment equity.
Employers who fail to comply with their employment equity obligations will not be able to contract
with the State.
It is important to distinguish between the aim of employment equity and the manner in which
one goes about achieving it. Whereas the ends of employment equity legislation is largely
uncontroversial, the means of achieving it are not, hence the many constitutional challenges to
certain aspects of the Act, as well as to employers’ interpretation and implementation thereof. For
example, an affirmative action plan that simply amounts to the promotion of blacks and females
without regard to the operational needs of the organisation and without affording non-beneficiaries
any chance whatsoever of competing, may well not pass constitutional muster. See Public Servants’
Association of South Africa & Another v Minister of Justice & Others 1997 (5) BCLR 577 (T); Minister
of Finance v Van Heerden 2004 (6) 121 (CC). Or, an equity plan that has been based on inaccurate
information or on national demographics only and not national and regional demographics may be
declared invalid – see Solidarity & Others v Department of Correctional Services & Others
(POPCRU & Another as amici curiae) 2016 (10) BCLR 1349 (CC).
The ends of employment equity can broadly be described as a situation where all people truly
have an equal opportunity in the workplace. The means to achieve this is by implementing anti-
discrimination measures as well as affirmative-action measures and are covered in Chapter 2 (the
prohibition of unfair discrimination) and Chapter 3 (affirmative action) of the EEA.

4.4 Application of the Employment Equity Act

The EEA applies to all employees and employers, the only exclusions being members of the National
Defence Force, the National Intelligence Agency, the South African Secret Service, the South African
National Academy of Intelligence and the directors and staff of Comsec. The employees excluded
from the Act can bring unfair discrimination matters before the Constitutional Court or lodge
complaints with the Human Rights Commission.
The Act binds the State.
Chapter 2 of the Act, which prohibits unfair discrimination, applies to all employees and
employers. All employers must take steps to promote equal opportunities in the workplace and to
eliminate unfair discrimination in employment policies and practices. Job applicants are, for the
purposes of Chapter 2, regarded as “employees” and can rely on the provisions of Chapter 2 if they
allege that their non-appointment to a post was based on unfair discrimination.
Chapter 3 of the Act requires affirmative action to be implemented and applies to “designated
employers” and people from “designated groups” only.
104 A Practical Guide to Labour Law

A designated employer is:

• a person who employs 50 or more employees;
• a person who employs fewer than 50 employees, but has a total annual turnover that is equal to
or above the applicable annual turnover of a small business in terms of Schedule 4 to this Act;
• a municipality;
• an organ of State, but excluding local spheres of government, the National Defence Force, the
National Intelligence Agency and the South African Secret Service; and • an employer who, in
terms of a collective agreement, becomes a designated employer to the extent provided for in
the collective agreement.
An employer who is not a designated employer and who is thus excluded from Chapter 3 may
become subject to the provisions thereof in one of the following manners:
• an employer who is not a designated employer may notify the Director General of Labour that it
intends to comply with Chapter 3 as if it were a designated employer (s 14); and • if the Labour
Court decides that an employer has unfairly discriminated against an employee, the Court may
make an order directing an employer to comply with Chapter 3 as if it were a designated
employer (s 50(2)(d)).
Designated groups are:
• black people, which is used in a broad context to include Africans, Coloureds and Indians;1
• women; and
• people with disabilities.
Members of the above designated groups must be citizens of the Republic of South Africa by birth
or descent or by naturalisation. A person must have become a citizen by naturalisation before 27
April 1994 or, if naturalisation was acquired after 26 April 1994, the person was entitled to acquire
citizenship by naturalisation prior to said date, but was precluded by the apartheid policies of the
past.
Although the EEA distinguishes between Africans, Coloureds and Indians and between blacks,
women and people with disabilities, no preferential ranking is specified. No provision is made for
compound groups, such as black women.

4.5 Chapter 2 – Prohibition of unfair discrimination

4.5.1 Meaning of “unfair discrimination”

The Discrimination (Employment and Occupation) Convention No 111 of 1958 of the ILO defines
discrimination as “any distinction, exclusion or preference made on the basis of race, colour, sex,
religion, political opinion, national extraction or social origin, which has the effect of nullifying or
impairing equality of opportunity or treatment in employment and occupation . . . and any
distinction, exclusion or preference in respect of a particular job based on the inherent
requirements thereof shall not be deemed to be discrimination”.
The following is suggested as a general definition of unfair discrimination: discrimination is the
use of irrelevant criteria to distinguish between individuals or groups, which has the purpose or
effect of less favourable consequences for members of one group in relation to those of another or
for one individual in relation to another.
________________________

1 Chinese people have been declared part of the designated groups following the decision in Chinese Association of
South Africa & Others v The Minister of Labour & Others, case no 59251/2007.
In the employment context this definition implies the following:
Employment Equity Act 55 of 1998 105

• any consideration of criteria not related to the employment relationship could constitute
discrimination if the consequences thereof operate to the disadvantage of one or more individuals
or groups or if such a purpose is envisaged. The consequences may be viewed broadly so as to
include purely the negative effect on the victim’s affective well-being; • any distinction based on
the inherent requirements of the job will not be regarded as discrimination. Generally speaking,
fair discrimination requires that the criteria used to differentiate must be relevant to the business
objectives of the organisation and must be effective in achieving these. In Mthembu & Others v
Claude Neon Lights (1992) 13 ILJ 422 (IC) the Court held that an employer is entitled to reward
certain employees for outstanding performance, whilst not rewarding others. This means that
differentiation based on merit is not unfair.

4.5.2 Provisions of Chapter 2

Chapter 2 of the EEA requires every employer to take steps to promote equal opportunities in the
workplace by eliminating unfair discrimination in employment policies and practices. Section 6
prohibits unfair discrimination, directly or indirectly, in any employment policy or practice on one
or more of the following grounds: race, gender, sex, pregnancy, marital status, family responsibility,
ethnic or social origin, colour, sexual orientation, age, disability, HIV status, religion, conscience,
belief, political opinion, culture, language, birth or on any other arbitrary ground (s 6(1)).
“Arbitrary ground” was added to section 6 in the 2013 amendments. In Ndudula & Others v
Metrorail-Prasa (Western Cape) [2017] 7 BLLR 706 (LC) the Labour Court examined the meaning of
“arbitrary ground” and decided that an “arbitrary ground” has not been intended to create a new
category of unfair discrimination, but that it simply refers to an unlisted ground, i.e. a ground that
has not been specifically listed in section 6 (e.g. race, age, disability, etc.). Any discrimination, listed
or not, that affects human dignity and that is not linked to a rational goal constitutes unfair
discrimination. Thus, if differentiation on an arbitrary or unlisted ground affects human dignity it is
unfair discrimination. Of importance is that the employee who alleges discrimination on an arbitrary
ground is required to identify that arbitrary, unlisted ground and plead it in his case (in the CCMA
or Labour Court). Also see Minister of Correctional Services & Others v Duma (2017) 38 ILJ 2487
(LAC); Du Plessis v Rickjon Mining & Engineering (2018) 39 ILJ 1665 (CCMA); Le Roux ‘The
Employment Equity Act: New Amendments Set Problems and Posers’ (2014) 24 Contemporary
Labour Law 1.
Harassment on any one or a combination of the listed grounds is considered a form of unfair
discrimination (s 6(3)). So is a difference in terms and conditions of employment between
employees of the same employer performing the same or substantially the same work or work of
equal value if such differentiation is based, directly or indirectly, on one or more of the grounds
referred to (s 6(4)). The Minister by way of regulation prescribed the criteria and methodology for
assessing “work of equal value”. Employers are required to pay special attention to wage
differentials. Where such differentials are disproportionate or unjustified, an employer has to
implement progressive measures to address them in accordance with the guidelines published by
the Minister, any applicable sectoral determination or by way of collective bargaining.
In terms of the regulations “work of equal value” is defined as work that is the same, substantially
the same or of the same value as other work, as contemplated in regulation 4. Regulation 4
stipulates that work performed by an employee is the same as the work of another employee of
the same employer if their work is identical or interchangeable. Or, work is substantially the same
if the work is sufficiently similar so that the two jobs can reasonably be considered the same. Work
is of the same value as the work of another employee in a different job if the two occupations are
accorded the same value.
In deciding whether work is of equal value, the relevant jobs must be objectively assessed, taking
into account criteria such as the responsibility demanded by the jobs; skills, qualifications
experience and prior learning; physical, mental and emotional effort to perform the work; and the
conditions under which the work is performed (reg 6).
106 A Practical Guide to Labour Law

Differentiation in pay and other conditions of employment may be justified and will not be
considered unfair discrimination if the differentiation is fair and rational and is based on one or a
combination of (reg 7):
• seniority or length of service;
• qualifications, competence or potential that is above the acceptable levels for the job;
• performance or quality/quantity of work (subject to evaluation);
• demotion because of operational restructuring or for any other legitimate reason with-out a
reduction in pay and fixing an employee’s salary until the pay of other employee’s reaches the
same level;
• temporary employment in order to allow an employee to gain experience or receive training;
• shortage of relevant skills or the market value of a particular job classification;
• any other factor that is not discriminatory.
Even before “equal pay for equal work” was specifically introduced into our law as a form of
discrimination the courts considered differential wages for equal work as unfair, unless some
justification existed. In Louw v Golden Arrow Bus Services (Pty) Ltd [2000] 3 BLLR 311 (LC) it was
held that different wages for equal work would be unfair if the motive for paying different wages is
direct or indirect discrimination. In Mangena & Others v Fila South Africa (Pty) Ltd & Others [2009]
12 BLLR 1224 (LC) the Labour Court observed that, in order to succeed in a claim arising from wage
differentials, the employee must identify the relevant comparator and prove that the work is the
same or of equal value and, further, that the wage differential is based on a ground as listed in
section 6(1) of the EEA.
In more recent judgments, decided after the EEA was amended to include the equal pay issues,
the Labour Court held, in Pioneer Foods (Pty) Ltd v Workers Against Regression (WAR) and Others
[2016] 9 BLLR 942 (LC), that pay differentiation on the grounds of length of service does not
constitute unfair discrimination on an arbitrary ground. In Mzobe v Fencerite (Pty) Ltd (2016) 37
ILJ 1767 (CCMA) the CCMA held that the assessment whether work was “of the same, similar or of
equal value” should be based on the considerations listed in regulation 4 of the EEA, such as
responsibility, skills and effort required to perform it. Also see Govender v Umgungundlovo
Municipality (2016) 37 ILJ 724 (CCMA).
Two forms of discrimination are not considered unfair and are consequently allowed: affirmative
action and differentiation based on the inherent requirements of a job (s 6(2)).
Testing of an employee for any medical condition is prohibited, unless legislation permits or
requires testing or where it is justifiable to do so in light of medical facts, employment conditions,
social policy, the fair distribution of employee benefits or the inherent requirements of a job. Testing
for HIV/AIDS is prohibited, unless permitted by the Labour Court.
Psychometric testing is likewise prohibited, unless the test being used has been scientifically
validated as one that provides reliable results, is appropriate for the intended purpose, can be fairly
applied to employees and is not biased against any employee or group. Tests used for psychometric
and similar assessments have to be certified by the Health Professions Council of South Africa or
any other body authorised by law to certify the tests or assessments.

4.5.3 Dispute resolution (s 10)

Any dispute about alleged unfair discrimination, including harassment and “equal pay” disputes,
must be dealt with in terms of Chapter 2 of the EEA. Disputes about alleged unfair dismissals are
dealt with in terms of the LRA even if unfair discrimination is alleged in the context of the dismissal.
A dispute concerning alleged unfair discrimination must be referred to the CCMA (not a
bargaining council) within six months for conciliation. A copy of the referral must be served on every
other party to the dispute and the referring party must satisfy the CCMA that he has made a
reasonable attempt to resolve the dispute. A late referral may be condoned.
Employment Equity Act 55 of 1998 107

The CCMA must attempt to resolve the dispute through conciliation. If the dispute remains
unresolved after conciliation, any party to the dispute may refer it to the Labour Court for
adjudication (or the parties may consent in writing to arbitration by the CCMA.) Since the 2013
amendments to the EEA took effect on 1 August 2014 arbitration of discrimination disputes by the
CCMA is possible under certain circumstances. Instead of approaching the Labour Court any
employee alleging sexual harassment can refer the dispute to the CCMA for arbitration. In all other
cases of alleged unfair discrimination the dispute can be referred to the CCMA instead of to the
Labour Court if the employee earns less than the BCEA threshold (currently R205 433-30). A CCMA
award is appealable to the Labour Court within 14 days from the date of the award.
Sexual harassment disputes:
Adjudication
Arbitration

Refer to CCMA

ANY employee can refer sexual harassment

dispute within 6 months
All other discrimination disputes:
Adjudication Arbitration

Refer to Labour Court Refer to CCMA

Dispute unresolved Dispute unresolved

Conciliation Conciliation

CCMA (not council) CCMA (not council)

ALL employees can refer OR Employees earning below dispute within 6

months BCEA threshold can refer
dispute within 6 months
Where unfair discrimination is alleged on a ground listed in section 6(1) the onus is on the employer
to prove that discrimination did not take place as alleged or that it was rational, justifiable and not
unfair. If unfair discrimination is alleged on an arbitrary ground the employee must prove that the
conduct complained of is not rational, amounts to discrimination and is unfair.

4.6 Chapter 3 – Affirmative action

108 A Practical Guide to Labour Law

4.6.1 Affirmative action measures

Affirmative action measures are measures designed to ensure that suitably qualified persons from
designated groups have equal employment opportunities and are equitably represented at all
occupational levels in the workplace (s 15(1)).
In terms of section 20(3) of the EEA a person may be suitably qualified for a job as a result of any
one or more of the following:
• formal qualifications;
• prior learning;
• relevant experience; or
• the capacity to acquire, within a reasonable time, the ability to do the job.
When determining whether a person is suitably qualified for a job, an employer must review all the
above factors and determine whether that person has the ability to do the job. In the process the
employer may not unfairly discriminate against a person solely on the grounds of a lack of relevant
experience (s 20(4) & (5)).
Affirmative action measures must include:
• measures to identify and eliminate employment barriers, including unfair discrimin-ation, which
adversely affect people from designated groups;
• measures designed to further diversity in the workplace based on equal dignity and respect of
all people;
• making reasonable accommodation for people from designated groups in order to ensure that
they enjoy equal opportunities and are equitably represented in the workplace. “Reasonable
accommodation” means any modification or adjustment to a job or to the working environment
that will enable a person from a designated group to have access to or to participate or advance
in employment; • measures to ensure the equitable representation of suitably qualified people
from designated groups at all occupational levels; and
• measures to retain and develop people from designated groups and to implement appro-priate
training measures.
The latter two measures include preferential treatment and numerical goals, but exclude quotas.
A designated employer is not required to adapt its employment policies and practices in such a
way that the employment, continued employment or advancement of people who are not from
designated groups is no longer possible.

4.6.2 Duties of designated employers

In terms of section 13 a designated employer must:
• consult with its employees;
• conduct a staff analysis or staff audit;
• prepare and implement an employment equity plan; and
• report to the Director-General on progress made in implementing the plan.
• The employer must consult and attempt to reach consensus on the conduct of the staff analysis,
preparation and implementation of the equity plan and the report to be submitted to the Director
General.
CONSULT
(ss 16–18) • The employer must consult with trade unions, workplace forums
and representatives of nonunion employees.
• The employer has to disclose relevant information that will allow effective consultation.
Employment Equity Act 55 of 1998 109

•The employer must

conduct an analysis
ANALYSIS of its employment
(s 19) •practices, policies
and procedures and
identify
employment
barriers.
The analysis must
include a profile of
the workforce
within each
occupational level
and under-
representation
must be identified.
•The employer must
prepare and
implement an
equity plan, which
must include the
following:
– the objectives
to be achieved
for each year of
the plan;
– the affirmative
action
measures to be
implemented;
– the numerical
EQUITY PLAN goals to achieve
(s 20) the equitable
representation
of suitably
qualified
people from
designated
groups within
each
occupational
level, the
timetable
within which
this is to be
achieved and
the strategies
intended to
achieve those
goals;
– the timetable
for each year of
the plan for the
achievement of
objectives other
than numerical
goals;
110 A Practical Guide to Labour Law

– the duration of
the plan (not
shorter than
one year and
not longer than
five years);
– the procedures
for monitoring
and evaluating
the plan and
whether
reasonable
progress is
being made;
– the internal
dispute
resolution
procedures to
resolve disputes
about the
interpretation
or
implementation
of the plan;
– the persons,
including senior
managers,
responsible for
monitoring and
implementing
the plan.
•The plan must be
displayed at the
workplace and made
available to
employees.
continued
Employment Equity Act 55 of 1998 111

employers must submit a report to the

Director General once every year on the
first working day of October or on such
other date as prescribed. • Employers who
become designated employers on or after
the first working day of April in any year
must submit its first report on the first
working day of October the following year.
• An employer who is unable to submit the
report timeously must notify the DG, with
reasons, of such inability before the end of
August of that year.
• The report has to refer to progress made in
the implementation of affirmative action
REPORT TO and must include information on the
DG remuneration and benefits received in
(ss 21 & 22) each occupational level*.
• D • The report is a public document. • A public
e company must publish the report in its
s
annual financial report. • A report in
i
respect of an organ of state is to be tabled
g
in Parliament. • The DG may apply to the
n
Labour Court to have a fine imposed on
a
the employer for failing to submit a report,
t
failing to notify the DG of its inability to
e
submit a report on time or providing false
d
reasons for not submitting a report.
* Where disproportionate income differentials are reflected, the employer must take measures to
progressively reduce such differentials. These measures may include collective bargaining, compliance
with sectoral determinations, applying the norms and benchmarks set by the Employment Conditions
Commission, relevant measures contained in skills development legislation and/or other measures
that are appropriate in the circumstances (s 27). This information may also be requested by trade
unions for collective bargaining purposes (subject to s 16 of the LRA).

4.7 Commission for Employment Equity (Ch 4)

The Commission for Employment Equity (CEE) is established in terms of Chapter 4 of the
Act.
The CEE consists of a chairperson and eight other members appointed by the Minister to hold
office on a part-time basis. The members are nominated by the respective stakeholders in NEDLAC
(s 29).
The CEE is, in the main, an advisory body. It advises the Minister on codes of good practice,
regulations that can or should be made and policy and other matters concerning the EEA. The CEE
may research and report to the Minister on any matter relating to the Act and award employers for
their achievements in furthering the purposes of the Act. The CEE is required to submit an annual
report to the Minister. In performing its functions the CEE may call for written or oral
representations from members of the public (s 32).

4.8 Monitoring, enforcement and legal proceedings (Ch 5)

112 A Practical Guide to Labour Law

In terms of Chapter 5 of the Act employees, trade unions, labour inspectors, the Director General
and the Labour Court play a role in monitoring compliance with the EEA. Any employee or trade
union representative may bring an alleged contravention of the Act to the attention of another
employee, an employer, a trade union, a workplace forum, a labour inspector, the Director General
or the CEE.

4.8.1 Labour inspectors (ss 35–40)

Inspectors have wide powers to ensure compliance with the EEA. These powers include the right
to:
• enter any workplace, question any person and inspect documents, books and the like in an
attempt to establish whether the employer is complying with the provisions of the Act; • request a
written undertaking from an employer to comply with certain matters; and • issue compliance
orders.
A labour inspector may obtain a written undertaking from a designated employer to comply with
the provisions of the Act if reasonable grounds exist to believe that the employer has failed to
consult with employees, conduct an analysis, publish an employment equity report, assign
responsibility to one or more senior managers or inform its employees or to keep records (s 36).
A labour inspector may issue a compliance order to a designated employer if the latter has failed
to consult with employees, conduct an analysis, publish an employment equity report, assign
responsibility to one or more senior managers or inform its employees or to keep records. A
compliance order must set out the name of the employer and the workplaces to which the order
applies, the provisions of the Act which have not been complied with, details of the conduct
constituting non-compliance, any written undertaking given by the employer and its failure to
comply with it, steps the employer is required to take within a specified time to comply and the
maximum fine that may be imposed for non-compliance
(s 37).
A copy of the compliance order must be served on the employer, who must display it at the
workplace to which it applies. The employer must comply with the order within the specified time.
Where an employer fails to comply with the order the Director General may apply to the Labour
Court to have the compliance order made an order of the Labour Court.
A labour inspector may not issue a compliance order if the employer is under review by the
Director General or if the Director General has referred an employer’s failure to comply to the
Labour Court.

4.8.2 The Director General (ss 41–43)

The functions of the Director General fall broadly into two categories, namely to assess compliance
with the EEA and to conduct reviews to determine compliance.
• Assessment of compliance: The Director General may determine whether a designated employer
has made reasonable efforts to implement an equity plan, assess the progress of the plan,
appraise the elimination of barriers which adversely affect people from designated groups and
assess the employer’s compliance with affirmative action measures. In this regard the Director
General may take into account the extent to which suitably qualified people from the designated
groups are equitably represented within each occupational level in the workplace; the
demographic profile of the national and regional economically active population; reasonable
steps taken to train suitable qualified people from the designated groups; reasonable steps taken
to implement its employment equity plan; the progress made in eliminating employment
barriers and reasonable steps taken by employer to promote suitably qualified people from the
designated groups.
• Review: The Director General may conduct a review to determine whether an employer is
complying with the Act. In this regard the Director General may request an employer to submit
Employment Equity Act 55 of 1998 113

a copy of its analysis, equity plan or any other relevant document; request a meeting with an
employer in order to discuss its employment equity plan; request a meeting with any employee,
trade union, workplace forum or any other person who may have relevant information; approve,
subsequent to a review, an employer’s equity plan or make written recommendations to an
employer regarding the equity plan and compliance with the Act. If the employer fails to comply
with a request or recommendation the Director General may apply to the Labour Court for an
order directing the employer to comply or, if the employer fails to justify non-compliance, to
impose a fine.
If the employer notifies the Director General that it does not accept the request or
recommendation, the Director General must institute proceedings in the Labour Court. If
proceedings are not instituted within the prescribed period (90 days in the case of a request and
180 days in the case of a recommendation) the request or recommendation lapses (s 45(2)).

4.8.3 The Labour Court (ss 49–50)

The Labour Court has exclusive jurisdiction to determine any dispute about the interpretation or
application of the Act, except where the Act provides otherwise.
The Labour Court has wide powers to determine disputes under the EEA. The Court may, inter
alia, award compensation or damages, impose a fine for contravention of certain provisions of the
Act, make a compliance order an order of court, order compliance with the Act, direct the CCMA to
conduct an investigation, entertain an appeal submitted by an employer against an order of the
Director-General and review any administrative action provided for in the Act (s 50(1)).
If the Labour Court finds that an employer has unfairly discriminated against an employee, it may
make any appropriate order that is just and equitable in the circumstances, including payment of
compensation or damages by the employer to the employee. The Court may direct the employer to
take steps to prevent the same unfair discrimination or a similar practice from occurring in respect
of other employees. It may also direct an employer (other than a designated employer) to comply
with Chapter 3 as if it were a designated employer (s 50(2)).
If the Court finds the medical testing of an employee justifiable, any appropriate order may be
made and the Court may impose conditions relating to the provision of counselling, the
maintenance of confidentiality, the period during which the authorisation for any testing applies
and the category or categories of jobs or employees in respect of which the authorisation for testing
applies.
If a dispute has been referred to the CCMA and the issue to which the dispute relates also forms
the subject of a referral to the Labour Court by the Director General, the CCMA proceedings must
be stayed until the Labour Court determines the Director General’s referral. If a dispute has been
referred to the CCMA against an employer who is being reviewed by the Director General, the
dispute may not be conciliated or adjudicated until the review has been completed and the
employer has been informed of the outcome (s 46).

4.9 Protection of employee rights (ss 51–52)

Part C of Chapter 5 of the EEA deals with employee rights. No person may discriminate against an
employee who exercises any right conferred by the Act (s 51). For the purposes of this section
“employee” includes a former employee or an applicant for employment.
No person may, for example, prevent an employee from exercising any right or from participating
in any proceedings, prejudice an employee for exercising any right or participating in any
proceedings, prejudice an employee for past, present or anticipated disclosure of information that
he or she is lawfully entitled or required to disclose or favour or promise to favour an employee in
exchange for not exercising any right or not participating in any proceedings.
114 A Practical Guide to Labour Law

A dispute about the interpretation or application of Part C may be referred to the CCMA (not a
bargaining council) for conciliation and, if unresolved, to the Labour Court for adjudication. If all
the parties to the dispute agree, the CCMA may arbitrate the dispute (s 52).

4.10 General provisions

Confidential information: Disclosure of confidential information obtained during the performance

of any function in terms of the Act constitutes a criminal offence, unless such disclosure is required
by law or in terms of a court order and may invite a fine of up to R30 000 (s 59).
Codes of good practice: The Minister may issue any Code of Good Practice and publish it in the
Government Gazette. The codes of good practice are intended to provide employers with
information that may assist them in the implementation of the Act.
Incentives: Every employer who makes an offer to conclude an agreement with any organ of state
to supply services or goods must, if it is a designated employer, comply with Chapters II and III of
the Act or, if it is not a designated employer, comply with Chapter II. In addition, the prospective
contractor must attach to its offer a certificate or declaration of compliance. The certificate of
compliance is issued by the Minister to confirm that the employer has complied with Chapters II
and/or III. A declaration of compliance is made by an employer and verified by the Director-General
to confirm that he has complied with the relevant provisions. The certificate is valid for 12 months
or until the next date on which the employer has to submit its annual equity report, whichever
period is the longer. Failure to comply with the relevant provisions of the Act is sufficient ground for
a rejection of any offer to conclude an agreement or for cancellation of an agreement (s 53).
Sanctions: Schedule 1 sets out the maximum fines that may be imposed for the contravention of
certain provisions of the Act.

Questions

Question 1
Many employment contracts provide for a retirement age of 65 for males and 60 for females.
Discuss the implications of such provisions in light of section 9 of the Constitution, section 6 of the
EEA and section 187 of the LRA. (10)

Question 2
Some employers have separate medical aid funds and group life assurance schemes for its white
and black employees. The economic rationale of this is that the illness and life expectancy profiles
of the two groups differ significantly and as such have a differential impact on the costs of
maintaining these benefits. Could this practice be open to attack on the grounds that it is unfair
discrimination? (15)
Hint: See Leonard Dingler Employee Representative Council & Others v Leonard Dingler (Pty) Ltd
& Others [1997] 11 BLLR 1438 (LC).

Question 3
Assume that the Department of Correctional Services has a minimum job specification that all
prison guards should be at least 1,7 metres tall. Assume further that national statistics from the
Department of Central Statistical Services show that such a requirement excludes 33,3% of women
compared to 1,3% of men. An application by a female for a job at a high security prison for the
criminally insane is rejected on the grounds that she does not meet the minimum height
Employment Equity Act 55 of 1998 115

requirement. Discuss whether the Correctional Services regulation amounts to unfair

discrimination. (10)
Hint: Discuss indirect discrimination and the difference between providing a rational basis for
discrimination and adducing empirical proof of the relationship between a job specification and the
inherent requirements of a particular job.

Question 4
John, a homosexual employee working for XYZ Company, wishes to challenge his employer’s refusal
to have the rules of its medical aid fund amended to allow the admission of John’s life partner as a
dependant to the fund. Give your comments on the chances of John succeeding in his claim based
on unfair discrimination. (10)
Hint: See Langemaat v Minister of Safety and Security & Others 1998 (4) BCLR 444 (T).

Question 5
Andy wishes to join a newly established private airline company, Highrise Airlines (Pty) Ltd, as a
cabin crew member. His application is turned down because Highrise Airlines caters for a niche
market of young executives (predominantly male) whom they contend prefer to be served their on-
board drinks and snacks by scantily clad female stewardesses. Hence, so their argument goes, their
policy of employing only females as cabin attendants is a business necessity. Discuss Andy’s
prospects of being successful in claiming unfair discrimination and the airline’s defence. (10)

Question 6
Mary applied for a job with a small advertising agency. She was by far the best-qualified applicant
for the job, but she was also eight months pregnant (and very obviously so) when she presented
herself for the selection interview. Her application was unsuccessful and she referred a dispute
about her non-appointment to the CCMA for conciliation and then to the Labour Court for
adjudication. Will she succeed in claiming unfair discrimination? (10)
Hint: See Whitehead v Woolworths (Pty) Ltd (1999) 20 ILJ 2133 (LC); Woolworths (Pty) Ltd v
Beverley Whitehead [2000] 6 BLLR 640 (LAC); Wallace v Du Toit (2006) 27 ILJ 1754 (LC).

Question 7
A forty-year old male applies for a position as chief engineer with a large construction company.
The job specifications state that a job applicant should at least hold a degree in civil engineering,
be registered as a professional engineer and have 10 years’ appropriate experience, four in a
managerial capacity. The applicant has a national diploma in civil engineering from a university of
technology and has 10 years’ experience as a site engineer. Assume that, in recognition of his prior
learning and experience, he can obtain a degree in civil engineering within one year and register as
a professional engineer one year later.
7.1 Assume that this applicant is not appointed. Write a brief in support of his application to the
Labour Court, challenging the employer’s failure to appoint him by reference to appropriate
provisions of the EEA. (10)
7.2 Assume that the applicant is a coloured man and he is appointed. Assume further that one of
the company’s white male employees, an assistant chief engineer with 10 years’ experience,
also applied for the position which, had he been successful, would have been a promotion
for him. The unsuccessful white male applicant approaches you to challenge the
appointment of the external applicant on the basis that it amounts to unfair discrimination
or, alternatively, that it constitutes an unfair labour practice. Evaluate both bases of your
client’s claim and describe the applicable procedures to be followed in each case. (20)
Hint: See George v Liberty Life Association of Africa Ltd [1996] 8 BLLR 985 (IC).

Question 8
116 A Practical Guide to Labour Law

A company advertises the position of an administrative department head. The advertisement

requires a candidate to be in possession of a code 8 driver’s licence in order to be considered. In
terms of the company’s employment policies preference must be given to internal applicants. Two
female employees of the company, one white and one black, apply for the position. Both are able
to do the job in question. The black applicant is invited to an interview and is appointed despite the
fact that she does not have a driver’s licence. The white woman, who has a driver’s licence, claims
that the failure to appoint her is unfair. Advise her on the validity of her claim. (10)
Hint: See NUTESA v Technikon Northern Transvaal [1997] 4 BLLR 467 (CCMA).

Question 9
In comparison with other job applicants Thabo is clearly the best qualified and experienced person
for the job. He is not appointed because of his obesity. The recruitment officer informs him that the
company does not have place for a 300 kg freak. Thabo’s obesity does not have any known medical
cause; he is simply very fat.
9.1 Can Thabo challenge his non-appointment on the basis of unfair discrimination against obese
people? If so, how will a claim of unfair discrimination based on obesity rather than on race
or gender influence legal proceedings? (5)
9.2 Assume that Thabo applied for a position as a flight attendant with SA Airlink. He was not
appointed because the employer argued that it was an inherent requirement of the job that
flight attendants are small and thin in order to fit into the small cabin of the aeroplanes. Will
Thabo succeed in his claim of unfair discrimination? (5)

Question 10
Tom applied to SAA for employment as a cabin attendant. He went through a four-stage selection
process and was found, together with eleven other applicants, to be a suitable candidate for
employment. This decision was subject to a pre-employment medical examination which included
a blood test for HIV/AIDS. He was found to be clinically fit. However, his blood test showed that he
was HIV-positive. He was, therefore, regarded as unsuitable for employment as a cabin attendant
and was not employed. Explain whether Tom’s nonappointment amounts to discrimination. (10)
Hint: See Hoffmann v SA Airways (2000) 21 ILJ 2357 (CC); Joy Mining Machinery (A division of
Harnischfeger (SA) (Pty) Ltd) v NUMSA & Others (2002) 11 LC 6.12.1; Allpass v Mooikloof Estates
(Pty) Ltd t/a Mooikloof Equestrian Centre (2011) 32 ILJ 1637 (LC).

Question 11
Rooster Chickens is a franchise business with numerous fast food outlets around the country. In
terms of the franchise agreement every franchise holder is required to own at least three outlets.
Mr Khumalo owns three outlets in the Durban area and employs some 15 employees at each outlet.
The annual turnover of each of the three outlets ranges between R2m and R3m every year. (The
prescribed minimum turnover for this type of business is R2m p.a.)
11.1 Briefly explain whether the outlets owned by Mr Khumalo are “designated employers”. (2)
11.2 Assume that the outlets are designated employers. Name and briefly explain the duties of a
designated employer as regards the implementation of affirmative action. (8)
11.3 Mr Khumalo decides to renovate the outlet in Umlazi. The building is painted in the colours of
the South African flag, the flag serves as the logo of the business and a new slogan is adopted:
“Chicken for the rainbow nation”. He advertises for a manager of the revamped outlet.
Several candidates apply and eventually Ms Zuma is appointed. She has no experience as
manager of a food outlet (or of any other business whatsoever) and she has a diploma in
medical technology. When they hear about Ms Zuma’s appointment, Ms Van der Merwe and
Mr Naidoo, who both applied for the position, claim that they have been unfairly
discriminated against. Ms Van der Merwe has a diploma in marketing and 12 years’
experience as a manager at various outlets of Kentucky Fried Chicken. Mr Naidoo has a
BComm degree and has managerial experience in a large company and in the head office of
Employment Equity Act 55 of 1998 117

Spur Steak Ranches, totalling seven years. When Mr Naidoo and Ms Van der Merwe raise the
issue of unfair discrimination, Mr Khumalo claims that he had to appoint a Zulu-speaking
person because his customers at the Umlazi outlet are predominantly Zulu people.
(a) Did Mr Khumalo unfairly discriminate against Ms Van der Merwe and
Mr Naidoo? Explain. (5)
(b) Is Mr Khumalo’s claim that he had to appoint a Zulu speaking person valid?
Briefly explain. (2)
(c) Do Mr Naidoo and Ms Van der Merwe as job applicants have access to the dispute resolution
mechanisms established under the EEA? (2)
(d) Assume that they do have such access. Explain the procedures they must follow to have
their dispute resolved. (5)

Question 12
Ms Van der Merwe, a white female, was appointed on a fixed-term contract at Coega Water Board.
The fixed-term contract was initially for two months, but was then renewed, again for two months
and thereafter for another eight months. Ms Van der Merwe was an exceptionally good worker and
developed a programme for water purification that saved the Water Board many thousands of
rands. Towards the end of her fixed-term contract the Water Board decided to make her position a
permanent one and advertised it as such. Ms Van der Merwe unsuccessfully applied for the
position. A black female employee, working for the Water Board in another department, was
appointed to the position. Ms Van der Merwe claimed that she had been discriminated against.
Discuss the validity or otherwise of her claim. Include in your answer the dispute resolu-
tion procedure that she can follow to have her dispute resolved. (10)
Hint: Biggs v Rand Water (2003) 24 ILJ 1957 (LC).

Question 13
Mr B Marley is employed by the Department of Correctional Services. He is a Rastafarian and wears
his long hair in dreadlocks. The Department has a strict dress code and expects all employees to
adhere to this code. In terms of the dress code male employees must wear their hair “short back
and sides” and female employees must tie up their hair. Mr Marley has been instructed on
numerous occasions to cut his hair, but he refuses to do so. He maintains that his religion requires
this type of hairstyle. The Department disagrees with him and insists that he cut his hair as other
Rastafarians have done. If he continues to refuse, he will face dismissal. Mr Marley argues that the
Department is discriminating against him because of his religion and maintains that he will not cut
his hair because his hairstyle is part of him and it will infringe his dignity if he were to spoil his
appearance.
13.1 Consider both the employer’s and Mr Marley’s arguments and explain whether the employer
is unfairly discriminating against Mr Marley. (10)
13.2 Mr Marley is convinced that the Department is discriminating against him and wishes to have
the dispute resolved. Explain the dispute resolution procedures that he will have to follow to
have the dispute resolved. Include any prescribed time frames that may be applicable. Keep
in mind that the majority of disputes arising in the Department have to be referred to the
General Public Service Sectoral Bargaining Council. (7)
13.3 Assume that Mr Marley was dismissed because of his refusal to cut his hair. He maintains his
claim of unfair discrimination. How will the dispute resolution procedures in this case differ
from your answer in 13.2 ? Explain. (5)
Hint: See Department of Correctional Services & Another v Police & Prisons Civil Rights Union &

Others (2011) 32 ILJ 2629 (LAC).

Question 14
118 A Practical Guide to Labour Law

Three highly qualified white inspectors at the Explosives Unit of the SAPS approach you for advice.
The SAPS Employment Equity Plan classified them as members of a non-designated group. The
inspectors applied for vacant positions reserved for people from designated groups. Although there
were no applications from anyone from the designated groups, the inspectors were still refused
promotions. The SAPS contends that their non-appointment was not unfair because it took place
according to the affirmative-action plan as contained in the employment plan of the SAPS. The
inspectors, however, are of the opinion that their non-appointment amounted to unfair
discrimination. Advise your clients by referring to applicable provisions and case law. (6)
Hint: See Coetzer & Others v Minister of Safety and Security & Another (2003) 24 ILJ 163 (LC);
Solidarity obo Barnard v SA Police Service (2010) 31 ILJ 742 (LC); SAPS v Solidarity obo Barnard
[2014] ZACC 23 (CC).

Question 15
Study the advertisement below and then answer the question that follows.
MARABA PANELBEATERS – MATHIBENG

Vacancies : One panel

beater Duties : Repair of
vehicles
The successful candidate must:
(a) be a member of the Christian faith
(b) be a qualified panel beater
(c) not be older than 25 years
(d) be fluent in Afrikaans
(e) not be blacklisted because of debt. Closing date for applications: 8 April 2015

Send a complete CV to:

The Manager
Maraba Panel beaters
PO Box 204
MATIBENG
Ruska Radiv approaches you for advice. He claims that he is being unfairly discriminated against
because he is a Muslim, 32 years old, in his final year as apprentice, fluent in English only and on
the blacklist because of debt.
Advise Ruska on the possibility that he is being unfairly discriminated against. (10)

Question 16
Three Muslim butchers were employed by Saski Butchery because of their “religiosity”: they were
all Muslims who slaughtered chickens according to the halal standards required by the Muslim
Judicial Council. All three declined to work on the Muslim religious holiday Eid ul Fitr. The collective
agreement between the company and the union entitled workers to gazetted public holidays only;
Eid was not such a holiday. Alternative arrangements were not acceptable to the employer because
the rest of the workforce would be affected. After the three butchers failed to work on Eid, they
were found guilty of refusing to work and consequently dismissed. Did the employer unfairly
discriminate against them? (4)
Hint: See Food & Allied Workers Union & Others v Rainbow Chicken Farmers (2000) 21 ILJ 615
(LC).

Question 17
Employment Equity Act 55 of 1998 119

After a successful interview John was offered employment with Easy PC as an information
technology technician. He accepted the position in writing and thereafter advised Easy PC that he
was in the process of undergoing gender reassignment from male to female. Easy PC regarded his
failure to divulge this information at his interview as a serious case of misrepresentation amounting
to dishonesty. In the company’s view his actions amounted to a repudiation of his contract of
employment, which repudiation it accepted and consequently terminated his employment. Do the
actions of Easy PC amount to unfair discrimination? (5)
Hint: See Atkins v Datacentrix (Pty) Ltd (2010) 31 ILJ 1130 (LC).

Question 18
Sandra and her husband worked for a small security company which was run by its owner, Mr Dandy
Man. Sandra resigned and claimed constructive dismissal because, according to her, Mr Dandy Man
had sexually harassed her. His constant harassment had made her working life intolerable. He
continually tried to kiss her and had sent her electronic messages of a sexual nature. During the
subsequent CCMA arbitration of her constructive dismissal dispute the following evidence was led.
Sandra voluntarily and regularly worked overtime to assist Mr Dandy Man. The two often went on
business trips together, sent each other as many as 100 SMSs per week and jogged together almost
daily. Mr Dandy Man’s wife at some stage confronted Sandra and accused her of having an affair
with her husband. Sandra denied the accusation. She then started receiving abusive and sexual e-
mails and Facebook messages which threatened to reveal the “affair” to her husband. She was
convinced that Mr Dandy Man was responsible for these messages and, because she had told him
on numerous occasions to stop his attentions towards her, without success, she resigned. Mr Dandy
Man denied the allegations of sexual harassment because, according to him, they had had a
consensual affair. The affair came to an end when Sandra gave birth to a baby boy. Subsequent
paternity tests showed that her husband was the father of the child. Sandra vehemently denied the
affair, but added that she had had the paternity tests done “to be certain”.
Decide, on the evidence, whether Sandra’s claim of sexual harassment has any substance.
In determining the issue, have regard to the Code of Good Practice on the Handling of Sexual
Harassment Cases. (10)
Appendix 1

Sector or sub-sectors in accordance with the Standard Total annual

Industrial Classification turnover

Agriculture R6 m

Mining and Quarrying R22,5 m

Manufacturing R30 m

Electricity, Gas and Water R30 m

Construction R15 m

Retail and Motor Trade and Repair Services R45 m

Wholesale Trade, Commercial Agents and Allied Services R75 m

Catering, Accommodation and other Trade R15 m

120 A Practical Guide to Labour Law

Transport, Storage and Communications R30 m

Finance and Business Services R30m

Community, Social and Personal Services R15 m

Employment Equity Act 55 of 1998 121

Appendix 2

AMENDED CODE OF GOOD PRACTICE ON THE HANDLING OF

SEXUAL HARASSMENT CASES IN THE WORKPLACE2

1. Introduction
1.1 The objective of this code is to eliminate sexual harassment in the workplace.
1.2 This code provides appropriate procedures to deal with sexual harassment and prevent its
recurrence.
1.3 This code encourages and promotes the development and implementation of policies and
procedures that will lead to the creation of workplaces that are free of sexual harassment, where
employers and employees respect one another’s integrity and dignity, their privacy, and their right
to equity in the workplace.

2. Application of the code

2.1 Although this code applies to the working environment as a guide to employers, employees and
applicants for employment, the perpetrators and victims of sexual harassment may include:
2.1.1 owners
2.1.2 employers
2.1.3 managers
2.1.4 supervisors
2.1.5 employees
2.1.6 job applicants
2.1.7 clients
2.1.8 suppliers
2.1.9 contractors
2.1.10 others having dealings with a business.
2.2 Nothing in 2.1 above confers the authority or obligation on employers to take disciplinary action in
respect of non-employees.
2.3 A non-employee who is a victim of sexual harassment may lodge a grievance with the employer of
the harasser, where the harassment has taken place in the workplace or in the course of the
harasser’s employment.
2.4 Where the term “employee” is used in this code, it will be deemed to include applicants for
employment.

3. Sexual Harassment as a form of unfair discrimination

Sexual harassment in the working environment is a form of unfair discrimination and is prohibited on the
grounds of sex and/or gender and/or sexual orientation.

4. Test for Sexual Harassment

Sexual harassment is unwelcome conduct of a sexual nature that violates the rights of an employee and
constitutes a barrier to equity in the workplace, taking into account all of the following factors:
4.1 whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual
orientation;
4.2 whether the sexual conduct was unwelcome;
________________________

2 GN 1357 in GG 27865 of 4 August 2005, replacing the original Code.

4.3 the nature and extent of the sexual conduct; and
4.4 the impact of the sexual conduct on the employee.
122 A Practical Guide to Labour Law

5. Factors to establish sexual harassment

5.1 Harassment on a prohibited ground
5.1.1 The grounds of discrimination to establish sexual harassment are sex, gender and sexual
orientation.
5.1.2 Same-sex harassment can amount to discrimination on the basis of sex, gender and sexual
orientation.
5.2 Unwelcome conduct
5.2.1 There are different ways in which an employee may indicate that sexual conduct is
unwelcome, including non-verbal conduct such as walking away or not responding to the
perpetrator.
5.2.2 Previous consensual participation in sexual conduct does not necessarily mean that the
conduct continues to be welcome.
5.2.3 Where a complainant has difficulty indicating to the perpetrator that the conduct is
unwelcome, such complainant may seek the assistance and intervention of another person
such as a co-worker, superior, counsellor, human resource official, family member or friend.
5.3 Nature and extent of the conduct
5.3.1 The unwelcome conduct must be of a sexual nature, and includes physical, verbal or non-
verbal conduct.
5.3.1.1 Physical conduct of a sexual nature includes all unwelcome physical contact,
ranging from touching to sexual assault and rape, as well as strip search by or in
the presence of the opposite sex.
5.3.1.2 Verbal conduct includes unwelcome innuendoes, suggestions, hints, sexual
advances, comments with sexual overtones, sex-related jokes or insults, graphic
comments about a person’s body made in their presence or to them,
inappropriate enquiries about a person’s sex life, whistling of a sexual nature and
the sending by electronic means or otherwise of sexually explicit text.
5.3.1.3 Non-verbal conduct includes unwelcome gestures, indecent exposure and the
display or sending by electronic means or otherwise of sexually explicit pictures
or objects.
5.3.2 Sexual harassment may include, but is not limited to, victimisation, quid pro quo
harassment and sexual favouritism.
5.3.2.1 Victimisation occurs where an employee is victimised or intimidated for failing to
submit to sexual advances.
5.2.3.2 Quid pro quo harassment occurs where a person such as an owner, employer,
supervisor, member of management or co-employee, influences or attempts to
influence an employee’s employment circumstances (for example engagement,
promotion, training, discipline, dismissal, salary increments or other benefits) by
coercing or attempting to coerce an employee to surrender to sexual advances.
This could include sexual favouritism, which occurs where a person in authority in
the workplace rewards only those who respond to his or her sexual advances.
5.3.3 A single incident of unwelcome sexual conduct may constitute sexual harassment.
5.4 Impact of the conduct
The conduct should constitute an impairment of the employee’s dignity, taking into account:
5.4.1 the circumstances of the employee; and
5.4.2 the respective positions of the employee and the perpetrator in the workplace.
6. Guiding principles
Employers should create and maintain a working environment in which the dignity of employees is
respected. A climate in the workplace should also be created and maintained in which complainants of
sexual harassment will not feel that their grievances are ignored or trivialised, or fear reprisals.
Implementing the following guidelines can assist in achieving these ends:
Employment Equity Act 55 of 1998 123

6.1 Employers/management and employees are required to refrain from committing acts of sexual
harassment.
6.2 All employers/management and employees have a role to play in contributing towards creating
and maintaining a working environment in which sexual harassment is unacceptable. They should
ensure that their standards of conduct do not cause offence and they should discourage
unacceptable behaviour on the part of others.
6.3 Employers/management should attempt to ensure that persons such as customers, suppliers, job
applicants and others who have dealings with the business are not subjected to sexual harassment
by the employer or its employees.
6.4 Employers/management should take appropriate action in accordance with this code where
instances of sexual harassment occur in the working environment.

7. Sexual Harassment Policies

7.1 Employers should, subject to any existing collective agreements and applicable statutory provisions
in respect of sexual harassment, adopt a sexual harassment policy, which should take cognisance
of and be guided by the provisions of this code.
7.2 The contents of sexual harassment policies should be communicated effectively to all employees.
7.3 The adoption of a sexual harassment policy and the communication of the contents of the policy
to employees, should, amongst other factors, be taken into consideration in determining whether
the employer has discharged its obligations in accordance with the provisions of section 60 (2) of
the Employment Equity Act (EEA).
7.4 Sexual harassment policies should substantially comply with the provisions of this code and include
at least the following statements:
7.4.1 Sexual harassment is a form of unfair discrimination on the basis of sex and/or gender
and/or sexual orientation which infringes the rights of the complainant and constitutes a
barrier to equity in the workplace.
7.4.2 Sexual harassment in the workplace will not be permitted or condoned.
7.4.3 Complainants in sexual harassment matters have the right to follow the procedures in the
policy and appropriate action must be taken by the employer.
7.4.4 It will be a disciplinary offence to victimise or retaliate against an employee who in good
faith lodges a grievance of sexual harassment.
7.5 The procedures to be followed by a complainant of sexual harassment and by an employer when
sexual harassment has occurred, should be outlined in the policy.

8. Procedures
Employers should develop clear procedures to deal with sexual harassment. These procedures should
enable the resolution of problems in a sensitive, efficient and effective way.
8.1 Reporting sexual harassment
8.1.1 Section 60(1) of the EEA provides that conduct in contravention of the EEA must
immediately be brought to the attention of the employer.
8.1.2 In instances of sexual harassment, the word “immediately” shall mean as soon as is
reasonably possible in the circumstances and without undue delay, taking into account the
nature of sexual harassment, including that it is a sensitive issue, that the complainant may
fear reprisals and the relative positions of the complainant and the alleged perpetrator in
the workplace.
8.1.2 Sexual harassment may be brought to the attention of the employer by the complainant or
any other person aware of the sexual harassment, for example a friend, colleague or human
resources official acting on the request of the complainant, where the complainant has
indicated that she/he wishes the employer to be made aware of the conduct. However,
where the sexual harassment is of a particularly serious nature, the complainant should be
encouraged to inform the employer.
8.2 Obligations of the employer
124 A Practical Guide to Labour Law

When sexual harassment has been brought to the attention of the employer, the employer should:
8.2.1 consult all relevant parties;
8.2.2 take the necessary steps to address the complaint in accordance with this code and the
employer’s policy; and
8.2.3 take the necessary steps to eliminate the sexual harassment.
8.3 The steps to be taken by the employer on receipt of a complaint by a complainant, should include
but not be limited to the following:
8.3.1 advising the complainant of the informal and formal procedures available to deal with the
sexual harassment, as set out in items 8.5, 8.6 and 8.7 of this code;
8.3.2 where reasonably practicable, offering the complainant advice, assistance and counselling
as set out in item 8.4 of this code, including during any disciplinary enquiry that may be
instituted; and
8.3.3 following the procedures required by items 8.5, 8.6 and 8.7 of this code, in a manner that
is procedurally and substantively fair.
8.4 Advice and assistance
8.4.1 A complainant of sexual harassment may require advice and assistance, including
counselling.
8.4.2 As far as is practicable, employers should designate a person outside of line management
who complainants may approach for confidential advice and/or counselling. Such person:
8.4.2.1 could be a person employed by the employer to perform such a function, a trade
union representative, a co-employee or a professional engaged to perform such
activity;
8.4.2.2 should have the appropriate skills and experience, including counselling and
labour relations skills; and
8.4.2.3 should be properly trained and given adequate resources.
8.5 Advising the complainant of workplace procedures to deal with sexual harassment
8.5.1 When an incident of sexual harassment is brought to the attention of an employer, such
employer should:
8.5.1.1 advise the complainant that there are formal and informal procedures which
could be followed to deal with the problem;
8.5.1.2 explain the formal and informal procedures to the complainant;
8.5.1.3 advise the complainant that she/he may choose which procedure should be
followed by the employer, except that in certain limited circumstances, as set out
in clause 8.7.2, the employer may choose to follow a formal procedure even if the
complainant does not wish to do so;
8.5.1.4 re-assure the complainant that she/he will not face job loss or any adverse
consequences if she/he chooses to follow either the formal or informal
procedure;
8.5.1.5
advise the complainant that the matter will be dealt with confidentially if the
complainant so chooses.
8.6 Informal procedures
8.6.1 A complainant of sexual harassment may choose to follow either of the following informal
procedures:
8.6.1.1 the complainant or another appropriate person explains to the perpetrator that
the conduct in question is not welcome, that it offends the complainant, makes
him or her feel uncomfortable and that it interferes with his or her work; or
Employment Equity Act 55 of 1998 125

8.6.1.2
an appropriate person approaches the perpetrator, without revealing the identity
of the complainant, and explains to the perpetrator that certain forms of conduct
constitute sexual harassment, are offensive and unwelcome, make employees
feel uncomfortable, and interfere with their work.
8.6.2 An employer should consider any further steps, which can be taken to assist in dealing with
the complaint.
8.7 Formal procedure
8.7.1 A complainant may choose to follow a formal procedure, either with or without first
following an informal procedure.
8.7.2 In the event that a complainant chooses not to follow a formal procedure, the employer
should still assess the risk to other persons in the workplace where formal steps have not
been taken against the perpetrator. In assessing such risk the employer must take into
account all relevant factors, including the severity of the sexual harassment and whether
the perpetrator has a history of sexual harassment. If it appears to the employer after a
proper investigation that there is a significant risk of harm to other persons in the
workplace, the employer may follow a formal procedure, irrespective of the wishes of the
complainant, and advise the complainant accordingly.
8.7.3 The employer’s sexual harassment policy and/or collective agreement should outline the
following in respect of a formal procedure: 8.7.3.1 with whom the employee should lodge
a grievance;
8.7.3.2 the internal grievance procedures to be followed, including provision for the
complainant’s desired outcome of the procedures;
8.7.3.3 time frames which will allow the grievance to be dealt with expeditiously;
8.7.3.4 that should the matter not be satisfactorily resolved by the internal procedures
outlined above, a complainant of sexual harassment may refer the dispute to the
Commission for Conciliation Mediation and Arbitration (CCMA). Similarly an
alleged perpetrator of sexual harassment may refer a dispute arising from
disciplinary action taken by the employer to the CCMA; and
8.7.3.5 that it will be a disciplinary offence to victimise or retaliate against a complainant
who in good faith lodges a grievance of sexual harassment.
8.8 Disciplinary sanctions
The employer’s sexual harassment policy should specify the range of disciplinary sanctions that may be
imposed on a perpetrator. The sanctions must be proportionate to the seriousness of the sexual
harassment in question, and should provide that: 8.8.1 warnings may be issued for minor instances
of sexual harassment;
8.8.2 dismissal may ensue for continued minor instances of sexual harassment after warnings, as
well as for serious instances of sexual harassment;
8.8.3 in appropriate circumstances upon being found guilty of sexual harassment, a perpetrator
may be transferred to another position in the workplace.

9. Confidentiality
9.1 Employers and employees must ensure that grievances about sexual harassment are investigated
and handled in a manner that ensures that the identities of the persons involved are kept
confidential.
9.2 In cases of sexual harassment, management, employees and the parties concerned must
endeavour to ensure confidentiality in the disciplinary inquiry. Only appropriate members of
management as well as the aggrieved person, representatives, alleged perpetrator, witnesses and
interpreter if required should be present in the disciplinary inquiry.
9.3 Employers are required to disclose to the complainant, the perpetrator and/or their
representatives, such information as may be reasonably necessary to enable the parties to prepare
for any proceedings in terms of this code.

10. Additional sick leave

126 A Practical Guide to Labour Law

10.1 Where an employee’s existing sick leave entitlement has been exhausted, the employer should give
due consideration to the granting of additional paid sick leave in cases of serious sexual
harassment, where the employee, on medical advice, requires trauma counselling.
10.2 In appropriate circumstances, employers may give consideration to assisting with the cost of the
medical advice and trauma counselling, where such amounts are not covered by any applicable
medical aid scheme.

11. Information and education

11.1 Where feasible, the Department of Labour should endeavour to ensure that copies of this code are
accessible and available in the official languages.
11.2 Employers and, where applicable, employer organisations should include the issue of sexual
harassment in their orientation, education and training programs.
11.3 Trade unions should include the issue of sexual harassment in their education and training
programs for shop stewards and employees.
11.4 CCMA commissioners should receive specialised training to deal with sexual harassment cases.
Employment Equity Act 55 of 1998 127

Appendix 3

Code of Good Practice on HIV and AIDS and the world of work
GN 451 – Government Gazette 35435 – 15 June 2012
PREAMBLE
HIV and AIDS continue to negatively impact on the livelihoods of millions of persons living with or affected
by the epidemic in South Africa. Within the world of work, HIV and AIDS impact severely on productivity
as a consequence of ill health resulting in increased absenteeism, low morale, and increased staff
turnover due to early deaths and possibly a change in markets and demands for services.
In 2000 South Africa published a Code of Good Practice on Key Aspects of HIV and AIDS and Employment
(the Code) in line with the Employment Equity Act. The Code’s primary objective was to guide employers,
workers and trade unions to develop and implement HIV and AIDS workplace policies and programmes.
The Code was intended to protect and promote mutual respect, dignity and the workers’ rights through
the elimination of unfair discrimination against people living with or affected by HIV and AIDS.
This Code has been utilised and referred to extensively in the development and implementation of HIV
and AIDS workplace Policies and Programmes. It has also been taken into account in some of the
judgments by the Courts in cases of unfair discrimination in relation to HIV.
Subsequent to the adoption of the International Labour Organization (ILO) Recommendation concerning
HIV and AIDS and the World of Work, 2010 (No. 200), South Africa as a member state took a decision to
review its Code and align it to the ILO Recommendation. The revised Code seeks to assist employers,
workers and their organisations in developing appropriate responses in order to manage HIV and AIDS,
TB and STIs in the world of work within the framework of decent work in both the formal and informal
sectors and in the public and the private sectors.
In line with the ILO Recommendation No. 200, this Code provides for further emphasis on the
fundamental human rights of all workers, including the principle of gender equality and the broadening
of the scope to cover all those involved in the world of work.

1. DEFINITIONS
In this Code, unless the context indicates otherwise:
“Affected Persons” : means persons whose lives are changed by HIV and AIDS owing to
the broader impact of the pandemic;
“AIDS” : means Acquired Immunodeficiency Syndrome which results from
advanced stages of HIV infection and is characterised by
opportunistic infections or HIV-related cancers, or both;
“CCMA” : means the Commission for Conciliation, Mediation and Arbitration;

“Confidentiality” : means the right of every person, worker, job applicant, jobseekers,
interns, apprentices, volunteers and laid-off and suspended workers
to have their information, including medical records and HIV status
kept private;
“Counselling” : means a confidential interactive session between a professional and
a client aimed to explore and identify the risks of the client to HIV
and AIDS;
“EAP” : means Employee Assistance Programme offered by many employers
which is intended to help workers deal with personal problems that
might adversely impact their work performance, health, and well-
being;
“the Act” : means the Employment Equity Act, 1998 (Act No. 55 of 1998);
128 A Practical Guide to Labour Law

“HIV” : means the Human Immunodeficiency Virus, a virus that weakens the
human immune system;
continued
Employment Equity Act 55 of 1998 129

“Informed consent” : means a process of obtaining consent from a patient/worker to ensure that the person
fully understands the nature, implications and future consequences
of the HIV test before such person consents to take the test;
“PLHIV” : means persons living with HIV;
“Post Exposure Prophylaxis” : means antiretroviral, including medicines that are taken after exposure or
possible exposure to HIV. The exposure may be occupational, as in a
needle stick injury, or non-occupational, as in unprotected sex with a
person with HIV infection. The latter is sometimes referred to as Non
Occupational-Post Exposure Prophylaxis;
“Reasonable Accommodation” : means any modification or adjustment to a job or to the working environment
that enables a person living with HIV and AIDS to have access to or
participate or advance in employment;
“STIs” : means Sexually Transmitted Infections which are spread by the
transfer of organism from person to person during sexual contact e.g.
syphilis;
“Stigma” : means the social mark which, when associated with a person, usually causes marginalisation or
presents an obstacle to the full enjoyment of social life by the person
living with or affected by HIV and AIDS;
“TB” : means tuberculosis which is an infectious disease characterised by the growth of nodules (tubercles) in
the tissues, especially the lungs. Tuberculosis is more common in
persons with immune system problems such as HIV and AIDS;
“Unfair Discrimination” : means any distinction, exclusion or preference which has the
effect of nullifying or impairing equality of opportunity or treatment
in employment or occupation;
“VCT” : means Voluntary Counselling and Testing, which provides the opportunity for the client to confidentially
explore and understand his or her HIV risks and to learn his or her
HIV status with the support of a counsellor;
“Vulnerability” : means the unequal opportunities, social exclusion, unemployment or precarious employment,
resulting from the social, cultural, political and economic factors that
make a person more susceptible to HIV infection and to developing
AIDS;
“Worker” : means any person working under any form or arrangement;
“Workplace” : means any place where workers work;
“World of Work” : means a working environment in which persons are in some way or another associated with
and also includes persons as reflected in Clause 4 of this Code.

2. INTRODUCTION
2.1 HIV and AIDS are a serious public health challenge which has socio economic, employment and
human rights implications.
2.2 HIV poses a significant obstacle to the attainment of decent work and sustainable development.
It has led to the loss of the livelihoods of millions of persons living with or affected by HIV and
AIDS. Its effects are concentrated among the most productive age groups and it imposes huge
costs on enterprises through falling productivity, increased labour costs and the loss of skills and
experience.
2.3 HIV and AIDS affect every workplace, with prolonged staff illness, absenteeism, and death, which
impacts on productivity, employee benefits, occupational health and safety, production costs,
workplace morale and escalating HIV associated with TB and STIs.
2.4 HIV thrives in an environment of poverty, rapid urbanisation, violence and destabilisation.
Transmission is exacerbated by disparities in resources and patterns of migration from rural to
130 A Practical Guide to Labour Law

urban areas. Women are particularly more vulnerable to infection in cultures and economic
circumstances where they have limited sexual reproductive choices and rights.
2.5 Through this Code, the country commits to mitigate the impact of the epidemic in the world of
work taking into account all relevant Conventions of the International Labour Organization,
including Recommendation No. 200.
2.6 One of the most effective ways of reducing and managing the impact of HIV and AIDS in the
workplace is through the implementation of workplace HIV and AIDS policies and programmes.
Addressing aspects of HIV and AIDS in the workplace will enable employers, workers and their
organisations and government to actively contribute towards local, national and international
efforts to prevent and control HIV and AIDS.
2.7 Every person should take personal responsibility in relation to HIV and AIDS to educate
themselves, prevent transmission, seek available treatment and treat others with dignity and
respect. All persons have the responsibility to support the achievement of the objectives of this
Code.
2.8 Partnerships between government, employers, workers and their organisations and other
relevant stakeholders are encouraged to ensure effective delivery of services and increased
coverage.

3. OBJECTIVES OF THE CODE

The primary objective of this Code is to provide guidelines to assist employers, workers and their
organisations to develop and implement comprehensive gender sensitive HIV and AIDS workplace
policies and programmes. These policies and programmes must be developed within the framework
of decent work in the formal and informal sectors in both the public and private sectors to –
(a) eliminate unfair discrimination and stigma in the workplace based on real or perceived
HIV status, including dealing with HIV testing, confidentiality and disclosure;
(b) promote access to education, equitable employee benefits and employment
protection;
(c) manage grievance procedures in relation to HIV and AIDS;
(d) create a safe and healthy working environment;
(e) promote appropriate and effective ways of managing HIV and AIDS and TB in the
workplace; and
(f) give effect to the international and regional obligations of the Republic of South Africa
on HIV and AIDS and TB in the world of work.

4. SCOPE OF THE CODE This Code applies to:

4.1 All workers working under all forms or arrangements, and at all workplaces, including –
(a) persons in any employment or occupation;
(b) those in training, including interns and apprentices;
(c) volunteers;
(d) jobseekers and job applicants; and (e) laid-off and suspended workers.
4.2 All sectors of economic activity, including the private and public sectors and the formal and
informal economies.
4.3 Armed forces and uniformed services.
5. KEY PRINCIPLES
The guiding principles in this Code are based on International Conventions and Recommendations, The
Constitution of the Republic of South Africa and national laws, which include:
Employment Equity Act 55 of 1998 131

5.1 Respect for human rights, fundamental freedoms and equality

The response to HIV and AIDS must be recognised as a contributing factor to the realisation of human
rights, dignity, fundamental freedoms, responsibility and equality for all, including workers and
their dependants.
5.2 HIV and AIDS is a workplace issue
HIV and AIDS is a workplace issue and must be treated like any other serious illness or condition in the
workplace. HIV and AIDS must be included among the essential elements of the national,
provincial, local and sectoral response to the pandemic with full participation of all
stakeholders.
5.3 Reduce HIV-related stigma and unfair discrimination and promote equality of opportunity
and fair treatment
Elimination of unfair discrimination remains a key principle for protection of the rights of individuals.
There must be no unfair discrimination against or stigmatisation of workers on the grounds of
real or perceived HIV status. It is the responsibility of every worker and employer to eliminate
unfair discrimination in the workplace.
5.4 Gender Equality
Women and girls are at greater risk and more vulnerable to HIV infection and are disproportionately
affected by HIV compared to men as a result of gender inequality. Women’s empowerment is
a key factor in responding to HIV and AIDS and the world of work. Measures must be taken in
the world of work to ensure gender equality, prevent violence and harassment, protect sexual
and reproductive health and rights and involve men and women workers, regardless of their
sexual orientation, in the HIV response.
5.5 The right to access and continue in employment
Real or perceived HIV status is not a valid cause for termination of employment. Workers with HIV-
related illness must not be denied the possibility of continuing to carry out their work unless
proven medically unfit to do so. As with many other conditions, workers with HIV and AIDS
must be reasonably accommodated and be able to work for as long as medically fit. Medical
examination should be limited to the capacity of a worker to perform the task(s) of a particular
job.
5.6 Prevention
Prevention of all modes of HIV transmission and TB is a fundamental priority for the country. In keeping
with this principle the workplace must facilitate access to comprehensive information and
education to reduce the risk of HIV transmission and HIV-TB co-infection and STIs.
5.7 Treatment, Care and Support
Treatment, care and support services on HIV and AIDS must be accessible to all workers and their
dependants. All workers must have access to affordable health services, social security,
insurance schemes or other employment-related benefits either through the employer, the
State or non-governmental organisations. Programmes of care and support must include
measures of reasonable accommodation in the workplace for persons living with HIV or HIV-
related illnesses.
5.8 Social Dialogue/Consultations
Implementation of policies and programmes on HIV and AIDS should be based on cooperation and trust
amongst government, employers and workers and their representatives. Employers and
workers should engage in the design, implementation and evaluation of national and
workplace programmes, with the active involvement of persons living with HIV and AIDS.
5.9 Occupational Health and Safety
132 A Practical Guide to Labour Law

The workplace must be safe and healthy for all workers, and they must benefit from programmes to
prevent specific risks of occupational transmission of HIV and related transmissible diseases,
such as TB, especially in jobs most at risk, including the health care sector.

5.10 Testing, Confidentiality and Disclosure

Workers and their dependants must enjoy protection of their privacy, including confidentiality relating
to their own HIV status or that of their co-workers. Workers must not be required to undergo
HIV testing or other forms of screening for HIV unless found to be justified by the Labour Court.
The results of HIV testing must be confidential and not endanger access to jobs, tenure, job
security or opportunities for advancement.

6. LEGAL FRAMEWORK
6.1 This Code must be read in conjunction with The Constitution of the Republic of South Africa,
1996 (Act No. 108 of 1996) and all relevant legislation as amended, which includes –
(a) Basic Conditions of Employment Act, 1997 (Act No. 75 of 1997);
(b) Compensation for Occupational Injuries and Diseases Act, 1993 (Act No. 130 of
1993);
(c) Employment Equity Act, 1998 (Act No. 55 of 1998);
(d) Labour Relations Act, 1995 (Act No. 66 of 1995);
(e) Occupational Health and Safety Act, 1993 (Act No. 85 of 1993);
(f) Unemployment Insurance Act, 2001 (Act No. 63 of 2001);
(g) Children’s Act, 2005 (Act No. 38 of 2005);
(h) Medical Schemes Act, 1998 (Act No. 131 of 1998);
(i) Mine Health and Safety Act, 1996 (Act No. 29 of 1996);
(j) National Health Act, 2003 (Act No. 61 of 2003);
(k) Occupational Diseases in Mines and Works Act, 1973 (Act No. 78 of 1973);
(l) Promotion of Access to Information Act, 2000 (Act No. 2 of 2000); and
(m) Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act No.
4 of 2000).
6.2 The contents of this Code must be taken into account when developing, implementing or
reviewing any workplace policies or programmes and must be read in conjunction with the
following legislative provisions as amended –
6.2.1 In accordance with both the common law and Section 14 of The Constitution of the Republic of
South Africa, all persons with HIV and AIDS have a right to privacy, including privacy concerning
their HIV status. Accordingly, there is no general legal duty on a worker to disclose his or her HIV
status to his or her employer or to other workers;
6.2.2 This Code is issued in terms of section 54(1)(a) of the Employment Equity Act
and is based on the principle that no person may be unfairly discriminated against on
the basis of real or perceived HIV status;
6.2.3 Section 6(1) of the Employment Equity Act provides that no person may unfairly
discriminate against a worker or an applicant for employment, in any employment
policy or practice, on the basis of his or her HIV status;
6.2.4 Section 6(3) of the Employment Equity Act prohibits harassment of a worker based on his or her
HIV status. Measures must be adopted at the workplace to reduce the transmission of HIV and
AIDS to alleviate its impact by ensuring actions to prevent and prohibit violence and harassment
in the workplace;
Employment Equity Act 55 of 1998 133

6.2.5 Section 7(2) of the Employment Equity Act prohibits testing of a worker to determine that
worker’s HIV status unless such testing is determined to be justifiable by the Labour Court in
terms of section 50(4) of the Employment Equity Act;
6.2.6 In accordance with section 187(1)(f) of the Labour Relations Act, a worker with HIV and AIDS must
not be dismissed based on his or her HIV and AIDS status;
6.2.7 In terms of section 8(1) of the Occupational Health and Safety Act, an employer is obliged to
provide a safe workplace;
6.2.8 Sections 2(1) and 5(1) of the Mine Health and Safety Act provide that an employer is required to
create a safe workplace;
6.2.9 A worker who is infected with HIV as a result of an occupational exposure to
infected blood or bodily fluids must apply for benefits in terms of section 22(1) of the
Compensation for Occupational Injuries and Diseases Act;
6.2.10 In accordance with the Basic Conditions of Employment Act, every employer is
obliged to ensure that all workers receive certain basic standards of employment,
including the minimum number of sick leave days (section 22(2));
6.2.11 In accordance with section 24(2)(e) of the Medical Schemes Act, a registered
medical aid scheme must not unfairly discriminate directly or indirectly against its
members on the basis of their “state of health”;
6.2.12 In accordance with section 20 of the Unemployment Insurance Act, every employer is obliged to
ensure that all workers are able to exercise their right to illness benefits;
6.2.13 Section 20(1) of the National Health Act states that Health Care personnel must not be unfairly
discriminated against on account of their health status. However, the head of the health
establishment concerned, subject to any applicable law and in accordance with any guidelines
determined by the Minister, may impose conditions on the service that may be referred by a
health care provider or health care worker on the basis of his or her health status;
6.2.14 In terms of section 13(1)(b) of the Children’s Act, every child has the right to have access to
information regarding his or her HIV Status;
6.2.15 In accordance with section 16(5) of the Labour Relations Act an employer is not required to
disclose the HIV status of a worker unless that worker consents to the disclosure of his or her HIV
status;
6.2.16 Sections 37(1) and 63(1) of the Promotion of Access to Information Act provide
that employers must not disclose the HIV status of a worker unless that worker agrees
to or consents to the disclosure of his or her HIV status;
6.2.17 In terms of section 1(c) of the Occupational Diseases in Mines and Works Act, TB is a compensable
disease where it is found, in the opinion of the certification committee, that a person contracted
such disease while the person was performing risk work or where such person was already
affected at any time within the twelve month period immediately following the date on which
that person performed such work for the last time; and
6.2.18 According to section 99(3) of the Occupational Diseases in Mines and Works Act, where the
certification committee has found that a person is suffering from TB which is attributable partly
to HIV but not mainly to work at a mine or works and where such person is not in receipt of full
benefits for the TB in terms of the Compensation for Occupational Injuries and Diseases Act, or
any other law, such person may receive benefits not exceeding one half of the benefits provided
for in terms of the Occupational Diseases in Mines and Works Act.

7. ELIMINATION OF UNFAIR DISCRIMINATION AND PROMOTION OF EQUAL

OPPORTUNITY AND TREATMENT
Policies and programmes must respect national guidelines on Counselling, HIV Testing, Confidentiality
and Disclosure.
7.1 Counselling and Informed Consent
134 A Practical Guide to Labour Law

7.1.1 HIV testing of workers must be provided with informed consent and proper counselling. Where
employers or workers facilitate provision of HIV testing facilities, they must ensure a conducive
environment for counselling.
7.1.2 Pre-Test counselling should take place prior to a worker being tested to determine his or her HIV
status.
7.1.3 Post-Test counselling should take place to determine whether a worker has tested negative or
positive. Proper procedures should be followed in advising the worker on the next steps,
depending on the HIV test results.
7.1.4 No employer may require a worker or an applicant for employment to undertake an HIV test in
order to ascertain that worker’s HIV status. Testing must be with consent and voluntary.

7.2 HIV Testing

7.2.1 Authorisation for mandatory HIV testing of workers may only be obtained from the Labour Court
in terms of section 7(2) of the Employment Equity Act.
7.2.2 Mandatory Testing for HIV is not a requirement in the world of work, including the following
circumstances –
(a) during an application for employment;
(b) as a condition of employment;
(c) during procedures related to termination of employment; and
(d) as an eligibility requirement for training or staff development programmes.
7.2.3 Anonymous, unlinked surveillance or epidemiological HIV testing in the workplace may occur
provided it is undertaken in accordance with ethical and legal principles. The information
obtained must not be used to unfairly discriminate against workers. Testing will not be considered
anonymous if there is a reasonable possibility that a worker’s HIV status can be deduced from
the results.

7.3 Confidentiality and Disclosure

7.3.1 All persons, including those with HIV and AIDS have the legal right to privacy. A worker is therefore
not legally required to disclose his or her HIV status or related medical information to his or her
employer or to other workers.
7.3.2 The results of HIV testing must be confidential and not endanger access to jobs, tenure, job
security or opportunities for advancement.
7.3.3 Where a worker chooses to voluntarily disclose his or her HIV status to the
employer or to other workers, this information must not be disclosed to others without
the worker’s express written consent. Where written consent is not possible, steps
must be taken to confirm that the worker wishes to disclose his or her HIV status.
7.3.4 Mechanisms must be created to encourage openness, acceptance and support for those
employers and workers who wish to voluntarily disclose their HIV status within the workplace.
7.3.5 Access to personal data relating to a worker’s HIV status and related medical data must be bound
by the rules of confidentiality consistent with the relevant national laws.

7.4 Reasonable Accommodation

7.4.1 Section 15(2)(c) of the Employment Equity Act requires employers to provide reasonable
accommodation for all workers, including persons living with HIV and AIDS, in order for them to
access and enjoy equal employment opportunities.
7.4.2 The obligation to make reasonable accommodation may arise when a worker
voluntarily discloses his or her HIV status.
7.4.3 Employers must also accommodate workers when the work or the work environment changes or
impairment varies which affects the worker’s ability to perform the essential functions of the job.
7.4.4 Reasonable accommodation includes but is not limited to –
Employment Equity Act 55 of 1998 135

(a) adapting existing facilities to make them accessible;

(b) adapting existing equipment or acquiring new equipment including
computer hardware and software;
(c) re-organising workstations;
(d) changing training and assessment materials and systems;
(e) restructuring jobs so that non-essential functions are re-assigned;
(f) adjusting working time and leave; and
(g) providing specialised supervision, training and support in the workplace.
7.5 Employee Benefits
7.5.1 Workers with HIV and AIDS must not be unfairly discriminated against in the allocation of
employee benefits.
7.5.2 Where an employer offers a medical benefit, that employer must ensure that this benefit does
not unfairly discriminate, directly or indirectly, against any worker on the basis of his or her real
or perceived HIV status.
7.5.2.1 There should be no unfair discrimination against workers or their
dependants based on real or perceived HIV status to access social security
systems and occupational insurance schemes or in relation to benefits under
such schemes, including health care and disability, death and survivor’s
benefits.

7.6 Grievance Procedures

7.6.1 Grievance mechanisms and procedures must be easily accessible to ensure effective redress in
cases of violation.
7.6.2 Employers must make workers aware of the grievance procedures, particularly to address unfair
discrimination relating to HIV in the workplace.
7.6.3 Employers should ensure that the rights of workers with regard to HIV and AIDS, TB and other
illnesses and the remedies available to them in the event of a breach of such rights become
integrated into existing grievance procedures.
7.6.4 Where all internal dispute resolution process has been exhausted and the grievance remains
unresolved, any party to the dispute may refer the dispute to the CCMA for the unfair
discrimination within six months in terms of section 10(2) of the Employment Equity Act.

7.7 Termination of Employment

7.7.1 Real or perceived HIV status in itself is not a valid cause for termination of employment. Workers
with HIV-related illness must not be denied the opportunity of continuing to carry out their work.
7.7.2 Where a worker has become too ill to perform his or her current work, an employer is obliged to
explore alternatives, including reasonable accommodation and redeployment.
7.7.3 Where a worker has become too ill to perform his or her current work, an employer is obliged to
follow accepted guidelines regarding dismissal for incapacity before terminating a worker’s
services, as set out in the Code of Good Practice on Dismissal contained in Schedule 8 of the
Labour Relations Act.
7.7.4 The employer must ensure that as far as possible, the worker’s right to confidentiality regarding
his or her HIV status is maintained during any incapacity proceedings. A worker must not be
compelled to undergo an HIV test or to disclose his or her HIV status as part of such proceedings
unless the Labour Court has authorised such a test.
7.7.5 Where a worker alleges unfair dismissal for HIV and AIDS, he or she should refer the matter to
the CCMA for unfair dismissal in terms of section 185 or 187 of the Labour Relations Act within
30 days of the dismissal.

8. PROMOTING A HEALTHY AND SAFE WORKING ENVIRONMENT

136 A Practical Guide to Labour Law

Prevention strategies must be adapted to national conditions and the type of workplace and must take
into account gender, cultural, vulnerable populations, social and economic concerns.

8.1 Prevention Programmes

Workplace prevention programmes must ensure –
(a) that accurate and up to date relevant and timely information is made available
and accessible to all in a culturally sensitive format and language through the different
channels of communication available;
(b) comprehensive education programmes to help women and men understand and
reduce the risk of all modes of HIV transmission. This must include mother-tochild
transmission and to understand the importance of changing risk behaviours
related to infection;
(c) effective occupational safety and health measures, including harm-reduction
strategies;
(d) measures to encourage workers to know their own HIV status through voluntary
counselling and testing;
(e) access to all means of prevention, including male and female condoms, medical
male circumcision, elimination of mother-to-child transmission and where
appropriate information about correct use and the availability of post-exposure
prophylaxis; and
(f) effective measures to reduce high-risk behaviours, including for the most at-risk
groups with a view to decreasing the incidence of HIV and AIDS.

8.2 Treatment, Care and Support

8.2.1 Employers must ensure that workplace policies and programmes pertaining to health
interventions are determined in consultation with workers and their representatives and should
be linked to public health services.
8.2.2 Employers must ensure that those workers and their dependants living with HIV and AIDS-related
illnesses benefit from access to health care, whether this is provided under public health, social
security systems or private insurance or other schemes.
8.2.3 All persons covered by this Code, including workers and their dependants living
with HIV and AIDS, must be entitled to health services in terms of clause 8.2.2 of this
Code including access to free or affordable –
(a) voluntary counselling and testing;
(b) antiretroviral treatment and adherence education, information and support;
(c) nutrition consistent with treatment requirements;
(d) treatment for opportunistic infections and STIs, and any HIV-related
illnesses, in particular tuberculosis; and
(e) support and prevention programmes including psychosocial support.
8.2.4 Programmes of care and support must include measures of reasonable accommodation in the
workplace for workers living with HIV or HIV-related illnesses.
8.2.5 Care and support are critical elements that must guide a workplace in responding to HIV and
AIDS. Mechanisms must be created to encourage openness, acceptance and support for workers
infected and affected by HIV and AIDS and to ensure that they are not unfairly discriminated
against nor stigmatised.
8.2.6 Workplaces must endeavour to provide counselling and other forms of social support to workers
infected and affected by HIV and AIDS. Where health-care services exist at the workplace,
appropriate treatment must be provided. Where these services are not possible, workers must
be informed about the location of available outside services.
Employment Equity Act 55 of 1998 137

8.2.7 Workers with HIV and AIDS must be treated no less favourably than workers with other serious
illnesses in terms of benefits, workers’ compensation and reasonable accommodation.
8.2.8 Workers with HIV and AIDS should be encouraged to use expertise and assistance from within
the organisation for counselling. Where this is not available, employers may then acquire the
necessary assistance and expertise from the outside.

8.3 Occupational Health and Safety

8.3.1 An employer is obligated to provide and maintain a workplace that is safe and without risk to the
health of its workers.
8.3.2 HIV and AIDS must form an integral part of any workplace Occupational Health and Safety
strategy.
8.3.3 The working environment must be safe and healthy in order to prevent transmission of HIV and
TB in the workplace.
8.3.4 Every workplace must ensure that it complies with the provisions of the Occupational Health and
Safety Act, including the Regulations on Hazardous Biological Agents and the Mine Health and
Safety Act. Every workplace must also ensure that its policy deals with, amongst others, the risk
of transmission, appropriate training, awareness, education on the use of universal infection
control measures so as to identify, deal with and reduce the risk of HIV transmission in the
workplace.
8.3.5 All workers must be made aware of the procedures to be followed in applying for compensation
for occupational infections and diseases and the reporting of all occupational accidents.
8.3.6 Health and safety measures adopted at the workplace to prevent workers’ exposure to HIV and
TB and to minimise the risk of such workers contracting HIV and TB, must include universal
precautions, accident and hazard prevention strategies, work practice control, personal
protective equipment, environmental control measures and post exposure prophylaxis.
8.3.7 Employers, workers and their organisations must take responsibility for contributing towards a
safe and healthy working environment as per the Occupational Health and Safety Act.

8.4 Children and Young Persons

8.4.1 Government, employers and workers, including their organisations, must adopt appropriate
measures to combat child labour and child trafficking that may result from the death or illness
of family members or caregivers due to HIV and AIDS and to reduce the vulnerability of children
to HIV and AIDS and TB. This is considered in view of the relevant International, Regional and
National standards on Fundamental Principles and Rights of children and young persons. Special
measures must be taken to protect these children from sexual abuse and sexual exploitation.
8.4.2 Measures must be taken to protect children and young workers against HIV and TB infection. Such
measures must include the special needs of children and young persons in the response to HIV
and AIDS in national, provincial, local, sectoral and workplace policies and programmes. These
should include objective sexual and reproductive health education, in particular the
dissemination of information on HIV and AIDS through vocational training and in youth
employment programmes and services.
9. MANAGEMENT OF HIV AND AIDS IN THE WORKPLACE

9.1 Assess the impact of HIV and AIDS in the Workplace

Employers, trade unions and employees must develop and effectively implement integrated gender
sensitive strategies to respond to the impact of HIV and AIDS, including TB and STIs, in the
workplace. This must be done as far as possible in cooperation with national, provincial, local
and sectoral initiatives, including –
(a) impact assessment that includes risk profiling, resource implications,
environmental assessment, vulnerability and susceptibility to HIV infection; and
(b) the development and implementation of HIV and AIDS workplace policies and
138 A Practical Guide to Labour Law

programmes that are free from unfair discrimination and promote human rights.

9.2 Developing HIV and AIDS Workplace Programmes

In developing and implementing long and short term measures to deal with and
reduce this impact, the following must be taken into account –
(a) compliance with legal obligations;
(b) management commitment;
(c) consultation with relevant stakeholders;
(d) development and effective implementation of HIV and AIDS and TB Workplace
Policies, Prevention and Wellness Programmes;
(e) resources, including human, financial and operational resources must be allocated
for the effective development and implementation of policies and programmes;
(f) policies and programmes must be informed by the outcomes of research and
evidence; and
(g) monitoring and Evaluation of HIV and AIDS policies and programmes must be put
in place.

9.3 Education, Training and Information

All social partners have the responsibility to promote education, training and information about HIV and
AIDS in the world of work.
9.3.1 Training, safety instructions and any necessary guidance in the workplace related to HIV and AIDS
must be provided in a clear and accessible form for all workers.
9.3.2 Training, instructions and guidance must be sensitive to gender and cultural concerns and
adapted to the characteristics of the workforce, taking into account the risk factors for the
workforce.
9.3.3 Up to date scientific and socio-economic information and, where appropriate, education and
training on HIV and AIDS must be available to employers and workers’ representatives, in order
to assist such employers and workers’ representatives to make informed decisions and take
appropriate measures in the workplace.
9.3.4 Workers including the most vulnerable must receive awareness raising information and
appropriate training on HIV infection control procedures in the context of workplace accidents
and first aid. All Workers, including those whose jobs put them at risk of exposure to human
blood, blood products and other body fluids must receive additional training in exposure
prevention, exposure registration procedures and post-exposure prophylaxis.
9.3.5Workers and their representatives must be informed and consulted on measures taken to
implement workplace policies and programmes related to HIV and AIDS, TB and other related
illnesses.
10. MONITORING AND EVALUATION (M&E)
10.1 Employers and workers, including their organisations, should –
(a) design and implement a HIV and AIDS workplace M&E plan that includes
strategies to address TB and STIs in the world of work;
(b) identify the key elements needed to make the M&E system work;
(c) select and make use of indicators that are specific, measurable, attainable,
relevant and time-bound; and
(d) gather and analyse qualitative and/or quantitative information and communicate
it effectively.
Employment Equity Act 55 of 1998 139

10.2 Employers in collaboration with the workers must establish monitoring and evaluation
mechanisms for workplace programmes in order to track implementation and strategically
respond to the epidemic.
10.3 Data should be disaggregated in order to prioritise targeted intervention measures.
10.4 The monitoring mechanism strategies should take into account and support the national
monitoring and evaluation efforts that relates to curbing HIV and AIDS, TB and STIs.
10.5 Small businesses that are not in a position to have sophisticated monitoring and evaluating
mechanisms in place must adopt simple strategies to monitor and evaluate the HIV and AIDS, TB
and STIs programmes in order to track implementation.
 5
UNEMPLOYMENT INSURANCE LAW

5.1 Introduction

The Unemployment Insurance Act of 1966 was repealed and replaced by the Unemployment Insurance
Act 63 of 2001 and the Unemployment Insurance Contributions Act 4 of 2002, both of which came into
operation on 1 April 2002. Significant amendments were introduced by the Unemployment Insurance
Amendment Act 10 of 2016, which took effect on 19 January 2017. Further amendments have been
included in the Labour Laws Amendment Act 10 of 2018. This
Act, save for sections 9 and 10 thereof, has not yet come into operation.1
Like its predecessor, the 2001 Unemployment Insurance Act provides for the payment of benefits in
cases of unemployment, illness, maternity, adoption and qualifying dependants. Once the Labour Laws
Amendment Act of 2018 takes effect more benefits will be added. It will be possible for parents to claim
parental benefits or commissioning parental benefits.
The purpose of the Unemployment Insurance Act (UIA) is set out in section 2:
The purpose of this Act is to establish an unemployment insurance fund to which employers and employees
contribute and from which employees who become unemployed or their beneficiaries, as the case may be, are
entitled to benefits and in doing so to alleviate the harmful economic and social effects of unemployment.
The purpose of the Unemployment Insurance Contributions Act (UICA) is to provide for the payment of
contributions for the benefit of the Unemployment Insurance Fund and procedures for the collection of
such contributions.
The Unemployment Insurance Fund and Unemployment Insurance Board, established under the 1966
Act, have been abolished and a new Fund and Board have been established in terms of the 2001 UIA. The
income of the Fund is derived mainly from contributions made by employers and employees.
The Unemployment Insurance Commissioner and claims officers are appointed to consider and
process claims for benefits.

5.2 Definitions (s 1)

Some of the more important definitions in the UIA are:

“contributor” means a natural person –
(a) who is or was employed;
(b) to whom this Act, in terms of section 3, applies; and
(c) who can satisfy the Commissioner that he or she has made contributions for purposes of
this Act;
“child” means a person as contemplated in section 30(2) [a dependent child of a deceased contributor]
who is under the age of 21 years and includes any person under the age of 25 who is a learner and who
is wholly or mainly dependent on the deceased;
________________________
Unemployment insurance law 141

1 As at the date of going to print (June 2019).

135
“domestic worker” means an employee who performs domestic work in the home of his or her employer,
and includes a – (a) gardener;
(b) person employed by a household as a driver of a motor vehicle; and
(c) person who takes care of any person in that home, but does not include a farm
worker;
“employee” means any natural person who receives remuneration or to whom remuneration accrues in
respect of services rendered or to be rendered by that person, but excludes any independent contractor;
“employer” means any person, including a person acting in a fiduciary capacity, who pays or is liable to
pay to any person any amount by way of remuneration, and any person responsible for the payment of
any amount by way of remuneration to any person under the provisions of any law or out of public
funds, excluding any person who is not acting as a principal;
“remuneration” means “remuneration” as defined in section 1 of the Unemployment Insurance
Contributions Act (UICA). In terms of the latter remuneration means “remuneration” as defined in
paragraph 1 of the Fourth Schedule to the Income Tax Act, but does not include any amount paid or
payable to an employee –
(a) by way of any pension, superannuation allowance or retiring allowance;
(b) which constitutes an amount contemplated in paragraphs (a), (cA), (d), (e) or (eA) of the definition
of “gross income” in section 1 of the Income Tax Act; or (c) by way of commission. (This definition is
found in the UICA).
Once the Labour Laws Amendment Act of 2018 takes effect, some definitions will be inserted into
section 1 of the UIA. The following deserve mention:
“adoption order” means an adoption order as envisaged in the Children’s Act 38 of 2005;
“prospective adoptive parent” means a person who complies with the requirements set out in section 231 (2) of
the Children’s Act.

5.3 Application of the Unemployment Insurance Act (s 3)

Prior to the amendments that took effect in January 2017 the UIA applied to all employers and
employees, with a limited number of exclusions. Those excluded from the UIA were employees
employed for fewer than 24 hours per month, some learners employed in terms of the Skills
Development Act 97 of 1998, officers and employees in the national and provincial spheres of
government and persons who worked in the country for a limited period and specific purpose.
The amendments changed the application of the UIA significantly. The Act now applies to all
employers and employees and only the following are excluded:
• employees employed for fewer than 24 hours per month with a particular employer and their
employers;
• members of Parliament, cabinet ministers, deputy ministers, members of provincial executive
councils, members of provincial legislatures and municipal councillors.

5.4 Framework of the Unemployment Insurance Act

5.4.1 Unemployment Insurance Fund

In terms of Chapter 2 (ss 4–11) of the UIA the Unemployment Insurance Fund is created to provide
for the payment of benefits. The Fund derives its income from contributions by employers and
employees, monies appropriated by Parliament and several other sources. The Fund is used for the
payment of benefits, reimbursement of excess contributions to employers, payment of
remuneration and allowances to members of the Unemployment Insurance Board, the financing of
142 A Practical Guide to Labour Law

the retention of contributors in employment, the re-entry of contributors into the labour market
and any other scheme aimed at vulnerable workers.
The Director General is the accounting authority of the Fund and has to appoint an actuary to
review the actuarial value and the financial soundness of the Fund annually.

5.4.2 Unemployment Insurance Board

The Unemployment Insurance Board is established by the Minister in terms of section 47 of the UIA.
The Unemployment Insurance Board consists of a chairperson and 12 voting members appointed
by the Minister and the Unemployment Insurance Commissioner. The 12 voting members are
nominated by NEDLAC to represent organised labour, organised business, organisations
representing community and development interests and the State.
The Unemployment Insurance Board must advise the Minister on unemployment insurance
policy, policies for minimising unemployment and the creation of schemes to alleviate the effects of
unemployment and make recommendations to the Minister on changes to legislation in so far as it
impacts on policy on unemployment or policy on unemployment insurance.
The Commissioner is responsible for administering the affairs of the Board.

5.4.3 Unemployment Insurance Commissioner

The Minister must, in terms of section 43 of the Act, designate an employee of the Department of
Labour as the Unemployment Insurance Commissioner. The Commissioner is responsible for
administering the affairs of the Unemployment Insurance Board and is ex officio a member of the
Board.
The Commissioner must, inter alia, submit to the Director General a report on the activities of
the Unemployment Insurance Fund. The Commissioner may deem a person to be a contributor for
purposes of this Act if it appears that the person should have received benefits but, because of
circumstances beyond the control of that person, is not entitled to benefits (s 45).

5.4.4 Claims officers

Subject to the laws governing the Public Service, the Director General must, in terms of section 46,
appoint claims officers to assist the Commissioner in processing applications for benefits under the
UIA. The claims officers are employees of the Department of Labour.

5.4.5 Director General

The Director General has varied powers and functions to oversee the administration of the UIA and
the activities of the Unemployment Insurance Fund.

5.5 Benefits (Ch 3)

5.5.1 Right to benefits

Chapter 3 of the UIA regulates the payment of benefits and prescribes the conditions and
requirements that must be complied with in order to qualify for benefits. Chapter 3 also determines
the circumstances in which a person will not receive or forfeit benefits.
In terms of section 12(1) of the UIA a contributor is entitled to unemployment benefits, illness
benefits, maternity benefits or adoption benefits and a dependant of a deceased contributor is
entitled to dependants’ benefits. Once the Labour Laws Amendment Act of 2018 takes effect,2 a
contributor will also be entitled to parental benefits or commissioning parental benefits.
A domestic worker who is employed by more than one employer and who loses one job is,
despite still being employed by another employer(s), entitled to benefits if his total income falls
below the benefit level that he would have received had he become completely unemployed (s
12(1A)). For the purposes of calculating the benefits for the domestic worker in these circumstances,
Unemployment insurance law 143

the total income derived from continued employment plus the amount of benefits calculated may
not exceed the benefits that would have been paid if the contributor had become wholly
unemployed. This means that the unemployment benefits will be paid as a “top-up” so that the
benefits payable to the employee together with the wages still being earned will not exceed 100%
of the employee’s wages had he been fully employed.
A contributor employed in any sector who loses income due to reduced working time (“short
time”) is, despite still being employed, entitled to benefits if his total income falls below the benefit
level that he would have received if he had become wholly unemployed (s 12(1B)).
Unlike the 1966 Act, a person who earns in excess of the threshold amount determined by the
Minister from time to time is, in terms of the 2001 Act, entitled to benefits (and must contribute to
the fund), but benefits will be calculated as if the contributor earns the threshold amount. Currently
the threshold is R212 539 per annum (or R17 712 per month and R4 087 per week) (Government
Gazette no 40691, GN 231 of 17 March 2017).
In terms of section 14 a contributor is not entitled to benefits for any period that he:
• fails to comply with any provision of the UIA or any other law relating to unemployment; or
• is suspended from receiving benefits.
The Unemployment Insurance Commissioner may suspend a contributor or a dependant for a
period of up to five years from receiving benefits if he submitted a false or fraudulent claim, failed
to inform a claims officer of the resumption of work or failed to repay, on demand, any benefits that
were paid in error to him or her (s 36(1)). The decision to suspend a contributor from receiving
payments does not absolve an employer from its duty to contribute to the Fund.

5.5.2 Calculation of benefits

A contributor’s entitlement to benefits accrues at a rate of one day’s benefit for every completed
four days of employment as a contributor, subject to a maximum accrual of 365 days’ benefit in the
four-year period immediately preceding the day after the last date of the employment period (s
13(3)(a)).
The period of employment is calculated from the day that a contributor commences employment
and runs up to and includes the day on which employment is terminated. Where an employee’s
services are terminated on notice and the employee is paid in lieu of notice instead of working
during the notice period, the notice period forms part of the period of employment. Similarly, where
a merchant seaman receives remuneration in terms of section 140 of the Merchant Shipping Act of
1951, the period in respect of which he received remuneration forms part of the period of
employment (s 13(4)).

________________________

2 As at the date of going to print (June 2019) the Amendment Act has not come into operation, save for ss 9 and 10
thereof that came into operation on 1 March 2019. S 9 of the Amendment Act amends s 13 of the UIA (dealing
with the accrual of benefits) and s 10 amends s 24 of the UIA (dealing with maternity benefits).
Maternity benefits are paid at a fixed rate of 66%. Unemployment, illness, adoption and
dependents’ benefits are paid at a rate between 38% and 60% for the first 238 days and from day
239 up to day 365 at a fixed rate of 20%.
If a contributor has received benefits during the preceding four years the number of days in
respect of which benefits were paid must be subtracted from the total days accrued over the four
years (s 13(6)). However, the total number of days accrued is not affected and may not be reduced
because of the payment of maternity benefits(and when the Labour Laws Amendment Act takes
effect, parental benefits, adoption benefits and commissioning parental benefits). Similarly, the
payment of maternity, adoption, parental and commissioning parental benefits may not affect the
payment of unemployment benefits (s 13(5) & (5A)).
The following guide may be used to calculate the number of days to a contributor’s credit in
order to establish how much benefits he is entitled to:
144 A Practical Guide to Labour Law

Step 1: Determine the total number of days that the contributor was employed and contributing
in the four-year period immediately preceding the date of unemployment.

Step 2: Divide the total number of days by 4, disregarding any fraction of the resultant figure.

Step 3: Subtract from this number the days received in the preceding four-year period (excluding
maternity, parental, adoption or commissioning parental benefits).
Step 4: The resultant figure determines the days of benefits that a contributor is entitled to.

The scale of benefits to which a contributor is entitled is contained in Schedule 3 of the Act and is
calculated in accordance with the formulae in Schedule 2. Benefits are paid on a sliding scale, with
lower income contributors receiving a larger percentage of benefits than higher income
contributors.
For purposes of calculating the benefits payable to a contributor, the daily rate of remuneration
(subject to the prescribed maximum) must be determined. In order to determine the daily rate the
monthly remuneration is multiplied by 12 and divided by 365. Or, if the contributor is paid weekly,
a week’s pay is multiplied by 52 and divided by 365 (s 13(1)). If the contributor’s remuneration
fluctuates significantly from period to period, the calculation must be based on his average
remuneration over the previous six months (s 13(2)).

5.5.3 Unemployment benefits

The provisions relating to unemployment benefits are contained in Part B of Chapter 3 of the UIA
(ss 15–18).

An unemployed contributor is entitled to unem ployment

benefits for any period of unemploy ment lasting more than 14 days

• if the reason for the unemployment is:

– the termination of the contributor’s con- tract of employment by the employer or the
ending of a fixed-term contract;
– the dismissal of the contributor in terms of section 186 of the LRA of 1995;
– insolvency in terms of the Insolvency Act of
1936; or

– in the case of a domestic worker, if the con-

tract was terminated because of the death
of the employer;

• if application is made in accordance with the prescribed requirements;

• if the contributor is registered as a work- seeker with a labour centre
established under
UNEMPLOYMENT the Skills Development Act of 1998;
BENEFITS
• if the contributor is capable of and available (s 16) for work. A contributor
who becomes ill while in receipt of unemployment benefits remains entitled
to unemployment benefits if the claims officer is satisfied that the illness is
not likely to prejudice the contributor’s chance of securing employment;
• an unemployed contributor is not entitled to unemployment benefits if he
or she fails to report at the times and dates stipulated by the claims officer
or if he or she refuses, without just reason, to undergo training and
Unemployment insurance law 145

vocational counselling for employment under any scheme approved by the

DG in terms of the UIA or any other law;
• if the contributor receives unemployment benefits and without just reason
refuses to accept appropriate, available work or to undergo appropriate
training or vocational counselling, the claims officer may impose a penalty
of up to a maximum of thirteen weeks during which no benefits will be paid
to the contributor.

Application for unemployment benefits must be made in the prescribed form and within 12 months
of the termination of the contract of employment. The Commissioner may condone a late
application on just cause shown (s 17(1) and (2)).
The claims officer must investigate the application and, if it complies with the provisions of the
UIA, the claims officer must approve the application, determine the amount of the benefits,
authorise the payment thereof and stipulate when the applicant must report to the employment
office for purposes of confirming that he is capable and available for work and has been unemployed
for the period in respect of which the unemployment benefit has been claimed (s 17(3) and (4)).
If the application does not comply with the provisions of the UIA, the claims officer must advise
the applicant in writing thereof and state the reasons why the application is defective (s 17(5)).
The unemployment benefits must be paid to the contributor at the employment office at which
the application was made or at any other employment office determined by the applicant at the
time of application (s 18).

5.5.4 Illness benefits

The provisions governing illness benefits are contained in Part C of Chapter 3 (ss 19–23) of the UIA. For
purposes of Part C the period of illness must be determined from the date the contributor ceases to work
as a result of the illness.

• A contributor is entitled to illness benefits for any period of illness if:

– he is unable to perform work on account

of illness;
– he fulfils any prescribed requirements in respect of any specified illness; and
ILLNESS – application is made in accordance with the BENEFITS prescriptions of the UIA.
(s 20) • A contributor is not entitled to illness benefits if the period of illness is
less than seven (7) days and for any period during
which he is entitled to unemployment benefits or
adoption benefits. The contributor is further not
entitled to illness benefits if he, without just
reason, refuses or fails to undergo medical
treatment or to carry out the instructions of a
medical practitioner, chiropractor or homeopath.

When illness benefits are calculated, regard must be had to any paid sick leave that was granted to the
contributor in terms of any law, collective agreement or contract of employment. Illness benefits may not
be more than the remuneration the contributor would have received had he not taken ill (s 21). This,
again, refers to a “top-up”, in other words, any remuneration received by the employee together with the
illness benefits may not amount to more than 100% of the employee’s ordinary income.
Application for illness benefits must be made personally in the prescribed form. If the contributor
cannot lodge the application personally, the claims officer may authorise any other person to lodge the
application on behalf of the applicant (s 22(1)).
The application for illness benefits must be made within six months of the commencement of the
period of illness, but the Commissioner may condone a late application on good cause shown (s 22(2)).
The claims officer must investigate the application and, if it complies with the provisions of the UIA,
the application will be approved and the claims officer will authorise payment of the determined amount
of benefits (s 22(3) & (4)).
146 A Practical Guide to Labour Law

If the application does not comply with the prescripts, the applicant must be advised thereof in writing
(s 22(5)).
Illness benefits are paid at the employment office where the application was made or at any other
employment office if so directed by the applicant at the time of application. Payment is made to the
contributor or to any other authorised person (s 23).
5.5.5 Maternity benefits
The provisions relating to maternity benefits are contained in Part D of Chapter 3 (ss 24–26) of the
UIA.
• A contributor who is pregnant is entitled to maternity benefits for any
period of preg nancy or delivery and the period thereafter if application is made in
accordance with the MATERNITY provisions of Part D.
BENEFITS • For the purposes of maternity benefits the
(s 24) maximum period of maternity leave is 17.32 weeks.
• A contributor who has a miscarriage during the third trimester
or bears a still-born child
is entitled to full maternity benefits of 17.32 weeks.
• A contributor is entitled to benefits only if she was in
employment for at least 13 weeks before the date of the
application for benefits.

Maternity benefits are paid at a rate of 66% of the earnings of the contributor as at the date of the
application for benefits (subject to the threshold) (s 12(3)(c)). However, when maternity benefits
are calculated, regard must be had to any paid maternity leave the contributor may have received
in terms of any law, collective agreement or a contract of employment. Maternity benefits may not
be more than the remuneration the contributor would have received if she had not been on
maternity leave (s 24). Again, the maternity benefits are a “top-up” so that any remuneration earned
together with the maternity benefits do not give the employee an income of more than 100% of
her normal income.
An application for maternity benefits must be made in the prescribed form before or after
childbirth, but no later than 12 months after the date of birth of the child (s 25(1)).
A claims officer must investigate the application. If compliant, the application will be approved
and the amount to be paid will be determined (s 25(3) & (4)). If the application is defective, the
claims officer must advise the applicant thereof in writing (25(5)).
Benefits are paid to the contributor at the employment office where the application was made
or at any other employment office, as directed by the applicant at the time of application (s 26).

5.5.6 Parental benefits

The right to parental benefits is a new right that has been introduced by the Labour Laws
Amendment Act of 2018. It finds no application yet as the Amendment Act has not come into
operation.3
Once the Amendment Act takes affect new sections are inserted in the UIA. The new sections
26A–26C (Part DA of Chapter 3) regulate the payment of parental benefits.

________________________

3 As at the date of going to print (June 2019). Ss 9 and 10 of the Amendment Act are in force since March 2019, but
do not deal with parental benefits.
Unemployment insurance law 147

A contributor who is a parent is entitled to parental leave of ten

consecutive days and may then claim parental benefits if the following
conditions are met:
PARENTAL • if the contributor is the registered father of
BENEFITS the child in terms of the Births and Deaths (s 25A) Registration Act of 1992;
• if, in the case of adoption, the child is below the age of
two or such a child is placed in the
care of a prospective adoptive parent pending an
adoption order;
• if a baby is born as a result of a surrogate motherhood
agreement (as defined in the
Children’s Act);
• if the employee has been in employment for at least 13
weeks prior to the application for benefits (whether
having contributed to the Fund or not);
• if application is made in accordance with the prescripts
of Part DA of the UIA;
A parent is disqualified from claiming parental
benefits if he has claimed adoption benefits or
commissioning parental benefits.

In the case of the birth of a child the entitlement to benefits commences on the date the child is
born, whether by way of a natural birth or through a surrogate. Where a young child is adopted, the
right to benefits commences on the date the court hands down the adoption order or the date the
court places the child in the care of the adoptive parent pending the final adoption order (s 26A(2)).
An application for parental benefits must be submitted in the prescribed form within 12 months
after the birth of the child or, in the case of adoption, the earlier date of the adoption order or the
date the child has been placed in the care of the prospective adoption parent (s 26B(1) & (2)).
A claims officer will consider the application and if found compliant, the payment of benefits will
be authorised (s 26(3) & (4)). If the application does not comply with the prescripts of the Act, the
claims officer will advise the applicant accordingly (s 26B (5)).
Parental benefits are 66% of the contributor’s earnings as at the date of application, subject to
the threshold (s 12(3)(cA). However, when parental benefits are calculated and authorised, regard
must be had to any payment the contributor may have received in terms of any law, collective
agreement or a contract of employment (s 26A(3)). The benefits are a “top up”, so that the
contributor will not be enriched by receiving more that the ordinary income.
Parental benefits are paid at the employment office where the application was submitted or at
another employment office if so directed by the applicant at the time of the application (s 26C).

5.5.7 Adoption benefits

The provisions relating to adoption benefits are contained in Part E of Chapter 3 (ss 27–29) of the
UIA.
Only one contributor of the adopting parties is entitled to adoption benefits in respect of each
adopted child (s 27(1)) and only under the following circumstances:

•
if the adopted child is below two years of age;
•
if the child has been adopted in terms of the
ADOPTION Children’s Act of 2005 ;or
BENEFITS
• if the child has been placed in the care of a
(s 27)
prospective adoptive parent pending the final adoption order;4
148 A Practical Guide to Labour Law

•
if the period the contributor was not working was spent caring for
the child;
•
if the application is made in accordance with the prescripts of Part
E of the UIA.

The current legal position is that the entitlement to adoption benefits commences on the date of
the final adoption order (s 27(2)). This will change when the Labour Laws Amendment Act takes
effect. In terms of the amended section 27)(2) the entitlement to adoption benefits commences on
the date of the final adoption order or on the date the child is placed in the care of the prospective
adoptive parent, whichever is the earlier.
Adoption benefits are 66% of the earnings of the contributor at the date of the application for
benefits (s 12(3)(cB)5). Regard must be had to any adoption leave paid to the contributor in terms
of any law, collective agreement or a contract of employment when calculating adoption benefits.
The benefits may not be more than the remuneration the employee would have earned had he
been at work (s 27(4)). The “top-up” principle once again applies.
The following additional conditions will apply once the Labour Laws Amendment Act comes into
operation: for the purposes of adoption benefits, the maximum period of adoption leave is ten
consecutive weeks (new s 27(5)); and, a contributor must have been in employment, whether as a
contributor or not, for at least 13 weeks before the date the application is submitted (new s 27(6)).
In terms of the still applicable section 28(2) an application for adoption benefits must be made
in the prescribed form within six months from the date of the adoption order and condonation may
be granted for a late application. Once the amendments take effect the application must be lodged
within 12 months after the date of the adoption order or the date the child has been placed in the
care of the prospective adoptive parent, whichever date is the earlier.
A claims officer must consider the application. If it complies with all the prescripts, the application
will be approved and payment will be authorised (s 28(4)). An application that is non-compliant
must be brought, in writing, to the attention of the applicant (s 28(5)).
Adoption benefits are paid at the employment office where the application was made or at
another employment office if so directed by the applicant at the time of the application (s 29).

5.5.8 Commissioning parental benefits

The right to commissioning parental benefits is another new right that has been introduced by the
Labour Laws Amendment Act of 2018. It finds no application yet as the Amendment Act has not
come into operation.6
________________________

4 This requirement is new and introduced by the Labour Laws Amendment Act of 2018. Because said Act has not
come into operation yet, this requirement does not find any application as yet.
5 Not yet in operation.
6 As at the date of going to print (June 2019).
Once the Amendment Act takes affect new sections are inserted in the UIA. The new sections
29A–29C (Part EA of Chapter 3) govern commissioning parental benefits.
A contributor who is a commissioning parent in a surrogate motherhood
agreement is entitled to commissioning parental leave of ten consecutive
weeks and may then claim commissioning par-
COMMISSIONING ental benefits if the following conditions are
PARENTAL met:
BENEFITS • if the child has been born as a result of a sur-
(s 29A) rogate agreement as envisaged in the Chil dren’s Act;
• if the period absent from work was spent caring for the
child;
• if the contributor was in employment for at least 13
weeks prior to the application for benefits (whether
having contributed to the Fund or not);
Unemployment insurance law 149

• if application is made in accordance with the prescripts of

Part EA of the UIA;
Only one contributor of the commissioning parents
(if there are two) is entitled to the commissioning
parental benefits. The other parent may apply for
parental benefits.

The entitlement to commissioning parental leave commences on the date the child is born (s
29A(2)).
Application for commissioning parental benefits must be made in the prescribed form within 12
months after the date of childbirth (s 29B(2)). A claims officer will consider the application and may
require additional information. If the application is compliant, the application will be approved and
payment will be authorised (s 29B(4)). If the application is defective, the applicant must be advised
accordingly in writing (s 29B(5)).
Commissioning parental benefits is 66% of the contributor’s earnings as at the date of the
application, subject to the threshold (s 12(3)(cC)). In calculating the benefits the contributor is
entitled to, regard must be had to any commissioning parental leave that was paid in terms of any
law, collective agreement or a contract of employment. The benefits may not be more than the
remuneration the contributor would have received if he had not been on commissioning parental
leave (s 29A(3)).
Payment of the benefits is made at the labour office where application was made or at any other
labour office if so directed by the applicant at the time of the application (s 29C).

5.5.9 Dependants’ benefits

The provisions relating to dependants’ benefits are contained in Part F of Chapter 3 of the UIA (ss
30–32).
• The surviving spouse or life partner of a deceased contributor is entitled to
dependant’s benefits if application is made in the
prescribed manner and within 18 months of the
BENEFITS TO death of the contributor.
DEPENDANTS
(s 30) • If there is no surviving spouse or life partner or the spouse or partner
has not submitted an application within 18
months, any dependent child is entitled to
dependant’s benefits and may apply in the
prescribed manner.
• If there is no surviving spouse, life partner or
dependent children any nominated beneficiary of
the deceased contributor may claim benefits.

The benefit payable to a dependant is the amount of the unemployment benefit that would have
been payable to the deceased contributor if he had been alive (s 30(3)).
An application for dependant’s benefits must be made in the prescribed manner within 18
months after the contributor’s death or, where a dependent child applies for benefits, within 14
days after the expiration of the 18-month period during which the spouse or life partner could have
applied (s 31(2)).
A claims officer will consider the application and, if compliant, will approve the application and
authorise payment (s 31(4)). An applicant must be advised, in writing, if the application is defective
(s 31(5)).
Benefits are paid at the labour office where the application was made or any other labour office,
as directed by the applicant at the time of the application (s 32).

5.5.10 General provisions relating to benefits

150 A Practical Guide to Labour Law

Benefits may not be assigned, attached by an order of any court (except by a court order relating to
maintenance) or set off against any debt (s 33(1)). “Debt” does not include a debt arising from
benefits paid in error under the provisions of the UIA (s 33(2)).
Contributors or dependants who have been paid benefits that they are not entitled to or paid
benefits in excess of their entitlement must repay such benefits to the Fund (s 35(1)). If the
Unemployment Insurance Commissioner determines that a person has been paid benefits in error
or in excess of his entitlement, the Commissioner must, within 18 months of the date of the
determination, make a written demand for repayment (s 35(2)). Such a written demand must
include a statement of the amount paid in error, an explanation as to why that person was ineligible
to receive the funds and evidence that the person to whom the demand is addressed actually
received the funds (s 35(3)). The person in question must refund the amount within 90 days of the
written demand (s 35(4)).

5.6 Dispute resolution (ss 36A & 37)

The Unemployment Insurance Board must establish regional appeal committees to deal with
appeals lodged by persons aggrieved by the decisions of the Unemployment Insurance
Commissioner or claims officers. A regional appeals committee is composed of an officer of the
Department and at least one representative each from organised labour, organised business and
organisations of community and development interests (s 36A).
Any person who is entitled to benefits in terms of the UIA may appeal to a regional appeals
committee against a decision of the Commissioner to suspend his right to benefits or a decision of
a claims officer relating to the payment or non-payment of benefits (s 37(1)).
If the person is dissatisfied with the decision of the regional appeals committee he may lodge a
further appeal to the National Appeals Committee (also established by the Board) for a final
decision. The National Appeals Committee may confirm, vary or rescind the decision of a regional
appeals committee or it may substitute that decision with a decision it deems appropriate (s 37(4)).

5.7 Enforcement

Prior to the 2016 amendments to the UIA, the UIA itself empowered labour inspectors to monitor
and enforce compliance by employers. A labour inspector had the power to secure a written
undertaking from an employer (s 38) or to issue a compliance order (s 39). An employer was
permitted to object to a compliance order (s 40) and the Director General had the power to refer a
compliance order to the Labour Court to have it made an order of court (s 41).
The sections in the UIA dealing with enforcement (ss 38–41) were repealed when the 2016
amendments came into operation in January 2017 and enforcement of the UIA and other Acts is
now found in the BCEA (whereas previously the BCEA provided for enforcement of only the BCEA).
Sections 64, 68 and 69 of the BCEA allow labour inspectors to monitor and enforce not only the
BCEA, but also the UIA, Unemployment Insurance Contributions Act and the National Minimum
Wage Act and remove the ultimate enforcement from the realm of the Labour Court.
Section 68 of the BCEA provides for written undertakings. Where a written undertaking has been
secured and the employer fails to comply with the undertaking, a labour inspector may refer such
failure to the CCMA and apply to have the undertaking made an arbitration award.
Section 69 of the BCEA permits a labour inspector to issue a compliance order and in the event
that the employer fails to comply with the order, the inspector may refer the matter to the CCMA
to have the compliance order made an arbitration award (ss 69 & 73 of the BCEA). An employer has
the right to object to a compliance order by referring a dispute to the CCMA (s 69(5) of the BCEA).
Refer to Chapter 3 of this publication for a detailed discussion of inspectors and their powers to
monitor and enforce compliance by employers.
Unemployment insurance law 151

5.8 Duties of employer (ss 42 & 56)

An employer must ensure that all statements and other information which must be kept and
submitted in terms of the UIA are correct (s 42).
Every new employer must, as soon as it commences activities as an employer, provide the
following information regarding its employees to the Unemployment Insurance Commissioner,
irrespective of the earnings of the employees (s 56(1) & (2)):
• the street address of the business and any of its branches;
• if the employer is not resident in the Republic or is a body corporate not registered in the
Republic, the particulars of the authorised person who is required to carry out the duties of the
employer in terms of the UIA;
• the names, identification numbers and monthly remuneration of each of its employees; and
• the address at which the employee is employed.
All employers are required to advise the Commissioner, before the seventh day of each month, of
any changes in the information initially provided (s 56(3)).
As soon as a new employee is appointed, the employer is obliged to register that employee with
the Department of Labour for the purposes of unemployment and other benefits.
5.9 Miscellaneous

Recovery of losses: if an employee of the Fund causes any loss or damage to the Fund, the Director
General may institute an enquiry into the loss or damage, determine whether the employee is liable
for the loss or damage and, if so, determine the amount of the loss or damage and how and when
the amount is to be paid by the employee. The employee must be notified in writing of such a
determination. Such an amount may be deducted from the employee’s salary upon termination of
services. Any employee who is aggrieved by a determination made by the Director General may,
within 30 days of the date of notification, appeal to the Minister in accordance with the grievance
procedure applicable to state employees (s 60).
Any person who causes any loss or damage to the Fund is guilty of an offence. Upon conviction,
a court may determine the amount of the loss or damage and the convicted person must refund the
loss to the Fund on such terms and conditions as the Director General may determine. Payment in
instalments is permissible. A loss due to a fraudulent claim may be recovered from any outstanding
benefit payments due to a contributor or dependant
(s 61).
Evidence (s 62): the following documents produced in a court of law are presumed to be certified
by their author without proof of the author’s signature, unless evidence is led to the contrary: a
record of a decision made by the Director General, the Board or any committee; a copy of or extract
from an entry in any book or record kept by the Director General, the Board or any committee or
any document filed with the Director General, the Board or any committee.
In any proceedings under the UIA an affidavit purporting to be made by the Director General is
evidence of any of the following facts stated in the affidavit: that any person or body of persons is
an employer or a contributor under the UIA; that any person is or was lawfully required to pay an
amount to the Director General or that any such amount or any portion thereof had or had not been
paid on a date specified in the affidavit.
The presiding officer at proceedings in which such an affidavit is presented may of his own accord
or must at the request of any party to the proceedings require the deponent under subpoena to
give oral evidence or to answer any written question submitted to the presiding officer under oath.
Any question and answer from that deponent is admissible as evidence in the proceedings.
A contributor is presumed, unless the contrary is proved, to remain in the employ of an employer
until that employer has notified the Director General that the contributor is no longer employed.
152 A Practical Guide to Labour Law

In any proceedings the following documents are admissible in evidence against an employer and
constitute an admission of the facts contained therein, unless it is proved that the statement was
not made by the employer: a statement or entry contained in any book, record or document kept
by any employer; any such statement or entry found on any premises occupied by the employer;
any such statement or entry found on any vehicle used in the business of the employer and any copy
or reproduction of any such statement or entry, certified by a commissioner of oaths to be a true
copy or reproduction of the original statement.
No answer to any question put by a person in the course of an enquiry instituted by the Director
General to determine whether an employee of the Fund has caused a loss or damage to the Fund
or a question by a labour inspector may be used against that person in any criminal proceedings,
except proceedings in respect of a charge of perjury or making a false statement.
5.10 Unemployment Insurance Contributions Act 4 of 2002

Unlike the old Act, the UIA of 2001 does not address the issue of contributions to the
Unemployment Insurance Fund. The Unemployment Insurance Contributions Act (UICA) was
implemented alongside the UIA to provide for contributions by employers and employees.
Application
The UICA applies to all employers and employees with a limited number of exclusions. The
following employers and employees are excluded from the application of the UICA (s 4): •
employees employed for fewer than 24 hours per month and their employers;
• employees in the national and provincial spheres of government who are officers or em-ployees
as defined in section 1(1) of the Public Service Act of 1994 and their employers;
• the President, Deputy President, a Minister, Deputy Minister, a member of the National
Assembly, a permanent delegate to the National Council of Provinces; a Premier, a member of an
Executive Council or a member of a provincial legislature; and
• members of a municipal council, traditional leaders, members of a provincial House of Traditional
Leaders and members of the Council of Traditional Leaders.

Contributions
Chapter 2 of the UICA deals with the duty to contribute to the Unemployment Insurance Fund.
Every employer and every employee to whom the UICA applies must, on a monthly basis, make
contributions for the benefit of the Unemployment Insurance Fund. The contributions must be paid
by the employer to the Commissioner for the South African Revenue Service (SARS) or to the
Unemployment Insurance Commissioner, depending on whether section 8 or section 9 is applicable
to the employer (s 5).
The amount of the contribution payable by the employee is 1% of his monthly remuneration and
that payable by the employer is 1% of the employee’s monthly remuneration (s 6). This provision is
not applicable to that portion of an employee’s monthly remuneration that exceeds the threshold
amount determined by the Minister of Finance (in consultation with the Minister of Labour and the
Unemployment Insurance Commissioner). Currently this amount is R17 712 per month.
The employer must deduct the 1% payable by the employee from the employee’s remuneration
every month (or week or other interval at which remuneration is paid) (s 7(1) & (2)). An employer
who fails to deduct the contributions is liable for the contributions (s 7(4)). Where the contribution
of an employee which is a company (other than a listed company) has not been paid over to SARS
or to the Unemployment Insurance Commissioner, the employer and all its directors and
shareholders who control or are regularly involved in the management of the company’s overall
financial affairs will be personally liable for the payment of that amount, as well as for the penalty
which may be imposed in respect of the late payment (s 7(4A)).
An employer is not allowed to deduct amounts that are in excess of what the employee’s
contribution is supposed to be, seek or receive a fee from the employee for complying with the Act
or deduct arrear contributions from the employee after the end of the financial year in which it was
payable (s 7(3)).
Unemployment insurance law 153

Where an employer deducts a contribution from the employee’s remuneration and subsequently
becomes aware that the amount was not due or payable or was in excess of the required amount,
the employer must refund such amount to the employee, despite the fact that the employer was
not refunded by the Commissioner (s 7(5)).
Payments to the SARS Commissioner (s 8)
Every employer, other than an employer contemplated in section 9(1) (see below), must pay to the
Commissioner of SARS, on a monthly basis, the total amount of contributions deducted from its
employees and the employer’s own contributions. Payment to SARS must be made before the
seventh day of the month following the deductions (or such longer period as SARS may determine)
and must be accompanied by a return statement, reflecting the amount of the payment (s 8(1) &
(2)). An employer who is a micro business is allowed some latitude and must make payment in
accordance with the Sixth Schedule to the Income Tax Act (s 8(1A)).
Any amount in excess of what an employer is supposed to pay to SARS must be refunded and the
Commissioner of SARS must advise the Director General of such refunds (s 8(4)).
An employer who ceases to carry on business or otherwise ceases to be an employer must, within
14 days, notify the SARS Commissioner thereof and submit such a return as the Commissioner may
prescribe.
The contributions, interest and penalties collected by the SARS Commissioner are, after
deduction of any refunds, paid into the National Revenue Fund for the credit of the Unemployment
Insurance Fund (s 11).

Payments to the Unemployment Insurance Commissioner (s 9)

For the purpose of this section “employer” means an employer who:
• is not required to register as an employer in terms of paragraph 15 of the Fourth Sched-ule to
the Income Tax Act;
• has not registered voluntarily as an employer in terms of the Fourth Schedule to the Income Tax
Act; or
• is not liable for the payment of the skills development levy in terms of the Skills Develop-ment
Levies Act of 1999 (s 9(1)(a)).
Such an employer is required to pay all contributions directly to the Unemployment Insurance
Commissioner and not to SARS before the seventh day of the month following the deductions (s
9(1)(b)). All payments must be accompanied by return statements to reflect the amount of
contributions and the total of the payment (s 9(2)).
Where an employer on reasonable grounds believes that the total amount of contributions
payable during any financial year will not exceed such amount as the Commissioner may from time
to time determine by notice in the Gazette, the employer may elect to effect payment of the full
amount in respect of that financial year in a single payment within seven days after the beginning
of that financial year (i.e. March of every year) (s 9(5)(a)). If the employer discovers that the amount
so paid was less than the required amount, the outstanding amount must be paid to the
Unemployment Insurance Commissioner before the end of the financial year in question (s 9(5)(b)).
All contributions, interest and penalties are paid into the Fund after refunds to employers of any
excess amounts (s (9(3) & (4)).

Questions

Question 1
Discuss the conditions or requirements which must be met in terms of the Unemployment Insurance
Act in order for a contributor to qualify for the following:
1.1 unemployment benefits; (10)
1.2 illness benefits; (8)
1.3 maternity benefits; (8)
154 A Practical Guide to Labour Law

1.4 parental benefits; (8)

1.5 adoption benefits; (8)
1.6 commissioning parental benefits; (8)
1.7 benefits paid to dependants of a deceased contributor. (6)
Question 2
Discuss the responsibility for making contributions for the benefit of the UIF, the amount of such
contributions and how the contributions must be made in terms of the Unemployment Insurance
Contributions Act. (15)

Question 3
Lorraine is employed by R & B Manufacturers (Pty) Ltd, a manufacturer of women’s clothing. She
works as a dressmaker in the factory and earns R8 000 per month.
3.1 Is Lorraine liable to contribute to UIF? Briefly explain. (2)
3.2 Assume Lorraine is a contributor in terms of the UIA. Two weeks ago she was retrenched and is
now unemployed. She applies for unemployment benefits. Two days after submitting her
application to a claims officer she discovers, when visiting her doctor, that she is suffering
from a terminal illness, that her health will rapidly deteriorate and that she only has eight
months to live. Does she qualify for unemployment benefits under these circumstances?
Explain. (4)
3.3 Assume Lorraine is a contributor. She has been employed at R & B Manufacturers for the past
five years. She is pregnant and the expected date of birth of her baby is 12 October. No
provision has been made for paid maternity leave, either in her contract of employment or
any agreement applicable in the workplace.
(a) Briefly explain whether Lorraine is entitled to work during her term of pregnancy. (2)
(b) Her employer grants her four months’ unpaid maternity leave. Explain whether she qualifies
for benefits in terms of the UIA. (4)
(c) Lorraine is married to John who was also a contributor to the Fund, but is unemployed at
the time of her maternity leave. Can he apply for parental leave? Motivate your answer.
(4)
(d) Lorraine has always been considered a good worker. When her employer finds out about her
pregnancy, he dismisses her because, according to him, he cannot afford to keep her job for
her.
(i) Does she qualify for benefits under these circumstances? Explain. (4)
(ii) Can her employer dismiss her in these circumstances? Discuss with
reference to case law. (10)
Hint: See Swart v Greenmachine Horticultural Services (A Division of Sterikleen (Pty) Ltd) (2010)
31 ILJ 180 (LC); Wallace v Du Toit (2006) 27 ILJ 1754 (LC); Mashava v Cuzen & Woods
Attorneys [2000] 6 BLLR 691 (LC); Victor v Finro Cash & Carry (2000) 21 ILJ 2489 (LC);
Solidarity obo McCabe v SA Institute for Medical Research [2003] 9 BLLR 927 (LC); Mnguni v
Gumbi [2004] 6 BLLR 558 (LC); Lukie v Rural Alliance CC t/a Rural Development Specialist
[2004] 8 BLLR 769 (LC); and ss 186(1)(c) & 187(1)(e) of the Labour Relations Act.
3.4 Assume that Lorraine is a contributor. She adopts a baby of three months. As a result of the
adoption she resigns because she wants to take care of her baby. Does she qualify for benefits
in terms of the Act? Explain. (10)
3.5 Assume that Lorraine is a contributor. She is dismissed because she has been found guilty of
theft. After her dismissal she fails to find other employment. Does she qualify for benefits in
terms of the Act? Explain. (5)
3.6 Assume that Lorraine is a contributor. She is unemployed because of retrenchments in her
factory. She applies for unemployment benefits and is informed that she qualifies for benefits
and will receive these benefits shortly. A week later she is informed of suitable employment,
but refuses to accept it. Does she qualify for benefits in terms of the Act? Explain. (3)
Unemployment insurance law 155

3.7 Assume Lorraine is a contributor. She is unemployed because of retrenchments in her factory.
She applies for unemployment benefits and is informed that she does not qualify for any
benefits in terms of the Act. Explain the procedure Lorraine can follow to have her dispute
resolved. (4)

Question 4
Fred is a gardener. He works for Anton on Mondays, Bennie on Tuesdays, Carl on Wednesdays,
Danny on Thursdays and Ewan on Fridays. Danny dismisses Fred. Is Fred eligible for unemployment
benefits from the Fund? (4)

Question 5
John is employed at Viva Enterprises. He develops pneumonia and becomes too ill to perform any
work. He stays at home for 12 days. Does he qualify for illness benefits in terms of the
Unemployment Insurance Act? Explain. (6)

Question 6
David and his life partner, Richard, adopt a baby of 11 months old. David is employed at Bakerton
Industries. Richard is unemployed due to retrenchments in his factory. Explain whether one or both
of them are entitled to leave and, if so, whether they will qualify for any benefits under the UIA.
(5)

Question 7
Mandla and Lerato commissioned Ms X to be a surrogate mother for a baby they wanted. After the
birth of the baby they took leave to care for the child. Explain whether one or both of them are
entitled to leave and benefits under the UIA. (5)

Appendix 1

UI-2.1
UNEMPLOYMENT INSURANCE BENEFITS IN TERMS OF SECTION 17(1) –
Read with Regulation 3(1)
1. PERSONAL DETAILS
1.1 Identity document ............................................................................................................ 1.2
Passport number ............................................................................................................... 1.3
Other Identity/Reference number ..................................................................................
1.4 Date of birth ......................................................................................................................
1.5 Gender Male 5 Female 0
1.6 First names ........................................................................................................................
1.7 Surname ............................................................................................................................ 1.8
Previous surname ..............................................................................................................
1.9 Postal address ....................................................................................................................
......................................................................................... Code ...................................... 1.10
Residential address ...........................................................................................................
......................................................................................... Code ......................................
1.11 Telephone number ........................................................ Code ...................................... 1.12 Cell.
no. ............................................................................................................................. 1.13 E-mail
address ................................................................................................................... 1.14 SARS number
....................................................................................................................
156 A Practical Guide to Labour Law

2. PAYMENT DETAILS
2.1 Name of bank or post office ............................................................................................. 2.2
Branch code ...................................................................................................................... 2.3
Account number ............................................................................................................... 2.4
Account type .....................................................................................................................
3. METHOD OF PAYMENT (Use the UI-2.7 form for Banking Details)
CHEQUE  CASH  BANK TRANSFER  OTHER 
4. EDUCATION BACKGROUND (tick the box) ........................................................................
SPECIAL SCHOOL CERT.  26  BELOW GRADE 8 29
GRADE 8–9  30  GRADE 10–11 31
GRADE 12 
32  TERTIARY 33
5. EMPLOYER DETAILS
5.1 Name of employer/company ........................................................................................... 5.2 UIF
ref. number ................................................................................................................
5.3 Business address of employer ...........................................................................................
............................................................................................................................................
5.4 Postal address .................................................................................................................... 5.5 E-
mail ................................................................................................................................. 5.6 Telephone
number ........................................................ Code ...................................... 5.7 Fax number
.......................................................................................................................
6. EMPLOYMENT DETAILS
6.1 Occupation ........................................................................................................................ 6.2 Occ.
code ...........................................................................................................................
7. PERIOD OF SERVICE
7.1 Commencement of employment with employer ............................................................ 7.2
Termination of service ......................................................................................................
8. REMUNERATION/SALARY
8.1 Gross pay (before deductions) ......................................................................................... 8.2
Salary payment (PW or PM) .............................................................................................
9. SOURCES OF OTHER INCOME
During this period of unemployment have you received income from any of these sources?
(Tick the box)
9.1 Monthly pension from State (excluding disability grant) ........................................ 
9.2 Benefit from Compensation Fund for temporary or total disablement .................. 
9.3 Benefits from an Unemployment Fund established by bargaining or statutory
council .........................................................................................................................  9.4
None ............................................................................................................................  When did
you begin to receive this benefit? ................................................................... Do you continue to
receive this benefit? ......................................................................... If you no longer receive this
benefit when did it come to an end? ................................
10. REASONS FOR TERMINATION OF SERVICE
10.1 Dismissed ...........................................................................................................................
10.2 Contract expired .............................................................................................................. 10.3.1
Resigned ............................................................................................................. 10.3.2
Unemployment insurance law 157

Constructive dismissal ....................................................................................... 10.4 Employer’s

insolvency ......................................................................................................
10.5 Other (Specify) ................................................................................................................
11. FURTHER REQUIREMENTS
11.1 Are you registered as a workseeker with a Labour Centre established by the
DOL .............................................................................................................. Yes  No 
11.2 If so, which Labour Centre: .............................................................................................
11.3 Are you capable or and available for work? ............................................... Yes  No 

Signature .......................................................
11.4 If you are not capable or nor available for work, please explain ...................................
............................................................................................................................................
IMPORTANT: READ THIS SECTION BELOW:
If your application is successful then the claims officer will authorise the payment of benefits. You must
report to the employment office on a regular basis as indicated by the claims officer. You must also
inform the claims officer as soon as you resume employment. I declare that the above information is
true and correct. I understand that it is an offence to make a false statement.

Signature of applicant ................................................................ Date............... / ............... / ...............

158 A Practical Guide to Labour Law

UI-2.2
APPLICATION FOR ILLNESS BENEFITS IN TERMS OF SECTION 22(1) Read
with Regulations 4(1), 4(5) and 4(7)
PERSONAL DETAILS
1.1 Identity document ............................................................................................................ 1.2
Passport number ............................................................................................................... 1.3 Other
Identity/Reference number ..................................................................................
1.4 Date of Birth ......................................................................................................................
1.5 Gender Male 5 Female 0
1.6 First names ........................................................................................................................
1.7 Surname ............................................................................................................................ 1.8
Previous surname ..............................................................................................................
1.9 Postal address ....................................................................................................................
......................................................................................... Code ......................................
1.10 Residential address ...........................................................................................................
......................................................................................... Code ......................................
1.11 Telephone number ........................................................ Code ...................................... 1.12 Cell.
no. ............................................................................................................................. 1.13 E-mail
address ................................................................................................................... 1.14 SARS number
....................................................................................................................
2. PAYMENT DETAILS
2.1 Name of bank or post office ............................................................................................. 2.2
Branch code ...................................................................................................................... 2.3
Account number ............................................................................................................... 2.4
Account type .....................................................................................................................
3. METHOD OF PAYMENT (Use the UI-2.7 form for Banking Details)
CHEQUE  CASH  BANK TRANSFER  OTHER 
4. EMPLOYER DETAILS
4.1 Name of employer/company ........................................................................................... 4.2 UIF
ref. number ................................................................................................................
4.3 Business address of employer ...........................................................................................
............................................................................................................................................
4.4 Postal address .................................................................................................................... 4.5 E-
mail ................................................................................................................................. 4.6 Telephone
number ........................................................ Code ...................................... 4.7 Fax number
.......................................................................................................................
5. EMPLOYMENT DETAILS
5.1 Occupation ........................................................................................................................ 5.2 Occ.
code ...........................................................................................................................
6. PERIOD OF SERVICE
6.1 Commencement of employment with employer ............................................................ 6.2
Termination of service ......................................................................................................
7. REMUNERATION/SALARY
7.1 Gross pay (before deductions) ......................................................................................... 7.2
Salary payment (PW or PM) .............................................................................................
8. SOURCES OF OTHER INCOME
Unemployment insurance law 159

1.
During this period of unemployment have you received income from any of these sources?
(Tick the box)
8.1 Monthly pension prom State (excluding disability grant) ........................................ 
8.2 Benefit from Compensation Fund for temporary or total disablement ................... 
8.3 Benefits from an Unemployment Fund established by bargaining or statutory
council .......................................................................................................................... 
8.4 None .............................................................................................................................  When
did you begin to receive this benefit? ................................................................... Do you continue to
receive this benefit? .........................................................................
If you no longer receive this benefit when did it come to an end? ................................
............................................................................................................................................
9. ARE YOU STILL EMPLOYED .............................................................................. Yes  No 
NB: IF YOU ARE STILL EMPLOYED, FORM UI-2.8 MUST ALSO BE COMPLETED.
10. DATE OF COMMENCEMENT OF ILLNESS LEAVE .................................. /......... /............. 11. IF YOU
HAVE RETURNED TO WORK, STATE DATE .............................. /......... /.............
12.

MEDICAL CERTIFICATE (To be completed by an authorised practitioner in terms of

section 20(1)(c) of the UI Act 63 of 2001.
I, ................................................................. am a qualified .....................................................
My practice number is ............................... . I confirm that .....................................................
has been under my treatment from ............................. to .................. and is suffering from
.....................................................................................................................................................
............................................................................ This patient was not capable of performing work from
.............................................................. to .............................................................
If the nature of the illness is described in this medical certificate in uncertain terms or as “disease –
entity” or “symptom complex”, please furnish a clinical report describing the symptoms and
nature of the complaint.

Signature ...................................................... Date ................... Tel. no. ..............................

Address .......................................................................................................................................

IMPORTANT: READ THIS SECTION BELOW:

If your application is successful then the claims officer will authorise the payment of benefits. You must
inform the claims officer as soon as you resume work. I declare that the above information is true and
correct. I understand that it is an offence to make a false statement.

SIGNATURE ...................................................................................... DATE ......................................

160 A Practical Guide to Labour Law

UI-2.3
APPLICATION FOR MATERNITY BENEFITS IN TERMS OF SECTION 25(1) Read
with Regulation 5(1) and 5(4)
PERSONAL DETAILS ...............................................................................................................
1.1 Identity document ............................................................................................................ 1.2
Passport number ............................................................................................................... 1.3 Other
identity/reference number ...................................................................................
1.4 Date of birth ......................................................................................................................
1.5 Gender Male 5 Female 0
1.6 First names ........................................................................................................................
1.7 Surname ............................................................................................................................ 1.8
Previous surname ..............................................................................................................
1.9 Postal address ....................................................................................................................
......................................................................................... Code.......................................
1.10 Residential address ...........................................................................................................
......................................................................................... Code.......................................
1.11 Telephone number ........................................................ Code....................................... 1.12 Cell.
no. ............................................................................................................................. 1.13 E-mail
address ................................................................................................................... 1.14 SARS number
....................................................................................................................
2. PAYMENT DETAILS .................................................................................................................
2.1 Name of bank or post office ............................................................................................. 2.2
Branch code ...................................................................................................................... 2.3
Account number ............................................................................................................... 2.4
Account type .....................................................................................................................
3. METHOD OF PAYMENT (Use the UI-284 form for Banking Details)
CHEQUE  CASH  BANK TRANSFER  OTHER 

4. EMPLOYER DETAILS
4.1 Name of employer/company ........................................................................................... 4.2 UIF
ref. number ................................................................................................................
4.3 Business address of employer ...........................................................................................
............................................................................................................................................
4.4 Postal address .................................................................................................................... 4.5 E-
mail ................................................................................................................................. 4.6 Telephone
number ........................................................ Code.......................................
4.7 Fax number .......................................................................................................................
5. EMPLOYMENT DETAILS
5.1 Occupation ........................................................................................................................ 5.2 Occ.
code ...........................................................................................................................
6. PERIOD OF SERVICE
Unemployment insurance law 161

1.
6.1 Commencement of employment with employer ............................................................ 6.2
Termination of service ......................................................................................................
7. REMUNERATION/SALARY
7.1 Gross pay (before deductions) ......................................................................................... 7.2
Salary payment (PW or PM) .............................................................................................
8. SOURCES OF OTHER INCOME
During this period of unemployment have you received income from any of these sources? (Tick the box)
8.1 Monthly pension from State (excluding disability grant) ........................................ 
8.2 Benefit from Compensation Fund for temporary or total disablement .................. 
8.3 Benefits from an Unemployment Fund established by bargaining or statutory
council .........................................................................................................................  8.4
None ............................................................................................................................  When did
you begin to receive this benefit? ................................................................... Do you continue to
receive this benefit? ......................................................................... If you no longer receive this
benefit when did it come to an end? ................................
9. ARE YOU STILL EMPLOYED ................................................................................. Yes  No 
NB: IF YOU ARE STILL EMPLOYED, FORM UI-2.8 MUST ALSO BE COMPLETED.
10. DATE OF COMMENCEMENT OF MATERNITY LEAVE ........................./........... /............. 11. IF YOU
HAVE RETURNED TO WORK, STATE DATE ............................/........... /.............
12.

MEDICAL CERTIFICATE (to be completed by a medical practitioner or registered midwife)

I, ................................................................. am a qualified .....................................................
My practice number is ............................... . I confirm that .....................................................
................................................... is under my treatment and is pregnant. The expected due
date of birth is ............................................................................................................................
OR
I confirm that ................................................................. gave birth on ................................ /
The baby was stillborn on .............................. /had a miscarriage on ....................................

Signature ...................................................... Date.................... Tel. no. ..............................

Address .......................................................................................................................................

IMPORTANT: READ THIS SECTION BELOW:

If your application is successful then the claims officer will authorise the payment of benefits. You must
also inform the claims officer as soon as you resume employment. I declare that the above information
is true and correct. I understand that it is an offence to make a false statement.
162 A Practical Guide to Labour Law

SIGNATURE OF APPLICANT ....................................................................... DATE ............................

UI-2.4
APPLICATION FOR ADOPTION BENEFITS IN TERMS OF SECTION 28(1) Read
with Regulation 6(1) PERSONAL DETAILS
1.1 Identity document ............................................................................................................ 1.2
Passport number ............................................................................................................... 1.3 Other
identity/reference number ...................................................................................
1.4 Date of birth ......................................................................................................................
1.5 Gender Male 5 Female 0
1.6 First names ........................................................................................................................ 1.7
Surname ............................................................................................................................ 1.8 Previous
surname ..............................................................................................................
1.9 Postal address ....................................................................................................................
......................................................................................... Code ......................................
1.10 Residential address ...........................................................................................................
......................................................................................... Code ......................................
1.11 Telephone number ........................................................ Code ...................................... 1.12 Cell.
no. ............................................................................................................................. 1.13 E-mail
address ................................................................................................................... 1.14 SARS number
....................................................................................................................
2. PAYMENT DETAILS
2.1 Name of bank or post office ............................................................................................. 2.2
Branch code ...................................................................................................................... 2.3
Account number ............................................................................................................... 2.4
Account type ......................................................................................................................
3. METHOD OF PAYMENT (Use the UI-2.7 form for Banking Details)
CHEQUE  CASH  BANK TRANSFER  OTHER 
4. EMPLOYER DETAILS
4.1 Name of employer/company ........................................................................................... 4.2 UIF
ref. number ................................................................................................................
4.3 Business address of employer ...........................................................................................
............................................................................................................................................
4.4 Postal address .................................................................................................................... 4.5 E-
mail ................................................................................................................................. 4.6 Telephone
number ........................................................ Code ......................................
4.7 Fax number .......................................................................................................................
5. EMPLOYMENT DETAILS
5.1 Occupation ........................................................................................................................ 5.2 Occ.
Code ..........................................................................................................................
6. PERIOD OF SERVICE
Unemployment insurance law 163

1.
6.1 Commencement of employment with employer ............................................................ 6.2
Termination of service ......................................................................................................
7. REMUNERATION/SALARY
7.1 Gross pay (before deductions) ......................................................................................... 7.2
Salary payment (PW or PM) .............................................................................................
8. SOURCES OF OTHER INCOME
During this period of unemployment have you received income from any of these sources? (Tick
the box)
8.1 Monthly pension from State (excluding disability grant) ........................................ 
8.2 Benefit from Compensation Fund for temporary or total disablement .................. 
8.3 Benefits from an Unemployment Fund established by bargaining or statutory
council .........................................................................................................................  8.4
None ............................................................................................................................ 
When did you begin to receive this benefit?
................................................................... Do you continue to receive this benefit?
......................................................................... If you no longer receive this benefit when did
it come to an end? ................................
9. ARE YOU STILL EMPLOYED ................................................................................ Yes  No 
NB: IF YOU ARE STILL EMPLOYED, FORM UI-2.8 MUST ALSO BE COMPLETED.
10. DATE OF COMMENCEMENT OF ADOPTION LEAVE .........................../ ........... / ............. 11. IF YOU
HAVE RETURNED TO WORK, STATE DATE ............................./ ........... / .............
IMPORTANT: READ THIS SECTION BELOW:
If your application is successful then the claims officer will authorise the payment of benefits. You must
also inform the claims officer as soon as you resume employment. I declare that the above information
is true and correct. I understand that it is an offence to make a false statement.

SIGNATURE .................................................................................................. DATE ..........................

164 A Practical Guide to Labour Law

UI-2.5
APPLICATION FOR DEPENDANT’S BENEFITS BY SURVIVING SPOUSE OR
LIFE PARTNER IN TERMS OF SECTION 31(1)
Read with Regulation 7(1)
1. PERSONAL DETAILS
1.1 Identity document ............................................................................................................ 1.2
Passport number ............................................................................................................... 1.3
Other identity/reference number ................................................................................... 1.4 Date
of birth ......................................................................................................................
1.5 Date of death .....................................................................................................................
1.6 Gender Male 5 Female 0
1.7 First names ........................................................................................................................ 1.8
Surname ............................................................................................................................ 1.9
Previous surname ..............................................................................................................
1.10 Last residential address ....................................................................................................
.................................................................................................... Code ...........................
1.11 Telephone number ................................................................... Code ........................... 1.12
Cell. no. ............................................................................................................................. 1.13 E-mail
address ................................................................................................................... 1.14 SARS number
....................................................................................................................
2. EMPLOYER DETAILS
2.1 Name of employer/company ........................................................................................... 2.2 UIF
ref. number ................................................................................................................
2.3 Business address of employer ...........................................................................................
............................................................................................................................................
2.4 Postal address .................................................................................................................... 2.5
E-mail ................................................................................................................................. 2.6 Telephone
number ................................................................... Code ...........................
2.7 Fax number .......................................................................................................................
3. EMPLOYMENT DETAILS
3.1 Occupation ........................................................................................................................ 3.2
Occ. code ...........................................................................................................................
4. PERIOD OF SERVICE
4.1 Commencement of employment with employer ............................................................
4.2 Termination of service ......................................................................................................
5. REMUNERATION/SALARY
5.1 Gross pay (before deductions) ......................................................................................... 5.2
Salary payment (PW or PM) .............................................................................................
6. PERSONAL DETAILS OF SPOUSE OR LIFE PARTNER
Unemployment insurance law 165

6.1 Identity document: ........................................................................................................... 6.2

Passport number ............................................................................................................... 6.3
Other identity/reference number ...................................................................................
6.4 Date of birth ......................................................................................................................
6.5 Gender Male 5 Female 0
6.6 First names
........................................................................................................................
6.7 Surname ............................................................................................................................ 6.8
Previous surname ..............................................................................................................
6.9 Postal address ....................................................................................................................
.................................................................................................... Code ...........................
6.10 Residential address ...........................................................................................................
.................................................................................................... Code ...........................
6.11 Telephone number ................................................................... Code ........................... 6.12
Cell. no. ............................................................................................................................. 6.13 E-mail
address ................................................................................................................... 6.14 SARS number
....................................................................................................................
7. PAYMENT DETAILS
7.1 Name of bank or post office ............................................................................................. 7.2
Branch code ...................................................................................................................... 7.3
Account number ............................................................................................................... 7.4
Account type .....................................................................................................................
8. METHOD OF PAYMENT (Use the UI-2.7 form for Banking Details)
CHEQUE  BANK TRANSFER  OTHER 
IMPORTANT: READ THIS SECTION BELOW:
I declare that I am the only surviving spouse or life partner or one of surviving spouses of the
abovementioned deceased contributor, that I was not divorced from him/her and that information given
in this document is true and correct. I understand that it is an offence to make a false statement.

SIGNATURE OF SURVIVING SPOUSE OR LIFE PARTNER

................................................................
DATE: ............... / ............. / ..............

UI-2.6
APPLICATION FOR DEPENDANT’S BENEFITS BY CHILD OF DECEASED
IN TERMS OF SECTION 31(1)
Read with Regulation 7(1) and 7(2)
1. PERSONAL DETAIL
1.1 Identity document: ........................................................................................................... 1.2
Passport number ............................................................................................................... 1.3
Other identity/reference number ................................................................................... 1.4 Date
of birth ......................................................................................................................
1.5 Date of death .....................................................................................................................
166 A Practical Guide to Labour Law

1.6 Gender Male 5 Female 0

1.7 First names ........................................................................................................................ 1.8
Surname ............................................................................................................................ 1.9
Previous surname ..............................................................................................................
1.10 Last residential address .....................................................................................................
......................................................................................... Code ......................................
1.11 Telephone number ........................................................ Code ...................................... 1.12
Cell. no. ............................................................................................................................. 1.13 E-mail
address ................................................................................................................... 1.14 SARS number
....................................................................................................................
2. EMPLOYER DETAILS
2.1 Name of employer/company ........................................................................................... 2.2 UIF
ref. number ................................................................................................................
2.3 Business address of employer ...........................................................................................
............................................................................................................................................ 2.4 Postal
address .................................................................................................................... 2.5 E-mail
................................................................................................................................. 2.6 Telephone
number ............................................................................... Code ...............
2.7 Fax number .......................................................................................................................
3. EMPLOYMENT DETAILS
3.1 Occupation ........................................................................................................................ 3.2 Occ.
code ...........................................................................................................................
4. PERIOD OF SERVICE
4.1 Commencement of employment with employer ............................................................ 4.2
Termination of service ......................................................................................................
5. REMUNERATION/SALARY
5.1 Gross pay (before deductions) ......................................................................................... 5.2
Salary payment (PW or PM) .............................................................................................
6. GUARDIAN’S PERSONAL DETAILS
RELATIONSHIP OF GUARDIAN TO DECEASED ................................................................
6.1 Identity document ............................................................................................................ 6.2
Passport number ............................................................................................................... 6.3
Other identity/reference number ................................................................................... 6.4 Date
of birth ......................................................................................................................
6.5 Gender Male 5 Female 0
6.6 First names ........................................................................................................................
6.7 Surname ........................................................................................................................... 6.8
Previous surname .............................................................................................................
6.9 Postal address ...................................................................................................................
.......................................................................................... Code .....................................
6.10 Residential address ...........................................................................................................
.......................................................................................... Code .....................................
Unemployment insurance law 167

6.11 Telephone number ........................................................ Code ..................................... 6.12 Cell.

no. ............................................................................................................................ 6.13 E-mail address
................................................................................................................... 6.14 SARS number
...................................................................................................................
7. CHILD’S DETAILS (1)
7.1 Identity document ............................................................................................................
7.2 Date of birth .....................................................................................................................
7.3 Gender Male 5 Female 0
7.4 First names ........................................................................................................................
7.5 Surname ...........................................................................................................................
7.6 Postal address ...................................................................................................................
.......................................................................................... Code .....................................
7.7 Residential address ...........................................................................................................
.......................................................................................... Code .....................................
8. PAYMENT DETAILS OF GUARDIAN*
8.1 Name of bank or post office ............................................................................................ 8.2
Branch code* ................................................................................................................... 8.3
Account number ..............................................................................................................
8.4 Account type .....................................................................................................................
9. METHOD OF PAYMENT: (Use the UI-2.7 form for Banking Details)
CHEQUE  BANK TRANSFER  OTHER 
IMPORTANT: READ THIS SECTION BELOW:
I declare that the information is true and correct. I understand that it is an offence to make a false
statement.

SIGNATURE OF APPPLICANT: ....................................................... DATE: .....................................

UI-12
NOTICE OF APPEAL AGAINST A DECISION OF THE
COMMISSIONER OR A CLAIMS OFFICER
[UI-12 amended by GN 536, 26 April 2004.]
Application in terms of section 37(1) read with regulation 8(1)
A person entitled to benefits in terms of the Act may appeal against a decision of the Commissioner to
suspend that person’s rights to benefits, or a decision of a claim officer relating to the payment or non-
payment of benefits. This Notice of appeal must be send to the Regional Appeal Committee, where an
application was lodged.

1. Personal details
1.1 Name .................................................................................................................................. 1.2 ID
number: ........................................................................................................................ 1.3
Passport number ............................................................................................................... 1.4
Residential address ........................................................................................................... 1.5
Postal address .................................................................................................................... 1.6 E-
Mail address ................................................................................................................... 1.7 Tel.
168 A Practical Guide to Labour Law

number (include the code) ...................................................................................... 1.8 Cell. no.

.............................................................................................................................
2. Employer details
2.1 Name of employer (prior to unemployment) ................................................................. 2.2 UIF
reference number ...................................................................................................... 2.3 Physical
address ................................................................................................................. 2.4 Postal
address .................................................................................................................... 2.5 E-mail
................................................................................................................................. 2.6 Tel
number ........................................................................................................................
2.7 Fax number .......................................................................................................................
3. Decision appealed against
3.1 What decision are you appealing against?
............................................................................................................................................
3.2 Which region made the decision?
............................................................................................................................................
3.3 When was the decision made?
............................................................................................................................................
3.4 When were you notified about the decision?
............................................................................................................................................
3.5 Why are you appealing against the decision?
............................................................................................................................................
3.6 In what respects do you think the decision is incorrect or unfair?
............................................................................................................................................
............................................................................................................................................
............................................................................................................................................
3.7 What outcome do you seek from this Regional appeal?
............................................................................................................................................
............................................................................................................................................

............................................................................................................................................ Signature

................................................................................................... Date ................................

For official purposes

On the ......................................... the Regional Appeal Committee decided that the appeal was 
Successful
 Unsuccessful because .................................................................................................................

Signature of chairperson ........................................................................ Date ..............................

 6
COMPENSATION FOR OCCUPATIONAL INJURIES
AND DISEASES ACT 130 OF 1993

6.1 Introduction

Common law does not provide any security or benefits to an employee who has sustained injuries
on duty. In fact, there is no common law obligation on an employer to pay wages to an employee
who is absent due to illness or injuries. The only recourse the employee has at common law is to
institute civil action against his employer for compensation. This is an onerous route to follow since
the employee will not succeed with a claim unless he can prove intent or negligence on the part of
the employer, i.e. that an act or omission by the employer was the cause of his injuries.
The first Act to broaden the common law position was the Workmen’s Compensation Act 30 of
1941. This Act provided for the payment of compensation to employees regardless of whether the
employer was the cause of the injuries and regardless of whether the employee could prove intent
or negligence by the employer. Compensation in terms of this Act was paid in the event of injuries
sustained on duty, to dependants of an employee who died because of such injuries and in the event
of industrial diseases. For this purpose the Accident Fund was established. The loss recoverable in
terms of the Act was a material loss caused by the accident, i.e. loss of income and medical
expenses. The employee, however, did not lose his right to recover compensation from the
wrongdoer personally, be it the employer or a third party.
On 1 March 1994 the Compensation for Occupational Injuries and Diseases Act 130 of 1993
(COIDA) came into operation and the Workmen’s Compensation Act was repealed. COIDA, like its
predecessor, also provides for the payment of compensation in respect of occupational injuries,
death as a result of such injuries and occupational diseases. Both the repealed Workmen’s
Compensation Act and COIDA require that, in order to qualify for compensation, the injury must
have been caused by an accident “arising out of and in the course of the employee’s employment”.
The Workmen’s Compensation Act, however, was not clear as to how this concept should be
interpreted. It was left to the courts to interpret and develop the concept. COIDA, in section 22(4),
describes what is meant by “arisen out of and in the course of employment”. It appears that the
interpretation given to this concept by our courts over the years has now been codified in COIDA.
Another feature of COIDA is that its application is much wider than that of the old Workmen’s
Compensation Act. The definition of “employee” (previously “workman”) has been extended to
include a number of employees who were previously excluded from the right to and security of
compensation, such as casual employees, seamen and airmen. Also excluded from the application
of the old Act were employees who earned more than a specified amount per year. This exclusion
has been removed when COIDA came into operation, with the result that all employees now receive
compensation regardless of their income, but the amount of compensation is subject to a threshold
amount determined by the Minister. This amount is revised and adapted more or less annually and
is at present
170 A Practical Guide to Labour Law

167
R458 520 per annum. This means that an employee who earns in excess of the threshold amount
will receive compensation, but the amount of compensation is calculated as is the employee earned
the threshold amount.
“Earnings” of an employee is defined as the monthly rate at which an employee was being
remunerated by his employer at the time of the accident and includes the value of food and quarters
supplied by the employer, as well as any overtime payment or special remuneration in cash or in
kind of a regular nature or for work ordinarily performed. Excluded from “earnings” are the
following: any payment for intermittent overtime; payment for nonrecurrent occasional services;
amounts paid by an employer to an employee to cover special expenses and ex gratia payments (ss
1 & 63).
The Compensation Fund was created in terms of section 15 of COIDA and replaces the old
Accident Fund. It derives its income from contributions by employers and is administered by the
Director General.

6.2 Application of the Act

The majority of employees are afforded the right to compensation in case of injuries or occupational
diseases.
An “employee” is defined in section 1 as a person who has entered into or works under a contract
of employment with an employer, including an apprenticeship contract or another contract of
learnership. Casual employees, directors or members of a body corporate who have entered into a
contract of service, apprenticeship or learnership with the body corporate and persons provided
and paid by a labour broker to work for a client of the broker are also included. So are the
dependants of a deceased employee and the curator of a person under disability.
Excluded from the application of COIDA (s 1) are:
• persons performing military service or undergoing military training who are not Perma-nent
Force members;
• permanent members of the SANDF and SAPS while acting in defence of the country;
• domestic servants employed in private households; and
• persons who contract for the carrying out of work and themselves engage other persons to
perform the work (i.e. an independent contractor engaging a “sub-contractor” to actually
perform the work).
Persons employed outside South Africa are, of course, excluded from the Act, but while they are
temporarily performing work within the country they may be entitled to compensation in the event
of injury, provided arrangements have been made with the Director General. Should such an
employee perform work inside the country for a period longer than 12 months, he is deemed to be
employed within the Republic and, therefore, enjoys the protection of the Act. The same principles
are applicable, mutatis mutandis, to persons who ordinarily work within South Africa but who
perform work on a temporary basis outside the country (s 23).

6.3 Duties of employer

An employer must register with the Compensation Commissioner (i.e. with the Department of
Labour) and furnish details of the business (s 80). The State, Parliament, provincial governments and
local authorities may be exempted from furnishing such details (ss 80(4) & 84(1)). Persons who are
not resident in South Africa and body corporates which are not registered in terms of South African
law and who carry on business in the Republic must furnish the Compensation Commissioner with
the address of their head office and the name and address of their chief officer in the Republic. The
Compensation for Occupational Injuries and Diseases Act 130 of 1993 171

chief officer is deemed an employer in terms of the Act (s 80(5)). If a person (the mandator) enters
into an agreement with a contractor for the execution of work, the contractor must register as an
employer and fulfil all the duties of an employer (s 89).
An employer is obliged to keep records for a period of four years of all its employees, wages paid
and time worked (s 81). Before the end of March every year a statement (return) setting out the
wages paid to employees must be submitted to the Commissioner (s 82). On the strength of the
information in the return the Director General determines an amount to be paid by the employer
to the Compensation Fund (s 83). The employer must pay the determined amount within 30 days of
a date specified by the Commissioner (s 86). The State, Parliament, provincial governments,
exempted local authorities and employers who have obtained an insurance policy for the extent of
their potential liability are not required to pay an assessment (s 84).

6.4 Procedure to claim compensation

An employee must notify his employer verbally or in writing of an accident as soon as is reasonably
possible, as well as of his intention to claim compensation (s 38). The employer must notify the
Compensation Commissioner of the accident within seven days if the employee alleges that he has
suffered personal injuries arising out of and in the course of his employment.
To claim compensation the prescribed forms must be submitted to the Commissioner (ss 39 &
41). A claim for compensation must be lodged within 12 months of the date of the injury or death
(s 43).

6.5 The right to compensation

In order to qualify for compensation the following requirements must be met:

• an employer-employee relationship must exist;
• an “accident” must have caused the injuries or death; and
• the accident must have occurred in the “scope of the employee’s employment” i.e. the accident
must have arisen out of and in the course of his employment.
A contract of employment must exist at the time of the accident – i.e.
the employee must be an “employee” as defined when the accident
EMPLOYEE occurs (s 1).

• The accident must take place suddenly and unexpectedly.

• If the injury or death is the result of an expected and drawn-
ACCIDENT out process, it does not qualify as an accident (Innes v Johannesburg Municipality
1911 TPD 12; Nicosia v Workmen’s Compensation Commissioner
1954 (3) SA 897 (T); Pyper v Manchester Liners Ltd 1916 2 KB
691).
• The accident must result in an injury (internal or external) or death of the employee (ss 1 & 22).
172 A Practical Guide to Labour Law

• The accident must take place in the “scope of the employee’s employment” – i.e. in the nature of the
employee’s duties and in the course of his service (s 1).
• The accident must thus stand in relation to the employee’s duties (Minister of Justice v Khoza 1966
(1) SA 410 (A).
• The accident occurs in the “scope of employment”:
– if it occurs on the work premises;
– if it occurs while the employee is working;
– if it occurs while the employee is promoting the interests of his
employer, regardless of whether his actions are ille-
SCOPE OF gal or have been prohibited or of whether he has been EMPLOYMENT given no
instruction to perform such actions (s 22(4));
– if it occurs while the employee is being conveyed to or from work
free of charge by his employer in a vehicle supplied by the employer
and driven by the employer (or one of its employees) (s 22(5));
– if it occurs while the employee, with the consent of his employer, is
receiving training in first aid, rescue work or other emergency
services (s 25);
– if it occurs while the employee is partly promoting his own interests
and partly those of his employer.
• If the employee completely abandons his duties in furtherance of his own interests, he does not enjoy
the protection provided by COIDA.

6.6 Compensation

No payments will be made in respect of temporary disablement which lasts for three days or less (s
22(2)). If an accident is the result of the serious and wilful misconduct of an employee, no
compensation is payable, unless the accident results in serious disablement or death (s 22(3)).
If, at the time of considering a claim for compensation, it appears that the contract of
employment, apprenticeship or learnership of the employee is invalid, the Director General may
deal with the claim as if the contract was valid at the time of the accident (s 27).
When compensation is awarded, the Director General may also decide that the cost of medical
aid or of a medical examination be paid from the Compensation Fund (s 16). If the injury in respect
of which compensation is payable causes disablement of such a nature that the employee is unable
to perform essential actions of life without the constant help of another person, the Director
General may grant an allowance towards the cost of such help (s 28).
When the Director General determines that the requirements as set out in paragraph 6.5 above
have been complied with, compensation will be awarded to the disabled employee or to the
dependants of a deceased employee.
Compensation in each category of disablement is calculated in accordance with a prescribed
formula.

6.6.1 Temporary disablement (s 47(1))

Compensation for temporary total disablement is calculated as follows:

Periodic payments of × monthly earnings

The earnings used as a basis for calculating compensation are subject to a maximum weekly or
monthly income (as prescribed by the Minister). This means that compensation is based on the
weekly or monthly income of the employee. If the employee earns in excess of the prescribed
Compensation for Occupational Injuries and Diseases Act 130 of 1993 173

threshold, the compensation is calculated as if the employee earned the threshold amount. These
amounts are revised by the Minister annually.
Temporary disablement lasting longer than 24 months is presumed to be permanent (s 47(6)).
Compensation for temporary partial disablement consists of such portion of the amount
calculated above as the Director General may consider equitable (s 47(2)).
The employer of an injured employee is liable to pay compensation to the employee for the first
three months after the date of the accident. The amount so paid by the employer will be refunded
to the employer by the Director General (s 47(3)).

6.6.2 Permanent disablement (s 49)

The amount of compensation depends on the degree of disablement.
• 30% disablement
A lump sum of 15 times the employee’s monthly earnings at the time of the accident (subject to
the prescribed maximum per month) is paid in the case of a 30% disability.
• Less than 30% disablement
% of disablement
A lump sum of × monthly earnings × 15 30
The prescribed minima and maxima applicable to 30% disablement are equally applicable here.
• 100% disablement
A monthly pension for life is paid equal to 75% of the employee’s monthly earnings, subject to the
prescribed threshold.
• 31% to 99% disablement
A monthly pension for life of
% of disablement 75
× × monthly earnings up to the prescribed maximum
30 100
If an apprentice or a person who is in the process of being trained in a trade is permanently disabled
as a result of an accident, his earnings are calculated as if he had recently qualified or his earnings
will be considered to be equal to a person in the same trade or occupation with five years more
experience than the disabled employee, whichever is more favourable. The same principles apply
mutatis mutandis to an employee who is under the age of 26 years at the time of the accident and
who is permanently disabled (s 51).

6.6.3 In the event of the death of an employee (s 54)

• The widow or widower of the deceased will receive:
– a lump sum of twice the monthly pension that would have been payable if the em-ployee had
been 100% permanently disabled (i.e. 75% of monthly earnings up to the prescribed threshold)
plus
– a monthly pension of 40% of the monthly pension that would have been payable if the employee
had been 100% permanently disabled (i.e. 40% of 75% of the monthly earnings up to the
prescribed threshold).
The widow or widower will receive the monthly pension until the day of his or her death.
Remarriage does not change this position.
• Children under 18 years of age will receive a monthly pension of 20% of 75% of the monthly
earnings up to the prescribed threshold. They receive the monthly pension until their 18th
birthday or until their marriage or death before the age of 18.
174 A Practical Guide to Labour Law

• The total pension payable to the widow or widower and children may not exceed the amount
that would have been payable had the employee been 100% disabled.
• Funeral costs may be paid from the Compensation Fund. The amount will be deter-mined by the
Director General.

6.6.4 Compensation for occupational diseases (ss 65–69)

An employee is entitled to compensation if it can be proved that he has contracted an occupational
disease, as set out in Schedule 3 to the Act. A disease other than a Schedule 3 occupational disease
will attract compensation if the Director General is satisfied that the disease arose out of and in the
course of the employee’s employment.
The claim for compensation must be submitted within 12 months of the commencement of the
disease (s 65). If an employee who has contracted an occupational disease was employed in any
work mentioned in Schedule 3, it is presumed that the disease arose out of and in the course of his
employment, unless the contrary is proved (s 66). An employee must as soon as possible and in
writing notify his employer of the contraction of the disease. The employer must then report same
to the Compensation Commissioner within 14 days
(s 68).
In Urquhart v Compensation Commissioner (2006) 27 ILJ 96 (E) the Court observed that the law
has long recognised that, for the purposes of compensation, a psychiatric disorder or psychological
trauma is as much a personal injury as a cracked skull and that there is nothing in the definitions of
“accident” and “occupational injury” in COIDA to indicate that legislation has a contrary intention.
See also Odayar v Compensation Commissioner 2006 (6) SA 202 (N); Marsland v New Way Motor &
Diesel Engineering (2009) 30 ILJ 169 (LC).

6.6.5 Increased compensation (s 56)

An employee who meets with an accident or contracts an occupational disease which is due to the
negligence of the employer may apply for increased compensation, i.e. compensation in addition to
what would normally be payable. The application must be lodged in the prescribed manner within
24 months from the date of the accident or of the commencement of the disease. Additional
compensation will be awarded if the Director General is satisfied that the accident or disease was
due to the negligence of the employer.
“Negligence of the employer” in this context includes the negligence of a manager, a person who
has the right to engage and dismiss staff on behalf of the employer and an engineer or other person
in charge of machinery. It further includes any patent defect in the condition of the premises, place
of employment, equipment, material and machinery used in the employer’s business.

6.7 Claiming compensation from the employer or a third party

No employee or dependant of an employee may claim damages from the employer directly (s 35).
An employee may, however, apply for increased compensation (see previous paragraph).
An employee who is injured or contracts a disease through the negligence of a third party may
claim compensation from the Compensation Fund and from the third party. The employee must
institute proceedings in a court of law against the third party to recover his damages. In awarding
damages the court will have regard to the amount to which the employee is entitled in terms of
COIDA (s 36). The Director General may institute action in a court of law against the third party for
the recovery of compensation that is paid from the Fund.
6.8 Occupational Diseases in Mines and Works Act 78 of 1973
Compensation for Occupational Injuries and Diseases Act 130 of 1993 175

Mining is an important industry in South Africa and is in nature and character so different from other
places of work that specialised legislation is necessary to cater for its unique requirements. Mine
workers often contract diseases associated with the work they perform. The Occupational Diseases
in Mines and Works Act 78 of 1973 provides for the payment of compensation in such circumstance.
The Medical Certification Committee for Occupational Diseases, established under the Act, is
responsible for deciding whether a disease contracted while an employee was performing risk work
is a compensable one.
Risk means “the risk of contracting a compensatable disease to which persons who perform risk
work in or at or in connection with a mine or works are exposed or the risk determined by the risk
committee in respect of a mine or works” (s 1). The Minister may by notice in the Government
Gazette declare any particular work or all work performed in or at or in connection with any mine
or works to be risk work (s 13). The Act requires all persons performing risk work to be in possession
of a certificate of fitness and to undergo medical examinations at regular intervals (s 15 & Ch3).
The owner of a mine must keep a register of all persons performing risk work (s 16). The Risk
Committee for Mines and Works, also established under the Act (s 18), determines the risks
involved in or at or in connection with every controlled mine or works.
The Act provides for the payment of compensation in respect of certain diseases contracted by
persons employed in mines and works, such as pneumoconiosis, tuberculosis; permanent
obstruction of the airways and permanent cardio-respiratory disease attributable to risk work and
progressive systematic sclerosis.
Benefits are paid by the Compensation Commissioner for Occupational Diseases to an employee
or his dependants from the Mines and Works Compensation Fund (s 61).

Questions

Question 1
Compare the common law position of an employee who sustains injuries while on duty with that of
an employee who enjoys the protection of the Compensation for Occupational
Injuries and Diseases Act (COIDA). (8)

Question 2
Discuss the application of the Compensation for Occupational Injuries and Diseases Act. Refer also
to those categories of employees who are excluded from the application of
COIDA. (15)

Question 3
For an employee to qualify for compensation in terms of COIDA certain requirements must be met.
Discuss these requirements in detail and refer to decided cases to substantiate your answer. (20)
Hint: See Innes v Johannesburg Municipality 1911 TPD 12; Nicosia v Workmen’s Compensation
Commissioner 1954 (3) SA 897 (T); Pyper v Manchester Liners Ltd 1916 2 KB 691; Minister of Justice
v Khoza 1966 (1) SA 410 (A); Assistent-ongevallekommissaris v Ndevu 1980 (1) SA 143
(E); Johannesburg City Council v Marine & Trade Insurance Co 1970 (1) SA 181 (W); Workmen’s
Compensation Commissioner v FA Stewart (Pty) Ltd (1991) 12 ILJ 1015 (Z); Ex parte Commissioner:
In re Manthe 1979 (4) SA 812 (E); Ward v Workmen’s Compensation Commissioner 1962 (1) SA 728
(T); Gumede en Andere v SA Eagle Versekeringsmaatskappy Bpk 1989 (3) SA 741 (T); Mureinik
“Workmen’s compensation and the mugging that arose ‘out of’ employment” (1980) 1 ILJ 33; Le
Roux “Beheer oor werkersvervoer en die Ongevallewet” (1980) 1 ILJ 100.

Question 4
Give the formula for the calculation of compensation in each of the following instances:
176 A Practical Guide to Labour Law

4.1 temporary total disablement; (2)

4.2 permanent disablement; and (8) 4.3 death of an employee. (4)

Question 5
Section 36 of the Compensation for Occupational Injuries and Diseases Act makes it possible for an
employee who has been injured to claim compensation from both the Compensation Fund and from
a third party who has caused his injuries. Discuss this section in detail and refer to decided cases to
substantiate your answer. (12)
Hint: See Govender v SA Stevedores Service Co Ltd (1981) 2 ILJ 27 (IC); SAR & H v SA Stevedores
Service Co Ltd 1983 (1) SA 1066 (A); and Blumenfeld “Workmen’s compensation: Third parties’
liability” (1983) 4 ILJ 261.

Question 6
Explain whether the persons in the following circumstances will qualify for compensation in terms
of COIDA:
6.1 A learner in the course of a carpentering trade at a school suffers injuries while making a chair.
(4)
Hint: See Booyens NO v OFS Provincial Administration 1924 OPD 120.
6.2 A corporal in the SA National Defence Force who is injured while defending the borders of the
country. (3)
6.3 A domestic worker who works at an orphanage is injured while performing her duties.
There are usually 12 workers employed at the orphanage. (2)
6.4 A farm labourer is injured while servicing a tractor. (2)
6.5 An employee who works for a company with its head office in Johannesburg is injured while
working in Namibia for a period of six months. (3)
6.6 A general manager of a company who earns R40 000 per month is injured while taking visitors
on a factory tour. (3)

Question 7
William was employed by Wiltshire Dairies (Pty) Ltd. He commenced his duties at 6:00 and left the
dairy at 16:00 every day. His duties comprised the delivery of orders to clients, followed by clerical
work at the office. He also kept the keys to the dairy and safe with him after working hours. One of
the company’s delivery trucks was made available to him for the deliveries and he was allowed to
take this truck back home after the deliveries of the day had been completed. It often happened
that he made some of the deliveries on his way home in the afternoon or early in the morning on
his way to work. One morning, on his way to work, the delivery truck broke down and he then used
his own vehicle to get to work. On his way to work he was involved in an accident and was killed.
William’s wife now wishes to claim compensation from the Compensation Fund. Advise her as to
the validity of her claim. (8)
Hint: See Ward v Workmen’s Compensation Commissioner 1962 (1) SA 728 (T); Assistent-
ongevallekommissaris v Ndevu 1980 (1) SA 143 (E); Ex parte Commissioner: In re Manthe 1979 (4)
SA 812 (E); Gumede en Andere v SA Eagle Versekeringsmaatskappy Bpk 1989 (3) SA 741 (T); Mureinik
“Workmen’s compensation and the mugging that arose ‘out of’ employment” (1980) 1 ILJ 33; and
Le Roux “Beheer oor werkersvervoer en die Ongevallewet” (1980) 1 ILJ 100.

Question 8
Ruben is employed as a truck driver by KwaZulu-Natal Wholesale Liquors. His duties comprise the
loading and unloading of cases of liquor and the delivery of orders to clients of KWL. He earns R2
000 per week.
Compensation for Occupational Injuries and Diseases Act 130 of 1993 177

8.1 On his way to deliver a few cases of liquor to a retailer, he is involved in a motor vehicle accident
caused by one Van Wyk. He sustains serious back injuries and is paralysed. He is hospitalised
for four months, after which time he slowly starts to regain mobility. Seven months after the
accident he is well enough to resume work.
(a) Is Ruben entitled to compensation in terms of COIDA? Explain and refer to case law to
substantiate your answer. (8)
Hint: See Nicosia v Workmen’s Compensation Commissioner 1954 (3) SA 897 (T); Minister of
Justice v Khoza 1966 (1) SA 410 (A); Assistent-ongevallekommissaris v Ndevu 1980 (1) SA
143 (E); Ex parte Commissioner: In re Manthe 1979 (4) SA 812 (E); Ward v Workmen’s
Compensation Commissioner 1962 (1) SA 728 (T).
(b) How will the nature of Ruben’s injuries be classified? (2)
(c) Assume that Ruben qualifies for compensation. Give the formula that applies for the calculation
of his compensation and then calculate the amount of compensation he will receive. (4)
(d) Is Ruben entitled to claim compensation from Van Wyk? Discuss with reference to decided
cases. (8)
Hint: See Govender v SA Stevedores Service Co Ltd (1981) 2 ILJ 27 (IC); SAR & H v SA
Stevedores Service Co Ltd 1983 (1) SA 1066 (A); and Blumenfeld “Workmen’s
compensation: Third parties’ liability” (1983) 4 ILJ 261.
8.2 Because of a stay-away in which most employees participate, there is an insufficient number of
employees at KWL to perform all the different tasks. Ruben therefore assists a co-worker in
the warehouse to pack cases of liquor on shelves. Management is unaware of Ruben helping
the other worker. While Ruben is picking up a case he experiences a pain in his back. A
subsequent medical examination proves that one of the vertebrae has slipped, probably
caused by the movement when he handled the case of liquor.
(a) Is Ruben entitled to compensation in terms of COIDA? Explain and refer to case law to
substantiate your answer. (8)
Hint: See cases mentioned above.
(b) How will the nature of Ruben’s injuries be classified? (2)
(c) Assume that Ruben qualifies for compensation. Give the formula for the calculation of his
compensation and then calculate the amount he is entitled to. (4)
8.3 Ruben is conveyed to and from work by an independent driver who has been hired by the
company to transport its employees. The company does not prescribe to the driver the route
he has to take or any stops he has to make; the company only expects him to fetch the workers
at clocking out time and to return them the following morning in time for work. One morning
on their way to work eight of the KWL workers are injured in a motor vehicle accident caused
by the negligent driving of the driver. Ruben is one of the workers who has been injured: he
lost his left leg and suffered a few other minor injuries.
(a) Is Ruben entitled to compensation in terms of COIDA? Explain and refer to case law to
substantiate your answer. (8)
Hint: See Assistent-ongevallekommissaris v Ndevu 1980 (1) SA 143 (E); Innes v Johannesburg
Municipality 1911 TPD 12; and Le Roux “Beheer oor werkersvervoer en die
Ongevallewet” (1980) 1 ILJ 100.
(b) How can the nature of Ruben’s injuries in this case be classified? (2)
(c) Assume that Ruben qualifies for compensation. Give the formula for the calculation of his
compensation and then calculate the amount he is entitled to. (4)
8.4 While Ruben is on his way to make deliveries to a client of KWL he stops for refreshments at a
cafe. When exiting the cafe, he crosses the street without looking out for oncoming traffic.
An oncoming car knocks him down and Ruben’s right leg is broken, with the result that he
cannot work for six weeks.
Is Ruben entitled to compensation in terms of COIDA? Explain and refer to case law to substantiate
your answer. (8)
178 A Practical Guide to Labour Law

Hint: See Nicosia v Workmen’s Compensation Commissioner 1954 (3) SA 897 (T); Innes v
Johannesburg Municipality 1911 TPD 12; and Johannesburg City Council v Marine & Trade
Insurance Co 1970 (1) SA 181 (W).

Question 9
James was a police officer in the employ of SAPS for 15 years until he was medically boarded. Three
years before his employment ended James was diagnosed as suffering from posttraumatic stress
disorder. He claimed compensation in terms of COIDA. In his application he submitted that he had,
during the course of his work, been exposed to numerous deaths, shootings, murders, armed
robberies, motor vehicle accidents and rapes and as a result was suffering from a work-based mental
disease. Discuss whether his claim will be successful, paying particular attention to the definition of
“accident”. (10)
Hint: See Odayar v Compensation Commissioner 2006 (6) SA 202 (N); Urquhart v Compensation
Commissioner (2006) 27 ILJ 96 (E); Marsland v New Way Motor & Diesel Engineering (2009) 30
ILJ 169 (LC).

Appendix 1

SCHEDULE 2
Percentage of
Injury permanent
disablement
Loss of two limbs ..................................................................................................................... 100
Loss of both hands, or of all fingers and both thumbs......................................................... 100
Total loss of sight .................................................................................................................... 100
Total paralysis .......................................................................................................................... 100
Injuries resulting in being permanently bedridden ............................................................. 100
Any other injury causing permanent total disablement....................................................... 100
Loss of arm at shoulder ........................................................................................................... 65
Loss of arm between elbow and shoulder.............................................................................. 65
Loss of arm at elbow ................................................................................................................ 55
Loss of arm between wrist and elbow ..................................................................................... 55
Loss of hand at wrist ................................................................................................................ 50
Loss of four fingers and thumb of one hand ........................................................................... 50
Loss of four fingers ................................................................................................................... 40
Loss of thumb – both phalanges ............................................................................................. 25
one phalanx .................................................................................................. 15
Loss of index finger – three phalanges................................................................................... 10
two phalanges ...................................................................................... 8
one phalanx......................................................................................... 5
Loss of middle finger – three phalanges ................................................................................ 8
two phalanges .................................................................................... 6
one phalanx ...................................................................................... 4
Loss of ring finger – three phalanges..................................................................................... 6
two phalanges ........................................................................................ 5
one phalanx ........................................................................................... 3
Loss of little finger – three phalanges..................................................................................... 4
two phalanges ........................................................................................ 3
one phalanx ........................................................................................... 2
Loss of metacarpals – first, second or third (additional)...................................................... 4
fourth or fifth (additional) ................................................................. 2
Loss of leg – at hip .................................................................................................................. 70
between knee and hip....................................................................................... 45 to 70
Compensation for Occupational Injuries and Diseases Act 130 of 1993 179

below knee ......................................................................................................... 35 to 45

Loss of toes – all....................................................................................................................... 15
big, both phalanges .......................................................................................... 7
big, one phalanx .............................................................................................. 3
other than big –
four toes ....................................................................................................... 7
three toes ..................................................................................................... 5
two toes ........................................................................................................ 3
one toe ......................................................................................................... 1
Loss of eye – whole eye ........................................................................................................... 30
sight .................................................................................................................... 30
sight, except perception of light ...................................................................... 30
Loss of hearing – both ears ..................................................................................................... 50
one ear ........................................................................................................ 7
Total permanent loss of the use of a limb shall be treated as the loss of the limb.
Any injury to the left arm or hand and, in the case of a left-handed employee, to the right arm or hand, may
in the discretion of the Director-General be rated at ninety per cent of the above percentage.
If there are two or more injuries the sum of the percentages for such injuries may be increased, in the
discretion of the Director-General.
Appendix 2

SCHEDULE 3
[As published in GN 552 in Government Gazette 26302 of 30 April 2004.]
In this Schedule the following general concepts have been defined and clarified as set out below.
General
1. Schedule 3 deals with the List of Occupational Diseases which depicts diseases that are occupational and
compensable on the benefits of an explicit presumption referred to in terms of section 66 of the
Compensation for Occupational Injuries and Diseases Act, 1993.
2. The amended Schedule 3 is issued to align the list of diseases mentioned in the first column of Schedule 3
of the Compensation for Occupational Injuries and Diseases Act, 1993 with the list of occupational diseases
appended to International Labour Organization R194 List of Occupational Diseases Recommendation, 2002.
3. The amended Schedule 3 is issued in conformity with section 65(a) and 66 of the Compensation for
Occupational Injuries and Diseases Act, 1993.
4. The List of Occupational Diseases appended to this amended Schedule 3 shall supersede the list of diseases
mentioned in the first column of Schedule 3 in terms of 65(a) of the Compensation for Occupational Injuries
and Diseases Act, 1993.
5. Work shall be defined as:
• all work involving the handling of and/or exposure to any agent(s) mentioned in the List of
Occupational Diseases; and/or
• any occupation involving the handling of and/or exposure to specified agent/work processes
mentioned in the List of Occupational Diseases.
6. Work as defined in the amended Schedule 3 shall supersede all previous work(s) mentioned in Schedule 3
and in section 66 of the Compensation for Occupational Injuries and Diseases Act, 1993.

A. LIST OF OCCUPATIONAL DISEASES

1. Diseases caused by agents
1.1. Diseases caused by chemical agents
1.1.1. Diseases caused by beryllium or its toxic compounds
1.1.2. Diseases caused by cadmium or its toxic compounds
1.1.3. Diseases caused by phosphorus or its toxic compounds
180 A Practical Guide to Labour Law

1.1.4. Diseases caused by chromium or its toxic compounds

1.1.5. Diseases caused by manganese or its toxic compounds
1.1.6. Diseases caused by arsenic or its toxic compounds
1.1.7. Diseases caused by mercury or its toxic compounds
1.1.8. Diseases caused by lead or its toxic compounds
1.1.9. Diseases caused by fluorine or its toxic compounds
1.1.10. Diseases caused by carbon disulphide
1.1.11. Diseases caused by the toxic halogen derivatives of aliphatic or aromatic
hydrocarbons
1.1.12. Diseases caused by benzene or its toxic homologues
1.1.13. Diseases caused by toxic nitro- and amino-derivatives of benzene or its
homologues
1.1.14. Diseases caused by nitroglycerine or other nitric acid esters
1.1.15. Diseases caused by alcohols, glycols or ketones
1.1.16. Diseases caused by asphyxiants: carbon monoxide, hydrogen cyanide or its toxic
derivatives, hydrogen sulphide
1.1.17. Diseases caused by acrylonitrile
1.1.18. Diseases caused by oxides of nitrogen
1.1.19. Diseases caused by vanadium or its toxic compounds
1.1.20. Diseases caused by antimony or its toxic compounds
1.1.21. Diseases caused by hexane
1.1.22. Diseases of teeth caused by mineral acids
1.1.23. Diseases caused by pharmaceutical agents
1.1.24. Diseases caused by thallium or its compounds
1.1.25. Diseases caused by osmium or its compounds
1.1.26. Diseases caused by selenium or its compounds
1.1.26. Diseases caused by copper or its compounds
1.1.28. Diseases caused by tin or its compounds
1.1.29. Diseases caused by zinc or its compounds
1.1.30. Diseases caused by ozone, phosgene
1.1.31. Diseases caused by benzoquinone
1.1.32. Diseases caused by chlorine
1.1.33. Diseases caused by pesticides and/or herbicides
1.1.34. Diseases caused by oxides of sulphur
1.2. Diseases caused by physical agents
1.2.1. Hearing impairment caused by noise
1.2.2. Diseases caused by vibration (disorders of muscles, tendons, bones, joints,
peripheral blood vessels or peripheral nerves)
1.2.3. Diseases caused by work in compressed air/abnormal atmospheric or water
pressure
1.2.4. Diseases caused by ionizing radiations
1.2.5. Diseases caused by extreme temperatures (cold and hot)
1.2.6. Diseases caused by ultraviolet radiation
1.3. Diseases caused by biological agents
1.3.1. Infectious or parasitic diseases contracted in an occupation where there is a
particular risk of contamination
1.3.2. Toxic/inflammatory syndromes (inhalation fever, toxic pneumonitis, organic dust
toxic syndrome) associated with exposure to bacterial and fungal contaminants
(endotoxin, mycotoxins, (1 ->3)-B-D-glucans, volatile organic compounds)
Compensation for Occupational Injuries and Diseases Act 130 of 1993 181

2. Diseases by target organ systems

2.1. Occupational respiratory diseases
2.1.1. Pneumoconiosis-fibrosis of the parenchyma of the lung caused by fibrogenic dust
2.1.2. Pleural thickening caused by asbestos dust exposure
2.1.3. Silicotuberculosis
2.1.4. Bronchopulmonary diseases caused by hard-metal dust
2.1.5. Bronchopulmonary diseases caused by cotton, flax, hemp or sisal dust (byssinosis)
2.1.6. Occupational asthma caused by one of the following recognised sensitising agents
or irritants inherent to the work process:
2.1.6.1. isocyanates
2.1.6.2. platinum, nickel, cobalt, vanadium or chromium salts
2.1.6.3. hardening agents, including epoxy resins
2.1.6.4. acrylic acids or derived acrylates
2.1.6.5. soldering or welding fumes
2.1.6.6. substances from animals or insects
2.1.6.7. fungi or spores
2.1.6.8. proteolytic enzymes
2.1.6.9. organic dust
2.1.6.10. vapours or fumes of formaldehyde, anhydrides, amines
2.1.6.11. latex
2.1.7. Extrinsic allergic alveolitis caused by the inhalation of the following organic dusts
and chemicals inherent to the work process: moulds, fungal spores or any other
allergenic proteinaceous material, 2,4 toluene-di-isocyanates
2.1.8. Siderosis
2.1.9. Chronic obstructive pulmonary diseases
2.1.10. Diseases of the lung caused by aluminium
2.1.11. Upper airways disorders caused by recognised sensitising agents or irritants
inherent to the work process
2.1.12. Diseases caused by chronic or repetitive exposure to products of combustion
2.2. Occupational skin diseases
2.2.1. Allergic or irritant contact dermatitis caused by physical, chemical or biological
agents
2.2.2. Occupational vitiligo
2.3. Occupational musculo-skeletal disorders
2.3.1. Musculo-skeletal diseases caused by specific work activities or work environment
where particular risk factors are present. Examples of such activities or
environment include:
a. rapid or repetitive motion
b. forceful exertion
c. excessive mechanical force concentration
d. awkward or non-neutral postures
e. vibration
3. Occupational cancer
3.1. Cancer caused by the following agents
3.1.1. Asbestos
3.1.2. Benzidine and its salts
3.1.3. Bis chloromethyl ether (BCME)
3.1.4. Chromium and chromium compounds
182 A Practical Guide to Labour Law

3.1.5. Coal tars, coal tar pitches or soots

3.1.6. Beta-naphthylamine
3.1.7. Vinyl chloride
3.1.8. Benzene or its toxic homologues
3.1.9. Toxic nitro- and amino-derivatives of benzene or its homologues
3.1.10. Ionizing radiations
3.1.11. Tar, pitch, bitumen, mineral oil, anthracene, or the compounds, products or
residues of these substances
3.1.12. Coke oven emissions
3.1.13. Compounds of nickel
3.1.14. Wood dust
3.1.15. Crystalline silica
3.1.16. Mycotoxins
3.1.17. Arsenic
4. Other diseases
4.1. Miners’ nystagmus
Appendix 3

EMPLOYER’S REPORT OF AN ACCIDENT W CI 2 (E)

COMPENSATION FOR OCCUPATIONAL INJURIES AND PART A PAGE 1
DISEASES ACT, 1993 (ACT NO. 130 OF 1993)
[Section 39(1) and (5) – Commissioner’s rules, forms and particulars – For office use only
Annexure 13]
Instructions: Claim No. ...................
Complete the form in block letters and mark appropriate areas (X).

DECLARATION BY EMPLOYER OR AUTHORISED PERSON

I hereby declare that the particulars, shown in items 1 to 59 of this report, of an alleged injury on duty,
are to the best of my knowledge and belief true and accurate.

Signed on this ……… day of …………………… 19…… SIGNATURE ...........................................

EMPLOYER
1. Registered name with the Compensation Commissioner ............................................................
2. Registration number of this business with the Compensation
Commissioner
3. Contact person
................................................................................................................................ 4. Street address
.................................................................................. 5. Postal code .................... 6. Postal address
........................................... 7. Postal code .............. 8. Tel. (......) .................
9. Fax (......) ........... 10. Situation of business/farm .......................................................................
11. Nature of business, trade or industry.............................................................................................

EMPLOYEE
12. Is the injured employee a working director, working member of a CC, owner of or a part-
Compensation for Occupational Injuries and Diseases Act 130 of 1993 183

ner in the business? .......................................................................................................................

13. Surname ............................................................ 14. First names ...............................................
15. Id. No. ........................................... 16. Date Male Female
of Birth Married Single ...../...../..... 17. Sex
18. Marital state 19. Citizen of .........................................................
20. Personnel No. ...................................... 21. Occupation ...........................................................
22. Street address ................................................................................. 23. Postal code ..................

Period in your employ Expected period of 0–13 days 14 and more

24. 25.
(years/months) ……/…… disablement (days)

ACCIDENT
26. Date of accident ……………/…………/………… 27. Time ......................
28. Place of accident .................................................................................. 29. District ..................
30. Date employee reported accident ……………/…………/………… 31. Time ......................
32. What task was the employee performing at the time of the accident? ......................................
33. Period of experience in task performed (years/months) …………………/………………

34. Was his action at the time of the accident in connection with your trade or Yes No
business? (If “no” state reasons on reverse side)

35. Short description of how the accident occurred. (ALSO mark the applicable items on
reverse side and use the reverse side for a full description.) .......................................................
........................................................................................................................................................
........................................................................................................................................................
(Refer to the machine/process involved and whether the injured person fell or was struck and all the
factors contributing to the accident)
36. Was the accident a traffic accident on a public road? Yes No
37. Nature of injury/ies sustained (e.g. index finger of right hand crushed)
.................................
Mark any of the following when applicable: Killed Amputation Unconsciousness

38. Are you satisfied that the employee was injured Yes No
in the manner alleged by him? If not, give reasons
........................................................................................................................................................

PART A PAGE 2 MUST ALSO BE COMPLETED, PLEASE

PART A PAGE 3
ADDITIONAL DETAILS OR COMMENTS
This page may be used for any additional details or comments regarding the accident.

35. Continuation of point 35 of the previous page. Contributing factors/causes applicable (Mark the
applicable item/s at A and B):
(A) (B)
184 A Practical Guide to Labour Law

Defective plant Railway Explosions

Defective machine Building work Rotating machine

Unfavourable Electricity Press/Rolls

conditions of work

Fault of employer Chemicals Woodworking

machines

Fault of injured Poisoning Lifting machines

employee

Fault of supervisor Burns Hand tools

Other machinery (specify) ...........................................................................................................
Any other contributing factors, not mentioned above (specify) ................................................

.................................................................................................................................................................
.................................................................................................................................................................
.................................................................................................................................................................
.................................................................................................................................................................
.................................................................................................................................................................
.................................................................................................................................................................
.................................................................................................................................................................
.................................................................................................................................................................
.................................................................................................................................................................
.................................................................................................................................................................
.................................................................................................................................................................
.................................................................................................................................................................
W CI 2 (E)
PART A PAGE 2

FURTHER PARTICULARS OF EMPLOYEE

39. Earnings of employee at the time of the accident: R/week R/month

Gross cash earnings ................................................................................... ............ ............

(Including average payments for overtime and/or commission of a constant

character)
Allowance of a recurrent nature:
(a) Bonuses (i.e. 13th cheque) ................................................................ ............ ............
(b) Other allowances (specify nature) .................................................... ............ ............
Cash value of free food .............................................................................. ............ ............
Cash value of free quarters ........................................................................ ............ ............

40. Will the employee during temporary total disablement continue to receive from you:
Free Food? Yes No Free quarters? Yes No
41. Are you prepared to
make cash payments during temporary total disablement that lasts longer than three months?
Compensation for Occupational Injuries and Diseases Act 130 of 1993 185

Yes No
42. If you have already paid cash to the employee, state the total amount R....................................
43. For what period were such payment made? From ……………/……………/…………… to
……………/……………/……………
44. Number of days per week worked by the employee .................................................................... 45.
Date on which the employee ceased work ……/……/…… 46. Time ....................................
47. Did the employee complete his shift on the day of the accident? Yes No
48. Date on which the employee ceased work ……/……/…… 49. Time
....................................
(If employee has not yet assumed work, a Resumption Report (W CI 6) must be submitted as soon
as he resumes duty.)
50. If the employee was killed in the accident, state name and address of dependant of the employee.

FURTHER PARTICULARS
51. Should the employee, to your knowledge, have any physical defect, suffer from any serious disease
prior to the accident or has previously received compensation for permanent disablement, give full
particulars ................................................................................................
.........................................................................................................................................................
52. Was first aid given in this case? Yes No
53. If a medical practitioner treated the employee, state name of the
practitioner ........................
.........................................................................................................................................................
54. If the employee received treatment at a hospital, state name of hospital ..................................
.........................................................................................................................................................
55. Was the accident caused by the employee’s:
(a) Deliberate non-compliance with directions? Yes No
(b) Reckless disregard of the terms of any law or
statutory regulation Yes No
designed to ensure the safety or health of employees or the
pre- vention of accidents?
Yes No
(c) Action while under the influence of liquor or drugs?
(N.B.: If any reply is in the affirmative, the employee must furnish an explanatory statement which must
then be attached hereto together with your comments thereon.)
56. Name and address of anybody (a) Who witnessed the accident ............................................... (b)
Who was aware of the accident at the time ..........................................................................
57. How many other employees were injured in the same accident? ...............................................
58. If the accident was investigated by the SA Police, state name of the police station
........................................................................................................................................................
59. If motor vehicles were involved, furnish registration number/s ...............................................

ANY ADDITIONAL DETAILS CAN BE SUPPLIED ON PART A PAGE 3.

186 A Practical Guide to Labour Law

Appendix 4

W.Cl.3
Claim No. .............................
NOTICE OF ACCIDENT AND CLAIM FOR COMPENSATION
COMPENSATION FOR OCCUPATIONAL INJURIES AND DISEASES ACT, 1993
(ACT NO. 130 OF 1993)
(Previously Workmen’s Compensation Act, 1941)
[Section 38(1) and section 43(1) – Commissioner’s rules, forms and particulars – Annexure 14)

1. EMPLOYEE
Surname ................................................................................................................................................
(Capital letters)
First names .............................................................................................................................................
(Capital letters)
Id. No. ................................................................. Personnel No. .......................................................
Residential address ................................................................................................................................
..................................................................................................................... Postal Code ...................
Occupation Date of birth Sex Marital status

........................................... Male Female Married Not married

2. EMPLOYER
Name of employer in whose service the accident was contracted ......................................................
.................................................................................................................................................................
Address ..................................................................................................................................................
.................................................................................................................................................................

3. ACCIDENT
(i) When and where did the accident occur?
Date .................................... Time ................................... Place ........................................
(ii) What was the workman doing at the time and how did the accident occur?
..................................................................................................................................................
..................................................................................................................................................
(iii) Describe in detail the nature and extent of the injury .........................................................
..................................................................................................................................................
..................................................................................................................................................
(iv) Did anybody see the accident happen?
If so, specify? Name ............................................................................................................... Address
...........................................................................................................

4. THE EMPLOYEE’S EARNINGS AT TIME OF ACCIDENT

Compensation for Occupational Injuries and Diseases Act 130 of 1993 187

Per week Per month

R R
Gross cash earnings .................................................................................... ................ .................
(including average overtime and/or commission of a regular nature)
Allowance of a regular nature:
(a) Bonuses (e.g. 13th cheque) .............................................................. ................ .................
(b) Other (specify) .................................................................................. ................ .................
............................................................................................................. ................ .................
Cash value of quarters ................................................................................ ................ .................
Cash value of food ...................................................................................... ................ .................

5. (a) If the accident resulted in the DEATH of the employee, the following information relating to his
dependants, on whose behalf the claim is made, should be given:
Full name Address Date of birth Relationship with employee

..................................... .............................. ............................. ......................................................

..................................... .............................. ............................. ......................................................

..................................... .............................. ............................. ......................................................
(b) In the case of all OTHER accidents, the following information should be furnished in regard to next-of-
kin of the employee:
Full name Address Relationship

................................................... ....................................................... ................................................

................................................... ....................................................... ................................................

................................................... ....................................................... ................................................
I certify that the information in this form is to the best of my knowledge correct.

Date .................................................................... ............................................................................

Signature of employee or person
acting on his/her behalf
188 A Practical Guide to Labour Law
 7
OCCUPATIONAL HEALTH AND SAFETY ACT 85 OF
1993

7.1 Introduction

Employees enjoy a common law right to a safe working environment. Health and safety legislation
is aimed at supplementing this basic right. In the South African context health and safety legislation
was a response to the dangers inherent in mining operations and dates back to the turn of the
twentieth century.
The Occupational Health and Safety Act 85 of 1993 (OHASA) came into operation on 1 January
1994. The long title of OHASA reads as follows:
To provide for the health and safety of persons at work and for the health and safety of persons in
connection with the use of plant and machinery; the protection of persons other than persons at work
against hazards to health and safety arising out of or in connection with the activities of persons at work;
to establish an advisory council for occupational health and safety; and to provide for matters connected
therewith.
The key features of OHASA include the following:
• employers have to consult with employee representatives when appointing health and safety
representatives (s 17(2));
• OHASA greatly enhances the right of participation of health and safety representatives in health
and safety matters (ss 17–20). Although the Act still follows a largely penal approach to health
and safety enforcement (s 38), it is encouraging that the legislature has taken a step towards
realising that worker empowerment and participation in these matters are crucial to improved
health and safety at the workplace;
• the common law duty of “reasonable care” is codified in the Act (see the definition of
“reasonably practicable” in section 1);
• the State is no longer exempted from the penal provisions of the Act (s 47);
• employers have the duty to inform the workforce of dangers present in the working environment
and provide training (s 8);
• if directed to do so by the Chief Inspector, employers must prepare written health and safety
policies (s 7).

7.2 Application of the Act

190 A Practical Guide to Labour Law

The applicability of OHASA is appropriately wide. It covers both the private and the public sectors,
the agricultural sector, domestic workers in private households and also persons who are exposed
to hazards, even though this is not supposed to occur in the context of employment. In addition,
the Minister may declare that, for the purposes of the Act or some sections of the Act, a person or
category of persons specified by him will be deemed to be an employee.
187
The only exclusions from the Act are the following:
• a mine, a mining area or any works as defined in the Minerals Act 50 of 1991, except insofar as
that Act provides otherwise;
• certain vessels as defined in the Merchant Shipping Act 57 of 1951;
• the Minister may grant exemptions from any or all of the provisions of the Act; and
• labour brokers are not considered to be employers in terms of OHASA.

7.3 Advisory Council for Occupational Health and Safety (ss 2–6)

The Advisory Council for Occupational Health and Safety consists of 20 members, with the Chief
Inspector acting as chairperson. Employers’ and employees’ interests are also represented on the
Council.

• Advise the Minister on matters of policy arising out of the application of the Act.
• Advise the Minister on matters relating to occupational
health and safety.
• Conduct research and investigations.
• Advise the Department on the formulation and publi-
cation of standards, specifications and other forms of guidance
in order to assist employers and employees to
FUNCTIONS maintain appropriate standards.
OF • Advise the Department on the promotion of education THE COUNCIL and training in
occupational health and safety.
(s 3)
• Advise the Department on the collection and dissemin-
ation of information on occupational health and safety.
• The Council may establish technical committees.
• Advise the Department on any matter regarding the per-formance of its functions.

7.4 Duties of employers (ss 8–13)

An employer’s duties include the following:

(a) to provide and maintain, as far as is reasonably practicable, a working environment which is
safe and without risk to the health of employees;
(b) to provide and maintain systems of work, plant and machinery which are safe and without risk
to the health of employees;
(c) to take reasonable steps to eliminate or mitigate any hazard or potential hazard to the safety
and health of employees before resorting to protective equipment;
(d) to make reasonable arrangements for safety and health in connection with production,
processing, use, handling, storage or transport of articles or substances;
Occupational Health and Safety Act 85 of 1993 191

(e) to establish the hazards, if any, to the health and safety of employees in the workplace and to
provide the necessary precautionary measures in this regard;
(f) to provide information, instruction, training and supervision to ensure health and safety of the
employees at work;
(g) to ensure that work is performed and that plant or machinery is used under the supervision
of a trained person;
(h) to conduct the business in such a manner so as to ensure that persons other than employees
are not exposed to hazards;
(i) to ensure that employees are conversant with the hazards to their health and safety attached
to the work they are performing;
(j) to appoint health and safety representatives and to inform them of inspections, investigations
or formal enquiries of which the employer has been notified by an inspector;
(k) to inform the health and safety representative of any incident in the workplace for which the
representative has been designated;
(l) to identify and evaluate the hazards associated with listed work and, if possible, prevent the
exposure of employees to such work. If prevention is not possible, their exposure must be
minimised. An employer must also conduct an occupational hygiene and biological monitoring
programme (ss 11 & 12); and
(m) to report to a labour inspector any incident at work in which a person dies, becomes
unconscious, suffers loss of a limb or becomes ill, the spilling or release of a dangerous
substance or where machinery is out of control or fractured, resulting in uncontrolled moving
objects and to ensure that the site of the incident is not disturbed (s 24).
Manufacturers supplying articles or substances to employers have the following duties (s 10):
(a) manufacturers must ensure that articles provided by them are safe and without risk to health
when properly used. They must also provide information to employees regarding the use of
any article or substances; and
(b) persons who erect or install articles to be used at work must ensure that they are safe and
without risk to health when properly used.

7.5 Duties of employees (ss 14–15)

Employees also need to have regard to health and safety in the workplace. An employee must:
(a) take reasonable care of his own health and safety and also of the health and safety of other
employees;
(b) co-operate with the employer or other designated person with regard to health and safety
matters;
(c) obey the health and safety rules and procedures laid down by the employer or a person
authorised by the employer;
(d) report any unsafe or unhealthy situation or any incident which may affect health or safety to
the employer or a health and safety representative; and
(e) refrain from interfering with or misuse or damage anything which is provided in the interest
of health and safety.

7.6 Health and safety representatives (ss 17–18)

An employer who has more than 20 employees in his employment must appoint, after consultation
with its workforce or their representatives, in writing one or more of the full-time employees as
192 A Practical Guide to Labour Law

health and safety representatives for the workplace or different sections thereof. Such
appointments must be made within four months after the employer commences business or within
four months from such time as the number of employees exceeds 20, as the case may be (s 17(1)).
In shops and offices one health and safety representative for every 100 employees must be
appointed, while in other workplaces one representative for every 50 employees is to be appointed.
An inspector may direct that an employer who employs fewer than 20 employees also appoint a
health and safety representative (s 17(5)).
Before an employer appoints one or more health and safety representatives it must consult with
the employees or their representative(s), such as a trade union, regarding the arrangements and
procedures for the nomination and election, terms of office and subsequent designation of health
and safety representatives. If the employer and employees cannot agree on the appointment of
health and safety representatives, the matter must be referred to arbitration or, if the parties cannot
agree on an arbitrator within 14 days, they must give notice to the President of the Industrial Court
who, in consultation with the Chief Inspector, will designate an arbitrator. This provision, contained
in section 17(2) of the Act, is obviously outdated as the Industrial Court no longer exists. One could
argue that the CCMA will have to appoint an arbitrator because, in terms of the transitional
provisions of the Labour Relations Act 66 of 1995 (LRA), the CCMA must perform the functions
previously performed by the Industrial Court. Or, it could be argued that the Labour Court will have
to be approached. An amendment to section 17(2) of OHASA is awaited to bring clarity as to how
disputes about the appointment of health and safety representatives should be resolved.
Health and safety representatives receive training and perform their functions and duties during
ordinary working hours. The employer must provide facilities, assistance and training as may be
reasonably required and have been agreed upon to such representatives. A health and safety
representative does not incur any civil liability by reason of the fact only that he failed to do anything
which he may do or is required to do in terms of the Act.
• Review the effectiveness of health and safety measures.
• Identify potential hazards and incidents.
• In collaboration with the employer, examine the causes of
incidents.
• Investigate complaints by employees relating to health and safety.
• Make representations regarding the above-mentioned and other
matters regarding the health and safety of employees.
• Inspect the workplace, articles, substances, machinery and safety
FUNCTIONS OF equipment at such intervals as may be agreed upon with the
HEALTH employer.
AND SAFETY • Consult with and accompany inspectors on inspections.
REPRESENTATIVES • Attend meetings of health and safety committees.
(s 18) • Attend the inspection of an incident.
• Attend any investigation or formal enquiry and inspect documents
kept by the safety audit.

7.7 Health and safety committees (ss 19–20)

An employer who has appointed two or more health and safety representatives must establish one
or more health and safety committees. The employer is then obliged to consult with such
committee(s) on initiating, developing, promoting, maintaining and reviewing measures to ensure
the health and safety of all employees.
Occupational Health and Safety Act 85 of 1993 193

If only one committee has been established, all the health and safety representatives must be
members of the committee. If more than one committee have been established, every
representative must be a member of at least one committee. The employer may nominate and
appoint other persons as members of the committees or a committee may co-opt any person as an
advisory member (with no voting powers) by reason of his knowledge of health and safety matters.
A health and safety committee must meet at least once every three months, but an inspector
may direct that the committee holds a meeting at a place and time determined by him. If more than
10% of the employees in a workplace have handed a written request to an inspector that a meeting
be held, the inspector may by written notice direct that such meeting be held.
• Make recommendations to the employer or an inspector regarding
health and safety matters.

FUNCTIONS • Must discuss any incident in which a person was injured, became
OF ill or died and may in writing report on the incident to a labour
inspector.
COMMITTEES
(s 20) • Must keep record of all recommendations made to the employer
and reports made to an inspector.

7.8 Inspectors (ss 28–32)

The Minister appoints labour inspectors who are employees of the Department of Labour (DoL). A
certificate is furnished to each inspector as proof of his appointment (s 28).
Inspectors have varied functions and duties. These functions and duties include:
• general functions and powers to ensure that the provisions of the Act are complied with (s 29);
• special powers relating to health and safety (s 30); and
• functions relating to incidents or accidents in the workplace (ss 31 & 32). These func-tions and
duties may be summarised as follows:

• May, without prior notice, enter any premises.

• May question any person on the premises.
• May require the production of books, records or other
documents.
• May examine such books, records or documents
• May require an explanation of any entry in such books, records or documents.
GENERAL
• May seize any such book, record or document which may FUNCTIONS & serve as
evidence at a trial of a person charged with an POWERS
offence under this Act;
• Inspect any article, substance, plant or machinery on the
premises.
• May remove for examination or analysis any article, sub-
stance, plant or machinery or any part thereof.
• May direct any employer, employee or user to appear before him in order to answer his
questions.
• May be accompanied by an interpreter or member of the
SAPS when performing his duties.
194 A Practical Guide to Labour Law

• May in writing prohibit an employer from commencing or

continuing with the performance of any act which may threaten the
health and safety of any person.
• May in writing prohibit a user of plant or machinery from commencing or continuing with the use of
such plant or machinery which may threaten the health and safety of any person.
• May barricade or fence off the part of the workplace to which the prohibition applies.
• May in writing prohibit an employer from requiring or SPECIAL permitting an employee belonging to
a certain category to
POWERS
be exposed for longer than a specified period to any article,

substance, organism or condition which may threaten the health

and safety of such employee
• Any of the above prohibitions may be revoked by the inspec-
tor if arrangements to the satisfaction of the inspector have been
made to dispose of the threat.
• May specify steps in writing to an employer or user to be
taken in the interest of health and safety.

• May investigate an incident which has resulted in injury,

illness or death.
• May conduct a formal enquiry into the incident.
• May, for the purposes of the enquiry, subpoena any person to appear before him and to give evidence.

INVESTIGATIONS • May designate any person to lead evidence and to examine any witness (interested
persons may personally, or with legal representation, question
any witness at the enquiry).
• Submit a report to the National Prosecuting Authority and a copy of the report to the Chief Inspector
after completion of the investigation.

7.9 Miscellaneous

In terms of section 7 the Chief Inspector may direct any employer or class of employers to prepare
a written policy concerning the protection of the health and safety of employees in the workplace,
including a description of the organisation and the arrangements for carrying out and reviewing the
policy. Such direction must be accompanied by guidelines concerning the content of the policy. The
policy must then be displayed at a place where employees normally have access.
In terms of section 35 any person who is aggrieved by the decision of an inspector may appeal
in writing, and within 60 days, against such a decision to the Chief Inspector, who must consider the
appeal and either confirm it or set it aside. A further right of appeal lies against the decision of the
Chief Inspector to the Labour Court. The appeal to the Labour Court must be made in writing and
within 60 days of the decision of the Chief Inspector.
7.10 Mine Health and Safety Act 29 of 1996

The protection of the health and safety of employees and other persons in the mining industry is
governed by the Mine Health and Safety Act 29 of 1996. This Act applies to mines, mining areas and
works.
Occupational Health and Safety Act 85 of 1993 195

The Act requires an employer to take responsibility for the health and safety of workers at a
mine. The employer must provide and maintain a working environment that is safe and without risk
to the health of employees, supply and maintain all the necessary health and safety equipment,
appoint persons and provide them with the means to comply with the requirements of the Act,
establish a health and safety policy and provide the necessary health and safety training.
If employees are exposed to health hazards the employer must establish and maintain a system
of medical surveillance and keep a service record of employees who perform work in respect of
which a medical surveillance is conducted.
In terms of the Act every employee, while at a mine, must take reasonable care to protect his
own health and safety and that of other persons. He must use and take proper care of protective
clothing and equipment, report to his immediate supervisor any situation which presents a risk to
the health and safety of employees and comply with the prescribed health and safety measures. An
employee has the right to leave any workplace whenever circumstances arise which appear to pose
a serious danger to his health or safety or when the health and safety representative directs the
employee to leave the workplace.
Tripartite institutions: The Act provides for the establishment and functioning of two tripartite
institutions (whose members represent the State, employers and employees):
• the Mine Health and Safety Council which advises the Minister on health and safety at mines.
The Council may, when necessary, establish a committee or committees, which may include the
Mining Regulation Advisory Committee, the Mining Occupational Health Advisory Committee
and the Safety in Mines Research Advisory Committee; and
• the Mining Qualifications Authority which advises the Minister on training and education to
improve health and safety standards and the registration of education and training standards
and qualifications in the mining industry.
Inspectorate of Mine Health and Safety: A Mine Health and Safety Inspectorate is established as a
juristic person. The Chief Inspector of Mines, who is appointed by the Minister, must ensure that
the provisions of the Act are complied with. The Chief Inspector must appoint an officer with the
prescribed qualifications and experience as the Medical Inspector and officers with the prescribed
qualifications and experience as inspectors. The inspectors have varied powers and functions
similar to the powers and functions of inspectors under OHASA.
Health and safety representatives and committees: The Act provides for the appointment of health
and safety representatives and the establishment of health and safety committees. The employer
is required to conclude a collective agreement with the representative trade union at the mine to
regulate the appointment of representatives and the establishment of committees.

Questions

Question 1
Discuss the appointment and functions of health and safety representatives. (15)

Question 2
Discuss the establishment and the functions of health and safety committees. (10)
Question 3
Discuss the special powers of inspectors with regards health and safety at a workplace. (6)

Question 4
Discuss the following statements, indicating whether you agree with them or not:
4.1 Failure on the part of an appointed health and safety representative to carry out the duties he
has been charged with in terms of s 18 is a punishable offence. (2) Hint: See ss 8, 18(4) & 28(1).
196 A Practical Guide to Labour Law

4.2 An employer and his employees may enter into a binding contract in terms of which they
undertake that certain provisions of the Act would not be applicable to them. (2) Hint: See ss 40 &
41.
4.3 An employer may decide, in consultation with the health and safety representatives, whether
to appoint a health and safety committee. (2)
Hint: See ss 19(1) & 38(1)(a).
4.4 In terms of section 24 a traffic accident on a public road need not be reported to an inspector.
(1)
Hint: See s 24(3)(a).
4.5 The Act applies to persons employed in the public sector. (1) Hint: See ss 38
& 47.
4.6 Any person aggrieved by a decision of an inspector in terms of this Act may appeal against that
decision to the Labour Court. (2)
Hint: See s 35.
4.7 When an accident in the workplace is reported to an inspector in terms of section 24 of OHASA,
the employer is exempted from notifying the Compensation Commissioner of that accident
as is normally required by the Compensation for Occupational Inju-
ries and Diseases Act of 1993. (2)

Question 5
The owner of a clothing factory with a workforce of 80 has recently started operations at a second
plant approximately five kilometres from the existing premises and is under the impression that he
has to appoint a health and safety representative for the second plant.
The workforce at the second plant consists of a foreman and 20 workers. These workers are semi-
skilled operators and belong to a trade union. The shop steward of the union at the new plant
approaches the owner with the request that he be appointed as health and safety representative
for the new plant. The owner initially intended appointing the foreman as health and safety
representative, since he is already serving on the health and safety committee of the original
workplace. Given these facts, answer the following questions. Give reasons for your answers:
5.1 Is it at all necessary to appoint a health and safety representative for the second plant? (4)
5.2 Is the foreman already a health and safety representative? (2)
5.3 What factors should be considered when deciding on who to appoint as a health
and safety representative? (5)
5.4 May the employees resort to industrial action if a dispute arose between the employer and the
trade union over the appointment of the health and safety representative? (5)
Question 6
Discuss the legal implications of the following situations:
6.1 An employer requires his health and safety representatives to “clock out” for the time it takes
them to fulfil their duties as health and safety representatives. (10) Hint: See ss 17(7), 23, 38(4),
37(4), 37(5) & 39(3) of OHASA.
6.2 One Saturday a backyard mechanic does repair work on a member’s boat at a yacht club, using
a high-speed saw. He often does this type of work over weekends to augment his income.
While busy with this, a club member (Mr X), who is obviously drunk, comes aboard for a chat.
During the chat the backyard mechanic stops working to fetch a couple of beers from below
deck. While thus occupied he hears a commotion and hastens onto the deck. In his absence
the drunken visitor fiddled around with the saw and amputated his left foot at the ankle. (10)
Hint: See the definitions of “workplace”, “machinery”, “user” and “premises” in s 1 of OHASA. Also
see s 24(1)(a) of OHASA and regs 12 and 16 of the General Administrative Regulations.
Occupational Health and Safety Act 85 of 1993 197

Question 7
Employee X’s wife, who is not an employee of the company, visits her husband at work. As X’s office
is on the first floor, she takes the stairs. On the way up her right shoe is caught in a rubber strip,
which has been hanging loose for a considerable time, but which the health and safety
representative failed to bring to the attention of his employer, an inspector or the health and safety
committee. Mrs X loses her balance, falls and hits her head against the railings, resulting in a
momentary loss of consciousness. A subsequent medical examination shows that she has not
sustained any permanent damage or serious injury.
7.1 Must this incident be reported to an inspector? (3)
7.2 Can Mrs X institute a delictual claim against the health and safety representative? (3)
7.3 What can the employer do? More specifically, can he take disciplinary steps against the health
and safety representative? (3)

Question 8
A fire started in the air-conditioning shaft of a building in which employees worked with highly
flammable material. The fire was extinguished, but one employee was killed and two other
employees were seriously injured. Discuss the powers of an inspector in these circumstances.
(6)
Appendix

ANNEXURE 11
OCCUPATIONAL HEALTH AND SAFETY ACT, 1993
(ACT NO. 85 OF 1993)
REGULATION 9 OF THE GENERAL ADMINISTRATIVE REGULATIONS
RECORDING AND INVESTIGATION OF INCIDENTS
A. RECORDING OF INCIDENT
1. Name of employer ........................................................................................................................ 2.
Name of affected person .............................................................................................................. 3.
Identity number of affected person ..............................................................................................
4. Date of incident ..................................................... 5. Time of incident ...............................
6. Part of body affected Head or
neck Eye Trunk Finger Hand

Arm Foot Leg Internal Multiple

7. Effect on person
Sprains or Contusion
strains or wounds Fractures Burns Amputation

Occupational
Electric Uncon- Disease
Asphyxiation Poisoning
shock sciousness
8. Expected period of
disablement > 52 weeks or
2–4 > 4–16 > 16–52
0–13 days Killed
permanent
weeks weeks weeks
9. Description of disablement
occupational disease
............................................................................................
10. Machine/process involved/type of work performed/exposure** ............................................
198 A Practical Guide to Labour Law

........................................................................................................................................................
........................................................................................................................................................
11. Was the incident reported to the Compensation Commissioner and the Provincial Director?
Yes No

12. Was the incident reported to the police?* Yes No

13. SAPS office and reference ............................................................................................................
* to be completed in case of a fatal incident.
** in case of a hazardous chemical substance, indicate substance exposed to.

________________________

1 Of the general administrative regulations published under GN R929 in GG 25129 of 25 June 2003.

B. INVESTIGATION OF THE ABOVE INCIDENT BY A PERSON DESIGNATED THERETO

1. Name of investigator ..................................................................................................................... 2.
Date of investigation ..................................................................................................................... 3.
Designation of investigator ...........................................................................................................
4. Short description of incident .......................................................................................................
........................................................................................................................................................
........................................................................................................................................................
........................................................................................................................................................
5. Suspected cause of incident .........................................................................................................
........................................................................................................................................................
........................................................................................................................................................
........................................................................................................................................................
6. Recommended steps to prevent a recurrence ............................................................................
........................................................................................................................................................
........................................................................................................................................................
........................................................................................................................................................

........................................................................ ........................................................................
Signature of investigator Date

C. ACTION TAKEN BY EMPLOYER TO PREVENT

THE RECURRENCE OF A SIMILAR INCIDENT
.................................................................................................................................................................
.................................................................................................................................................................
.................................................................................................................................................................
Occupational Health and Safety Act 85 of 1993 199

........................................................................ ........................................................................
Signature of employer Date

D. REMARKS BY HEALTH AND SAFETY COMMITTEE

Remarks
.................................................................................................................................................................
.................................................................................................................................................................
.................................................................................................................................................................

........................................................................ ........................................................................
Signature of Chairman of Date
Health and Safety Committee
 8
SKILLS DEVELOPMENT

8.1 Introduction

A skilled workforce is an essential requirement for the growth of our economy. Training is, therefore,
becoming increasingly important. Since 1922 statutory provisions have been in existence to ensure
that certain categories of employees receive adequate theoretical and practical training to equip
them to perform at prescribed levels of skills in certain trades and occupations. The first statute was
the Apprenticeship Act 26 of 1922. After a number of amendments over the following 20 years, the
Act was finally replaced by the Apprenticeship Act 37 of 1944. The 1944 Act underwent a number
of changes and other statutes were enacted alongside it, such as the Training of Artisans Act 38 of
1951 and the Black Building Workers Act 27 of 1951. In 1970 the Industrial Conciliation Act was
amended to allow for the introduction of training schemes into industrial council agreements. The
Black Employees In-Service Training Act was introduced in 1976 and the In-Service Training Act in
1979. The Wiehahn Commission recommended the consolidation of all these laws, which
eventually culminated in the enactment of the Manpower Training Act in 1981.
The Manpower Training Act 56 of 1981 established a statutory framework for
employmentrelated training, but from 1995 much work and deliberation went into further
developing our laws pertaining to training. These efforts resulted in the publication of a Green Paper
on skills development in March 1997, the Green Paper on Skills Development Strategy for Economic
and Employment Growth in South Africa. Public comment and negotiations followed, amendments
to the Green Paper were effected and in September 1998 the Skills Development Bill was submitted
to Parliament for approval. The Bill was enacted as the Skills Development Act 97 of 1998 (SDA) and
came into effect on 2 February 1999, save for the provisions relating to the establishment and
functioning of SETAs, the Skills Developments Planning Unit and labour centres, which commenced
on 10 September 1999.
Amendments to the SDA were introduced by the Skills Development Levies Act 9 of 1999, the
Skills Development Amendment Acts 31 of 2003, 37 of 2008 and 26 of 2011; the Higher Education
Laws Amendment Act 26 of 2010 and the Employment Services Act 4 of 2014. A significant change
was the transfer of certain responsibilities from the Minister of Labour to the Minister of Higher
Education and Training. The Minister of Labour was until 31 October 2009 responsible for
administering the regulatory framework of the SDA. With effect from 1 November 2009 the
provisions dealing with skills development matters were transferred to the Minister of Higher
Education and Training.1

________________________

1 In terms of Proc 56 of 2009 in GG 32549 of 4 September 2009.

202 A Practical Guide to Labour Law

199
8.2 Skills development strategy

Skills development is an urgent priority for South Africa as an integral part of the country’s overall
objectives of reducing poverty, increasing employment, improving international competitiveness,
reducing crime and increasing economic growth.
The people of South Africa are without a doubt the country’s most valuable asset. If all South
Africans are to participate meaningfully in the economic and social development of the country –
and their own advancement – they must not only have general capabilities such as the ability to
read and write, but also be able to communicate effectively and to solve problems in their homes,
communities and in the workplace. The demands of a more complex and changing economy,
characterised by increasing use of information, more complex technologies and a general rise in the
skills requirements of jobs also necessitate that people must have rising levels of applied
competence. “Applied competence” encompasses three kinds of competence: practical
competence (the demonstrated ability to perform a set of tasks), foundational competence (the
demonstrated understanding of what people are doing and why) and reflexive competence (the
demonstrated ability to integrate or connect performances with the understanding of those
performances so that one learns from one’s actions and is able to adapt to changes and unforeseen
circumstances).
The National Skills Development Strategy III, published in January 2011, sets out the current
vision, principles and objectives of the National Skills Strategy. This strategy applies until 2020 and
is aimed at increasing access to high-quality and relevant education and training and skills
development opportunities, enabling effective participation in the economy and society by all South
Africans and reducing inequalities. The goals of the strategy are:
• to establish a credible institutional mechanism for skills planning;
• to increase access to occupationally directed programmes;
• to promote the growth of a public FET college system that is responsive to sector, local, regional
and national skills needs and priorities;
• to address the low level of youth and adult language and numeracy skills in order to enable
additional training;
• to encourage better use of workplace-based skills development;
• to encourage and support co-operatives, small enterprises, worker-initiated, NGO and
community training initiatives;
• to increase public sector capacity for improved service delivery; and
• to build career and vocational guidance.
These objectives aim to not only further the competency levels in the country, but also to make it
possible for employees to achieve nationally recognised qualifications. If these objectives are met,
people who are most vulnerable in the labour market, including those in micro enterprises, will be
able to enter and successfully remain in employment or selfemployment, thereby enjoying a rising
standard of living.

8.3 The skills development strategy in the context of legislation and

other policy proposals

The Labour Relations Act of 1995 (LRA) was the first of four major policy initiatives by the Ministry
of Labour in the new, democratic South Africa. Thereafter, in partnership with the then Minister of
Education, the South African Qualifications Authority Act of 1995 was promulgated. 2 In 1996 two
Green Papers were developed: Policy Proposals for a new Employment
________________________

2 The National Qualifications Framework Act 67 of 2008 has repealed the South African Qualifications Authority Act
58 of 1995 in its entirety.
204 A Practical Guide to Labour Law

Statute and Policy Proposals for a new Employment and Occupational Equity Statute. The Green
Paper on Skills Development Strategy for Economic and Employment Growth in South Africa is
complementary to all of these. The latest strategy development is the National Skills Development
Strategy III which applies until 2020.
The LRA requires bargaining and statutory councils “to promote and establish training and
education schemes” (ss 28(f) & 43(1)(b) of the LRA). In terms of section 84(1) of the LRA an
employer is required to consult with a workplace forum on education and training. It is
consequently envisaged that sectoral intermediaries, such as Sector Training and Education
Authorities (SETAs), would support and interact with bargaining councils, statutory councils and
workplace forums in respect of training.
The Basic Conditions of Employment Act of 1997 (BCEA) overlaps with the Skills Development
Act in that an employer and a learner are required to enter into a contract of employment if the
learner was not in the employment of the employer when the learnership agreement was
concluded. The Minister may also by sectoral determinations set terms and conditions of
employment for learners.
The Employment Equity Act of 1998 (EEA) makes provision for an employer to retain and develop
people from designated groups and to implement appropriate training measures, including skills
development in terms of the Skills Development Act.

8.4 Skills Development Act 97 of 1998

8.4.1 Introduction
The Skills Development Act (SDA) is the product of in-depth discussions and work within the
Department of Labour and the social partners in the National Training Board and industry training
boards. The SDA replaces the Manpower Training Act, the Guidance and Placement Act of 1981,
the Local Government Training Act of 1985 and sections 78–87 of the Telecommunications Act of
1996.
The SDA promotes a skills development strategy that is flexible, accessible, demand-led,
decentralised and based on a partnership between the public and private sectors.

8.4.2 Purposes of the Act (s 2)

The purposes of the Act are:
• to develop the skills of the South African workforce in order to:
– improve the quality of life of workers, their prospects of work and labour mobility;
– improve productivity in the workplace and the competitiveness of employers;
– promote self-employment; and
– improve the delivery of social service;
• to increase investment in education and training in the labour market;
• to encourage employers:
– to use the workplace as an active learning environment;
– to provide employees with opportunities to acquire new skills;
– to provide opportunities for new entrants to the labour market to gain work experi-ence; and
– to employ persons who find it difficult to be employed;
• to encourage workers to participate in learning programmes;
Skills development 205

• to improve the employment prospects of persons previously disadvantaged by unfair dis-

crimination and to redress those disadvantages through training and education; and
• to ensure the quality of learning in and for the workplace.
8.4.3 Structures of learning
The Department of Higher Education and Training (DHET) is primarily responsible for skills
development, i.e. training, education and learning, while the Department of Labour (DoL) plays a
supporting role.
The National Skills Authority is the ultimate overseer of skills development and is established in
terms of the SDA. The Minister of Higher Education and Training establishes SETAs that are
responsible for sector-specific training and skills development. The Minister may also establish skills
development institutes to provide advisory services and learning programmes. The SDA establishes
the Quality Council for Trades and Occupations (QCTO) to advise the Minister on policy issues
relating to occupational standards and qualifications. And, the Director General of the DHET is
required to establish a national artisan moderation body to oversee the training of artisans in listed
trades. DoL assists in the objectives of skills development by doing research into skills development
needs and the formulation of strategies.

National Skills Authority (NSA) (ss 4–8)

The NSA is the vehicle to promote the strategic focus of skills development and coordination
between the different stakeholders. The NSA replaces the old National Training Board (NTB) and
has wider powers than the NTB had, thereby giving industry, community representatives and
government departments a much stronger voice and influence over skills development in the
country. These constituencies will play an important role in ensuring that education and training is
relevant to industry and development needs.
The NSA was established in terms of section 4 of the SDA and comprises a chairperson, a CEO
and 30 members appointed by the Minister to represent the State, training providers, the QCTO
and SAQA, organised labour, organised business and other organisations, including those
representing the interests of women, youth and disabled persons.
In terms of section 5 the functions of the NSA are:
• to advise the Minister on a national skills development policy and strategy, guidelines on the
implementation of the national skills development strategy, the allocation of subsidies from the
National Skills Fund and any regulations to be made;
• to liaise with SETAs regarding the national skills development policy, the national skills
development strategy and sector skills plans;
• to report to the Minister on the progress made in the implementation of the national skills
development strategy;
• to conduct the necessary investigations on any matter arising out of the application of the Act;
• to liaise with the QCTO on occupational standards and qualifications; and
• to exercise the powers and perform the duties conferred or imposed on the NSA by the Act.

Sector Education and Training Authorities (SETAs) (Ch 3 ss 9–15)

A Sector Education and Training Authority (SETA) is a body which combines the functions of the
erstwhile industry training boards and of education and training quality assurers.
The Minister of Higher Education may, by notice in the Government Gazette, establish a SETA for
any national economic sector. In determining a sector, the Minister must have regard to the
education and training needs of employers and employees who use similar materials, processes and
technologies and who make similar products or render similar services. Further considerations are
the potential of the sector for coherent occupational structures and career-pathing, the scope of
206 A Practical Guide to Labour Law

any national strategy for economic growth and development and the financial and organisational
ability of the sector to support a SETA. Consensus of stakeholders (the State, organised labour and
organised business) must be sought (s 9).
The Minister may, after consultation with the NSA and the SETA in question, change the sector
of that SETA, amalgamate two or more SETAs or dissolve a SETA. Notice of these changes must be
given in the Government Gazette (ss 9(4) & 9A).
The Minister must provide every SETA with a constitution in line with a standard prescribed
constitution.3 The standard constitution must inter alia set out the composition, responsibilities,
powers and duties of the accounting authority of the SETA; identify the SETA by name and sector;
set out the general objectives and functions of the SETA; establish and identify the functions of
committees (e.g. executive, audit and finance committees); provide for the appointment of a Chief
Executive Officer and other employees; deal with the finances of the SETA; and include a code of
conduct and dispute resolution system. A SETA wishing to deviate from the standard constitution
must apply in writing to the Minister and provide the necessary motivation. The Minister may
approve a deviation if it is unique to the functions and operation of the specific SETA and if
recommended by the NSA (s 13).
An accounting authority for every SETA is appointed by the Minister. An accounting authority
comprises a chairperson and 14 members representing organised labour, organised business,
relevant government departments, professional bodies, bargaining councils and community
organisations (s 11). A CEO is appointed after the accounting authority has made recommendations
to the Minister (s 13B).
A SETA may, with the approval of the Minister, establish chambers in its sector. Each chamber
must have equal representation of employees and employers and must perform the functions
delegated to it in terms of the constitution of the SETA. A chamber is entitled to such a percentage
of the skills development levies collected in its jurisdiction as the Minister, after consultation with
the SETA, determines (s 12).
The functions of a SETA cover a broad spectrum of activities (s 10). A SETA must inter alia:
• develop a sector skills plan within the framework of the national skills development strategy;
• implement its sector skills plan by establishing learnerships, approving workplace skills plans,
allocating grants and monitoring education and training in the sector;
• promote learnerships and register learnership agreements;
• apply for accreditation with SAQA as a body responsible for monitoring and auditing
achievements in terms of established education and training standards or qualifications;
• collect and disburse skills development levies in its sector;
• liaise with the NSA in respect of the national skills development strategy and its sector skills plan;
• submit to the Director General reports on the implementation of its sector skills plan and
financial statements of its income and expenditure;
• liaise with the provincial offices and labour centres of DoL and any education body to improve
information regarding employment opportunities; • liaise with the QCTO regarding occupational
qualifications; and
• appoint staff necessary for the performance of its functions.
Every SETA must conclude a service-level agreement with the Director General for each financial
year. This agreement must make provision for the performance of the SETA’s functions, for its
annual business plan and for any assistance the Director General is to provide to the SETA (s 10A).

________________________
Skills development 207

3 See the Standard Constitution Regulations promulgated in GG 35336 of 11 May 2012.

A SETA is financed mainly from skills development levies collected in its sector and monies paid
to it from the National Skills Fund. All monies must be paid into a banking account and may only be
used to fund the performance of its functions. Proper financial statements must be kept which must
be submitted to the Auditor General for an annual audit (s 14).
A SETA that is not performing its functions, that is no longer representative or that is guilty of
mismanagement may be instructed by the Minister to take steps to rectify whatever is wrong or the
SETA may be placed under administration (ss 12A & 15).

Skills development institutes (s 26E)

The Minister may by notice in the Government Gazette establish skills development institutes in
accordance with the requirements prescribed by regulation. Skills development institutes provide
advisory services on skills development, mentoring and the recognition of prior learning and may
provide learning programmes.

Quality Council for Trades and Occupations (QCTO) (ss 26F–26J)

The QCTA was established in terms of section 26G of the SDA. It comprises of a CEO and 16 members
appointed by the Minister.
The QCTO is in the main an advisory body on policy issues concerning occupational standards
and qualifications. It is responsible for developing, establishing and maintaining occupational
standards and qualifications and ensure the quality thereof, as well as the quality of learning in the
workplace.
The QTCA is required to liaise with the NSA, SAQA and other quality councils and professional
bodies on occupational standards and qualifications.

Department of Labour (ss 22–23)

Before the skills development strategy was transferred to the DHET in November 2009 the DoL was
responsible for skills development and associated functions. Since the transfer, the DoL is playing a
supporting role only by assisting the DHET in research and formulation of policy.
In this regard the DoL researches and analyses labour market trends in order to determine skills
development needs nationally and per sector. The information gained from the research is
disseminated to the DHET, NSA, SETAs, training providers, the QCTO and other organisations. The
Department furthermore assists in the formulation of the national skills development strategy and
sector skills development plans.
Provincial offices of the DoL have to establish skills development forums and maintain a database
of skills development providers.

8.4.4 Skills development programmes

Learnerships (Ch 4 ss 16–19)
A SETA may establish a learnership if such a learnership is related to an occupation and it consists
of a structured learning component and practical work experience, which will lead to a qualification
registered by SAQA. The SETA must register the learnership with the Director General (s 16).
A learnership agreement is an agreement entered into for a specified period between a learner,
an employer or group of employers and an accredited skills development provider. In terms of such
an agreement:
• the employer must employ the learner for the period specified, provide him with specified
practical work and allow him to attend the specified education and training;
• the learner must work for the employer and attend the education and training; and
208 A Practical Guide to Labour Law

• the skills development provider must provide the learner with the specified education and
training (s 17(1) & (2)).
Every learnership agreement must be registered with the relevant SETA (s 17(3)) and a record of all
learnership agreements must be presented to the Director General (s 17(6)).
The purpose of a learnership is to provide practical and theoretical training to the employee for
a specified period. The learnership agreement may therefore not be terminated before the end of
that period. However, if the learner successfully completes the learnership before the end date, the
agreement may be terminated. Similarly, the SETA may approve early termination. The agreement
will also be terminated before the end date if the learner, as an employee, is fairly dismissed for
incapacity or misconduct (s 17(4)).
Because the learner works for an employer and is accordingly an employee, a contract of
employment has to be concluded alongside the learnership agreement. A newly appointed
learner/employee will have to conclude the two contracts at the same time, when commencing
employment and training. An existing employee will already have concluded a contract of
employment, but needs to conclude the learnership agreement when he starts training after his
initial appointment. The employment contract is subject to any terms and conditions the Minister
may determine, as well as to the basic conditions of employment found in the BCEA (s 18(1)-(4)).
And, of course, the learner/employee may not be paid less than the minimum wage as prescribed
in the National Minimum Wage Act.
Where a newly appointed learner/employee concluded the learnership agreement and the
contract of employment at the same time (upon appointment), the two contracts are inter-
dependent; the one may not be terminated before the other. The employment contract of an
existing employee who subsequently embarked on a learnership programme is not affected by the
termination of the learnership agreement (s 18(5) & (6)).
Disputes in the context of learnerships are referred to the CCMA for conciliation and arbitration
(s 19). The disputes that can be conciliated and arbitrated by the CCMA are those concerning:
• the interpretation or application of learnership agreements and contracts of employment;
• the interpretation or application of a ministerial determination applicable to learners
(determining employment conditions);
• Chapter 4 of the SDA, dealing with learnerships; and
• the termination of a learnership agreement or contract of employment.
It is interesting to note that, despite section 210 of the LRA, the provisions of the SDA relating to
learnerships prevail. Section 210 of the LRA states that in the event of a conflict between the
provisions of the LRA and any other law, the LRA takes precedence, subject only to the Constitution
or where “another Act expressly amends the LRA”. Section 19(7) of the SDA expressly amends the
LRA and therefore the SDA applies.

Artisans (Ch 6A ss 26A–26D)

When the SDA initially took effect in September 1999 it did not specifically provide for the training
of artisans. A new Chapter 6A was inserted into the SDA when amendments came into operation in
2008, catering for artisan training.
To be an artisan, prescribed training in a “listed trade” is required. A “listed trade” is an
occupation declared by the Minister, by notice in the Government Gazette, as a trade for which an
artisan qualification is required (s 26B). Some of the well-known listed trades include plumbing,
carpentry, mechanics, electricity, fitter and turner and hairdressing.
A person who wishes to qualify as an artisan has to undergo a learnership or apprenticeship in a
listed trade. This involves a prescribed period of theoretical training and working for an employer
Skills development 209

to gain practical experience. At the end of the training the person must do a trade test at an
accredited trade test centre (s 26D(1)).
Access to a trade test will be allowed if the person has completed the prescribed learnership,
satisfied the requirements of an apprenticeship, has acquired sufficient prior learning in the trade
or has completed any other learning programme that resulted in a vocational or occupational
qualification (s 26D(2)).
Once a trade has been successfully completed the QCTO will issue a trade certificate to the
successful candidate, which serves as evidence that the person is qualified to perform the trade (s
26D(4)).
No person may hold himself out as an artisan unless the prescribed trade test has been
successfully completed and the person has been registered as an artisan by entering his name in
the national register of artisans (ss 26D(1) & 26C(2)). The Director General must maintain the
register of artisans.
The body ultimately supervising artisan training is the National Artisan Moderation Body
(NAMB). It is established by the Director General and is part of DoL (s 26A(1)). The NAMB monitors
accredited trade test centres and the trade tests prospective artisans are required to undergo. It
also maintains a data-bank of assessors and moderators, record artisan achievements, determine
appeals against assessments and recommend certification to the QCTO (s 26A(2)).

Skills programmes (Ch 5 ss 20–21)

A “skills programme” is a training programme that is occupationally based, uses accredited training
providers and, when completed, will constitute a credit towards a qualification registered in terms
of the National Qualifications Framework (s 20(1)).
Any person who has developed a skills programme may apply to a SETA for a grant or to the
Director General for a subsidy. The programme will be funded if it is a “skills programme”, as
defined, if it has been developed in accordance with the relevant sector skills plan as well as the
national skills strategy and if all requirements prescribed by the SETA or Director General have been
complied with (s 20(3)). Funds may be withheld or recovered if they are not used for the allocated
purpose, if the prescribed requirements are not adhered to or if the training does not meet the
required standards.
Any dispute about the application or interpretation of any term or condition of funding or any
matter about skills programmes may be referred to the Labour Court for adjudication.

8.4.5 Financing of skills development (ss 27–30)

The National Skills Fund (NSF) is established in terms of section 27 of the SDA. The NSF derives its
funding primarily from levies paid by employers in terms of the Skills Development Levies Act.
The monies in the Fund may be used for only those projects identified in the national skills
development strategy as national priorities or projects related to the achievement of the purpose
of the SDA (s 28).
The NSF is under the control of the Director General, who acts as the accounting officer of the
Fund. He must keep proper records and prepare the necessary financial statements (s 29).
Every public service employer in the national and provincial governments must budget at least
1% of its payroll for the training and education of its employees.

8.4.6 Legal proceedings

Disputes concerning learnerships and the employment contract of a learner/employee are
conciliated and arbitrated by the CCMA (s 19). Other disputes arising from the SDA must be
210 A Practical Guide to Labour Law

adjudicated by the Labour Court. The Court also has the jurisdiction to review any act of any person
in connection with the SDA on any grounds permissible in law (s 31).
8.5 Skills Development Levies Act 9 of 1999

Funding for education and training, as contemplated in the SDA, is obtained from government
grants and levies payable by employers. Employers’ obligation to contribute levies towards skills
development is found in the Skills Development Levies Act 9 of 1999 (the “Levies Act”). The Act
came into effect on 1 September 1999.
All employers, save for the following exclusions (s 4), are obligated to pay a monthly skills
development levy:
• any public service employer in the national or provincial sphere of government;
• any employer whose total payroll for the following 12 months will not exceed R500 000 (or other
amount as determined by the Minister);
• any public benefit organisation which solely carries on a religious or charitable benefit activity or
any public benefit organisation which provides funds solely to such an organisation;
• any national or public entity if 80% or more of its expenditure is defrayed, directly or indirectly,
from funds voted by Parliament (e.g. the SABS and the Council for Scientific and Industrial
Research);
• any municipality in respect of which a certificate of exemption has been granted.
An employer is required to register with SARS and the relevant SETA as a levy-paying employer.
If the employer falls within the jurisdiction of more than one SETA the employer must select one
SETA within which it must be classified for the purposes of paying levies
(s 5).
The levy payable is 1% of the total monthly payroll. The payroll, also referred to as the “leviable
amount”, is the total amount of remuneration paid or payable to all employees, but excluding
amounts payable as pension or retirement allowances, amounts payable to a learner in terms of an
employment contract under the SDA and amounts excluded from “gross income”, as defined in the
Income Tax Act (s 3). An employer whose payroll does not exceed R500 000 per month is exempt
from paying the skills development levy (s 4(b)).
Levies are, as a general rule, paid to SARS and must be paid before the seventh day of the
following month (s 6(1)). In limited instances the Minister may determine that levies are payable
directly to a SETA (s 7(1)). The levies paid to SARS are deposited into the National Revenue Fund for
the credit of the National Skills Fund and the relevant SETA. The SARS Commissioner is required to
advise the DHET of all payments, after which the DHET will allocate 20% of those levies to the
National Skills Fund and the remaining 80% to the SETA, provided the SETA has complied with the
provisions of the SDA (s 8). In those limited instances where levies are paid directly to a SETA, the
SETA must before the 15th day of each month pay 20% of the payments received to the National
Skills Fund (s 9).
Interest and/or penalties may be imposed for late or non-payment of levies (ss 11 & 12).
The labour inspectors appointed in terms of the BCEA also monitor and enforce compliance with
the Levies Act and, in doing so, can secure written undertakings and issue compliance orders (ss 15
& 19).

8.6 Payment of grants

Skills development 211

In terms of the regulations published by the Minister employers who are in full compliance with the
payment of the skills development levies may claim a grant from the relevant SETA. A grant may
either be a mandatory or a discretionary grant.
Mandatory grants are paid to those employers who have adopted and implemented a work skills
plan and may be an amount equivalent to 50% of the total levies paid by the employer in a particular
financial year.
Discretionary grants are at the discretion of the relevant SETA and are in the main paid for the
funding of research, the training of sector specialists, providing learners with work experience,
learnerships and adult basic education and training.

Questions

Question 1
State the purpose for which each of the following bodies has been established and give the main
functions of each:
1.1 the National Skills Authority; (8)
1.2 a SETA; (10)
1.3 skills development institutes; (3)
1.4 National Artisan Moderation Body; and (4)
1.5 the Quality Council for Trades and Occupations. (4)
Question 2
Define and describe the nature of a “learnership agreement”. Include in your answer the duties of
each of the parties to such an agreement. (10)

Question 3
A learner under a learnership agreement is fairly dismissed by his employer for misconduct.
Discuss the consequences of such a dismissal. (8)

Question 4
4.1 Bryan Learner has just completed his school career. He wishes to undergo further training.
Explain to Bryan the different learning programmes the Skills Development
Act provides for. (10)
4.2 Assume that Bryan wishes to qualify as an electrician. Explain to him the education and training
he will have to undergo to become a qualified artisan. (8)

Question 5
Employers are, in terms of the Skills Development Levies Act, obliged to pay skills development
levies. Explain the following:
5.1 those employers who have to pay levies and those who are exempt from paying levies; (6)
5.2 the amount of levies to be paid; (3)
5.3 when and to whom the levies are payable. (10)

Appendix
212 A Practical Guide to Labour Law

ANNEXURE B: LEARNERSHIP REGULATIONS

Learnership Agreement

SETA Logo LEARNERSHIP AGREEMENT

PART A: TERMS AND CONDITIONS OF AGREEMENT

1 Declaration of the parties
We understand that this Agreement is legally binding.
We understand that it is an offence in terms of the Skills Development Act 97 of 1998

(“the Act”) to provide false or misleading information in this Agreement.

We agree to the following rights and duties.
2 Rights and duties of learners, employers and training providers
2.1 Rights of the Learner
The learner has the right to:
2.1.1 receive an induction to the learnership;
2.1.2 be educated and trained under the learnership;
2.1.3 access to the required resources for the achievement of the specified
outcomes for the structured learning component as well as the specified
practical workplace experience activities of the learnership;
2.1.4 be assessed and have access to the assessment results for the structured
learning component as well as the specified practical workplace experience
activities of the learnership;
2.1.5 receive a written statement of results within 21 working days of the final
assessment required in this learnership agreement;
2.1.6 if successful, be awarded a certificate of achievement for the qualification
associated with the learnership within 45 working days of the learner’s final
assessment;
2.1.7 in the case of a section 18 (2) learner, receive the agreed learnership
allowance for the duration of the learnership;
2.1.8 raise grievances in writing with the SETA or the ETQA accredited for the
qualification associated with the learnership concerning any shortcomings
in the quality of the education and training under the learnership. 2.2
Duties of the Learner The learner must:
2.2.1 carry out all occupationally related work for the employer required for
the practical workplace experience activities specified in the learnership;
2.2.2 comply with the employer’s workplace policies and procedures;
2.2.3 be available for, and participate in, all structured learning and practical
workplace experience activities required by the learnership;
2.2.4 attend all theoretical learning sessions and practical learning activities with
the training provider;
Skills development 213

2.2.5 complete timesheets and projects and participate in any assessment

activities that are required for the final assessment at the end of the
learnership; and
2.2.6 undertake all learning relating to the learnership conscientiously.
2.3 Rights of the Employer
The employer has the right to require the learner to:
2.3.1 perform duties in terms of this Agreement; and
2.3.2 comply with the rules and regulations concerning the employer’s workplace
policies and procedures.
2.4 Duties of the
Employer The
employer must:
2.1.1 comply with all duties in terms of the Skills Development Act and applicable legislation
including:
• Basic Conditions of Employment Act 75 of 1997;
• Labour Relations Act 66 of 1995;
• Employment Equity Act 55 of 1998;
• Occupational Health and Safety Act 85 of 1993 (or Mine Health and

Safety Act 27 of 1996);

• Compensation for Occupational Injuries and Diseases Act 130 of 1993;
• Unemployment Insurance Act 30 of 1996.
2.1.2 provide the facilities and resources required for the specified practical workplace
experience activities of the learnership;
2.1.3 provide the learner with supervision, mentoring and coaching at work;
2.1.4 provide the learner with appropriate education and training to competently perform the
specified workplace experience activities required by the learnership;
2.1.5 release the learner during normal working hours to attend off-the-job structured learning
required by the learnership;
2.1.6 conduct on-the-job assessment for the specified workplace experience activities, or cause
it to be conducted;
2.1.7 keep up to date records of workplace learning and periodically discuss progress with the
learner and the training provider;
2.1.8 if the learner was not in the employment of the employer at the time of concluding this
Agreement –
• enter into a contract of employment with the learner for the duration

of the learnership;
• advise the learner of the terms and conditions of his or her employ-

ment, including the learner allowance; and

• advise the learner of the employer’s workplace policies and
procedures.
2.1.9 pay the learner the agreed learner allowance for the duration of the learnership;
214 A Practical Guide to Labour Law

2.1.10 apply the same disciplinary, grievance and dispute resolution procedures to the learner as
to any other employee;
2.1.11 submit the signed learnership agreement to the SETA for registration.
2.1.12 submit records as required by ETQA body.
2.5 Rights of the Training provider
The training provider has the right to access the learner’s portfolio of evidence
and workplace learning related assessments.
2.6 Duties of the Training provider The training
provider must:
2.6.1 provide the structured learning specified in the learnership;
2.6.2 provide the learner support as required by the learnership;
2.6.3 record, monitor and retain details of the education and training provided to
the learner in terms of the learnership and periodically discuss progress
with the learner and the employer;
2.6.4 conduct off-the-job assessments for the structured learning component
specified in the learnership, or cause it to be conducted;
2.6.5 ensure that the assessment against the outcomes of the qualification
associated with the learnership is conducted at the end of the learnership;
and
2.6.6 issue a written statement of results in respect of the learner’s final
assessment for the qualification associated with the learnership within 21
working days of the assessment, to the learner, the SETA and the ETQA
accredited for the qualification.
3 Suspension of this agreement
3.1 A SETA may approve the suspension of this agreement if –
3.1.1 the employer and the learner have agreed in writing to suspend the agreement; or
3.1.2 the employer or the learner has requested, on good course, to suspend the agreement
and the other parties to the learnership agreement have had opportunity to make
presentations as to why the learnership should not be suspended.
3.2 An application to suspend a learnership agreement must be submitted to the SETA in writing
together with –
3.1.1 a written agreement signed by the employer and the learner setting out the
reasons for the suspension; and
3.1.2 where appropriate the reasons for the suspension and proof that the other
parties to the learnership agreement have had the opportunity to make
presentations as to why the agreement should be suspended.
3.3 All parties to a suspended learnership agreement must take appropriate steps to reactivate
the learnership programme on expiry of the suspension period.
4 Termination of this Agreement
This learnership agreement terminates:
4.1 on the termination date stipulated in Part B of this Agreement; or
4.2 on an earlier date if:
4.2.1 the learner has successfully completed the final assessment and fulfilled
all requirements associated with the specified workplace experience activities of
the learnership;
Skills development 215

4.2.2 the learner is fairly dismissed by the employer for a reason related to the learner’s conduct
or capacity as an employee;
4.2.3 the SETA approves the termination of the Agreement in terms of the Learnership
Regulations, 2007.
5 Disputes
5.1 If there is a dispute concerning any of the following matters, it may be referred to the
Commission for Conciliation, Mediation and Arbitration (CCMA):
5.1.1 the interpretation or application of any provision of this Agreement, the learner’s contract
of employment or a sectoral determination made in terms of section 18 (3) of the Act;
5.1.2 Chapter 4 of the Act;
5.1.3 the termination of this Agreement or, in the case of a section 18 (1) learner, the learner’s
contract of employment.
5.2 If there is a dispute regarding the quality of education and training provided by the training
provider or regarding the quality of the learner’s learning performance, it may be referred to
the ETQA accredited for the learnership qualification for resolution in accordance with the
applicable policies and procedures of the ETQA.

PART B: DETAILS OF THE LEARNERSHIP AND THE PARTIES TO THIS AGREEMENT

Please take note of the following:

• the learner is not already in the employ of the employer, the learner and
employer must conclude a contract of employment.
• If the learner is a minor then the learner’s parent or guardian must be a
party to this Agreement and must complete section 3. The parent or
guardian ceases to be a party to this Agreement once the learner ceases to be a minor.
• If a group of employers are party to this Agreement, one of the employers
must perform the function of a lead employer. The lead employer must
complete section 4. Details of the other employers must be attached on a separate sheet.
• If the employer and the accredited training provider are the same entity, the
employer must complete sections 4 and 5.
• If a group of training providers are party to this Agreement, one of the providers must
perform the function of lead training provider. The lead
training provider must be accredited for the qualification and must com- plete section 5.
Details of the other training providers must be attached on a separate sheet.
• A copy of the learning programme outline and implementation plan must be
attached.
• If the employer has concluded an agreement with an ESDA in terms of
which the ESDA is to perform some or all of the employer’s obligations or
exercise some or all of the employer’s rights in terms of the learnership agreement, section 6
must be completed.

1 Learnership details
1.1 Name of learnership:
...................................................................................................... 1.2
Department of Labour registration number of learnership:
....................................... 1.3 Commencement date of learnership
agreement:........................................................
1.4 Termination date of learnership agreement:...............................................................
216 A Practical Guide to Labour Law

1.5 Occupation that this learnership is related to (as per the Organising
Framework of Occupations (OFO): ..............................................................................
1.6 Name of the qualification:............................................................................................. 1.7
SAQA Qualification ID number: ...................................................................................
2 Learner details
2.1 Full name:
....................................................................................................................... 2.2
Identity number:
............................................................................................................. 2.3 Date
of birth:

...................................................................................................................
2.4 Sex: Male Female 2.5 Race: AfricanIndian
ColouredWhite
Other (specify):
2.6 Do you have a disability, as contemplated by the Employment Equity Act 55 of
3

1998?
No Yes (specify): .............................................
2.7 Home address:................................................................................................................
.........................................................................................................................................

......................................................................................................................................... 2.8
Telephone number: .......................................................................................................
2.9 Postal address (if different from above):
......................................................................
.........................................................................................................................................

......................................................................................................................................... 2.10
E-mail address: ................................................................................................................
2.11 Are you a South African citizen?
Skills development 217

No (specify and attach documents indicating your

status, for example: permanent residence, study
Yes
permit, etc):
2.12 Highest level qualification:
(Tick the relevant box)
NQF level/nomenclature Other nomenclature
8
7 6
Doctoral degrees, PhD
5 Masters degrees
4 4 year Degrees
Further Education & Training National diplomas and higher
Certificate certificates

3 Grade 12, matriculation exemption

2 NTC 4
1
Grade 11, NTC 3
General Education & Training
Grade 10, NTC 2
Certificate
2.13 What is the title of your highest Grade 9, School leaving certificate,
qualification? NTC 1, ABET level 4
2.14 Have you previously undertaken a
learnership?

No Yes (specify title and code):

..................................
________________________

3 The Employment Equity Act defines a disability as a long-term or recurring physical or mental impair-ment which
substantially limits prospects of entry into, or advancement in, employment.
2.15 Were you employed by your employer before concluding this Agreement?
No Yes
2.16 If you were unemployed before concluding this Agreement, state for how long:
.........................................................................................................................................
2.17 If you are employed, when did you start work with your employer?
.........................................................................................................................................
3 Parent or Guardian details
(To be completed if learner is a minor)
3.1 Full name:
....................................................................................................................... 3.2 Identity
number: ............................................................................................................. 3.3 Home
address:................................................................................................................
.........................................................................................................................................
218 A Practical Guide to Labour Law

......................................................................................................................................... 3.4
Postal address (if different from above): ......................................................................
.........................................................................................................................................

......................................................................................................................................... 3.5
Telephone number (home and work):......................................................................... 3.6
E-mail address: ................................................................................................................
4 Employer details
4.1 Legal name of employer:
............................................................................................... 4.2 Trading name
(if different from above):......................................................................
4.3 Are you liable for the skills development levy?
No Yes
If yes, what is your SDL number:...............................................................
4.4 Name of SETA with which you are registered: .............................................................
4.5 What is the Standard Industrial Classification (SIC) code that applies to your
core business:..................................................................................................................
4.6 Are you acting as the Lead Employer?
No Yes
4.7 Business address: ............................................................................................................
.........................................................................................................................................

......................................................................................................................................... 4.8
Postal address (if different from 4.7):...........................................................................
.........................................................................................................................................
......................................................................................................................................... 4.9
Name of contact person:................................................................................................ 4.10
Telephone No:................................................................................................................ 4.11 Fax
No: ............................................................................................................................ 4.12 E-mail
address: ................................................................................................................
5 Training Provider details
5.1 Legal name of Training
Provider:................................................................................. 5.2 Trading name
(if different from above):......................................................................
5.3 Are you acting as the Lead Training Provider?
No Yes
5.4 Are you liable for the skills development levy?
No Yes
Skills development 219

If yes, what is your SDL number:...............................................................

5.5 What is the Standard Industrial Classification (SIC) code that applies to your core
business: ..........................................................................................................................
5.6 Name of ETQA that has accredited your institution: ................................................... 5.7
Accreditation number and review date: ........................................................................
5.8 Business address:
.........................................................................................................................................

......................................................................................................................................... 5.9
Postal address (if different from 5.8):...........................................................................
.........................................................................................................................................
......................................................................................................................................... 5.10
Name of contact person:................................................................................................ 5.11
Telephone number: ....................................................................................................... 5.12 Fax
number:.................................................................................................................... 5.13 E-mail
address: ................................................................................................................
6 ESDA details (if applicable)
6.1 Legal name of ESDA:
..................................................................................................... 6.2 Trading name
(if different from above):...................................................................... 6.3
Registration number:
.....................................................................................................
6.4 Business address:
.........................................................................................................................................

......................................................................................................................................... 6.5
Postal address (if different from 6.4):...........................................................................
.........................................................................................................................................
......................................................................................................................................... 6.6
Name of contact person:................................................................................................ 6.7
Telephone number: ....................................................................................................... 6.8 Fax
number:....................................................................................................................
6.9 E-mail address: ................................................................................................................
6.10 If the learner is a section 18 (1) learner, list below the rights and duties of the employer in
terms of the learnership agreement, if any, that are to be exercised by the ESDA as agreed by
the employer and the ESDA:4
.........................................................................................................................................
.........................................................................................................................................
.........................................................................................................................................

.........................................................................................................................................
.........................................................................................................................................
________________________
220 A Practical Guide to Labour Law

4 If the required information is set out clearly in the agreement concluded between the employer and the ESDA,
reference can be made to the relevant provisions in the agreement.
6.11 If the learner is a section 18 (2) learner, specify below the rights and duties of the employer
in terms of the contract of employment or the learnership agreement, if any, that will be
within the responsibility of the employer5:
.........................................................................................................................................
.........................................................................................................................................
.........................................................................................................................................
.........................................................................................................................................
.........................................................................................................................................
.........................................................................................................................................
6.12 Attach a copy of the agreement between the employer and the ESDA.
7 Terms and conditions of employment
7.1 Are the learner’s terms of employment determined by a document of general application (for
example, sectoral determination, bargaining council agreement, collective agreement):
No Yes (specify): ................................................
7.2 Attach a copy of a document reflecting the learner’s conditions of employment (for example:
contract of employment, written particulars of employment).
8 Signatories
Learner’s signature: Parent or Guardian’s signature
(Only if the learner is a minor)
................................................................... ................................................................
Date: .......................................................... Date: .......................................................
Witness signature: Witness signature:

................................................................... ................................................................
Date: .......................................................... Date: .......................................................

Training Provider or Lead Training

Employer or Lead Employer’s signature
Provider’s signature
................................................................... ................................................................
Date: .......................................................... Date: .......................................................
Witness signature: Witness signature:
................................................................... ................................................................
Date: .......................................................... Date: .......................................................

Official use only

Learnership Agreement Number: .............................................................
Registration date of the Agreement: ............................................................. Signature of SETA
Official (Learnership Manager): .............................................................
________________________
Skills development 221

5 If the required information is set out clearly in the agreement concluded between the employer and the ESDA,
reference can be made to the relevant provision in the agreement.
TO BE COMPLETED BY EACH TRAINING PROVIDER IF A GROUP OF TRAINING
PROVIDERS IS PARTY TO THE AGREEMENT
Training Provider 1
Legal name of training provider:................................................................................................
Name of ETQA that has accredited your institution: ................................................................
Accreditation number and review date: .....................................................................................
Name of contact person: ..............................................................................................................
Telephone number: ..................................................................................................................... Fax
number: ................................................................................................................................. E-mail
address: ..............................................................................................................................
Signature: ......................................................................................................................................
Date: ..............................................................................................................................................
Training Provider 2
Legal name of training provider:................................................................................................ Legal
name of training provider:................................................................................................
Accreditation number and review date: .....................................................................................
Name of contact person: ..............................................................................................................
Telephone number: ..................................................................................................................... Fax
number: ................................................................................................................................. E-mail
address: ..............................................................................................................................
Signature: ......................................................................................................................................
Date: ..............................................................................................................................................
TO BE COMPLETED BY EACH EMPLOYER IF A GROUP OF EMPLOYERS IS PARTY TO THE AGREEMENT
Employer 1
Legal name of employer: .............................................................................................................
Name of contact person: ..............................................................................................................
Telephone number: ..................................................................................................................... Fax
number: ................................................................................................................................. E-mail
address: ..............................................................................................................................
Signature: ......................................................................................................................................
Date: ..............................................................................................................................................
Employer 2
Legal name of employer: .............................................................................................................
Name of contact person: ..............................................................................................................
Telephone number: ..................................................................................................................... Fax
number: ................................................................................................................................. E-mail
address: .............................................................................................................................. Date:
..............................................................................................................................................
 9
EMPLOYMENT SERVICES ACT 4 OF 2014

9.1 Introduction

The Employment Services Act 4 of 2014 (ESA) was assented to on 3 April 2014, but came into
operation only on 9 August 2015.
ESA is the product of an in-depth review by the Department of Labour (DoL), with the assistance
of the International Labour Organisation (ILO), into the effectiveness of its programmes relating to,
inter alia, the provision of public employment services and the promotion of employment for work
seekers. After comparative studies among countries with similar economic conditions as South
Africa, focus areas were identified and prioritised: public employment services, labour policy,
industrial relations, inspections and enforcement.
The purpose of the Act is to promote employment, improve access to the labour market, provide
opportunities for new entrants to the labour market, assist retrenched employees and facilitate the
employment of foreign nationals (s 2(1)). To achieve these objectives free public employment
services are catered for, schemes are established to promote employment, private employment
agencies are regulated and activities of employment agencies are coordinated (s 2(2)).
The ultimate goal is to contribute to government’s objective of “more jobs, decent work and
sustainable livelihoods”. Public employment services are well-positioned to play a significant role in
the promotion and preservation of employment and assisting employers and employees to adapt
to changing labour market conditions. The Act accordingly provides a policy framework within
which public and private employment agencies can work together to facilitate entry into
employment whilst at the same time providing protection to vulnerable workers.
Prior to ESA employment services and other provisions aimed at facilitating employment were
found in the Skills Development Act 97 of 1998 (SDA). Those have now been removed and included
in ESA.
In order to achieve these goals the Act establishes the Employment Services Board, Productivity
South Africa and Supported Employment Enterprises.
The Director General of the Department of Labour must maintain labour centres, with suitable
personnel and financial resources, to ensure easy access to members of the public to the public
employment services. (s 4)

9.2 Definitions (s 1)

Some of the more important definitions are the following:

“employee” bears the same meaning as defined in section 1 of the Basic Conditions of Employment Act
(see Chapter 3 par 3.4);
“employment services” includes the provision of the following services:
(a) advising or counselling of workers on career choices, either by the provision of information or other
approaches;
 219
220 A Practical Guide to Labour Law

(b) assessment of work seekers for:

(i) entry or re-entry into the labour market; or
(ii) education and training;
(c) referring work seekers:
(i) to employers to apply for vacancies; or (ii) to
training providers for education and training;
(d) assisting employers:
(i) by providing recruitment and placement services;
(ii) by advising employers on the availability of work seekers with skills that match their
needs;
(e) performing the functions of temporary employment services; and (f)
any other prescribed employment service;
“foreign national” means an individual who is not a South African citizen or does not have a permanent
residence permit issued in terms of the Immigration Act;
“private employment agency” means any person who provides employment services for gain; “public
employment services” means the public employment services the Department of Labour must provide
free of charge to members of the public;
“work opportunity” means a vacancy or opportunity for employment or work experience,
selfemployment or community service;
“work scheme” means any programme aimed at assisting people to find or remain in employment or to
set themselves up in self-employment; and
“work seeker” means any person who is looking for work.

9.3 Framework of the Act

The strategic objectives of the Act will be achieved through public employment services, private
employment agencies, Productivity South Africa and the Supported Employment Enterprises. The
Employment Services Board is established as an advisory board to the Minister.

9.3.1 Public employment services (Ch 2 ss 5–12)

The DoL must provide public employment services free of charge. These services include matching
work seekers with available work opportunities, registering work seekers, registering job vacancies
and other work opportunities, facilitating the placing of work seekers with employers or in other
work opportunities, advising work seekers on access to education and training, facilitating the
exchange of information among labour market participants and facilitating the employment of
foreign nationals (s 5(1)).
In order to facilitate the matching of work seekers and work opportunities the DoL may provide
vocational and career counselling, assessment of work seekers to determine suitability and any
other related life skills to secure employment (s 5(2)).
The DoL has to maintain an employment information system to monitor, evaluate, research and
analyse trends in the provision of employment services (s 11).
The provision of public employment services is financed from monies defrayed from the budget
vote of the DoL, which may be supplemented by money allocated from the Unemployment
Insurance Fund and the Compensation Fund, registration fees paid by private employment agencies
and grants and donations made to the DoL (s 12(1)).
The financial resources earmarked for public employment services are utilised for the activities
and functions related to the service, as well as for schemes to assist retrenched workers and work
seekers, the rehabilitation and promotion of re-entry into employment of people disabled as a
result of an injury on duty or an occupational disease. The funds may also be allocated to subsidise
organisations and private employment agencies that provide work opportunities or special projects
for vulnerable work seekers (s 12(2)).
Employment Services Act 4 of 2014 221

9.3.2 Private employment agencies (Ch 3 ss 13–19)

Private employment agencies are registered in accordance with criteria determined by the Minister.
These criteria must differentiate between private employment agencies that are registered as
temporary employment services (labour brokers) and those private employment services that
perform other employment services (s 13(2)).
The Minister must appoint a Registrar of private employment agencies (s 13(3)).
Any person wishing to provide private employment services must apply to the Registrar for
registration. Upon registration a certificate of registration is issued. The registration certificate must
specify whether the private employment agency is permitted to perform the functions of a
temporary employment service (labour broker). Where an application for registration is not
successful, the Registrar must provide written reasons to the applicant (s 13(4)–(6)).
Private employment agencies are prohibited from performing certain acts, such as performing
functions for which they are not registered, falsifying documents and retaining the original
documents of work seekers (s 14).
Private employment agencies may not charge work seekers any fee for services rendered. This
includes making deductions from an employee’s remuneration (e.g. an agency has an arrangement
with its client to deduct an amount from the employee once the employee has been placed in
employment). Any practice by employers or agencies to circumvent this prohibition is outlawed.
Any dispute in this context can be conciliated and arbitrated by the CCMA or a bargain council with
jurisdiction. The Minister can, by way of regulation, permit the charging of fees in respect of specific
categories of employees or for the provision of specialised services (s 15).
A private employment agency is required to keep a register of work seekers for a period of at
least three years. Information about every work seeker, their placement in employment and the
employer where they were placed needs to be recorded in the register. The information is
confidential and must be safeguarded. It can only be disclosed to prospective employers and the
DoL (ss 16 & 17).
The registration of a private employment agency can be cancelled if it fails to comply with the
requirements of the Act. The Registrar is required to advise the agency in writing of his intention to
cancel its registration. The agency has 30 days within which to make representations as to why the
registration should not be cancelled. The Registrar must consider the representations and notify the
agency of his decision. Any person aggrieved by the decision of the Registrar not to grant
registration or to cancel it may approach the Labour Court within 30 days for a review of the
Registrar’s decision (s 18).

9.3.3 Productivity South Africa (Ch 5 ss 31–41)

Productivity South Africa was originally established under the SDA. It is now established anew in
terms of section 31 of the ESA. The functions of Productivity South Africa are, inter alia, to promote
a culture of productivity in workplaces, to measure and evaluate productivity in the workplace and
to support initiatives aimed at preventing job losses (s 32).
The Board of Productivity South Africa, consisting of seven members appointed by the Minister
(s 33), must report to the Minister on its activities at least once a year and its report must be tabled
in Parliament (s 41).
The Minister may, after consulting the Board of Productivity South Africa, make regulations
relating to workplace productivity and competitiveness if necessary or expedient to do so in order
to enable the Board to perform its functions.

9.3.4 Supported Employment Enterprises (Ch 6 ss 42–47)

The Supported Employment Enterprises (SEE) is established as a national government component
to promote work and employment opportunities for persons with disabilities (s 42). The Minister
appoints the CEO of the SEE, who is also the accounting officer (s 44).
222 A Practical Guide to Labour Law

The functions of Supported Employment Enterprises include the facilitating of supported

employment, providing work opportunities for persons with disabilities and the development and
implementation of programmes that promote the employability of persons with temporary and
permanent disabilities (s 43).

9.3.5 Employment Services Board (Ch 4 ss 20–30)

The Employment Services Board is established with the primary aim of advising the Minister on
matters such as work opportunities, the regulation of private employment agencies and the
promotion of supported work for persons with disabilities (s 22).
The Employment Services Board comprises an independent chairperson and 12 persons
appointed by the Minister to represent the State, organised labour, organised business and
organisations of community and development interest (s 21).
The Board must report on its activities to the Minister at least once a year (s 30).

9.4 Work schemes (ss 6–7)

The Minister may establish work schemes aimed at enabling the youth and other vulnerable work
seekers to enter or remain in employment or to become self-employed. A person employed in
accordance with such a scheme is subject to employment conditions as contained in the Basic
Conditions of Employment Act 75 of 1997 (BCEA) or any applicable collective agreement, but the
Minister can prescribe the period of employment and determine the remuneration or other
payments for persons working on such a scheme (s 6).
The Minister may also, in consultation with the Employment Services Board, establish schemes
to minimise retrenchments. Such a scheme may provide for turn-around strategies, lay-offs, re-
training and alternative employment opportunities (s 7).

9.5 Employment of foreigners (ss 8–9)

Section 8(1) protects the employment of South African citizens and permanent residents by
prohibiting the employment of foreign nationals without a valid work permit (as contemplated in
the Immigration Act).
The Minister may issue regulations to facilitate the employment of foreign nationals. These
regulations may include measures such as employers having to satisfy themselves that no South
African has the required skills to fill a particular vacancy before recruiting a foreign national,
employers having to make use of public or private employment services to assist in the recruitment
of suitable South African citizens or permanent residents and the preparation of a skills transfer
plan by employers in respect of any position in which a foreign national is employed (s 8(2)).
A person employed without a valid work permit is not without recourse. Such an employee may,
in terms of section 8(4) of the Act, enforce claims in terms of his contract of employment or any
statute against the employer (or any other person who is liable in terms of the law).
 An employer may not require or permit a foreign national to perform work which is not
authorised by the work permit or which is contrary to the terms of the work permit (s 9).

9.6 Monitoring and enforcement

Monitoring and enforcement of compliance with the provisions of ESA is done in accordance with
the Basic Conditions of Employment Act. That means that labour inspectors of the Department of
Labour can call on employers for written undertakings or issue compliance orders (s 49).
Employment Services Act 4 of 2014 223

Contravention of some of the provisions of the ESA constitutes criminal offences. It is, for
example, an offence to obtain any document by means of fraud, to furnish false information, to
operate a private employment agency without being registered and to employ foreigners in
contravention of the Act. A conviction of any of these offences will invite a fine or imprisonment (s
50).
In legal proceedings other than criminal proceedings the Labour Court has exclusive jurisdiction
in respect of all matters covered by the Act (save in the case of the charging of fees or deductions
from employees’ remuneration by private employment agencies for services rendered) (s 48).

Questions

Question 1
Distinguish between public employment services and private employment services. (6)

Question 2
The Employment Services Act establishes a number of bodies to assist with securing
employment for work seekers and vulnerable employees. Briefly state the functions of each of
the following bodies:
2.1 Productivity South Africa; (3)
2.2 Supported Employment Enterprise; (3)
2.3 Employment Services Board. (3)
Question 3
Gonzalez is a foreign national. He does not have a valid work permit. He applies for the position of a shop
assistant in a shoe shop in Gauteng.
3.1 May he be employed? (3)
3.2 Assume that Gonzalez was employed. He worked ten hours overtime in the week 4 to 8
February, but his employer refused to pay him for the overtime. Is he in a position to enforce
any claim against the employer? (3)
PART 3
LABOUR RELATIONS
 10
DEVELOPMENT OF SOUTH AFRICAN LABOUR LAW

10.1 Introduction

With the birth of a new, democratic South Africa it was necessary to reform the labour laws of the
country. Soon after the new Parliament was elected in 1994, the Minister of Labour initiated a five-
year plan to modernise the legal framework and the institutions that regulate the labour market.
The first step in this process was to overhaul the laws regulating labour relations.
The following problems with labour relations laws were experienced at the time:1
• the multiplicity of laws governing labour relations created inconsistency, unnecessary
complexity, duplication of resources and jurisdictional confusion;
• the lack of an overall and integrated legislative framework for labour law;
• the contradictions in policy introduced by numerous ad hoc amendments to labour legislation
over the years;
• the reliance on post hoc rule-making by the courts under the unfair labour practice jurisdiction;
• the extensive discretion given to administrators and adjudicators;
• the haphazard and unintegrated nature of collective bargaining institutions;
• the ineffectiveness of the conciliation machinery and procedures;
• the lengthy and expensive dispute resolution system;
• the criminal enforcement of labour law and collective agreements; and
• the lack of compliance with the Constitution of the Republic and public international law.
The only manner in which these problems could be addressed, was to rewrite the Labour Relations
Act with the support of all the social partners.
In the old regime the National Manpower Commission, representing the interests of the State,
employers and employees, conducted investigations and submitted recommendations to the
Minister of Labour on all labour matters. With the advent of the new South Africa it became evident
that a new body was required to address existing problems and to develop possible solutions in a
holistic manner. The new body had to be fully representative of all the stakeholders to make
meaningful discussions and negotiations possible. The first step, therefore, in the transition of South
African labour law was the promulgation of the National Economic Development and Labour Council
Act 35 of 1994.
________________________

1 For a detailed discussion see the Explanatory Memorandum in Government Gazette 16259 of 10 February 1995.

227
10.2 National Economic Development and Labour Council Act 35
of 1994

Organised business, organised labour and government have key roles to play in developing effective
policies with respect to economic and labour matters. In the years before 1994 bodies such as the
National Manpower Commission, a statutory body, and the National Economic Forum, a non-
statutory body, played an important role in bringing together organised business, organised labour
and government. The object was to discuss and negotiate labour matters and policy in the National
Manpower Commission and, in the case of the National Economic Forum, to achieve consensus on
general economic policy issues.
To address economic, labour and development issues more effectively, organised business,
organised labour and government supported the establishment of one statutory body which would
incorporate the activities of the Commission and the Forum and the National Economic,
Development and Labour Council (NEDLAC) was established on 18 February 1995.
NEDLAC does more than any previous institution to bring to the negotiating table mandated
representatives of business, labour, government and organisations representing community and
development interests. According to section 9(8) of the Act NEDLAC replaces the National
Manpower Commission. All the rights, duties, assets and liabilities, whether contractually or
otherwise obtained or accumulated in connection with matters entrusted to the Commission
passed to NEDLAC on 18 February 1995.

10.2.1 Establishment of NEDLAC

The Act establishes the National Economic, Development and Labour Council (s 2). NEDLAC is a
juristic person, consisting of four chambers and is governed by an executive council.
NEDLAC’s structure can be illustrated as follows:
NATIONAL SUMMIT
• Convened annually by Executive Council – not part of
NEDLAC
• Report back on NEDLAC activities to ensure
transparency and obtain inputs
• Composition: maximum of 300 persons

EXECUTIVE COUNCIL
• Meet at least quarterly
• Composition: maximum of 18 representatives from
each constituency
• Receive reports from chambers and conclude
agreements between parties
• Duties: to convene an annual national summit of
interested parties; to prepare an annual budget and
annual report; responsible for audited financial
accounts and balance sheets of NEDLAC

MANAGEMENT COMMITTEE
• Composition: all convenors on Executive Council and
chambers
• Oversees and co-ordinates work of NEDLAC between
meetings of Executive Council

continued
234 A Practical Guide to Labour Law

Development of South African Labour Law 229

Members representing organised business and organised labour are appointed by the Minister from
nominations made by the different organisations, while members representing government are
appointed by the President. Members representing community and development interests are
appointed by the Minister without Portfolio in the Office of the President2 from nominations by
democratically constituted organisations. These organisations represent a significant community
interest on a national basis and have a direct interest in reconstruction and development (s 3).
The constitution of NEDLAC provides, inter alia, for the following: the manner in which
nominations for appointment as members must be done, the criteria by which and manner in which
organised business and labour shall admit members, the removal of members, the appointment,
removal, duties and powers of the chairpersons, office-bearers and officials, the establishment,
composition and functions of the executive council, various chambers and committees, including
the management committee, the convening of, quorum for and conduct of meetings of the
executive council, chambers and committees, the keeping of minutes and the amendment of the
constitution (s 4).
The Executive Council of NEDLAC is established in accordance with the provisions of its
constitution. The council possesses extensive competencies and may, inter alia, exercise and
perform all the powers and functions allocated to NEDLAC, adopt a constitution for NEDLAC and
amend it, establish the four chambers and committees, including a management committee, to
assist it in the exercise of its powers and the performance of its functions. This council may also
conduct any enquiries, develop conventions to regulate its relationship with Parliament and its
standing committees, develop rules and protocols for the conduct of relations with other
institutions, develop codes of conduct to regulate the conduct of members and representatives and
appoint a secretariat for NEDLAC.

10.2.2 Objectives and functions of NEDLAC (s 5)

The Act provides that NEDLAC shall:
(a) strive to promote the goals of economic growth, participation in economic decisionmaking and
social equity;
________________________

2 See s 3(4). The Ministry without Portfolio was abolished in 1996. Its functions were transferred to the office of the
Deputy President. The Act has not been amended to cater for this change.
(b) seek to reach consensus and conclude agreements on matters pertaining to social and
economic policy;
(c) consider all proposed labour legislation relating to labour market policy before it is introduced
in Parliament;
(d) consider all significant changes to social and economic policy before it is implemented or
introduced in Parliament; and
(e) encourage and promote the formulation of co-ordinated policy on social and economic
matters.
In pursuing its goals, NEDLAC has to conduct the necessary investigations and research on social
and economic matters, keep abreast of international developments in social and economic policy,
continually evaluate the effectiveness of legislation and work in close co-operation with
departments of State, statutory bodies and other forums and nongovernmental agencies engaged
in the formulation and the implementation of social and economic policy.

Questions

Question 1
Briefly discuss the developments which culminated in the establishment of NEDLAC. (8)

Question 2
Discuss NEDLAC’s functions and objectives. (10)

Question 3
A federation of unions, COSAWU, representing 250 000 employees, applied to become an employee
member of NEDLAC, but its application for membership was denied. According to section 4 of the
National Economic Development and Labour Council Act the constitution of NEDLAC must provide
for the manner in which organised labour may nominate persons for appointment as members and
the criteria by which and manner in which organised labour shall admit federations of trade unions.
The NEDLAC constitution provides for membership of NEDLAC and stipulates that an application
must be referred to the constituency concerned (business, labour or the State) for that constituency
to determine possible membership. COSAWU’s application for membership was referred to the
convenor of the labour constituency. The founding federations of the labour constituency, COSATU,
NACTU and FEDUSA, had informally set as a criterion for membership the requirement that a
federation must represent at least 300 000 employees. Because COSAWU represents 250 000
employees its application was turned down.
Discuss whether NEDLAC or a specific constituency should set out the criteria for admission.
(10)
Hint: Confederation of SA Workers Unions v NEDLAC & Others (2011) 32 ILJ 1831 (SCA).

11
LABOUR RELATIONS ACT 66 OF 1995

11.1 Introduction

The Industrial Conciliation Act 28 of 1956 was enacted to regulate labour relations. It provided for
collective bargaining and dispute resolution, but was applicable to whites in the private sector only,
236 A Practical Guide to Labour Law

thus excluding many employees in a variety of sectors. The Act was amended from time to time and
by the late 1970s it had become necessary to take an indepth look at the laws regulating labour
relations. The Wiehahn Commission was appointed to investigate labour legislation and to make
recommendations on how the laws should be changed.
Following the Wiehahn Commission’s recommendations, significant changes were introduced in
late 1979 and early 1980. The more important changes included changing the name of the Act from
the Industrial Conciliation Act to the Labour Relations Act (LRA), introducing the concept of “unfair
labour practice” into South African Labour Law for the first time, establishing the Industrial Court
and making the Act applicable to all race groups. The Industrial Court was tasked with the
responsibility to develop the concept of “unfair labour practice”.
These amendments were undoubtedly a leap towards a more encompassing law and a first step
in eliminating racial discrimination. Despite incorporating the new ideas, the Act was still not
adequate in all respects. It remained applicable to the private sector only, with the result that many
categories of employees still did not enjoy the rights and protection created by the Act. And, the
dispute resolution procedures in particular were cumbersome, time consuming and costly.
Subsequent amendments to the Act, including the establishment of a Labour Appeal Court, were
not sufficient to satisfy the remaining inadequacies.
The fact that a number of employees were still excluded from the Act gave rise to the enactment
of laws to regulate labour relations in those sectors excluded from the Act. The Education Labour
Relations Act 146 of 1993 (ELRA), the Agricultural Labour Act 147 of 1993 (ALA) and the Public
Service Labour Relations Act 102 of 1993 (PSLRA) were promulgated in 1993. They duplicated to a
large extent the provisions of the LRA.
The ELRA was applicable to teachers employed by the Department of Education, that is, teachers
at public schools and colleges. The ALA was applicable to the farming sector, for the first time
making labour relations laws applicable to farm workers. And, the PSLRA was applicable to the
public sector, i.e. the State as employer and all employees in the public service. Thus, by the end of
1993 the majority of employees were covered by legislation. The conspicuous exclusions from all
the statutes were domestic workers, teachers at private schools and lecturers at tertiary educational
institutions.
The multiplicity of laws and the resultant unnecessary duplication, the cumbersome and costly
dispute resolution procedures and a number of other inadequacies necessitated a review of
legislation governing labour relations. Soon after the birth of the new, democratic South Africa in
1994 the then Minister of Labour implemented a five-year plan in terms of which labour legislation
was to be overhauled, the Labour Relations Act of 1956 being the first to receive attention.
A ministerial legal task team was appointed by the Minister of Labour on 8 August 1994 to draft
a new Labour Relations Bill. Assisted by the International Labour Organisation

231
(ILO) and specialist practitioners, the task team produced a document for negotiation in Bill form,
accompanied by a detailed explanatory memorandum. The aim was to initiate a process of public
debate and negotiation by all social partners in order to reach consensus on a new labour relations
dispensation for South Africa. The proposals, tabled before NEDLAC, the Public Service Bargaining
Council and the Education Labour Relations Council, were published in Bill form in the Government
Gazette on 10 February 1995, inviting public comment.
After due process of discussion and negotiation NEDLAC tabled a report on 21 July 1995,
recommending the adoption of the draft Bill by the Cabinet, subject to the necessary amendments
occasioned by the agreements reached between the negotiating parties, public submissions, the
submissions from the Public Service Bargaining Council and the Education Labour Relations Council
and the redrafting of the Bill into simple language. The tripartite Committee of Principals appointed
by NEDLAC was authorised to consider any amendments and to be available to Parliament during
the legislative process. The Bill was adopted by Parliament on 13 September 1995 and became the
new Labour Relations Act 66 of 1995 (LRA).
The new LRA did not come into operation immediately because new structures had to be
created, such as the Labour Court (taking the place of the Industrial Court), a new Labour Appeal
Court and the Commission for Conciliation, Mediation and Arbitration (CCMA). After the
establishment of the new structures the new LRA finally came into operation on 11 November 1996.
The new LRA gives effect to the stated goals and principles of the Reconstruction and
Development Programme of the government, ensures that labour legislation complies with the
provisions of the Constitution and brings the South African labour law in line with the Conventions
and recommendations of the ILO. Some of the significant changes brought about by the 1995 LRA
are the following:
• the recognition of employees’ right to strike and employers’ recourse to lock-out;
• the introduction of employee participation in decision-making in the workplace;
• the process of conciliation in an attempt to resolve disputes between an employer and its
employee(s) or a trade union and, if conciliation fails, the arbitration by the CCMA or bargaining
councils or adjudication by the Labour Court of those disputes;
• the establishment of a new specialised court, the Labour Court, and a new Labour Appeal Court;
and
• the old industrial councils became bargaining councils and statutory councils can be established
where no bargaining councils exist.
The main objectives of the LRA are to advance economic development, social justice, labour peace
and the democratisation of the workplace (s 1). These goals are to be reached by:
• giving effect to the fundamental rights conferred by the Bill of Rights contained in the
Constitution;
• giving effect to obligations incurred by the Republic of South Africa as a member state of the ILO;
• providing a framework for collective bargaining between trade unions and employers or
employers’ organisations; and
• promoting orderly collective bargaining, collective bargaining at sectoral level, employee
participation in decision-making in the workplace and the effective resolution of labour disputes.
Since its inception, the 1995 LRA has undergone some changes. Significant amendments were
introduced by the Labour Relations Amendment Act 12 of 2002, which took effect on 1 August 2002.
Further important amendments were enacted when the Labour Relations Amendment Act 6 of
2014 took effect on 1 January 2015. The most recent amendments can
238 A Practical Guide to Labour Law

be found in the Labour Relations Amendment Act 8 of 2018, which came into operation on 1 January
2019.

11.2 Application of the LRA (s 2)

The LRA is applicable to every employer and every employee in every undertaking, industry, trade
or occupation in South Africa, the only exclusions being:
• members of the National Defence Force;
• members of the State Security Agency.
Because the LRA is applicable to employers and employees (with only the above exclusions), it is
necessary to determine who an employer and who an employee is. The Act does not define
“employer”, but describes an “employee” as:
(a) any person, excluding an independent contractor, who works for another person or for the State
and who receives or is entitled to receive, any remuneration; and
(b) any other person who in any manner assists in carrying on or conducting the business of an
employer.1
The first part of the definition incorporates the common law contract of locatio conductio operarum,
thus excluding an independent contractor who works in terms of locatio conductio operis. In SABC
v McKenzie [1999]1 BLLR 1 (LAC) the Labour Appeal Court found that “the first part of the definition
has been interpreted to mean a person who works for another in terms of the common law contract
of service”.
The distinction between an employee and a contractor is not always clear, but it is necessary to
determine whether a person is an employee in order to establish whether the LRA and other
legislation apply.
An important feature of the ordinary contract of employment (locatio conductio operarum) is
the supervision, authority and control that an employer has over his employee. This is often referred
to as the “control test” and was for many years used to determine whether a person is an employee
or a contractor. However, the control test proved inadequate and in later years the courts adopted
the dominant impression test, which has proved to result in a more accurate answer. The Labour
Appeal Court, in State Information Technology Agency (SITA) (Pty) Ltd v CCMA [2008] 7 BLLR 611
(LAC), summarised the key elements of the dominant impression test as, firstly, the employer’s right
to supervise and control, secondly the question as to whether the alleged employee forms an
integral part of the organisation and, thirdly, the extent of the employee’s economic dependence
on the employer. Other cases also indicate that the element of control still plays a significant role in
determining whether a person is an employee – see inter alia Liberty Life Association of Africa Ltd
v Niselow [1996] 7 BLLR 825 (LAC); Denel (Pty) Ltd v Gerber [2005] 9 BLLR 849 (LAC) and refer to
paragraph 2.2 of Chapter 2 of this publication.
In addition to the tests developed by the courts over the years, the LRA creates a rebuttable
presumption of who an employee is. Section 200A of the LRA (which is mirrored by s 83A of the
BCEA) presumes a person to be an employee if any one (or more) of the following factors is present
and the onus is on the employer to prove the contrary:
(a) is subject to the control or direction of another person (the employer);
(b) works hours that are subject to the control of another person;
(c) forms part of the organisation;
(d) has worked for another person for an average of at least 40 hours per month over the last
three months;
________________________
Labour Relations Act 66 of 1995 239

1 “Employee” is given a different and very specific meaning in the context of a workplace forum (see Ch 5 of the LRA).
(e) is economically dependent on the person for whom he works;
(f) is provided with tools of trade or work equipment by the other person; or (g) only works
for one person (employer).
The presumption created in section 200A is applicable for the purposes of the LRA, any employment
law and section 98A of the Insolvency Act 24 of 1936 (s 200A(1)).
The presumption does not apply to persons who earn in excess of the BCEA threshold, i.e. the
amount determined by the Minister in terms of section 6(3) of the BCEA (currently R205 433-30) (s
200A(2)).
Where a person in a proposed or existing work arrangement earns an amount equal to or less
than the BCEA threshold any of the parties may approach the CCMA for an advisory award on
whether that person is an employee or not (s 200A(3)).
To further assist with the determination of whether a person is an employee NEDLAC has issued
a Code of Good Practice (in terms of s 200A(4) of the LRA). It is the Code of Good Practice: Who is
an employee and is included in Chapter 2 of this publication.
Returning to the definition of “employee”: persons who do not receive or are not entitled to
receive remuneration, in cash and/or kind, for the work they perform are not considered
“employees”. They are typically the unpaid or “volunteer” workers, working for charitable
organisations or a family member of an employer who performs services without payment.
The second part of the definition is wider and does not specifically refer to the requirement of
remuneration in order to be considered an employee. Persons who receive no remuneration may
therefore conceivably be considered employees; as may, conceivably, independent contractors and
other persons ordinarily not regarded as employees, such as partners and agents. When
interpreting the similarly worded definition of “employee” in the 1956 LRA our courts traditionally
read some limitations into the wording, otherwise any person who “assists in carrying on the
business of the employer” may be regarded as an employee, such as an accountant or attorney.
Consequently, the courts have distinguished between “assisting in the carrying on or conducting of
business” and “performing work or services which have the effect of providing such assistance”.
Persons involved in the latter category, such as the independent contractor, are thus excluded. Refer
to the cases cited in Chapter 2 of this publication
Included in the definition of “employee” are casual employees, managers and directors of a
company, shop stewards who are employees, migrant workers, probationary employees and
temporary or fixed-term employees.
Although only “employees” enjoy the protection of the LRA, persons who are not employees
derive rights from the LRA in two instances: the right to freedom of association of job applicants is
protected (s 5) and a dismissed employee (i.e. a person who was an employee, but who no longer
is) has recourse to the dispute resolution mechanisms of the LRA (Ch 8 of the LRA).2
Because “employer” is not defined in the LRA it is necessary to refer to the definition of
“employee” in order to determine who an employer is. An employer is a person who receives
services from an employee or who is assisted in the conduct of its business in return for
remunerating the employee. It has been suggested that an employer is a company or other person
or persons who has control of the undertaking in which the employee is employed.

________________________

2 Job applicants (i.e. non-employees) also enjoy protection in terms of the Employment Equity Act 55 of 1998. S 9 of
the EEA makes the provisions relating to discrimination applicable to job applicants, which means a person who
applies for a position may challenge a non-appointment on the grounds of discrimination. And, in terms of s 79
of the BCEA job applicants and ex-employees enjoy certain rights.
240 A Practical Guide to Labour Law

A difficult situation arises where a labour broker (temporary employment services or TES)
provides labour to a client in return for a fee. The client and the TES conclude an agreement in terms
of which the TES will secure employees and make them available to work at the client’s business.
Who then is the employer of the employees?
The LRA, in section 198(2), expressly declares the TES to be the employer and the person whose
services have been procured (excluding an independent contractor) is the employee of the TES. The
TES, as employer, is accordingly obliged to comply with employment conditions contained in
bargaining council collective agreements, any applicable sectoral agreement or the BCEA or an
arbitration award that deals with employment conditions. Should the TES contravene any of these,
the TES and the client are in solidum liable (s 198(4)).
This was the relatively uncomplicated position prior to the enactment of the 2014 amendments
to the LRA. The position changed when the amendments took effect on 1 January 2015. In terms of
the new section 198A, inserted by the amendments, only those employees who perform an
indisputable “temporary service” are the employees of the TES (if they earn below the BCEA
threshold) (s 198A(3)(a)). A “temporary service” means that the employee works for a client for no
longer than three months or as a substitute for an employee who is temporarily absent or doing
work for a period determined as a temporary service in a bargaining council collective agreement,
sectoral determination or ministerial notice (s 198A(1)). Employees who are not performing a
temporary service, as defined, are “deemed to be the employees of the client and the client is
deemed to be the employer” (s 198A(3)(b)).
The latter phrase, generally referred to as the “deeming provision”, generated immeasurable
debate and analyses among practitioners, judges, CCMA commissioners and academics. Some were
of the opinion that the client becomes the sole employer of the employee after three months. The
opposite school of thought was that, after three months, both the TES and the client are the
employers of the employee.
Fortunately the courts had occasion to consider and pronounce on the deeming provision shortly
after its enactment. In Assign Services (Pty) Ltd v CCMA & Others [2015] 11 BLLR 1160 (LC) the
Labour Court held that the deeming provision does not result in the client becoming the sole
employer of the employee after three months, but is deemed to be the employer for purposes of
the LRA only. For all other purposes the TES remains the employer. This judgment supports the
notion of dual employers.
The Labour Court judgment was overturned on appeal in NUMSA v Assign Services (Pty) Ltd &
Others [2017] 10 BLLR 1008 (LAC). The Labour Appeal Court held that the client becomes the sole
employer and that the TES “drops out of the picture”. The Court voiced the opinion that the purpose
of section 198A is to restrict the employment of more vulnerable, lower-paid workers by a TES to
situations of genuine and relevant temporary work and to ensure that the deemed employees are
fully integrated into the enterprise as employees of the client. This is done, not by transferring the
contract of employment between the TES and the employee to the client, but by creating a statutory
employment relationship between the client and the placed worker. The Constitutional Court
confirmed this decision in Assign Services (Pty) Ltd v CCMA & Others [2018] 9 BLLR 837 (CC).

11.3 Atypical employment

The older and now repealed statutes distinguished between different kinds of employees. The 1983
BCEA, for example, distinguished between employees, casual employees, shift workers, day
workers, regular day workers, salesmen, guards, insurance agents and more and many persons
performing work were not considered to be employees at all (e.g. public service workers and
university staff).
Labour Relations Act 66 of 1995 241

No such distinction is found in the current statutes. The LRA, BCEA and other Acts apply to
“employees”, meaning that if an employer-employee relationship exists, the employee has certain
rights and enjoys certain protections. Thus, a person who is employed for a fixed-term of four
months or who works “casually” for one day a week have rights. So does a person who is employed
by a labour broker but is placed to work at the business of the client of the labour broker.
Problematic, however, is the fact that such employees have little or no job security. The employee
who has been employed for a fixed term loses his job upon expiry of the contract. Or, if the client
of the labour broker does not like an employee, the employee can be removed at the behest of the
client. Aggravating the problem is the fact that employers frequently employ workers in a manner
other than on a permanent basis because they think they can escape some of the legal provisions
and can easily get rid of the employee.
The legislature intervened in 2014 when the LRA was amended in an attempt to halt the
exploitation of these vulnerable workers and to ensure them more job security.
Prior to the 2014 amendments the LRA, in section 198, regulated the employment of employees
by a TES to some extent, but did not specifically cater for part-time employees or employees on a
fixed-term contract. When the 2014 amendments took effect on 1 January 2015 section 198 of the
LRA was amended and sections 198A–198C were inserted to further regulate temporary
employment services and to provide for fixed-term contract employees and part-time employees.
A new section 198D was also inserted to provide for dispute resolution.
It is important to note that sections 198A–198C apply to employees who earn below the BCEA
threshold only (currently R205 433-30). The intention of the legislature was clearly to provide
protection and create more security for the more vulnerable and lower income employees.
In terms of the pre-amended section 198 the TES employs an employee. The TES is thus the
employer and the person who performs work at a client is the employee of the TES (s 198(2)). This,
of course, excludes independent contractors (s 198(3)). As an employer, the TES is obliged to
observe all conditions of employment contained in the BCEA, a collective agreement or sectoral
determination or an arbitration award that deals with employment conditions. Should the TES
contravene any of these provisions the TES and the client are jointly and severally liable (s 198(4)).
These provisions have been retained, but the amendments added the following to section 198:
• where a TES and its client are jointly and severally liable in terms of section 198(4) or where the
client is deemed to be the employer of the employee in terms of section 198A(3) (see below),
an employee is entitled to institute proceedings against either the TES or the client or both.
Similarly, a labour inspector who is enforcing compliance may secure compliance against either
the TES or the client or against both and any order or award made against the TES or the client
may be enforced against either of them (s 198(4A));
• a TES must provide an employee assigned to a client with written particulars of employ-ment in
accordance with section 29 of the BCEA (s 198(4B));
• a TES may not employ an employee on terms and conditions of employment contrary to the LRA
or any other employment law or contrary to a sectoral determination or bargaining council
collective agreement applicable to the client (s 198(4C));
• in any proceedings the Labour Court or an arbitrator may determine whether a pro-vision in an
employment contract or the contract between a TES and its client complies with the LRA, a
sectoral determination or an applicable bargaining council agreement (s 198(4E)).
The amendments also added a section 198(4F) in terms of which a person may not perform the
functions of a TES unless registered. This is the only, of all the 2014 amendments, that has not yet
come into force.
Section 198A is applicable only to TES employees who earn below the BCEA threshold.
242 A Practical Guide to Labour Law

Employees who are employed by a TES and who perform a “temporary service” for a client of
the TES is the employee of the TES (s 198A(3)(a)).
A “temporary service” is defined as follows (s 198A(1)):
• work for a client not exceeding three months in duration;
• work as a substitute for an employee of the client who is temporarily absent; or
• a category of work and for a period of time determined as a temporary service in a bargaining
council collective agreement, sectoral determination or ministerial notice.
If the employee is not performing temporary services, as defined, he is deemed to be the employee
of the client and employed on an indefinite basis (s 198A(3)(b)). See the judgment in Assign Services
(above). He must be treated on the whole not less favourably than the employees of the client who
perform the same or similar work, unless there is a justifiable reason for different treatment (s
198A(5)).3
The test is thus, and the distinction is to be drawn between, the employee who performs a
genuine temporary service and the one who performs services that may prima facie appear to be
of a temporary nature, but which are not defined as a temporary service.
A situation often encountered in practice is that a TES employee works for a client for more
than three months. If the deployment to the client cannot be defined as a “temporary service”
the deeming provision is triggered. If, for example, the TES employee works for the client for four
months to stand in for an employee who is on maternity leave, it qualifies as a temporary service
and the TES is the employer. If, on the other hand, the TES employee works for the client for four
months with no reason attached to the duration of his employment (and not sanctioned by a
collective agreement, etc.), the client is deemed to be the employer and the employee is deemed
to be a permanent employee (unless on a fixed-term contract), enjoying the same treatment as
other permanent employees.
In the event of a TES terminating the services of the employee, at the instance of the TES or of
the client, in order to avoid the deeming provision in section 198A the termination constitutes a
dismissal (s 198A(4)).
Section 198B provides for fixed-term contracts concluded with employees who earn below the
BCEA threshold. For the purposes of this section a fixed-term contract is a contract of employment
that terminates on the occurrence of a specified event, on the completion of a specified task or
project or on a fixed date (other than the normal or agreed retirement age) (s 198B(1)).
Section 198B does not apply to employers who employ fewer than ten employees or who employ
fewer than 50 employees and whose business has been in operation for less than two years (unless
the employer conducts more than one business or the business was formed by the division or
dissolution of an existing business). Section 198B is also not applicable to employees who are
engaged in terms of a fixed-term contract permitted by statute or by a sectoral determination or
collective agreement (s 198B(2)).
An employee can be employed for longer than three months only if the nature of the work is of
a limited or definite duration or if the employer can demonstrate any other justifiable reason for
fixing the term of the contract, such as that the employee is replacing a temporarily absent
employee, is engaged on account of a temporary increase in work volume or to perform seasonal
work or is a student who is employed to gain practical experience (s 198B(4)).

________________________

3 In terms of the new s 198D(2) a “justifiable reason” includes seniority, experience, length of service, merit, the
quality or quantity of work and other reasons that are not prohibited in terms of s 6(1) of the EEA.
Labour Relations Act 66 of 1995 243

If the work is not of a limited nature or the employer cannot demonstrate a justifiable reason for
fixing the term of the contract, the employee is deemed to have been employed for an indefinite
period and must be treated on the whole not less favourably than permanent employees who
perform similar work (s 198B(5) & (8)). An employee on a fixed-term contract must be afforded the
same opportunities to apply for vacancies as other employees may have (s 198B(9)).
If a fixed-term contract of longer than 24 months is justifiable the employer must, on expiry of
the contract and subject to any applicable collective agreement, pay the employee one week’s
remuneration for each completed year of the contract (s 198B(10)). The employer is not obliged to
effect said payment if, before the expiry of the contract, it offers the employee alternative
employment or procures employment elsewhere on similar terms and conditions which
employment commences no later than 30 days after expiry of the contract (s 198B(11)).
An offer of employment on a fixed term or the renewal of a fixed-term contract must be in writing
and state the reasons for the limited-duration contract (s 198B(6)).
Section 198C regulates part-time employment of employees who earn below the BCEA
threshold. For the purposes of this section a part-time employee is an employee who is
remunerated wholly or partly by reference to time worked and who works fewer hours than a
comparable full-time employee (s 198C(1)).
Section 198C does not apply to employers who employ fewer than ten employees or who employ
fewer than 50 employees and whose business has been in operation for less than two years (unless
they conduct more than one business or the business was formed by the division or dissolution of
an existing business). Section 198C also does not apply to employees who work less than 24 hours
per month or during an employee’s first three months of continuous employment with an employer
(s 198C(2)).
Part-time employees must on the whole be treated not less favourably than comparable full-
time employees doing similar work. They must be afforded access to training and skills development
and given an opportunity to apply for vacancies as full-time employees (s 198C(3)).
Section 198D provides for the conciliation and arbitration of disputes concerning the
interpretation or application of sections 198A–198C. The dispute must be referred for conciliation
to the CCMA (or a bargaining council with jurisdiction) within six months, unless the dispute is a
dismissal as contemplated in section 198A(4), which must be referred within 30 days. If conciliation
does not resolve the dispute, the matter may be referred to arbitration within 90 days.

Questions

Question 1
Give a detailed discussion of the meaning of “employee” in terms of the Labour Relations
Act of 1995 (LRA). (20)

Question 2
Briefly explain whether the LRA is applicable to the following persons:
2.1 Richard is a civil engineer. The Eastern Cape provincial administration concludes a contract with
him in terms of which he has to design and build a new bridge across the Bushman’s River;
(2)
2.2 Xoliswa works as a volunteer for an NGO. She does not receive any payment for her services;
(2)
2.3 Ravish is a student and works as a waiter in a restaurant on Saturdays and Sundays to earn
money to pay for his studies. At the restaurant he is called a “casual employee”; (2)
244 A Practical Guide to Labour Law

2.4 Jonathan is a general in the National Defence Force; (2)

2.5 Mr Van der Merwe is the Managing Director of a large insurance company and earns
R800 000 per year; (2)
2.6 Ben and Thandi both live in Johannesburg and are employed by a private airline company
registered in Namibia. The company flies it planes to African countries and only on charter.
When a plane is chartered Ben is the pilot and Thandi the flight attendant on the flight. They
get paid per flight in US dollars. (2)
Hint: Kleinhans v Parmalat SA (Pty) Ltd [2002] 9 BLLR 879 (LC); Moslemany v Unilever PLC &
Another [2006] 12 BLLR 1167 (LC); Astral Operations Ltd v Parry (2008) 29 ILJ 2668
(LAC); Kruse v Gijima AST (Pty) Ltd [2010] JOL 24998 (LC).
2.7 Jade is employed by the Moroccan embassy and works at the embassy’s offices in
Pretoria. (2)
Hint: Ss 2 & 5 of the Foreign States Immunities Act 87 of 1981; Nobela v Consulate General
USA [1999] 1 BLLR 31 (LC).

Question 3
Bridge Builders (Pty) Ltd is a civil engineering and construction company with some 80 permanent
staff. From time to time, depending on projects awarded to Bridge Builders, additional staff is
required. Bridge Builders then contacts a temporary employment service, Staffsourcing CC, to
supply additional labour. Early in 2018 Bridge Builders had more projects than usual and
Staffsourcing was asked to make additional employees available. Staffsourcing assigned ten of its
general labourers “to help out” at Bridge Builders. They were not told how long they would be
helping out at Bridge Builders. They worked 40 hours per week and earned R1 500 per week. More
projects were awarded to Bridge Builders and the ten labourers ended up working at Bridge Builders
for almost five months, when they were told that their services would no longer be required. They
approached their union for advice.
3.1 Discuss the legal position of the ten labourers, with specific reference to who their employer is.
(15)
Hint: Section 198A of the LRA; Assign Services (Pty) Ltd v Krost Shelving & Racking (Pty) Ltd
& Another [2015] 9 BALR 940 (CCMA); Assign Services (Pty) Ltd v CCMA & Others [2015]
11 BLLR 1160 (LC); NUMSA v Assign Services & Others [2017] 10 BLLR 1008 (LAC); Assign
Services (Pty) Ltd v Krost Shelving & Racking (Pty) Ltd & Others [2018] 9 BLLR 837 (CC).
3.2 The ten labourers, with the assistance of their union, referred a dispute to the Civil Engineering
Bargaining Council. Explain who must be cited as the respondent and against whom the
arbitration award can be made. (5)
Hint: S 198(4) & (4A).
3.3 Assume that, when the labourers were placed to help out at Bridge Builders, they were given
written contracts in terms of which they would be employed to help out on one specific project
only and that their services would no longer be required once that project had been completed.
The project finished five months after they had started at Bridge Builders. Discuss their legal
position. (10) Hint: Section 198B.
3.4 Assume that it was not labourers, but engineers earning R40 000 per month who were assigned
to work at Bridge Builders. What is their legal position? (10)

Question 4
By inserting sections 198A–198C into the LRA the legislature attempted to ensure better job security
for lower-income employees who are frequently employed on a temporary basis for longer than
three months. With this in mind, discuss the following:
Labour Relations Act 66 of 1995 245

4.1 the meaning of a “temporary service”, as contemplated in the context of TES employees;
(4)
4.2 the meaning of a “fixed-term contract”, as contemplated in section 198B of the LRA;
(4)
4.3 the meaning of a “part-time employee”, as contemplated in section 198C of the LRA;
(4)
4.4 justifiable reasons for employing a person longer than three months on a limited
duration. (8)
 12
FRAMEWORK OF THE LABOUR RELATIONS ACT

12.1 Introduction

The Labour Relations Act (LRA) is certainly the most important piece of labour legislation on the
statute book. In addressing the problems experienced with the LRA of 1956, the LRA of 1995 makes
provision for entirely new structures and procedures.
Structures created by the 1995 Act for the purpose of collective bargaining are bargaining and
statutory councils. These councils are responsible for dispute resolution, together with the CCMA
and the Labour Courts. To promote worker participation in decision-making in the workplace, the
LRA provides for the establishment of workplace forums.
The structures created by the LRA for collective bargaining and dispute resolution can be
illustrated as follows:
Framework of the Labour Relations Act 247

241
In simplified form the structures for collective bargaining are the following:

* A statutory council may be established in sectors and areas where no bargaining councils exist. The powers
and functions of statutory councils may be extended to include the functions of a bargaining council.

The structures for dispute resolution are as follows:

* Some disputes must be referred to the CCMA for conciliation and arbitration even though a bar-gaining
council is in existence, such as dispute about organisational rights, workplace forums, disputes about the
interpretation or application of agency and closed shop agreements and ministerial determinations,
demarcation of sectors and areas of councils, etc. See par 19.4.

12.2 Trade unions and employers’ organisations (Ch 6 ss 95–106)

A trade union is defined as “an association of employees whose principle purpose is to regulate
relations between employees and employers, including any employers’ organisations”. Similarly, an
employers’ organisation is “any number of employers associated together for the purpose, whether
by itself or with other purposes, of regulating relations between employers and employees or trade
unions” (s 213).
Registration of a trade union or an employers’ organisation is required in order to exercise the
rights contained in the Act. The requirements which must be met for registration are found in
section 95(1)–(4) and are:
• the name must not be misleading or cause confusion;
• the constitution must meet the requirements of the Act;
248 A Practical Guide to Labour Law

• it must have an address in the Republic;

• it must be a genuine trade union or employers’ organisation in conformity with guidelines laid
down by the Minister in consultation with NEDLAC; and
• the trade union must be independent. A trade union is independent if it is not under the direct
control of any employers’ organisation and if it is free of any interference or influence of any kind
from any employer or employers’ organisation.
The constitution of every trade union or employers’ organisation that applies for registration must
make provision for, inter alia, the qualifications for and termination of membership, membership
fees, the rules for the convening and conducting of meetings, the procedure for the nomination
and election of office-bearers and officials, the conducting of ballots,1 the banking and investing of
money and a procedure for the changing of its constitution (s 95(5)). A constitution may not include
any provision that discriminates directly or indirectly against any person on the grounds of race or
gender (s 95(6)).
Any trade union or employers’ organisation may apply for registration by submitting to the
Registrar the prescribed application form, as well as a copy of its constitution and any further
information that the Registrar may require. If the application for registration is in compliance with
the requirements set out in the LRA, the Registrar must register the applicant by entering its name
in the register of trade unions or employers’ organisations. Notice thereof is given in the
Government Gazette (s 96).
After registration the Registrar must issue a certificate of registration in the applicant’s name and
send the certificate, together with a certified copy of the registered constitution, to the applicant (s
96(7)). Upon registration the voluntary association becomes a body corporate, enabling it, inter
alia, to sue and be sued in its own name. Persons who are members, office bearers, officials or
representatives of a trade union or employers’ organisation are not personally liable for any loss
caused to others if the member, official, etc., acted in good faith (s 97).
If registration is refused, any aggrieved person may demand in writing that the Registrar provide
written reasons for his decision. Irrespective of whether reasons are requested, the aggrieved party
may within 60 days appeal to the Labour Court against the refusal (or cancellation) of registration
(s 111).
Every registered trade union and employers’ organisation must keep books and records of its
income, expenditure, assets and liabilities, prepare financial statements at the end of each financial
year and arrange for an annual audit of its books and records of account and its financial statements.
These financial statements and the auditor’s report must be made available to the members for
inspection and must also be submitted at a meeting of members. A list of members must be kept,
as must minutes of every meeting and all ballot papers. A statement showing the number of
members as well as a certified copy of the auditor’s report and of the financial statements must be
submitted to the Registrar annually (ss 98–100).
The registration of a union or employers’ organisation will be cancelled if it has been ordered to
wind up or, in the case of a trade union, the Labour Court has declared the union no longer
independent (s 106).
In terms of section 103A an administrator may be appointed if it is just and equitable to do so
and if a trade union or an employers’ organisation fails materially to perform its functions or if there
is serious mismanagement of its finances. The trade union or employers’ organisation or the
Registrar may apply for the appointment of an administrator.
The Registrar may cancel the registration of a trade union or an employers’ organisation if the
Registrar: (a) is satisfied that the trade union or employers’ organisation is not or has
________________________

1 “Ballot” means any system of voting by members that is recorded in secret. The Minister may publish guidelines for
a system of voting – s 95(8) & (9).
ceased to function as a genuine trade union or employers’ organisations; or (b) has issued a written
notice requiring the trade union or employers’ organisation to keep the necessary financial
documentation, member information and to submit the necessary information to the Registrar
within a period of 60 days of the notice and has, despite the notice, not complied with the above-
Framework of the Labour Relations Act 249

mentioned requirements. This can be done only if the Registrar has published a notice in the
Government Gazette at least 60 days prior to the cancellation. The notice must contain the intention
of the Registrar to cancel the registration of the trade union or employers’ organisation and invite
them or any other interested parties to make written representations as to why the registration
should not be cancelled (s 106(2A).

12.3 Bargaining councils (Ch 3 Part C, D & F)

Bargaining councils replace the old industrial councils. Bargaining councils have, as their
predecessors, collective bargaining and dispute resolution as their main functions, but enjoy
extended powers and functions under the LRA of 1995. All industrial councils registered in terms of
the 1956 Act are deemed to be bargaining councils and the Registrar must enter their names in the
register of councils.

12.3.1 Establishment of a bargaining council

One or more registered trade unions on the one hand and one or more registered employers’
organisations and/or the State on the other may establish a bargaining council for a specific sector
and area (s 27). This is done by adopting a constitution and obtaining registration from the Registrar
of Labour Relations. In other words, three aspects play a role in the formation of a council: (a) the
parties; (b) the constitution; and (c) registration.
Parties: It is important to note that only registered trade unions and registered employers’
organisation may be parties to or members of a council (s 27). In addition to the founding parties
of the council, other registered unions and employers’ organisations may become parties to the
council by submitting to the council a written application, together with their constitution and
registration certificate. The council has 90 days to decide whether or not to grant the application
and to advise the applicant of its decision. Failure to notify the applicant is tantamount to a refusal
of the application. If admission is refused, written reasons must be supplied within 30 days. The
applicant who is refused admission may approach the Labour Court for an order to be admitted as
a party to the council (s 56).
Constitution: The constitution of the council must provide for equal representation, which means
that one half of the members must be elected by the employer-parties to the council and the other
half by the trade union-parties. The constitution must further provide for the appointment of
alternates to the representatives; representation of small and medium enterprises; the conduct of
meetings, including the quorum and minutes to be kept; the circumstances and manner in which
representatives must vacate their seats and the procedure for replacing them; the manner in which
decisions are to be made; the appointment, duties and removal of office-bearers and officials;
arbitration of any dispute over the interpretation or application of the constitution; the procedure
to be followed when dealing with disputes between the parties to the council; the procedure for
exemption from collective agreements; the admission of additional parties to the council; the
purpose for which funds may be used and the winding-up of the council (s 30). A council may resolve
to amend its constitution or its name (s 57) or apply to have its registered scope varied (s 58).
Registration: The parties who wish to establish a bargaining council apply for registration by
submitting to the Registrar the completed application form, together with a copy of its constitution.
The Registrar will invite objections from the public by way of a notice in the Government Gazette. A
copy of the notice must be submitted to NEDLAC. The application and any objections thereto are
then forwarded to NEDLAC, who has 90 days to consider and demarcate the appropriate sector and
area in respect of which the bargaining council is to be registered. Upon receipt of NEDLAC’s
decision, the Registrar considers the application and registers the council if all legal requirements
have been met. In order to qualify for registration the parties to the council must be sufficiently
representative of the specific sector and area, and there must be no other council registered for
that sector and area. The name of the council is then entered into the register of councils and a
registration certificate is issued. The certificate determines the scope of the council’s jurisdiction.
Upon registration the council becomes a body corporate. If the Registrar is not satisfied with the
250 A Practical Guide to Labour Law

application, he must give the applicant a period of 30 days to meet the requirements for
registration, failing which registration will be refused (s 29).
Cancellation of registration: The Registrar may cancel the registration of a council if he believes that
the council has ceased to perform its functions or has ceased to be representative. Registration
must be cancelled if the Labour Court has ordered the winding-up of the council. The Labour Court
will issue such an order if the council has resolved to wind up its affairs or if it is unable to continue
to function for any reason that cannot be remedied. A significant consequence of the cancellation
of registration is that collective agreements of the council lapse 60 days after the cancellation of
registration, except collective agreements that regulate conditions of employment. The latter
remain in force for one year after the date the council’s registration was cancelled or until the expiry
of the agreement, if earlier (s 60).
A council is obliged to provide the Registrar with the names and addresses of its national office
bearers within 30 days after their election. Certified copies of every collective agreement and details
of the admission and resignation of parties to the council must be provided to the CCMA. An annual
report must be submitted to the Registrar, containing information on the number of employees
employed by small enterprises within the registered scope of the council and the number of
exceptions grated to small enterprises (s 54).
Every council must keep record of its income, expenditure, assets and liabilities and its financial
statements must be audited annually. Certified copies of the financial statements and the auditor’s
report must be sent to the Registrar and must be made available to the parties to the council (s 53).

12.3.2 Functions of bargaining councils (s 28)

The powers and functions of a bargaining council are:
(a) to conclude and enforce collective agreements;
(b) to prevent and resolve labour disputes;
(c) to establish and administer a fund to be used for resolving disputes;
(d) to promote, establish and administer various funds and schemes like training and education
schemes and pension, provident and medical aid funds for the benefit of the parties;
(e) to submit proposals to NEDLAC on policy and legislation that may affect the sector and area;
(f) to determine by collective agreement the matters which may not be an issue in dispute for the
purpose of a strike or a lock-out at the workplace;
(g) to confer on workplace forums additional matters for consultation;
(h) to provide industrial support services within the sector; and
(i) to extend the services and functions of the council to workers in the informal sector and home
workers.
A bargaining council may apply to the Minister to have designated agents appointed to assist with
the monitoring and enforcement of the council’s collective agreements (s 33).

12.3.3 Bargaining councils in the public service (s 35)

The Public Service Bargaining Council was established under the now repealed Public Service Labour
Relations Act of 1993 (PSLRA) to make collective bargaining at central and departmental levels
possible. It consisted of a chamber at central level and departmental chambers for each
department. The main functions of each of these chambers included the negotiation of agreements
on matters of mutual interest and the resolution of disputes. When the LRA of 1995 took effect, the
PSLRA was repealed and in consequence the Public Service Bargaining Council was abolished. The
Public Service Co-ordinating Bargaining Council, created by section 35 of the 1995 LRA, took its
place.
The Education Labour Relations Council (ELRC) was established under the erstwhile Education
Labour Relations Act and was responsible for negotiating agreements and resolving disputes in the
public education sector. The ELRC was retained under the LRA of 1995.
Framework of the Labour Relations Act 251

The National Negotiating Forum was established under the South African Police Service Labour
Relations Regulations for the police services, but it was abolished when the 1995 LRA came into
operation.
In terms of section 35 of the LRA of 1995 a bargaining council for the public service as a whole is
established, known as the Public Service Co-ordinating Bargaining Council (PSCBC). The constitution
of the PSCBC is found in Schedule 1 to the Act. The PSCBC may perform all functions of a bargaining
council in respect of those matters that:
• are regulated by uniform rules, norms and standards that apply across the public service; or
• apply to terms and conditions of service that apply to two or more sectors within the public
service; or
• are assigned to the State as employer in respect of the public service that are not assigned to
the State as employer in any other sector (s 36(2)).
The PSCBC may, in terms of section 37, designate a sector in the public service for the establishment
of a bargaining council. Such a bargaining council must be established in terms of the PSCBC’s
constitution (Schedule 1). Four sectors in the public sector have been identified for which bargaining
councils have been established and they became operative in July 2000. The councils in the public
sector are:
• the PSCBC; • the Public Health and Social Development Sector Bargaining Council (PHSDSBC) with
jurisdiction in the health and social development sectors;
• the ELRC, which was established in terms of the Education Labour Relations Act and which is now
considered to be a council established in terms of the 1995 LRA;
• the Safety and Security Sectoral Bargaining Council (SSSBC), with jurisdiction in safety and
security (SAPS), taking the place of the old Negotiating Forum for SAPS; and
• the General Public Service Sectoral Bargaining Council (GPSSBC) with jurisdiction in the rest of
the public service.
The four sectoral councils have exclusive jurisdiction in respect of matters that are specific to their
sectors and have the authority to conclude collective agreements and resolve labour disputes in
those sectors. Thus, if a nurse employed by the Department of Health, for example, has a dispute
with the Department as employer, he will have to refer the dispute to the PHSDSBC. Similarly, an
educator (teacher) at a public school who is an educator employed by the Department of Basic
Education will have to refer his dispute to the ELRC. Note that the ELRC has jurisdiction over
educators only and then only over those employed by the Department. A dispute raised by an
employee other than an educator employed by the Department of Basic Education, such as an
administrative clerk, cannot be referred to the ELRC; it must be referred to the GPSSBC. Teachers
who have been appointed by the governing body of a school are not employees of the Department
and must refer their disputes to the CCMA. Members of SAPS – that is, policemen and policewomen,
not administrative staff – must refer their disputes to the SSSBC. Employees in government
departments other than those already mentioned must refer their disputes to the GPSSBC, save for
health workers in departments other than the Department of Health who must refer their disputes
to the PHSDSBC.
If there is a jurisdictional dispute between two or more bargaining councils in the public sector,
including the PSCBC, any party to the dispute may refer it to the CCMA for conciliation and
arbitration (s 38).

12.4 Statutory councils (ss 39–48)

12.4.1 Establishment and registration of statutory councils

A statutory council may be established in a sector and area where no bargaining council exists. A
registered trade union or two or more registered trade unions acting together, whose members
constitute at least 30% of the employees in a sector and area, may apply to the Registrar for the
252 A Practical Guide to Labour Law

establishment of a statutory council. If the applicant is representative of the sector and area as
determined by NEDLAC or the Minister and there is no council registered for that sector and area,
the Registrar must, by notice in the Government Gazette, establish the statutory council for that
specific sector and area. Alternatively, a registered employers’ organisation, or two or more
registered employers’ organisations acting jointly, whose members employ at least 30% of the
employees in a sector and area may bring such an application.
The notice that appears in the Government Gazette must invite registered trade unions and
registered employers’ organisations in that sector and area to attend a meeting and must also invite
nominations for representatives on the statutory council. At the meeting, chaired by a CCMA
commissioner, an agreement must be concluded with regard to the parties to the statutory council
and a constitution for the council. If an agreement is concluded and the Minister is satisfied that all
the interested parties have been included and the constitution meets the requirements of the Act,
he may advise the Registrar to register the council. The Registrar registers the statutory council by
entering its name in the register of councils. A certificate of registration, which determines the
registered scope of the council, is issued.
If no agreement can be concluded in joint or separate meetings of the registered trade unions
and employers’ organisations, the Minister must admit parties to the statutory council, taking into
account factors such as the number of representatives, proportional representation and the
interests of small and medium enterprises. The Minister, after consulting with the CCMA, must also
appoint suitable persons as representatives and alternates, taking into account the nominations
received.
A statutory council may change its status by applying to the Registrar to be registered as a
bargaining council.

12.4.2 Powers and functions of statutory councils

The powers and functions of a statutory council are:
(a) to promote dispute resolution functions;
(b) to promote and establish training and education schemes;
(c) to establish and administer pension, provident, medical aid, sick pay, holiday and
unemployment schemes or funds or any similar schemes or funds for the benefit of one or
more of the parties to the statutory council or their members; and
(d) to conclude collective agreements to give effect to the matters mentioned above.
A statutory council may, by concluding a collective agreement, extend its powers and functions to
include any of the functions of a bargaining council.
If a statutory council is not sufficiently representative within its registered scope, the Minister
must treat a collective agreement of the council as a recommendation made by the Employment
Conditions Commission in terms of the Basic Conditions of Employment Act. The Minister may
promulgate the statutory council’s recommendations as a determination under that Act. To defray
the operational costs of the statutory council the Minister may in a determination impose a levy on
all employers and employees in the registered scope of the statutory council.
Any disputes about the interpretation or application of determinations may be referred by any
party to the CCMA. The Commission must attempt to resolve the dispute through conciliation,
failing which any party may request that the dispute be resolved through arbitration.

12.5 Commission for Conciliation, Mediation and Arbitration

(CCMA)

12.5.1 Establishment of the CCMA

The Commission for Conciliation, Mediation and Arbitration (the “Commission” or CCMA) is
established by the Act as an independent juristic person with jurisdiction in all the provinces of the
Framework of the Labour Relations Act 253

Republic. The Commission must maintain a provincial office in each province and as many regional
offices as it considers necessary (ss 112–114).
The CCMA is governed by a governing body, consisting of the Director of the CCMA and ten
members nominated by NEDLAC and appointed by the Minister. One of the ten members is the
chairperson of the governing body; the other nine members represent in equal numbers organised
business, organised labour and the State (s 116).
The Director of the CCMA is appointed by the governing body and manages and directs the
activities of the CCMA (s 118).
The governing body also appoints as many commissioners as it may deem necessary to perform
the functions of the CCMA, typically dispute resolution functions (conciliations and arbitrations) and
training. Commissioners are appointed as full- or part-time commissioners or senior commissioners
and serve for a fixed term (s 117).
The Minister and Parliament allocate monies to fund the CCMA (s122).
The CCMA’s services are free to the public and the CCMA may, in terms of section 123, charge a
fee in only a limited number of instances. This means that parties to a dispute do not, generally,
have to pay any fees to the CCMA for the conciliation or arbitration of their dispute. Fees may be
charged only where the LRA allows such, for example, where a registered trade union or employers’
organisation requests the CCMA to conduct or scrutinise an election or ballot, where advice or
training is provided and where the CCMA conducts arbitrations in terms of section 147.2 The fees
the CCMA may charge are determined by the governing body and published in the Government
Gazette as the CCMA’s table of tariffs.

12.5.2 Functions of the CCMA (s 115)

The functions of the CCMA are:
• to resolve any dispute referred to it through conciliation and, if unsuccessful, through arbitration.
The CCMA must arbitrate the dispute if:
– the Act requires arbitration and any party to the dispute has requested that the dis-pute be
resolved through arbitration; or
– all the parties to a dispute in respect of which the Labour Court has jurisdiction con-sent in
writing to arbitration under the auspices of the CCMA;
• to assist parties in the establishment of workplace forums;
• to advise a party to a dispute about the procedure to follow;
• to assist a party to a dispute to obtain legal advice;

________________________

2 S 147 provides that, where a dispute should have been referred to a bargaining council or private agency but was
erroneously referred to the CCMA, the CCMA can decide to resolve the dispute through conciliation and
arbitration in exceptional circumstances.
• to assist employees who earn below the BCEA threshold (determined by the Minister in terms
of section 6(3) of the BCEA) with the service of documents in conciliation and arbitration
proceedings. Although the CCMA is required to assist such employees, an employee remains
responsible for proper service of documents;
• to accredit councils or private agencies and subsidise such accredited councils or private
agencies;
• to conduct, oversee or scrutinise any election or ballot;
• to conduct and publish research into matters relevant to its functions;
• to compile and publish information and statistics about its activities;
• to offer to resolve a dispute that has not been referred to it through conciliation; and • to publish
guidelines in relation to any matter dealt with in the Act.
254 A Practical Guide to Labour Law

The CCMA is given the power to make rules regulating, inter alia, the practices, procedures and
processes for the resolution of disputes through conciliation and arbitration; the joinder of any
person in any of those proceedings; the office hours of the CCMA; the prescribed forms to be used
by the parties; the basis on which a commissioner may make any order as to costs in any arbitration;
representation in CCMA proceedings (including limitations to representation); the consequences of
not attending proceedings; and the circumstances in which the CCMA may charge a fee.
Any rule so made only takes effect from the date of publication in the Government Gazette, unless
a later date is stipulated. The CCMA has to review its rules every two years.
The dispute resolution functions of the CCMA will be discussed in detail in Chapter 19.

12.6 Labour Court

12.6.1 Composition (ss 151–157)

The Labour Court was established in terms of section 151 as a court of law and equity with
jurisdiction in all the provinces of the Republic. It has the same authority, inherent powers and
standing in relation to matters under its jurisdiction as those which a division of the High Court has
in relation to matters under its jurisdiction. The seat of the Labour Court is determined by the
Minister of Justice, acting on the advice of NEDLAC, but the functions of the Court may be
performed at any place in the Republic. The Labour Court sits in Johannesburg, Port Elizabeth, Cape
Town and Durban.
The Labour Court consists of a Judge President, a Deputy Judge President and a number of
judges. To be appointed as a judge of the Labour Court a person must be either a judge of the High
Court or a legal practitioner and must have the necessary knowledge of and experience and
expertise in Labour Law. Their conditions of appointment are similar to those of judges of the High
Court.
The administrative functions of the Court are performed by the Registrar of the Labour Court,
appointed by the Minister of Justice, together with one or more deputy registrars and as many other
officers as the administration requires.

12.6.2 Jurisdiction (s 157)

The Labour Court has exclusive jurisdiction in respect of all matters that, in terms of this Act or any
other law, are to be determined by the Labour Court. The Labour Court also has concurrent
jurisdiction with the High Court in respect of any alleged or threatened violation of fundamental
rights entrenched in the Bill of Rights. Such concurrent jurisdiction also exists in respect of any
dispute over the constitutionality of any executive or administrative act or conduct by the State in
its capacity as employer.
The Labour Court may refuse to determine any dispute, unless it is satisfied that an attempt has
been made to resolve the dispute through conciliation.
12.6.3 Powers and functions of the Labour Court (s 158)
The powers and functions of the Labour Court are:
(a) to make any appropriate order, including the granting of urgent interim relief, an interdict, an
order directing the performance of any particular act, a declaratory order, an award of
compensation or damages and an order for costs;
(b) to order compliance with any provision of the LRA or any employment law;
(c) to make any arbitration award or settlement agreement an order of the court. The settlement
agreement must be a written agreement in settlement of a dispute that a party has the right
to refer to arbitration or the Labour Court, excluding a dispute with regard to organisational
rights or in essential and maintenance services;
(d) to request the CCMA to conduct an investigation and submit a report to assist the court;
(e) to determine any dispute between a registered trade union or employers’ organisation and
one of its members over any alleged non-compliance with its constitution;
Framework of the Labour Relations Act 255

(f) to condone the late filing of any document or the late referral of any dispute to the court;
(g) subject to section 145 (the review of CCMA awards), to review the performance or purported
performance of any function provided for in the LRA on any grounds that are permissible in
law;
(h) to review any decision taken or act performed by the State in its capacity as employer on such
grounds as are permissible in law;
(i) to decide appeals in terms of section 35 of the Occupational Health and Safety Act of 1993,
where a person appeals against a decision taken by the Chief Inspector with regard to safety;
and
(j) generally to deal with all matters necessary and incidental to the performance of its functions
under the LRA.
The Labour Court may make an order for the payment of costs in accordance with the requirements
of the law and fairness. Every decision, judgment or order of the Labour Court may be served as if
it were a decision, judgment or order of the High Court.
Any party may, with leave from the Labour Court, appeal to the Labour Appeal Court against any
final judgment or order of the Labour Court. The Labour Court may, on its own accord or at the
request of any party to proceedings before it, reserve for the decision of the Labour Appeal Court
any question of law that arises during the proceedings.
If at any stage after a dispute has been referred to the Labour Court it becomes apparent that
the dispute ought to have been referred to arbitration, the Court may stay the proceedings and
refer the dispute to arbitration or, if it considers it expedient to do so, continue with the proceedings
in which case the Court may make an order that an arbitrator would have been entitled to make
(save an order for costs, which is still made in terms of the provisions governing the Labour Court).
Because of the interminably long delays often experienced in the handing down of judgments,
the amendments to section 158 provide for judgments to be handed down as soon as reasonably
possible.

12.6.4 General provisions relating to the Labour Court

Section 159 of the LRA establishes a Rules Board for the Labour Court in order to make rules to
regulate the conduct of proceedings in the Court. The rules must be published in the Government
Gazette. The Rules Board must review the rules once every two years.
Proceedings in the Labour Court are conducted in open court (s 160). A party to any proceedings
may appear in person or be represented by a legal practitioner, by an officebearer or official of that
party’s trade union or employers’ organisation, by a designated agent or official of a bargaining
council, by an official of the Department of Labour or, if the party is a juristic person, by a director
or an employee of that juristic person (s 161).

12.7 Labour Appeal Court

12.7.1 Composition (ss 167–172)

The Labour Appeal Court is established by the Act as a court of law and equity with jurisdiction in
all the provinces of the Republic. It is the final court of appeal in respect of all judgments and orders
made by the Labour Court in matters within the latter court’s jurisdiction. The LAC has the same
powers as the Supreme Court of Appeal in relation to matters under its jurisdiction (ss 167 & 173).
The seat of the Labour Court is also the seat of the Labour Appeal Court. The functions of the
LAC may be performed at any place in the Republic (s 172). The LAC sits in Johannesburg, Port
Elizabeth, Cape Town and Durban.
The LAC consists of a Judge President and Deputy Judge President (who are respectively also the
Judge President and the Deputy Judge President of the Labour Court) and such number of other
256 A Practical Guide to Labour Law

judges from the High Court or the Labour Court as may be required for the effective functioning of
the Labour Appeal Court.
The LAC is constituted before any three of the appointed judges and a majority decision is the
decision of the Court (s 173(4)). A judgment of the LAC is binding on the Labour Court (s 182).

12.7.2 Jurisdiction
The Labour Appeal Court has exclusive jurisdiction to hear and determine all appeals against the
judgments and orders of the Labour Court and to decide on questions of law referred to it by the
Labour Court (s 173).
It is possible that the Labour Appeal Court, on the hearing of an appeal, may receive further
evidence or the Court may remit the case to the Labour Court for a further hearing. Otherwise the
Court may confirm, amend or set aside the judgment or order or give any other appropriate
judgment or order (s 174).
The Judge President may direct that any matter before the LAC be heard by the Court sitting as
a court of first instance, in which case the LAC is entitled to make any order that the Labour Court
would have been able to make (s 175).
The decision of the LAC is final and there is no right of appeal against its final judgments or against
its decision on a question of law or against its judgment or order when sitting as a court of first
instance (s 183). Despite this provision, appeals to the Supreme Court of Appeal were allowed for
many years. This was possible because of the wording of the Constitution. Section 168(3) of the
Constitution of 1996, in its original form, declared the SCA the highest court of appeal in “any
matter” (other than constitutional matters)3 and the decisions of the SCA seem to prevail as
“higher” or more important decisions.4 It was only in August 2013 that section 168(3) of the
Constitution was amended, when it was confirmed that the LAC is the final court of appeal in labour
matters. Accordingly, appeals to the SCA are no longer permissible or entertained.

________________________

3 See NUMSA & Others v Fry's Metals (Pty) Ltd [2005] JOL 14141 (SCA).
4 Rustenburg Platinum Mines Ltd (Rustenburg Section) v CCMA & Others [2006] 11 BLLR 1021 (SCA).
12.8 Workplace forums

Workplace forums are the innovative creations of the LRA to ensure worker participation in the
workplace. The rationale behind the idea of a workplace forum is an attempt to avoid adversarial
industrial relations by way of consultation and joint decision-making. Consultation and joint
decision-making become possible through the establishment of a workplace forum.
A workplace forum may be established in a workplace with 100 or more employees. All
employees, and not only union members, enjoy representation on the workplace forum. A
workplace forum is not a negotiating forum where an employer and his employees bargain over
wages and conditions of employment, but is a platform where the employer consults with all
employees on broader issues within the workplace, such as policy issues on import and export,
restructuring of the workplace, job grading, a retrenchment policy, plant closures, mergers and
education and training (ss 84 and 85). In a few limited instances the LRA requires that the employer
and the workplace forum take joint decisions, such as on a disciplinary code and procedures and an
affirmative action policy.

Questions

Question 1
Framework of the Labour Relations Act 257

Employees in the building industry in Bloemfontein established a trade union and thereafter applied
for membership of a bargaining council.
1.1 Discuss the prerequisites that need to be complied with when applying for registration of the
trade union. (6)
1.2 Discuss the procedure for registration of the trade union. (6)
1.3 Discuss the requirements for this union to become party to the bargaining council. (8)

Question 2
Employers’ organisation A and trade unions B and C in the furniture industry in the Eastern Cape
agree to establish a bargaining council and subsequently draw up a constitution. List the issues that
must be included in the constitution and then discuss the procedure to be followed to register the
bargaining council. (30)

Question 3
Explain how a bargaining council can enforce compliance with its collective agreements. (15) Hint:
Sections 33 & 33A of the LRA.

Question 4
Name the bargaining councils established in the public sector and describe the jurisdiction
of each council. (10)

Question 5
Discuss the jurisdiction and functions of the CCMA and the Labour Court. (30)
Question 6
Identify the forum that has jurisdiction in each of the following disputes and then describe the
dispute resolution procedure that must be followed for each dispute to be resolved:
6.1 a dispute between the PSCBC and the ELRC over which of them has jurisdiction to conclude a
collective agreement relating to disciplinary and grievance procedures for the education
sector; (5)
6.2 a dispute in the Department of Sea Fisheries over an increase in wages/salaries and
improvement of other conditions of employment; (5)
6.3 a wage dispute in a service which has been designated an essential service, a state hospital;
(5)
6.4 a dispute in the Department of Justice and Constitutional Development over the dismissal of an
employee for incapacity; (5)
6.5 a dispute in SAPS over the dismissals of employees for misconduct; (5)
6.6 a dispute over the dismissal of a number of educators at public schools for operational reasons;
(5)
6.7 a dispute concerning the interpretation or application of a collective agreement relating to sick
leave entitlements that was concluded in the PSCBC. (5)
 13
FREEDOM OF ASSOCIATON

13.1 Introduction

Freedom of association is a fundamental right which is guaranteed in the Bill of Rights. The right to
freedom of association – the right to choose who one will associate with – also applies to the work
environment. Every employee and every employer has the right to choose whether or not to
associate with a group of employees (a trade union) or a group of employers (an employers’
organisation) respectively.
In NUMSA & Others v Bader Bop (Pty) Ltd & Another [2003] 2 BLLR 103 (CC) the Constitutional
Court referred to the principles laid down by the ILO as “an important resource in developing the
labour rights contained in our Constitution” and observed as follows:
An important element of freedom of association is the right of employees to choose which unions they wish to
join. A majoritarian union system is not incompatible with freedom of association as long as minority unions are
allowed to exist. The ILO has held that the right to strike is essential to collective bargaining, but recognises that
certain limitations on that right do not necessarily constitute infringements of freedom of association. Freedom
of association is ordinarily interpreted to afford unions the right to recruit members and to represent them in
individual workplace grievances and to strike to enforce bargaining demands. The constitutional right of freedom
of association is impaired if workers are not permitted to have their own union represent them in workplace
disciplinary and grievance matters, but must be represented by a rival union which they have chosen not to join.
To prohibit a right to strike over a demand that is itself related to a fundamental right constitutes a limitation on
the constitutional right to strike. The jurisprudence of the enforcement committees of the ILO suggests that an
interpretation of the LRA which permits minority unions to strike over the recognition of shop stewards would
be more in accordance with the principle of freedom of association and other constitutional rights than the
contrary interpretation.

13.2 Employee rights

Every employee has the right to take part in the formation of a trade union (or a federation of trade
unions) and to become a member of a trade union, subject to its constitution (s 4(1)). As a member
of a trade union, an employee has the right to participate in its lawful activities, the election or the
appointment of its office-bearers, officials and trade union representatives and to stand for
elections or be eligible for appointment as a union representative (s 4(2)). The same rights accrue
to a member of a trade union who is a member of a federation of trade unions (s 4(3)).
260 A Practical Guide to Labour Law

255
No • has the right to participate in lawful activities of the person
may Employee/ member trade union
of trade • has the right to participate in elections of the trade
union/member of union
federation
• has the right to be elected or appointed as office-
bearer, official or trade union representative of the
union or federation

discriminate against an employee for exercising any right conferred by the LRA (s 5(1)). In Theron &
others v FAWU & others [1998] 5 BLLR 528 (LC) the Labour Court confirmed that “the protection
against infringement of that right operates against anyone who might infringe it”, not only against
employers. Hence, employees enjoy protection of their freedom of association also against their
own trade union.
The protection against discrimination includes, but is not limited to, protection against prejudice
for exercising one’s rights. This protection is extended to work-seekers. Therefore, no person may
require of an employee or of a person seeking employment not to be a member or to become a
member of a trade union or a workplace forum. An employee or work-seeker may not be prejudiced
because of his membership of or participation in the formation of a trade union or workplace forum
or because of his participation in the lawful activities of the trade union or workplace forum (s 5(2)).
No person may advantage or promise a benefit or advantage to an employee or work-seeker in
exchange for that employee or work-seeker’s not exercising any of these rights (s 5(3)).
It occurs, unfortunately quite frequently, that union officials or office bearers are victimised
because of their union membership and/or their activities. In Ceramic Industries Ltd t/a Betta
Sanitaryware v NCBAWU (2) [1997] 18 ILJ 671 (LAC) the Labour Appeal Court confirmed that such
victimisation constitutes an infringement of the protection of freedom of association and is a matter
that has to be dealt with by the Labour Court (see below). Also refer to Kroukam v SA Airlink (Pty)
Ltd [2005] 12 BLLR 1172 (LAC).
Any provision in a contract that directly or indirectly contradicts or limits any of the employee’s
rights or the protection thereof is invalid (unless permitted by the LRA) (s (5(4)).

13.3 Employer rights

Employers are granted an equal right to participate in the formation of an employers’ organisation
(or a federation of employers’ organisations) and to join an employers’ organisation (s 6(1)). An
employer also has the right to participate in the lawful activities of the employers’ organisation and
to take part in the election of office-bearers or officials. If the employer is a natural person he may
stand for election or be eligible for appointment as an office-bearer or official and if the employer
is a juristic person a representative may be appointed to stand for election or be eligible for
appointment as an office-bearer or official (s 6(2)).
Employers are granted the same protection against discrimination as employees. Accordingly, no
person may discriminate against or prejudice an employer for exercising rights conferred by the LRA
or require an employer not to be a member of an employers’ organisation or give up such
membership (s 7).

Freedom of association 257

 Employer/member of
employers’ • has the right to participate in lawful activities of the
organisations/ employers’ organisation
member of feder- • has the right to participate in elections
ation of employers’ • has the right to be elected or appointed office-
organisation bearer, official or representative

13.4 Trade union and employers’ organisation rights

Every trade union and every employers’ organisation has the right to determine its own constitution
and rules, to hold elections for its office-bearers, officials and representatives, to plan and organise
its administration and lawful activities, to participate in forming federations, to join any federation
and to affiliate with any international organisation (s 8).

13.5 Freedom of association disputes

Any dispute about the interpretation or application of the rights in Chapter 2 must be referred to a
bargaining council or, if no council has jurisdiction, to the CCMA for conciliation. The party who
refers the dispute must satisfy the council or the CCMA that a copy of the referral has been served
on all the other parties to the dispute. If conciliation does not resolve the dispute, any party can
refer it to the Labour Court for adjudication (s 9).
The party who alleges an infringement of a right or protection bears the onus to prove it. The
other party can then prove the contrary (s 10).
Order
↑
Labour Court
↑
No resolution
↑
Conciliation
↑
Council/CCMA
↑
Dispute

Questions

Question 1
262 A Practical Guide to Labour Law

Stefano is a newly appointed employee. In terms of his contract of employment he is not allowed
to join any trade union. He is not familiar with the rights conferred on employees by the LRA and
accepts the condition. When he is given a written warning for late coming he seeks advice from the
union that is active in the workplace. The union encourages him to become a member. When the
manager gets wind of what is going on he threatens to dismiss Stefano.
Discuss Stefano’s legal position. (8)

Question 2
A small family business is hit by a protected strike. The business deals in perishable foods and it is
necessary that the stock is packed and sold immediately. The manager promises a bonus of R500
to those employees who are willing to work and not participate in the strike. Four employees return
to work and they each receive the promised R500. When the strike finally comes to an end the
other employees demand R500 each and when the employer refuses to pay them, they ask their
union to intervene.
2.1 Discuss the validity or otherwise of the manager’s promise of a bonus. (5)
2.2 Explain the dispute resolution path that the striking employees (with the assistance of their
union) can take to have the dispute resolved. (4)

Question 3
Lucky is a supervisor in the warehouse of the Wine and Beer Company with 18 years’ service. For
the past six years he has been the shop steward of the Food and Wine Union. With the downturn
in the economy the company is suffering financially and decides to retrench some employees.
Because of Lucky’s long service and his good service record the company does not want to lose him
through retrenchment and offers him a job as a manager on condition that he relinquish his union
affiliation. Lucky refuses and is dismissed.
Discuss Lucky’s legal position. (7)
Hint: See ss 5, 185 & 187 of the LRA; FAWU v The Cold Chain [2007] 7 BLLR 638 (LC).

Question 4
Jerome was employed by Alert Security (Pty) Ltd as a security guard. He was deployed to render
security services at the premises of one of Alert’s clients, Jeshra Jewellers. One of the stipulations
in Jerome’s contract of employment was that his contract would terminate automatically upon the
termination of the contract between Alert and its client or when the client no longer required the
employee’s services “for whatever reason”. When Jeshra Jewellers terminated its contract with
Alert, Jerome was informed that his employment contract came to an end, that he no longer had
work, because of the stipulation in the contract. Jerome believed he had been treated unfairly and
referred an unfair dismissal dispute to the CCMA. Alert disputed Jerome’s claim of dismissal as his
contract provided for automatic termination.
Does the termination of Jerome’s contract constitute a dismissal or is Alert correct in its
contention that the contract terminated because of the provisions in the contract? If you decide
that Jerome was dismissed, determine the fairness or otherwise of the dismissal. (15)
Hint: See SA Post Office Ltd v Mampeule [2010] 10 BLLR 1052 (LAC); Mahlamu v CCMA &
Others [2011] 4 BLLR 381 (LC); Pecton Outsourcing Solutions CC v Pillemer [2016] 2 BLLR 186 (LC).

Question 5
The majority of the bus drivers at Superior Bus Services (Pty) Ltd belong to the Transport Workers
Union. Other employees in the company belong to two other unions. Because of the extensive
diversity in the workplace the company introduces a policy that prohibits the wearing of clothing
that depicts association with any trade union or a political party during working hours. The
Transport Workers Union objects to this policy, claiming that it infringes the rights of the employees.
Is there any merit in the union’s claim? (6)
Hint: NUMSA & Others v Transnet & Others [2019] 2 BLLR 172 (LC).
 14
COLLECTIVE BARGAINING

14.1 Introduction

Collective bargaining under the Labour Relations Act of 1956 was intensely adversarial and the old
Industrial Court was often called upon to adjudicate collective bargaining issues and bargaining
conduct under its unfair labour practice jurisdiction. Industrial action escalated to unacceptable
proportions.
The legislature made a concerted effort, when enacting the Labour Relations Act of 1995 (LRA),
to counter the adversarial nature of collective bargaining by placing the emphasis on co-operation
and constructive engagement between labour and management.
To this end, all employers and employees are guaranteed the freedom of association as a starting
point to form trade unions and employers’ organisations in order to engage and participate in
collective bargaining. Representative trade unions are granted organisational rights by law; they do
not have to litigate to obtain such rights or recognition anymore, as they had to do under the 1956
LRA. Collective bargaining is encouraged rather than compelled, unlike under the old LRA when the
refusal to bargain was considered an unfair labour practice. The requirements for a “legal” or
“protected” strike have been simplified in an attempt to curb the number of illegal strikes of the
past. And, employees who participate in a strike that meets the requirements are protected against
dismissal.
Collective bargaining is possible at sector or plant level. At sector level bargaining councils have
taken the place of the old industrial councils and statutory councils can be formed in sectors or
areas where no bargaining council exists.
A new structure, the workplace forum, in particular is aimed at democratising enterpriselevel
labour-management relations. While the workplace forum is not a typical negotiating forum, its
purpose is to engage management and labour in consultation and joint decisionmaking, thereby
allowing for less adversarial confrontation and curbing managerial prerogative.

14.2 Recognition and the duty to bargain

The LRA of 1995 makes no provision for a legally enforceable duty to bargain, but affords certain
rights to unions, such as organisational rights, the right to establish a statutory council, the right to
enjoy the benefits of a workplace forum and agency shop and closed shop arrangements.
Although employers are obliged to grant these rights to representative unions, they are not
compelled to engage in bargaining with them as there is no duty to negotiate.
But, refusal to bargain can result in power play in order to convince the other party to negotiate.
If an employer refuses to negotiate with a union, the union is able to strike without fear of dismissal
of its members, provided the strike takes place in accordance with the requirements of Chapter 4
of the LRA.
264 A Practical Guide to Labour Law

259
A dispute concerning a refusal to bargaining, as defined in section 64(2), must be referred to the
CCMA or a bargaining council for conciliation before giving notice of a strike. In such a case it is
incumbent on the CCMA or council to issue an advisory award. The role of the CCMA or council in
these circumstances is to promote collective bargaining by facilitating an agreement between the
disputing parties. The CCMA or council can, however, not dictate to the parties what to do, so
voluntarism is largely kept intact.
Although an advisory award is not binding, it seems likely that it will not be ignored if it imposes
a duty to negotiate. The potential importance of an advisory award becomes clear when one
considers that a refusal to bargain includes (s 64(2)):
• a refusal to recognise a union as a collective bargaining agent;
• a refusal to establish a bargaining council;
• the withdrawal of recognition of a collective bargaining agent;
• the resignation of a party from a bargaining council; and
• disputes concerning appropriate bargaining units, levels and topics.
Recognition of a union is the foundation for collective bargaining. Under the LRA of 1956 the
Industrial Court, through its unfair labour practice jurisdiction, obliged employers to deal with and
accord rights to unions. The decisions of the Industrial Court were contradictory: some required an
employer to bargain with a majority union only, some compelled the employer to negotiate with
any and all unions in the organisation. The majority of decisions favoured a duty to bargain once a
union was sufficiently representative.
The Labour Relations Act of 1995 removes this uncertainty. An employer is now obliged to accord
rights of recognition only to registered unions that are “representative”. “Representativeness” has
the following connotations:
• sufficient representation. Only a registered union which is sufficiently representative of
employees at a particular workplace may demand organisational rights, such as access to the
workplace, stop-order facilities and leave during working hours for its office-bearers. “Sufficient
representation” is not defined, but the spirit of the Act indicates that a union with a significant
membership base, albeit short of a majority, will be considered a sufficiently representative
union. The Industrial Court, under the old Act, sought a membership of approximately 30% to
constitute sufficient representation. In terms of the 1995 Act the concept “sufficient
representation” has been considered mostly in the context of organisational rights and from
these judgments it appears that a membership in the region of 30% will in the majority of cases
be considered “sufficient”. Two or more unions may act jointly in order to establish sufficient
representation;
• majority membership. “Majority” indicates a clear majority of union members in the workplace,
i.e. 50% plus one employee have joined the union. Only registered unions with a majority
support in the workplace will be able to demand statutory rights relating to agency shop, closed
shop and workplace forum arrangements. Furthermore, rights to disclosure of information, to
appoint workplace representatives (shop stewards) and to paid leave for representatives are
enjoyed only by majority unions. Two or more unions may act jointly to establish majority
support in order to be accorded these rights;
• 30% membership. A registered union wishing to establish a statutory council must have a
membership of at least 30% in the relevant industry. Two or more unions may act jointly for this
purpose. It is only in the context of statutory councils that the LRA specifically refers to 30%.

14.3 Organisational rights

Organisational rights are set out in Part A of Chapter 3 of the LRA. They are union rights, not
employee rights, and are bestowed on registered unions only. The organisational rights
266 A Practical Guide to Labour Law

are found in sections 12 to 16 of the Act and are the right of access to the workplace, the right to
the deductions of union subscriptions from employees’ wages, the right to paid leave for office
bearers, the right to elect union representatives (shop stewards) in the workplace, the right to paid
time off for union representatives and the right to disclosure of information.
Registered majority unions are accorded all of the organisational rights; sufficiently
representative unions enjoy three of the rights: access, deduction of union subscriptions and paid
leave for office bearers. In terms of section 21(8A), a sufficiently representative union can obtain
more than the three “basic” rights. If the sufficiently representative union is the most representative
union in the workplace, the CCMA can, in an arbitration, grant the rights of electing shop stewards
and paid time off for shop stewards provided the union already enjoys the rights of access,
deductions and leave for office bearers and that no other union in the workplace has been granted
these rights. Or, a sufficiently representative union that already enjoys all the organisational rights
except the right to disclosure of information can be granted the right to disclosure if no other union
in the workplace has been afforded that right. These “additional” rights lapse when the union is no
longer the most representative union in the workplace (s 21(8B)).
An employer and a registered majority union or parties to a bargaining council can conclude a
collective agreement in order to establish the threshold of representativeness required to obtain
the rights of access, deductions and leave for office bearers (s 18). For example, ABC union and an
employer have concluded a collective agreement in terms of which all unions in that workplace
must meet the threshold of 35% membership before it will enjoy the three “basic” rights. If XYZ
union also recruits employees as members in that workplace it will not enjoy these rights until it
reaches a membership of 35%. However, in terms of section 21(8C) it is possible for a union that
does not meet the threshold to be granted the “basic” rights. In an arbitration the CCMA can grant
these rights to the union if the union represents a significant interest or has a substantial number
of members in the workplace and if all the parties to the threshold collective agreement
participated in the arbitration proceedings. Thus, in the example XYZ union may be granted these
rights even if it has less than a 35% membership if it can prove that it presents a significant interest
in the workplace – and if both the employer and ABC union were involved in the arbitration.
Registered trade unions that are parties to a bargaining council automatically have the rights of
access and deduction of union subscriptions in respect of all workplaces within the registered scope
of the council, regardless of their representativeness in any particular workplace (s 19).
Nothing prohibits an employer and a union that is not sufficiently representative or that does
not meet the threshold, in other words a union that does not get organisational rights in terms of
the LRA, to bargain and conclude a collective agreement in terms of which the union will be granted
some of the organisational rights (s 20). See POPCRU v SACOSWU [2018] ZACC 24 (CC); AMCU v
CCMA & Others [2018] 7 BLLR 656 (LC); NUMSA v Bader Bop (Pty) Ltd [2003] 2 BLLR 103 (CC).
The key to organisational rights turns on the status of a trade union in the workplace. It is not a
bargaining unit only (for example hourly paid workers), but the total number of employees in the
workplace that must be considered to determine the union’s representativeness.
A “workplace” is defined in section 213 as follows:
(a) in relation to the public service –
(i) for the purposes of collective bargaining and dispute resolution, the registered scope
of the Public Service Co-ordinating Bargaining Council or a bargaining council in a sector in the
public service, as the case may be; or
(ii) for any other purpose, a national department, provincial administration, provincial
department or organisational component contemplated in section 7(2) of the Public
Service Act, 1994 (promulgated by Proclamation No. 103 of 1994), or any other part of
the public service that the Minister for Public Service and Administration, after consultation
with the Public Service Co-ordinating Bargaining Council, demarcates as a workplace;
(b) . . . [repealed]
Collective bargaining 267

(c) in all other instances means the place or places where the employees of an employer work. If an
employer carries on or conducts two or more operations that are independent of one another by
reason of their size, function or organisation, the place or places where the employees work in
connection with each independent operation, constitutes the workplace for that operation.
A “workplace” in the public sector seems clear and presents little difficulty. However, in the private
sector it may be more problematic to determine the exact “workplace”. The following
considerations may assist in determining the workplace:
Firstly, a workplace means “the place or places where the employees of an employer work”. The
criterion is the employment relationship between employer and employees. Consequently, lifting
the corporate veil is limited in the case of wholly owned subsidiary companies – each would legally
be an employer of its own employees, although certain decisions may be taken by the holding
company. There seems to be limited scope then to find that a holding company and its subsidiary
constitute a single workplace even if they function as an entity. If, however, the employer’s actions
can be considered improper conduct of a serious nature, such as dividing an enterprise into
different companies in order to frustrate the intention of the LRA, piercing the corporate veil would
be justified.
Secondly, the definition refers to a situation where an employer conducts two or more
operations. The “workplace” comprises all the different places of work, unless one or more of them
are independent, as per the definition. It is only where an operation is independent that it can be
considered a separate workplace.
Schedule 2 of the Act, dealing with workplace forums, suggests that parties are free to decide
whether different branches of an organisation should be regarded as one workplace or not, for
example, a bank with many branches may be one workplace, but instead of establishing just one
workplace forum, the constitution of the forum may allow for a coordinating workplace forum at
head office and subsidiary forums at some or all of the branches. The question is whether the same
approach can or should be adopted when determining the “workplace” in order to decide a union’s
representativeness and its rights.
In the early days of the 1995 LRA the concepts “workplace” and “union representativeness”
received much attention. In NUMSA v Feltex Foam [1997] 6 BLLR 798 (CCMA) Feltex was one of six
operations described as falling within the “Jacobs bargaining unit”, a division of Island View
Industrials and with Romatex Industrials as the holding company. Feltex was a separate legal entity
and employer and was itself made up of two operations, Feltex Foam Mouldings and Feltex Foam
Converters. SACTWU was recognised as the sole bargaining agent of all workers in the Jacobs
bargaining unit, but NUMSA demanded organisational rights in respect of the latter workplace.
Feltex Foam Mouldings fell under the jurisdiction of the Motor Industries Bargaining Council and
was subject to its main agreement. The CCMA decided that Feltex Foam Mouldings was “physically
distinct” and as such was considered a separate workplace. NUMSA was consequently accorded
organisational rights. SACTWU’s right to exclusive recognition, founded in contract, was overridden
by NUMSA’s statutory rights.
In SACCAWU v The Hub [1998] 12 BALR 1590 (CCMA), however, the company’s head office and
12 retail outlets were collectively defined as a “workplace”. Similarly, in OCGAWU v Total SA (Pty)
Ltd [1999] 6 BALR 678 (CCMA) it was found that individual distribution depots did not constitute
separate workplaces since they did not conduct independent operations. The same approach was
followed in OCGAWU v Woolworths (Pty) Ltd [1999] 7 BALR 813 (CCMA) where a retail company
with 104 outlets was considered one workplace.
In Structural Applications (Pty) Ltd v TAWUSA [2003] 10 BALR 1203 (CCMA) the company did
steel work and industrial painting on a contract basis, working on different sites. The CCMA held
that, because of the nature of the company’s contract work, each site on which it operated could
not be regarded as a separate workplace. Also refer to CEPPWAWU v EH Waltons Packaging [2000]
12 BALR 1375 (CCMA); CAMMBAWU v Goldings Orthopaedic Centre [2006] 2 BALR 170 (CCMA);
WESUSA v Isidingo Security Services [2007] 7 BALR 678 (CCMA).
268 A Practical Guide to Labour Law

Once the “workplace” has been established, the union’s representativeness in that workplace
must be determined to find out whether the union is entitled to any or all of the organisational
rights.
In SACCAWU v Metlife (Pty) Ltd (1997) 18 ILJ (CCMA) some 800 employees joined the union,
which represented 13,5% of the total workforce. The company, with many places of operation
throughout the country, had approximately 6 000 indoor and field staff in its employ. Both the
employer and the union adopted the view that the workplace comprised all the operations of the
company. The CCMA decided that the union was not sufficiently representative to win
organisational rights.
In SACTWU v WM Eachus and Co (CCMA 1997) the union had below 20% membership and was,
therefore, not considered sufficiently representative. No organisational rights were granted to the
union.
In SACTWU v Sheraton Textiles (Pty) Ltd [1997] 5 BLLR 662 (CCMA) the union represented a
fraction under 30% of the workforce. The employer argued that 40% to 45% should be the target
for representativeness. The CCMA commissioner held that “the arbitrator is required to have regard
to the interests represented by the union and not exclusively the numerical representativeness of
employees”. The union represented some 150 workers which, according to the commissioner, was
by no means an insignificant number. Having had regard to the history of the union’s struggle to
obtain some rights and the interests served by it, the commissioner decided that the union was
sufficiently representative and it was granted limited organisational rights.
In UPUSA v Komming Knitting [1997] 4 BLLR 508 (CCMA) a union with 22% membership was
granted the rights of access and stop-order facilities.
In CWIU v Millner’s Dental Suppliers (Pty) Ltd (1997) 18 ILJ (CCMA) the employer submitted
that its total workforce numbered 70 employees, which included four directors, three wives of the
directors and eight managers. The union had recruited 32 members and, according to the company,
thus fell short of a majority. The directors’ wives handled confidential correspondence, but did not
report for work at the premises and did not have fixed working hours. Commissioner Bulbring
decided that the rights sought by the union were “workers’ rights” and if these were secured by
directors it would create a conflict of interest vis-à-vis the directors’ fiduciary duties to the
company. Furthermore, it was hard to imagine a director representing a fellow employee at a
disciplinary hearing. Section 21(8)(a)(i) requires a commissioner to consider the organisational
history of the workplace and prevent a proliferation of trade unions in the workplace. As the history
indicated that directors and managers had not been members of any union, an exclusion of them
would not bring about a proliferation of unions, as per the commissioner. It was further held that
the directors’ wives were independent contractors and hence should not feature in the calculations.
The result was that, according to the commissioner, there were a total of 63 employees at the
company, 32 of who belonged to the union. A very narrow majority!
In Structural Applications (Pty) Ltd v TAWUSA (above) the union had about 23% membership of
the total workforce. This was not considered sufficient and the union was denied organisational
rights.
These early decisions seem to have brought sufficient certainty so that very few cases were
launched in the CCMA for determination in the years that followed.1 When the 2014
________________________

1 Inter alia Solidarity v Mercedes Benz of SA (Pty) Ltd [2011] 11 BALR 1216 (CCMA); AMCU v Hitricon HEMC (Pty)
Ltd [2014] 12 BALR 1223 (CCMA); SA Postal Workers Union obo Dreyer and Others v South African Post Office
Ltd & Another [2013] 2 BALR 216 (CCMA).
amendments introduced rights to unions with a “significant interest” or a “substantial number” of
members, speculation was rife that a surge of new dispute would be referred to the CCMA,
especially in light of the fact that, in terms of section 21(7)(b)(v), labour broker employees, fixed-
term and part-time employees and other employees in non-standard employment now have to be
Collective bargaining 269

included in the calculations of the total workforce and a union’s representativeness. This did not
happen and relatively few cases were heard by the CCMA.

Sufficiently representative unions:

• access to the workplace;

• deduction of union subscriptions from members’ wages;

• leave during working hours for office-bearers.
Majority unions:
In addition to the above-mentioned rights, a majority union also has the right to:

• disclosure of information;
ORGANISATIONAL
RIGHTS • appointment of union representatives in the workplace;
• paid leave for union representatives.
Sufficiently representative unions may be granted the majority rights
in a CCMA arbitration if no other union in the workplace enjoys those
rights.
A union that does not meet the threshold in terms of a collective
agreement may be granted the first three rights in a CCMA
arbitration if the union represents a significant interest or a
substantial number of employees in the workplace.
Registered unions that are parties to a council automatically have the
right of access and the right to deductions of union subscriptions
from members’ wages, regardless of their representativeness in the
workplace.

14.3.1 Right of access to workplace (s 12)

Any office-bearer or official of a sufficiently representative or majority union is entitled to enter the
employer’s premises in order to recruit members, communicate with members or otherwise serve
their interests. The union is also entitled to hold meetings with employees outside their working
hours at the employer’s premises. The members are entitled to vote at the employer’s premises in
any election or ballot contemplated by the union’s constitution. Two or more unions may act jointly
in order to establish sufficient or majority representation to obtain the right of access.
These rights are subject to any conditions as to time and place that are reasonable and necessary
to safeguard life or property or to prevent the undue disruption of work.
The right of access is restricted in the domestic sector in that an office-bearer or official of the
union may not enter the home of the employer without the employer’s consent
(s 17).

14.3.2 Deduction of trade union subscriptions (s 13)

Any employee who is a member of a sufficiently representative or majority trade union (or two or
more unions acting jointly) may authorise the employer in writing to deduct from his wages
subscriptions or levies payable to the union. The employer must make the deduction as soon as
possible after authorisation was given and thereafter monthly. The deductions must be remitted to
the union by no later than the 15th day of the month following the date of each deduction. The
remittance must be accompanied by a list of names of members from whose wages deductions
270 A Practical Guide to Labour Law

were made, details of the amounts deducted and a copy of every notice revoking the authorisation
to deduct.
An employee may revoke his authorisation by giving the employer and the union one month’s
written notice or, if the employee works in the public service, three months’ written notice. The
employer must make the deductions until this notice period has expired.

14.3.3 Leave for trade union activities (s 15)

An employee who is an office-bearer of a sufficiently representative or majority union (or two or
more unions acting jointly) or of a federation of trade unions to which the trade union is affiliated,
is entitled to take reasonable leave during working hours for the purpose of performing the
functions of his office. The union and the employer must negotiate and agree on the number of
days’ paid leave the office-bearer/employee is entitled to and the conditions attached to that leave.
Where the number of days’ leave and the conditions attached to it were the subject matter of a
CCMA arbitration the arbitration award remains in force for 12 months from the date of the award.

14.3.4 Trade union representatives (s 14)

The lowest level of bargaining is at shop floor level where trade union representatives or shop
stewards look after the interest of the union members. Majority unions have, in terms of the LRA,
the right to elect shop stewards. Other, smaller unions will have to negotiate with the employer to
obtain such a right. Two or more registered unions may act jointly in order to constitute a majority.
In any workplace in which at least ten union members are employed, union representatives may
be elected by the members from among themselves. The ratios of union representatives to the
number of employees who are union members are the following:
• if ten members of the union are employed in the workplace, one trade union representative;
• if more than ten members of the union are employed in the workplace, two trade union
representatives;
• if more than 50 members are employed, two union representatives for the first 50 members,
plus one additional representative for every additional 50 members up to a maximum of seven
representatives;
• if more than 300 members are employed, seven union representatives for the first 300 members,
plus one additional representative for every 100 additional members up to a maximum of ten
representatives;
• if more than 600 members are employed in the workplace, ten representatives for the first 600
members, plus one additional representative for every 200 additional members up to a
maximum of twelve representatives; and
• if more than 1 000 members are employed in the workplace, twelve representatives for the first
1 000 members, plus one additional representative for every 500 additional members up to a
maximum of twenty representatives.
A union’s constitution governs the nomination, election, terms of office and removal from office of
the union representatives.
A shop steward has the right to perform the following functions:
(a) at the request of an employee in the workplace, to assist and represent that employee in
grievance and disciplinary proceedings;
(b) to monitor the employer’s compliance with collective agreements and employment laws;
(c) to report any alleged breaches of these agreements or laws to the employer, the union and
any responsible authority or agency; and
(d) to perform any other function agreed to between the union and the employer.
Collective bargaining 271

A shop steward is, subject to reasonable conditions, entitled to reasonable paid leave during
working hours to perform his functions and to receive training.
An employer and a majority union or the parties to a bargaining council may conclude a collective
agreement to establish a threshold of representativeness in respect of the rights to access,
deduction of union subscriptions and leave. Such an agreement is not binding, unless the thresholds
of representativeness in the collective agreement are applied equally to any registered trade union
seeking any of the organisational rights referred to (s 18).

14.3.5 Disclosure of information (s 16)

A registered majority union has, or two or more registered unions acting jointly have, the right to
disclosure of relevant information. A union does not enjoy this right in the domestic sector.
An employer must disclose to union representatives all relevant information that will allow them
to perform their functions effectively. Such disclosure is also required when an employer is
consulting or bargaining with the union so that effective participation by the union is possible. If the
employer believes that information is confidential and cannot be revealed, the union or union
representative needs to be advised thereof.
An employer is not required to disclose information that:
• is legally privileged;
• the employer cannot disclose without contravening a prohibition imposed by any law or order
of court;
• is confidential and, if disclosed, may cause substantial harm to an employee or the employer; or
• is private personal information relating to an employee, unless that employee consents to the
disclosure of the information.
A dispute about what information is required to be disclosed may be referred in writing to the CCMA
(not a bargaining council) and a copy of the referral must be served on the employer. The CCMA
must attempt to resolve the dispute through conciliation and if conciliation is unsuccessful, through
arbitration.
The CCMA Commissioner in an arbitration must decide whether the required information is
relevant. If information is not relevant, it need not be disclosed and disclosure will not be ordered.
If confidential or personal information of an employee is relevant, the possible harm that disclosure
can cause the employer or employee must be weighed against the limitations that non-disclosure
may place on the union representatives to consult or negotiate effectively. The commissioner may
order disclosure on terms designed to limit the harm that is likely to be caused to the employee or
employer.

14.3.6 Exercise of organisational rights (s 21)

A sufficiently representative or majority union that wishes to exercise one or more of the
organisational rights must notify the employer of its intention to do so in writing. A certified copy
of the trade union’s registration certificate must accompany the notice.
The notice to the employer must include the following information:
• the workplace in respect of which the trade union seeks to exercise the rights;
• the representativeness of the trade union in that workplace;
• the facts the union relies upon to demonstrate that it is sufficiently representative or the majority
union;
• the rights that the union seeks to exercise; and
• the manner in which the union seeks to exercise those rights.
272 A Practical Guide to Labour Law

Within 30 days of receiving the notice, the employer and the union must meet in order to negotiate
the manner in which the union will exercise the rights it is entitled to. This means that, while the
union for example obtains the right of access in terms of section 12, the details of that access need
to be negotiated, such as times and places the union officials can have meetings with its members.
Or, if the union has the right to elect shop stewards, the details of their leave for union activities
need to be negotiated. If the union and employer reach agreement, they will conclude a collective
agreement regulating organisational rights in the workplace.
If the employer and the union do not reach agreement, either the union or the employer may
refer a dispute to the CCMA for conciliation and arbitration.
A union that exercises organisational rights in respect of labour broker (TES) employees may do
so either in the labour broker’s workplace or in the workplace of the labour broker’s client.
The procedure for exercising organisational rights may be illustrated as follows:2

14.3.7 Resolution of disputes about organisational rights (s 22)

The CCMA has exclusive jurisdiction over disputes about organisational rights and determines such
disputes through conciliation and arbitration. A bargaining council lacks jurisdiction to entertain
organisational rights disputes – NAGEWU v Mr Clean [1998] 7 BALR 844 (CCMA); SACTWU v Bibart
Projects [2000] 1 BALR 65 (CCMA); sections 16, 21, 22 and 127 and the footnote to section 51 of
the LRA.
________________________

2 Diagram 2 is contained in Sch 4 of the Act. Sch 4, however, does not have the force of law and the dia-gram is
provided as a guideline. This diagram has been slightly adapted.
3 The LRA contemplates determinations about the definition of a workplace, the representativeness of a union and
the manner in which organisational rights can be exercised.
4 The purpose of this meeting is the conclusion of a collective agreement on the exercise of the organisa-tional rights.
If no agreement is concluded the union may elect to strike or it can refer the dispute to the CCMA. If the union
elects to strike, it cannot refer a dispute over organisational rights to the CCMA for a period of 12 months.
Collective bargaining 273

5 In terms of s 21(2) a union may notify an employer that it intends to exercise organisational rights. For example, if
a registered union is sufficiently representative it may notify the employer that it seeks to exercise the right of
access.
Disputes may range from employers and unions not reaching agreement on organisational rights
to the representativeness of the union or to the interpretation or application of Part A of Chapter 3
of the Act (organisational rights). Either the employer or the union may refer a dispute to the CCMA.
In practice the majority of the disputes are referred by unions because an employer has refused to
grant it organisational rights on account of the union’s representativeness. It is then for the CCMA
Commissioner, in arbitration, to decide whether the union is entitled to any of the rights and, if so,
which rights.
If the union’s representativeness is in question the Commissioner may make enquiries or conduct
a ballot to determine union membership.
In deciding whether to grant organisational rights to a union, the Commissioner must guard
against proliferation of union representation in the workplace and rather encourage a system of a
single union, where possible. This will minimise the financial and administrative burden on an
employer who has to deal with and grant organisational rights to more than one union. In this
regard the Commissioner must consider the nature of the workplace, the organisational right(s)
that the union seeks to exercise, the nature of the sector in which the workplace is situated, the
organisational history at the workplace or any other workplace of the employer and the
composition of the workforce, taking into account labour broker employees, employees engaged
on fixed-term contracts, part-time employees and employees in other categories of non-standard
employment.
An employer who claims that a union is no longer representative and is therefore no longer
entitled to organisational rights may approach the CCMA with an application that some or all of the
organisational rights be withdrawn. If the union is no longer representative, the rights may be
withdrawn.
In an arbitration concerning organisational rights, the arbitration award may order the employer
and/or any other person who is in control of the workplace to grant some or all of the organisational
rights to the union. Where labour broker employees are involved, the award can also be made
binding on the client of the labour broker.

14.4 Collective bargaining structures

14.4.1 Bargaining councils

The primary function of a bargaining council is the conclusion of collective agreements. A bargaining
council thus has a peace-keeping function. Parties to the council may, of course, negotiate all
matters of mutual interest. They are accordingly not confined to negotiate wage increases and other
conditions of employment, but can negotiate a number of other issues, such as dispute resolution
procedures and the threshold of representativeness in respect of certain organisational rights.
Should parties conclude a collective agreement, the agreement takes precedence over the
provisions of the Act.
A collective agreement concluded in a bargaining council binds:
• the parties to the bargaining council who are also parties to the collective agreement;
• each party to and the members of every other party to the collective agreement in so far as the
provisions thereof apply to the relationship between such a party and the members of the other
party;
274 A Practical Guide to Labour Law

• the members of the union who is party to the agreement and the employers who are members
of an employers’ organisation who is such a party, if the agreement regulates conditions of
employment or the conduct of employers in relation to their employees or vice versa (s 31).
In terms of section 32 a bargaining council collective agreement may be extended to nonparties
who fall within the registered scope of the council. A non-party is an employer or employee who is
not party to the bargaining council through their employers’ organisation or trade union. The
consequence of an extension of an agreement is that whatever the parties to the bargaining council
decided also apply to employers who are not party to the council (via employers’ organisations).
For example, Smith’s Builders is a small construction company and does not belong to any
employers’ organisation. The parties to the Civil Engineering Bargaining Council (employers’
organisations SAFCEC and CEO and unions BCAWU and NUM) conclude a collective agreement on
minimum wages for the civil engineering sector. If this agreement is extended to non-parties,
Smith’s Builders will have to comply with the collective agreement and pay the minimum wages as
contained in that agreement despite the fact that Smith Builders was never part of the negotiations
and conclusion of the agreement.
A bargaining council collective agreement is extended by the Minister, by notice in the
Government Gazette, and will be binding on non-parties for a specified period. The bargaining
council may apply for an extension, provided that the majority of the members of the unions that
are parties to the council vote in favour of an extension and provided further that the majority of
employers belonging to the employers’ organisations that are parties to the council vote in favour
of an extension.
A collective agreement may not be extended, unless the Minister is satisfied that the majority of
the members of the parties to the bargaining council support an extension, that the majority of
employees in the sector belong to the unions that are party to the council, that the employers who
are members of the employers’ organisations employ the majority of employees in the sector, that
the bargaining council has effective application and appeal procedures for exemptions in place and
that the collective agreement does not discriminate against non-parties.

14.4.2 Statutory councils

The main functions of a statutory council include the resolution of disputes within its area of
jurisdiction, the establishment of training and education schemes and the establishment and
administration of pension, provident, medical aid, sick pay, holiday and unemployment schemes.
Collective agreements are concluded to give effect to these matters and may also be extended to
non-parties.
Bargaining over wages and conditions of employment is not expressed as a function of a
statutory council (s 43(1)). However, a statutory council can in its constitution adapt any of the
functions of a bargaining council (s 43(2)). This conceivably includes the conclusion of collective
agreements to regulate wages and conditions of employment.

14.4.3 Workplace forums

Workplace forums are consultative bodies rather than negotiating ones. Once a workplace forum
has been established, an employer is obliged to consult with the forum on a wide range of policy
issues, such as restructuring, organisational changes, plant closures, retrenchments and education
and training (s 84).
On a limited number of issues the employer is required to reach consensus with the workplace
forum, which effectively amounts to negotiation rather than mere consultation. In terms of section
86 an employer is required “to consult in an attempt to reach agreement” on issues such as
disciplinary procedures and affirmative action.

14.5 The bargaining process

Collective bargaining 275

14.5.1 Bargaining unit

A bargaining unit is that part of the workforce in which a union claims recognition and in respect of
which it negotiates. A bargaining unit is a cohesive group of employees who share a community of
interests, such as conditions of employment, methods of payment, physical proximity, the
organisational structure of the firm and the terms of collective agreements. It is usually left to the
parties to determine the bargaining unit by collective agreement. The demarcation of the
bargaining unit is important in establishing the union’s bargaining entitlement and other rights.

14.5.2 Bargaining levels

“Bargaining levels” refers to bargaining at plant (enterprise) level or at sector level. Plantlevel
bargaining is negotiations between an individual employer and a union in the workplace. Sector,
industry or centralised bargaining involves negotiations between one or more unions and a group
of employers (one or more employers’ organisations) in a particular industry or economic sector.
Sectoral-level bargaining is preferred by the bigger unions and the LRA promotes it. The rationale
behind centralised bargaining is that employers throughout the industry pay the same wages and
implement the same conditions of employment.
The main forum for centralised bargaining is a bargaining council. Unions and employers’
organisations that are parties to the council negotiate and conclude collective agreements. These
agreements bind the parties who have concluded them, but can be extended to non-parties.
Employees may not strike and employers may not lock out employees over issues that are regulated
in the council collective agreements.
Bargaining at both plant and industry level is possible. Unions and employers, through
agreement, determine minima for the industry, while one union negotiates actual wages and
conditions of employment at plant level. The latter form of bargaining, of course, results in
differentiated wages and conditions within the industry.
The courts have declined to compel bargaining at a specific level and, unless bargaining at a
particular level will result in unfairness or discrimination, the parties will have to determine the
level or levels of bargaining through agreement.

14.5.3 Bargaining agenda

The LRA of 1995 does not prescribe to parties what issues they should negotiate and leave it to the
parties to negotiate “any matter of mutual interest”. A matter of mutual interest is any issue
concerning the employment relationship, i.e. the relationship between employer and employees
or a matter that concerns the relationship between employer and the union.
Bargaining over matters that are clearly illegal or contrary to public policy is not permissible. It
follows then, for example, that bargaining to prohibit employees from belonging to unions, to
accept wages less than the prescribed minimum or to contract out of statutory rights must fall foul
of legitimate bargaining.

14.5.4 Bargaining conduct

Under the unfair labour practice jurisdiction of the past the Industrial Court did not only compel
employers to bargain with trade unions, but also ruled on how the bargaining game should be
played. A number of bargaining practices were struck down as unfair, for example, unreasonable
pre-conditions to bargaining, premature unilateral action, illegitimate pressure tactics and denial of
union access, failure to disclose information and delaying tactics, by-passing a recognised union to
negotiate directly with employees and unilaterally implementing proposals not negotiated.
Good faith bargaining is undoubtedly an important element of the bargaining process. This
means that the parties must conduct themselves in a manner conducive to reaching consensus.
276 A Practical Guide to Labour Law

However, in terms of the 1995 LRA the courts and arbitrators have little scope to promote the
concept of good faith bargaining as it is no longer possible to strike down a bargaining practice as
an “unfair labour practice”. This, of course, does not mean that employers are now at liberty to
undermine a trade union or the bargaining process.
Chapter 2 of the LRA allows the Labour Court some measure of ability to scrutinise employer
conduct which threatens to undermine the role of the trade union as employees may not be
discriminated against for participation in lawful union activities or for exercising any of the rights
conferred by the Act. In SACCAWU v OK Bazaars 1995 (3) SA 622 (A), decided under the 1956 LRA,
it was held that it was legitimate for an employer to offer financial inducements to its employees in
an attempt to dissuade them from participating in strike action. This kind of practice tends to
undermine the role of the union and has, therefore, been outlawed in sections 4 and 5 of the 1995
LRA in light of the fundamental right to strike.
A union’s rights to disclosure of information and reasonable access to its members in the
workplace furthermore prevent an employer from resorting to dubious practices, such as bypassing
union representatives, hindering communication with union members and attempting to
undermine a union by offering rewards to non-union members or penalising union members.
Bargaining conduct other than those practices captured by the provisions relating to freedom of
association and organisational rights appears to be largely beyond the reach of the CCMA and the
Labour Court.

14.6 Collective agreements

Part B of Chapter 3 of the LRA regulates collective agreements. A collective agreement is a written
agreement concluded between a registered trade union and an employer or employers’
organisation and deals with terms and conditions of employment or any other matter of mutual
interest (s 213).
Collective agreements may be negotiated and concluded at plant level or by the parties to a
bargaining or statutory council in the council. A council agreement carries more weight than a plant-
level agreement.
Section 24(1) requires every collective agreement to include a dispute resolution procedure for
disputes concerning the interpretation or application of the agreement, which must be conciliation
and arbitration. (Agency shop agreements, closed shop agreements and settlement agreements do
not have to include such a provision.)
A dispute concerning the interpretation or application of a collective agreement is conciliated
and arbitrated by the council in accordance with the provisions of the agreement, unless section
24(2) is applicable.
Section 24(2) confers exclusive jurisdiction on the CCMA to conciliate and arbitrate interpretation
or application disputes: (a) where the collective agreement does not contain a dispute resolution
procedure (as required in s 24(1)); (b) if the procedure in the agreement is inoperative; and (c) if a
party to the collective agreement has frustrated resolution of the dispute.
A collective agreement varies a contract of employment if both the employer and employees
concerned are covered by the collective agreement. Even employees who are not members of the
union that is party to the agreement may be bound by the agreement (see below).

14.6.1 Legal effect of collective agreements (s 23)

Every collective agreement binds:
• the parties to the agreement;
Collective bargaining 277

• each party to the agreement and the members of every other party thereto in so far as the
provisions are applicable between them;
• the members of a registered trade union and the employers who are members of a registered
employers’ organisation that are party to the agreement if the agreement regulates terms and
conditions of employment or the conduct of the employers and employees in relation to each
other; and
• employees who are not members of the registered trade union that is party to the agreement,
provided the union party to the agreement commands majority support in the workplace and
provided further that the non-member employees are identified in the agreement and the
agreement expressly binds them.
A collective agreement is binding for a period as agreed and binds every employer who is a member
of the employers’ organisation party to the agreement and every employee who is a member of
the trade union party to the agreement and who was a member at the time it became binding or
who becomes a member after it became binding for the whole period. The agreement remains
binding on these employees and employers whether or not they continue to be members of the
union or the employers’ organisation.
Where a collective agreement has been concluded for an indefinite period, any party may
terminate the agreement by giving reasonable notice to the other parties (unless the agreement
provides otherwise).
Collective agreements concluded in a council may be enforced by a designated agent of the
council. The council may request the Minister to appoint a person as a designated agent to promote,
monitor and enforce compliance with collective agreements. A designated agent may secure
compliance by publicising the contents of the agreement, conducting inspections and investigating
complaints (s 33).
A designated agent may further issue compliance orders, requiring any person bound by the
agreement to comply with that agreement. Any unresolved dispute concerning compliance may be
referred to arbitration. This is commonly referred to as a compliance arbitration. When arbitrating
the compliance dispute the appointed arbitrator may determine any dispute concerning the
interpretation or application of a collective agreement. The arbitrator may make any appropriate
award, including ordering any person to pay any amount owing in terms of the collective
agreement, imposing a fine, ordering a party to pay the cost of the arbitration or confirm, vary or
set aside a compliance order issued by the designated agent. An arbitration award issued by the
arbitrator is final and binding and may be made an order of the Labour Court.
The Minister has published a notice setting out the maximum fines that may be imposed by an
arbitrator. The table of fines is contained in item 29 of Schedule 7 of the LRA.

14.6.2 Agency shop agreements (s 25)

In terms of an agency shop agreement an employer is required to deduct an agreed agency fee from
the wages of non-union employees and pay it over to the union that is party to the agreement. The
employees who are not members of that union must be identified in the agreement and must be
eligible for union membership.
Only a registered majority union (or two or more registered unions acting jointly) may conclude
an agency shop agreement with an employer or employers’ organisation. However, there is no
statutory obligation on an employer or employers’ organisation to conclude an agency shop
agreement and it is a subject matter for negotiation.
An agency shop agreement is binding only if it provides that non-union employees are not
compelled to become members of the trade union, and the agreed agency fee may not be an
amount in excess of the subscription payable by union members or, if there are two or more unions
278 A Practical Guide to Labour Law

party to the agreement, in excess of the highest amount of the subscription that would apply to an
employee.
The agency fees must be paid into a separate banking account and is administered by the union.
Proper books must be kept and audits must be done of this account. Any interested person may
inspect the auditor’s report. Agency fees may not be paid to a political party as an affiliation fee or
to support the election of any person standing for office of a political party. Furthermore, this
money may not be used for any expenditure that does not advance or protect the socio-economic
interests of all employees. A conscientious objector may request the employer to pay the agency
fees into a fund administered by the Department of Labour rather than into an account
administered by the union.
An employer is allowed to deduct the agreed agency fee from the wages of an employee without
his authorisation.
An employer or employers’ organisation alleging that a union no longer enjoys majority support
is required to give written notice to this effect. The union then has 90 days from the date of the
notice to establish that it is a majority union. If, after the 90-day period, the union fails to establish
its majority representation, the employer must give the union and the employees covered by the
agency shop agreement 30 days’ notice of termination, after which the agreement will terminate.

14.6.3 Closed shop agreements (s 26)

A registered majority union (or two or more unions acting jointly) may negotiate and conclude a
closed shop agreement with an employer. A closed shop agreement means that all employees must
join and be members of the trade union that is party to the agreement. Conscientious objectors
are, however, not obliged to join the union.
A closed shop agreement is binding only if a ballot has been held amongst those employees to
be covered by the agreement and two-thirds of them supported the arrangement. The ballot is to
be conducted in accordance with the provisions of a collective agreement, if any, or the guidelines
published by the CCMA. Only post-entry closed shop agreements are provided for, i.e. union
membership is not required before employment commences.
No deductions made from employees’ wages in terms of a closed shop agreement may be paid
to political parties as affiliation fees or for the election of a person to a political office. Nor may the
money be used in any manner that does not advance or protect the socioeconomic interests of the
employees.
Where a closed shop agreement has been in existence for three years or more, support for its
maintenance may be tested. In order to do so, one third of the employees covered by the
agreement must sign a petition, calling for its termination. If the majority of employees vote against
the closed shop agreement, it must be terminated.
A controversial provision is included in section 26(6) in terms of which an employee who refuses
to join the union may be dismissed. This, many argue, infringes the right to freedom of association.
The constitutionality of this section has not been tested and therefore section 26(6) remains
applicable. It is to be noted that employees already in employment at the time a closed shop
agreement takes effect may not be dismissed for refusing to join the union.
Section 26(6) continues to state that employees who are refused union membership or who are
fairly expelled from the union may also be dismissed. Membership may, however, not be unfairly
refused or a member may not be unfairly expelled. An employee who has been refused membership
or who has been expelled from the union may have to pay an agency fee (if an agency shop
agreement is applicable).
An employee who was dismissed because he was refused union membership or he was expelled
from the union may refer a dismissal dispute to the CCMA for conciliation and, if not resolved, to
the Labour Court for adjudication. If the dismissal is found to have been unfair, the Labour Court
may order compensation, in which case the trade union will be ordered to pay the compensation.
Collective bargaining 279

A registered union that represents a substantial number of the employees covered by a closed
shop agreement may notify the parties to the agreement of its intention to apply to become a party
to the agreement. Within 30 days of this notice the employer must convene a meeting of the parties
to the agreement and the applicant union in order to consider the application. If the application is
refused, the union may refer the dispute to the CCMA for conciliation and serve a copy of the
referral on the other parties to the dispute. If conciliation is unsuccessful the dispute may be
referred to the Labour Court for adjudication.

14.6.4 Funding agreements (s 32A)

A funding agreement is a collective agreement concluded in a bargaining council to fund:
• the operational and administrative activities of the council;
• a dispute resolution fund;
• a training and education scheme;
• pension, provident, medical aid, sick pay, holiday or unemployment schemes or similar schemes
for the benefit of the parties to the council and their members.
All bargaining councils have concluded funding agreements. Employers and employees, through
their employers’ organisations and trade unions, contribute monthly levies to the council. These
levies are typically used to run the council, to fund dispute resolution and to support medical aid
and provident or pension funds.
Funding agreements may be renewed, for a period of 12 months at a time, if the agreement has
expired and if the parties to the council have not timeously concluded a new agreement. Before
renewing a funding agreement, the Minister must call for public comment by way of a notice in the
Government Gazette.
The Minister’s decision to renew a funding agreement may be taken on review to the Labour
Court. The decision remains in force until the Labour Court, or thereafter the Labour Appeal Court
or the Constitutional Court, has finally decided the matter.

14.6.5 Resolution of disputes about collective agreements (s 24)

A dispute about the interpretation or application of a council collective agreement is referred to the
bargaining council for conciliation and arbitration, unless section 24(2) applies.
In three instances the CCMA is responsible for, and has exclusive jurisdiction, to conciliate and
arbitrate interpretation and application disputes: if the council agreement does not incorporate a
dispute resolution procedure, if the agreement includes a procedure, but that procedure has
become inoperative and where one of the parties frustrates the dispute procedure (s 24(2)).
Disputes concerning the interpretation or application of a settlement agreement may be referred
to a bargaining council or, if there is no council with jurisdiction, to the CCMA for conciliation and
arbitration (s 24(8)).
The CCMA furthermore has exclusive jurisdiction to conciliate and arbitrate interpretation and
application disputes concerning agency shop and closed shop agreements
(s 24(6)).
Generally, an arbitration award is final and binding with no right of appeal against it (but it can
be taken on review to the Labour Court). However, in the case of closed shop and agency shop
agreements a limited right to appeal to the Labour Court exits.6 Where the dispute arose as a result
of the payment of closed shop or agency shop fees to a political party as affiliation fees or for the
election of a person to a political office or where these fees have been expended in a manner which
does not advance or protect the socioeconomic interests of employees and, in the case of agency
shop agreements, where the agency fees deducted from non-members’ wages were not paid into
a separate account, any person bound by the award may appeal to the Labour Court.
280 A Practical Guide to Labour Law

The dispute resolution path for interpretation and application disputes (other than closed shop
and agency shop agreements) may be illustrated as follows:7

________________________

6 A limited right of appeal against an arbitration award is also allowed in discrimination cases – s 10(8) of the
Employment Equity Act.
7 Flow diagrams 3 and 4 of Sch 4 of the Act (adapted).

Questions

Question 1
Is there a duty to bargain in terms of the Labour Relations Act of 1995? Explain. (12)

Question 2
A trade union has a 51% membership at Coltex (Pty) Ltd.
2.1 Discuss the procedure to be followed if the union wants to exercise the right of access to the
workplace and the right to stop-order facilities. (8)
Collective bargaining 281

Hint: See s 21; SACCAWU v Speciality Stores Ltd [1998] 4 BLLR 352 (LAC); PTWU obo
members v Sahar Security Services [2004] 3 BALR 373 (CCMA); Health & Hygiene Services v
Seedat NO & Others [1999] 11 BLLR 1153 (LC); CEPPWAWU v Tekwani Sawmills (Pty) Ltd
[2004] 9 BALR 1094 (CCMA).
2.2 Assume that the management of Coltex (Pty) Ltd refuses to deduct union subscription fees from
the employees’ wages. In consequence the union is in dispute with the company. Discuss the
procedure to be followed in order to have this dispute resolved. (5) Hint: See s 22.
2.3 When the union seeks to conclude an agency shop agreement with the company, management
refuses because, according to its records, the union enjoys only 48% support of the
employees in the company. The union, however, maintains that it has already recruited and
signed up 51% of the employees. Explain how a dispute with regard to the representativeness
of the union is to be resolved. (5)

Question 3
Trade union A and employer B have negotiated and concluded a collective agreement providing for
organisational rights, a resolution procedure for disputes about the interpretation and application
of the agreement, a resolution procedure for disputes about organisational rights and thresholds
of representativeness. Draft this agreement for the company and trade union of your choice.
Assume that union A is a registered majority union. (30)

Question 4
Astron (Pty) Ltd, a manufacturer of car batteries, employs 200 employees of whom 51 have joined
the Motor and Allied Workers Union (MAWU) and 73 have joined the General Workers Union
(GWU). MAWU demands access to the workplace, stop-order facilities and disclosure of
information since it wishes to negotiate an incentive bonus scheme. Management notifies MAWU
that it is willing to conclude a collective agreement with regard to access and stop-order facilities,
but refuses to disclose the required information.
4.1 Is management obliged to grant the right of disclosure to MAWU? Explain and assume that
MAWU’s argument is that it has a significant interest and a substantial number of members
in the workplace. (10)
4.2 Assume that MAWU and GWU act jointly in requesting disclosure. Management refuses to
disclose any information because, according to management, the unions are not sufficiently
representative to be entitled to disclosure. The unions are in dispute with management and
want the dispute resolved. Discuss the procedure to be followed in order to have this dispute
resolved. (8)
Hint: See s 16; NPSU & Others v The National Negotiating Forum & Others [1999] 4 BLLR 361 (LC);
NUMSA obo members v Behr Climate & Control [2004] 3 BALR 364 (CCMA); Langa & Others v
Active Packaging (Pty) Ltd [2001] 1 BLLR 37 (LAC).

Question 5
Assume employer A refuses to bargain with trade union B. What, if anything, can B do to force A to
bargain? Explain. Include in your answer a description of the concept “refusal to bargain”. (12)

Question 6
An arbitration award is generally final and binding with no right of appeal against it. However, in
two instances it is possible to appeal against a CCMA award. Discuss the circumstances in which
such a right of appeal lies. (8)
Hint: S 24(7) of the LRA and s 10 of the EEA.

Question 7
282 A Practical Guide to Labour Law

An agency shop agreement has been concluded between employer A and trade union B.
7.1 Discuss the main characteristics of an agency shop agreement. (5)
7.2 According to A, the union does not enjoy majority membership anymore and therefore A wishes
to terminate the agency shop agreement. Discuss the requirements that should be complied
with in order to terminate such an agreement. (5)

Question 8
Freedom of association is guaranteed in the Constitution, as well as the Labour Relations Act of
1995. Give your opinion as to the constitutionality of a closed shop agreement vis-àvis the right to
freedom of association. (8)

Question 9
A closed shop agreement is in existence between employer A and trade union B. Mr X has just been
employed by the company, but he refuses to join the union.
9.1 Can X be dismissed as a result of his refusal to join the union? Briefly explain. (3)
9.2 Assume that X refuses to join the union on conscientious grounds. Can he be dismissed?
(3)
9.3 Assume that X wishes to join the union, but his application for membership is refused on the
grounds of his race. Can X be dismissed because he is not a member of the union? Explain.
(3)

Question 10
Rand Mining Company employs 2 000 employees. These employees have been deployed to work at
the three mines owned by the company in Johannesburg, Rustenburg and Welkom. The staff
component at each of the mines is as follows:
• at the mine in Johannesburg: five managers, five assistant managers and five engineers, who
have been employed as independent contractors. In addition, there are a number of supervisors
and ‘ordinary employees’ to make up a total of 885 employees other than the managers and
engineers;
• at the mine in Rustenburg: three managers, three assistant managers and three engin-eers,
employed as contractors. The supervisory and ordinary staff make up a total of 478;
• at the mine in Welkom the staff component is the same as at Rustenburg.
The National Union of Mineworkers (NUM) has recruited members at all three mines. Assume that
a bargaining council has been established for the mining industry and NUM is a party to the council.
Rand Mining has joined the Chamber of Mines, an employer’s organisation, who is also a party to
the council.
NUM has recruited 101 members at the Welkom mine, 339 members at the Rustenburg mine
and 699 members at the mine in Johannesburg.
10.1 NUM approaches the management of Rand Mining Company with a request to exercise
organisational rights. Management responds by informing NUM that it cannot exercise any
organisational rights at the Welkom mine because of its small membership there. NUM
argues that it is entitled to all the rights accorded by the LRA at all three mines. Consider
both the company’s and the union’s argument and explain whether NUM is entitled to
organisational rights at any or all three of the mines. (10)
10.2 Consider NUM’s representativeness and then list the organisational rights, if any, that it is
entitled to. (8)
10.3 Explain what NUM must do to exercise its organisational rights (assuming that it is entitled
to such rights). (6)
Collective bargaining 283

10.4 The Welkom mine has made an unexpectedly large profit over the past financial year. As a
result, NUM approaches the management of the Welkom mine with a request to negotiate
bonuses for its members at that mine only. Management’s response is that it will not
negotiate bonuses because negotiations have to take place in the bargaining council.
(a) Briefly explain whether management’s argument is valid. (5)
(b) When management declares its unwillingness to negotiate bonuses, NUM is of
the opinion that management should negotiate and declares a dispute. Identify
this type of dispute and describe how it can be resolved. (6)
Appendix 1

A strategy for negotiations

• Collect data on, e.g., trends in wages and conditions of service,
inflation and cost of living

PRE- • Collect data on other party

NEGOTIATION PERIOD • Identify the market
• Decide on strategies and tactics to be used during negotiations (but
change these if necessary while negotiating)

• Negotiators to have knowledge of conditions of employment,

agreements and trends in similar industries
• Do not include chief executive of company in team
NEGOTIATION
TEAMS

• Union submits demands before first meeting

• Company may submit responding proposals
• At the first meeting clarify demands and counter-proposals and
assess which issues are more important
• The bargaining range is the area between the union’s demands and
NEGOTIATION the company’s first offer and it sets the limits within which to
PROCESS negotiate
• A tacit acceptance of a game being played exists, i.e. not to
compromise too easily and not to hold out too long
• The settlement zone is the point where a compromise is possible

OUTCOME OF
COLLECTIVE When the parties have settled all issues an agreement is drawn up and
BARGAINING signed by them
284 A Practical Guide to Labour Law

Appendix 2

(The following is an abbreviated version of a collective agreement that recognises a union as a bargaining
agent.)

RECOGNITION AGREEMENT
between
United Wines Co Ltd
(hereinafter referred to as the company) and
National Wine, Liquor & Allied Workers Union (hereinafter
referred to as the union)

1. Objectives
1.1 This agreement regulates the relationship between the company and the union.
1.2 The parties to this agreement acknowledge:
• that sound and fair industrial relations are in the interest of both parties;
• that it is to the parties’ mutual benefit to formalise and regulate their relationship and to have clearly
stated rules and procedures which will reduce the possibility of conflict between management and
labour;
• the right of the union to represent its members;
• the right of management to direct and manage the company.
2. Definitions
Unless otherwise indicated in the content of this agreement Alternate
shop steward shall mean . . .
The company or business shall mean . . .
Office-bearer shall mean . . .
Official of the union shall mean . . .
Representative with regards to disciplinary procedures shall mean . . .
Shop steward committee shall mean . . .
Union shall mean . . .
Union member shall mean . . .
Workers shall mean . . .
3. Recognition
3.1 The company recognises the union as the representative of its members and will continue to do
so while it maintains majority representation of the employees in the defined bargaining unit,
subject to termination of this agreement as set out in par 3.3 and par 23.
3.2 Only employees who are paid-up members of the union shall be regarded as members.
3.3 The company may ask for proof of membership, which may be established in a manner agreed
upon by both the union and the company. Should the union membership prove to be less than
half the employees in the defined bargaining unit, the company may withdraw recognition of the
union, subject to a notice period of 2 (two) months, during which time the union may endeavour
to establish a majority membership.
3.4 Subject to the terms of this agreement the company recognises the right of the union to bargain
collectively on the wages and conditions of service of its members.
3.5 The company and the union agree to consultation by their representatives on a regular basis over
workplace issues which affect industrial relations or the welfare of their members.
Collective bargaining 285

3.6 The recognition accorded in terms of this clause shall not affect the right of management to
communicate and consult with employees, provided this does not undermine the structure and
procedures set out in this agreement.
4. Bargaining unit
The bargaining unit for the purpose of this agreement is defined as . . .
5. Freedom of association
5.1 The company and the union recognise the principle of freedom of association, by which is
understood that each worker is free to belong to the union of his/her choice or not to belong to
any union.
5.2 The company shall not victimise or discriminate against any worker who chooses to belong to a
union or who is elected to represent union members.
5.3 The union shall not victimise or discriminate against a worker who chooses not to belong to a
union.
6. Union subscriptions
The company agrees to deduct union subscriptions weekly from the wages of union members, provided
such members have consented in writing to such deduction.
7. Appointment of shop stewards
7.1 Shop stewards shall be elected in accordance with the constitution of the union.
7.2 The union shall be represented by 2 (two) shop stewards and 2 (two) alternate shop stewards.
7.3 The election of the shop stewards and alternate shop stewards shall take place during a general
meeting of the shop stewards and the union members in terms of par 13.
7.4 The union shall in writing notify the company within 5 (five) days of such election of the names of
the shop stewards and alternate shop stewards.
8. Rights and duties of shop stewards
8.1 Shop stewards shall function in terms of the union constitution and the procedures and provisions
of this agreement and ensure that the provisions of this agreement are adhered to by union
members.
8.2 Shop stewards shall not leave their work stations without prior permission of management, which
permission shall not be unreasonably withheld.
8.3 A shop steward shall have access to other shop stewards for brief discussions during working time,
provided that such discussions shall not disrupt the business of the company.
8.4 A shop steward’s term of office shall cease under the following circumstances:
• upon his resignation as a shop steward;
• if he ceases to be a union member;
• if he is promoted outside the bargaining unit;
• if the majority of union members request him to vacate his position and the union authorises his
removal from office and informs management in writing thereof;
• if the union does not enjoy the membership of the majority of the workers and recogni-tion is
withdrawn in terms of par 3.
9. Shop steward committee
9.1 The shop stewards and alternate shop stewards appointed in terms of par 7 of this agreement
shall constitute the shop steward committee and they may elect one shop steward to serve as the
senior shop steward.
9.2 The union shall notify the company in writing within 5 (five) days of the names of the chairperson,
vice-chairperson, secretary and other shop stewards who make up the shop steward committee
and/or the senior shop steward.
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10. Access
Union officials shall have reasonable access to the premises of the company in order to conduct union
business with their members. The union shall, however, obtain permission from management and shall
make the necessary arrangements in writing with management prior to a visit to the premises.
11. Meetings of shop steward committee and management
11.1 The shop steward committee and management may meet regularly at either party’s request in
writing. Such meetings shall be held at the company premises.
11.2 An agenda shall be submitted by the party requesting the meeting or by both parties prior to the
meeting.
11.3 Minutes of these meetings shall be kept separately by each party.
11.4 Report back meetings on meetings held between the shop steward committee and management
shall be arranged by a shop steward and shall be held in the cloakroom at a time granted by
management.
12. Shop steward committee caucus meetings
12.1 The shop steward committee will be allowed to meet on company premises once per month
between 17:00 and 18:00 on Mondays to Thursdays, provided that management is notified in
writing thereof at least 2 (two) days prior to such meetings.
12.2 When such a meeting is held each shop steward and alternate shop steward who attends the
meeting shall arrange for another worker as substitute to take his/her place/work station while
the meeting is in progress.
13. General meetings of union members
The shop steward committee and/or union officials may hold general meetings with their members in
the cloakroom on company premises, provided such meetings are held between 17:00 and 18:00 on
Mondays to Thursdays and provided further that such meetings shall be limited to one per calendar
month. The union officials and/or shop stewards must notify management of such a meeting in writing
and such notice must reach management at least 2 (two) days prior to the day on which the proposed
meeting is to be held.
14. Access to notice board
The shop stewards shall be entitled to display notices and/or announcements concerning union activities
on the company notice board, provided such notices/announcements are not of a political nature.
15. Negotiations
15.1 The company and the union shall convene a meeting of the negotiating committee annually for
the purpose of negotiating a substantive agreement on wages, conditions of service and grades.
15.2 Such meeting shall be held as soon as possible after the end of February of each year on a date
agreed upon by both parties.
15.3 The negotiating committee may comprise not more than 4 (four) shop stewards and 2 (two) union
officials and not more than 6 (six) company representatives.
15.4 Negotiations on other issues affecting the interests of the workers and/or the company shall take
place at the request of either party and shall be held on a date agreed upon by both parties and
shall be attended by as many representatives on each side as the parties agree.
16. The negotiating procedure
16.1 The union shall submit its demands in writing by a date agreed upon by the parties, but not later
than 30 (thirty) days prior to the first meeting.
16.2 The company may add its own proposals to the demands of the union and will forward an agenda
for the first meeting to the union.
16.3 A meeting shall take place on a date and at a time and place agreed upon by the parties.
Collective bargaining 287

16.4 The union will be granted access to the cloakroom to report back to its members as it may deem
necessary during negotiations and at the conclusion of the negotiations, provided that work is not
disrupted thereby or, alternatively, a general meeting may be arranged in terms of par 13.
16.5 The negotiating committee shall reduce all agreements to writing and such written agreement
shall be signed by the General Secretary or his nominee on behalf of the union and by the General
Manager of the company or his nominee. Such agreement shall only become binding once the
last signing party has affixed his signature to the agreement and shall remain binding for a period
agreed upon by the parties at the time of reaching the agreement and subject to the provisions
of par 23. The time period so agreed shall form part of the agreement.
16.6 The implementation date of any amendment to wages or conditions of service shall be 1 May of
every year or such other date as agreed upon by the parties.
16.7 In the event of the company and the union failing to reach an agreement at their first meeting,
any number of subsequent meetings as agreed upon by the parties may be held in order to
endeavour to reach an agreement.
16.8 Should the parties fail to reach an agreement after subsequent meetings and it becomes clear that
no agreement will be reached, either party may resort to the dispute procedure.
17. The dispute procedure
17.1 A dispute arising from the employment relationship shall be considered to exist when either party
notifies the other of such dispute in writing, setting forth in precise terms the nature of the dispute
and proposed terms of settlement.
17.2 The answering party shall within one week of receipt of the declaration of dispute serve on the
aggrieved party an answering statement responding to the allegations in the declaration of
dispute and further setting out a statement of the answering party’s position in regard to the
solution requested.
17.3 A meeting shall be convened by the parties within 5 (five) working days of the receipt by the
aggrieved party of the answering party’s reply.
17.4 The meeting shall be attended by not more than 3 (three) representatives of either party.
17.5 At this meeting the parties shall endeavour to resolve the dispute, failing which a second meeting
shall be convened within 3 (three) days.
17.6 Should the dispute not be resolved by the second meeting, the parties may by mutual agreement
agree to a further meeting or the appointment of a mediator or arbitrator (or refer the dispute to
the CCMA).
17.7 The parties agree that neither one shall take any industrial action when they have agreed on
mediation or arbitration, while mediation or arbitration is in progress or after the final award of
an arbitrator has been made.
18. Peace clause
18.1 Neither party shall resort to industrial action until the procedures laid down by this agreement
have been exhausted.
18.2 Both parties undertake to honour this agreement and to do their best to maintain industrial peace.
18.3 If industrial action does take place the union and management shall meet and make every
endeavour to resolve the problem and restore normal working conditions.
18.4 The company agrees not to dismiss workers who participate in a protected strike. However, the
parties acknowledge that misconduct by strikers or the company’s operational requirements may
lead to dismissal.
19. Grievance procedure
Both parties agree to abide by the grievance procedure as set out in Annexure 1.
20. Disciplinary procedure
Both parties agree to abide by the disciplinary procedure as set out in Annexure 2.
21. Retrenchment procedure
288 A Practical Guide to Labour Law

Both parties agree to abide by the retrenchment procedure as set out in Annexure 3.
22. Health and safety
22.1 Any health and safety matter may be raised as a grievance and dealt with in accordance with the
steps of the grievance procedure.
22.2 The company agrees to consult and share information with the union on any changes or
developments in management decision-making that may materially affect the health or safety of
the workforce.
22.3 Both parties commit themselves to ensuring the health and safety of the workplace and the
workers.
22.4 Where a serious, reportable accident occurs and a union member is involved, a union official shall
be informed within 24 (twenty-four) hours and 2 (two) union representatives shall be entitled to
participate in any accident investigation which may follow.
22.5 Management shall appoint one worker as safety representative for every 50 (fifty) workers. Such
safety representative shall investigate the workplace once per month and report in writing any
dangerous or potentially dangerous situations within the workplace to management.
23. Duration of this agreement
23.1 This agreement shall come into effect on the date that the last signing party affixes its signature
hereto and shall be binding on both parties for a period of three years.
23.2 The agreement may be terminated if the union’s membership falls below 50% of the workers as
defined in the bargaining unit in par 4. The company shall give the union 8 (eight) weeks’ notice
of its intention to terminate the agreement under such circumstances.
24. Amendments to the agreement
Any proposed amendments to the agreement may be forwarded in writing to the negotiating committee
and a meeting shall be convened within 30 (thirty) days to consider such proposal. The agreement may
only be amended by mutual consent of the parties and such amendment(s) must be reduced to writing
and signed by or on behalf of both parties.
(Signed)
Collective bargaining 289

Appendix 3

CODE OF GOOD PRACTICE:

COLLECTIVE BARGAINING, INDUSTRIAL ACTION AND PICKETING
(Note to reader: only Part B of the Code, applicable to collective bargaining, is reproduced here.)

PART B COLLECTIVE BARGAINING

4. Collective bargaining and disputes of mutual interest.—(1) Collective bargaining is a
voluntary process in which organised labour in the form of trade unions and employers or employers’
organisations negotiate collective agreements with each other to determine wages, terms and conditions
of employment or other matters of mutual interest. The collective bargaining process may be established
institutionally, by agreement or in practice.
(2) The Act provides an institutional form for sectoral bargaining in the form of bargaining
councils by providing machinery for the voluntary establishment of a bargaining council by trade unions
and employer organisations in a sector and their registration as such by the Registrar of Labour Relations
if their constitution provides for the scope, membership, governance, the negotiation of collective
agreements and dispute procedures in accordance with the Act.
(3) The Act provides for collective bargaining by agreement in a number of ways –
(a) It specifically empowers bargaining councils to determine by way of a collective agreement what
matters for collective bargaining may be devolved to the level of the workplace.
(b) It permits multi-employer bargaining arrangements and provides for the enforceability of collective
agreements entered into in such arrangements.
(c) It permits collective bargaining at the level of the workplace and the enforceability of collective
agreements at this level. The typical form is the recognition agreement which includes a negotiation
and dispute procedure to regulate the collective bargaining relationship between the employer and
the trade union or unions that may affect one or more workplaces of the employer.
(d) In circumstances where there is no bargaining council or agreement to bargain, a group of workers
or a trade union may bargain collectively as a matter of practice by making a demand on an employer
under threat of a strike. Similarly, an employer or employers’ organisation may make demands and
threaten to unilaterally introduce them under a threat of a lockout. In each case, before any
industrial action may be engaged in, the dispute must be referred for conciliation to the Commission
for Conciliation Mediation and Arbitration (the CCMA) or to a bargaining council with jurisdiction.
The conciliation of such a dispute is in effect a facilitated exercise in collective bargaining, the object
of which, is a settlement agreement (in the case of demands made by or against a group of workers)
or a collective agreement (in the case of demands made by or against a trade union).
(4) There is no constitutional or statutory duty to bargain. Collective bargaining under
the Act is voluntary and employers (other than the State) and trade unions are permitted to determine
their collective bargaining relationships in the institutional form of bargaining councils at sectoral level
(the form promoted by the Act) or by way of a recognition agreement at multi-employer or workplace
level. However, once having established a collective bargaining relationship in the form of a bargaining
council constitution or a recognition agreement, the parties have thus by agreement implicitly committed
themselves to a duty to bargain and the duty to bargain under such circumstances does not arise
statutorily but contractually.
(5) In so far as the State is concerned, although the establishment of a structure of
collective bargaining is statutorily determined, its constitution is determined by the State as employer
and the trade unions. The duty to bargain, too, does not arise statutorily but contractually from the
agreed bargaining council constitution.
5. Fundamental commitments.—(1) The following constitute fundamental commitments on the
part of trade unions and their members, trade union federations, employers and employers’
290 A Practical Guide to Labour Law

organisations for orderly and constructive collective bargaining and peaceful industrial and protest action
–
(a) to promote trust and develop mutual understanding and constructive engagement in their
engagements with each other;
(b) to promote the importance of democracy and dialogue at the level of the workplace;
(c) to promote maximum participation and accountability in the preparation for, the conduct and the
conclusion of negotiations by –
(i) members and worker representatives of the trade union party to the negotiations in terms of the
Act;
(ii) if represented by an employers’ organisation, the members of that organisation;
(d) to take all the necessary measures to ensure the competence of negotiators appointed to represent
the parties to the negotiations;
(e) to adhere to the principles of good faith bargaining; and
(f) that violence, intimidation, damage to property and the use of dangerous weapons in the pursuit of
collective bargaining, industrial action or protest action is condemned in the strongest terms and
should not be tolerated in the workplace, on picket lines or in any conduct related or incidental to
such industrial and protest action;
(g) that dangerous weapons have no place in industrial action and cultural instruments should not be
used to intimidate or cause harm;
(h) that the parties commit to prioritising and dealing with violence related conduct in industrial and
protest action in an expeditious manner.
(2) In the context of the constitutional right to picket peacefully and unarmed and
applying the relevant factors listed in section 3 (2) of the Dangerous Weapons Act, 15 of 2013 to
determine whether a person intends to use the object as a dangerous weapon, a dangerous weapon is
any object that could be used to injure or threaten a person or damage property. In the context of a
picket there is no other justifiable use for the possession or display of such an object.
(3) The relevant factors in the context of a picket listed in section 3 (2) of the Dangerous
Weapons Act are as follows –
(a) The place and time where the person is found;
(b) The behaviour of the person, including the making of any threat or the display of intimidatory
behaviour;
(c) The manner in which the object is carried or displayed;
(d) Any other relevant factors, including any explanation the person may wish to provide for his or her
possession of the object provided that this does not impose an obligation on the person to explain
the possession of the object.
6. Promotion of collective bargaining.—(1) ILO Convention 98 on Collective Bargaining requires
governments to take measures appropriate to national conditions to encourage and promote the full
development and utilisation of machinery for voluntary negotiation between employers or employers’
organisations and workers’ organisations, with a view to the regulation of terms and conditions of
employment by means of collective agreements.
(2) The Act promotes collective bargaining in a number of ways by –
(a) encouraging collective bargaining at sectoral level by providing a statutory framework for collective
bargaining in the form of bargaining councils; (b) permitting collective bargaining in single and multi-
employer workplaces; (c) providing for organisational rights at the level of the workplace.
(3) Nothing in the Act prevents collective bargaining at a national level to set thresholds
for collective bargaining at sectoral and workplace levels provided that it is by agreement.
(4) The Government and the federations of trade unions and employer organisations in
NEDLAC undertake to engage on a periodic basis to develop legislative and other measures to promote
Collective bargaining 291

collective bargaining at centralised, sectoral and workplace levels and to deepen the representativeness
of trade unions and employer organisations.
7. Principles of good faith bargaining.—(1) Every trade union, employer, employers’ organisation
and the negotiators appointed to represent them commit themselves to adhere to the principles of good
faith bargaining and mutual respect set out below.
(2) Disclosure of information is essential for a trade union to effectively engage in
collective bargaining. All relevant information should be disclosed to the trade union on request and
subject to confidentiality and clause 12 of the Act.
(3) All demands and responses to those demands from a party should be in writing.
(4) A party may only add a new demand during the course of negotiations if the new
demand is introduced for the purpose of finding a settlement and only with the agreement of the other
party.
(5) An employer should not unilaterally alter terms and conditions of employment during
the course of negotiations prior to deadlock being reached in terms of any collectively agreed dispute
procedure, failing which, when a period of 30 (thirty) days has lapsed after the referral of the dispute to
the CCMA or Bargaining Council, or a certificate of non-resolution has been issued.
(6) Negotiations should be conducted in a rational and courteous manner and disruptive
or abusive behaviour must be avoided.
(7) Parties should attend agreed negotiation meetings unless there is a good reason for
not attending, in which case the party that cannot attend should give reasonable notice of its non-
attendance to avoid wasteful expenditure and inconvenience to the other party or parties to such
negotiations.
(8) A party should engage each other in a constructive manner and not unreasonably
conduct itself prior to or during negotiations in a manner that has the effect of unreasonably delaying
negotiations by failing to agree dates and times for negotiation meetings, failing to attend agreed
meetings, changing negotiators, failing to secure a mandate or refusing to modify demands.
(9) Parties should be prepared to modify demands and responses during the course of
negotiations.
(10) Parties should endeavour, as far as possible, to ensure that their negotiators remain
the same throughout the course of negotiations and that they are properly mandated to modify their
demands and responses.
(11) Mandating processes should be conducted in facilities that are conducive to
collective bargaining. Employers should assist this mandating process by providing facilities where
possible and time off as per the Act or any collective agreement for trade union officials or worker
representatives to meet and if need be ballot members as provided for in the Act. If provided, the trade
union should not unreasonably refuse to use the facilities and time off.
(12) Without interfering with a trade union or employers’ organisation’s right to
communicate with its members as they consider best, the negotiators should endeavour to present the
demands or responses provided by the other side as accurately as possible.
(13) Without interfering with the right of the trade union to communicate with the
members of an employers’ organisation and an employer with its employees, the trade union or
employer should not undermine the bargaining status of union or organisation as the case may be.
(14) An employer should not bypass a recognised trade union and deal directly with
employees before deadlock or a reasonable period after deadlock in respect of the matters that are
subject of the negotiations in order to allow the trade union to communicate with employees.
(15) The parties should consider escalating the negotiations to a higher level of
management or union office bearer within their respective organisations to avoid a deadlock and the
resort to industrial action through seeking to settle the differences or exploring the possibility of
voluntarily referring the dispute to binding or advisory arbitration.
(16) The parties should remain open to continue negotiations after a dispute has been
declared.
292 A Practical Guide to Labour Law

8. Development and support for negotiators.—(1) Parties to collective bargaining under the Act
commit themselves and their members to develop competent negotiators to engage in collective
bargaining by –
(a) supporting the establishing of training courses on this Code by recognised training institutions to train
negotiators in collective bargaining; and (b) requiring negotiators to undergo such training;
(2) Each trade union, employer or employers’ organisation should identify specific
individuals for training and appointment as negotiators.
(3) Each employer should grant reasonable paid time off for an employee identified as a
negotiator in terms of (2) above, unless training for collective bargaining, industrial action and picketing
is sufficiently provided for in terms of an existing agreement.
(4) Negotiators of parties should on a regular basis, either jointly or separately, attend
training courses using the same training materials and conducted by recognised training institutions,
trade unions or employers’ organisations.
9. Preparing for negotiations.—(1) Subject to the democratic procedures contained in the
collective agreement or the constitutions of trade unions and employers’ organisations, their respective
leaderships should in preparation for the union’s or employer or employers’ organisations’ demands or
responses to the extent that it is necessary –
(a) to conduct proper research into the state of the economy, sector, and ability of individual employers,
particularly small, medium and micro-enterprises and new enterprises, the cost of living, the
alleviation of poverty and reduction of wage differentials and inequality, and the likely impact of any
proposal or response on employment and health, safety or welfare of employees;
(b) to determine whether there is a need for disclosure of information in order to prepare a demand or
response;
(c) to take advice from labour market experts on employment effects of a proposed demand or
response;
(d) to take advice on settlement rates generally and specific to the sector;
(e) to consider whether any demand or response reduces inequality of treatment; and
(f) to consider whether the demand or response or the extent of the demand or response cannot be
obtained differently through a reconfiguration of the demand or response by linking increases to
productivity or eliminating vertical inequality by agreeing to longer term agreements.
(2) If a trade union considers it necessary for an employer to disclose information for the
purpose of formulating its demands, it should request the employer in writing to disclose the information
at the earliest opportunity and in accordance with guidelines set out in clause 12 of this Code.
(3) In order deal with expectations and introduce a sense of realism on the part of
members, the information acquired in the preparation of the demands or responses must be conveyed
to members in order that in securing a mandate for negotiations members are fully informed.
(4) The parties should formally appoint negotiators for specific negotiations and ensure
that they participate in the preparation for negotiations including the formulation of demands or
responses and the mandating process.
(5) A party should in writing advise other parties to the negotiations of the names of
their appointed negotiators.
(6) Each party should in preparation for negotiations consider the manner in which the
negotiations are to be conducted, including whether to appoint and use a facilitator given the history of
prior negotiations or the nature of the demands or responses and a timetable for the negotiations.
10. Submission of demands and responses.—(1) A party should submit its demands in writing or
in accordance with any agreed negotiation procedure or practice and in good time and well in advance
of any established implementation date.
(2) The submission should include –
(a) the demand or demands in a clear and concise form;
Collective bargaining 293

(b) an outline of its demands;

(c) any request for or response to a request for the disclosure of relevant information made in terms of
this Code;
(d) a proposed timetable for the negotiations which should include alternative dates and times for a
pre-negotiation meeting; and
(e) the names and details of its appointed negotiators.
(3) The party in receipt of a written demand from a trade union should –
(a) acknowledge the receipt in writing;
(b) inform the other party of when it should in accordance with any agreed negotiation procedure or
practice respond to the demands or make demands itself; and
(c) agree or propose alternative dates and times for the pre-negotiation meeting.
(4) A party responding to a demand should submit in writing its response or any demand of its
own to the other party and include in its response –
(a) its response in clear and concise form;
(b) any demand it may have of its own;
(c) an outline of its response and demands;
(d) any response or request for disclosure of information made in terms of this Code;
(e) a response to the proposed timetable for the negotiations; and (f) the names and details of its
appointed negotiators.
11. Commencement of negotiations.—(1) Subject to any agreed procedures and the nature and
size of the bargaining unit, the negotiators should consider holding pre-negotiation meeting/s to –
(a) agree to a timetable for the negotiations;
(b) decide whether or not to appoint and use a facilitator and if so, agree on a facilitator or request the
CCMA or a bargaining council with jurisdiction to appoint a facilitator;
(c) consider any request for disclosure of information made in terms of the Act and this Code; and
(d) commit themselves to a good faith declaration by signing the model declaration in Schedule A to
this Code.
(2) At the first negotiation meeting, each party should present a full motivation for its demands
and responses.
12. Use of facilitators.—(1) Parties to collective bargaining should consider the appointment of a
facilitator/s by mutual agreement to facilitate negotiations by –
(a) including the appointment and use of facilitators in negotiation procedures contained in bargaining
council constitutions and recognition agreements;
(b) considering the appointment and use of a facilitator in the preparation for negotiations; and
(c) raising the appointment and use of a facilitator with the other party before negotiations commence.
(2) Although it is advisable for parties to a course of negotiations to appoint a facilitator
from the beginning of the negotiations, negotiators should be free to raise the appointment of a
facilitator at any time during the course of negotiations if it could assist the successful conclusion of the
negotiations, particularly in order to break a deadlock.
(3) Facilitators should be appointed to continue facilitation even after a dispute is
declared and particularly if one or both the parties to the negotiations engage in industrial action.
(4) Trade unions, employers and employers’ organisations that engage in collective
bargaining on a regular basis should consider the appointment of a facilitator or a panel of facilitators to
facilitate their negotiations and their relationship from one course of negotiations to the next.
13. Disclosure of information.—(1) Disclosure of information of relevant and credible
information is essential for rational collective bargaining and effective consultation at the level of the
294 A Practical Guide to Labour Law

workplace. It is an essential ingredient for winning cooperation of employees and building a culture of
trust.
(2) Section 16 (2) of the Act gives a trade union with majority of employees in the workplace as
members the right to require the disclosure of relevant information that should allow the trade union to
engage effectively in collective bargaining or consultation. The information has to be relevant to the
issues being negotiated or consulted on. So for example the financial information of an employer become
relevant if the employer motivates its demand or its refusal to accept a trade union demand on the
grounds of its inability to pay or the employer motivates its need to retrench on the grounds of financial
difficulties. But not all relevant information needs to be disclosed. Section 16 (5) lists four exceptions –
(a) Legally privileged information2.
(b) Information the disclosure of which would entail a contravention of a law or a court order.
(c) Personal information concerning an employee without that employee’s consent.
(d) Confidential information that if disclosed might cause substantial harm to the employer or an
employee such as information that may constitute a threat to the employer’s security or affect its
competitiveness. There are alternatives to the disclosure of such information such as agreeing to an
auditor or arbitrator to assess whether the standpoint relied on in the negotiations or the
consultations is supported by the information which the employer does not wish to disclose.
(3) Although the statutory right to disclosure in section 16 is limited to registered trade
unions with a majority of the employees in the workplace as members, employers should disclose
information in accordance with section 16 to any trade union with which it negotiates at the level of the
workplace subject to the ability of the employer party to access the information, and the requisite
agreement by the trade union not to disclose confidential information to third parties or to agree to a
trusted auditor or arbitrator to have access to the information to determine whether the standpoint that
may be relied on in the negotiations or consultations is supported by the information.
(4) Just as this Code urges the disclosure of credible and relevant information by
employers in order to promote rational negotiations, so does it urge trade unions to use the information
received responsibly and to take that information into account when formulating demands or responses
or when deciding to declare a dispute.

________________________

2 Such as the communications between an employer and its lawyers in respect of any anticipated or pending litigation.
296 A Practical Guide to Labour Law

15
STRIKES AND LOCK-OUTS

15.1 Introduction

Strike action is an essential element in the collective bargaining process because it ensures that an
employer bargains more fairly. Collective refusal to work balances the employer’s ability to make
unilateral decisions, to lock out workers or shut down the business. A strike is a deliberate and
concerted withdrawal of labour and it represents the workers’ ultimate weapon against the
employer. If it is accepted that collective bargaining is the best way to resolve disputes and that the
right to withhold one’s labour (i.e. to strike) is part and parcel of this process (“collective bargaining
without the right to strike is collective begging”), then it follows, firstly, that the aim of the law
should not be to criminalise striking, but to regulate it. Secondly, the fact that strikers lose their
income for the duration of a strike will, in most cases, automatically limit the duration of the strike.
Thirdly, the product market will not tolerate the employer acceding to unreasonable wage demands
by strikers. The fact that an employer cannot recoup unreasonable wage increases with impunity
from the consumer public places a limit on the wage demands that strikers can reasonably expect
to be met (except if the object of the strike is to destroy the employer, which is highly unlikely, since
by so doing the strikers will also destroy their own livelihoods).
The Labour Relations Act of 1995 (LRA) clearly embraces the view that strikes are functional to
collective bargaining and as such the integrity of the bargaining agents is of paramount importance.
Therefore, strikers should enjoy considerable job security, provided they play the collective
bargaining game according to the rules as laid down by the LRA.

15.2 A right to strike

Section 23 of the Constitution of the Republic of South Africa guarantees the right to strike, subject
to the general limitation provisions contained in section 36 (the “limitations clause”). Chapter 4 of
the LRA gives statutory effect to the constitutional protection afforded industrial action by making
it relatively easy to strike legally and by protecting the job security of strikers if the strike is in
compliance with the LRA. Where employees have complied with the procedural prerequisites, their
strike is protected and they cannot be dismissed for their participation in the strike. However, the
right to strike is not unlimited.
This constitutes a radical departure from common law in terms of which a strike was a material
breach of contract, justifying dismissal, and the old LRA which gave employees the freedom – and
not the right – to strike.
The 1995 LRA classifies strikes into three categories:
• protected strikes (s 67) are strikes that conform with the procedural requirements of the LRA and
strike procedures contained in a collective agreement or the constitution of a bargaining council.
 The most important consequence is that employees may not be dismissed for their involvement
in a protected strike;

291
• unprotected strikes (s 68) are strikes that do not conform with the procedural require-ments in
the LRA. The most important consequence is that employees can be dismissed for striking,
provided the dismissals are fair. Procedural and substantive fairness standards still apply;
• prohibited strikes (s 65(1)) are strikes that are absolutely prohibited by the LRA, for example,
strikes in essential services. The consequences are the same as in the case of unprotected strikes.

15.3 Definition of a strike

Section 213 of the LRA defines a strike as follows:

Strike means the partial or complete concerted refusal to work, or the retardation or obstruction of work,
by persons who are or have been employed by the same employer or by different employers, for the
purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest
between employer and employee, and every reference to work in this definition includes overtime work,
whether it is voluntary or compulsory.
From this definition it is clear that the following elements are prerequisites for the existence of a
strike:
• collective action of employees or ex-employees, having a common goal. An individual employee
who withholds his labour is not on strike. The employees or ex-employees who participate in a
strike must do so in pursuit of a common goal;
• an act or omission, the best known of which includes the refusal or failure to work or to resume
work or the retardation of the progress of work;
• the purpose of refusing to work, etc. is to remedy a grievance or resolve a dispute in respect of
any matter of mutual interest between employees and an employer.
Strike action can take different forms. The more typical strikes are the following:
• economic strikes where employees withdraw their labour to bring about improvements in their
conditions of employment;
• secondary strikes, also known as a sympathy strikes, where employees do not strike to bring
about any improvement in their own conditions of employment, but to put pressure on the
employer of other employees;
• go-slow which is a planned reduction in the pace of work, a retardation of production;
• work-to-rule in which employees work strictly according to the prescribed rules with the result
that the pace of work is reduced;
• sit-in strikes, where employees occupy the workplace to obstruct and impede admission to the
workplace.

15.4 Prohibited strikes (absolute limitations on industrial action)

(s 65)

The LRA places an absolute prohibition on strikes and lockouts in certain circumstances. Section 65
provides that no person may take part in industrial action in any of the following circumstances:
• if a collective agreement, prohibiting industrial action in respect of the issue in dispute, is in force;
• if an applicable agreement requires the issue in dispute to be referred to arbitration;
298 A Practical Guide to Labour Law

• if the issue in dispute is one that a party has the right to refer to arbitration or to the Labour
Court in terms of the LRA (or in terms of any other employment law), for example, dismissals,
unfair labour practices and unfair discrimination. These are commonly referred to as disputes of
right;
Strikes and lock-outs 299

• in essential or maintenance services;

• during the first year of a sectoral determination made in terms of the Basic Conditions of Employment
Act if that determination regulates the issue in dispute; and
• when an arbitration award, a collective agreement or a ministerial determination that regulates the
issue in dispute has been made.
If the issue in dispute concerns the organisational rights provided for in sections 12 to 15 of the LRA
the union in question has an election between arbitration by the CCMA or strike action. If the union
chooses a strike, it may not refer the dispute to arbitration for a period of one year.

15.4.1 Essential services (ss 70–71)

The following are essential services:
• a service which, if interrupted, can endanger the life, personal safety or health of the whole or any
part of the population;
• the parliamentary service; and
• the South African Police Services.
Section 70 requires the Minister to establish, in consultation with NEDLAC, an Essential Services
Committee (ESC) under the auspices of the CCMA. The ESC has indeed been established, as required,
years ago. The main responsibilities of the ESC are to determine whether a service (or part thereof)
should be designated an essential service and to determine disputes in this regard.
The provisions relating to the composition of the ESC and its functioning underwent significant
changes in the 2014 amendments to the LRA. New sections 70A to 70F were inserted into the Act.
The appointment of the members of the ESC is found in section 70A and the powers and functions
of the ESC in section 70B. Section 70C provides for the appointment of panels of the ESC and section
70D deals with the powers and functions of these panels. Section 70E governs the jurisdiction and
administration of the ESC, whilst section 70F empowers the Minister to make regulations for the
functioning of the ESC and its panels.
In terms of section 70A the ESC is to be composed of eight persons: an independent chairperson
and deputy chairperson, both of whom must be senior CCMA commissioners, and six other persons
nominated by organised business, labour and government.
In terms of section 70B the powers and functions of the ESC are to:
• monitor the implementation and observance of essential service determinations and minimum
service agreements and determinations;
• promote effective dispute resolution in essential services;
• develop guidelines for the negotiation of minimum service agreements;
• decide whether to institute investigations into whether the whole or a part of any service is an
essential service; and
• appoint panels to consider whether a service is an essential service and to determine disputes in this
regard.
In terms of section 70C the ESC must assign each matter before it to a panel. In doing so, it must
have regard to the complexity of the matter. A panel must comprise three or five members, with a
CCMA senior commissioner presiding and the others sitting as assessors.
In terms of section 70D the powers and functions of a panel appointed by the ESC are to:
• investigate whether the whole or part of any service is an essential service;
• determine whether to designate the whole or part of that service an essential service;
• determine disputes over whether the whole or part of any service falls within the scope of a
designated essential service;
• determine whether the whole or part of any service is a maintenance service;
300 A Practical Guide to Labour Law

• ratify a collective agreement that provides for the maintenance of minimum services in a service
designated as an essential service; and
• determine the minimum services to be maintained in the service that is designated an essential
service.
The decision or finding of the majority of the panel is the decision of the ESC.
Section 70E bestows on the ESC jurisdiction throughout South Africa. The seat of the ESC is at the
head office of the CCMA. The CCMA administers the ESC and the Director of the CCMA is the
accounting officer of the ESC.
A notice must be published in the Government Gazette, inviting representation from interested
parties, before launching an investigation into whether a service is an essential service. Upon
conclusion of the investigation and consideration of any representations, the ESC panel may
designate the whole or part of a service an essential service. A notice to this effect is published in
the Government Gazette (s 71).
When deciding whether to declare a service an essential service, the ESC panel may issue an
order directing parties to negotiate a minimum services agreement within a prescribed period and
if the parties fail to do so, to refer the matter to a bargaining council with jurisdiction or to the CCMA.
If the parties fail to conclude a collective agreement the panel may determine the minimum services
to be maintained in an essential service. If the parties conclude a collective agreement, the panel
may ratify the agreement. Any party to negotiations concerning a minimum services agreement
may, subject to any applicable collective agreement, refer a dispute arising from those negotiations
to the bargaining council or CCMA for conciliation and thereafter to the ESC for determination.
Because employers and employees in essential services are not permitted to resort to industrial
action, section 74 provides for the conciliation and compulsory arbitration of disputes by a
bargaining council or, if no council has jurisdiction, by the CCMA.

15.4.2 Maintenance services (s 75)

A service is a maintenance service if the interruption of that service has the effect of material
physical destruction to any working area, plant or machinery. For example, the interruption of the
removal of underground water in a mine shaft during a work stoppage may have the effect of
flooding the workplace to the extent that mining the shaft becomes impossible.
If there is no collective agreement regulating a maintenance service, an employer may apply to
the ESC to declare the whole or a part of his operations a maintenance service. If the ESC approves
the application, those employees designated as maintenance workers will be unable to strike legally
and unresolved disputes will have to be referred to a council or, if there is no council with
jurisdiction, to the CCMA for conciliation and compulsory arbitration. In return for having to forsake
the strike weapon an employer may not employ replacement labour (“scab labour”) to maintain
production during a protected strike if the whole or a part of his service has been designated a
maintenance service (s 76(1)(a)). Since maintenance workers are not allowed to participate in a
protected strike, this provision envisages the situation where an employer employs maintenance
workers and nonmaintenance workers and the latter category of workers participate in a protected
strike.

15.5 Protected strikes (s 64)

The 1995 LRA prescribes certain procedures that must be complied with in order to enjoy the full
protection afforded to parties participating in “protected” industrial action (also referred to as a
“procedural” strike or lockout). One must distinguish between the procedure that is generally
applicable and deviations in respect of specific issues and circumstances. The general procedure
may be illustrated as follows:
Strikes and lock-outs 301

PROCEDURE FOR PROTECTED INDUSTRIAL ACTION

DISPUTE

STEP 1 Referral to council or CCMA

STEP 2 Conciliation
(certificate of non-resolution is issued)1

STEP 3 Union/employer to give other party 48

hours’ written notice before commencement
of strike or lockout (if the State is the
employer 7 days’ notice is required)

STEP 4 Protected strike/lockout commences

after expiry of notice period

In certain circumstances a strike or lockout is protected even though the prescribed procedures have not
been followed. In other instances a “special” procedure is required:
• if the issue in dispute concerns a refusal to bargain an advisory arbitration award must be issued
by the conciliator before the written notice of the commencement of industrial action may be
given;
• if the strike is in response to an unprocedural lockout, the strike will be a protected strike even
though it does not comply with the general procedures;
• if the lockout is in response to an unprocedural strike, the lockout will be a protected lockout
even though it does not comply with the general procedures;
• if the parties to the dispute are members of a bargaining or a statutory council and that council
has dealt with the dispute in accordance with its constitution, the strike or lockout is protected
although it does not comply with the general procedures;
• if there is a collective agreement containing a procedure for strikes and lockouts and the strike or
lockout conforms with the procedure in the agreement, it is protected although it does not
comply with the general procedures;
• where the employer has unilaterally amended conditions of employment or intends to do so the
employees or trade union may, in the referral for conciliation, request the employer not to
unilaterally implement the change or, if the employer has already implemented the change
unilaterally, to restore the status quo. If the employer fails to comply with this request within 48
hours of the referral having been delivered to it, the employees may strike and the strike is
protected although it does not comply with the general procedures.
The amendments to the LRA that took effect on 1 August 2002 introduced a controversial provision
into South African Labour Law, namely the right to strike over retrenchments. In instances where
section 189A is applicable (‘major or large scale retrenchments’) the employees or their union may
elect between strike action or adjudication by the Labour Court if they wish to challenge the reason
for the dismissal. If a facilitator has been appointed to facilitate the consultation process between
the employer and the other consulting party,

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302 A Practical Guide to Labour Law

1 If the dispute is about a refusal to bargain, an advisory award must also be issued before the notice to strike is given
(s 64(2)). If picketing in support of the strike is contemplated, the conciliating commissioner must try to secure
an agreement between the disputing parties to establish picketing rules or, if the parties cannot agree, the
commissioner must determine picketing rules and issue such rules at the same time as the certificate of non-
resolution (s 69(4)–(6C)) – see par 15.7.2 below.
there is no need to refer the dispute over the substantive fairness of the dismissals to conciliation.
Once the employer has given notice of termination of the employees’ contracts of employment and
60 days have lapsed since the section 189(3) notice was issued, the employees or their union may
give notice to strike or may refer the dispute to the Labour Court. Once they have elected one
option, the other falls away.
Where a facilitator has not been appointed, the dispute must be referred to conciliation and if
conciliation fails, notice of strike action may be given or the dispute may be referred to the Labour
Court.
The option of strike action is not available where only procedural aspects of the dismissals are
being challenged. Refer to paragraph 17.8 (“Dismissal for operational requirements”) for a detailed
exposition of retrenchments and strikes in the context of major retrenchments.
The primacy given to collective bargaining is evident from the instances referred to above: if a
collective agreement regulates industrial action, the procedure prescribed by that agreement takes
precedence over the statutory procedures. Here, as elsewhere in the LRA, the statutory provisions
can be regarded as a default option which becomes operative when the parties have not themselves
regulated an aspect of their relationship by way of a collective agreement.

15.6 Consequences of a strike (s 67)

If the procedures required by the LRA have been followed in calling for a strike, the strike is a
“protected strike”.

• Employees may not be dismissed for striking.

• Involvement in a protected strike does not constitute a delict or a breach
of contract (except if an act is an offence).
• The employer is not obliged to remunerate strikers, unless remu-neration
includes payment in kind (accommodation and food) and the workers
request such payment.
• Employees may be dismissed for misconduct or because of the employer’s
operational requirements during a strike.
• Civil legal proceedings may not be instituted against a person for his
involvement in a protected strike (except if the conduct constitutes an
offence).
• Failure by a union to conduct a ballot (if so required in its constitu-tion)
may not give rise to litigation which will affect the legality or protection of
a strike.
PROTECTED • Some limitations apply in respect of the employer’s ability to employ
replacement workers (scab labour):
STRIKES
Strikes and lock-outs 303

– in the case of a protected strike in an undertaking the whole or part

of which has been designated a maintenance service an employer
may not employ replacement labour to continue or maintain
production (s 76(1)(a));
– employers who embark on an offensive lockout (i.e. a lockout that is
not in response to a strike) may not employ replacement labour to do
the work of the locked-out employees irrespective of whether the
lockout is protected or unprotected
(s 76(1)(b));
– dismissing an employee for refusing to do the work of a co-employee
who is participating in a protected strike or who has been locked out
is automatically unfair (s 187(1)(b)).

• The Labour Court may interdict the strike.

• The Labour Court may award just and equitable compensation for any
loss attributable to the strike, having regard to a number of
considerations (s 68(1)(b)):
– whether attempts were made to comply with the strike laws and
the extent of those attempts;
– whether the strike or lockout was premeditated;
– whether the strike or lockout was in response to unjustified

UNPROTECTED conduct by another party to the dispute;

OR – whether there was compliance with a Labour Court order or
PROHIBITED interdict restraining any person from participating in industrial
action;
STRIKES
– the interests of orderly collective bargaining;
– the duration of the strike or lockout;
– the financial position of the employer, trade union or employees.
• Involvement in an unprotected or prohibited strike may consti-tute a
fair reason for dismissal, provided that a fair procedure is followed.
• In the case of a prohibited or unprotected strike the Labour Court has
exclusive jurisdiction.

In SA Transport and Allied Workers Union v Garvis & Others [2011] 4 All SA 475 (SCA) the Supreme
Court of Appeal held that section 11 of the Regulation of Gatherings Act 205 of 1993 creates a
statutory liability on the part of a trade union under whose auspices a gathering or demonstration
(protest march) is held. Should the gathering degenerate into a riot causing damage to others, the
union will be held liable for riot damages, unless it can prove that the act or omission complained
of did not fall within the objectives of the gathering, that it was not reasonably foreseeable and that
the union had taken all reasonable steps to prevent the act or omission.

15.7 Other forms of industrial action

The LRA of 1995 specifically provides for secondary strikes, picketing and socio-economic protest action.

15.7.1 Secondary strikes (s 66)

304 A Practical Guide to Labour Law

Sometimes employees wish to strike in solidarity with and in support of employees working for
another employer, thereby strengthening the hand of the latter group of employees. Such a
“support strike” is referred to as a “secondary strike” and hence the associated terms “secondary
strikers” and “secondary employer”. To distinguish this type of action from what is ordinarily
understood by the term “strike”, we refer in this context to the employees who originally embarked
on strike action against their employer as the “primary strikers” and correspondingly use the terms
“primary strike” and “primary employer”.
The distinguishing feature is that, in the case of the secondary strike, the strikers do not have a
dispute with their own employer. Their industrial action is not aimed at forcing concessions from
their own employer; it is to make life more difficult for the primary employer. In this situation one
may feel justifiably sympathetic towards the secondary employer, hence the legislature deemed it
necessary to limit the scope of protected secondary strikes.
The LRA of 1995 defines a secondary strike as “a strike, or conduct in contemplation or
furtherance of a strike, that is in support of a strike by other employees against their employer but
does not include a strike in pursuit of a demand and referred to a council if the striking employees,
employed within the registered scope of that council, have a material interest in that demand” (s
66(1)).
From this definition it appears that a secondary or sympathy strike must firstly conform with the
definition of a strike and, secondly, that should employees embark on industrial action in support of
the employees of another employer who are already on strike, such a strike will be regarded as a
primary strike (and not a secondary strike) if two conditions are met: (a) both employers fall within
the registered scope of the same council; and (b) the “secondary” strikers have a material interest
in the demand that have been referred to that council by the parties involved in the primary strike.
A secondary strike will qualify as a protected strike and secondary strikers
may not be dismissed provided that:
• the primary strike is a protected strike;
• the secondary strikers gave their own employer at least 7 days’
written notice (14 days if the strike is over dismissals for opera-

PROTECTED tional reasons) prior to the commencement of the secondary strike;

SECONDARY and
STRIKES • the harm caused to the secondary employer is reasonable in relation
to the possible effect that the secondary strike will have on the
business of the primary employer. One could call this a sort of
“proportionality test”: the nature and extent of the secondary
industrial action should not be more harmful to the secondary
employer than what is required to make an effective impact on the
primary employer’s business.
A secondary employer may apply to the Labour Court for an interdict limiting or prohibiting the
secondary strike on the basis that the nature and extent of the secondary strike will cause
disproportionate harm to its business in relation to the likely effect the secondary strike will have
on the primary employer. Notice of 48 hours to the union is required before such an application is
brought to Court or, where the union has given ten days’ notice of a proposed strike, then five days’
notice is required. If, for example, the secondary strike takes the form of a full-blown work stoppage,
the Labour Court may find that this action damages the secondary employer more than is necessary
for the damaging impact that can be made on the primary employer by, say, a limited picket staged
by the secondary strikers outside the premises of the primary employer. The trade union may
request an urgent investigation by the CCMA to determine whether the employer’s claim is justified
and the Labour Court may refuse to grant the interdict before considering the outcome of such an
investigation.
Strikes and lock-outs 305

15.7.2 Picketing (s 69)

A picket may be defined as a public expression by employees of their grievances in order to make
the grievances known to the general public and other relevant constituencies and to elicit support
for their cause. It typically involves some form of public protest directed at the employer and in close
vicinity of or on the employer’s premises to dissuade the general public and suppliers from normal
business dealings with the targeted employer and to persuade other employees to stop working and
to join the picket.
The right to picket is a protected fundamental right in terms of the Constitution and is regulated in
section 69 of the LRA.
Picketing qualifies as a form of protected industrial action, in other words the picketers may not be
dismissed, provided that the statutory requirements have been complied with.
Workers who picket enjoy protection, provided that:
• they are members of a registered trade union;
• the trade union has authorised the picket;
• the picket amounts to a peaceful demonstration;
• the picket is in support of a protected strike or in opposition
PROTECTED
to any lockout;
PICKETING
• the picket takes place in a public place outside the employer’s
premises or, with the employer’s permission (which may not be
unreasonably withheld), inside the employer’s premises;
• the agreed-upon picketing rules (or, in the absence of such an agreement, the picketing rules
established by the CCMA)
are followed.

When a picket is planned the employer and the union would normally negotiate and conclude a
collective agreement to regulate the picket. They would typically include in such an agreement the
place and times for the picket.
The amendments to the LRA that took effect on 1 January 2019 make it compulsory to have
picketing rules in place. In terms of the amended section 69 no picket may take place unless the
employer and the union have concluded a collective agreement to establish picketing rules or, in the
absence of such an agreement, the conciliating commissioner has established rules and issued them
together with the certificate of non-resolution (s 69(6A) & (6C)).
The conventional scenario is that a union refers a dispute of interest for conciliation with the
intention to strike if the dispute is not resolved. Prior to the amendments the dispute would have
been conciliated and if not resolved, a certificate would have been issued, the union would have
given notice and the strike followed. Now the disputing parties are obliged to conclude an
agreement on picketing rules, either before or at the time of the referral of the dispute or, in the
absence of such an agreement, the commissioner must during conciliation endeavour to secure an
agreement between the parties or determine picketing rules. In determining picketing rules, the
commissioner must have regard to the
Code of Good Practice.2
In two instances a union may bring an urgent application for picketing rules: if the dispute
concerns the unilateral amendment of employment conditions and the employer has failed to
restore the status quo within 48 hours and where the employer gives notice or commences with an
unprotected lockout (s 69(6B)).
Disputes concerning pickets are resolved by way of CCMA conciliation and Labour Court
adjudication. Any person who alleges that the right to picket is being undermined, that a collective
agreement on picketing rules has been breached or that the rules determined by the conciliator
306 A Practical Guide to Labour Law

have been breached may refer a dispute to the CCMA (not a bargaining council) for conciliation. If
the dispute remains unresolved it may be referred to the Labour Court (s 69(8)–(11)). The Labour
Court may order compliance with the picketing rules, vary the rules or suspend the picket (s 69(12)).

15.7.3 Protest action to promote or defend socio-economic interests (s 77)

What the LRA of 1995 refers to as “protest action” was in the past known as mass “stayaways”, for
example, stay-aways called by COSATU to protest against amendments to the LRA.
________________________

2 The first “Code of Good Practice on Picketing” was issued in 1998 (GN 675 of 15 May 1998, in GG 18887). This Code
was replaced by the “Code of Good Practice: Collective Bargaining, Industrial Action and Picketing”, R 1396, GG
42121 of 19 December 2018 and the Picketing Regulations, GNR.1393 of 19 December 2018, GG No. 42121.
What distinguishes permissible from impermissible protest action is the purpose for which
employees embark on the action. The pursuit of purely political purposes will not constitute protest
action as contemplated by section 77 of the LRA. The protest action must be aimed at socio-
economic issues and interest.
The LRA defines protest action as the “partial or complete concerted refusal to work, or the
retardation or obstruction of work, for the purpose of promoting or defending the socio-economic
interests of workers, but not for a purpose referred to in the definition of strike” (s 213). Thus, the
purpose of protest action must be limited to the promotion or defence of the socio-economic
interest of employees. It does not include action aimed at remedying a grievance or resolving a
dispute about a matter of mutual interest between an employer and employees.
Central to this definition is the concept “socio-economic” interests, which the LRA does not
define. The connection between the reason for the protest action and the employees’ socio-
economic interest will presumably have to be reasonably clear and obvious. The more overtly
political the aims of the action are, the greater will be the presumption that the action is
impermissible and vice versa.
For employees to be protected against dismissal the following
requirements have to be met:
• employees must not be engaged in essential or maintenance
services;
• the protest action must be called or authorised by a regis-tered
trade union or federation;
PROTECTED • NEDLAC must be given notice of the intention to embark on
PROTEST protest action, including the reasons for and nature of the action;
ACTION • the matter giving rise to the protest action must have been
considered by NEDLAC or some other appropriate forum;
• the union or federation must give NEDLAC at least 14 days’ notice
before it proceeds with the action; and
• the employees must not act in breach or contempt of an order of
the Labour Court relating to the protest action.

The Labour Court has exclusive jurisdiction to interdict unprotected protest action or grant a
declaratory order in respect of such action. .

15.8 Determining the nature and status of industrial action

Strikes and lock-outs 307

It has already been mentioned that industrial action can be classified into strikes, secondary strikes,
picketing and protest action. After having ascertained that the industrial action falls within the ambit
of one of these categories, it still remains to be determined whether the conduct of the employees
conforms with the procedural requirements of the LRA. Therefore, in order to determine whether
employees enjoy protection against dismissal, one first has to determine whether the nature of their
conduct was such that it can be brought under one of the modalities of industrial action. Once this
has been established, one has to ascertain whether there is compliance with the procedural
requirements laid down by the LRA. For example, industrial action which does not amount to a
“strike”, as defined, cannot be a “protected strike” and hence employees participating in such action
will not be protected. Even if their conduct constitutes a “strike”, as defined, one still has to
determine whether it qualifies as a “protected strike” before it may be concluded that the
employees are protected. This two-stage enquiry may be illustrated as follows:
STAGE 1 STAGE 2
Determine nature of action
Does the action fall within the Status
definition of a strike, secondary Did employees com- Yes – protected
strike, picket or protest action? If yes ply with prescribed No – unprotected procedures?

Determine with reference to the

• nature of the action
• aims of the action Only if the answers to the questions in both stages of the
enquiry are in the affirmative will the employees enjoy
protection. The following guidelines are provided to assist in the determination of the action:
Conduct Aims of conduct

STRIKE Employees’ action is directed at To resolve disputes about matters of

the disruption of their own mutual interest between employer and
employer’s operations. employees or to remedy a grievance.

SECONDARY Employees’ action is directed at To exert pressure on the primary

STRIKE the disruption of another employer (whose employees are on a
employer’s operations. protected strike).
PICKETING Peaceful public demonstration To make grievances publicly known, to
by employees against their own elicit external support and to urge other
employer in support of a workers to join the picket line.
protected strike or in opposition
of a lockout.
PROTEST ACTION It is not aimed at any particular To bring pressure to bear upon a
employer, but more often than nonemployer agency (typically a
not against government in governmental authority) to do or not to
pursuit of socio-economic do something that will impact on the
interests. socio-economic interests of employees.
Once it has been established that the action is a strike, it must be determined whether the
prescribed procedures have been complied with. Only if this has been done are the employees
protected against dismissal.
308 A Practical Guide to Labour Law

This does not mean that an employer may dismiss unprotected strikers with impunity. The
employer must still act in accordance with the precepts of fairness as enunciated in the LRA. When
employees embark on unprotected action the employer is required to contact and meet with the
union. The purpose of this meeting is to convince the union to intervene and get the employees to
return to work. If the union is unsuccessful in getting the workers to return, the employer must issue
an ultimatum. The ultimatum must include a date and time for the employees to resume duty and
give a clear indication of the consequences should they fail to return at the specified time, such as
that disciplinary action will be instituted which may lead to dismissal. It is important that the
ultimatum reach all the strikers. A reasonable time must be allowed for workers to reflect on the
ultimatum and to return to work. If they do not resume duties it is advisable that the employer
repeat the ultimatum, obviously with a new date and time for their return. If the employees persist
in their strike the employer can issue letters of suspension and notices to attend a disciplinary
hearing. A hearing must be conducted – it can be a collective hearing or individual hearings – and,
if the circumstances warrant dismissal, the employees may be dismissed. It is interesting to note
that, although section 68 permits the dismissal of unprotected strikers, they cannot be dismissed if
they heed the ultimatum and return to work, although other disciplinary action may still be possible.
Prominent judgments in this regard include Modise & Others v Steve’s Spar Blackheath [2002] 5
BLLR 496 (LAC) and NUM & Others v Billard Contractors CC & Another (2006) 27 ILJ 1686 (LC).
It is important to have regard to item 6 of the Code of Good Practice: Dismissal (Schedule 8):
6. Dismissals and industrial action
(1) Participation in a strike that does not comply with the provisions of chapter IV is misconduct.
However, like any other act of misconduct, it does not always deserve dismissal. The substantive fairness
of dismissal in these circumstances must be determined in the light of the facts of the case, including –
(a) the seriousness of the contravention of this Act;
(b) attempts made to comply with this Act; and
(c) whether or not the strike was in response to unjustified conduct by the employer.
(2) Prior to dismissal the employer should, at the earliest opportunity, contact a trade union official to
discuss the course of action it intends to adopt. The employer should issue an ultimatum in clear and
unambiguous terms that should state what is required of the employees and what sanction will be
imposed if they do not comply with the ultimatum. The employees should be allowed sufficient time to
reflect on the ultimatum and respond to it, either by complying with it or rejecting it. If the employer
cannot reasonably be expected to extend these steps to the employees in question, the employer may
dispense with them.

15.9 Lock-outs

A lock-out is the employer’s economic weapon during the collective bargaining process to compel
employees to accept its offer or proposal.
Section 213 of the LRA defines a lock-out as follows:
lock-out means the exclusion by an employer of employees from the employer’s workplace, for the
purpose of compelling the employees to accept a demand in respect of any matter of mutual interest
between employer and employee, whether or not the employer breaches those employees’ contracts of
employment in the course of or for the purpose of that exclusion.
A lock-out is therefore the exclusion of employees from the workplace. A lock-out can take no other
form, as was the case under the 1956 Act. Under the 1956 Act it was, for example, possible for an
employer to discontinue its business, totally or partially, or to dismiss employees (the so-called
dismissal lock-out) in an attempt to compel them to accept the employer’s proposals. These other
forms of lock-outs have been outlawed in the 1995 LRA and indeed, a dismissal lock-out is declared
an automatically unfair dismissal in section 187 of the LRA of 1995.
Strikes and lock-outs 309

The definition of a lock-out implies two elements: (a) an act by the employer (the exclusion of
employees); (b) with the specific purpose of persuading the employees to accept the proposal of
the employer. In its simplest form a lock-out is typically where the employer puts a final proposal of
a wage increase on the table at the point when wage negotiations deadlock and tells the employees
and their union that the employees will be excluded from the workplace until they accept that final
proposal. In such a case the employer will close all entrances and not allow any employee to enter
the workplace or to perform any work.
A lock-out can be an offensive lock-out or a defensive lock-out. An offensive lock-out is industrial
action taken by the employer before the union and its members embark on some action. A defensive
lock-out is one in response to the union’s strike action.
If an offensive lock-out conforms with the procedural requirements contained in section 64 of the
LRA it will withstand any challenge in the Labour Court. In other words, the employer who intends to
embark on lock-out action must refer the dispute to the CCMA or a bargaining council, conciliation must
be conducted, a certificate of non-resolution must be issued and the employer must give notice (48
hours or seven days) of the lock-out – similar to a union embarking on protected strike action. If an
employer locks out employees in response to a protected strike it is not necessary for the employer to
follow the section 64 procedure because the union has already followed that procedure for its strike
action. It is merely necessary for the employer to give notice (48 hours or seven days) before the lock-
out commences.
The consequences of a protected and an unprotected lock-out respectively are similar to the
consequences that follow upon a protected and unprotected strike (ss 64, 65, 67 & 68).

Questions

Question 1
List the elements of
1.1 a strike; (4) 1.2 a lock-out. (2)

Question 2
Discuss the requirements for a protected strike in terms of section 64(1) of the LRA. (10)

Question 3
Discuss the legal consequences of protected and unprotected strikes respectively in terms of sections 67
and 68 of the Labour Relations Act. (20)

Question 4
Discuss the circumstances under which an employer may lawfully dismiss employees who are
participating in a protected strike and the manner in which these dismissals have to be handled.
(15)
Hint: See s 67(5) of the LRA and item 6 of Schedule 8 (the Code of Good Practice: Dismissal).

Question 5
ZYX CC is a small fresh produce retailer. It manages to compete with the large retail stores by staying
open seven days a week from 07:00 to 20:00. Although ZYX and its employees have not formally
agreed that overtime should be worked, all the employees have worked overtime on a regular basis.
During recent wage negotiations ZYX was informed by all its employees that they were no longer
prepared to work overtime unless they were given a 12% increase. They indeed stopped working
310 A Practical Guide to Labour Law

overtime, as a result of which ZYX was rapidly losing business and no longer able to compete with
the chain stores. ZYX wants to know from you if it can dismiss its employees for striking. (10)
Hint: This ground for dismissal amounts to termination for operational requirements of the employer.

Question 6
6.1 Is it possible for the members of an unregistered trade union to go on a protected strike? Explain.
(4)
6.2 Can employees who do not belong to a trade union go on a protected strike?
Explain. (4)
Question 7
Suppose the employees of ABC Company go out on strike, demanding that the local authority should
institute a public transport service in the area where they live as they find it difficult to get to and
from work.
7.1 Does this constitute a strike? (5)
7.2 Suppose that, instead of directing their demand at the local authority, the strikers demand that
their employer should enter into negotiations with the local authority about a public
transport service. Would this make a difference to your answer? (5)

Question 8
The employees of DAR Company embark on a protected strike in pursuit of their wage demands.
The employer counters the strike by (a) offering bonuses to non-striking employees to work
additional hours and to perform the tasks of the striking employees and (b) adopting a policy of
withholding annual bonuses from striking employees at the rate of 5% per day of strike action. Are
these legitimate employer tactics that will survive a challenge in the Labour Court? (10)
Hint: See s 5(3) of the LRA; NUM & Others v Namakwa Sands & Others [2008] 7 BLLR 675 (LC);
South African Freight & Dock Workers Union v Safcor Freight (Pty) Ltd (2011) 32 ILJ 415 (LC).

Question 9
The refuse removal services of a local authority that has not been designated an essential service
by the ESC go on strike in accordance with the LRA. After three weeks typhoid fever breaks out in
the area. Medical authorities are of the opinion that this alarming development is a direct
consequence of the fact that refuse is not being removed and processed. Given this situation,
answer the following questions:
9.1 May the local authority apply to the ESC to have the refuse removal service designated an essential
service and what effect would this have on the strike in progress? (5)
9.2 May the local authority employ replacement labour to do the work of the strikers? (3)
9.3 May the local authority dismiss non-striking employees from the roads department who refuse
to assist with the removal of the refuse which has accumulated during the strike? (3)
9.4 Assuming that there was no strike and further assuming that the local authority applies to the
ESC to have the refuse removal designated as an essential service, explain the process that
the ESC must follow in designating this service as an essential service. (6)

Question 10
Employees and their employer deadlock on the employer’s final offer during wage negotiations. The
union refers the dispute to the appropriate bargaining council. Conciliation fails to resolve the
dispute and a certificate of non-resolution is issued. The employer then gives the trade union 48
hours’ notice of its intention to dismiss those employees who do not accept the employer’s final
offer. True to its word the employer dismisses the recalcitrant employees after the expiry of the
Strikes and lock-outs 311

deadline set for acceptance of the final offer. Discuss the legal position of the dismissed employees
and the remedies, if any, at their disposal. (15)
Hint: See s 187(1)(c) of the LRA; NUMSA & Others v Zeuna-Starker Bop (Pty) Ltd [2003] 1 BLLR 72
(LC); Pedzinski v Andisa Securities (Pty) Ltd [2006] 2 BLLR 184 (LC); NUMSA & Others v Aveng
Trident Steel & Others [2018] 5 BLLR 500 (LC).

Question 11
The ABC group of companies is involved in the entertainment and leisure industry. One of its
companies, ABC Wizardry, does business as a chain of entertainment arcades in Johannesburg
where mostly children and teenagers come to match their skills against video games and other
devices of electronic wizardry. It employs some 200 weekly paid employees, 80 of whom are
members of the Mario Workers Union. The trade union and the employer fail to resolve a wage
dispute and consequently the trade union calls a strike in compliance with the LRA. The strike of the
employees at ABC Wizardry is not successful as the company manages to operate by employing
school children to do the work of the strikers. The trade union, therefore, considers further
strategies of pressurising the company. One of these is to get the employees of DEF Company, a
subsidiary company, to go on strike. The subsidiary company provides a maintenance service to the
ABC Wizardry. As maintenance is required daily at the arcades the trade union feels that this
strategy will cause severe disruption of ABC Wizardry’s operations and force the company to reach
an agreement. The workers of DEF Company duly embark on a secondary strike, causing
considerable harm to their own employer (the secondary employer). DEF Company, who
experienced financial difficulties even before the secondary strike, is in a real danger of financial
ruin because of the strike and approaches you for advice. Write a legal opinion in which you set out
the legal position, the arguments that may be used by the employer in support of any application
for relief that he may seek, as well as the type of arguments the trade union may use in opposing
the application. (20)
Hint: See CWIU & Others v Plascon Decorative (Inland) (Pty) Ltd [1998] 12 BLLR 1191 (LAC);
Samancor Ltd v NUMSA & Others [1999] 11 BLLR 1202 (LC); Billiton Aluminium SA Ltd v NUMSA
& Others [2002] 1 BLLR 38 (LC); FAWU v Earlybird Farm (Pty) Ltd [2003] 1 BLLR 20

(LC); Equity Aviation Services (Pty) Ltd v SATAWU & Others [2009] 10 BLLR 933 (LAC).

Question 12
There was a strike at a business dealing in perishable foodstuffs. The parties failed to reach a wage
agreement as the employer was unable to meet the wage demands. The employees started to strike
without notice to the employer and after they had unloaded the frozen foodstuffs from the cold
storage for the day’s deliveries, thereby intending to cause the employer the maximum financial
harm. The employer twice issued ultimatums for the employees to return to work. The employer
contacted the union, but the union official refused to intervene. About two hours after the
commencement of the strike the strikers were dismissed. During the course of the day the dismissed
strikers jeeringly rejected numerous offers to negotiate. They also scoffed at suggestions that they
should attend disciplinary hearings to consider their conduct. Throughout the day the employer was
willing to reinstate the dismissed strikers. The next day the union demanded that all the dismissed
strikers be reinstated unconditionally. The employer refused to do so, but said that all employees
who applied for jobs would be re-employed. Those who availed themselves of this offer were in fact
re-employed. Those who declined the offer took the employer to the Labour Court. At the same
time the employer instituted an action in the Labour Court against the trade union, claiming
compensation for the loss suffered by the employer due to the action of the strikers. Answer the
following questions. In your answers distinguish between the situation where it is a protected strike
and an unprotected strike: 12.1 Will the employees be successful in their court application for
reinstatement? (8) 12.2 Will the employer be successful in his claim for damages? (8)
312 A Practical Guide to Labour Law

Hint: See ss 67 & 68 (especially s 68(1)(b)) of the LRA; Swissport (SA) (Pty) Ltd v SA Transport & Allied
Workers Union & Others (2011) 32 ILJ 1256 (LC).
Question 13
During the course of a protected strike some strikers vandalise company property. A shop steward
also issues a press release in which he accuses the CEO of the company of embezzling the
employees’ provident fund contributions. As a consequence of the strike the company loses a
lucrative contract. The CEO approaches you for advice on how to go about the following:
13.1 suing the union and/or the workers for damage to company property, economic harm and
defamation; (15)
Hint: See SATAWU & Another v Garvas & Others (City of Cape Town as Intervening Party
and Freedom of Expression Institute as amicus curiae) [2012] 10 BLLR 959 (CC).
13.2 dismissing without a hearing those employees who damaged company property (these individuals
are easily identifiable from a video recording made during the strike). (5)

Question 14
Pro Roof Cape (Pty) Ltd underpaid its employees and did not pay annual leave bonuses because of
financial difficulties. When the night-shift employees found out that they were not going to be paid
their bonuses, they refused to continue working. When the day-shift employees arrived for duty,
they joined their colleagues in refusing to work until the bonuses were paid. The employer issued
an ultimatum for them to return to work. When the employees persisted in their refusal to work
they were issued with notices terminating their employment.
14.1 Does the employees’ refusal to work constitute a strike and, if it does, is the strike protected or
unprotected? (5)
14.2 Can the employer dismiss the employees in the circumstances? (2)
14.3 Assume that the employees can be dismissed. Would you consider the manner in which the
employer dismissed them procedurally fair? Explain. (10)
Hint: See item 6 of the Code of Good Practice; Modise & Others v Steve’s Spar Blackheath [2002] 5
BLLR 496 (LAC); NUM & Others v Billard Contractors CC & Another (2006) 27 ILJ 1686 (LC).

Question 15
Peter, Sam and Lebo were among a number of employees that Nicholas, the employer, dismissed
for misconduct after a protected strike, characterised by intimidation and widespread violence
including shooting and the murder of a non-striking employee. The trade union the employees
belonged to did nothing to intervene to restore the peace. Nicholas claimed that the employees had
breached the picketing rules. A disciplinary hearing was subsequently convened outside Nicholas’s
premises. Only a handful of employees attended the hearing. They were dismissed. The employees
not in attendance were dismissed in their absence.
15.1 Assume that when the dispute was initially referred to conciliation (before the strike
commenced) Nicholas and the union had not concluded an agreement on picketing rules.
Discuss the requirements pertaining to picketing rules. (8)
Hint: See s 69 of the LRA.
15.2 Assume picketing rules were in place at the time the strike commenced. What can Nicholas do to
have his allegation of a breach of the picketing rules be determined? (4)
15.3 Peter, Sam and Lebo believe that their dismissals were substantively and procedurally unfair.
They claim that the strike was peaceful and submit that they did not attend the disciplinary
hearing because they could not afford transport to venue. Decide whether their dismissals
were fair. (10)
Hint: See Kunene & Others v Dunlop Belting Products (Pty) Ltd (2011) 20 CCMA 9.4.2.
Strikes and lock-outs 313

Appendix 1

GNR.1397 of 19 December 2018: Guidelines issued in terms of section 95 (9)

(Government Gazette No. 42121)

GUIDELINES ON BALLOTING FOR STRIKES OR LOCKOUTS ISSUED IN TERMS OF

SECTION 95 (9) OF THE LRA
1. These guidelines are published in terms of section 95 (9) of the Labour Relations Act (Act 6 of 1995)
(“LRA”).
2. In terms of section 95 (5) (q) of the LRA, the constitution of every trade union or employers’ organisation
must provide that trade union or employers’ organisation, before calling a strike or lock-out, must
conduct a ballot of members in respect of whom it intends to call the strike or lock-out.
3. Section 95 (5) (p) provides that a member of a trade union or employers’ organisation may not be
disciplined or have their membership terminated for a failure or refusal to participate in a strike or lock-
out if no ballot was held or, if a ballot was held, a majority of members did not vote in favour of a strike
or lock-out.
4. Section 95 (9) provides that a ballot includes any system of voting by the members of a trade union or
employers’ organisation that is recorded and is in secret.
5. A trade union that has obtained organisational rights in terms of section 12 of the LRA is entitled to
conduct a ballot of its members at the employers’ premises, subject to such conditions as time and place
that are reasonable and necessary to safe guard life or property or to prevent undue disruption of work
in terms of section 19 of the LRA. Trade unions that are parties to bargaining councils in respect of all
workplaces within the registered scope of the Council have this right, regardless of their level of
representativeness within a particular workplace.
6. A trade union that does not have the right of access to a workplace in terms of section 12 of the LRA or
a collective agreement may nevertheless request an employer to permit a ballot on its premises.
7. Unless stipulated in a collective agreement, there is no requirement for a trade union to obtain the
consent of the employer to hold a ballot.
8. A ballot must be conducted in accordance with the provisions of this Act and the constitution of the
trade union or employers’ organisation.
9. The following are indicative of the procedures that should be followed when conducting a secret ballot
–
Notice
9.1. Reasonable notice must be given to members of the holding of a ballot. Notice may be given to
employees by direct communication, including emails or SMSes, or by the display of notices at the
workplace and at trade union offices. While there is no fixed standard, a period of three days would
generally be considered to be reasonable notice.
9.2. The notice must specify the time and the place of the ballot.
Ballot papers
9.3. The question that is the subject of the ballot must be clearly phrased, and must be consistent with
the terms of the dispute referral.
9.4. Ballot papers must be prepared in accordance with any applicable union or employer organisation’s
Constitutional provisions.
9.5. Ballots must not contain any information that would make it possible to identify voters.
Voter’s roll
9.6. A ballot must be conducted in terms of a voters’ roll of those members who are in good standing in
terms of the union’s constitution that the union proposes to call on strike.
314 A Practical Guide to Labour Law

The voters’ roll may be derived from the union’s membership records or from the employer’s
records. The voters’ roll identifies which members are entitled to vote and must be marked to
ensure that members vote once only.
9.7. In the case of an electronic ballot conducted by email or SMS, the voters’ roll must reflect the email
address or mobile phone number of the members concerned and must be scrutinized and
conducted by the CCMA or any independent organisations. The CCMA or any independent
organisation must keep the records of balloting for three months and thereafter submit to the trade
union for record keeping.
9.8. In the case of a postal ballot, the voters’ roll must reflect the postal addresses of the members and
the CCMA or any independent organisation must keep the postal ballots for three months and
thereafter submit to the trade union for record keeping
9.9. A trade union may elect to ballot members outside of the bargaining unit in respect of which it
proposes to call a strike or to ballot non-members within the bargaining unit. However, those ballots
must be conducted and recorded separately from the ballot of members in respect of whom the
trade union proposes to call on strike.
Scrutineers and observers
9.10. A union may employ independent scrutineers to conduct or observe the ballot. However, there is
no obligation to do so, unless provided for in a collective agreement or the trade union’s
constitution. In all the ballots there will be a scrutineer.
9.11. There is no requirement on a trade union to permit employer observers at a ballot, unless s
provided for in a recognition or other collective agreement.
(Editorial Note: Wording as per original Government Gazette.)

Balloting and counting

9.12. The union must provide ballot boxes for a secret ballot. Members listed on the voters’ roll must
receive a ballot paper and be able to mark it and place it in an unmarked ballot box without their
vote being observed by any other person.
9.13. Ballots may be counted at the voting place, at a union office or at another place determined by the
Independent Scrutineer. Where the ballot boxes are transported to another place, they must be
sealed.
Records of ballot
9.14. Records of voting must be retained for a period of three years. These records include the voters’
rolls, ballots in sealed ballot boxes or other containers and any documents used to calculate the
outcome of the ballot.
9.15. In the case of electronic ballots, appropriate records must be retained.
Transitional provisions
10. Section 19 (1) of the Labour Relations Amendment Act, 2018 requires the Registrar of Labour Relations,
within 180 days of the Act coming into effect, to –
10.1. consult with the national office bearers of trade unions and employers’ organisations which have
constitutions that do not provide for the conducting of a secret ballot before calling a strike or
lockout;
10.2. issue a directive to those trade unions and employers’ organisations as to the period within which
their constitutions must be amended to ensure compliance with the requirement for conducting a
secret ballot.
11. In terms of section 19 (2) of the Labour Relations Amendment Act, 2018, until such time as a trade union
or employers’ organisation complies with the directive to change its constitution, it must conduct a
secret ballot of its members before calling a strike or lockout, as the case may be.
12. A model clause to achieve compliance with the requirement to hold a secret ballot before engaging in a
strike or lockout is attached as Annexure A.
ANNEXURE ONE
Strikes and lock-outs 315

DRAFT CLAUSE FOR TRADE UNION/EMPLOYERS’ ORGANISATION CONSTITUTIONS

ABOUT SECRET BALLOTS IN RESPECT OF STRIKES OR LOCKOUTS
Ballots about a strike/lockout
1 Despite any other provision in this Constitution –
1.1 a strike/lockout may only be called in terms of this Constitution after a secret ballot has been
conducted of those members in respect of whom the strike/lockout is called;
1.2 a member shall not be disciplined or have their membership terminated for failure or refusal
to participate in a strike/lockout if –
1.2.1 a secret ballot was not held about the strike/lockout;
1.2.2 a secret ballot was held, but a majority of the members who voted did not vote
in favour of the strike/lockout.
2 The documentary or electronic record of a ballot about a strike/lockout must be retained for three years
from the date of the ballot.
316 A Practical Guide to Labour Law

Appendix 2

GNR.1393 of 19 December 2018: Picketing Regulations

(Government Gazette No. 42121)

ARRANGEMENT OF REGULATIONS

1. Definitions
2. Agreement on Picketing Rules
3 Determining Picketing Rules
4. Binding Nature of the Picketing Rules
5. Distribution of Picketing Rules

DEFAULT PICKETING RULES

Established in terms of section 69 (5) of the Labour Relations Act 66 of 1995 (“the LRA”)

Notes
1. Legal Context
2. Purpose of The Picket
3. Circumstances of Workplace
4. Location of Picket
5. Details of Picket
6. Nature And Conduct of Picket
7. Control of Pickets
8. Employer Conduct
9. Picketing on Employer’s Premises
10. Dispute Resolution
11. Police Involvement
12. Termination
Annexure A
Annexure B
1. Definitions.—In these regulations, unless the context indicates otherwise –
Any word or expression to which a meaning has been assigned in the Labour Relations Act, 1995 (Act 66
of 1995) bears that meaning;
“bargaining council” means the bargaining council with the jurisdiction over the parties to the dispute;
“certificate of non-resolution” means the certificate contemplated in section 64 (1) (a) (i) of the Act;
“Code” means any code of good practice published in terms of section 203 of the Act dealing with
picketing;
“collective agreement” means any collective agreement that –
(i) regulates picketing; and
(ii) is binding on the trade union or employees party to the dispute;
“conciliator” means in respect of a dispute that may give rise to a protected strike or lockout and
referred to –
(i) the Commission, a commissioner appointed by it to conciliate the dispute; or
(ii) a bargaining council, a person appointed by it to conciliate the dispute;
Strikes and lock-outs 317

“A dispute” means a dispute that may give rise to a protected strike or lockout and which has
been referred to the Commission or a bargaining council in accordance with section 64 (1) (a); “the Act”
means the Labour Relations Act, 1995 (Act 66 of 1995).
2. Agreement on picketing rules.—(1) The Commission or bargaining council must notify the
parties to a dispute that, if the dispute is not resolved, a trade union may not engage in a picket unless –
(a) there is a collective agreement regulating picketing;
(b) an agreement on picketing rules is reached in the conciliation proceedings; or
(c) picketing rules are determined by the Commission in terms of section 69 (5) of the Act.
(2) The Commission or bargaining council must in that notice request that the trade union
submit a copy of any collective agreement regulating picketing to the conciliator.
(3) If the appointed conciliator is satisfied that there is no collective agreement that
regulates picketing, the conciliator must, before issuing a certificate of non- resolution, attempt to secure
an agreement between the parties to the dispute on picketing rules using the default picketing rules as a
basis.
3. Determining picketing rules.—(1) If there is no collective agreement and the parties to the
dispute do not agree on picketing rules, the commissioner must determine the rules in accordance with
the default picketing rules and in doing so must take account of –
(a) the particular circumstances of the workplace or other premises where it is intended that the right to
picket is to be exercised;
(b) any relevant code of good practice; and
(c) any representations made by the parties during the course of the conciliation proceedings.
(2) If the parties to the dispute fail to make representations for the purpose of determining
picketing rules or provide the conciliator with the necessary information, the conciliator may –
(a) in the case of the employer, designate the owner or senior manager of the employer as
the person appointed in terms of clause 8.1 of the default picketing rules;
(b) in the case of the trade union, not determine the picketing rules until the information
required in respect of the union convener and marshals has been submitted to the
conciliator.
(3) The conciliator must determine the picketing rules and issue them at the same time as the
certificate of non-resolution is issued to them.
4. Binding nature of the picketing rules.—A collective agreement is an agreement contemplated
in section 69 (4) and regulation 2 (3), and picketing rules determined in terms of section 69 (5) and
regulation 3.
5. Distribution of picketing rules.—(1) If there is a collective agreement or an agreement
reached in terms of section 69 (4) of the Act and regulation 2 (3), the agreement must be submitted by
the trade union to –
(a) the responsible officer appointed in terms of section 2 (4) of the Regulation of Gatherings Act, 1993 (Act
205 of 1993);
(b) the member of the South African Police Services contemplated in terms of section
2 (2) of that Act.
(2) If the conciliator has determined picketing rules in terms of section 69 (5) and
regulation 3, the conciliator must in addition to the persons referred to in subregulation (1) give copies of
the picketing rules to the parties to the dispute.
(3) The employer party to the dispute must distribute copies of the picketing rules to –
(a) its appointed representative and the managers on duty during the strike or lockout;
(b) its security personnel or any private security company contracted to protect the employer’s property
and the safety of person on the property; and (c) place copies of the rules on the notice boards to which
employees have access.
318 A Practical Guide to Labour Law

(4) The trade union party to the dispute must –

(a) distribute copies of the picketing rules to its convenors and marshals; and
(b) take the necessary steps to ensure that the convenors, marshals and picketers understand
the rules.

DEFAULT PICKETING RULES

1 LEGAL CONTEXT
1.1 These Rules are drafted in accordance with –
1.1.1 Section 17 of the Constitution of the Republic of South Africa, 1996, which guarantees the right to picket
peacefully and unarmed;
1.1.2 Section 69 of the LRA, which regulates the right of members and supporters of a registered trade union
to picket;
1.1.3 The Code of Good Practice on Collective Bargaining, Industrial Action and
Picketing;
1.2 Where these Rules are silent, the relevant provisions of the Constitution, LRA and the Codes apply.
1.3 The meaning of terms defined in the LRA apply to the use of the terms in these Rules unless the context
indicates otherwise.

2 PURPOSE OF THE PICKET

2.1 These Rules are determined in terms of section 69 (5) of the LRA in the absence of an agreement between
the parties to the dispute on picketing rules in respect of an authorised picket –
2.1.1 in support of the protected strike commencing/having commenced* on (date)
or
2.1.2 in opposition to a lock-out by the employer commencing/having commenced* on
(date)
or
2.2 in any protected secondary strike involving employers (name and address of the workplace(s) of those
employers).

3 CIRCUMSTANCES OF WORKPLACE
In establishing these Rules, the following circumstances of the workplace or other premises where pickets
are intended have been taken into account –1
3.1 It is necessary to itemise the particular nature of the circumstances relating to the nature of employment
and the workplace that have been taken into account in formulating these rules.

4 LOCATION OF PICKET
4.1 The picket may only be held at the following places outside the employer’s workplaces –
4.1.1 (details of the place or places within which a picket may be held at the address or addresses of the
employer’s workplace or workplaces described in Annexure A).

________________________

1 See s 69 (5) (a). See also Shoprite Checkers (Pty) Ltd v CCMA & Others (2006) 27 ILJ 2681 (LC) at par. 31: “The
matrix of permissible conduct that evolves ultimately as the picketing rules is a particular permutation that
balances logistics, the nature of the business, the industrial relations history of the enterprise and the union with
the impact of the picket so that the rules are determined not too narrowly or too broadly to exacerbate industrial
conflict or obstruct the substantive resolution of the dispute.”
Strikes and lock-outs 319

4.2 The picket may be held at the following places inside the employer’s workplaces if the employer has
agreed to a picket being held in those places –
4.2.1 (details of the agreed place or places inside the employer’s premises described in Annexure A)
4.3 If the employer has not agreed to the picket being held within its premises, the Commissioner may
determine that the picket be held within the following places in the premises if the
Commissioner considers the employer’s refusal to permit a picket inside its premises to be
unreasonable –
4.3.1 (details of the place or places inside the employer’s premises described in Annexure A)
4.4 If picketing is to take place within a shopping mall, business complex or business park in which
employers share private or public premises, the Commissioner may, but only after consultation
with all interested parties, determine that the picket be held within the following places and
subject to such terms as the Commissioner considers reasonable –
4.4.1 (details of the place or places outside the mall, complex or business park described in Annexure A) and
4.4.2 (details of the place or places inside the mall, complex or business park described in Annexure A)

5 DETAILS OF PICKET
5.1 Date and duration
5.1.1 Picketing may begin at or after (time) on (date) and may continue until the settlement of the dispute,
subject to clause 5.2.
5.1.2 Picketing may take place between (times) on every working day for the duration of the strike.
5.1.3 If there is any breach of clauses 4, 5.5 or 6 of these Rules, the trade union must suspend its picket until
it has satisfied the Commissioner that it can exercise control over its picket.
5.2 Number of pickets –
5.2.1 A maximum of (...) persons may take part in the picket at any given time at each location(s) specified in
clause 4 above and set out in Annexure A.2
5.2.2 Only members of the trade union and other employees of the employer may take part in the picket.

6 NATURE AND CONDUCT OF PICKET

6.1 Picketers must at all times conduct themselves in a peaceful, unarmed and lawful manner and not
interfere with the constitutional rights of other persons.
6.2 Subject to clause 6.3, picketers may –
6.2.1 carry placards;
6.2.2 hand out pamphlets;
6.2.3 chant slogans, sing and dance;
6.2.4 be addressed by union officials; and
6.2.5 approach and peacefully seek to persuade clients and customers of the employer, members of the
public, other employees who are not on strike and replacement workers not to enter the premises
and/or to support the strike.

________________________

2 The Commissioner may set different numbers of pickets for particular locations. For example, a Commissioner may
set 10 pickets at a time outside a shopping mall or business complex but only two pickets outside the premises
of the employer in the mall or complex.
6.3 The Commissioner may limit the activities limited in clause 6.2 in respect of specific locations and
detail them in Annexure A.3
6.4 Picketers may not –
6.4.1 forcefully prevent clients and customers of the employer, members of the public,
320 A Practical Guide to Labour Law

other employees who are not on strike and replacement workers from entering or leaving the
premises of the employer;
6.4.2 commit any action which may be unlawful, such as intimidating, coercing, threatening or assaulting any
person or causing damage to any property;
6.4.3 wear masks; or
6.4.4 have any dangerous weapons or inflammable materials in their possession.
6.5 For the purposes of these Rules, dangerous weapons includes the dangerous objects listed in clause
22 (2) of the Code of Good Practice on Collective Bargaining and Industrial Action.

7 CONTROL OF PICKETS
7.1 The trade union must appoint a member or official as convenor with responsibility to oversee the picket
as well as a person to oversee the picket in the absence of the convenor.
7.2 The convenor will at all times during the picket have a copy of these Rules in his possession for purposes
of reference.
7.3 The employer will provide the convenor with the name and contact details, including mobile number, of
the person appointed to represent the employer in matters related to the picket.
7.4 The trade union will also appoint the following number of marshals to monitor the picket at each location
where it is taking place –
7.4.1 (number of marshals for each of the locations at which the picket is to take place)
7.5 The marshals will –
7.5.1 have the telephone numbers of the convenor and of the person appointed to oversee the picket in the
absence of the convenor;
7.5.2 wear armbands and/or vests to identify themselves as marshals; and
7.5.3 be present from the start to the end of each day of the picket.
7.6 The names and telephone numbers of the convenor and marshals must be set out in Annexure B.
7.7 Any change to a convenor and marshal must be sent by a text message to the persons listed in Annexure
B.

8 EMPLOYER CONDUCT
8.1 The employer must –
8.1.1 appoint a person to liaise with the convenor and marshals on its behalf to ensure compliance with this
agreement; and
8.1.2 receive communications as and when requested to do so by the union.
8.2 The employer or any person in authority at the workplace or acting on the employer’s behalf may not –
8.2.1 in any way hinder or obstruct the lawful conduct of the picket;
8.2.2 undermine any employee’s right to participate in the picket or discipline of threaten to discipline any
employee for doing so;
8.2.3 engage in or permit conduct which is provocative or may incite conflict; or
________________________

3 The Commissioner may for example limit the activity of a picket in a shopping mall or business complex to carrying
placards and handing out pamphlets.
8.2.4 carry a weapon of any kind while in contact with the pickets.
8.3 Ensure that any private security company employed by the employer complies with the requirements
relating to such companies under the Code of Good Practice on Collective Bargaining and
Industrial Action.

9 PICKETING ON EMPLOYER’S PREMISES

Strikes and lock-outs 321

9.1 If picketing is to take place on the employer’s premises, the employer must provide the trade union
with written confirmation of the health and safety rules to be observed before, during and after the
picket.
9.2 The employer must make the following facilities available before the commencement of the picket
–
9.2.1 toilet facilities to be used by the participants in the picket;
9.2.2 running water to be used by participants for drinking and hygiene purposes;
9.2.3 appropriate shelter within the designated picketing area(s); and
9.2.4 a telephone to be used by the convenor, marshals, shop stewards or other responsible union officials
for purposes of ensuring the proper conduct of the picket.
9.3 Participants in a picket on the employer’s premises shall, in addition to the requirements set out in
paragraph 7 above –
9.3.1 remain within the designated picketing area(s);
9.3.2 observe the health and safety rules and regulations applicable in the workplace;
9.3.3 refrain from causing any damage to property or allowing any damage to be caused; and
9.3.4 leave the premises and the facilities in the condition in which they found it.

10 DISPUTE RESOLUTION
10.1 Any dispute about the interpretation or application of these Rules or any alleged breach thereof
shall be dealt with in accordance with section 69 (8), (9), (10) and (11) of the LRA. This does not
affect any other right that any person may have in terms of the LRA or any other law.
10.2 It is recorded that the employer, the union and persons taking part in the picket are subject to the
protections and provisions set out in section 67 of the LRA.

11 POLICE INVOLVEMENT
11.1 These Rules do not affect the right of any person to ask the South African Police Service or any
security organisation responsible for maintaining safety and security at the workplace to investigate
or deal with any unlawful conduct or alleged unlawful conduct.
11.2 If this happens, the employer and the union undertake to cooperate with the police or security
organisation in the performance of their duties and the union undertakes to do everything possible
to ensure that its members and supporters will do the same.

12 TERMINATION
These Rules will remain in effect until the settlement of the dispute, the termination of the strike,
termination of the picket by the union or until it is terminated or reviewed by mutual agreement,
whichever may come first.
ANNEXURE A DESCRIPTION OF
PLACE OR PLACES FOR THE PICKET

Address/es
1.
2.
Physical location4
3. (number of pickets) (limitation of activity)
4. (number of pickets) (limitation of activity)

ANNEXURE B
NAMES AND DETAILS OF PARTICIPANTS Commissioner
322 A Practical Guide to Labour Law

1. (Name, email address and mobile telephone number)

Convenor
2. (Name, designation of status,5 email address and mobile telephone number)

Employer representative
3. (Name of person appointed in terms of clause 8.1, designation of status, email address and mobile
telephone number)

Marshalls
4. (Name, work number and mobile telephone number)
5. (Name, work number and mobile telephone number)
6. (Name, work number and mobile telephone number)
7. (Name, work number and mobile telephone number)
(Editorial Note: Wording as per original Government Gazette.)

________________________

4 The physical location may be described in words or drawn or both. So, for example the location may be described as
5 metres from the entrance to the employers premises on XX road and extend no more than 2 metres onto the
pavement – accompanied with a drawing to that effect.
5 Whether a trade union official, shop steward or member. If a shop steward or member, then the employee’s work
number must be included)
Appendix 3

CODE OF GOOD PRACTICE:

COLLECTIVE BARGAINING, INDUSTRIAL ACTION AND PICKETING

(Note to reader: only the relevant portions of the Code are reproduced here.)

PART D
INDUSTRIAL ACTION: STRIKES AND LOCKOUTS
16. Constitutional context.—(1) The right to engage in collective bargaining and the right
of workers and employers to take industrial action is constitutionally protected. The right to engage in
collective bargaining is a right that trade unions, employers and employers’ organisations share.
Strikes and lock-outs 323

Workers have the right to strike and the Constitutional Court has held that the right to engage in
collective bargaining implicitly recognises the employer’s right to exercise some economic power, which
may include the right to lockout.
(2) Like all rights, the right to engage in collective bargaining (including the recourse by
employers to exercise economic power) and the right to strike may be limited by legislation provided that
the limitation is reasonable and justifiable. The limitations imposed on the right to strike and lockout seek
to make a strike or lockout the last resort or unnecessary because of other judicial or arbitral remedies or
to protect society from strikes in essential services, the interruption of which may affect the health and
safety of the population.
(3) It is in this context that the right to strike and the recourse to lockout must be
understood. Unlike most other rights in the Bill of Rights, the right to strike and the right to lockout is a
right to cause economic harm.
(4) However, prolonged and violent strikes have a serious detrimental effect on the
strikers, the families of the strikers, the small businesses that provide services in the community to those
strikers, the employer, the economy and community.
(5) Workers exercising the right to strike or the right to protest action and employers
exercising the recourse to a lockout must therefore recognise the constitutional rights of others 4.

17. Disputes in respect of which industrial action may be exercised

Disputes of right, mutual interest and those involving socio-economic interests
(1) The Act distinguishes between three kinds of dispute: disputes of right; disputes of mutual interest;
and disputes involving the socio-economic interests of workers –
(a) A dispute of right is a dispute that the Act or other employment laws require to be settled by arbitration
or adjudication. An example of a dispute of right is a dispute

________________________

4 Constitutional rights include—

(i) Section 12 (1) ‘Everyone has the right to freedom and security of the person, which includes the right ... (c) to be
free from all forms of violence from either public or private sources.’ This refers to the right of people not to be
threatened with or subjected to violence.
(ii) Section 16 ‘Everyone has the right to freedom of expression ... (that) does not extend to (b) incitement of imminent
violence; or (c) advocacy of hatred ...’ Refers to the right to express oneself during industrial action, but not in a
manner that incites violence or constitutes hate speech.
(iii) Section 17 ‘Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present
petitions.’ This refers to the right of workers to demonstrate and picket in a peaceful and unarmed manner.
(iv) Section 18 ‘Everyone has the right to freedom of association.’ This refers to the right of a worker to participate or
not to participate in the strike or lockout.
(v) Section 25 ‘No one may be deprived of property except in terms of a law of general application’. This refers to the
right not to be threatened with or subjected to damage of property.
(vi) Section 23 (1) ‘Everyone has the right to fair labour practices.’ Refers to the right not to be penalised for engaging
in a protected strike or lockout.
arising from a contravention of a collective agreement or an employment law such as unfair
dismissal, unfair discrimination, and underpayment of wages. It can be described as a
dispute concerning existing rights.
(b) A dispute of mutual interest on the other hand is a dispute concerning employment or
labour relations that cannot be resolved through enforcing existing rights. It can be
described as a dispute to create new rights. A dispute of mutual interest is the
legitimate scope of a collective bargaining agreement and the matters which may
legitimately form the subject of a protected strike or lockout.
(c) A dispute involving the socio-economic interests of workers, permits protest action in
matters that extend beyond matters that form the subject matter of collective
agreements. These disputes though must be distinguished from purely political strikes
which the Act does not afford any protection.
324 A Practical Guide to Labour Law

(2) The distinction between a rights and a mutual interest dispute can be demonstrated by a few
examples –
(a) If an employer pays an employee less than the rate of pay stipulated in a collective agreement or the
amount stipulated in an employment law, a dispute over the underpayment is a dispute of right that may
be referred to the CCMA, a bargaining council or the Labour Court for adjudication.
(b) A dispute of interest on the other hand is a dispute over a demand that the employees or employer has
no legal right to, such as a demand for an increase in wages or a change in hours of work. These kinds of
dispute can only be resolved by agreement, which may be induced by a threat or the exercise of a strike
or lockout. There are two exceptions - disputes of interest in essential services must be referred to
arbitration; and the parties to a dispute of interest may by agreement refer the dispute to arbitration. The
following are examples of a dispute of interest –
(i) A dispute over what next year’s wages are going to be;
(ii) A dispute over a new collective agreement or the renewal of an expired agreement;
(iii) A dispute over shorter working hours or higher overtime rates of pay; (iv) A dispute over the
introduction of a new shift system.
(3) The distinction between a dispute of mutual interest and a dispute of interest is
important because as a rule, the Act limits the right to strike to matters of mutual interest. There are two
exceptions. A dispute over organisational rights or a proposed retrenchment in some circumstances may
either be determined, on the one hand by the CCMA (organisational rights) or the Labour Court
(retrenchment disputes) or, on the other hand, by the exercise of the right to strike. For example, if a
registered trade union does not have sufficient or majority representativeness (depending on the nature
of the organisational right), it has no statutory right to those organisational rights but the Act specifically
permits a trade union to strike – i.e. the creation of a new right, in this case granting a minority trade
union an organisational right by collective agreement rather than by operation of statute.
What disputes may form the subject matter of a strike or lockout
(4) Apart from the two exceptions relating to organisational rights and retrenchment in
certain circumstances, the dispute must be one of mutual interest. Accordingly, rights disputes (other
than the two exceptions) do not constitute matter that can form the subject matter of a protected strike
or lockout.
(5) Not all mutual interest disputes however may form the subject matter of a protected
strike or lockout. The Act limits the right to strike and recourse to lockout in respect of the following –
(a) In breach of a peace clause in a collective agreement;
(b) If the trade union and employer or employers’ organisation have agreed to refer the
dispute to arbitration;
(c) If the employees, trade union, employer or employers’ organisation make an unlawful
demand. An unlawful demand for example is a demand by workers that an
employer dismiss a fellow employee. That would be unlawful because it would require the
employer to contravene the fair dismissal provisions in the Act, Another example is the
demand by an employer that employees work longer overtime hours than permitted in the
BCEA.
18. Conciliation of mutual interest disputes.—(1) Section 64 (1) of the Act requires all disputes
of mutual interest that may result in a strike or a lockout to be referred to conciliation. There is one
exception - the unilateral change to terms and conditions of employment if an employee or a trade union
gives notice not to introduce the alteration or, if introduced, to restore the original terms and conditions.
(2) The trade union and employer parties to a mutual interest dispute must attend the
conciliation meetings convened by the CCMA or the bargaining council with jurisdiction.
(3) The primary object of the conciliation is to try to resolve the dispute without resort to
industrial action. The parties must in good faith endeavour to settle the dispute, failing which, the
commissioner or conciliator must propose alternative means to do so, such as arbitration, including
advisory arbitration.
Strikes and lock-outs 325

(4) If the parties fail to settle the dispute or agree on an alternative method to resolve it, a
secondary object of conciliation is to –
(a) to record the demands in respect of which the workers, trade union, employer or employers’ organisation
intend to take industrial action;
(b) to agree on the following –
(i) the need for maintenance or minimum services, if necessary;
(ii) the lines of communication between the conciliator (or facilitator if there is one), the union, the
employer and the police; and
(iii) Strike and picketing rules.
19. Ballot of members.—(1) The Act does not require the conduct of a ballot as requirement for a
protected strike or lockout. Section 67 (7) of the Act states quite explicitly that the failure by a registered
trade union or registered employer organisation to conduct a ballot may not give rise to any litigation that
will affect the legality and the protected status of a strike.
(2) The obligation to ballot flows instead from the constitution of a registered trade union
or employers’ organisation. The constitutional obligation flows from the requirement in section 95 (5) (p)
of the Act that a trade union or employers’ organisation that seeks registration must provide in its
constitution for the conduct of a ballot before the calling of a strike or lockout. That ballot must be a
secret ballot.
(3) Registered trade unions and employers’ organisations are obliged to comply with their
constitutions even though the failure to do so does not have the consequence of invalidating the
protected status of the strike or lockout.
20. Notice of the commencement of the strike or lockout.—(1) The notice of the commencement
of a strike or lockout must be in writing and given at least 48 hours after the issue of a certificate of
outcome or the expiry of thirty days in the case of private employers and seven days in case of the state
as employer.
(2) Since the object of notice is to allow the other party to put its house in order and limit
the negative consequences of industrial action to loss of production on the part of employers and the
loss of income on the part of employees, the parties should agree to a notice period, notwithstanding
the minimum periods set out in the Act, that is of sufficient duration to allow the employer to shut
down its plant or services without damage to property and to allow the employees to make the
necessary arrangements to face a period of no income..
(3) The notice must include –
(a) the date and time when the strike or lockout is to commence;
(b) the demands which the other party is being required to meet, which demands may not be different to
those on which the parties deadlocked.
(4) The notice does not have to include the following information –
(a) Which employees are to go on strike;
(b) In which division of the employer’s workplace the strike is going to be called.
(5) If a strike or lockout does not commence on the date stated in the notice, the trade
union or employers’ organisation should issue a further notice stating the date and time of
commencement if it intends to strike or lockout unless there is an agreement, that should not be
unreasonably withheld, to extend or shorten the notice to allow for further negotiations.
(6) The failure to issue a further notice, or strike or lockout after a notice is issued in terms
of 19 (5) herein, may lead to an inference that the trade union or employers’ organisation has waived or
abandoned its right to strike or lockout.
21. Who may strike.—(1) Any employee, including employees who are not members of the union
calling the strike, may join a protected strike. There are only two exceptions –
(a) Essential service workers or any agreed minimum services within an essential
service;
326 A Practical Guide to Labour Law

(b) Maintenance service workers

(2) If a service has been declared an essential service by the Essential Service Committee
in terms of section 71 of the Act, the trade unions in that service and the employers can conclude a
minimum services agreement on the particular categories within that service and number of employees
to perform that service during the strike. If a minimum services agreement is not concluded, the Essential
Services Committee may determine such minimum services under section 72 (2) of the Act. Employees
within agreed or determined minimum services are not permitted to strike.
(3) A trade union and employer may enter into a maintenance service agreement in
order to avoid material physical damage to the working area, plant or machinery arising from a strike. If
there is no agreement, the employer may apply to the Essential Services Committee for a determination.
Employees falling within such a determination are not permitted to strike. Depending on whether the all
or a substantial number of employees are prohibited from striking as a result, the committee may refer
the dispute to arbitration.
22. Strikes or lockouts in respect of employees residing on employer premises.— (1) Employees
residing in accommodation provided by their employer are entitled to exercise their fundamental rights
including their freedom of association not only at the workplace but also in their living quarters5.
(2) During a protected and peaceful strike or lockout, the employer, at the request of the
employee, should not discontinue payment in kind in respect of accommodation, the provision of food
and other basic amenities of life such as the provision of water and heating. The parties may regulate this
by way of a collective agreement as provided for in section 34 (1) (b) of the Basic Conditions of
Employment Act (BCEA) and which may include provisions for the employer to recover such payment in
kind by way of deductions from an employee’s wages after the industrial action.
(3) The employer may recover the monetary value of the payment in kind made at the
request of the employee during the strike or lockout from the employee in terms of the BCEA and Act.
(4) Freedom of association in the context of employees residing at their place of work,
means –
(a) the right of an employee to choose either –
(i) to strike or not to strike; or
(ii) to participate or not to participate in a collective decision to resist a lockout;
(b) that every employee must respect the right of other employees –
(i) to strike or not to strike;
(ii) to participate or not to participate in a collective decision to resist a lockout;
(c) to work or not to work during the strike or lockout;
________________________

5 The ILO Workers’ Housing Recommendation 115 of 1961.

(d) the right of every employee not to be interfered with, threatened with or intimidated when entering
or exiting the workplace, commuting to and from the workplace, in their living quarters (if
provided by the employer) or their homes or within their communities.
(5) Every employee must respect the right to freedom of movement in particular –
(a) the right of management to enter and exit its premises;
(b) the right of non-striking workers to enter and exit the workplace and their living quarters
and to use public transport;
(c) the right of third parties to enter and exit the employer’s premises and do business with
the employer;
(d) an employer’s right to continue and maintain production, subject to the restrictions on
replacement labour contained in section 76 of the Act;
(6) All parties must take all reasonable steps to ensure that their employees and members
comply with (4) and (5) above.
Strikes and lock-outs 327

(7) Nothing in this clause restricts a lawful and peaceful picket on the employer’s premises in
accordance with section 69 of the Act and Part E: Picketing.
23. Peace and stability and communication during a strike or a lockout.—(1) In accordance with
the guideline that the parties should develop rules regulating peaceful and protected industrial action,
which includes picketing, those rules, depending on the circumstances, may include the establishment of
a peace and stability committee made up of union officials, shop stewards, employer representatives, the
conciliator or facilitator, a person representing the private security company and a person appointed by
the South African Police Services in accordance with the Accord.
(2) At the very least, the rules should include the following –
(a) The trade union, employer or employers’ organisation should identify persons and alternates with whom
the parties can communicate during a strike or lockout and provide each other with contact details.
(b) The contact details of the trade union and employer representatives should be forwarded to the
conciliator or facilitator in order that the conciliator or facilitator is able to re-institute negotiations during
the course of the strike or lockout.
(c) The employer should then request the South African Police Services to appoint a police officer in
accordance with the Accord with whom the trade union and employer representatives can liaise during
the currency of the strike and to provide that person with the contact details of the employer and trade
union representatives and those of the conciliator or facilitator.
(d) If there is a significant private security presence, the employer should ensure that a person with authority
in the private security company is identified as a representative and that that person’s contact details are
forwarded to the trade union, the conciliator or facilitator and the South African Police Services.
PART E
PICKETING
24. Introduction.—(1) This Part of the Code is intended to provide practical guidance on picketing
in support of any protected strike or in opposition to any lockout. It is intended to be a guide to those
who may be contemplating, organising or taking part in a picket and for those who as employers or
employees or members of the general public that may be affected by it.
(2) Section 17 of the Constitution recognises the right to assemble, to demonstrate, to
picket and to present petitions. This constitutional right can only be exercised peacefully and unarmed.
Section 69 of the Act seeks to give effect to this right in respect of a picket in support of a protected strike
or a lockout.
(3) Any person interpreting or applying the Act in respect of any picket must take this Part
of the Code into account. This is the effect of section 203 of the Act. This applies to employers and their
employer organisations, employees and their trade unions, the Commission, Labour Court, the Labour
Appeal Court, private security-services and the South African Police
Services.(include supporters and landlord)
(4) This Part of the Code does not apply to all pickets and demonstrations in which
employees and trade unions may engage. It applies only to pickets held in terms of section 69 of this Act.
That section has four elements –
(a) The picket must be authorised by a registered trade union;
(b) Only members and supporters of the trade union may participate in the picket;
(c) The purpose of the picket must be to peacefully demonstrate in support of any protected strike or in
opposition to any lockout;
(d) The picket may only be held in a public place outside the premises of the employer or, with the permission
of the employer, inside its premises. The permission of the employer may be overruled by the CCMA, if
the permission is unreasonably denied. The factors to be taken into account to determine whether
permission is unreasonably denied are set out in clause 29 of this Code.
(5) If the picket complies with these four elements then the ordinary laws regulating the
right of assembly do not apply. These laws include the common law, municipal by-laws and the Regulation
of Gatherings Act, 205 of 1993.
328 A Practical Guide to Labour Law

(6) A picket conducted by an unregistered trade union or for purposes other than to
demonstrate in support of a protected strike or a lockout is not protected by section 69 of the Act. The
lawfulness of that picket or demonstration will depend on compliance with the ordinary laws regulating
public gatherings referred to in sub-clause (5).
25. Authorisation.—(1) A picket contemplated in section 69 of the Act must be authorised by a
registered trade union.
(2) The authorisation must be made in accordance with the trade union’s constitution. That
means that there must either be a resolution authorising the picket or a resolution permitting a trade union
official to authorise a picket in terms of section 69 (1). It should be formal and in writing.
(3) A copy of the resolution authorising the picket ought to be served on the employer before
the commencement of the picket.
(4) The authorisation applies only to its members and its supporters.
26. Purpose of the picket.—(1) The purpose of the picket is to peacefully encourage nonstriking
employees and members of the public to oppose a lockout or to support strikers involved in a protected
strike. The nature of that support can vary. It may be to peacefully encourage employees not to work
during the strike or lockout. It may be to peacefully dissuade replacement labour from working. It may
also be to persuade members of the public or other employers and their employees not to do business
with the employer.
(2) The strike must be a protected strike. In normal cases, employees picket at their own
place of work or other designated areas as agreed by the parties, or provided for by the CCMA in support
of their strike against their own employer. Cases do arise, however, where employees picket at their
own place of work in support of a strike between another employer and its employees. This is what is
contemplated in section 66 of the Act as a “secondary strike”. In this case, in order to be protected, the
picket must further satisfy the requirements of a lawful secondary strike in terms of section 66. This is
because the definition of “secondary strike” in the section includes “conduct in contemplation or
furtherance of a strike”. A picket is “conduct in contemplation or furtherance of a strike.”
(3) The requirements for a protected secondary strike are –
(a) the strike that is to be supported by the secondary strike must itself be a protected strike;
(b) the employer of the employees taking part in the secondary strike must have received written notice of
the proposed picket at least 7 days prior to its commencement; and
(c) the nature and extent of the secondary strike must be reasonable in relation to the possible direct or
indirect affect that the secondary strike may have on the business of the primary employer.
(4) If a picket is in support of an unprotected strike, the picket is not protected by section
69 of the Act.
(5) Pickets may be held in opposition to a lockout. Section 69 (1) does not distinguish
between protected and unprotected lockouts. This means that a picket may be held in opposition to both a
protected and an unprotected lockout.
27. No picketing unless rules agreed or determined.—No picket in support of a protected strike
or in opposition to a lockout may take place unless rules have been agreed or determined by the CCMA
in terms of section 65 (9) of the Act.
28. Agreed picketing rules.—(1) A registered trade union and employer or employer organisation
should seek to conclude a collective agreement on standing picketing rules to regulate pickets in support
of a protected strike or in opposition to a lockout.
(2) The following matters should be considered in such a collective agreement –
(a) the nature of the authorisation and its service upon the employer;
(b) the notice of the commencement of the picket including the place, time and the extent of the picket;
(c) the nature of the conduct in the picket;
(d) the number of picketers and their location;
(e) the modes of communication between marshals and employers and any other
Strikes and lock-outs 329

relevant parties;
(f) the conduct of the pickets on the employer’s premises; and
(g) this code of good practice and the Default Picketing Rules annexed to this Code.
(3) If the parties to a dispute giving rise to a protected strike or lockout have not concluded a
collective agreement regulating pickets, the parties must endeavour to agree picketing rules before the
commencement of the protected strike or lockout taking into account the factors referred to in sub-item
(2). The trade union or employer may request the Commission to facilitate such an agreement in terms of
section 69 (4) of the Act.
29. Default picketing rules.—(1) If there is no collective agreement on picketing rules or no
picketing rules agreed during the conciliation process, the Commission must determine picketing rules in
accordance with the Default Picketing Rules determined in terms of section 69 (9) of the Act.
(2) In terms of section 69 (9) (b) of the Act, rules determined under clause (1) are binding on the
trade union, its members and supporters, and the employer.
30. Pickets on employer premises or in other designated areas.—(1) A picket may take place on
the employer’s premises or other designated area with the permission of the employer. The permission
may not be unreasonably withheld. In order to determine whether the decision of the employer to
withhold the permission is reasonable, the factors, which should be taken into account, include –
(a) the nature of the workplace e.g. a shop, a factory, a mine etc;
(b) the particular situation of the workplace e.g. distance from place to which public has access, living
accommodation situated on employer premises, etc;
(c) the number of employees taking part in the picket inside the employer’s premises;
(d) the potential for violence and other unlawful acts;
(e) the areas designated for the picket;
(f) time and duration of the picket;
(g) the proposed movement of persons participating in the picket; (h) the proposals by the trade union to
exercise control over the picket; and (i) the conduct of the picketers.
31. Dissemination of picketing rules.—Employers, employer organisations and trade unions must
take measures to disseminate the picketing rules which may include measures –
(a) placing the rules on notice boards; and
(b) distributing copies of the rules to employees and private security officers.
32. Conduct in the picket.—(1) Although the picket may be held in any place to which the public
has access, the picket may not interfere with the constitutional rights of other persons.
(2) The trade union must –
(a) appoint convenors and marshals to monitor and control the picket as set out in the picketing rules;
(b) provide the convenors, marshals with the agreed or determined picketing rules; and
(c) take measures to ensure that the convenors, marshals and picketers understand those rules.
(3) The picketers must conduct themselves in a peaceful, unarmed and lawful manner.
They may –
(a) carry placards;
(b) chant slogans; and (c) sing and dance.
(4) Picketers may not –
(a) forcefully prevent or intimidate suppliers, clients and customers of the employer,
members of the public, employees who are not on strike and replacement workers
from entering or leaving the premises of the employer;
(b) commit any unlawful action, such as intimidating, coercing, threatening or assaulting
any person or causing or threatening to cause any damage to any property whether
belonging to the employer or not;
330 A Practical Guide to Labour Law

(c) incite violence; (d) wear masks; or

(e) have any dangerous weapons or objects in their possession.
33. Peace obligation and the role of police.—(1) It is not the function of the police to take a view
of the merits of a particular strike or lockout. Their role is to uphold the law and keep the peace. The law
does, however, give the police the power to take measures that may be reasonably necessary to ensure
that a strike and picket remains peaceful, unarmed and orderly. In exercising these measures –
(a) the police may only intervene with any person/s who –
(i) the police reasonably believe is in possession of a firearm or dangerous weapon;
(ii) displays a firearm or dangerous weapon;
(iii) has committed or threatens to commit an assault or damage to property;
(iv) intimidates or threatens any person entering or leaving the employer’s property;
(v) unlawfully prevents the employer or another person from conducting their business or from working or
not working;
(vi) blocks any vehicle or person from entering or leaving the employer’s prem-
ises;
(vii) breaks into or enters the employer’s property without the employer’s permission;
(viii) threatens or commits an act of public violence; or (ix) commits any action prohibited by a court
order.
(b) the police may only disperse a picket or gathering if –
(i) there is reasonable cause to believe that persons involved in the picket or gathering may engage in any
of the crimes referred to in (a) above; or
(ii) the picket or gathering has been interdicted under a court order and the court orders the police to
enforce court order;
(iii) persons involved in the picket or gathering commits or threatens to commit an act of public violence;
(2) In the context of the constitutional right to picket peacefully and unarmed and
applying the factors listed in section 3 (2) of the Dangerous Weapons Act, 15 of 2013 to determine
whether a person intends to use the object as a dangerous weapon, a dangerous weapon is any object
that could be used to injure or threaten a person or damage property. In the context of a picket there is
no other justifiable use for the possession or display of such an object. Cultural implements carried by
picketers must clearly not be carried or used in a manner intended to intimidate or cause harm.
(3) Fundamental to promoting peaceful industrial action and peaceful lockouts, is
implementing the principle of seeking to resolve disputes as to the conduct of participants through
negotiations.
(4) The police have no responsibility to enforce the Act or any picketing rules. They have
no responsibility to enforce the terms of a court order interdicting a strike or a picket unless ordered to
do so by a court. The police may, however, assist the sheriff in serving a court order if the police think that
there may be a breach of the peace.
(5) Members of the police assigned to monitor strikes, lockouts and pickets should where
necessary conduct a threat analysis –
(a) should adopt a non-threatening presence;
(b) be sensitive to the potential presence of persons with disabilities and to consider their
safety and security when acting to disperse any picket or gathering;
(c) should use minimum force and non-lethal equipment such as shields, rubber bullets, water
cannons, stun grenades and tear gas6;
(d) should take into account that the use of that equipment can result in serious injury and
even death;
(e) may only use that equipment – (i) after non-violent means have failed;
Strikes and lock-outs 331

(ii) to the extent necessary, subject to prevailing circumstances and in compliance with
the law and all police regulations; and
(iii) in a proportional and lawful manner.
34. Peace obligation and role of private security.—(1) The role of private security is to protect
the property of the employer and client and ensure the safety of persons on the property. Private security
officers have no right to intervene in a strike or a picket or to enforce the Act or any picketing rules made
under them.
(2) A private security officer does not have the powers of the police but may arrest in terms of
section 42 of the Criminal Procedure Act, 51 of 1977 just as any other private person may do, a person
participating in the picket or gathering –
(a) who commits a Schedule 1 offence in the officer’s presence or the officer reasonably suspects the person
of doing so such as public violence, malicious injury to property and assault when a dangerous wound is
inflicted;
(b) who the officer reasonably believes to have committed an offence and is escaping from or being freshly
pursued by a person who the officer reasonably believes has the authority to arrest;
(c) who the officer sees engaged in a fight;
(d) if authorised by the employer, any person committing an offence on the employer’s property.
(3) A private security officer may pursue a person referred to in (a) above.
(4) Any person arrested by a security officer in these circumstances must be brought as soon
as possible to a police station.
________________________

6 (Editorial Note: Footnote reference as per original Government Gazette.)

(5) Every employer that contracts with a private security company must ensure that –
(a) the company is registered as a security service provider in terms of the Private Security
Industry Regulation Act, 56 of 2001;
(b) it complies with the legislation and codes of conduct relating to the private security
industry and the requirements of the Private Security Regulatory Authority;
(c) its security officers tasked with protecting property of the employer during the course of
industrial action are adequately trained in crowd management and the provisions of this
Code in order to ensure that they act appropriately if conflict escalates during the course
of industrial action.
35. General rights, obligations and immunity.—(1) A person who takes part in a picket protected
in terms of the Act does not commit a delict or a breach of contract. This means that the employer may
not sue a person or a union for damages caused by a picket held in compliance with section 69 of the Act
and the applicable picketing rules.
(2) The employer may not take disciplinary action against an employee for participating in a picket
in compliance with section 69 of the Act and the applicable picketing rules. If an employee’s conduct
during a picket constitutes misconduct the employer may take disciplinary action in accordance with the
Act.

ANNEXURE B
DEFAULT PICKETING RULES8

1 PARTIES TO THE dispute

1.1 The parties to the dispute giving rise to the strike/lockout9 are –10
.............................................................................. (name)
.............................................................................. (name)

2 BINDING NATURE
332 A Practical Guide to Labour Law

2.1 These Rules are binding on the parties to the dispute and their officers, officials, members and
supporters.
2.2 Nothing in these Rules prevents the parties to the dispute agreeing to their own rules to replace or
amend these Rules.
2.3 These Rules must be interpreted in accordance with –
2.3.1 sections 17, 18 and 23 of the Constitution;
2.3.2 section 69 of the Labour Relations Act, 66 of 1995 (Act);
2.3.3 The Code of Good Practice: Picketing (Code)
2.4 Where these Rules are silent, the relevant provisions of the Act and the Code apply.

3 PURPOSE OF THE PICKET

3.1 The only purpose of the picket is to approach and peacefully seek to persuade the following persons to
support the strike or oppose the lockout by temporarily withholding their services from, supplying goods
and materials to, or working for the employer/s –
3.1.1 service providers, clients and customers of the employer;
3.1.2 members of the public; and
3.1.3 employees who are not on strike (other than essential or minimum service employees) and
replacement workers.

________________________

8 Picketing may only take place in terms of s 69. Gatherings related to unprotected strikes are subject to the provisions
of the Regulation of Gatherings Act.
9 Delete whichever is not applicable unless both a strike and a lockout are in place.
10 Commissioner to fill in the names of the parties to the dispute giving rise to the strike.
4 LOCATION OF PICKET AND NUMBER OF PICKETERS11
4.1 A picket may only be held at the places designated in Annexure A.
4.2 Only members and supporters of the strike may take part in the picket.
4.3 A picket at any designated location may not exceed the maximum number of members or supporters
determined by the Commissioner in that Annexure.

5 DURATION AND TIME OF PICKET

5.1 The picket may only commence at or after the commencement of the strike or lockout.
5.2 The picket may only take place during daylight hours.12

6 NATURE AND CONDUCT OF PICKET

6.1 Picketers must at all times conduct themselves in a peaceful, unarmed and lawful manner and not
interfere with the constitutional rights of other persons
6.2 Subject to clause 6.3, picketers may for the purposes of the picket –
6.2.1 carry placards;
6.2.2 hand out pamphlets;
6.2.3 chant slogans, sing and dance;
6.2.4 be addressed by union officials and supporters; and
6.2.5 wear trade union t-shirts, hats, caps, badges and other paraphernalia.
6.2.6 approach and peacefully engage suppliers, clients, customers, employees (other than essential or
minimum service employees) and replacement workers not to enter the premises and support the
strike or oppose the lockout.
6.3 Any limitations on the activities listed in clause 6.2 in respect of specific locations are detailed in
Annexure A.13
Strikes and lock-outs 333

6.4 Picketers may not –

6.4.1 In performing the activities contemplated in clause 6.3 use hate or defamatory speech or incite
violence;
6.4.2 forcefully prevent or appear to prevent suppliers, clients and customers of the employer, members of
the public, employees who are not on strike and replacement workers from entering or leaving the
premises or any part of the premises of the employer;
6.4.3 commit any unlawful action, such as intimidating, coercing, threatening or assaulting any person or
causing or threatening to cause any damage to any property whether belonging to the employer or
not;
6.4.4 wear masks; or
6.4.5 have any dangerous weapons or objects in their possession.
6.5 For the purposes of these Rules, dangerous objects or weapons includes any object that could be used
to injure or threaten a person or damage property. In the context of a picket there is no other justifiable
use for the possession or display of such an object, in particular any of the following objects –
6.5.1 Knives, spears, pangas, bush knives or any similar object;
6.5.2 Sticks and knobkieries14 whether made of metal or wood;
________________________

11 The Commissioner must determine the location of the pickets and the number of picketers in each designated
location in accordance with section 69 (5) and (6) of the LRA, clauses XX of the Code and any relevant court decision.
12 The Commissioner may amend this rule if the employer works night shift or the picket is rendered ineffective because
the employer has arranged for its suppliers, customers and clients to enter the premises at night.
13 The Commissioner may, for example, limit the activity of a picket in a shopping mall or business complex to carrying
placards and handing out pamphlets.
14 To be discussed further.
6.5.3 Whips and sjamboks;
6.5.4 Bricks, stones or any similar object that can be thrown or propelled in a manner that can cause injury or
damage to property;
6.5.5 Any inflammable substance;
6.5.6 Any liquid, foam or similar substance that can be sprayed or extruded to cause injury or damage to
property.

7 CONTROL OF PICKETS
7.1 Union officials and managers are accountable and should be available to resolve problems may the need
arise.
7.2 The name and contact details of the Commissioner responsible for the conciliation of the dispute giving
rise to the strike or lockout and these Rules is set out in Annexure B.
7.3 The names and contact details of the trade union convenor/s of the picket and the employer
representative/s are listed in Annexure B15.
7.4 The convenor/s of the picket is responsible for overseeing the picket and ensuring that the picket
complies with the rules.
7.5 The trade union must appoint one marshal for every ten picketers to monitor and control the picket at
each designated location. The full names and contact details of the marshals are listed in Annexure B.
7.6 The convenors, marshals and employer representatives must be present from the start to the end of the
picket each day.
7.7 The convenor, the marshals and the employer representative must –
7.7.1 at all times during the picket have a copy of these Rules in their possession;
7.7.2 wear the armbands or vests described in Annexure B to identify themselves as convenors or marshals 16;
and
7.7.3 be present from the start to the end of each day of the picket.
334 A Practical Guide to Labour Law

7.8 The names and telephone numbers of the convenor and marshals must be set out in Annexure B.
7.9 Any change to a convenor, employer representative and marshal must be sent by a text message to the
persons listed in Annexure B.
7.10 The trade union must ensure that its members and supporters who participate in a picket wear the
identification described in Annexure B.17
7.11 The trade union must train its convenors and marshals on the Code and the Rules and their
responsibilities to ensure a lawful and peaceful picket.

8 EMPLOYER CONDUCT
8.1 The employer or any person in authority at the workplace or acting on the employer’s behalf may not –
8.1.1 in any way hinder or obstruct the lawful and peaceful conduct of the picket;
8.1.2 undermine any employee’s right to lawfully and peacefully participate in the picket or discipline or
threaten to discipline any employee for peacefully and lawfully doing so;
8.1.3 engage in or permit conduct which is provocative or may incite conflict; or
8.1.4 carry a dangerous weapon of any kind while in contact with the picketers.
8.1.5 use hate or defamatory speech or incite violence
________________________

15 The Commissioner must list the names and contact details of the convenor/s and employer representa-tive/s in
Annexure B.
16 The Commissioner to describe the armbands or vests identifying the members or officials as convenors and marshals.
17 The Commissioner to describe the T-shirts, hats, badges or other forms of identification of participants in the picket in
Annexure B.
8.2 The employer must ensure that any private security company employed by the employer complies
with the requirements relating to such companies under the Code of Good Practice on Collective
Bargaining and Industrial Action.
8.3 The employer must ensure reasonable access to toilet facilities and drinking water to persons
participating in a picket

9 PICKETING ON EMPLOYER’S PREMISES OR IN OTHER DESIGNATED AREAS

9.1 If picketing is to take place on the employer’s premises or other designated areas, the employer
must, where applicable provide the trade union with written confirmation of the health and safety
rules to be observed before, during and after the picket.
9.2 Participants in a picket on the employer’s premises or in any other designated area must, in addition
to the requirements set out in clauses 6 and 7 above –
9.2.1 remain within the designated picketing area(s);
9.2.2 observe the health and safety rules and regulations applicable in the workplace;
9.2.3 refrain from causing any damage to property or allowing any damage to be caused; and
9.2.4 leave the premises and the facilities in the condition in which they found it.

10 FAILURE TO COMPLY WITH THESE RULES

10.1 Any person may refer a dispute concerning the interpretation or application of these Rules to the
Commissioner responsible for the conciliation of the dispute giving rise to the strike or lockout and
these Rules.
10.2 The Labour Court may suspend a picket at one or more designated locations if these Rules have not
been complied with in terms of section 69 (12) (c) of the Act.

11 DISPUTE RESOLUTION
11.1 Any dispute about the interpretation or application of these Rules or any alleged breach thereof
shall be dealt with in accordance with section 69 (8), (9), (10) and (11) of the Act or section 158 (1)
Strikes and lock-outs 335

(g) of the Act. This does not affect any other right that any person may have in terms of the Act or
any other law.
11.2 It is recorded that the employer, the union and persons taking part in the picket are subject to the
protections and provisions set out in section 67 of the Act.

12 POLICE INVOLVEMENT
12.1 These Rules do not affect the right of any person to ask the South African Police Service or any
security organisation responsible for maintaining safety and security at or near the workplace to
investigate or deal with any unlawful conduct or alleged unlawful conduct.
12.2 If this happens, the employer and the union undertake to cooperate with the police or security
organisation in the performance of their duties and the union undertakes to do everything possible
to ensure that its members and supporters will do the same.

13 TERMINATION
These Rules will remain in effect until the settlement of the dispute, the termination of the strike,
termination of the picket by the union or until it is terminated or reviewed by mutual agreement,
whichever may come first.
 16
WORKER PARTICIPATION

16.1 Introduction

An important development in South African labour relations is the introduction of workplace

forums, in terms of which worker participation in decision-making at the workplace has been
established. Workplace forums are designed to facilitate a shift from adversarial collective
bargaining to joint problem-solving and decision-making in the workplace. The purpose of
workplace forums, therefore, is not to undermine collective bargaining, but to supplement it.
The following are important features of workplace forums:
• not only union members, but all employees are included in the system and, therefore, have a
say in workplace decisions which affect them directly. The LRA gives a special meaning to
“employee” in the context of workplace forums. An “employee” is defined as any person who is
employed in a workplace, except a senior managerial employee whose contract of employment
or status confers the authority to represent the employer in dealings with the workplace forum
or determine policy and take decisions on behalf of the employer that may be in conflict with
the representation of the employees in the workplace;
• a workplace forum can be established only at the request of a registered majority trade union.
Two or more registered trade unions may act jointly in order to constitute a majority for the
purpose of initiating a workplace forum;
• the parties, the employer and the union(s), are encouraged to create their own structures. If
they reach agreement (under the auspices of the CCMA) the workplace forum is governed by
that agreement. Failure to reach agreement will result in the application of the provisions of the
LRA;
• parties other than those the LRA refers to may also establish a workplace forum along the lines
of the statutory workplace forum, but without the underpinning of the Act;
• the matters for consultation and joint decision-making found in the LRA, agreed upon by
NEDLAC, may be varied by agreement between the parties;
• workplace forums may also be established in the public service. Such establishment will be
regulated in a Schedule promulgated by the Minister for the Public Service and Administration.
The general functions of a workplace forum include the promotion of the interests of all employees
in the workplace, not only the interests of union members, and the enhancement of efficiency in
the workplace. In order to achieve these goals, the forum must be consulted by the employer on
certain matters and in some instances it participates in joint decisionmaking.
The workplace forum has to meet regularly to ensure its efficient functioning and the employer
is required to meet with the forum on a regular basis. Furthermore, the members of the workplace
forum must meet with the employees to report on forum activities and on those matters discussed
with the employer. All meetings must be held during working hours without loss of pay for the
employees.

331
A Practical Guide to Labour Law
338

16.2 Establishment of a workplace forum (ss 80, 81 and 92)

A workplace forum can be established only:

• at the request of a registered majority trade union (or two or more unions acting jointly) in the
specific workplace;
• if the employer employs 100 or more employees in the workplace; and
• if there is no other workplace forum functioning within the workplace.
The trade union(s) submit an application to the CCMA for the establishment of a workplace forum.
A copy of the application must be served on the employer. If the CCMA is satisfied that the employer
employs 100 or more employees, that the applicant union is a registered majority trade union and
that there is no functioning workplace forum in the workplace, a commissioner is appointed to
assist the parties in establishing a workplace forum by way of a collective agreement. If a collective
agreement is concluded, the provisions thereof apply. If a collective agreement is not concluded,
the commissioner must establish a workplace forum and determine the provisions of its
constitution in accordance with Schedule 2 to the Act (see appendix to this Chapter).
If a registered majority union is recognised by the employer in terms of a collective agreement
to bargain for all the employees in a workplace, that union may apply for the establishment of the
so-called “union-based workplace forum”. The application is submitted to the CCMA and the union
may choose the members of the forum from amongst its elected representatives in the workplace.
If there are 1 000 or more employees in the workplace, one employee may be appointed as a
full-time member of the workplace forum. The employer is obliged to pay such a member the same
remuneration that he earned prior to the appointment. After expiry of the term served, the
member must be reinstated to the position he held prior to the appointment or any higher position
to which such a person could have advanced.
The constitution of a workplace forum must provide, inter alia, for the following (s 82):
• formulae for determining the number of seats in the forum and the distribution of those seats
to reflect the occupational structure of the workplace;
• the election of members of the forum by the employees in the workplace;
• the appointment of an employee election officer, as well as the procedure and manner in which
elections and ballots must be conducted;
• the nomination of candidates;
• the terms of office of members;
• meetings of the forum; facilities which the employer must provide to enable the forum to
perform its functions;
• the appointment of full-time members of the forum where there are more than 1 000 employees
in a workplace;
• time off with pay during working hours which the employer must allow members in order to
perform their functions as members of the forum and to receive the necessary training;
• amendment of the constitution by agreement between the representative trade union and the
employer;
• provision for office-bearers or officials of the union to attend meetings of the workplace forum;
and
• the manner in which decisions are to be made.
The workplace forum may invite any expert to attend its meetings and such expert will be entitled
to any information the forum is entitled to.
Dissolution of a workplace forum: A registered majority union or two or more unions acting
jointly may request a ballot to dissolve a workplace forum. An election officer must be appointed
to conduct the ballot. If more than 50% of the employees support the dissolution, the workplace
forum must be dissolved.
340 A Practical Guide to Labour Law

16.3 Worker participation

The Act provides for three different forms of participation by the workplace forum, varying from
information-sharing to joint decision-making.

16.3.1 Disclosure of information (ss 89–91)

At a meeting between the workplace forum and the employer, the employer must present a report
on its financial and employment situation, its performance since the last report and its anticipated
performance in the short and long term. The employer must further consult with the workplace
forum on any matter arising from the report that may affect the employees. At one of the meetings
between members of the workplace forum and the employees, the employer must report on the
same issues.
An employer must also disclose to the workplace forum all relevant information to allow the
forum to engage effectively in consultation and joint decision-making. The employer is not required
to disclose information that is legally privileged, confidential or that cannot be disclosed in terms of
a court order or the law. Private personal information of an employee may also not be disclosed,
unless that employee consents to its disclosure. The employer must notify the workplace forum in
writing if he is of the view that information is confidential.
Any dispute over the disclosure of information must be referred to the CCMA for conciliation and,
if necessary, arbitration.
On request, documented information that must be disclosed by the employer must be made
available for inspection to the members of the workplace forum. The employer must provide copies
of the documentation to members of the workplace forum.

16.3.2 Matters for consultation (ss 84–85)

Where matters for consultation are not regulated by a collective agreement, a workplace forum is
entitled to be consulted by the employer about proposals relating to any of the following matters:
• restructuring the workplace, including the introduction of new technology and new work
methods;
• changes in the organisation of work;
• partial or total plant closures;
• mergers and transfers of ownership in so far as they impact on the employees;
• the dismissal of employees for reasons based on operational requirements;
• exemptions from any collective agreement or any law;
• job grading;
• criteria for merit increases or the payment of discretionary bonuses;
• education and training; • product development plans; and
• export promotion.
Any additional matters to be consulted about may be conferred on the workplace forum by a
bargaining council, a collective agreement or any law.
Before implementing any proposal in relation to any matter referred to above, the employer
must consult with the workplace forum with a view to reaching consensus. The workplace forum
must also be offered an opportunity to make representations and to put forward alternative
Worker participation 341

proposals. If the employer does not agree, he must state the reasons for disagreeing. If the employer
and the workplace forum cannot reach consensus, the employer must invoke the procedure agreed
upon to resolve any differences before implementing the proposal.
Subject to applicable occupational health and safety legislation, a representative trade union and
employer may also agree that:
• the employer must consult with the workplace forum on any measures to ensure health and
safety at work;
• a meeting between the workplace forum and the employer constitutes a meeting of a health and
safety committee established in the workplace; and
• one or more members of the workplace forum act as health and safety representatives for the
purposes of that legislation.

16.3.3 Joint decision-making (s 86)

The matters for joint decision-making, unless they have been regulated by a collective agreement
with the trade union, are the following:
• disciplinary codes and procedures;
• rules relating to the proper regulation of the workplace in so far as they apply to conduct not
related to the work performance of employees;
• measures designated to protect and advance persons disadvantaged by unfair discrimination;
and
• changes by the employer or employer-appointed representatives on trusts or boards of
employer-controlled schemes to the rules regulating social benefit schemes.
The trade union and the employer may by way of collective agreement confer additional matters for
joint decision-making on the workplace forum or remove any matter from the list.
If the employer does not reach consensus with the workplace forum, the employer may refer the
dispute to arbitration in terms of any agreed procedure or, if there is no agreed procedure, to the
CCMA. The CCMA must attempt to resolve the dispute through conciliation, failing which the
employer may request that the dispute be resolved through arbitration.
This process may be illustrated as follows:
342 A Practical Guide to Labour Law

16.4 Dispute resolution (s 94)

Any party to a dispute over the interpretation or application of Chapter 5 of the LRA (dealing with
workplace forums) may refer the dispute to the CCMA. The CCMA has exclusive jurisdiction to
conciliate and arbitrate disputes concerning workplace forums.

Questions

Question 1
Define the following in terms of Chapter 5 of the LRA, i.e. in respect of workplace forums:
1.1 a “representative” union; (3)
1.2 an employee. (4)

Question 2
Discuss the establishment and functions of a workplace forum. (15)
Question 3
3.1 Discuss the disclosure of information by an employer to a workplace forum and to
employees. (6)
3.2 A dispute arises about the disclosure of information by an employer. Discuss the pro-
cedure that must be followed to resolve the dispute. (5)

Question 4
Worker participation 343

Discuss the matters for consultation between a workplace forum and the employer. (12)

Question 5
5.1 Name the matters for joint decision-making prescribed by the LRA. (3)
5.2 Describe the manner in which the matters for decision-making prescribed by the LRA may be
altered. (2)
5.3 An employer and the workplace forum cannot reach consensus on one of the matters for
joint decision-making. How can the dispute be resolved? (3)

Question 6
A supermarket chain has its head office in Cape Town and ten branches dispersed around the
country. Discuss the possibility of the establishment of one or more workplace forums:
6.1 if the branches are not regarded as separate workplaces; (5)
6.2 if the branches are regarded as separate workplaces. (5)
Question 7
An employer in the food industry has 300 employees in its employment. The employees are all
working in the same workplace and the occupational structure is as follows: 200 employees are
manual workers; 50 are administrative and clerical employees and 50 are supervisory, managerial
and technical employees. Explain how the workplace forum should be composed. (8)
Appendix

SCHEDULE 2
GUIDELINES FOR CONSTITUTION OF WORKPLACE FORUM
1. Introduction
(1) This Schedule contains guidelines for the constitution of a workplace forum. It is intended to
guide representative trade unions that wish to establish a workplace forum, employers and
commissioners.
(2) This Act places the highest value on the establishment of workplace forums by agreement
between a representative trade union and an employer. The role of the commissioner is to facilitate an
agreement establishing the structure and functions of a workplace forum. If agreement is not possible,
either in whole or in part, the commissioner must refer to this Schedule, using its guidelines in a manner
that best suits the particular workplace involved.
(3) For convenience, the guidelines follow the sequence of the paragraphs in section 82 of this Act.
2. Number of seats in workplace forums (s 82(1)(a))
The formula to determine the number of seats in the workplace forum should reflect the size, nature,
occupational structure and physical location of the workplace. A guideline may be: (a) in a workplace in
which 100 to 200 employees are employed, five members;
(b) in a workplace in which 201 to 600 employees are employed, eight members;
(c) in a workplace in which 601 to 1 000 employees are employed, 10 members;
(d) in a workplace in which more than 1 000 employees are employed, 10 members for the first 1 000
employees, plus an additional member for every additional 500 employees, up to a maximum of 20
members.
3. Distribution of seats to reflect occupational structure (s 82(1)(b))
The formula to determine the distribution of seats in the workplace forum must reflect the occupational
structure of the workplace.
344 A Practical Guide to Labour Law

Example:
There are 300 employees in a workplace. The occupational structure is as follows: 200 employees are
manual employees; 50 are administrative and clerical employees; and 50 are supervisory, managerial and
technical employees. The six seats may be distributed as follows:
4 seats for members to be elected from candidates nominated from among manual employees
1 seat for members to be elected from candidates nominated from among the administrative and clerical
employees
1 seat for members to be elected from candidates nominated from among the supervisory, managerial
and technical employees
4. Elections (S 82(1)(c), (d), (g), (h), (i) and (j))
(1) The constitution must include provisions concerning the appointment of an election officer.
Example:
(a) Every election or by-election in relation to a workplace forum must be conducted by an election
officer appointed by agreement between the representative trade union and the employer.
(b) If the trade union and the employer cannot agree, the trade union may apply to the Commission to
appoint an election officer.
(c) The Commission must appoint an election officer to conduct a by-election only if it is satisfied that
the workplace forum cannot function adequately without a by-election.
(2) The constitution must set out what the election officer should do and the procedure for an
election.

Example:
(a) Thirty days before each election of members of the workplace forum, the election officer must:
(i) prepare a list of all employees in the workplace; and
(ii) call for nominations for members of the workplace forum.
(b) Any employee may be nominated as a candidate for election as a member of the workplace forum
by:
(i) any registered trade union with members employed in the workplace;
(ii) a petition signed by not less than 20 per cent of the employees in the workplace or 100 employees,
whichever number of employees is the smaller.
(c) Any employee who is a member or has previously served as a member of a workplace forum is
eligible for re-election.
(d) Fourteen days before each election of members of the workplace forum, the election officer must:
(i) confirm that the nominated candidates qualify for election;
(ii) publish a list of all qualified candidates who have been properly nominated; and
(iii) prepare a ballot for the election, listing the nominated candidates in alphabetical order by surname.
(e) Voting must be by secret ballot.
(f) Every employee is entitled to vote in the election of the workplace forum during working hours at
the employer’s premises.
(g) Every employee in the workplace is entitled to cast a number of votes equal to the number of
members to be elected to the workplace forum.
(h) Every employee may cast one or more of those votes in favour of any candidate.
5. Terms of office (s 82(1)(k), (l) and (m))
Worker participation 345

(1) The constitution must provide that the members of a workplace forum remain in office until the
first meeting of the newly elected workplace forum.
(2) The constitution must include provisions allowing the members to resign as well as provisions
for the removal of members from office.
Example:
(a) A member of a workplace forum may resign by giving written notice to the chairperson.
(b) A member of a workplace forum must vacate that office:
(i) when the member’s resignation takes effect;
(ii) if the member is promoted to senior managerial status;
(iii) if the member is transferred from the workplace;
(iv) if the member’s employment is terminated;
(v) as a result of an award of a commissioner; or
(vi) if the representative trade union that nominated a member removes the member.
(c) The representative trade union, the employer, or the workplace forum may apply to
the Commission to have a member of the workplace forum removed from office on the
grounds of gross dereliction of the duties of office.
(d) Twenty per cent of the employees in the workplace may submit a signed petition to the Commission
applying for the removal from office of a member of the workplace forum on the grounds of gross
dereliction of the duties of office.
(e) An application to remove a member of a workplace forum from office must be decided by arbitration
under the auspices of the Commission.
(f) A by-election to fill any vacancy in the workplace forum must be conducted by an election officer.
6. Meetings of workplace forum (s 82(1)(n))
The constitution must include provisions governing meetings of the workplace forum.
Example:
(a) The first meeting of a newly elected workplace forum must be convened by the election officer as
soon as practicable after the election.
(b) At that meeting the members of the workplace forum must elect from among their number a
chairperson and a deputy chairperson.
(c) The workplace forum must meet whenever necessary, but at least once a month.
(d) A quorum of the workplace forum must be a majority of the members of the workplace forum
holding office at any time.
(e) A decision of the majority of the members of the workplace forum present at the meeting must be
the decision of the workplace forum.
(f) The meetings between members of the workplace forum and the employees should be at least four
times a year.
Example 1:
In a workplace that is a single place, the meetings with the employees should be with all the members of
the workplace forum.
Example 2:
In a workplace that is geographically dispersed, the meetings with the employees need not be with all
the members of the workplace forum
7. Time off for members of workplace forum (s 82(1)(p))
The constitution must include provisions governing time off for members to perform their functions.
346 A Practical Guide to Labour Law

Example:
(a) A member of a workplace forum is entitled to take reasonable time off with pay during working hours
for the purpose of:
(i) performing the functions and duties of a member; and
(ii) undergoing training relevant to the performance of those functions and duties.
(b) The right to time off is subject to conditions that are reasonable, so as to prevent the undue
disruption of work.
(c) The costs associated with the training must be paid by the employer, if those costs are reasonable,
having regard to the size and capabilities of the employer.
8. Facilities to be provided to workplace forum (s 82(1)(r))
The constitution must require the employer to provide adequate facilities to the workplace forum to
perform its functions.
Example:
(a) The employer must provide, at its cost:
(i) fees, facilities and materials that are necessary for the conduct of elections and by-elections of the
workplace forum; and
(ii) administrative and secretarial facilities that are appropriate to enable the members of the workplace
forum to perform their functions and duties.

(b) These facilities must include, but are not limited to, a room in which the workplace forum may meet
and access to a telephone.
(c) The costs incurred by the employer in complying with the provisions of paragraphs (a) and (b) must
be reasonable, having regard to the size and capabilities of the employer.

9. Experts (s 82(1)(t))
The constitution may provide for the use of experts.
Example:
(a) A workplace forum may ask experts to assist it in the performance of any of its functions.
(b) An expert must ensure that there is no conflict of interest between the assistance given to one
workplace forum and another.
(c) An expert may attend any meeting of the workplace forum and, at its request, address any meetings
of the workplace forum including a meeting with the employer or the employees.
(d) An expert is entitled to any information to which the workplace forum is entitled and may inspect
and copy any document.

10. Establishment of co-ordinating and subsidiary workplace forums (s 82(2)(b))

(1) Where an employer carries on or conducts two or more operations that are independent of
each other by reason of their size, function or organisation, the constitution may provide for the
establishment of a co-ordinating workplace forum with jurisdiction over those matters mentioned in
sections 84 and 86 that affect the employees generally and for the establishment of a subsidiary
workplace forum in each of the workplaces with jurisdiction over those matters that affect only the
employees in that workplace.
(2) Where the employer has a workplace that is geographically dispersed and there are matters
that are of local interest rather than general interest, the constitution may establish a coordinating
workplace forum with general jurisdiction and subsidiary workplace forums with local interest
jurisdiction.
Worker participation 347

Example:
A bank with a head office may have many branches dispersed throughout the country. If the branches are
not regarded as separate workplaces, the bank may have one workplace forum for all its employees or
the constitution may allow for the establishment of a co-ordinating workplace forum at head office level
and in certain or all of the branches allow the establishment of subsidiary workplace forums that will deal
with matters that affect only the employees in those branches.
 17
DISMISSALS

17.1 Introduction

Many of the current principles pertaining to dismissals were developed by the Industrial Court in
terms of its unfair labour practice jurisdiction under the LRA of 1956. The days of “hiring and firing”
an employee at will are forever gone because the emphasis is now on fairness. Indeed, section 185
of the Labour Relations Act of 1995 (LRA) guarantees a right not to be unfairly dismissed – see TSI
Holdings (Pty) Ltd v NUMSA & Others [2006] 7 BLLR 631 (LAC).
Two requirements need to be satisfied to ensure a fair dismissal, laid down by the old Industrial
Court and now codified in the 1995 LRA: substantive fairness and procedural fairness (s 188). The
Labour Court in countless of its decisions confirmed these requirements for a fair dismissal (e.g.
Booysen v SAPS & Others [2008] 10 BLLR 928 (LC)).
Substantive fairness refers to a valid and fair reason to dismiss. The LRA recognises three grounds
as valid reasons for a dismissal: an employee’s misconduct, an employee’s incapacity and the
employer’s operational requirements (s 188). It is accordingly no longer possible to simply give an
employee notice and then terminate his services. There must be a reason for giving notice to
terminate services.
Procedural fairness refers to a procedure during which the employee is given an opportunity to
be heard before a dismissal is effected. The Industrial Court, in its 25 years of existence and through
its innumerable judgments, developed a “checklist” of what a fair procedure comprises and what
will be struck down as unfair. It turned out that the procedure championed by the Industrial Court
closely resembled criminal proceedings. An employee was “accused” of some wrongdoing,
“charged” and called to a (disciplinary) hearing, found guilty and dismissed.
The LRA of 1995 does not envisage such a formal approach to procedural fairness. Section 188
simply requires a “fair procedure”, without defining it, but then refers to the Code of Good Practice:
Dismissal (Schedule 8), which provides some suggestion of what is meant by a “fair procedure”.
Item 4 of Schedule 8 specifically states that the procedure need not be a “formal enquiry”, which
suggests a less rigid approach as the one adopted by the old Industrial Court. Indeed, in Moropane
v Gilbeys Distillers and Vintners (Pty) [1997]10 BLLR
1320 (LC) the Labour Court held that procedural fairness in terms of the 1995 LRA “demands less
stringent and formalised compliance than was the case under the unfair labour practice
jurisprudence of the Industrial Court”. This approach was followed in later judgments.
In Avril Elizabeth Home for the Mentally Handicapped v CCMA & Others [2006] 9 BLLR 833 (LC)
the Court rejected the Industrial Court’s criminal justice model for procedural fairness and
propagated a less formal procedure. In Mogothle v Premier of the North West Province & Others
[2009] 4 BLLR 331 (LC) the Labour Court was of the view that “procedural fairness would be satisfied
by an informal hearing that facilitates a process of dialogue and reflection”.

341
350 A Practical Guide to Labour Law

Despite the more relaxed requirements and the Labour Court judgments, the majority of
employers still follow the old model and even some of the CCMA commissioners, in arbitrations,
prefer the checklist approach.

17.2 Definition of dismissal (s 186(1))

Unlike the 1956 LRA, the LRA of 1995 defines a dismissal. In terms of section 186(1) a dismissal
means that
(a) an employer has terminated employment with or without notice;
(b) an employee employed in terms of a fixed-term contract of employment reasonably expected the
employer –
(i) to renew the fixed-term contract on the same or similar terms, but the employer offered
to renew it on less favourable terms or did not renew it or
(ii) to retain the employee in employment on an indefinite basis but otherwise on the
same or similar terms as the fixed-term contract, but the employer offered to retain the
employee on less favourable terms or did not offer to retain the employee;
(c) an employer refused to allow an employee to resume work after she took maternity leave in terms
of any law, collective agreement or her contract of employment;
(d) an employer who dismissed a number of employees for the same or similar reasons has offered to
re-employ one or more of them, but has refused to re-employ another (selective re-employment);
(e) an employee terminated employment with or without notice because the employer made
continued employment intolerable for the employee (constructive dismissal);
(f) an employee terminated employment with or without notice because the new employer, after a
transfer in terms of section 197 or section 197A, provided that employee with employment
conditions that are substantially less favourable than those provided by the old employer (a form of
constructive dismissal in the context of a section 197 transfer).
Considering this definition, it is clear that the LRA of 1995 gives a broader meaning to what was
understood as “dismissal” in the past. This is so because it recognises a variety of terminations,
some of which were developed by the Industrial Court, as forms of dismissal.
In the first instance section 186(1)(a) states that termination with or without notice constitutes
a dismissal. Before the 1995 LRA it was possible for an employer to terminate the services of an
employee on notice of a duration required by the employment contract, legislation or a collective
agreement, e.g. one month. The employer was not required to have a valid and fair reason or
observe a fair procedure before giving notice and then terminating employment. The LRA, however,
now requires an employer to adhere to the requirements of substantive and procedural fairness so
that even if the required notice is given, the employer must have a reason for the intended
termination and follow a fair procedure.
In NULAW v Barnard NO & Another [2001] 9 BLLR 1002 (LAC) the Labour Appeal Court held that
any act on the part of the employer that brings the employment contract to an end in a manner
recognised by law constitutes a dismissal within the meaning of section 186(1)(a). See also
Ouwehand v Hout Bay Fishing Industries [2004] 8 BLLR 815 (LC); Marneweck v SEESA Ltd [2009] 7
BLLR 669 (LC); Sindane v Prestige Cleaning Services [2009] 12 BLLR 1249 (LC); NUMSA & Others v
Abancedisi Labour Services [2013] 12 BLLR 1185 (SCA); Kukard v GKD Delkor (Pty) Ltd [2015] 1
BLLR 63 (LAC).
The second form of dismissal, found in section 186(1)(b), relates to the non-renewal of a fixed-
term contract. A fixed-term contract is concluded for a specified period or for a specific project and,
based on the principles of Contract Law, terminates automatically upon expiry of the period or
completion of the project. The old Industrial Court deviated from the ordinary contractual principles
because of the ongoing nature of the employment relationship. If, according to the Industrial Court,
the fixed-term contract created an expectation of an
Dismissals 351

ongoing relationship, the failure to renew the contract constituted a dismissal. This sentiment has
been incorporated in the 1995 LRA and is now recognised as a form of a dismissal.
Initially section 186(1)(b) declared the non-renewal of a fixed-term contract or the renewal on
less favourable terms a dismissal if the employee could prove that he had a reasonable expectation
of renewal on the same or similar terms. The Labour Court debated whether this provision included
an expectation of permanent employment and was not consistent in its decisions (see e.g. Dierks v
UNISA [1999] 4 BLLR 304 (LC); McInnes v Technikon Natal [2000] 6 BLLR 701 (LC); University of
Cape Town v Auf der Heyde [2001] 12 BLLR 1316 (LAC)) until the Labour Appeal Court in University
of Pretoria v CCMA & Others [2012] 2 BLLR 164 (LAC) eventually decided that section 186(1)(b)
was confined to fixed term and not permanent employment.
The legislature took note of the debate and in the 2014 amendments to the LRA included an
expectation for permanent employment. Thus, if an employee can prove that he had a reasonable
expectation of the renewal of a fixed-term contract or of permanent employment and the employer
did not renew the contract or did not employ him permanently (or if the employer provided less
favourable conditions), a dismissal has taken place and the fairness of that dismissal will have to be
determined.
An employee who alleges a reasonable expectation of renewal of a fixed-term contract bears the
onus of proving that expectation. See Malandho v SABC [1997] 5 BLLR 555 (LC); Dierks v UNISA
[1999] 4 BLLR 304 (LC); McInnes v Technikon Natal [2000] 6 BLLR 701 (LC); University of Cape Town
v Auf der Heyde [2001] 12 BLLR 1316 (LAC); SACTWU & Another v Cadema Industries (Pty) Ltd
[2008] 8 BLLR 790 (LC); SA Rugby Players’ Association (SARPA) & Others v SA Rugby (Pty) Ltd &
Others; SA Rugby Pty Ltd v SARPU & Another [2008] 9 BLLR 845 (LAC); Joseph v University of
Limpopo & Others [2011] 12 BLLR 1166 (LAC); IMATU v City of Johannesburg Metropolitan
Municipality & Others [2014] 6 BLLR 545 (LAC).
In the Dierks judgment the Court enumerated criteria that should be considered in determining
whether a reasonable expectation existed. While the list is not exhaustive, it is a good indication of
what should be considered to establish a reasonable expectation and has been followed in
numerous other cases
These decisions were based on the original section 186(1)(b). The amended section 186(1)(b)
does not change the burden of proof; the onus remains on the employee to prove a reasonable
expectation, whether for a fixed term or whether for permanent employment.
The purpose of section 186(1)(b) is to prevent the unfair practice of keeping an employee on a
temporary basis without security of employment until such time as the employer wants to dismiss
the employee without complying with the obligations imposed by the LRA in respect of permanent
employees (see Biggs v Rand Water (2003) 24 ILJ 1957 (LC)). It is because employees on fixed-term
contracts have little job security and are considered vulnerable employees that the new section
198B has been inserted into the LRA.
Section 198B provides some protection to lower income employees who are employed on a fixed
term. In summary, an employee earning below the BCEA threshold is not supposed to be employed
for a fixed term of more than three months unless the work for which he is employed is genuinely
of a limited duration or unless the employer has a justifiable reason (such as replacing an employee
who is temporarily absent from work). If the employee is employed in contravention of section 198B
he is considered a permanent employee.
Prior to the LRA of 1995 female employees were at risk of losing their jobs if they were pregnant
and had to take maternity leave. It was only in the last years of the old LRA that the courts started
considering the job security of female employees. See Randall v Progress Knitting Textiles Ltd
(1992) 13 ILJ 200 (IC)).
Now, in terms of section 187 of the 1995 LRA, dismissal on the grounds of pregnancy or for
reasons related to pregnancy is automatically unfair. See Mashava v Cuzen & Woods Attorneys
352 A Practical Guide to Labour Law

[2000] 6 BLLR 691 (LC); Victor v Finro Cash & Carry (2000) 21 ILJ 2489 (LC); Solidarity obo McCabe
v SA Institute for Medical Research [2003] 9 BLLR 927 (LC); Mnguni v
Gumbi [2004] 6 BLLR 558 (LC); Ndlovu v Pather (2006) 27 ILJ 2671 (LC); Nieuwoudt v AllPak (2009)
30 ILJ 2451 (LC); Lukie v Rural Alliance CC t/a Rural Development Specialist [2004] 8 BLLR 769
(LC); Wallace v Du Toit [2006] 8 BLLR 757 (LC).
In the Lukie judgment the applicant took maternity leave with the approval of her manager. The
manager then informed her that she need not return to work after the birth of her baby. She did
not return to work and claimed that she had been dismissed. In terms of section 186(1)(c), read
with section 187, the Court found that she had been dismissed and that, because the reason for her
dismissal was related to her pregnancy, her dismissal was automatically unfair.
In De Beer v SA Export Connection CC [2008] 1 BLLR 36 (LC) it was held that women are
protected, not only while pregnant but also while they are attending to the consequences of the
pregnancy, such as the need to take care of an ill new-born baby. A dismissal based on a reason
related to pregnancy will accordingly also constitute an automatically unfair dismissal.
Under the previous LRA selective re-employment was considered an unfair labour practice. It
was, therefore, unfair for an employer to re-employ only some of a number of employees dismissed
for the same reason – for an illegal strike, for instance. The position changed with some later
decisions handed down by the Industrial Court when it was held that, when employees were
dismissed – in other words, when their contracts of employment were terminated – they were no
longer employees and the employer was not contractually bound to employ them. It was thus
competent for an employer to employ any person it deemed suitable to perform the work. Because
of the uncertainty created by the contradictory decisions of the Industrial Court the legislature
considered it necessary to clarify the situation, with the result that the 1995 Act expressly defines,
in section 186(1)(d), selective re-employment as a form of dismissal.
Constructive dismissal was, in terms of the decisions of the Industrial Court under the previous
LRA, an unfair labour practice. It is now included in the definition of “dismissal”, in section 186(1)(e).
Rightly so, because everyone would agree that the resignation of an employee due to unreasonable
and excessive pressure by his employer is not a voluntary resignation or termination of services, but
a situation akin to a dismissal. See WL Ochse Webb & Pretorius(Pty) Ltd v Vermeulen [1997] 2 BLLR
124 (LAC); Van der Riet v Leisurenet Ltd t/a
Health and Racquet Club [1998] 5 BLLR 471 (LAC); Pretoria Society for the Care of the Retarded v
Loots [1997] 6 BLLR 721 (LAC); Ntsabo v Real Security CC [2004] 1 BLLR 58 (LC); CEPPWAWU &
Another v Glass & Aluminium 2000 CC [2002] 5 BLLR 399 (LAC); Mogorosi and SA Reserve Bank
(2008) 29 ILJ 439 (CCMA); Murray v Minister of Defence (2008) 29 ILJ 1369 (SCA); Eastern Cape
Tourism Board v CCMA [2010] 11 BLLR 1161 (LC); Western Cape Education Department v GPSSBC
& Others [2014] 10 BLLR 987 (LAC); Metropolitan Health Risk Management v Majatladi [2015] 3
BLLR 276 (LAC); National Health Laboratory Service v Yona [2015] 10 BLLR 1002 (LAC); Bakker v
CCMA & Others [2018] 6 BLLR 597 (LC); Nokeng Tsa Taemane Local Municipality v Louw NO [2019]
1 BLLR 35 (LAC).
In Strategic Liquor Services v Mvumbi NO & Others [2009] 9 BLLR 847 (CC) the Constitutional
Court held that the test for establishing a constructive dismissal is that the employer has made
employment intolerable (not that the employee had no choice but to resign). See also Van Wyk v
Albany Bakeries Ltd [2003] 12 BLLR 1274 (LC).
The onus to prove that the employer made employment intolerable is on the employee – see
Jooste v Transnet Ltd t/a South African Airways [1995] 5 BLLR 1 (LAC).
When the LRA was amended in 2002 another form of constructive dismissal was introduced
when section 186(1)(f) was inserted into the definition of dismissal. Where the new employer in a
section 197 transfer provides substantially less favourable conditions of employment, an employee
can resign and claim constructive dismissal.
Another form of dismissal is found, not in the definition, but in the new section 198A. Section
198A deals with the employment of labour broker (TES) employees who earn below the BCEA
Dismissals 353

threshold. If an employee performs a temporary service (as defined in section 198A(1)) the TES is
the employer. If the employee is not performing a temporary service as defined, the client of the
labour broker is deemed to be the employer and the employee is deemed to be employed on an
indefinite basis (subject to the provisions of section 198B, dealing with fixed-term contracts).
Termination of the employee’s services, at the instance of the TES or the client, for the purpose of
avoiding the deeming provisions or because the employee has exercised a right in terms of the LRA
is a dismissal (s 198A(4)).

17.3 Automatically unfair dismissals (s 187)

In terms of section 187 of the LRA some dismissals are automatically unfair. In the main a dismissal
is automatically unfair if an employer discriminates against an employee or if an employee is
dismissed because he exercised his rights in terms of the LRA.

• Dismissal because an employee exercises his right to freedom of association.

• Dismissal because an employee has disclosed information that he is lawfully
required or en titled to give to another person.
• Dismissal because an employee is exercising any of his rights conferred by
the LRA.
Dismissal because an employee participates in
•
any proceedings in terms of the LRA.

• Dismissal because an employee participates in or supports a protected strike.

• Dismissal because an employee refuses to per form the duties of

other employees while they
AUTOMATICALLY are participating in a protected strike or UNFAIR during a lock-out.
DISMISSALS • Dismissal lock-out (dismissal of employees who refuse to accept the
employer’s demand).

• Dismissal because of the employee’s pregnancy, intended pregnancy or any

reason related to the pregnancy.
• Dismissal because of the employer’s unfair discrimination.
• Dismissal in the context of a transfer or reason related to a transfer in terms
of section 197 or 197A.
• Dismissal because an employee made a pro-tected disclosure.

Section 4 of the LRA provides for the right to freedom of association. This right is protected in
sections 5 and 187. An employee may not be dismissed for exercising his right to associate.
Dismissal because an employee is exercising any of the rights pertaining to freedom of association
is an automatically unfair dismissal – FAWU v The Cold Chain & Others [2007] 7 BLLR 638 (LC);
Elliot International (Pty) Ltd v Veloo & Others [2014] 10 BLLR 955 (LAC).
A dismissal is also automatically unfair if the reason for the dismissal is the employee’s
participation in or support of a protected strike or protest action. Similarly, if an employee is
dismissed because he indicates an intention to participate in or support such action, the dismissal
is automatically unfair – SAAPAWU Free State v Fourie & Others [2007] 1 BLLR 67 (LC); Equity
Aviation Services (Pty) Ltd v SATAWU & Others [2009] 10 BLLR 933 (LAC).
354 A Practical Guide to Labour Law

The termination of the services of an employee because he refuses or indicates an intention to

refuse to do the work normally done by another employee who is participating in a protected strike
or who is being locked out is an automatically unfair dismissal, unless that work is necessary to
prevent actual danger to life, personal safety or health. It can be assumed that the legislature had
in mind the protection of life, safety and health of any person and not only employees or their
employer.
In terms of the LRA of 1956 an employer could make use of the so-called dismissal lockout to
compel its employees to accept a proposal or offer. This amounted to a dismissal of the employees
on condition that they would be taken back only if they were willing to accept the employer’s offer.
This form of lock-out is now outlawed and, should an employer dismiss employees to compel them
to accept a demand in respect of any matter of mutual interest between the employer and
employees, their dismissals will be automatically be unfair – NUMSA v Zeuna-Starker Bop (Pty)
[2003] 11 BLLR 1081 (LAC); NUMSA v Aveng Trident Steel & others [2018] 5 BLLR 500 (LC).
An employee is protected in that he may freely exercise his rights, participate in proceedings and
take action against his employer without fear of being dismissed.
It has already been mentioned that the dismissal of an employee because of her pregnancy,
intended pregnancy or any reason related to her pregnancy is automatically unfair (see cases cited
above).
If an employer unfairly discriminates (on the basis of race, gender, age, etc or any arbitrary
ground) against an employee and, because of the discrimination, an employee is dismissed, the
dismissal is automatically unfair. The emphasis is on unfair discrimination. Fair discrimination, i.e.
discrimination on valid grounds, is permissible. Section 187(2) specifically declares a dismissal fair
if the reason for dismissal is based on the inherent requirements of a particular job or if an
employee has reached the normal or agreed retirement age. Such termination will not be
considered an automatically unfair dismissal – see McInnes v Technikon Natal & Others [2000] 6
BLLR 701 (LC); Biggs v Rand Water & Others (2003) 24 ILJ 1957 (LC); Raol Investments (Pty) Ltd t/a
Thekwini Toyota v Madlala [2008] 6 BLLR 535 (SCA); Atkins v Datacentrix (Pty) & Others [2010] 4
BLLR 351 (LC); Department of Correctional Services v POPCRU & Others [2013] 7 BLLR 639 (SCA);
Rubin Sportswear v SACTWU & Others [2004] 10 BLLR 986 (LAC); Evans v Japanese School of
Johannesburg [2006] 12 BLLR 1146
(LC); TDF Network Africa (Pty) Ltd v Faris [2019] 2 BLR 127 (LAC).
If a business is transferred from one owner to another – and that implies one employer to
another – either section 197 or section 197A is applicable, depending on whether the business is
transferred as a going concern or in a state of insolvency. Contracts of employment are
automatically transferred to the new employer and the new employer is required to give the
employees conditions of employment similar to those they previously enjoyed. If the employment
conditions are not substantially similar, the employee may elect to resign under the cloak of a
constructive dismissal. If it were found that the employee had indeed been dismissed, it would
constitute an automatically unfair dismissal – SAMWU v Rand Airport Management Company (Pty)
[2005] 3 BLLR 241 (LAC); Van der Velde v Business & Design Software (Pty) Ltd (2) [2006] 10 BLLR
1004 (LC).
The Protected Disclosures Act of 2000 or the “Whistle-blower’s Act” allows employees to make
protected disclosures about corruption and other irregularities in the workplace without fear of
being subjected to an occupational detriment, that is, unfair treatment on account of the disclosure.
An employee who is exposed to an occupational detriment in contravention of the Act has recourse
against the employer. If the employee is dismissed for having made a protected disclosure, the
dismissal is automatically unfair – see Pedzinski v Andisa Securities (Pty) [2006] 2 BLLR 184 (LC).
Other occupational detriments as a result of a protected disclosure, such as demotion, non-
promotion, suspension or other disciplinary action or a change in employment conditions constitute
unfair labour practices.
Dismissals 355

17.4 Date of dismissal (s 190)

Although the date of a dismissal is in the majority of cases obvious or can easily be determined,
some uncertainty exists and employers and employees are not always sure about the date of
dismissal, for example, if an employee is summarily dismissed for misconduct at a disciplinary
hearing and some time later the dismissal is confirmed on appeal, which of the two dates
constitutes the date of dismissal? It is important to know the date of dismissal as the employee has
30 days from the date of dismissal to refer a dispute to the CCMA or a bargaining council.
In terms of section 190(1) of the LRA the date of dismissal is the earlier of the date on which the
contract of employment terminated and the date on which the employee left the service of the
employer. The dismissal date is thus the date on which the employee is dismissed after the
disciplinary hearing and not the date of the appeal hearing. (The legislature, however, caters for a
referral of the dismissal dispute 30 days after the appeal outcome in section 191(1)(b)(i).)
Section 190(2) provides for the date of dismissal in the case of fixed-term contracts, refusal to
allow an employee to resume work, refusal to reinstate or re-employ and termination on notice. In
the case of a fixed-term contract the date of dismissal is the date on which the employer offered
less favourable terms or the date the employer notified the employee of its intention not to renew
the contract. If the employer refuses to allow an employee to resume work after a period of
absence, the date of dismissal is the date on which the employer first refused to allow the employee
to resume work. Where an employer refuses to reinstate or re-employ an employee, the date of
dismissal is the date on which the employer first refused to reinstate or re-employ that employee.
If the employer terminates an employee’s employment on notice, the date of dismissal is the earlier
of the date on which the notice expires and the date on which the employee is paid all outstanding
salary.

17.5 Requirements for a fair dismissal (s 188)

An employer must prove that a dismissal (other than an automatically unfair dismissal) relates to
an employee’s conduct or capacity or is based on the employer’s operational requirements and
that a fair procedure was adopted before dismissing an employee.
The categories of dismissal, therefore, are:
• dismissal for misconduct;
• dismissal for incapacity or poor work performance; • dismissal for the
employer’s operational requirements.
Two requirements must be complied with in all of the above circumstances in order to ensure the
fairness of a dismissal: substantive fairness and procedural fairness. Where an employee alleges an
unfair dismissal the onus is on the employer to prove, on a balance of probabilities, that the
dismissal was fair.
If an employee claims that he was dismissed, but the employer contends that he was not, the
onus is on the employee to prove the existence of a dismissal. Once the existence of a dismissal has
been proved, the onus shifts to the employer, who must prove the fairness of that dismissal (s 192).

17.5.1 Substantive fairness

Substantive fairness as a requirement for a fair dismissal can be described as a “valid and fair
reason”.
356 A Practical Guide to Labour Law

Valid reason refers to a lawful reason that will justify dismissal. The reason must be lawful in
accordance with common law, statute law, a collective agreement or the contract of employment.
Misconduct, incapacity and poor work performance constitute valid reasons for dismissal if they are
of a serious nature. The employer’s operational requirements are also a valid reason for dismissal.
A valid reason is not per se fair. A fair reason means that, considering all the circumstances,
dismissal is the only appropriate sanction; no alternative sanction can be considered. It is generally
accepted that dismissal is justified in circumstances where the employment relationship has
become intolerable or where the trust relationship between employer and employee has
irretrievably broken down.
The blameworthiness of the employee must be considered. In the event of misconduct an
employee is blameworthy because he has control over what he does and can decide whether or
not to commit an act of misconduct. In the case of incapacity or poor work performance an
employee is generally less blameworthy or entirely blameless – he cannot control an illness or other
physical incapacity or his poor performance may be the result of no or inadequate training by the
employer.
The employer is required to act consistently in the application of its disciplinary rules, without
being rigid and inflexible. Like cases should be treated alike – not by reference to the technical
classifications of the relevant offences, but with regard to their substance, the circumstances under
which they were committed and the position of the offender. For example, it will be unfair if an
employer starts enforcing disciplinary rules without prior warning to employees. Similarly, the
employer is not allowed to act selectively or to discriminate in respect of employees who are guilty
of the same offence.
Before the employer decides on dismissal alternatives to dismissal should be considered. Is
dismissal the only possible sanction or will an alternative sanction be more appropriate in the
circumstances? Mitigating circumstances must be considered before deciding on a sanction.
When dismissal is decided upon, the employer must indicate whether it is a summary dismissal
or one with a period of notice. This choice will largely depend on the disciplinary code and the
reason for the dismissal. Summary dismissal is dismissal without a period of notice and is generally
accepted in instances of serious misconduct. However, if mitigating factors or the personal
circumstances of the employee warrant it, the employer may decide on dismissal with notice. In
such a case the employer may decide to remunerate the worker in lieu of notice. In the event of
incapacity it seems fairer to dismiss an employee with notice.

17.5.2 Procedural fairness

At common law no procedure was required before an employee was dismissed. Provided a valid
reason such as gross misconduct or poor performance existed dismissal was justified. An employer
could dismiss an employee even without disclosing the reason for dismissal and affording the
employee an opportunity to defend himself.
Under the LRA of 1956 the Industrial Court consistently required that an employer follow a fair
procedure before dismissing an employee (for misconduct or incapacity). An employer was thus
required to afford the employee an opportunity to state his case and to bring mitigating
circumstances to the employer’s notice (in accordance with the audi alteram partem rule). It
became customary to conduct disciplinary hearings and, because of the Industrial Court’s stringent
requirements, these hearings developed into proceedings akin to a criminal trial. An employee was
served with a charge sheet, notified of his rights and, at the hearing, allowed to call witnesses and
to cross-examine witnesses called by management. The chairperson was required to consider
mitigating and aggravating factors before deciding on a sanction. The employee was then afforded
an opportunity to appeal to a higher tier of management.
The 1995 LRA also requires a fair procedure, but propagates a less formal procedure. A Code of
Good Practice: Dismissal (Schedule 8) has been issued in terms of the LRA as a guideline of inter
Dismissals 357

alia what a fair procedure entails. Item 4 of the Code requires that the employer investigate
allegations of misconduct, but specifically states that the enquiry need not be formal. Indeed, in
Avril Elizabeth Home for the Mentally Handicapped v CCMA & Others [2006] 9 BLLR 833 (LC) the
Labour Court confirmed that the “criminal model” of a disciplinary procedure is no longer applicable
to internal disciplinary proceedings. An employer is merely required to conduct an investigation,
give the employee and his representative an opportunity to respond to the allegations and notify
the employee of its decision. The Code of Good Practice does not require an appeal hearing as an
inherent part of a fair procedure. However, it has become standard practice to afford employees
the right of appeal to a higher tier of management, a practice followed by most employers.
A fair procedure in essence entails two rules: the audi alteram partem rule in terms of which the
employee must be afforded an opportunity to respond to the allegations and the nemo iudex in sua
causa rule in terms of which the decision-maker must be an objective and neutral person with no
knowledge of the case before deciding the matter.

17.6 Dismissal for misconduct

Because misconduct is prevalent in every workplace and its consequences may have farreaching
implications, an employer has to adopt measures to curb misconduct. This is done by implementing
disciplinary rules in the form of a disciplinary code or a code of conduct. A positive approach to
discipline is required rather than a punitive one. This means that discipline should be aimed at
corrective measures and should include counselling and verbal and written warnings, referred to as
progressive discipline. However, some forms of misconduct are simply so serious that stringent
measures have to be applied. This may include dismissal.
As a general rule misconduct, or accumulated instances thereof, will be sufficiently serious to
justify dismissal if it renders the continued relationship between employer and employee
intolerable.
If the employee makes himself guilty of misconduct the employer will have to establish whether
the employee has a history of the same or similar type of misconduct before dismissal is justified.
Dismissal for less serious instances of misconduct will be justified only if the employee had in the
past been found guilty of misconduct, received warnings and can be shown to have been aware of
the fact that a further infraction could result in dismissal.
It is only in circumstances where the employee is found guilty of misconduct of a very serious
nature or with a criminal element that summary dismissal is justified. Prior warnings in such a case
are generally not required. Instances that will justify summary dismissal without prior warnings
include theft, fraud and all forms of dishonesty, assault and intimidation. The Code of Good Practice,
in item 3(4), also recognises these forms of misconduct as sufficiently serious to justify summary
dismissal. For theft refer to Olkers v Monviso Knitwear (Pty) Ltd (1988) 9 ILJ 875 (IC); SACCAWU
& Another v The Clicks Organisation (Pty) Ltd [1997] 2 BLLR 164 (IC); Komane v Fedsure Life [1998]
2 BLLR 215 (CCMA); Metcash Trading Ltd t/a Metro Cash & Carry v Fobb & Others [1998] 11 BLLR
1136 (LC); Rustenburg Platinum Mines Ltd (Rustenburg Section) v NUM & Others [2001] 3 BLLR 305
(LAC); Miyambo v CCMA & Others [2010] 10 BLLR 1017 (LAC); Rainbow Farms (Pty) Ltd v CCMA
& Others [2011] 5 BLLR 504 (LC); [2011] 5 BLLR 451 (LAC); James & Another v Eskom Holdings SOC
& Others (2017) 38 ILJ 2269 (LAC) For assault see Swanepoel v AECI Ltd (1984) 5 ILJ 41 (IC);
County Fair Foods (Pty) Ltd v CCMA & Others [1999] 11 BLLR 1117 (LAC); SMCWU & Another v
Party Design CC (Doll’s Dairy) [2001] 6 BLLR 667 (LC); Raol Investments (Pty) Ltd t/a Thekwini
Toyota v Madlala [2008] 6 BLLR 535 (SCA). For intimidation refer to Kompecha v Bite My Sausage
CC (1988) 9 ILJ 1077 (IC); Mabinana & Others v Baldwins Steel [1999] 5 BLLR 453 (LAC); Adcock
Ingram Critical Care v CCMA & Others [2001] 9 BLLR 979 (LAC); NUM v Black Mountain Mining
(Pty) Ltd & Others [2010]3 BLLR 281 (LC); National Democratic Change & Allied Workers Union &
Others v Cummins Emission Solutions (Pty) Ltd [2014] 6 BLLR 600 (LC); National Sugar Refining &
358 A Practical Guide to Labour Law

Allied Industries Union obo Mngomezulu v Tongaat Hulett Sugar Ltd (Darnall) (2016) 37 ILJ 2441
(BCA). For fraud see BMW (South Africa) (Pty) Ltd v Van der Walt [2000] 2 BLLR 121 (LAC); Vaal
Toyota (Nigel) v Motor Industry Bargaining Council & Others [2002] 10 BLLR 936 (LAC); City of
Cape Town v SALGBC & Others [2011] 5 BLLR 504 (LC); Workforce Group v McLintock & Others
(2017) 38 ILJ 158 (LAC). For racial comments refer to Rustenburg Platinum Mine v SA Equity
Workers Association obo Bester & Others (2018) 39 ILJ 1503 (CC); SARS v CCMA & Others [[2017]
1 BLLR 8 (CC). For dishonesty refer to Department of Home Affairs & Another v Ndlovu & Others
(2014) 35 ILJ 3340 (LAC); Schwartz v Sasol Polymers & Others (2017) 38 ILJ 915 (LAC); Kidrogen
(Pty) Ltd v CCMA & Others (2018) 39 ILJ 2560 (LC).
There is no fixed rule regarding the number of warnings that must precede a dismissal. The
employer is, however, advised to adhere to its disciplinary code in this regard. The fact that the
required number of warnings may already have been given, does not necessarily justify dismissal if
a further infraction occurs: the prior warning may have lapsed, the relevant breaches of a rule to
which they pertain may not have been of a serious nature or the final infraction may have been of
a nebulous nature.
If the final act of misconduct is not in itself sufficiently serious so as to justify summary dismissal,
it is generally required that the various instances of previous misconduct must be related, that is,
of the same or a similar nature. But even in cases where the present and previous instances of
misconduct are unrelated, it may be possible to detect a general pattern of misconduct, which may
render the continued relationship intolerable. The question, ultimately, is whether dismissal is
appropriate in the circumstances.
A suspicion of serious misconduct is not sufficient to warrant dismissal. The employer, however,
is not required to prove the misconduct beyond reasonable doubt. It is sufficient for the employer
to have reason to believe, on a balance of probabilities, that a disciplinary offence has been
committed. The employer may take into account only those facts known at the time of the dismissal.
An employer cannot dismiss an employee for refusing to commit some illegal act, for example, a
refusal to work overtime in excess of the prescribed hours. A dismissal must not constitute a breach
of the employment contract or of any agreement in place in the company. An unfair dismissal
constitutes such a breach.
Based on what has been said, the requirements for a fair dismissal in the case of misconduct may
be summarised as follows:

• “Valid reason” means a lawful reason according to common

law, a contract of employment or an agreement (such as theft,
gross insubordination, assault).
• A lawful reason is not per se fair. A reason is fair only if a continued employment
relationship is impossible. Other alternatives must be considered; dismissal must be the
last resort.
• Repeated incidents of misconduct are required before a dismissal is justified, unless the
misconduct displays a criminal element (such as fraud, assault or theft) or the misconduct
destroys the trust relationship between the employer and
SUBSTANTIVE employee.
FAIRNESS
• There is no fixed rule regarding the number of warnings that must precede a dismissal, but
warnings must be issued for the same or related offences.
• The employer must act consistently, i.e. treat like cases alike.
• All circumstances in a given case must be considered, such as the disciplinary record and
length of service of the employee, mitigating factors, the nature of the misconduct and
possible prejudice to the employer.
Dismissals 359

• The onus is on the employer to prove, on a balance of probabilities, that the dismissal is
fair in accordance with the facts known to him.
Checklist
The following checklist may be used to determine whether the employer has sufficient reason to
dismiss an employee (see item 7 of the Code of Good Practice: Dismissal):
• Is a disciplinary rule in existence that governs the conduct complained of?
• Is the rule reasonable?
• Was the employee aware of the rule or should he reasonable have been aware of it?
• Was the rule breached?
• Was the employee aware of the consequences of a breach of the rule?
• Has the disciplinary code been consistently enforced?
• Is dismissal the appropriate sanction in the circumstances?
The summary of procedural fairness that follows reflects the elements of a fair procedure as it was
developed by the old Industrial Court and still applied by most employers, even though the Labour
Court, in terms of the 1995 LRA, supports a less formal procedure.

• The employee is to be notified of the allegations against him and of what his rights at the
hearing are.
• The disciplinary hearing should be held as soon as possible after the incident, but the
employee must be granted sufficient time to prepare his case.
• At the hearing the employee has the right to state his case in accordance with the audi
alteram partem rule, the right to call witnesses and the right to cross-examine witnesses
called by management.
• The employee also has the right to an interpreter and to be represented or assisted by a
co-employee.
• The chairperson must be a neutral person and must not PROCEDURAL prejudge the case.
FAIRNESS • The employee must be informed of the final decision, the sanction and the reasons
therefor in writing.
• The employee must be informed of his right of appeal (if
company policy provides for an appeal).
• The employee must lodge his appeal within the time pre-
scribed by the disciplinary procedures.
• The employee enjoys the same rights at the appeal as at the disciplinary hearing.
• The appeal chairperson must be someone other than the
person who chaired the disciplinary hearing and must consider
whether dismissal is the most appropriate sanction.
• The employee must be informed of the outcome of the appeal.

17.7 Dismissal for incapacity

Traditionally “incapacity” refers to either ill health or poor work performance but, according to the
courts, “any condition or circumstance that renders an employee incapable of performing his work”
may constitute incapacity. In Armaments Corporation of South Africa (SOC) Ltd v CCMA & Others
[2016] 5 BLLR 461 (LC), for example, the withdrawal of a security clearance in circumstances where
such clearance was required for the job was found to be a justifiable reason for dismissal. And, in
360 A Practical Guide to Labour Law

Samancor Tubatse Ferrochrome v MEIBC & Others [2010] 8 BLLR 824 (LAC) the employee’s
incarceration and the commercial need to fill his position was recognised as an “operational
incapacity”.
Incompatibility or a “personality clash” between two employees can justify dismissal, provided
that it can be proved that the disharmony was caused by one of the employees and that remedial
action was attempted – Hapwood v Spanjaard Ltd [1996] 2 BLLR 187 (IC); Schreuder v Nederduitse
Gereformeerde Kerk Wilgespruit & Others [1999] 7 BLLR 713 (LC); Jardine v Tongaat Hulett Sugar
Ltd [2002] 4 BALR 426 (CCMA); Jabari v Telkom SA (Pty) Ltd [2006] 10 BLLR 924 (LC); Van der Merwe
v Agricultural Research Council [2013] 9 BALR 1012 (CCMA).
Ill health or injury and poor work performance still remain the best-known forms of incapacity.
If an employee is not capable of doing the work because he lacks skills, knowledge or ability and,
therefore, does not meet the required performance standards he can be dismissed for poor work
performance. An employer is entitled to set reasonable performance standards and an employee is
expected to meet those standards. For dismissal based on poor work performance see inter alia
Eskom v Mokoena [1997] 8 BLLR 965 (LAC); SACCAWU v Pep Stores (1998) 19 ILJ 939 (CCMA);
Buthelezi v Amalgamated Beverage Industries [1999] 9 BLLR 907 (LC); Crawford v Grace Hotel
(2000) 21 ILJ 2315 (CCMA); General Motors (Pty) Ltd v NUMSA obo Ruiters (2015) 36 ILJ 1492
(LAC).
If an employee is incapable of doing the work on account of poor health or injury he can be
dismissed for physical incapacity. See Davies v Clean Deale CC (1992) 13 ILJ 1230 (IC); Hendricks
v Mercantile & General Reinsurance Co of SA Ltd (1994) 15 ILJ 304 (LAC); Standard Bank of South
Africa v CCMA & Others [2008] 4 BLLR 356 (LC); IMATU obo Strydom v Witzenberg Municipality &
Others [2012] 7 BLLR 660 (LAC); General Motors SA (Pty) Ltd v NUMSA (2018) 39 ILJ 1316 (LC);
Parexel International (Pty) Ltd v Chakane NO & Others (2018) 39 ILJ 644 (LC).
A dismissal on account of physical incapacity or poor work performance is different from a
dismissal for misconduct. A distinction is drawn between an employee who is unwilling to perform
(i.e. misconduct) and one who cannot perform (i.e. incapacity) since, in the latter case, the
employee is less blameworthy or blameless. However, it would be unfair to expect an employer to
keep an incapacitated employee on indefinitely. Before an employer considers dismissing the
employee it should make an attempt to accommodate the employee. Attempts should be made to
remedy the incapacity or incompetence and the employee should be informed that his performance
does not meet required standards. Should dismissal prove necessary, it is suggested that a period
of notice be attached to the dismissal.
The test for substantive fairness is whether the employer can fairly be expected to continue with
the employment relationship, bearing in mind the merits of the case. Factors to be considered
include the nature of the incapacity or poor work performance; the extent or degree of the
employee’s inability to perform; the likelihood of improvement; the size and possible effect on the
employer’s operations; the effect on the welfare, safety and morale of co-employees; the status of
the employee, his service record and length of service; the cause of the poor performance or
incapacity; the possibility of transfer to another position. In the case of poor performance regular
assessments or appraisals are required.
If dismissal seems the only option, the employee must be afforded an opportunity to defend
himself and to provide reasons why he should not be dismissed. This can be done in the form of a
hearing.
The salient points relating to dismissal for incapacity can be summarised as follows:

• The test for substantive fairness is whether the employer can fairly be expected to
continue with the employment relationship, bearing in mind the
merits of the case.
Dismissals 361
–
– the extent and degree of the employee’s inability to perform.
In the case of poor performance, was the employee aware of
the required standard of performance and did he meet that
standard?
– the likelihood of recovery from physical incapacity or
improvement of poor performance (by making him aware of
the required standards, counselling and training and giving him
an opportunity to meet the standard);
– the possible effect on the employer’s operations;
– the effect on the welfare, safety and morale of other
employees;
– the status of the employee, his service record and length of
service;
– period of absence in the case of physical incapacity. Is the
incapacity temporary or permanent, can the employee’s job be
adapted or is an alternative job available?
– the cause of the incapacity or poor performance. An
investigation is required;
• Alcohol or drug addiction is to be treated as an illness and not as
misconduct.

• The onus is on the employer to ensure that he has taken reasonable

steps to assist the employee.
• The employer should consult with the employee about his
incapacity.
• Medical treatment or placement elsewhere in the company should
be considered.
• Inform the employee of his poor performance and possible
consequences of non-improvement.
• Provide training or consider placement elsewhere.
• Before the employee is dismissed a hearing should be con-ducted
in order to afford him an opportunity to show why he should not
be dismissed. The employee may be assisted by his union or a co-
employee during the hearing.

Any person who, in the event of misconduct or incapacity, has to consider whether the reason for
dismissal is fair and/or whether the dismissal was effected in accordance with a fair procedure,
must take into account the Code of Good Practice: Dismissal, contained in Schedule 8 to the LRA
(see Appendix 1). Item 9 of the Code deals with poor performance and items 10 and 11 with ill
health or physical incapacity.
17.8 Dismissal for operational requirements (ss 189 & 189A)

Another substantive reason for dismissal is the operational requirements of the employer, such as
technological changes within the company which result in posts becoming redundant, a downturn
in the economy which necessitates retrenchments and the closure, relocation or sale and transfer
of the business.
362 A Practical Guide to Labour Law

The procedure for a fair dismissal based on the operational requirements of the employer
evolved through decisions of the Industrial Court and has been incorporated in section 189 of the
LRA of 1995.
The 2002 amendments to the Act brought about significant changes to retrenchment laws. A
new section 189A was inserted which applies to employers with more than 50 employees in
instances where the employer contemplates retrenching more than a prescribed number of
employees during a 12-month period. Section 189A allows employees and their unions to elect
between a strike or adjudication should they wish to challenge the substantive fairness of the
dismissal. Strike action is not permitted in the event of a procedural challenge.
Section 189 is applicable to so-called “minor” (or “small-scale”) retrenchments while both
sections 189 and 189A are applicable to “major” or “large-scale” retrenchments (sometimes also
referred to as “mass dismissals”).
Section 189: When an employer contemplates dismissing one or more employees for reasons
based on its operational requirements consultation must take place. The hierarchy of the consulting
parties with whom the employer must consult is as follows: any person who has been identified as
the consulting party in a collective agreement; if there is no such agreement, a workplace forum (if
one has been established) and any registered trade union whose members are likely to be affected
by the proposed dismissals; if there is no workplace forum, any registered union whose members
are likely to be affected must be consulted; if there is no such trade union, the employees likely to
be affected or their representatives nominated for that purpose must be consulted.
The employer must issue a written notice to the other consulting party, inviting it to consultation.
This notice is referred to as the “section 189(3) notice” and the employer is required to disclose all
relevant information in the notice, including, but not limited to:
(a) the reasons for the proposed dismissals;
(b) the alternatives that the employer considered before proposing the dismissals and the reasons
for rejecting each of those alternatives;
(c) the number of employees likely to be affected and the job categories in which they are
employed;
(d) the proposed method for selecting which employees to dismiss;
(e) the time when, or the period during which, the dismissals are likely to take effect; (f ) the
severance pay proposed;
(g) any assistance that the employer proposes to offer to the employees likely to be dismissed;
and
(h) the possibility of future re-employment of the employees who are dismissed.
(i) the number of employees employed by the employer;
(j) the number of employees that the employer has dismissed for operational requirements
during the preceding 12 months.
Relevant information must be disclosed, unless such information is legally privileged, confidential
or relates to private personal information of an employee. Any dispute relating to the disclosure of
information must be referred to the CCMA for conciliation and, if necessary, arbitration and the
provisions of section 16 (disclosure to a majority union) apply mutatis mutandis. An employer who
refuses to disclose information must prove that the information is not relevant.
The consulting parties must attempt to reach consensus on appropriate measures to avoid or
minimise the dismissals, to change the timing of the dismissals and to mitigate the adverse effects
of the dismissals. The parties must also endeavour to agree on the method for selecting the
employees to be dismissed and the severance pay for dismissed employees. This is a consensus-
seeking process in which the consulting parties are expected to participate in good faith – Viljoen v
Johannesburg Stock Exchange Ltd (2017) 38 ILJ 671 (LC); AMCU & Others v Bafokeng Rasimone
Management Services (Pty) Ltd & Others (2017) 38 ILJ 931(LC); AMCU & Others v Piet Wes Civils
Dismissals 363

CC & Another (2017) 38 ILJ 1128 (LC); Piet Wes Civils CC & Another v AMCU & Others (2019) 40
ILJ 130 (LAC); Woolworths (Pty) Ltd v SACCAWU & Others (2018) 39 ILJ 222 (LAC); TWK Agri (Pty)
Ltd v Wagner & Others (2018) 39 ILJ 797 (LAC); AMCU & Others v Tanker Services (Pty) Ltd (2018)
39 ILJ 2265 (LC).
The employer must allow the other consulting party an opportunity during consultation to make
representations about the issues under consultation. The employer must consider the
representations and furnish reasons when disagreeing with any of those proposals. If
representations have been made in writing the employer must respond in writing.
After consultation, the employer must select the employees to be dismissed in accordance with
the agreed selection criteria or, if no criteria have been agreed, criteria that are fair and objective.
Section 189A: The thrust of section 189A is to give trade unions a choice between taking strike
action or referring a dispute to the Labour Court for adjudication if the substantive fairness of the
dismissals is being challenged; they cannot pursue both routes. The right to strike in this context is
limited to substantive issues only and does not apply to the employer’s failure to comply with a fair
procedure. Furthermore, the right to strike does not apply where the employer employs fewer than
50 employees or where the employer employs more than 50 employees, but contemplates
dismissing less than the threshold number during a 12-month period. Another significant feature
of section 189A is that it allows for CCMA facilitation to assist parties in the retrenchment exercise.
Section 189A is applicable to employers employing more than 50 employees and who
contemplate dismissing a number of employees for operational reasons. The provisions of section
189A apply when the employer contemplates dismissing • 10 employees where the employer
employs 51 to 200 employees;
• 20 employees where it employs 201 to 300 employees;
• 30 employees where it employs 301 to 400 employees;
• 40 employees where it employs 401 to 500 employees;
• 50 employees where it employs more than 500 employees.
These thresholds apply for a period of 12 months. In other words, if the employer dismisses the
prescribed number of employees either at the same time or at different times during a 12-month
period, section 189A applies. So, if a number of employees short of the prescribed number are
dismissed and a few months later more employees are dismissed so that the two groups together
exceed the threshold, the employer is subject to the provisions of section 189A.
Any of the consulting parties may request the CCMA to appoint a facilitator to assist the parties
in their consultations. The facilitator is appointed in terms of regulations issued by the Minister and
must conduct the facilitation in accordance with those regulations.
If a facilitator has been appointed and 60 days have lapsed since the date of the section 189(3)
notice, the employer may give notice of termination of services in accordance with the provisions
of the Basic Conditions of Employment Act. In response to the notice to terminate services the
affected employees or registered union who have received the notice may elect to strike or refer a
dispute to the Labour Court. (Note that these provisions do not require that the matter be
conciliated first.) Once the employees or union have elected one of the two options, the other
option falls away. Thus, should the union elect to strike it cannot at a later stage approach the
Labour Court on the issue over which strike action was taken. It is possible that an employer is hit
by both a strike and a court case – the strike called by the union and the court case by non-union
members who do not participate in the strike.
In circumstances where a facilitator has not been appointed a period of 30 days from the date of
the section 189(3) notice must lapse before a dispute is referred to conciliation. Once the certificate
of non-resolution has been issued or 30 days have lapsed since the referral, the employer may give
notice of termination. This in effect means that the employer will not be able to dismiss the
employees before a period of 60 days has lapsed. The union or affected employees may either give
364 A Practical Guide to Labour Law

notice to strike or refer the dispute to the Labour Court (if the dispute concerns substantive issues
only). If the employer dismisses the employees or gives them notice of termination before expiry
of the 60 days, notice of a strike may be given. See Steenkamp & Others v Edcon Ltd (2016) 37 ILJ
564 (CC).
The provisions relating to strikes found in sections 64 to 69 and 76 apply to strikes in this context,
with a few changes. For example, if a facilitator has been appointed, referral of the dispute to
conciliation is not required and in the case of a secondary strike the notice period required before
commencement of a strike is 14 days (and not seven days). In the latter instance the employer who
received a notice of a secondary strike may request the Director of the CCMA to appoint a
commissioner to conciliate the dispute. Such a request or the appointment of a commissioner does
not affect the right of the employees to strike upon expiry of the 14-day period.
If the procedural fairness of the dismissal is challenged, a consulting party may approach the
Labour Court by way of an application for an order compelling the employer to comply with fair
procedures, interdicting the employer from dismissing the employees or directing the employer to
reinstate the employees until a fair procedure has been complied with. The application must be
brought within 30 days from the date the employer gave notice of termination or, if no notice was
given, 30 days from the date of dismissal. A late application may be condoned on good cause shown.
The Court may make any appropriate order, including an award of compensation, but may not make
an order regarding disclosure of information that has been the subject of an arbitration award. The
Labour Court may not adjudicate a dispute about the procedural fairness of a dismissal for
operational requirements in any dispute referred to it in terms of section 191(5)(b)(ii).
Severance pay: When an employee is dismissed for operational requirements, he must receive a
severance package in addition to the ordinary payments due to him. Originally the LRA, in section
196, provided for severance pay. These provisions have been removed from the LRA and can now
be found in section 41 of the BCEA. Severance pay is equal to at least one week’s remuneration for
each completed year of continuous service with the employer. An employee who unreasonably
refuses to accept his employer’s offer of alternative employment within the company or with
another employer forfeits his right to severance pay. An employer may apply to the Minister for
exemption from the payment of severance pay.
If there is a dispute about the entitlement to severance pay only, that dispute may be referred
to a bargaining council or, if there is no council with jurisdiction, to the CCMA for conciliation and,
if necessary, arbitration.

17.9 Disputes about unfair dismissals (s 191)

Unlike the 1956 Act, in terms of which it was possible to refer all disputes regarding alleged unfair
dismissals to the Industrial Court, the 1995 LRA provides for some dismissal cases to be finalised by
a bargaining (or statutory) council or the CCMA (s 191(5)(a)), whilst others must be referred to the
Labour Court (s 191(5)(b)).
A bargaining or statutory council with jurisdiction or the CCMA, if there is no council with
jurisdiction, is competent to finalise through arbitration a dispute relating to:
• dismissal for misconduct or incapacity;
• constructive dismissal;
• cases where the employee alleges that he does not know the reason for his dismissal;
• dismissal in the context of the non-renewal of a fixed-term contract;
• dismissal in the context of selective re-employment;
Dismissals 365

• cases where the employee alleges that the reason for the dismissal is that the employer provided
substantially less favourable employment conditions or circumstances after a transfer in terms
of sections 197 and 197A (unless the employee alleges that the dismissal occurred for a reason
contemplated in section 187);
• dismissal for operational requirements. In limited circumstances a council or the CCMA has
jurisdiction to entertain an operational requirements dismissal. Where only one employee is
dismissed during a retrenchment exercise that employee may elect to have his dismissal dispute
arbitrated by a council or the CCMA or adjudicated by the Labour Court. Or, where an employer
employs fewer than ten employees the retrenched employees can opt for arbitration or Labour
Court adjudication irrespective of the number of employees who were dismissed;
• dismissal of a probationary employee must be referred for con-arb.
The Labour Court has exclusive jurisdiction to adjudicate the following alleged unfair dismissals
(where conciliation has failed):
• an automatically unfair dismissal as contemplated in section 187 of the LRA;
• a dismissal based on the employer’s operational requirements. Note that where only one
employee is dismissed for operational requirements or where an employer employs fewer than
ten employees and some are dismissed, the retrenched employee or employees have an election
between arbitration or Labour Court adjudication;
• dismissal because of participation in an unlawful or unprotected strike;
• dismissal because the employee refused to join, was refused membership of or was expelled
from a trade union party to a closed shop agreement; and
• dismissals (and unfair labour practices) that constitute occupational detriments as envisaged in
the Protected Disclosures Act of 2000. A dismissal in this context is automatically unfair.
The procedure for the resolution of a dispute regarding an unfair dismissal is as follows:
If there is a dispute about the fairness of a dismissal, the dismissed employee refers the dispute
to a council if the parties to the dispute fall within the registered scope of that council or to the
CCMA if no council has jurisdiction. The referral must be done in writing within 30 days of the date
of dismissal, but the council or CCMA may, on good cause shown, condone a late referral (s
191(1)(3)). The employee must satisfy the council or the CCMA that a copy of the referral has been
served on the employer by e-mail, registered mail, telegram, telex, telefax or by hand.
The council or the CCMA must attempt to resolve the dispute through conciliation within 30 days
of receiving the referral (the so-called 30-day conciliation period). The parties can agree to extend
the 30-day period (ss 191(4) & 135). At the conclusion of the conciliation process the conciliator
must issue an outcome certificate, indicating whether the dispute was resolved. If the dispute
remains unresolved after conciliation or after expiry of the 30-day conciliation period, a certificate
of non-resolution is issued (s 135(5)). The employee can then refer the dispute to arbitration or to
Labour Court adjudication, depending on the nature of the dispute. In instances in which the Labour
Court ordinarily has jurisdiction the parties may agree in writing to have their dispute arbitrated (ss
133(2)(b) & 141). Referral to arbitration or to the Labour Court must be filed within 90 days from
the date of the outcome certificate. Condonation for a later referral may be granted on good cause
shown (ss 136(1) & 191(11)).
Despite the fact that a council or the CCMA has jurisdiction to finalise certain dismissal disputes
by way of arbitration, the Director of the CCMA must, on application, refer the dispute to the Labour
Court if deemed appropriate. This will be done after the Director has considered, inter alia, the
complexity of the matter and the parties to the dispute and the conciliating commissioner have
submitted representations. The Director’s decision is final and binding (s 191(6)–(10)).
In any proceedings concerning a dismissal the employee must prove the existence of a dismissal.
Once this has been established, the employer must prove that the dismissal was fair (s 192).
366 A Practical Guide to Labour Law

The 2002 amendments added two new dispute resolution processes aimed primarily at the quick
resolution of a dispute: con-arb (s 191(5A)) and pre-dismissal arbitration (s 188A). The “pre-
dismissal arbitration” has been renamed “inquiry by an arbitrator” in the 2014 amendments.
Con-arb is a fusion of the conciliation and arbitration processes, meaning that, where conciliation
fails the dispute is immediately arbitrated. Con-arb is compulsory in disputes concerning the
dismissal of a probationary employee and unfair labour practices in the context of probation. Con-
arb may also be used in other dismissal disputes that are arbitrable if the parties do not object
thereto.
Where an employer brings allegations of misconduct or incapacity against an employee the
process of “inquiry by an arbitrator” can be used instead of summoning the employee to a
disciplinary hearing. The inquiry by an arbitrator in effect takes the place of the disciplinary hearing.
The idea is to circumvent the protracted and time-consuming processes of internal disciplinary and
appeal procedures and thereafter conciliation and arbitration and get a final outcome on the
allegations against the employee much sooner.
An inquiry by an arbitrator can be conducted only with the consent of the employee concerned.
The employer is required to advise the employee of the allegations against him first and then seek
the employee’s consent. If the employee consents, the employer requests the CCMA (or a council)
to appoint an arbitrator to conduct an inquiry into the allegations. An employee who earns in excess
of the BCEA threshold may in his contract of employment consent to an inquiry by an arbitrator.
When the employer approaches the CCMA to appoint an arbitrator the prescribed form (Form
7.19), signed by both the employer and the employee, must be filed with the CCMA and the
employer must pay the prescribed fee. Upon receipt of the form and payment the CCMA will
appoint an arbitrator to conduct the inquiry. Councils have their own forms and fees.
The inquiry conducted by the arbitrator takes the form of an arbitration. For a detailed discussion
of the process see chapter 19.
The following diagrams are provided to illustrate the procedures to be followed for dismissals
based on different grounds:1

________________________

1 These diagrams are contained as flow diagrams 10, 11, 12 and 13 of Sch 4 of the LRA. Sch 4, however, does not
have the force of law and the diagrams therein are intended only to provide guidance and assistance to parties
involved in a dispute. The diagrams have been slightly adapted.
AUTOMATICALLY UNFAIR DISMISSALS AND DISMISSALS FOR
OPERATIONAL REQUIREMENTS2
Dismissals 367

DISMISSAL FOR MISCONDUCT OR INCAPACITY

________________________

2 Keep in mind that some operational requirement dismissals can be arbitrated by a council or the CCMA. Where
only one employee is dismissed during a retrenchment exercise or when some employees of an employer with less
than ten employees are retrenched, they can elect between arbitration or Labour Court adjudication. If they elect
arbitration they have to refer the dispute within 90 days after conciliation to the council or CCMA for arbitration. A
council or the CCMA can order reinstatement, re-employment or compensation, but cannot make any additional
appropriate order.
UNFAIR DISMISSAL
Unprotected strikes and reasons related to closed shop agreements
368 A Practical Guide to Labour Law

17.10 Remedies for unfair dismissal (ss 193–195)

If the Labour Court or an arbitrator finds a dismissal unfair, reinstatement or re-employment may
be ordered. Reinstatement means the restoration of the employment contract; the dismissed
employee is returned to the position he occupied before the dismissal. Reemployment implies that
the contract terminated on the date of dismissal and a new contract commences on the date of re-
employment. An employee may be re-employed in the position he held before the dismissal or in
any other reasonably suitable position and on any terms.
The courts have consistently held that reinstatement is the primary remedy in instances where
a dismissal is found to have been substantively unfair, unless the employee does not want to be
reinstated or re-employed, where a continued employment relationship is not possible or where it
is not practicable to reinstate or re-employ the employee (s 193(2)), in which case compensation
may be ordered. See in this regard Director General: Office of the Premier, Western Cape v SA
Medical Association obo Broens (2011) 32 ILJ 1077 (LC); Piet Wes Civil CC v AMCU & Others
[2018] ZALAC 18 (LAC).
Reinstatement or re-employment cannot be coupled with an order of compensation; it is one or
the other. In Equity Aviation Services (Pty) Ltd v CCMA & Others [2008] 12 BLLR 1129 (CC) the
Constitutional Court confirmed that re-instatement and compensation are “in the alternative and
mutually exclusive”.
Reinstatement or re-employment may be ordered retrospectively, i.e. the court or the arbitrator
determines the date from which the reinstatement or re-employment is to take effect, but such
Dismissals 369

date may not be earlier than the date of the dismissal (s 193(1)) – Whall v BrandAdd Marketing
(Pty) Ltd [1999] 6 BLLR 626 (LC); NUM & Others v RSA Geological Services & Others [2004] 1 BALR
1 (ARB); NUMSA & Others v Fibre Flair CC [2000] 6 BLLR 631 (LAC).
If a dismissal was only procedurally unfair, reinstatement or re-employment is not a competent
remedy and only compensation can be ordered (s 193(2)) – see Volkswagen SA (Pty) Ltd v Brand
NO & Others [2001] 5 BLLR 558 (LC). However, it is at the discretion of the court or the arbitrator
to decide whether to order compensation at all – see Johnson & Johnson (Pty) Ltd v CWIU &
Others [1998] 12 BLLR 1209 (LAC); Alpha Plant and Services (Pty) Ltd v Simmond & Others [2001]
3 BLLR 261 (LAC); Parry v Astral Operations [2005] 10 BLLR 989 (LC); Basson v Cecil Nurse (Pty)
Ltd [2001] 3 BLLR 321 (LC); Dr D C Kemp t/a Centralmed v Rawlins [2009] 11 BLLR 1027 (LAC).
If a dismissal is automatically unfair or if a dismissal based on the employer’s operational
requirements is found to have been unfair, the Labour Court may in addition make any other order
that it considers appropriate in the circumstances. The court may, for example, issue an interdict in
the case of discrimination, compelling the employer to stop discriminatory practices. The interdict
is then issued in addition to reinstatement, re-employment or compensation.
The amount of compensation ordered by a court or arbitrator must be just and equitable in the
circumstances, but may not exceed the equivalent of 12 months’ remuneration (or 24 months in
the case of an automatically unfair dismissal). The employee’s rate of remuneration on the date of
dismissal is used as the basis to calculate the amount of compensation (s 194).
An order or award of compensation is in addition to and not a substitute for any other amount
to which the employee is entitled in terms of any law, collective agreement or contract of
employment (s 195). An arbitrator may, for example, order an employee to pay compensation to an
unfairly retrenched employee, as well as severance pay and other outstanding statutory payments;
the compensation does not replace the other payments. 17.11 Transfer of the
contract of employment (ss 197 & 197A)

Section 197 provides that whenever a business or part of a business is sold as a going concern, the
new employer is automatically substituted in the place of the old one. The meaning of “a going
concern” was analysed in NEHAWU v University of Cape Town & Others (2003) 24 ILJ 95 (CC);
Aviation Union of SA v SA Airways (Pty) Ltd & Others (2011) 32 ILJ 2681 (CC); Krishna v University
of KwaZulu-Natal (2012) 33 ILJ 1688 (LC); Enviroserv Waste Management v Interwaste (Pty) Ltd t/a
Interwaste Environmental Solutions & Others (2016) 37 ILJ 959 (LC); Kruger & Others v Aciel
Geomatics (Pty) Ltd (2016) 37 ILJ 2567 (LAC); Tasima (Pty) Ltd v Road Traffic Management
Corporation & Others (2017) 38 ILJ 385 (LC).
When a going concern is transferred to a new owner, and thus a new employer, all the
employment rights and obligations of employees pass over automatically as well. So do collective
agreements and arbitration awards that were applicable to the old employer – High Rustenburg
Estate (Pty) Ltd v NEHAWU obo Cornelius & Others (2017) 38 ILJ 1758 (LAC).
The effect of these provisions is that the old employer is not required to seek the employees’
consent before their contracts are transferred, neither does it have to retrench them. The
employment contracts migrate automatically and no dismissals are deemed to have occurred.
The new employer is not obliged to come up with an exact replica contract. It is sufficient if the
new employer employs the employees on terms and conditions “that are on the whole no less
favourable to the employees” than the terms and conditions previously enjoyed. Where
employment conditions are regulated by a collective agreement, the agreement remains in force.
Transfers to other pension, provident and retirement funds are permitted.
The parties may vary the transfer terms by agreement. Either the old employer or the new one
or the old and new employer acting jointly, on the one hand, and the union, workplace forum or
other consulting party (as in s 189(1)) on the other, may reach an agreement to vary the default
370 A Practical Guide to Labour Law

provisions on the transfer of rights and obligations. These variations do not have to be in writing or
in the form of a collective agreement; they may be done verbally.
Where an employee is transferred under “conditions of work substantially less favourable to the
employee than those provided by the old employer”, the employee may terminate the contract and
claim constructive dismissal. Where the new employer provides the same or equivalent terms and
conditions, the employee who is unwilling to be transferred has only one route to follow:
resignation on notice.
The old and new employers are obliged to settle a valuation of accrued employee entitlements,
to advise employees accordingly and to take steps to ensure that those entitlements are adequately
protected in future.
The old and new employers are required to agree on the value of accrued leave pay, severance
pay that would have been payable in the event of a retrenchment and other accrued entitlements,
such as bonuses and commission. The value of these entitlements is calculated as at the date of
transfer. The old and new employers must further agree who would be liable for these amounts.
Full disclosure of the value of the entitlements and the employer who is liable for them is required
to all transferring employees.
In addition, the old employer must take any other measures that may be reasonable in the
circumstances to ensure that adequate provision is made for any obligation that may arise for the
new employer in respect of the valued entitlements. This could, for example, include insurance
against the new employer going insolvent.
If the old employer fails to take all the steps required by these provisions, it will for a period of
12 months after the date of transfer remain liable in solidum with the new employer for all
entitlements due in the event of later retrenchments or the new employer’s subsequent liquidation.
Section 197A was inserted into the LRA in 2002 and provides for the transfer of employment
contracts in cases of insolvency.
In terms of section 38 of the Insolvency Act contracts of employment terminate upon the
insolvency of the employer. Section 197A overrides the effects of the Insolvency Act.
When an insolvent business is transferred subject to a scheme of arrangement, then, unless
otherwise agreed in terms of section 197(6):
• the new employer is automatically substituted in the place of the old employer in all employment
contracts in existence at the time of the old employer’s winding-up or sequestration;
• all the rights and obligations between the old employer and his employees at the time of the
transfer remain rights and obligations between them;
• anything done before the transfer by the old employer in respect of his employees will be
considered to have been done by the new employer; and
• the transfer does not interrupt the employee’s continuity of employment and employment
continues with the new employer as if with the old one.
The provisions found in section 197 relating to the provision of conditions of employment that are
not less favourable, transfer to other pension, provident or retirement funds and the transfer of
collective agreements and arbitration awards to the new employer are applicable where contracts
of employment are transferred in the event of insolvency.
Questions

Question 1
1.1 Define a “dismissal” in terms of section 186(1) of the LRA. (6)
Dismissals 371

1.2 What is the test for establishing whether a dismissal has taken place? (5)
Hint: NULAW v Barnard NO & Another [2001] 9 BLLR 1002 (LAC); Ouwehand v Hout Bay Fishing
Industries [2004] 8 BLLR 815 (LC); Marneweck v SEESA Ltd [2009] 7 BLLR 669 (LC); Sindane v
Prestige Cleaning Services [2009] 12 BLLR 1249 (LC); NUMSA & Others v Abancedisi Labour
Services [2013] 12 BLLR 1185 (SCA); Kukard v GKD Delkor (Pty) Ltd [2015] 1 BLLR 63 (LAC).

Question 2
Name and discuss the requirements for a fair dismissal. (20)

Question 3
Discuss automatically unfair dismissals. Include in your answer also the remedies for automatically
unfair dismissals. (20)
Hint: See ss 187, 193 & 194 of the LRA.

Question 4
Assume that an employee has been charged with and convicted of theft in a criminal court. Should
an employer conduct a disciplinary hearing before dismissing such an employee?
Motivate your answer by referring to decided cases. (10)
Hint: See Sekwati v Masiya & Others (2011) 32 ILJ 2219 (LC); Nyalunga v PP Webb Construction
(1990) 11 ILJ 819 (IC); Olkers v Monviso Knitwear (Pty) Ltd (1988) 9 ILJ 875 (IC).

Question 5
What is constructive dismissal? Explain by referring to decided cases. Include in your answer the
remedies available to an employee who has been constructively dismissed. (20)
Hint: See Halgreen v Natal Building Society (1986) 7 ILJ 769 (IC); Howell v International Bank of
Johannesburg Ltd (1990) 11 ILJ 791 (IC); Ndebele v Foot Warehouse (Pty) Ltd t/a Shoe Warehouse
(1992) 13 ILJ 1247 (IC); Amalgamated Beverage Industries (Pty) Ltd v Jonker (1993) 14 ILJ 1232
(LAC); Pretoria Society for the Care of the Retarded v Loots [1997] 6 BLLR 721 (LAC); WL Ochse Webb
& Pretorius (Pty) Ltd v Vermeulen [1997] 2 BLLR 124 (LAC); Quince Products CC v Pillay
[1997] 12 BLLR 1547 (LAC); Van der Riet v Leisurenet Ltd t/a Health and Racquet Club [1998] 5 BLLR
471 (LAC); Ntsabo v Real Security CC [2004] 1 BLLR 58 (LC); CEPPWAWU & Another v Glass &
Aluminium 2000 CC [2002] 5 BLLR 399 (LAC); SA Police Service v Safety & Security Sectoral
Bargaining Council & Others (2012) 33 ILJ 453 (LC); Value Logistics Ltd v Basson & Others (2011)
32 ILJ 2552 (LC); Asara Wine Estate & Hotel (Pty) Ltd v Van Rooyen & Others (2012) 33 ILJ 363
(LC); Murray v Minister of Defence (2008) 29 ILJ 1369 (SCA); Strategic Liquor Services v Mvumbi
NO & Others [2009] 9 BLLR 847 (CC); Regent Insurance Co Ltd v CCMA & Others (2013) 34 ILJ
410 (LC); National Health Laboratory Services v Yona & Others (2015) 36 ILJ 2259 (LAC); Niland v
Ntabeni NO & Others (2017) 38 ILJ 1686 (LC); Billion Group (Pty) Ltd v Ntshangase & Others
(2018) 39 ILJ 2516 (LC). See also ss 186, 193 & 194 of the LRA.

Question 6
Explain whether the following circumstances meet the requirement of substantive fairness:
6.1 An employee in a liquor store has a history of drinking on duty. After several verbal warnings
and counselling, with no success, a final written warning was issued and is
still valid. He is again caught drinking during working hours and is dismissed. The employer’s
code of conduct provides for summary dismissal in the case of drinking on duty, but because
the temptation to drink is so great in a liquor store, the employer has adopted the practice
of warning employees once or twice before dismissing them for this type of misconduct.
(5)
372 A Practical Guide to Labour Law

6.2 In terms of a company rule employees were required to clock out when they went on lunch and
clock in upon their return. This rule was, however, not rigidly enforced and after some time
was no longer applied. This situation was accepted by management and for a period of
approximately ten months the employees did not clock in or out over the lunch period. One
Monday two employees arrived at their work stations ten minutes late after their lunch
break. Both employees were charged with being late for work and with failure to comply with
a company rule, namely to clock in and out over lunch. Both were dismissed for not obeying
this company rule. (5)
6.3 An employee has been in the employ of a company as a driver for the past 11 years. He has
always been considered a good driver and a reliable worker. Over the past three months,
however, he has caused two accidents and has received three summonses for traffic
violations. Upon investigation management discovers that the driver’s eyesight has
deteriorated to the extent that he cannot see further than 15 cm ahead of him. Management
thus believes that he cannot possibly be kept on as a
driver and dismisses him. (5)
6.4 An employee (A) was charged with assaulting a fellow worker (B). During the investigation of
the incident management discovered that the assault was the result of B having insulted A’s
race and religion and having threatened to rape his daughter if A refused to pay “protection
money” to B. Although management was sympathetic to the situation A found himself in, it
was stressed that assault under any circumstances whatsoever would not be tolerated and
A was dismissed. (The company’s code of conduct provided for dismissal in the event of
assault.) (5)
6.5 Peter was one of ABC Company’s longest-serving employees, having worked for the company
for 15 years. He was observed by a colleague surfing the Internet on his work computer
during working hours, downloading child pornography and disseminating it to his colleagues.
An investigation was launched and the company’s IT specialist discovered Peter’s numerous
visits to unsavoury websites. When confronted, Peter vehemently denied the accusations.
He was nevertheless summoned to a disciplinary hearing and subsequently dismissed. (5)

Question 7
Explain whether the following circumstances meet the requirement of procedural fairness:
7.1 Management discovered that 20 tyres had disappeared from the warehouse. Upon enquiry an
employee admitted to having taken them and was summarily dismissed for theft without a
disciplinary hearing. The employee, however, had received the permission of his supervisor
to take the tyres because they were rejects – a fact of which management was unaware.
(5)
7.2 An employee made himself guilty of fraud. When his fraud was discovered by the production
manager of the company, he was informed of a disciplinary enquiry to be held in the
following manner: “You are dismissed for fraud with immediate effect, but a hearing will be
conducted tomorrow and you may attend if you so wish”. The disciplinary hearing was duly
held the following day, but the employee did not attend and in his absence the dismissal was
confirmed. (5)
7.3 An employee was informed of a disciplinary hearing to be held at which hearing a charge of
gross insubordination against him would be investigated. At the hearing two days later
management presented its case, but the employee was not afforded an opportunity to state
his case and when he asked to have a co-worker present as his representative his request
was denied. He was found guilty and dismissed. He was informed of his right to appeal and
submitted his grounds for appeal within 24 hours. Before the appeal hearing was convened,
however, management was informed by its legal counsel that the procedures followed during
the disciplinary hearing were incorrect and was advised to rectify the situation. Two days
later the appeal hearing was conducted and the employee was informed that he would have
Dismissals 373

an opportunity to present his case and would be able call a co-worker as his representative.
(5)
7.4 A worker had received several verbal warnings for poor work performance. When his supervisor
again complained about his performance, an investigation was launched and it was found
that he had had no formal training and lacked the skills to perform the tasks given to him.
The employee was then transferred to a different department, given another job and
received on-the-job training for two weeks. When his performance still did not meet the
required standards, he was called in by the supervisor and summarily dismissed. (5)
7.5 A sales representative consistently failed to meet his monthly sales targets over a period of three
years. He was counselled for poor work performance and issued with two written warnings.
When he once again failed to meet his sales targets in the first month of his fourth year of
employment the company convened a formal poorperformance hearing. The employee was
asked to show cause why he should not be dismissed, but he was not allowed to have a fellow
employee represent him at the hearing. He was dismissed. (5)

Question 8
Julia was an employee at The Steak Ranch. On two occasions she had attempted to steal steaks, but
each time she was stopped by the manager before she could remove the meat. On both occasions
she received verbal warnings. On a third occasion she attempted to steal sauces which were served
with steaks. The sauces were specialities of this restaurant and the recipes thereof were kept secret
at all times. When the manager questioned her, she admitted guilt and was dismissed without a
disciplinary hearing. When she objected to her dismissal because of the absence of a hearing, the
manager argued that a hearing would have made no difference since she had already admitted
guilt.
8.1 Is Julia’s dismissal fair or unfair? Explain and refer to decided cases to substantiate your
argument. (20)
8.2 Assume that Julia’s dismissal was unfair. Would you order reinstatement or would an award of
compensation be a more appropriate remedy? Motivate your answer. (7)

Question 9
Seaview Investments (Pty) Ltd employs 177 employees. Due to financial difficulties the company is
contemplating the retrenchment of 20 employees across all occupational levels. The majority of
employees below supervisory level belong to FIWU, a registered trade union. Some of the union
members may be affected by the retrenchments, as well as supervisory and managerial staff.
9.1 Which provisions of the LRA are applicable in these circumstances? (2)
9.2 Is the company compelled to consult or negotiate about the pending retrenchments?
If so, explain who must be consulted. (5)
9.3 What information is the employer required to disclose, to whom must it be disclosed and what
format should such a disclosure take? (12)
9.4 Discuss in detail the process that must be followed before the affected employees can be
dismissed. (20)
9.5 Explain what the employees and/or the union can do if they wish to challenge (a) the substantive
fairness of the dismissals; and (b) the procedural fairness of the
dismissals. (20)
9.6 Assume that the company dismissed five employees in a first round of retrenchments and five
months later another 13 employees were dismissed. Which provisions are
applicable? (2)
9.7 Assume that the company retrenched only eight employees in total. Which provisions are
applicable? (2)
374 A Practical Guide to Labour Law

Question 10
Assume a number of employees had to be retrenched because their employer was experiencing
financial difficulties.
10.1 Discuss which payments the employer has to make to these employees. (5)
10.2 Assume that the employer failed to pay severance packages to these employees. They believe
they are entitled to severance pay and declare a dispute. Discuss the procedure to be
followed in order to have the dispute resolved. (5)
Hint: See s 41 of the BCEA.

Question 11
Some dismissal disputes must be arbitrated, whilst others must be adjudicated by the Labour Court
once conciliation has failed. Study the following situations and then (a) identify the nature of the
particular dismissal dispute; and (b) explain the dispute resolution procedure for each of the
disputes:
11.1 Employer A treats employee X very poorly by making him work long hours, withdrawing his
transport allowance and requiring him to perform tasks left unfinished by a fellow
employee. After many months of this treatment X resigns because, according to him, he
can no longer work for A who is making his working life very difficult.
There is no bargaining council in the sector where A’s company is situated. (5)
11.2 Employer A is a manufacturer of car parts. A terminates the services of employee X because
he does not agree with X’s religious convictions. A explains to X that he cannot work with a
person of X’s faith and gives X one month’s notice pay. A’s company falls within the scope
of registration of the Metal and Engineering Industries Bargaining Council (MEIBC). (5)
11.3 Employer A has to retrench ten employees because his company is experiencing financial
difficulties. On the last day of the month A calls the employees to his office, explains the
situation to them, terminates their services and gives them two weeks’ notice pay. There is
no bargaining council. (5)
11.4 The Department of Labour as employer summarily dismissed employee X for theft and fraud
because X had allegedly embezzled money and then made incorrect entries in the financial
statements to hide his theft. When X tried to explain that he had been on leave at the time
the theft occurred, his Head of Department simply instructed X to leave the workplace.
(5)
11.5 A policeman is dismissed for dereliction of duty. He was, however, on sick leave at the time
SAPS alleges that he neglected to perform his duties. (5)
11.6 Mr A is dismissed when his employer, an insurance company, discovers that he is gay. The
employer argues that A could cause embarrassment in the workplace and with clients and,
therefore, that the dismissal is justified. There is no bargaining council. (5)
11.7 Ben had 25 years’ service at Cardex Publishing House and was two years away from retirement
when his employer retrenched him. A week after Ben’s retrenchment the Manager of
Cardex appointed his nephew of 22 in the position Ben used to hold. Ben then claimed that
his retrenchment was unfair because the employer wanted to get rid of him based on his
age and nepotism. There is no bargaining council. (5)
11.8 Althea was an educator (teacher) at a public school. She was dismissed for allegedly having
molested young boys in her class. The person who chaired her disciplinary hearing,
however, had lost sight of the fact that she taught at a girls’ school. Althea believes her
dismissal was unfair and declares a dispute with her employer, the
Department of Education. (5)
11.9 Jonas was on probation for six months as a newly appointed electrician at Blitz Electrical
Services CC. Since his appointment he struggled to understand the work and often did his
Dismissals 375

job incorrectly. After some counselling his performance did not improve and in his fifth
month of employment the manager dismissed him. The Electrical Bargaining Council has
been registered for the sector and area in which
Blitz conducts its business. (5)
11.10 Employee X works at VW in Uitenhage. The company has a strict policy against employees
misusing the Internet and sending private e-mails to friends and colleagues. X’s girlfriend is
in Cape Town and he often phones her and sends her e-mails. When the company discovers
that X is in the habit of downloading pornographic material from the Internet and sending
it to his girlfriend by e-mail X is dismissed without a hearing. (5)

Question 12
Refer to each of the situations in question 11. Assume that each of the dismissals was unfair.
12.1 Identify the main reason for the unfairness of each of the dismissals. (10) 12.2
Explain in each instance which remedy would be the most appropriate. (20)

Question 13
Joshua was appointed as a computer programmer in the IT Department of Lexus (Pty) Ltd. Before
his appointment he had been working as a computer programmer for another company for four
years. When he commenced duties at Lexus he was instructed to attend training one day a week
for three months. He was also asked to draw up a list of all functions of programming that he had
knowledge of. When he had completed the list, the trainer noticed that, because of his experience,
Joshua could perform all tasks covered by the training. He was nevertheless expected to attend the
training.
Two months after Joshua’s appointment his supervisor was informed that he often missed the
training sessions. At the same time the supervisor became aware that Joshua often took sick leave.
He did, however, submit medical certificates. Joshua was counselled and his performance was
monitored. The supervisor discovered that Joshua often neglected to perform all the tasks he was
responsible for. In addition, he often left the office without permission and spent considerable time
talking to friends on the telephone.
On the second last day of his fourth month of employment Joshua arrived at work late, informed
his supervisor that he was feeling ill and wanted to see a doctor. He promised to return to work
after his visit to the doctor because he had many tasks to complete as it was month-end. He went
to the doctor, but did not return to work. For the next ten days Joshua did not show up at work and
did not contact his employer at all. Because the employer did not know where Joshua was, he was
charged with gross negligence in not having performed his duties and absence without permission
or a valid reason. The charge sheet and a notice to attend a disciplinary hearing were sent to his
address by registered mail and a copy thereof was delivered to his home.
The disciplinary hearing was duly conducted and Joshua was in attendance, represented by a
shop steward of his union. His defence to the charge of gross negligence was that he had not
received adequate training and, therefore, could not to do the job. Regarding his absence, Joshua
explained that he had been ill and spent the time with his family in a neighbouring town. Joshua
was found guilty of gross negligence because he had simply failed to perform certain tasks. He was
also found guilty of absence without leave because he could not produce a medical certificate for
the period of his absence. He was dismissed because, in terms of the company’s disciplinary code,
absence of four days and more would be regarded as AWOL and constituted a dismissible offence.
His dismissal was confirmed on appeal two weeks later. After the appeal hearing Joshua visited his
supervisor to collect his last pay cheque and then explained that he was HIV positive, which causes
different illnesses (the reason for his regular sick leave) and that the week of his absence was spent
with a traditional healer.
13.1 Explain in detail whether or not Joshua’s dismissal was fair. (20)
376 A Practical Guide to Labour Law

13.2 Joshua believes his dismissal was unfair. Explain the dispute resolution procedure he can follow
to have the dispute resolved. (5)
13.3 Discuss the remedies available to an employee who has been unfairly dismissed and then
briefly explain which of these remedies would be the most appropriate in Joshua’s case if his
dismissal was found to be unfair. (10)

Question 14
Susan was employed as a lecturer by a university in terms of seven successive fixed-term contracts.
She then applied for one of several permanent positions. Susan was unsuccessful, but was offered
a further fixed-term contract. She rejected the offer, claiming that she had reasonably expected to
be appointed on a permanent basis and that the university’s failure to appoint her constituted a
dismissal in terms of section 186(1)(b) of the LRA. Advise Susan as to whether she was entitled to
permanent employment and decide whether she was in fact dismissed. (12)
Hint: See ss 186(1)(b) & 198B of the LRA.

Question 15
Jane, a travel consultant, fell pregnant. Her employer agreed to her taking one month’s leave after
her confinement. She gave birth to twins. The twins were in a poor state of health and Jane
requested another month’s leave to attend to them. The company declined her request, but was
prepared to grant her an extra two weeks’ leave. She declined the offer and her services were
terminated. Jane approached the Labour Court for relief, contending that her dismissal was
automatically unfair in terms of section 187(1)(e) of the LRA because she had been dismissed for
reasons related to her pregnancy. The employer argued that Jane’s dismissal was in no way linked
to her pregnancy. Decide whether Jane’s dismissal was automatically unfair. (8)
Hint: See De Beer v SA Export Connection CC t/a Global Paws [2008] 1 BLLR 36 (LC).

Question 16
The Department of Correctional Services has a dress code for all its employees and expects strict
adherence to the policy. In terms of the code all male employees are expected to cut their hair in
the typical “short, back and sides” military style, while female employees may have any hairstyle as
long as they tie their hair up to look neat and tidy at all times. Four of the male employees wore
dreadlocks and when they were instructed to cut their hair, they refused. After protracted
discussions and a few warnings they were called to disciplinary hearings and dismissed for refusing
to obey a lawful instruction.
16.1 Decide whether the dismissals were fair or not. (8)
16.2 Assume the dismissals were unfair. What would the most appropriate remedy be in the
circumstances? (3)
Hint: Department of Correctional Services & Another v POPCRU & Others [2012] 2 BLLR 110

(LAC).

Question 17
Dorothy was employed as an educator her entire adult life. She retired when she reached the age
of 65 years (the retirement age set by the Department of Education). She then took up employment
with the Ubuntu Primary School, a private school. At the time of her appointment the school had
no retirement policy in place and her contract of employment did not refer to a retirement age.
Three years after her appointment the school implemented a retirement policy. In terms of the
policy the mandatory retirement age for permanent employees was 65, but those employees
already older than 65 would remain in service, on fixed-term contracts, until the age of 68. Dorothy
was already 69 when the policy was introduced. She received a letter from the school notifying her
Dismissals 377

that her employment would be terminated at the end of the next school term. Does the termination
of Dorothy’s services constitute a dismissal and, if it does, is it automatically unfair? (10)
Hint: See s 187(1)(f) & 187(2)(b) of the LRA. See also Rubenstein v Price’s Daelite (Pty) Ltd [2002]
5 BLLR 472 (LC); SA Metal & Machinery Co (Pty) Ltd v Gamaroff [2010] 2 BLLR 136 (LAC); Bedderson
v Sparrow Schools Education Trust (2010) 31 ILJ 1325 (LC); Evans v Japanese School of
Johannesburg (2006) 27 ILJ 2607 (LC); Rubin Sportswear v SACTWU & Others [2004] 10 BLLR 986
(LAC); Thomas (Rockliffe) v Mincom (Pty) Ltd [2007] 10 BLLR 993 (LC); Cash Paymaster Services
(Pty) Ltd v Browne [2006] 2 BLLR 131 (LAC); HOSPERSA obo Venter v SA Nursing Council & Others
[2006] 6 BLLR 558 (LC); Arb Electrical Wholesalers (Pty) Ltd v Hibbert [2015] 11 BLLR 1081 (LAC);
BMW (South Africa) v NUMSA & Others [2019] 2 BLLR 107 (LAC); Datt v Gunnebo Industries (Pty)
Ltd [2009] 5 BLLR 449 (LC); Randall v Karan (2010) 31 ILJ 2449 (LC); Brian Joffe t/a J Air v CCMA
& Others [2019] 1 BLLR 1 (LAC).

Question 18
Amman had some 20 years’ service with a supermarket. He was a union office-bearer of the Food
and Retail Workers Union and a shop steward at the supermarket. When the supermarket faced
financial difficulties Amman was offered a managerial position as an alternative to retrenchment
on condition that he relinquished his union positions. When Amman rejected the condition he was
dismissed. Consider the fairness or otherwise of Amman’s dismissal. (10)
Hint: See FAWU & Another v The Cold Chain [2007] 7 BLLR 638 (LC); IMATU & Others v Rustenburg
Transitional Council [1999] 12 BLLR 1299 (LC).

Question 19
Workforce (Pty) Ltd is a temporary employment service (TES or labour broker). Workforce employs
many employees and places them with clients to perform work for the clients. Liz is a plumber and
one of the Workforce employees. When Jordan’s Civils CC obtained a contract to develop a new
township area, the manager of Jordan’s approached Workforce for the services of a plumber and
Liz was sent to work for Jordan’s at R8 000 per month. Nine weeks after Liz started at Jordan’s the
Workforce HR manager told her that Jordan’s no longer wanted her there because they did not
want to be considered her employer.
Consider Liz’s legal position. (10)
Hint: Ss 198 & 198A and specifically s 198A(4).

Question 20
Jade Jewellers is a family business, selling jewellery and manufacturing exclusive gold and diamond
rings and necklaces. It employs 22 employees in its sales, manufacturing and administration
departments. When the owner decides to retire he sells the business to Diamonds and Denims (Pty)
Ltd, an importer of jewellery and denim jeans with a formidable South African retail market.
20.1 Explain whether the 22 employees should be retrenched before the sale of the business is
finalised or whether they should be transferred to the new owner once the sale has been
finalised. (5)
20.2 Assume that the 22 employees were transferred to Diamonds and Denims. All of them could
be accommodated in sales, clerical and administrative positions except the five employees
who used to work in Jade’s manufacturing section because Diamonds and Denims does not
manufacture jewellery; it only imports jewellery. In consequence, the five employees were
offered positions in the sale of jeans. The offer amounted to a total change in work, different
employment conditions and lower salaries. They were not prepared to accept the new
positions and resigned. Advise them as to their legal position. (10)
Hint: Ss 197, 186(1)(e), 187(1)(g) & 191(5)(a)(ii).
378 A Practical Guide to Labour Law

Appendix 1

SCHEDULE 8
CODE OF GOOD PRACTICE: DISMISSAL
1. Introduction
(1) This code of good practice deals with some of the key aspects of dismissal for reasons related
to conduct and capacity. It is intentionally general. Each case is unique, and departures from the norms
established by this Code may be justified in proper circumstances. For example, the number of employees
employed in an establishment may warrant a different approach.
(2) This Act emphasises the primary of collective agreements. This Code is not intended as a
substitute for disciplinary codes and procedures where these are the subject of collective agreements, or
the outcome of joint decision-making by an employer and a work-place forum.
(3) The key principle in this Code is that employers and employees should treat one another with
mutual respect. A premium is placed on both employment justice and the efficient operation of business.
While employees should be protected from arbitrary action, employers are entitled to satisfactory
conduct and work performance from their employees.
2. Fair reasons for dismissal
(1) A dismissal is unfair if it is not effected for a fair reason and in accordance with a fair procedure,
even if it complies with any notice period in a contract of employment or in legislation governing
employment. Whether or not a dismissal is for a fair reason is determined by the facts of the case, and
the appropriateness of dismissal as a penalty. Whether or not the procedure is fair is determined by
referring to the guidelines set out below.
(2) This Act recognises three grounds on which a termination of employment might be legitimate.
These are: the conduct of the employee, the capacity of the employee, and the operational requirements
of the employer’s business.
(3) This Act provides that a dismissal is automatically unfair if the reason for the dismissal is one
that amounts to an infringement of the fundamental rights of employees and trade unions, or if the
reason is one of those listed in section 187. The reasons include participation in a lawful strike, intended
or actual pregnancy and acts of discrimination.
(4) In cases where the dismissal is not automatically unfair, the employer must show that the
reason for dismissal is a reason related to the employee’s conduct or capacity, or is based on the
operational requirements of the business. If the employer fails to do that, or fails to prove that the
dismissal was effected in accordance with a fair procedure, the dismissal is unfair.

Disciplinary procedures prior to dismissal

3. Disciplinary measures short of dismissal
(1) All employers should adopt disciplinary rules that establish the standard of conduct required of
their employees. The form and content of disciplinary rules will obviously vary according to the size and
nature of the employer’s business. In general, a larger business will require a more formal approach to
discipline. An employer’s rules must create certainty and consistency in the application of discipline. This
requires that the standards of conduct are clear and made available to employees in a manner that is
easily understood. Some rules or standards may be so well established and known that it is not necessary
to communicate them.
(2) The courts have endorsed the concept of corrective or progressive discipline. This approach
regards the purpose of discipline as a means for employees to know and understand what standards are
required of them. Efforts should be made to correct employees’ behaviour through a system of graduated
disciplinary measures such as counselling and warnings.
Dismissals 379

(3) Formal procedures do not have to be invoked every time a rule is broken or a standard is not
met. Informal advice and correction is the best and most effective way for an employer to deal with minor
violations of work discipline. Repeated misconduct will warrant warnings, which themselves may be
graded according to degrees of severity. More serious infringements or repeated misconduct may call for
a final warning, or other action short of dismissal. Dismissal should be reserved for cases of serious
misconduct or repeated offences.
Dismissals for misconduct
(4) Generally, it is not appropriate to dismiss an employee for a first offence, except if the
misconduct is serious and of such gravity that it makes a continued employment relationship intolerable.
Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are
gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of
others physical assault on the employer, a fellow employee, client or customer and gross insubordination.
Whatever the merits of the case for dismissal might be, a dismissal will not be fair if it does not meet the
requirements of section 188.
(5) When deciding whether or not to impose the penalty of dismissal, the employer should in
addition to the gravity of the misconduct consider factors such as the employee’s circumstances
(including length of service, previous disciplinary record and personal circumstances), the nature of the
job and the circumstances of the infringement itself.
(6) The employer should apply the penalty of dismissal consistently with the way in which it has
been applied to the same and other employees in the past, and consistently as between two or more
employees who participate in the misconduct under consideration.
4. Fair procedure
(1) Normally, the employer should conduct an investigation to determine whether there are
grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the
employee of the allegations using a form and language that the employee can reasonably understand.
The employee should be allowed the opportunity to state a case in response to the allegations. The
employee should be entitled to a reasonable time to prepare the response and to the assistance of a
trade union representative or fellow employee. After the enquiry, the employer should communicate
the decision taken, and preferably furnish the employee with written notification of that decision.
(2) Discipline against a trade union representative or an employee who is an office-bearer or official
of a trade union should not be instituted without first informing and consulting the trade union.
(3) If the employee is dismissed, the employee should be given the reason for dismissal and
reminded of any rights to refer the matter to a council with jurisdiction or to the Commission or to any
dispute resolution procedures established in terms of a collective agreement.
(4) In exceptional circumstances, if the employer cannot reasonably be expected to comply with
these guidelines, the employer may dispense with pre-dismissal procedures.
5. Disciplinary records
Employers should keep records for each employee specifying the nature of any disciplinary
transgressions, the actions taken by the employer and the reasons for the actions.
6. Dismissals and industrial action
(1) Participation in a strike that does not comply with the provisions of chapter IV is misconduct.
However, like any other act of misconduct, it does not always deserve dismissal. The substantive fairness
of dismissal in these circumstances must be determined in the light of the facts of the case, including –
(a) the seriousness of the contravention of this Act;
(b) attempts made to comply with this Act; and
(c) whether or not the strike was in response to unjustified conduct by the employer.
(2) Prior to dismissal the employer should, at the earliest opportunity, contact a trade union official
to discuss the course of action it intends to adopt. The employer should issue an ultimatum in clear and
unambiguous terms that should state what is required of the employees and what sanction will be
imposed if they do not comply with the ultimatum. The employees should be allowed sufficient time to
380 A Practical Guide to Labour Law

reflect on the ultimatum and respond to it, either by complying with it or rejecting it. If the employer
cannot reasonably be expected to extend these steps to the employees in question, the employer may
dispense with them.
7. Guidelines in cases of dismissal for misconduct
Any person who is determining whether a dismissal for misconduct is unfair should consider –
(a) whether or not the employee contravened a rule or standard regulating conduct in,
or of relevance to, the work place; and
(b) if a rule or standard was contravened, whether or not – (i) the rule was a
valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or
standard;
(iii) the rule or standard has been consistently applied by the employer; and
(iv) dismissal with an appropriate sanction for the contravention of the rule or standard.
8. Probation
(1) (a) An employer may require a newly-hired employee to serve a period of probation before the
appointment of the employee is confirmed.
(b) The purpose of probation is to give the employer an opportunity to evaluate the employee’s
performance before confirming the appointment.
(c) Probation should not be used for purposes not contemplated by this Code to deprive
employees of the status of permanent employment. For example, a practice of dismissing employees
who complete their probation periods and replacing them with newly-hired employees, is not consistent
with the purpose of probation and constitutes an unfair labour practice.
(d) The period of probation should be determined in advance and be of reasonable duration. The
length of the probationary period should be determined with reference to the nature of the job and the
time it takes to determine the employee’s suitability for continued employment.
(e) During the probationary period, the employee’s performance should be assessed. An employer
should give an employee reasonable evaluation, instruction, training, guidance or counselling in order to
allow the employee to render a satisfactory service.
(f) If the employer determines that the employee’s performance is below standard, the employer
should advise the employee of any aspects in which the employer considers the employee to be failing
to meet the required performance standards. If the employer believes that the employee is incompetent,
the employer should advise the employee of the respects in which the employee is not competent. The
employer may either extend the probationary period or dismiss the employee after complying with
subitems (g) or (h), as the case may be.
(g) The period of probation may only be extended for a reason that relates to the purpose of
probation. The period of extension should not be disproportionate to the legitimate purpose that the
employer seeks to achieve.
(h) An employer may only decide to dismiss an employee or extend the probationary period after
the employer has invited the employee to make representations and has considered any representations
made. A trade union representative or fellow employee may make the representations on behalf of the
employee.
(i) If the employer decides to dismiss the employee or to extend the probationary period, the
employer should advise the employee of his or her rights to refer the matter to a council having
jurisdiction, or to the Commission.
(j) Any person making a decision about the fairness of a dismissal of an employee for poor work
performance during or on expiry of the probationary period ought to accept reasons for dismissal that
may be less compelling than would be the case in dismissals effected after the completion of the
probationary period.
Dismissals 381

(2) After probation, an employee should not be dismissed for unsatisfactory performance unless
the employer has –
(a) given the employee appropriate evaluation, instruction, training, guidance or counselling; and
(b) after a reasonable period of time for improvement, the employee continues to perform
unsatisfactorily.
(3) The procedure leading to dismissal should include an investigation to establish the reasons for
the unsatisfactory performance and the employer should consider other ways, short of dismissal, to
remedy the matter.
(4) In the process, the employee should have the right to be heard and to be assisted by a trade
union representative or a fellow employee.
9. Guidelines in cases of dismissal for poor work performance
Any person determining whether a dismissal for poor work performance is unfair should consider –
(a) whether or not the employee failed to meet a performance standard; and
(b) if the employee did not meet a required performance standard whether or not –
(i) the employee was aware, or could reasonably be expected to have been aware, of the required
performance standard;
(ii) the employee was given a fair opportunity to meet the required performance standard; and
(iii) dismissal was an appropriate sanction for not meeting the required performance standard.
10. Incapacity: Ill health and injury
(1) Incapacity on the grounds of ill health or injury may be temporary or permanent. If an employee
is temporarily unable to work in these circumstances, the employer should investigate the extent of the
incapacity or the injury. If the employee is likely to be absent for a time that is unreasonably long in the
circumstances, the employer should investigate all the possible alternatives short of dismissal. When
alternatives are considered, relevant factors might include the nature of the job, the period of absence,
the seriousness of the illness or injury and the possibility of securing a temporary replacement for the ill
or injured employee. In cases of permanent incapacity, the employer should ascertain the possibility of
securing alternative employment, or adapting the duties or work circumstances of the employee to
accommodate the employee’s disability.
(2) In the process of the investigation referred to in subsection (1) the employee should be allowed
the opportunity to state a case in response and to be assisted by a trade union representative or fellow
employee.
(3) The degree of incapacity is relevant to the fairness of any dismissal. The cause of the incapacity
may also be relevant. In the case of certain kinds of incapacity, for example alcoholism or drug abuse,
counselling and rehabilitation may be appropriate steps for an employer to consider.
(4) Particular consideration should be given to employees who are injured at work or who are
incapacitated by work-related illness. The courts have indicated that the duty on the employer to
accommodate the incapacity of the employee is more onerous in these circumstances.
11. Guidelines in cases of dismissal arising from ill health or injury
Any person determining whether a dismissal arising from ill health or injury is unfair should consider –
(a) whether or not the employee is capable of performing the work; and
(b) if the employee is not capable –
(i) the extent to which the employee is able to perform the work;
(ii)the extent to which the employee’s work circumstances might be adapted to
accommodate disability, or, where this is not possible, the extent to which the
employee’s duties might be adapted; and (iii) the availability of any suitable alternative work.
Appendix 2
382 A Practical Guide to Labour Law

CODE OF GOOD PRACTICE: DISMISSALS BASED ON OPERATIONAL REQUIREMENTS

Italicised words and phrases bear the same meaning as [that] accorded to them by section 213 of the Labour Relations
Act, 1995.

(1) The Labour Relations Act, 1995 (Act No. 66 of 1995) (“the Act”) defines a dismissal based on
the operational requirements of an employer as one that is based on the economic, technological,
structural or similar needs of the employer. It is difficult to define all the circumstances that might
legitimately form the basis of a dismissal for this reason. As a general rule, economic reasons are those
that relate to the financial management of the enterprise. Technological reasons refer to the introduction
of new technology which affects work relationships either by making existing jobs redundant or by
requiring employees to adapt to the new technology or a consequential restructuring of the workplace.
Structural reasons relate to the redundancy of posts consequent to a restructuring of the employer’s
enterprise.
(2) Dismissals for operational requirements have been categorised as “no fault” dismissals. In other
words, it is not the employee who is responsible for the termination of employment. Because
retrenchment is a “no fault” dismissal and because of its human cost, the Act places particular obligations
on an employer, most of which are directed toward ensuring that all possible alternatives to dismissal
are explored and that the employees to be dismissed are treated fairly.
(3) The obligations placed on an employer are both procedural and substantive. The purpose of
consultation is to enable the parties, in the form of a joint problem-solving exercise, to strive for
consensus if that is possible. The matters on which consultation is necessary are listed in section 189(2).
This section requires the parties to attempt to reach consensus on, amongst other things, appropriate
measures to avoid dismissals. In order for this to be effective, the consultation process must commence
as soon as a reduction of the workforce, through retrenchments or redundancies, is contemplated by
the employer, so that possible alternatives can be explored. The employer should in all good faith keep
an open mind throughout and seriously consider proposals put forward.
(4) The Act also provides for the disclosure by the employer of information on matters relevant to
the consultation. Although the matters on which information for the purposes of consultation is required
are specified in section 189(3), the list in that section is not a closed one. If considerations other than
those that are listed are relevant to the proposed dismissal or the development of alternative proposals,
they should be disclosed to the consulting party. In the event of a disagreement about what information
is to be disclosed any party may refer the dispute to the CCMA in terms of section 16(6) of the Act
(5) The period over which consultation should extend is not defined in the Act. The circumstances
surrounding the consultation process are relevant to a determination of a reasonable period. Proper
consultation will include:
(a) The opportunity to meet and report back to employees;
(b) the opportunity to meet with the employer; and
(c) the request, receipt and consideration of information.
(6) The more urgent the need by the business to respond to the factors giving rise to any
contemplated termination of employment, the more truncated the consultation process might be.
Urgency may not, however, be induced by the failure to commence the consultation process as soon as
a reduction of the workforce was likely. On the other hand, the parties who are entitled to be consulted
must meet, as soon, and as frequently, as may be reasonably practicable during the consultation process.
(7) If one or more employees are to be selected for dismissal from a number of employees, the Act
requires that the criteria for their selection must be either agreed with the consulting parties or, if no
criteria have been agreed, be fair and objective criteria.
(8) Criteria that infringe a fundamental right protected by the Act when they are applied, can never
be fair. These include selection on the basis of union membership or activity, pregnancy, or some other
unfair discriminatory ground. Criteria that are neutral on the face of it should be carefully examined to
ensure that when they are applied, they do not have a discriminatory effect. For example, to select only
part-time workers for retrenchment might discriminate against women, since women are predominantly
employed in part-time work.
Dismissals 383

(9) Selection criteria that are generally accepted to be fair include length of service, skills and
qualifications. Generally the test for fair and objective criteria will be satisfied by the use of the “last in,
first out” (LIFO) principle. There may be instances where the LIFO principal or other criteria need to be
adapted. The LIFO principle, for example, should not operate so as to undermine an agreed affirmative
action program. Exceptions may also include the retention of employees based on criteria mentioned
above which are fundamental to the successful operation of the business. These exceptions should,
however, be treated with caution.
(10) Employees dismissed for reasons based on the employer’s operational requirements are
entitled to severance pay of at least one week’s remuneration for each completed year of continuous
service with the employer, unless the employer is exempted from the provisions of section 196. This
minimum requirement does not relieve an employer from attempting to reach consensus on severance
pay during the period of consultation. The right of the trade union, through collective bargaining, to seek
an improvement on the statutory minimum severance pay is not limited or reduced in any way.
(11) If an employee either accepted or unreasonably refused to accept an offer of alternative
employment, the employee’s right to severance pay is forfeited. Reasonableness is determined by a
consideration of the reasonableness of the offer of alternative employment and the reasonableness of
the employee’s refusal. In the first case, objective factors such as remuneration, status and job security
are relevant. In the second case, the employee’s personal circumstances play a greater role.
(12) (1) Employees dismissed for reasons based on the employer’s operational requirements should
be given preference if the employer again hires employees with comparable qualifications, subject to:
(a) The employee, after having been asked by the employer, having expressed within a reasonable time
from the date of dismissal a desire to be rehired.
(b) A time limit on preferential rehiring. The time limit must be reasonable and must be the subject of
consultation.
(2) If the above conditions are met, the employer must take reasonable steps to inform the
employee, including notification to the representative trade union, of the offer of re-employment.

Appendix 3

GENERAL CLOTHING MANUFACTURERS

The following is an extract of a typical disciplinary code:
DISCIPLINARY CODE Category one – very serious
First offence Second offence Third Fourth
Offence offence offence

Theft of company Dismissal

property

Fraud Dismissal

Insubordination Final written warning Dismissal

Category two – serious
First offence Second offence Third Fourth
Offence offence offence

Drinking on duty Final written warning Dismissal

384 A Practical Guide to Labour Law

Unauthorised absence Final written warning Dismissal

Insolence/cheekiness Written warning Final written warning Dismissal

Category three – less serious
First offence Second offence Third offence Fourth
Offence offence

Late coming Written warning Final written Dismissal

(less than 2 hrs) warning

Wastage of materials Verbal warning Written warning Final written Dismissal

warning

Playing while working Verbal warning Written warning Final written Dismissal
and interfering with warning
production
Appendix 4

(The following is an abbreviated disciplinary procedure; it should, of course, be more detailed, but this
should give the reader an idea of what the contents of such procedures are.)

DISCIPLINARY PROCEDURE
1 Policy regarding discipline
Disciplinary action is any action instituted by Management as a consequence of the unacceptable,
intolerable or unsatisfactory performance and/or behaviour of an employee.
The workforce is considered to be an important component of the Company and the Company shall
thus endeavour to maintain and improve performance by its employees. For this reason disciplinary
action is regarded as a manner in which unacceptable or intolerable behaviour and/or unsatisfactory
performance is or could be improved. Punishment will, therefore, be regarded as a last resort in the event
of an employee not heeding corrective action.
In the interest of sound labour relations and labour peace the Company undertakes to maintain
fairness and consistency when disciplinary action is taken.
2 Authority to discipline
The authority to discipline an employee shall vest in the management of each section or department,
subject to the provision that final written warnings, suspensions without pay and dismissals shall be
handled by the Personnel Officer, with the right to appeal to the Personnel Manager. The decision taken
by the Personnel Manager is subject to the approval of the General Manager.
3 Disciplinary procedures
To ensure that no doubt exists about disciplinary action that has been taken, all reprimands, warnings
and other disciplinary steps shall be kept on the file of the employee concerned.
Disciplinary steps:
Disciplinary action to be taken shall depend on the offence committed (as contained in the disciplinary
code) and shall comprise one or more of the following:
3.1 Verbal warning
3.2 Written warning (First, second, etc)
3.3 Final written warning
3.4 Suspension without pay
Dismissals 385

3.5 Dismissal with notice or summary dismissal

3.1 Verbal warning
A verbal warning shall be accompanied by counselling.
A verbal warning may be issued in the event of any form of misconduct or poor performance contained
in the Disciplinary Code for which a verbal warning is justified (Category 3).
The foreman shall also notify the employee of the possible consequence(s) in the event of a re-
occurrence of the same or a similar “offence”.
3.2 Written warning
A written warning may be issued in the event of any form of misconduct or poor performance contained
in the Disciplinary Code for which a written warning is justified (Category 1, 2 and 3) and it may be a first
or second or final warning. The purpose of such warnings is to endeavour to improve the poor
performance or incorrect or intolerable behaviour of an employee.
All written warnings shall be valid against the employee for a period of six months from the date of its
issue and shall be kept on the employee’s file. The first written warning is considered the first formal
disciplinary step against an employee. This warning serves to inform the employee of future disciplinary
action that can and shall be taken against him in the event of him committing the same or a similar
offence again. This warning is used for less serious offences.
A second written warning follows the first written warning when the same or similar offence has been
committed and is used for serious and less serious offences.
A third written warning follows the second written warning when the same or similar offence has
been committed and is used for serious and less serious offences.

3.3 Final written warning

A final written warning is considered the last step in endeavouring to improve the performance or
behaviour of an employee. A final warning is justified for serious and some very serious offences as
contained in Categories 1 and 2 of the Disciplinary Code, as well as in the event of less serious “offences”
being committed repeatedly.

3.4 Suspension without pay

Suspension without pay as a form of discipline or “punishment” shall only be justified in circumstances
which justify the dismissal of an employee, so that suspension without pay shall be adopted in lieu of
dismissal.
The period of such suspension shall be at the discretion of Management, but shall not exceed a period
of two weeks.
Before an employee may be suspended without pay a disciplinary hearing shall be held and the
employee shall be counselled.

3.5 Dismissal with notice or summary dismissal

Summary dismissal shall only be justified if an employee is guilty of a material breach of contract, ie if
the employee is guilty of a Category 1 offence with a criminal element or if a final written warning is still
operative against him for any other offence. That means an employee shall only be dismissed if the
employer has a valid reason for such dismissal, provided that such dismissal shall also be fair in the
circumstances.
Such dismissal shall take immediate effect and no remuneration shall be paid out in lieu of notice.
Management may, however, at its discretion and if circumstances warrant it, decide on the termination
of an employee’s services with notice or payment in lieu of notice, provided that such notice or payment
in lieu thereof shall not exceed a period of two weeks.
Before an employee may be dismissed a disciplinary hearing shall be held.

4 Disciplinary hearings (enquiries)

386 A Practical Guide to Labour Law

If further action is required after an employee has received a final written warning, or in the case of a
Category 1 offence a disciplinary hearing shall be held as soon as possible after an offence has been
committed.
The employee shall be notified of the charge against him, as well as of the date and time of the hearing.
The employee shall be entitled to call any fellow employee as a representative at the hearing.
Furthermore, the employee shall be entitled to an interpreter if he so chooses, provided that he shall
notify Management in advance in order for the necessary arrangements to be made.
The Personnel Officer shall act as presiding officer at the hearing. In the event of the latter being closely
involved with the matter at hand, he shall act as prosecutor and another senior member of Management
shall act as presiding officer.
At the hearing both Management and the employee shall have the right to testify, produce evidence
of whatever nature, call witnesses and cross-examine the other party and his witnesses.
Before a final decision is reached, Management shall afford the employee an opportunity to prove
mitigating circumstances, after which said employee’s record and any other relevant information shall be
taken into consideration.
The particulars of the hearing and the decision shall be minuted.
The employee shall be notified of his right to appeal against the decision taken at the hearing if such
decision is a final warning, suspension without pay or dismissal.
5 Appeal
After the employee has been notified of his right to appeal at the disciplinary hearing he has five working
days in which to appeal against the decision taken at the said hearing.
The employee shall appeal in writing on the prescribed form and shall state the grounds for his appeal.
The appeal hearing shall be chaired by the Personnel Manager or any other person from Management,
other than the person who acted as presiding officer at the disciplinary hearing.
At the appeal hearing the employee shall have the same rights as at the disciplinary hearing.
The proceedings of the appeal shall be minuted.
 18
UNFAIR LABOUR PRACTICES

18.1 Introduction

The concept of unfair labour practice under the 1956 Labour Relations Act was a catch-all category
of conduct by employers, employees and their organisations which, in the opinion of the Industrial
Court, fell within the meaning of an unfair labour practice. With the implementation of the Labour
Relations Act of 1995 (LRA) this catch-all category disappeared and unfair conduct of various types
is explicitly and separately dealt with. For example, unfair dismissals are dealt with in Chapter 8,
unfair employer conduct towards employees for exercising their freedom of association in Chapter
2, organisational rights in Part A of Chapter 3 and unilateral amendment to employment conditions
in section 64. These forms of conduct are no longer termed “unfair labour practices”; specific
reference is made to the conduct or practice and is called “unfair dismissal”, “infringing freedom of
association” and so on. They derive from what the old Industrial Court identified as unfair practices.
Only a small number of practices previously considered by the Industrial Court as unfair were
not placed in a specific category. They originally appeared under the heading “residual unfair labour
practices” in item 2 of Schedule 7 to the LRA when the Act took effect in November 1996. They were
included in Schedule 7 as a transitional measure because, at the time the LRA was enacted, it was
envisaged that these practices would be incorporated in legislation applicable to individual labour
law (whereas the LRA primarily deals with collective labour law).
The “new” concept of unfair labour practice consequently refers to only a few specific practices
and does not include labour practices in general as was the case under the old LRA. In Nawa &
Another v Department of Trade & Industry [1998] 7 BLLR 701 (LC) and National Entitled Workers
Union v CCMA & Others (2003) 24 ILJ 2335 (LC) the Labour Court confirmed that the LRA does
not provide for a general unfair labour practice definition and concluded that an employee must
show that the practice complained of falls within the description of “residual unfair labour
practices” as envisaged in the then item 2 of Schedule 7.
With the implementation of the 2002 amendments to the LRA on 1 August 2002 “residual unfair
labour practices” were removed from Schedule 7 and were placed in Chapter VIII of the Act – as
section 186(2) of the LRA. Chapter VIII, governing only dismissals before the 2002 amendments,
now includes unfair labour practices as well.
It needs to be noted that, unlike the position under the old Act, an unfair labour practice can, in
terms of the repealed item 2(1) of Schedule 7 and now section 186(2), be committed by an
employer only. Employees can no longer make themselves guilty of unfair practices. It follows then
that it is no longer possible for an employer to allege that an unfair labour practice was perpetrated
by an employee and no remedies in this case are available to the employer under the LRA. In Maseko
v Entitlement Experts [1997] 3 BLLR 317 (CCMA) the CCMA decided that unfair acts by employees
against their employers are not justiciable under the LRA. This approach was endorsed by the
Labour Court in NEWU v CCMA & Others [2004] 2 BLLR 165 (LC).
381
18.2 Definition of “unfair labour practice” (s 186(2))
388 A Practical Guide to Labour Law

In terms of section 185(b) every employee has the right not to be subjected to unfair labour
practices.
Section 186(2) defines an unfair labour practice as follows:
(2) “Unfair labour practice” means any unfair act or omission that arises between an employer and an
employee involving –
(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes
about dismissals for a reason relating to probation) or training of an employee or relating to the
provision of benefits to an employee;
(b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in
respect of an employee;
(c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any
agreement; and
(d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act
of 2000 on account of the employee having made a protected disclosure defined in that Act.1
The very specific language adopted by the legislature makes this an exhaustive list and no other
unfair practice or treatment will qualify as an unfair labour practice.
In Mzimni & Another v Municipality of Umtata [1998] 7 BLLR 780 (Tk) and Ntlabezo & Others v
MEC for Education, Eastern Cape & Others [2002] 3 BLLR 274 (Tk) it was held that disputes
concerning job grading were not about unfair labour practices as envisaged in section 186(2). In
later judgments, however, it was held that job grading potentially constitutes an unfair labour
practice – see Mathibeli v Minister of Labour & Others [2015] 3 BLLR 267
(LAC); Eskom Holdings v NUM obo Coetzee [2018] 2 BLLR 176 (LC).
Transfers do not fall within the definition of an unfair labour practice – see Simela & Others v
MEC for Education, Province of the Eastern Cape & Another [2001] 9 BLLR 1085 (LC).
Claims for payment, such as claims for non-payment or under-payment of wages concern
remuneration. Because remuneration is not a “benefit” as contemplated in section 186(2)(a) such
claims cannot be arbitrated by a council or the CCMA as unfair labour practices – see TGWU obo
Malahla v Red Alert Security [2000] 10 BALR 1165 (CCMA); Sonka v Johnny Bags (Pty) Ltd [2001]
10 BALR 1116 (CCMA); Moses v Magnum Security Services [2002] 11 BALR 1166 (CCMA); Eskom v
NUM [2003] 6 BALR 708 (CCMA). Payment claims were, prior to the amendments to the BCEA that
took effect in January 2019, attended to by the Department of Labour only (or an employee could
approach a court of law). An inspector in the Department would investigate a payment claim and,
where necessary, issue a compliance order. Failure by an employer to observe a compliance order
was taken to the Labour Court. The BCEA amendments now make it possible that an employee can
approach the CCMA with a claim for under-payment, not as an unfair labour practice, but as a
payment claim. Or, an employee can still call on the Department for assistance and if a compliance
order has been issued and not obeyed by the employer, the CCMA can be requested to make the
compliance order an arbitration award.
________________________

1 When unfair labour practices were initially defined in item 2 of Sch 7, the definition included unfair discrimination
based on race, gender, age, religion, disability, language, marital status, etc. With the advent of the Employment
Equity Act items 2(1)(a) and 2(2) of Sch 7, dealing with discrimination issues, were removed from the LRA and
included in Ch II of the EEA. Unfair discrimination is thus no longer termed an unfair labour practice; it falls within
its own, specific category, namely “unfair discrimination”. With the removal of discrimination from Sch 7 an “unfair
labour practice” was only one of: (a) unfair employer conduct relating to promotion, demotion, training or provision
of benefits; (b) unfair suspension or other disciplinary action; and (c) refusal or failure to re-employ ex-employees
in terms of an agreement. The additional unfair labour practices now found in s 186(2)(d), occupational detriments
as contemplated in the Protected Disclosures Act, have been inserted by the 2002 amendments.
Bonuses and car, housing and other allowances have been held to concern remuneration and are
therefore not benefits as envisaged in section 186(2) – see Labuschagne v Techno Plastics (Pty) Ltd
[2005] 6 BALR 610 (MEIBC); Zondo v Group 4 Security Services [2009] 12 BALR 1329 (CCMA);
Unfair labour practices 389

Mankahla & Others v University of Transkei [2004] 11 BALR 1340 (P); AWAWU obo Lotter v Safcol
[2002] 5 BALR 470 (CCMA); HOSPERSA obo Van Wyk v SA National Parks (Golden Gate) [2009] 2
BALR 169 (CCMA); Harris v Volkswagen of South Africa (Pty) Ltd [2000] 10 BALR 1140 (CCMA);
Northern Cape Provincial Administration v Hambidge NO & Others [1999] 7 BLLR 698 (LC);
HOSPERSA & Another v Northern Cape Provincial Administration (2000) 21 ILJ 1066 (LAC); SA
Post Office Ltd v CCMA & Others [2012] 11 BLLR 1183 (LC). It is noteworthy that the CCMA and
the courts have not been consistent in their decisions on what in fact constitutes a “benefit”. Whilst
the majority of the decisions subscribed to the notion that any payment in return for services
rendered constitutes remuneration and not a benefit, there were a few interesting decisions that
held the opposite view (e.g. Protekon (Pty) Ltd v CCMA & Others [2005] 7 BLLR 703 (LC)). The
decision in Apollo Tyres South Africa (Pty) Ltd v CCMA & Others [2013] 5 BLLR 434 (LAC) appears
to have settled the uncertainty. In Apollo the Labour Appeal Court held that a “benefit” means
“existing advantages or privileges to which an employee is entitled as a right or granted in terms of
a policy or practice subject to the employer’s discretion” and further found that “remuneration” is
wide enough to include wages, salaries and most, if not all, extras or benefits.
The unilateral amendment to conditions of employment is not an unfair labour practice as
defined and is regulated by section 64 of the LRA only.2
The National Minimum Wage Act 9 of 2018 (NMWA) introduces a new form of unfair labour
practice: an employer who unilaterally amends wages or other conditions of employment in an
attempt to circumvent the provisions relating to the prescribed minimum wages is guilty of an unfair
labour practice – see section 4(8) of the NMWA.

18.3 Promotions

The Oxford Dictionary defines “promotion” as “raise to a higher rank or office”. In Mashegoane &
Another v University of the North [1998] 1 BLLR 73 (LC) the Labour Court held that an appointment
to a position which carries greater authority and status amounts to promotion.
The employer’s unfair conduct relating to promotion constitutes an unfair labour practice.
“Unfair conduct” implies a failure to meet an objective standard and may be taken to include
arbitrary, capricious or inconsistent conduct, whether negligent or intended. Applied in the context
of promotions this means that mere unhappiness or a perception of unfairness does not necessarily
equal unfair conduct. “The process of selection inevitably results in a candidate being appointed
and the unsuccessful candidate(s) being disappointed. This is not unfair” (SAMWU obo Damon v
Cape Metropolitan Council (1999) 20 ILJ 714 (CCMA)). In PSA obo Badenhorst v Department of
Justice (1999) 20 ILJ 253 (CCMA) the Department was restructured. The CCMA held that the
Department could have done more to keep the staff informed of the rationalisation process. “This
may have prevented the perception that the process had been unfair, but it does not make the
process actually unfair”.

________________________

2 In MITUSA & Others v Transnet Ltd & Others [2002] 11 BLLR 1023 (LAC) it was held that unilateral amendments
to conditions of employment may “arguably fall within the ambit of an unfair labour practice”. It is respectfully
submitted that this is incorrect. S 186(2) does not include unilateral amendments as a form of unfair labour practice;
therefore, such amendments cannot be arbitrated as an unfair labour practice. Unilateral amendments are catered
for in a single provision in the LRA, s 64(4), which provides for strike action as the only relief.
Promotion is a managerial prerogative and the employer can promote whoever it thinks is the
best or most suitable candidate for the position. However, an employer is required to act fairly when
promoting or not promoting an employee; unfair conduct in this regard constitutes and unfair
labour practice. The managerial prerogative is thus limited both procedurally and substantively,
meaning that the employer must act procedurally and substantively fairly in the promotion or non-
promotion of an employee.
Procedural fairness implies the following considerations.
390 A Practical Guide to Labour Law

• The employer must adhere to the “bottom line” for a fair promotion procedure, which is to
ensure that all candidates are afforded a reasonable opportunity to promote their candidature
(Mthembu & Another v SA Police Service & Another (2010) 31 ILJ 1014 (BCA); PSA obo
Badenhorst v Department of Justice (1999) 20 ILJ 253 (CCMA)).
• An employer has to follow its own procedures – the source of these procedures may be
legislation, a collective agreement, company policy or an established practice (NUTESA v Border
Technikon [2005] 12 BALR 1302 (CCMA); Manana v Department of Labour [2010] 6 BLLR 664
(LC); Nelson Mandela Metropolitan Municipality (NMMM) v Mkumatela [2016] 6 BLLR 585
(LAC)). If the employer discovers that the procedure has not been followed correctly, a fresh
procedure may be conducted to cure the defects. This may include the re-advertising of a post
or granting an interview which was originally refused.
• An employee may challenge the composition and/or the competency of a selection panel. The
persons on a selection panel need not be experts, neither do they need to be qualified in the
particular position that is under consideration. What is required is that the panel members have
reasonable knowledge – that is, they should be in a position to make a reasonably informed
decision – or, as is commonly said, they should “apply their minds”.
• Employees who have been acting in a more senior position do not have an automatic right to be
promoted to that position when it becomes available (SAPS v SSSBC & Others [2010] 8 BLLR
892 (LC)). However, employers run the risk of acting unfairly if they do not at least consider the
employee who has been acting. Employees often claim that their acting in a higher position
creates a “legitimate expectation” of promotion. It needs to be noted, however, and our case
law is clear on this, that a legitimate expectation gives the employee nothing more than an
opportunity to be heard before a decision is made (IMATU obo Coetzer v Stad Tygerberg (1999)
20 ILJ 971 (CCMA); Administrator, Transvaal & Others v Traub & Others (1989) 10 ILJ 823 (A);
Catholic Bishops Publishing Co & Others v State President & Others 1990 (1) SA 849 (A);
Gurarnah v South African Weather Services [2004] 4 BALR 454 (CCMA); Limekaya v Department
of Education [2004] 5 BALR 586 (GPSSBC); Ramoroka v Robben Island Museum (2012) 33 ILJ 500
(CCMA)).
• Promotion should involve some reward such as a higher salary, according to SACSAAWU obo
Nguyuza v Premier Loss Control CC [1998] 9 BALR 1190 (CCMA). It is submitted, however, that
an elevation involving, for instance, a higher status without a higher salary could arguably be
classified as a promotion.
• An employer should consider the development of an employee. This development may involve
promotion. An employer does not commit an unfair labour practice if it does not develop or
deploy staff so that they can gain more knowledge and experience if it is not contractually bound
to do so. However, sight must not be lost of employment equity. Promotion is an obvious
affirmative action measure and training is specifically mentioned as such a measure (s 15 of the
Employment Equity Act). There is consequently a duty on employers to train and develop
employees in the context of affirmative action. This means that denial of promotion because of
the lack of an attribute, which lack could have been cured by training, may well constitute unfair
conduct relating to promotion. In this context unfair conduct relating to training could constitute
an unfair labour practice. See, in this regard, Monyakeni v SA Police Service & Others (2008) 29
ILJ 3111 (BCA); Lotter v SA Police Service (2005) 26 ILJ 578 (BCA).
Substantive fairness in the context of promotions refers to the reasons why the employer decides
to prefer one employee to others for the promotion. The employer retains the discretion to appoint
the person it considers the most suitable candidate for the post. In the process it may take
subjective considerations into account, such as performance at an interview. Because this is so, the
decided cases clearly indicate that an arbitrator should exercise deference to the employer’s
discretion and not interfere, unless it is shown that the employer has failed to apply his mind in the
selection of the candidate. See SAMWU obo Damon v Cape Metropolitan Council (1999) 20 ILJ
714 (CCMA); Van Rensburg v Northern Cape Provincial Administration (1997) 18 ILJ 1421 (CCMA).
In practice this means that the employer will be allowed a margin of latitude in coming to its
Unfair labour practices 391

decision, but this is subject to legislation, such as the Employment Equity Act and, perhaps, a
collective agreement.
It may not always be easy to justify why a particular candidate has been preferred over another,
but at the very least the employer should be in a position to provide reasons for its decision
(Mashegoane & Another v University of the North, supra; PSA obo Petzer v Department of Home
Affairs (1998) 19 ILJ 412 (CCMA)). There must be a logical connection between the real reason and
the decision taken. The following have been held to be acceptable considerations in preferring one
candidate over another: one selection criterion carries more weight than the rest of the criteria
(Rafferty v Department of the Premier [1998] 8 BALR 1017 (CCMA)); preferring one candidate with
a lower evaluation mark rather than another candidate is not necessarily fatal if the employer has
good reason for doing so (Van Rensburg case, supra; PSA obo Dalton & Another v Department of
Public Works [1998] 9 BALR 1177 (CCMA); PSA obo Tlowana v MEC for Agriculture & Others [2012]
8 BLLR 805 (LC); Noonan v SSBC & Others [2012] 9 BLLR 876 (LAC)); not promoting a candidate who
does not meet the education/qualification requirements (PSA obo Thorne v Department of
Community Service (Western Cape) & Others [2018] 12 BLLR 1173 (LAC).
A fair amount of doubt existed as to the difference between a promotion and an appointment.
The majority of employers use one or a combination of two systems through which employees may
advance in an organisation. The first is a system of level progression where employees are evaluated
on a regular basis and, depending on the outcome of the evaluation, progress from one grade to
the next. The second system is where vacancies are advertised and current employees are invited
to apply for the posts.
If the latter system is used, employees, alongside external candidates, have to apply for vacant
posts. Can it be said that an internal candidate who gets the position has been appointed to that
post or has he been promoted?
Some ingenious arguments existed in support of a narrower interpretation, but the majority of
judgments favoured a wider interpretation in terms of which an external applicant is appointed,
while an internal one is promoted. Promotion deals with the substance of the new job. When the
employee’s current job is compared with the new one and the new one brings about higher
remuneration levels, more or better fringe benefits, greater status, authority and power and more
responsibility, the new job involves a promotion, even though the employee had to apply for the
position.
The case of PSA obo Badenhorst v Department of Justice (1999) 20 ILJ 253 (CCMA) clarifies the
issue. In this case the “old” Department was restructured and all existing employees were invited
to apply for newly created posts in the “new” Department. Ms Badenhorst unsuccessfully applied
for a higher post in the new Department. The employer argued that she should be treated as a job
applicant and that the dispute, therefore, did not involve promotion. The Commissioner held as
follows:
It appears that the applicant applied for a post which would have resulted in a promotion for her to a
more senior level if her application had been successful . . . While I accept that this was not a promotion
in the ordinary sense of the word, I do not believe that the peculiar nature of the rationalisation process
can allow semantics to change the essential nature of the dispute. No evidence suggested that the
applicant’s years of service would not be transferred to the post in the new structure, nor was it suggested
that her employee benefits would be interrupted by such transfer. A new post would still essentially be
with the same employer, the Department of Justice, but in a remodelled structure in conformity with the
rationalisation. It is specious to suggest that the applicant was a job applicant, in the sense of being an
outside job-seeker.
The uncertainty between a promotion and an appointment was finally settled in Department of
Justice v CCMA & Others [2004] 4 BLLR 297 (LAC) when the Labour Appeal Court decided that an
internal candidate for a more senior post is promoted, whilst an external candidate is appointed to
the post. Appointment thus involves a new recruit, whereas promotion is the elevation of a serving
employee to a higher position. See also Jele v Premier of the Province of KwaZulu-Natal & Others
[2003] 7 BLLR 723 (LC); City of Cape Town v SAMWU obo Jacobs [2009] 9 BLLR 882 (LAC).
392 A Practical Guide to Labour Law

Another issue which is often encountered in the context of promotions is a promise of a

promotion. Employers or their senior staff members should take care not to make promises of
promotion to a subordinate employee. A promise does not entitle an employee to a promotion, but
it may create an expectation. However, if a promise has a material effect on the outcome of the
employers’ decision, the position may be different.
Employers will increasingly be expected to make their decisions about promotions within the
context of affirmative action. Employers may thus expect attacks from two sides: from those who
were denied promotion, because they do not form part of a designated group and from those falling
in a designated group being denied promotion despite the fact that they are part of the targeted
employees. It has been argued that it is legitimate for an employer to consider affirmative action
when denying promotion to an employee who is not part of a designated group. If an employee
should challenge his non-promotion because he does not fall within one of the designated groups,
the real reason underlying the dispute is discrimination and the matter will have to be adjudicated
by the Labour Court.3

18.4 Demotions

Demotion is the reverse of promotion, meaning that an employee is moved to a lower rank or level.
The unfair conduct of an employer relating to demotion is an unfair labour practice.
“Unfair” conduct implies a failure to meet an objective standard and may be taken to include
arbitrary, capricious or inconsistent conduct, whether negligent or intended.
As a disciplinary measure demotion is allowed only in circumstances where a dismissal is justified
but, because of mitigating factors, the employer decides not to dismiss the employee. See in this
regard Arries v Afric Addressing (Pty) Ltd t/a Afric Mail Advertising [1998] 5 BALR 525 (CCMA);
Metro Rail (Wits) v SAFWU [1998] 1 BALR 88 (IMSSA); Transtel Johannesburg v TWU [1998] 8 BALR
1127 (IMSSA); TWU obo Van Zyl v Metrorail [1999] 7 BALR 888 (IMSSA); and CWIU obo Sityana &
Mane v Valpa Easigas [2000] 1 BALR 23 (CCMA).
In Van Niekerk v Medicross Health Care Group (Pty) Ltd [1998] 8 BALR 1038 (CCMA) the
employee was demoted from managerial to clerical status. The CCMA held that it amounted to an
unfair unilateral alteration of terms and conditions of employment and the employer was ordered
to reinstate the employee to his former position. Similarly, in Visser v Vodacom (Pty) Ltd [2002] 10
BALR 1031 (AMSSA) the transfer of an employee from a managerial to a technical position without
loss of remuneration was held to be a demotion and, in the circumstances, an unfair labour practice.
See also Van Wyk v Albany Bakeries Ltd & Others [2003] 12 BLLR 1274 (LC); Solidarity obo Kern v
Mudau & Others [2007] 6 BLLR 566 (LC); Nxele v Chief Deputy Commissioner, Corporate Services,
Department of Correctional Services & Others [2008] 12 BLLR 1179 (LAC).
In SALSTAFF obo Vrey v Datavia [1999] 6 BALR 757 (IMSSA) the arbitrator held that a change
from financial to administrative duties without a loss of status or pay did not
________________________

3 In the paragraph on promotions reference was made to Garbers C “Promotions: Keeping abreast with ambition (an
overview of the current law on promotion of employees)” Contemporary Labour Law 9(3), October 1999.
amount to demotion. However, prior consultation to the changes was required. See also Tsweleng
v Conron Spring Manufacturing & Engineering [2005] 2 BALR 159 (MEIBC).
In CEPPWAWU obo Mahlabane v Sasol Synfuel [2003] 9 BALR 1022 (CCMA), after the employee
had accepted transfer to a lower post on the grounds of ill health, his salary was frozen until the
scale applicable to his new post reached his current salary. The employee then claimed that the
wage freeze constituted an unfair demotion. The CCMA commissioner noted that the employee had
been consulted and offered the alternative of a salary reduction or a wage freeze. By choosing the
latter, it was found, he had accepted a transfer on the same terms and conditions. Future
increments were therefore a matter of interest, not right.
Unfair labour practices 393

It is submitted that demotion other than demotion as a disciplinary sanction should always be
preceded by consultation (see Murray and Independent Newspapers (2003) 24 ILJ 1420 (CCMA);
Van der Riet v Leisurenet Ltd t/a Health and Racquet Club [1998] 5 BLLR 471 (LAC)). Demotion as a
disciplinary sanction should be implemented only if the employer’s disciplinary code provides for
demotion (see Glass v University of Zululand [2006] 4 BALR 388 (CCMA)).

18.5 Benefits and training

An employer is also guilty of an unfair labour practice if its conduct relating to the provision of
benefits to an employee is unfair. The meaning of “benefits” has been the focus of a number of
cases. The Oxford Dictionary and Thesaurus defines “benefit” as “favourable or helpful factor or
circumstance, advantage, profit” and “payment made under insurance, social security, welfare”. Its
list of synonyms includes payment, pay-out, sick-pay, emoluments, allowances, extras and fringe
benefits.
While this broad definition appears to include a range of rights which accrue to an employee by
virtue of the employment relationship, from wages to pension and medical aid, the earlier decisions
of the CCMA and the Labour Court favoured a narrow interpretation of the concept “benefits”, so
that all payments that could be interpreted as falling under the broad ambit of “remuneration”
were not considered to be benefits.
The Labour Court, in Schoeman v Samsung Electronics SA (Pty) Ltd [1997] 10 BLLR 1364 (LC) and
Gaylard v Telkom SA Ltd [1998] 9 BLLR 942 (LC), determined that remuneration is not a benefit for
the purposes of item 2(1)(b) of Schedule 7 (now s 186(2)(a)). In the Samsung case Revelas J held
that commission forms part of the employee’s salary and is, therefore, part of the basic conditions
of employment. “Remuneration is different from benefits. A benefit is something extra apart from
remuneration. Often it is a term and condition of an employment contract and often not.
Remuneration is always a term and condition of the employment contract.”
In Northern Cape Provincial Administration v Hambidge NO & Others [1999] 7 BLLR 698 (LC)
“benefits” was defined as a supplementary advantage conferred on an employee for which no work
was required. A claim to a higher salary or an allowance, therefore, does not amount to a claim for
benefits, but is a matter of mutual interest. Similarly, in SALSTAFF v Spoornet [2002] 10 BALR 1025
(AMSSA) an acting allowance was held not to be a benefit. See also SA Post Office Ltd v CCMA &
Others [2012] 11 BLLR 1183 (LC); Greeff and Giagas v Nelson Mandela Bay Municipality (SALGBC,
ECD051116, 22 June 2012).
In Labuschagne v Techno Plastics (Pty) Ltd [2005] 6 BALR 610 (MEIBC) a pro rata bonus was held
not to be a benefit.
In AWAWU obo Lotter v Safcol [2002] 5 BALR 470 (CCMA) a claim for a housing allowance was
held to be a claim for a higher salary and, as such, not a benefit. Although transport allowances and
provident funds have been held to be “benefits”, the weight of authority suggested that both should
be considered as forms of remuneration (see SACCAWU v Garden Route Chalets (Pty) Ltd [1997]
3 BLLR 325 (CCMA); SACWU v Longmile/Unitred (1999) 20 ILJ 244 (CCMA)). Medical aid was held
to be a benefit in Solidarity obo Du Plessis v ABB Services [2005] 8 BALR 820 (MEIBC).
In Van Amstel v Eskom [2002] 9 BALR 995 (CCMA) “benefit” was defined as including a car
allowance. In Dube v Otis Elevators [2005] 7 BALR 695 (MEIBC), however, it was held that the use
of a company car for business purposes does not constitute a benefit as contemplated by the Act.
In Sithole v Nogwaza NO & Others [1999] 12 BLLR 1348 (LC) the Labour Court held that a
“benefit” must be of a material nature, it must have monetary value for the employee and be a cost
for the employer. Examples given by the court include “pensions, medical aid, housing subsidies,
insurance, social security or membership of a club or society”.
In HOSPERSA & Another v Northern Cape Provincial Administration (2000) 21 ILJ 1066 (LAC)
and Eskom v Marshall & Others [2003] 1 BLLR 12 (LC) “benefits” were defined as advantages to
which an employee is entitled ex contractu or ex lege. Claiming a separation package without
394 A Practical Guide to Labour Law

proving a contractual entitlement thereto consequently does not constitute an unfair labour
practice.
In G4S Security Services v NASGAWU (DA 3/08, 26 November 2009) the Labour Appeal Court
confirmed the prevailing approach of the time and in South African Post Office Ltd v CCMA [2012]
11 BLLR 1183 (LC) the Labour Court, in following the decisions of the Labour Appeal Court,
confirmed that an acting allowance was not a benefit.
In stark contrast is the Labour Court’s decision in Protekon (Pty) Ltd v CCMA & Others [2005] 7
BLLR 703 (LC). The Court rejected the argument that a benefit has to be derived from a contractual
or statutory right when it considered travelling concessions to be benefits. According to the Court,
disputes concerning benefits fall into two categories: the first concerns a claim for benefits not
presently enjoyed by employees or the reinstatement of benefits. This category cannot be referred
to arbitration and can be resolved through industrial action. The second category concerns the
fairness of the employer’s conduct in relation to existing benefits. The latter constitutes a dispute
of right and can be referred to arbitration. The fact that an employer has a discretion to provide a
benefit “does not . . . take the benefit outside the ambit of the unfair labour practice jurisdiction
provided by section 186(2)(a) . . . On the contrary, it is clear that the provision was introduced
primarily to permit scrutiny of employer conduct including the exercise of employer discretion in
the context of employee benefits”.
In IMATU obo Verster v Umhlathuze Municipality [2011] 9 BLLR 882 (LC) the Labour Court
decided to ignore the LAC decisions and found support in Protekon to find that an acting allowance
could be arbitrated as an unfair labour practice.
The Labour Appeal Court in Apollo Tyres SA (Pty) Ltd v CCMA & Others [2013] 5 BLLR 434 (LAC)
concluded that the distinction between “benefit” and “remuneration”, drawn in so many of the
previous decisions, was artificial and unsustainable and held that the definition of “benefit” is wide
enough to include wages and most, if not all, extras. The Court was further of the view that not only
employer conduct relating to statutory or contractual entitlements, but also the manner in which
an employer exercised its discretion in awarding allowances and other payments constituted unfair
labour practices. The LAC concurred in South African Airways (Pty) Ltd v GJJVV [2014] 8 BLLR 748
(LAC) and held that that deductions from an employee’s accumulated leave pay to pay his salary
while he was on stand-by duty constituted an unfair labour practice relating to benefits.
It appears that an employer is guilty of an unfair labour practice if it fails to train his employees
when there is a contractual obligation to do so. In MITUSA v Portnet [2000] 9 BALR 1037 (CCMA)
the employer denied its employees training in breach of a contract to do so without consultation.
It was held that the employer’s conduct constituted an unfair labour practice. See also SARHWU v
Transtel [1999] 2 BALR 224 (IMSSA). The employees in MITUSA & Others v Transnet Ltd & Others
[2002] 11 BLLR 1023 (LAC) failed to prove a contractual right to training. It was consequently held
that the employer did not commit an unfair labour practice by denying them training.
It remains to be seen how the issue of training affirmative-action employees will be dealt with in
the absence of an agreement, but in light of the provisions of the Employment Equity Act.

18.6 Unfair suspension and other disciplinary action

An employer is guilty of an unfair labour practice if it acts unfairly when suspending an employee
or imposing a disciplinary sanction short of dismissal.
In Koka v Director-General: Provincial Administration North West Government [1997] 7 BLLR
874 (LC) the Court distinguished between two forms of suspension in that suspension can be either
a form of disciplinary sanction or it can be implemented as a “holding operation” pending an inquiry
into alleged misconduct. The suspension contemplated in the LRA appears to be of the former type.
Although it appears that the suspension of the applicant was a “holding operation”, it had, according
to the Court, the same effect as the second and should accordingly be treated as a suspension for
disciplinary reasons falling within the definition of unfair labour practice. It was confirmed in Sappi
Unfair labour practices 395

Forests (Pty) Ltd v CCMA & Others [2009] 3 BLLR 254 (LC) that unfair suspension pending
disciplinary (or criminal) proceedings fell within the scope of the definition of “unfair labour
practice”.
Employees are often suspended with pay pending a disciplinary hearing. Suspension with pay is
conceivably not unfair if the employer has a reasonable apprehension that a legitimate business
interest would be harmed by the employee’s continued presence at the workplace. See NEHAWU
obo Makhethu v Robben Island Museum (2008) 29 ILJ 2318 (CCMA). In Mabilo v Mpumalanga
Provincial Government & Others [1999] 8 BLLR 821 (LC) and Esterhuizen v Jet Demolition (2011)
32 ILJ 734 (CCMA) it was held that suspension pending a disciplinary hearing is permissible if it is
intended to enable the employer to investigate the charges against the employee. If there is no fair
reason for suspension, the employer’s conduct in suspending an employee may very well fall foul
of section 186(2)(b).
In SAPO Ltd v Jansen van Vuuren NO & Others [2008] 8 BLLR 798 (LC) it was held that a
suspension must be based on substantive reasons and that a fair procedure must be followed. The
Court observed that employers should refrain from hastily resorting to suspending employees when
there are no valid reasons to do so because suspension has a detrimental impact on the employee
and may prejudice his reputation, chances of advancement and job security. It is therefore
necessary, the Court held, that suspensions be based on substantive reasons and that fair
procedures be followed before an employee can be suspended – that is, the employer must offer
the employee an opportunity to be heard before placing him on suspension.
Whether or not a hearing should be conducted prior to a suspension pending a disciplinary
hearing has received some attention, but the judgments in this regard are contradictory. In Mabilo
the Court held that it was not essential to hold a hearing provided that the audi alteram partem
principle is observed. In the Koka judgment and in Venter v South African Tourism Board [1999] 10
BLLR 1111 (LC) it was held that the employer is not required to give an employee a hearing before
suspending him pending a disciplinary inquiry. In Ngwenya v Premier of KwaZulu-Natal [2001] 8
BLLR 924 (LC), however, the Court decided that an employee is entitled to be heard before being
suspended as the suspension damages his reputation. A similar judgment was handed down in
SAPO Ltd v Jansen van Vuuren NO & Others, supra, and in Dince & Others v Department of
Education, North West Province & Others [2010] 6 BLLR 631 (LC) it was held that suspension (with
or without pay) without a hearing is invalid.
The Constitutional Court, in Long v SA Breweries & Others [2018] ZACC 7 (CC), settled the
question by deciding that there is no requirement to afford an employee an opportunity to make
representations. Instead, the requirements for a fair precautionary suspension are that the
employer must have a valid reason to suspend (i.e. to protect the integrity of the investigation) and
must consider possible prejudice to the employee, which would be ameliorated by full pay while on
suspension.
The Court in Ngwenya also held that an employee may not be kept on suspension indefinitely
pending disciplinary action. See also Naidoo v Rudolph Chemicals (Pty) Ltd [2008] 6 BALR 497
(NBCCI).
Suspension without pay pending a disciplinary hearing is unfair (Tsaperas & Another v Clayville
Cold Storage (Pty) Ltd [2002] 11 BALR 1225 (CCMA); Chaba v Iselwa Investment CC [2004] 12 BALR
1534 (CCMA)). However, when an employee or his union seeks postponement of a disciplinary
hearing and such postponement is granted, the employee is not entitled to further pay (SAEWA
obo Members v Aberdare Cables [2007] 2 BALR 106 (MEIBC)).
Suspension without pay is normally adopted as a disciplinary sanction short of dismissal. In
County Fair v CCMA & Others [1998] 6 BLLR 577 (LC) and South African Breweries Ltd (Beer
Division) v Woolfrey & Others [1999] 5 BLLR 525 (LC) it was held that suspension without pay is a
permissible disciplinary penalty where appropriate. It is submitted that an employee can be
suspended without pay only in circumstances where dismissal would be justified, were it not for
mitigating factors. If suspension is imposed as a disciplinary sanction the ordinary requirements of
substantive and procedural fairness should apply.
396 A Practical Guide to Labour Law

In NUMSA obo Tshikana v Delta Motor Corporation [2003] 11 BALR 1302 (CCMA) the CCMA
commissioner held that the employer was not required to convene a formal hearing before
imposing a sanction short of dismissal where the penalty of dismissal was never contemplated. In
casu the employer suspended the employee for one day without pay for insubordination. The
sanction was held to have been justified and consequently did not constitute an unfair labour
practice.
Similarly, in NCAWU obo Tobias & Others v Pick ’n Pay Family Supermarket [2003] 12 BALR
1413 (CCMA) final warnings issued without a hearing to workers who had engaged in a brief wildcat
strike were held to be fair in the circumstances.
In the Breweries case, supra, the Court held that the prohibition on deductions from an
employee’s remuneration in terms of the Basic Conditions of Employment Act does not preclude an
employer from imposing a penalty of suspension without pay.

18.7 Refusal to reinstate or re-employ

Failure or refusal by an employer to reinstate or re-employ a former employee in terms of an

agreement is an unfair labour practice.
“Agreement” may refer to an individual contract, written or verbal, as well as a collective
agreement. An example often encountered in practice is a collective agreement between an
employer and a trade union in terms of which retrenched employees will be re-employed when
jobs become available again.
Some difficulty may arise if the right to be reinstated or re-employed is incorporated in a
collective agreement and the agreement is cancelled or it lapses. Does the individual employee
retain his right to be re-engaged? It is submitted that such terms are to be included in individual
contracts of employment so that the cancellation of the collective agreement does not deprive
employees of the right be reinstated or re-employed.
The definition does not deal with a refusal to re-employ in the absence of an agreement but, if
the employer’s refusal to reinstate or re-employ a former employee is discriminatory, it may amount
to a contravention of section 6 of the Employment Equity Act.
In OCGAWU obo Mapolie v Metlite Alloys [2002] 10 BALR 1058 (CCMA) the employer’s failure
to re-employ an employee in terms of a rehiring agreement and, instead, hiring a new employee
was held to be an unfair labour practice. Similarly, in April and Gen-Tech Engineering Services CC
(2005) 26 ILJ 407 (BCA) the failure to re-employee a retrenched employee when a position became
available (in terms of an agreement to this effect) and the hiring of a new employee in his place was
found to be unfair.
In Mtshali & Others v Nestlé SA [2002] 6 BALR 632 (CCMA) the employer undertook to re-employ
retrenched merchandisers should vacancies arise, provided they were qualified. Refusal by the
employer to re-employ them as packers, for which they were unqualified, was held not to be an
unfair labour practice. See also Bouwer v SA Breweries [2002] 7 BALR 699 (CCMA). Offering
retrenched employees temporary employment at a slightly lower rate than that which they
previously earned in terms of a collective agreement was found not to constitute an unfair labour
practice (see NUMSA obo Khanye & Another v Havco Manufacturing (Pty) Ltd [2003] 12 BALR 1349
(MEIBC)).
It is to be noted that, whereas ex-employees generally do not have access to the dispute
resolution mechanisms of the LRA, except after a dismissal, ex-employees have the right to
approach a council or the CCMA for conciliation and arbitration in the event of a failure to reinstate
or re-employ in terms of an agreement.4

18.8 Probation
Unfair labour practices 397

A newly hired employee may be put on probation, provided that the probationary period is
reasonable. The purpose of probation is to allow the employer an opportunity to evaluate the
employee’s performance.
A probationary employee is an “employee” and an employer will be well advised to tread with
caution when dealing with misconduct or poor performance by such an employee. If a probationary
employee makes himself guilty of misconduct, the ordinary rules of substantive and procedural
fairness apply.
When the probationary employee’s performance does not meet the required standards,
evaluation and assistance by the employer are required. Only in instances where the employer has
taken reasonable steps to help improve the employee’s performance and his performance does not
improve, can dismissal be considered. It must be noted, however, that poor performance in the
event of a probationary employee is treated less strictly than would be the case with a permanent
employee.
Item 8(1) of the Code of Good Practice: Dismissal contained in Schedule 8 of the Act provides the
guidelines for probation:
(1) Probation
(a) An employer may require a newly-hired employee to serve a period of probation before the
appointment of the employee is confirmed.
(b) The purpose of probation is to give the employer an opportunity to evaluate the employee’s
performance before confirming the appointment.
(c) Probation should not be used for purposes not contemplated by this Code to deprive employees of
the status of permanent employment. For example, a practice of dismissing employees who
complete their probation periods and replacing them with newly-hired employees, is not consistent
with the purpose of probation and constitutes an unfair labour practice.
(d) The period of probation should be determined in advance and be of reasonable duration. The length
of the probationary period should be determined with reference to the nature of the job and the
time it takes to determine the employee’s suitability for continued employment.
(e) During the probationary period, the employee’s performance should be assessed. An employer
should give an employee reasonable evaluation, instruction, training, guidance or counselling in
order to allow the employee to render a satisfactory service.
(f) If the employer determines that the employee’s performance is below standard, the employer
should advise the employee of any aspects in which the employer considers the

________________________

4 In the discussion of unfair labour practices reference was made to Du Toit et al, Labour Relations Law: A
Comprehensive Guide 6th edn, LexisNexis; Du Toit et al, Labour Law Through The Cases, LexisNexis.
employee to be failing to meet the required performance standards. If the employer believes that
the employee is incompetent, the employer should advise the employee of the respects in which
the employee is not competent. The employer may either extend the probationary period or dismiss
the employee after complying with sub-items (g) or (h), as the case may be.
(g) The period of probation may only be extended for a reason that relates to the purpose of probation. The
period of extension should not be disproportionate to the legitimate purpose that the employer seeks to
achieve.
(h) An employer may only decide to dismiss an employee or extend the probationary period after the
employer has invited the employee to make representations and has considered any
representations made. A trade union representative or fellow employee may make the
representations on behalf of the employee.
(i) If the employer decides to dismiss the employee or to extend the probationary period, the employer
should advise the employee of his or her rights to refer the matter to a council having jurisdiction,
or to the Commission.
(j) Any person making a decision about the fairness of a dismissal of an employee for poor work
performance during or on expiry of the probationary period ought to accept reasons for dismissal
that may be less compelling than would be the case in dismissals effected after the completion of
the probationary period.
398 A Practical Guide to Labour Law

(2) After probation, an employee should not be dismissed for unsatisfactory performance unless the
employer has –
(a) given the employee appropriate evaluation, instruction, training, guidance or counselling; and
(b) after a reasonable period of time for improvement, the employee continues to perform
unsatisfactorily.
(3) The procedure leading to dismissal should include an investigation to establish the reasons for the
unsatisfactory performance and the employer should consider other ways, short of dismissal, to remedy
the matter.
(4) In the process, the employee should have the right to be heard and to be assisted by a trade union
representative or a fellow employee.
Any form of unfair treatment of a probationary employee, other than alleged unfair dismissal, can
potentially, in terms of section 186(2)(a), constitute an unfair labour practice. An unfair labour
practice in this context must be referred for con-arb.

18.9 Protected Disclosures Act of 2000

The Protected Disclosures Act 26 of 2000 (PDA) was assented to on 1 August 2000 and came into
operation on 16 February 2001.
The PDA was adopted against a background of the necessity to eradicate criminal and other
irregular conduct in organs of State and private bodies. The aim is to create a culture that will
facilitate the disclosure of information by employees of criminal or other irregular conduct by their
employers or fellow employees without fear of reprisal. Comprehensive statutory guidelines are
provided to ensure disclosure in a responsible manner and employees are encouraged to disclose
information by being provided with protection in terms of the Act.
The objectives of the Act are:
• to protect an employee, whether in the private or the public sector, from being subjected to an
occupational detriment on account of the employee having made a protected disclosure;
• to provide for certain remedies in connection with any occupational detriment suffered on
account of having made a protected disclosure; and
• to provide for procedures in terms of which an employee can, in a responsible manner, disclose
information regarding improprieties by his or her employer.
The PDA applies to any protected disclosure made after the date on which the Act came into
operation, irrespective of whether or not the impropriety concerned has occurred before or after
the said date.
Disclosure of information entails disclosure of any conduct of an employer or fellow employee
by an employee who has reason to believe that the information concerned shows or tends to show
one or more of the following:
(a) that a criminal offence has been committed, is being committed or is likely to be committed;
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which
that person is subject;
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur;
(d) that the health or safety of an individual has been, is being or is likely to be endangered;
(e) that the environment has been, is being or is likely to be damaged;
(f) unfair discrimination as contemplated in the Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000; or
(g) that any matter referred to in paragraphs (a) to (f) has been, is being or is likely to be
deliberately concealed.
In CWU & Another v Mobile Telephone Networks (Pty) Ltd [2003] 8 BLLR 741 (LC) the
unsubstantiated allegations of alleged fraud by management was held not to be protected by the
Unfair labour practices 399

Protected Disclosures Act. According to the Court, a “disclosure” must contain information
regarding a criminal offence, a failure by person to discharge a legal obligation, or a miscarriage of
justice. In Radebe & Another v Mashoff, Premier of the Free State Province & Others [2009] 6 BLLR
564 (LC) it was held that a disclosure made by an employee must contain information revealing one
or more of the improprieties listed in the PDA and that it must be made in good faith, i.e. the
employee must have reason to believe in the truth of the information. A disclosure that does not
meet these requirements does not qualify as a protected disclosure.
An employee who discloses any of the above is protected against reprisal only if the disclosure
is a “protected disclosure”. A disclosure is protected if it is
• made to a legal practitioner or to a legal adviser with the object of and in the course of obtaining
legal advice,
• made in good faith to an employer. If the employer has not prescribed any procedure for the
disclosure of information any disclosure to him in good faith is protected. If a procedure has been
prescribed, the disclosure must be made in accordance with that procedure in order to qualify
as a protected disclosure. If the prescribed procedure authorises disclosure to a person other
than the employer, disclosure to that person is considered to be disclosure to the employer and
is protected;
• made in good faith to a member of Cabinet or of the Executive Council of a province if the
employee’s employer is an individual appointed in terms of legislation by a member of Cabinet
or of the Executive Council of a province, a body the members of which are appointed in terms
of legislation by a member of Cabinet or of the Executive Council of a province or an organ of
state;
• made in good faith to the Public Protector or the Auditor-General (or a person or body prescribed
for the purposes of this provision) if the relevant impropriety concerns a matter normally dealt
with by the Public Protector, etc., and if the information and/or allegation is substantially true;
• made in good faith to any person or body by an employee who reasonably believes that the
information is substantially true. A disclosure in these circumstances is protected only if (i) it is
made not for personal gain; (ii) if it is reasonable to make the disclosure, having regard to the
identity of the person concerned, the seriousness of the impropriety and whether it is likely to
continue, whether the disclosure is in breach of a duty of confidentiality and public interest; and
(iii) if the employee has reason to believe that he or she will be subjected to an occupational
detriment if the disclosure is made to his or her employer, that evidence relating to the
impropriety will be concealed or destroyed if disclosed to the employer, if information that is
substantially the same has been disclosed previously and no action was taken within a
reasonable period or that the impropriety is of an exceptionally serious nature.
A protected disclosure does not include a disclosure in respect of which the employee commits an
offence by making that disclosure or a disclosure made by a legal adviser to whom the information
was disclosed in the course of obtaining legal advice.
No employee may be subjected to any occupational detriment by his employer on account or
partly on account of having made a protected disclosure. An “occupational detriment”, in relation
to the working environment of an employee, means
(a) being subjected to any disciplinary action;
(b) being dismissed, suspended, demoted, harassed or intimidated;
(c) being transferred against his or her will;
(d) being refused transfer or promotion;
(e) being subjected to a term or condition of employment or retirement which is altered or kept
altered to his or her disadvantage;
(f) being refused a reference or being provided with an adverse reference from his or her
employer;
(g) being denied appointment to any employment, profession or office;
400 A Practical Guide to Labour Law

(h) being threatened with any of the actions referred to in paragraphs (a) to (g) above; or
(i) being otherwise adversely affected in respect of his or her employment, profession or office,
including employment opportunities and work security.
If an employee is dismissed because he has made a protected disclosure, the dismissal is considered
an automatically unfair dismissal in terms of section 187 of the LRA. The dispute resolution
procedures applicable to automatically unfair dismissals must then be followed.
In Pedzinski v Andisa Securities (Pty) Ltd (Formerly SCMB Securities (Pty) Ltd) [2006] 2 BLLR
184 (LC) the applicant, who worked on a half-day basis because of health reasons, was required to
work full days after she had reported irregular share-trading involving the executive director and
was subsequently dismissed. The court found that the disclosures made by her fell squarely within
the provisions of the PDA and that her dismissal was automatically unfair.
All occupational detriments (other than dismissal) are deemed to be unfair labour practices as
contemplated in section 186(2) of the LRA and must be referred to the Labour Court for adjudication
once conciliation has failed.
In Grieve v Denel (Pty) Ltd [2003] 4 BLLR 366 (LC) the applicant prepared a report concerning
alleged wrongdoings of a general manager. He was charged with misconduct, suspended from duty
and summoned to attend a disciplinary hearing. This was held to constitute an occupational
detriment. In Tshishonga v Minister of Justice and Constitutional Development & Another [2007] 4
BLLR 327 (LC) the applicant made serious allegations in the media about the then minister of the
department after having made disclosures to the Public Protector, the Auditor-General and a
cabinet minister some seven months earlier. He was suspended and charged with misconduct.
Although the chairperson of an internal enquiry found that his disclosure was protected, he was
not reinstated. In subsequent unfair labour practice proceedings in the Labour Court, the Court
found that the applicant’s approach to the media was justifiable and his suspension constituted an
unfair labour practice.
In Xakaza v Ekurhuleni Metropolitan Municipality & Others [2013] 7 BLLR 731 (LC) it was held
that, in order to enjoy protection, an employee must prove that:
• he was an employee;
• he had information which tended to disclose criminal or other misconduct;
• the disclosure of that information was in good faith;
• he had used the correct procedure in making the disclosure; and
• there was a causal link between the disclosure and the occupational detriment.
An employee who has been subjected, is subjected or may be subjected to an occupational
detriment may approach any court, including the Labour Court for appropriate relief or pursue any
other process allowed or prescribed by any law – City of Tshwane Metropolitan Municipality v
Engineering Council of SA & Others [2010] 3 BLLR 229 (SCA); IMATU obo Bezuidenhout v
Witzenberg Municipality & Others [2014] 5 BLLR 443 (LC).
An employee who has made a protected disclosure and who reasonably believes that he may be
adversely affected as a result, must be transferred to another post or position within the employer’s
organisation (or to another organ of state if the State is the employer) if that employee applies for
such a transfer and if it is reasonably possible or practicable to transfer him. Once transferred, the
conditions of employment may not, without the employee’s written consent, be less favourable
than the terms and conditions applicable immediately before the transfer.
Any provision in a contract of employment or other agreement between an employer and
employee is void if it excludes the operation of any provision of the PDA or precludes the institution
of any proceedings under the Act.
The Companies Act 71 of 2008, in section 159 and with reference to the PDA, extends protection
to registered trade unions in certain circumstances.5

18.10 Job applicants

Unfair labour practices 401

Under the old dispensation job-seekers were not protected against the bias of a potential employer.
The now repealed item 2(2) of Schedule 7 offered protection to applicants for employment by
putting them on an equal footing to employees regarding unfair discrimination issues. These
provisions can now be found in section 9 of the Employment Equity Act.
It must be noted that the appointment to a post of an external candidate is not covered by the
LRA. Appointments, or rather non-appointments, are dealt with in the Employment Equity Act, but
then only if unfair discrimination is alleged. In other words, should a job applicant claim unfair
conduct by a prospective employer on grounds other than alleged unfair discrimination, the dispute
cannot be determined as an unfair labour practice under the LRA. If the job applicant complains of
alleged unfair discrimination, the dispute is conciliated by the CCMA and adjudicated by the Labour
Court in terms of Chapter 2 of the Employment Equity Act.
It is interesting to note that a non-appointment to a post is considered an unfair labour practice
if it falls within the ambit of the Protected Disclosures Act and must be adjudicated by the Labour
Court.

________________________

5 Practitioners should take note of the guidelines published in GG 34572 of 31 August 2011 in terms of s 10(4)(a) of
the Protected Disclosures Act.
18.11 Dispute resolution

The procedure for resolving alleged unfair labour practice disputes is found in section 191 of the
LRA.
In terms of section 191(1) an unfair labour practice dispute must be referred in writing to a
council with jurisdiction or to the CCMA (if no council has jurisdiction) for conciliation. The referral
to conciliation must be lodged within 90 days from the date the unfair labour practice was
committed or, if it is a later date, within 90 days from the date on which the employee became
aware of the alleged unfair labour practice. If conciliation fails the dispute may be referred to
arbitration (s 191(5)(a)(iv)), except a dispute concerning an occupational detriment as envisaged in
the Protected Disclosures Act, which must be referred to the Labour Court (s 191(13)). Both a
referral to arbitration and a referral to the Labour Court must be filed within 90 days of the date of
the certificate of non-resolution.
Note must be taken that an unfair labour practice in the context of probation must be referred
for con-arb (s 191(5A)).
402 A Practical Guide to Labour Law

days

days

* An occupational detriment is referred to the Labour Court once conciliation has failed.
In terms of section 193(4) an arbitrator has the power to determine an unfair labour practice
dispute on terms he deems reasonable, including but not limited to ordering reinstatement, re-
employment or compensation. The compensation awarded to an employee in respect of an unfair
labour practice must be just and equitable in all the circumstances, but may not be more than the
equivalent of 12 months’ remuneration (s 194(3)).

Questions

Question 1
Describe in detail the concept “unfair labour practice” as contemplated in section 186(2) of the LRA.
(20)

Question 2
It is policy and practice in the South African Police Services (SAPS) to advertise posts for promotion
per province. Once applications have been received, a provincial panel is established to shortlist
the candidates and to recommend one of the shortlisted candidates as the most suitable candidate
for the post. The provincial panel submits the name of the recommended candidate to Head Office
and the National Commissioner appoints the recommended candidate to the promotional post.
During 2000 promotional posts for the rank of superintendent were advertised. SAPS members
who were at captain level could apply for these posts. Captain Van der Merwe, with vast experience
in border policing, applied for the post of Superintendent in Border Policing: Eastern Cape.
According to the SAPS policy, border policing is a specialist field and, therefore, a representative
from Head Office: Border Policing had to form part of the provincial panel selecting the shortlisted
and number one candidates. In addition, the policy required that the preferred candidate should
have experience in border policing because of the specialist functions that had to be performed.
Thirty applications were received for the post of Superintendent: Border Policing in the Eastern
Cape. The provincial panel convened without informing Head Office. As a result there was no
representative from Head Office on the panel. The panel shortlisted five candidates for the post,
none of whom had any experience in border policing. Captain Van der Merwe was the only applicant
with experience in border policing, but did not make it onto the shortlist. Captain Ndlovu, one of
the shortlisted candidates, was recommended as the number one candidate and was eventually
appointed to the post.
When Captain Van der Merwe challenged his non-promotion he was informed that Captain
Ndlovu had been promoted in accordance with the employment equity plan of the SAPS. A study
of the equity plan revealed that, in the event of a specialist post, experience and knowledge were
Unfair labour practices 403

of supreme importance and should not be disregarded in favour of equity. Some further research
revealed that none of the applicants for the post in question had any experience in border policing,
neither had they completed any courses in this field. Captain Van der Merwe was the only applicant
who had completed all the required courses and he had some 12 years’ experience in border
policing.
2.1 Analyse the situation and determine whether or not Captain Van der Merwe should have been
promoted to superintendent. (20)
2.2 Assume that, when Captain Van der Merwe referred his dispute for resolution, he did not claim
that he had been discriminated against in the promotion process. He simply challenged his
non-promotion on the grounds of experience and qualifications. Discuss the dispute
resolution procedure that has to be followed in order to have his dispute resolved. (6)
Hint: There is a bargaining council for safety and security.
2.3 Assume that Captain Van der Merwe alleged that he had been discriminated against because
he is a white male. For this reason he was not promoted. What is the dispute resolution
procedure that must be followed? (6)
Hint: Refer to Chapter 2 of the Employment Equity Act.

Question 3
According to the company policy of Noddy’s Toys Manufacturing (Pty) Ltd promotion to the more
senior occupational levels in the company will be considered once employees have undergone an
evaluation process in ten areas of responsibility, such as managerial skills, leadership abilities,
experience, standard of performance and so forth. A score out of 10 will be awarded for each
category and any employee who scores a total of 55 or more out of 100 will be regarded as suitable
for promotion. The suitable candidates will then be interviewed by a panel consisting of senior
managers and Human Resources personnel.
When the position of Assistant Manager in the Administration Department becomes vacant, six
employees are evaluated with the view of promoting one of them to the vacant position. Mrs
Plaatjies, a coloured female with three years’ experience in the company and who scored 58 on her
evaluation is eventually promoted to Assistant Manager. Ms Smith, a white female with ten years’
experience in the company, challenges her non-promotion. She scored 77 on her evaluation, but
was not even called for an interview. Ms Smith claims that she was the best candidate for the
position and would have been promoted had she been afforded an opportunity to be interviewed.
The company counters her claim by stating that Mrs Plaatjies was an affirmative-action promotion.
3.1 Discuss Ms Smith’s legal position and consider the validity or otherwise of the company’s
argument. (20)
Hint: See PSA obo Badenhorst v Department of Justice (1999) 20 ILJ 253 (CCMA); SAMWU obo
Damon v Cape Metropolitan Council (1999) 20 ILJ 714 (CCMA); Van Rensburg v Northern
Cape Provincial Administration (1997) 18 ILJ 1421 (CCMA); Rafferty v Department of the
Premier [1998] 8 BALR 1017 (CCMA); PSA obo Dalton & Another v Department of Public
Works [1998] 9 BALR 1177 (CCMA); NEHAWU obo Thomas v Department of Justice (2001)
22 ILJ 306 (BCA); Lotter v SA Police Service (2005) 26 ILJ 578 (BCA); Kruger v SA Police
Service (2003) 24 ILJ 477 (BCA).
3.2 Assume that Ms Smith claimed that her score of 77, the highest of all the candidates, and the
fact that she had been acting in the post previously, gave her a legitimate expectation to be
promoted. Discuss the principle of “legitimate expectation” and decide whether Ms Smith
should have been promoted in these circumstances. (20)
Hint: See IMATU obo Coetzer v Stad Tygerberg (1999) 20 ILJ 971 (CCMA); Administrator, Transvaal
& Others v Traub & Others (1989) 10 ILJ 823 (A); Catholic Bishops Publishing Co & Others
v State President & Others 1990 (1) SA 849 (A); Ramoroka v Robben Island Museum (2012)
33 ILJ 500 (CCMA); UTATU obo Fourie & Another v Transnet Ltd (2002) 23 ILJ 1117 (ARB);
404 A Practical Guide to Labour Law

Gurarnah v South African Weather Services [2004] 4 BALR 454 (CCMA); Limekaya v
Department of Education [2004] 5 BALR 586 (GPSSBC).

Question 4
Mr Chang, a senior financial clerk, is demoted because of poor work performance. He has not been
informed that his performance does not meet the required standards. In fact, three months ago he
received a small performance bonus. After investigation it appears that the demotion in actual fact
occurred as a result of one mistake that Mr Chang had made during the previous month.
4.1 Is Mr Chang’s employer guilty of an unfair labour practice? Explain. (5)

4.2 Discuss the dispute resolution procedure that must be followed in order to resolve the dispute
between Mr Chang and his company. (5)
4.3 Assume that Mr Chang was demoted, not as described above, but because of the operational
requirements of his employer. Explain whether his employer is guilty of an unfair labour
practice in these circumstances. (5)
4.4 Assume that Mr Chang was demoted, not as described previously, but because he had sought
legal advice from his attorney as to how the corruption and discrimination prevalent in his
workplace could be dealt with. Is the employer guilty of an unfair labour practice? Explain
and include in your answer the dispute resolution procedure, if any, which must be followed
in this case. (10)
Hint: See the definition of “occupational detriment” and sections 3 & 4 of the Protected Disclosures
Act.
4.5 Assume that Mr Chang was a new employee, appointed some three months ago, and that he
was on probation. Explain whether his employer can dismiss him for poor work performance
in the circumstances described above. (20)

Question 5
In terms of the equity plan of TriStar Mining Company employees from designated groups will
receive training so that they can advance to more senior positions in the company. When the trade
union that represents a large number of these employees insists that training commence,
management says there are no financial resources available for training.
Management undertakes to budget for training so that the employees can be trained during the
course of the following financial year.
5.1 Is the company guilty of an unfair labour practice by not providing training to the employees?
(5)
5.2 Assume that training was part of the employees’ contracts of employment. Does this alter your
position in 5.1? (5)

Question 6
After a post was advertised five external candidates were shortlisted and invited to interviews. One
of them was appointed to the post. Ms Pillay, one of the unsuccessful candidates, believed that she
should have been appointed as she was the best candidate. She also claimed unfair discrimination
on the basis of gender and ethnicity. Discuss her legal posi-
tion and what she can do to have her dispute resolved. (10)

Question 7
Mr Fourie is Head of Administration at a public hospital. He is very unhappy because his immediate
superior, a rather dictatorial person, makes life unbearable in the workplace. When he cannot stand
the circumstances any longer he applies for a transfer to another hospital. His transfer is not
approved.
7.1 Is this matter arbitrable in terms of the LRA? (5)
Unfair labour practices 405

7.2 Assume that Mr Fourie was happy in his work and did not wish to be transferred. Because he
disclosed information regarding corruption in the hospital’s administration to the provincial
government he is transferred without warning or notification. He wishes to challenge the
transfer. Is it possible for him to do so? If so, explain the procedure that will have to be
followed. (10)
Hint: See the definition of “occupational detriment” and ss 3 & 4 of the Protected Disclosures Act.

Question 8
Identify the nature of the dispute in the following instances and then explain how the dispute can
be resolved:
8.1 Employee X is employed at Guestro Wheels. He applies for a supervisory post because it would
mean a promotion for him. A person with lesser qualifications and experience is appointed
as supervisor. X challenges his non-appointment to the post. The MEIBC (Metal and
Engineering Industries Bargaining Council) has jurisdiction in the sector and area where
Guestro Wheels is situated. (5)
8.2 Viwe is an administrative clerk in the Department of Home Affairs. When the post of Director of
Administration is advertised, he applies because the post would mean a promotion for him.
When another clerk is appointed to the post, Viwe claims that he should have been
appointed because he has better qualifications and more experience than the person who
was appointed. (5)
8.3 Bob is employed by Comfy Shoes CC, a small company manufacturing ladies’ and children’s
shoes. He is a Rastafarian, who believes in smoking dagga in order to practise his religion. His
employer is a Muslim and disagrees with Bob’s dagga-smoking habit. After a few incidents of
poor performance by Bob, his employer demotes him. Bob claims that it is not his
performance, but rather his religion that persuaded his employer to demote him. There is a
bargaining council for the leather industry. (5)
8.4 Janet is employed by a travel agency. In terms of her contract of employment she is entitled to
a free air ticket to any overseas destination once a year. This year she decides to visit the
Bahamas in the Caribbean. When she starts planning her trip, her manager informs her that
she would not be entitled to her free ticket because at
times during the course of the year she did not perform up to the required standard. Janet is
so upset that she tells her manager that they are in dispute and that she would take the
matter further. There is no bargaining council. (5)

Question 9
Briefly explain whether the following constitute unfair labour practices:
9. 1 After employee X is found guilty of gross insubordination at a disciplinary hearing, he is
demoted to a position one post level lower than the one he occupied before the hearing. (2)
9.2 Employee C is transferred from the Department of Foreign Affairs to the Department of
Labour against his will. (2)
9.3 The owner of a coffee shop suspends all five of his employees without pay because money
disappeared from the till. He informs the employees that the purpose of the suspension is to
force the culprit to come forward and admit guilt. (2)
9.4 Employer H unilaterally amends the conditions of employment of employee K so that
K must now work longer hours. (2)
9.5 Employee T deserts his duties. Because the employer now does not have a sufficient number
of employees to finish a job for a client, the client cancels the order. The employer holds T
liable for the loss. (2)
9.6 Employee R resigns after working a notice month. When he leaves his employer refuses to
pay him for his annual leave credits. (2)
406 A Practical Guide to Labour Law

9.7 During a retrenchment exercise the employer and the union agree that, when jobs become
available in the company again, the employer will re-employ the retrenched employees. Four
months after some 40 employees were retrenched the company starts employing people
again, but does not consider the retrenched employees for employment. The retrenched
employees insist that they be re-employed. (2)
9.8 Employee J works for the Department of Agriculture. He tells his attorney in confidence of
the corrupt and other criminal practices in the Department. His super- visor finds out that J
was responsible for the leak and transfers him to another department. (2)

Question 10
Peter was acting Human Resources Manager at the National Ports Authority and aspired to be
appointed as the Human Resources Director. The Chief Financial Officer, a good friend of Peter’s,
assured him that the interview process was a mere formality and that he would be promoted to
Human Resources Director. In terms of applicable legislation and company policy only the Managing
Director has the authority to appoint and dismiss employees. Peter was not popular among the
staff and when they got wind of his possible promotion they decided to air all their grievances
against him. They submitted, through their union, a memorandum and demanded his dismissal.
When nothing came of the memorandum the employees embarked on strike action and vowed that
their strike would continue until Peter was dismissed. In an attempt to calm emotions Peter was
placed on suspension with full pay and benefits and senior management undertook to investigate
all the complaints against him. In the meantime the recruitment process for the position of Human
Resources Director continued, candidates were shortlisted and interviewed and Ms X was
appointed. Peter was not even shortlisted or interviewed for the position. He referred a dispute,
claiming that his employer had committed an unfair labour practice by unfairly suspending him and
by failing to promote him to the position of Human Resources Director when he had a legitimate
expectation of promotion. His expectation, according to him, was based on the promises made by
the CFO.
Consider Peter’s claim of a legitimate expectation and decide whether the employer committed an
unfair labour practice. (10)

Question 11
The employees of Suzie’s Clothing Company went on strike. The company applied the “no work, no
pay” rule during the strike. The company’s interpretation of “no pay” was that no form of
remuneration or benefit would be given or accrue to the employees for the duration of the strike.
Consequently, the striking employees lost not only their wages, but also the employer’s
contributions towards their medical and pension funds, their housing allowances and other benefits
for the period they were on strike – in effect, they were subjected to a “no work, no pay, no benefits”
policy. Decide whether the company has committed an unfair labour practice. (10)
Hint: See SAMWU v City of Cape Town & Others (2010) 31 ILJ 724 (LC).
408 A Practical Guide to Labour Law

19
DISPUTE RESOLUTION

19.1 Introduction

The nature of the employment relationship is such that disputes between an employer and
employee (or trade union) occur frequently. It is, therefore, important to have procedures in place
through which disputes can be channelled as and when they arise. The statutory conciliation
procedures of the 1956 LRA were ineffective in that they were lengthy and complex, with the result
that the merits of a dispute were often lost in procedural technicalities. The absence of procedures
for the independent and effective mediation of disputes was often the reason for resolvable
disputes culminating in industrial action.
The 1995 LRA provides a fundamentally new statutory dispute resolution system. It establishes
the Commission for Conciliation, Mediation and Arbitration (CCMA) for the conciliation and
arbitration of certain disputes, allows bargaining and statutory councils to resolve disputes that
arise within their jurisdictions and also recognises and actively promotes private dispute resolution
procedures negotiated between the parties. In principle, the LRA provides that all disputes must be
referred for conciliation and, if conciliation fails, that some disputes be arbitrated, whilst others
must be adjudicated by the Labour Court.
The Labour Relations Amendment Act of 2002 introduced two new dispute resolution processes:
the con-arb, which is a fusion of the conciliation and arbitration processes, and the pre-dismissal
arbitration, which takes the place of a disciplinary hearing. The “predismissal arbitration” of the
2002 Amendment Act was renamed an “inquiry by an arbitrator” in the amendments of 2014, but
the process is essentially the same.

19.2 Structures for dispute resolution

The structures created by the LRA to resolve disputes are bargaining and statutory councils, the
CCMA, the Labour Court and the Labour Appeal Court.
While the LRA prescribes conciliation and arbitration or Labour Court adjudication for the
resolution of disputes, private dispute resolution is encouraged. Parties may by way of collective or
other agreements decide on private conciliation and arbitration. Such an agreement takes
precedence and the dispute resolution procedure contained in the agreement will have to be
followed. In fact, section 147(6) authorises the CCMA to refer a dispute to the appropriate private
person or agency for resolution if it is found that a private agreement between the parties governs
the issues in dispute.
 403
The structures for dispute resolution are as follows:

* Some disputes must be referred to the CCMA for conciliation and arbitration even though a council is in
existence, such as disputes over organisational rights, workplace forums, ministerial determinations,
demarcation of sectors and areas, etc. See below.
The resolution of disputes takes place in accordance with a two-step procedure introduced by the
LRA:
Step 1: All disputes must be conciliated.
Step 2: If conciliation fails the dispute must be referred to arbitration by the CCMA or a council or
to adjudication by the Labour Court (in the case of a dispute of right), or industrial action
may be taken (in the case of a dispute of interest).
Conciliation is a mediation process where a neutral third party acts as a facilitator and assists the
parties to settle their dispute. If the dispute is resolved, the parties sign a settlement agreement,
meaning that the dispute is out of the way. An outcome certificate is issued to prove that
conciliation was conducted and that the dispute has been settled. Where conciliation fails and the
dispute remains unresolved, the outcome certificate (or certificate of non-resolution) will indicate
that the dispute has not been settled and, depending on the nature of the dispute, any party to the
dispute may refer it to arbitration or to the Labour Court (depending on the nature of the dispute).
Arbitration is in fact an adjudication process undertaken by the CCMA or an accredited council
or private agency and resolves the dispute by way of the arbitrator making a final decision or
judgment, called the arbitration award. There is no right of appeal against an arbitration award
(save in the context of closed shop or agency shop agreements and in discrimination disputes
arbitrated by the CCMA under the EEA). Arbitrations conducted by the CCMA or councils are subject
to the provisions of the LRA only and the Arbitration Act of 1965 does not apply, whereas the latter
Act applies to private arbitrations.
410 A Practical Guide to Labour Law

19.3 Dispute resolution by councils (s 51)

19.3.1 Accreditation
Councils must provide for dispute resolution in their constitutions. If parties to a council are in
dispute, they must resolve their dispute in accordance with the dispute resolution procedures
contained in the constitution.
Councils may perform dispute resolution functions when a non-party is a party to the dispute
only if they have been accredited by the CCMA. In terms of section 127 any council may apply to
the governing body of the CCMA for accreditation by using LRA Form 7.1. Before an application for
accreditation is approved, the governing body will consider a number of factors, inter alia, whether
the human and financial resources of the council are adequate to conduct dispute resolution that
meets the standards of the CCMA. Upon approval a certificate of accreditation is issued, the name
of the council is entered into the register of accredited councils and the accreditation is published
in the Government Gazette.
A council can be accredited to conduct conciliations only or conciliations and arbitrations.
However, in terms of section 127 a council cannot be accredited to perform conciliation and
arbitration functions in respects of certain disputes, such as disputes concerning organisational
rights, workplace forums, ministerial determinations and demarcation issues. In these instances and
in those instances where a council has not been accredited the CCMA must undertake the
conciliation and arbitration proceedings. Similarly, in instances where a council does not exist or
does not have jurisdiction the CCMA must undertake the dispute resolution functions. See para.
19.4.1 below for a detailed exposition of the disputes in which the CCMA has exclusive jurisdiction.
Once a council has been accredited it will appoint a panel of conciliators and arbitrators to
conduct dispute resolution functions. The majority of these conciliators and arbitrators (“the
panellists”) are appointed on a part-time basis.
Private agencies also need to be accredited by the CCMA before they may perform dispute
resolution functions. Private agencies apply for accreditation by completing and submitting LRA
Form 7.2 to the CCMA.

19.3.2 Jurisdiction of councils

A council is entrusted with dispute resolution functions within its registered scope, whether the
dispute is between parties to the council or whether one or more of the parties to the dispute are
not parties to the council. Disputes are dealt with in the following manner:
• if a dispute exists between parties to a council the dispute resolution procedure in the
constitution of the council must be followed. Council constitutions invariably provide for
conciliation and arbitration;
• if non-parties are involved in a dispute, but they fall within the registered scope of the council
the dispute must be referred to the council. The council must attempt to resolve the dispute
through conciliation and, if conciliation is unsuccessful, by way of arbitration;
• if one or more of the parties to a dispute fall outside the registered scope of the council the
dispute must be referred to the CCMA.
Generally speaking councils may conciliate and arbitrate the following types of dispute:
• dismissal for misconduct;
• dismissal for incapacity or poor work performance;
• constructive dismissal, including constructive dismissals arising out of transfers in terms of
sections 197 and 197A (unless section 187 is applicable);
• dismissals where the reason for the dismissal is unknown to the employee;
Dispute resolution 411

• dismissals in the context of selective re-employment;

• dismissals in terms of section 186(1)(b), i.e. where the employee alleges a reasonable
expectation of the renewal of a fixed-term contract or permanent employment, but the
employer did not renew the contract, renewed it on less favourable terms or did not appoint
the employee permanently;
• dismissal of a probationary employee (con-arb is required);
• unfair labour practices (but excluding unfair labour practices concerning occupational detriments
in terms of the Protected Disclosures Act). An unfair labour practice in the context of probation
is subject to con-arb;
• disputes about the interpretation or application of the council’s constitution or its collect-ive
agreements;
• dismissal for operational requirements can be arbitrated by a council if only one employee was
retrenched or where an employer employed fewer than ten employees and the retrenched
employee or employees elect arbitration rather than adjudication by the Labour Court;
• disputes about the interpretation or application of sections 198A, 198B and 198C of the LRA;1
Compliance issues, i.e. an allegation by an employee or union that an employer has failed to comply
with a council collective agreement or underpaid an employee, are resolved by way of the council’s
compliance procedures. The majority of councils have adopted a procedure in terms of which a
designated agent would issue a compliance order and if an employer fails to comply, the matter is
referred to a compliance arbitration.
In some instances a council has jurisdiction to conciliate a dispute but, should conciliation fail,
the dispute must be referred to the Labour Court for adjudication; it cannot be arbitrated. The most
common examples of such disputes include disputes over dismissal for operational requirements
(save where only one employee was dismissed or where an employer employed fewer than ten
employees), automatically unfair dismissals, dismissals because of an unprotected strike and an
alleged infringement of freedom of association.

19.3.3 Referral of dispute to council

A dispute must be referred to the council – for conciliation and arbitration – in writing and a copy
of the referral must be served on the opposing party. Proof of such service must be submitted to
the council. The LRA prescribes forms for referrals to the CCMA, but not to councils. By implication,
then, a dispute may be referred to a council in any format as long as it is in writing. However, the
majority of councils have developed forms similar to those used for CCMA referrals for both
conciliation and arbitration and a referring party will have to use those forms.
A dispute must be referred to a council within the time frame specified in the council’s
constitution or dispute procedure. The LRA does not prescribe time limits for referral to conciliation,
except in the case of dismissals, unfair labour practices and section 198D referrals. The majority of
councils follow the provisions of the LRA by including the prescribed periods of the LRA in their
constitutions.
In terms of the LRA a dismissal dispute must be referred to conciliation within 30 days from the
date of the dismissal, an unfair labour practice disputes within 90 days from the date on which the
unfair practice was committed (or the employee became aware of it) (s 191(1) and a section 198D
referral within six months (s 198D(3)). In terms of section 136(1) of the LRA all disputes must be
referred to arbitration within 90 days from the date of the outcome certificate. On good cause
shown condonation may be granted for a late referral in both conciliation and arbitration referrals.
________________________
1 S 198A regulates employment by a TES (labour broker), s 198B regulates fixed-term contracts and s 198C part-time
employment. Disputes concerning the application/interpretation of ss 198A–198C are referred to a council or
the CCMA in terms of s 198D.
19.3.4 Subsidies, fees and confidentiality
412 A Practical Guide to Labour Law

An accredited council or agency may charge a fee in accordance with the tariff of fees determined
by the CCMA for performing the functions for which it has been accredited.
An accredited council or private agency may apply to the governing body of the CCMA for a
subsidy to perform those functions for which it is accredited and for the training of persons to
perform those functions.
An accredited council or agency or any person engaged in the performance of its functions is not
liable for any loss suffered by any person as a result of any act performed or omitted in good faith
in the course of exercising these functions. A council or agency or persons employed by them may
not disclose information acquired on a confidential basis to any person or in any court, except where
compelled to do so by an order or court.

19.4 Dispute resolution by the CCMA

19.4.1 CCMA jurisdiction

Disputes that cannot be conciliated and arbitrated by a council must be referred to the CCMA for
conciliation and arbitration. Similarly, if there is no council with jurisdiction in a particular sector
and area, the CCMA is responsible for the resolution of disputes arising in that sector and area.
The CCMA has jurisdiction to conciliate and arbitrate the following disputes:
• dismissal for misconduct;
• dismissal for incapacity or poor work performance;
• constructive dismissal, including constructive dismissals arising out of transfers in terms of
sections 197 and 197A (except in those instances where section 187 is applicable);
• dismissals where the reason for the dismissal is unknown to the employee;
• dismissals in the context of selective re-employment;
• dismissals in terms of section 186(1)(b) – that is, when the employee alleges a reasonable
expectation of the renewal of a fixed-term contract or of permanent employment, but the
employer did not renew the contract, renewed it on less favourable terms or did not appoint the
employee permanently;
• dismissal of a probationary employee (con-arb is required);
• unfair labour practices (but excluding any occupational detriment in terms of the Pro-tected
Disclosures Act, which must be referred to the Labour Court). Unfair labour practices in the
context of probation are subject to con-arb;
• dismissal for operational requirements can be arbitrated by the CCMA if only one employee was
retrenched or where an employer employed fewer than ten employees and the retrenched
employee or employees elect arbitration rather than adjudication by the Labour Court;
• disputes about the interpretation or application of sections 198A, 198B and 198C of the LRA;2
• compliance issues and payment claims can, in terms of the 2018 amendments to the BCEA, be
referred to the CCMA. If a Department of Labour inspector has secured a written undertaking
from an employer or issued a compliance order to an employer because the employer has failed
to comply with the BCEA, NMWA, UIA or UICA, that undertaking or

________________________
2 S 198A regulates employment by a TES (labour broker), s 198B regulates fixed-term contracts and s 198C part-time
employment. Disputes about the interpretation/application of ss 198A–198C are referred to a council or the
CCMA in terms of s 198D.
compliance order can be referred to the CCMA to have it made an arbitration award (ss 64(1)(dA),
68(3) & 73 of the BCEA). If an employer objects to a compliance order issued by an inspector, the
Dispute resolution 413

employer can refer a dispute to the CCMA within the period the employer was supposed to
comply (s 69(5) of the BCEA). An employee who earns below the BCEA threshold can refer
payment disputes to the CCMA for con-arb (s 73A of the BCEA).
In addition to the above disputes, the CCMA has exclusive jurisdiction to conciliate and in most
instances arbitrate the disputes that follow, although a council may be in existence, the reason
being that, in terms of section 127, a council cannot be accredited to deal with these disputes:
• disputes about the disclosure of information to trade unions or trade union representa-tives as
contemplated in section 16 (disclosure in the context of organisational rights);
• disputes about the exercising of organisational rights. If a trade union has notified an employer
that it seeks to exercise one or more of the organisational rights contained in Part A of Chapter
III of the Act and a collective agreement in this regard cannot be concluded, the dispute must be
referred to the CCMA for conciliation and, if necessary, arbitration;
• disputes about the application or interpretation of Part A of Chapter 3, which contains the
provisions relating to organisational rights, may not be dealt with by a council or private agency,
but must be referred to the CCMA for conciliation and arbitration;
• disputes about the interpretation or application of a collective agreement where the agreement
does not provide for a dispute resolution procedure, where the procedure contained in the
agreement is inoperative or where the dispute procedure in the agreement is frustrated by any
party to the agreement (s 24(2));
• disputes about the application or interpretation of agency shop or closed shop agree-ments;
• disputes about the failure or refusal to admit a registered trade union with a significant interest
in the workplace as a party to a closed shop agreement. If conciliation fails, the matter must be
referred to the Labour Court;
• disputes about the interpretation or application of a ministerial determination in terms of section
44;
• disputes about the interpretation or application of collective agreements of a council whose
registration has been cancelled (s 61(8));
• disputes about the demarcation of sectors and areas of councils (s 62);
• disputes about the interpretation or application of Parts C to F of Chapter 3 of the Act. Part C
deals with bargaining councils, Part D with bargaining councils in the public service, Part E with
statutory councils and Part F with general provisions concerning councils. The disputes referred
to here include disputes concerning the constitution of a bargaining council; powers and
functions of bargaining and statutory councils; registration of bargaining and statutory councils;
binding nature and/or extension of collective agreements concluded in bargaining councils;
appointment and powers of designated agents of councils; amalgamation of bargaining councils;
change in status of statutory councils and accreditation of a council. Any of these disputes not
resolved through conciliation must be referred to the Labour Court for adjudication;
• disputes about picketing during strikes and lock-outs (s 69(8)). Should conciliation fail, the matter
must be referred to the Labour Court;
• disputes about proposals which are the subject of joint decision-making at a workplace forum in
terms of section 86. Only an employer may refer such a dispute;
• disputes about the disclosure of information to workplace forums;
• disputes about the interpretation or application of Chapter 5 of the Act, which deals with
workplace forums;
• disputes about the interpretation or application of Part C of Chapter 10 of the BCEA
(protection of employee rights). These disputes used to be conciliated by a council or the CCMA
and adjudicated by the Labour Court, but the 2018 amendments changed the position, giving the
CCMA exclusive jurisdiction to conciliate and arbitrate these disputes; and
414 A Practical Guide to Labour Law

• disputes where some but not all parties to the dispute fall within the registered scope of a council
or fall within the registered scope of two or more councils (s 147(4)).
If a dispute has been referred to the CCMA and thereafter it transpires that the dispute should in
fact have been referred elsewhere, the CCMA may refer it to the appropriate forum or person
(agency) or may conduct the arbitration itself, in which case a fee may be charged. This provision
applies where the dispute should have been referred to an accredited council or private agency and
to instances where a collective agreement or private arbitration agreement provides for a dispute
resolution procedure by a forum or person other than the CCMA (s 147).
If an employee who earns less than the BCEA threshold is involved in private dispute resolution
procedures (in terms of a private agreement) and the agreement requires the employee to pay part
of the private dispute resolution costs, the CCMA must undertake the conciliation and/or
arbitration. Similarly, the CCMA must undertake the dispute resolution process if the person or body
appointed to resolve the dispute is not independent of the employer.

19.4.2 Conciliation (s 135)

Parties to a dispute are, on the one hand, one or more trade unions and/or one or more
employees and, on the other, one or more employers’ organisations and/or one or more
employers.
Referral: Any party to a dispute may refer the dispute to conciliation. In practice it is mostly
employees and/or their unions who refer disputes. Note that disputes concerning joint decision-
making issues between an employer and a workplace forum may, in terms of section 86(4), be
referred by an employer only.
The dispute must be referred to the CCMA for conciliation, using LRA Form 7.11. The referring
party is generally known as the applicant. A copy of the referral must be served on the opposing
party (the respondent) and proof of such delivery must be submitted to the CCMA.
The LRA does not prescribe time limits for a referral to conciliation, except in the case of
dismissals, unfair labour practices and section 198D referrals. Dismissal disputes must be referred
to the CCMA for conciliation within 30 days of the date of dismissal (s 191(1)). An unfair labour
practice dispute must be referred to conciliation within 90 days of the date on which the unfair
labour practice was committed or the employee became aware of it (s191(1)). A dispute about the
interpretation or application of sections 198A, 198B and 198C must, in terms of section 198D(3), be
referred to conciliation within six months. On good cause shown condonation may be granted for a
late referral.
The conciliation process: The CCMA is required to conciliate a dispute within 30 days of having
received the referral (known as the ‘conciliation period’). The parties may agree to extend the 30-
day conciliation period.
As soon as a referral is received the matter is set down for conciliation and a commissioner is
appointed to conduct the conciliation. Where a dispute exists in an essential service the parties
may, within seven days after the CCMA has received the referral, agree to the appointment of a
specific commissioner and to his terms of reference.
The commissioner determines the most appropriate process for the resolution of the dispute,
which may include mediation, a fact-finding exercise or an advisory award.
Legal representation is not permitted in conciliation proceedings. A party to the dispute may be
represented by a member, office-bearer or official of his trade union or employer’s organisation or
by a director or employee if the party is a juristic person (CCMA rule 25).
Outcome certificate: At the conclusion of the conciliation hearing the commissioner must issue
an outcome certificate (LRA Form 7.12), indicating whether the dispute has been resolved. If, for
whatever reason, conciliation was not conducted and the 30-day conciliation period has expired, an
outcome certificate will be issued even though conciliation has in fact not taken place. A copy of
the certificate must be served on each party or their representatives and the original is filed with
Dispute resolution 415

the CCMA. An outcome certificate which indicates that the dispute remains unresolved is generally
known as a certificate of non-resolution and entitles any party to the dispute to proceed to
arbitration or Labour Court adjudication.
Settlement agreement: If the conciliation process is successful and the dispute is resolved, the parties
must sign a settlement agreement which finally disposes of the dispute. Such a settlement
agreement may be made an order of the Labour Court (s 158(1)(c)) or an arbitration award (s 142A).
In the latter instance the CCMA may, by agreement between the parties or on application, make a
settlement agreement an arbitration award. In this context a settlement agreement means a
written agreement in settlement of a dispute that a party has the right to refer to arbitration or to
the Labour Court, excluding disputes that a party is entitled to refer to arbitration in terms of section
74(4) (essential services) and section 75(7) (maintenance services). The disputes excluded here are
disputes of mutual interest.

19.4.3 Arbitration (ss 136–138)

Referral: Where a dispute remains unresolved after conciliation and a certificate of nonresolution
has been issued, any party to the dispute may, within 90 days from the date of the certificate,
request the dispute to be resolved through arbitration (s 136(1)). Note that the 90-day period
applies in all circumstances, irrespective of the nature of the dispute. A dispute is referred to
arbitration by filing LRA Form 7.13 with the CCMA. A copy of the referral must be delivered to the
respondent and proof of such delivery must be provided to the CCMA.
If a party refers the dispute to arbitration outside the prescribed 90-day period, the CCMA may,
on good cause shown, condone a late referral.
Appointment of commissioner: When the CCMA receives a referral to arbitration a commissioner is
appointed to conduct the arbitration hearing. It may happen that the conciliating commissioner is
appointed for the arbitration as well, but a party to the dispute is entitled to object to such an
appointment by filing an objection with the CCMA and serve copies thereof on all the other parties.
Another commissioner will then be appointed.
Parties may request the CCMA to appoint a commissioner of their choice by filing a written
request within 48 hours after the outcome certificate was issued. The request must list the names
of not more than five commissioners and must state that the request has the support of all the
parties.
A party to a dispute may apply to the Director of the CCMA to have a senior commissioner
appointed. The Director must hear all the parties to the dispute, as well as the conciliating
commissioner and consider, inter alia, the questions of law raised by the dispute and the complexity
of the dispute before deciding whether to appoint a senior commissioner.
Parties engaged in an essential service may, within seven days after the CCMA received the
referral, agree to the appointment of a specific commissioner and his terms of reference, failing
which the CCMA will appoint one.
Arbitration hearing: A commissioner may conduct the arbitration hearing in any manner he
considers appropriate, but is required to deal with the substantial merits of the dispute with the
minimum of legal formalities. Subject to the discretion of the commissioner, a party to the dispute
is entitled to give evidence, call witnesses, cross-examine the witnesses of the other party and
address concluding arguments to the commissioner. If the parties agree, the arbitration may be
suspended and the matter will again be conciliated in an attempt to settle the dispute.
Representation: In terms of CCMA rule 25(1) a party may be represented by a legal practitioner, a
candidate attorney or by a member, office-bearer or official of that party’s registered trade union
or employers’ organisation, or by a director or employee if the party is a juristic person. Note that
legal representation is not automatically allowed in misconduct and incapacity dismissal disputes
and in instances where a compliance order is referred by an inspector or an employee refers a
payment claim to the CCMA. In these cases a party will have to apply for legal representation (in
416 A Practical Guide to Labour Law

terms of CCMA rule 25(1)(c)). The commissioner must consider the complexity of the dispute and
the questions of law raised by it, public interest and the comparative ability of the opposing parties
or their representatives to deal with the arbitration in deciding whether or not to allow legal
representation.
The constitutionality of the limit on automatic legal representation in the case of misconduct and
incapacity dismissals was challenged in the courts on more than one occasion. In Netherburn
Engineering CC t/a Netherburn Ceramics v Mudau & Others [2003] 10 BLLR 1034 (LC) the Labour
Court held that the exclusion of legal representation in misconduct and incapacity dismissal
arbitrations was not unconstitutional and that legal representation was at the discretion of the
commissioner. In The Law Society of the Northern Provinces v Minister of Labour & Others (NGHC
61197/11, 11 October 2012) the North Gauteng High Court held the opposite view and declared
the limit on legal representation unconstitutional and invalid. The Court suspended its judgment for
three years to afford the CCMA an opportunity to change rule 25. The CCMA took this decision on
appeal and the Supreme Court of Appeal, in CCMA & Others v Law Society of the Northern
Provinces (Incorporated as the Law Society of Transvaal) [2013] 11 BLLR 1057 (SCA), ruled that
CCMA rule 25 was not unconstitutional.
Absence: If the applicant fails to appear in person or to be represented at the arbitration
proceedings the commissioner can dismiss the matter. If the respondent fails to appear or to be
represented, the matter may continue in its absence or may be postponed (s 138(5)).
Essential services: A dispute of mutual interest in an essential service must be arbitrated and the
award issued within 30 days of the date of the certificate of non-resolution (s 139).
Consent to arbitration: In a case that is supposed to be adjudicated by the Labour Court the parties
may agree in writing to have it arbitrated by the CCMA. Such an agreement may be terminated only
with the written consent of all the parties. Any party to the agreement may apply to the Labour
Court to have the agreement varied or set aside, which the Court may do on good cause. If a party
commences proceedings in the Labour Court after the parties have agreed to arbitration, any party
to the proceedings may request the Court to stay the proceedings and refer the dispute to
arbitration or, with the consent of the parties, the Court may continue with the proceedings, now
sitting as an arbitrator and enjoying the powers of an arbitrator (s 141).

19.4.4 The arbitration award (ss 138–145)

Within 14 days of the conclusion of the arbitration proceedings the commissioner must issue a
signed arbitration award and provide brief reasons for the decision. The CCMA must serve copies
of the award on all parties or their representatives. A commissioner may apply to the Director of
the CCMA for extension of the 14-day period.
The commissioner may make any appropriate arbitration award, which may include an order
giving effect to a collective agreement or a declaratory order (s 138(9)). The commissioner is
required to have regard to any code of good practice that has been issued by NEDLAC.
An award may also include an order for costs. Before the 2002 amendments costs were awarded,
in terms of section 138(10), against a party or representative who acted in a frivolous or vexatious
manner by proceeding with or defending the dispute or because of conduct during the arbitration
proceedings. Section 138(10) was amended in 2002 so that a costs order is made in accordance
with the requirements of law and fairness. This amendment did not take effect immediately
because the implementation thereof was made subject to the CCMA making a rule on costs. The
CCMA did not make a rule on costs until April 2015. The test for awarding costs in an arbitration
thus changed from “frivolous or vexatious conduct” to “the requirements of the law and fairness”
on 1 April 2015.
An arbitration award is final and binding and may be enforced as if it were an order of the Labour
Court in respect of which a writ has been issued, unless it is an advisory arbitration award (s 143(1)).
Dispute resolution 417

An arbitration award may be enforced in terms of section 143(1) only if it has been certified by
the CCMA.
An arbitration award can order a party to pay a sum of money (e.g. compensation) or to perform
a specific act (e.g. reinstate an employee). Compliance with a certified award that orders the
performance of an act may be enforced by way of contempt proceedings in the Labour Court (s
143(4)).
If an award orders a party to pay a sum of money, the amount ordered earns interest from the
date of the award at the same rate as that prescribed in terms of section 2 of the Prescribed Rates
of Interest Act 55 of 1975, unless the award provides otherwise (s 143(2)). An arbitration award in
terms of which a party is required to pay an amount of money must be treated for the purpose of
enforcing or executing that award as if it were an order of the Magistrate’s Court.
In terms of section 144 an arbitration award (or ruling) may be varied or rescinded. The
commissioner who issued an award (or another commissioner appointed for this purpose) may of
his own accord or on application by any affected party vary or rescind an award (or ruling). The
grounds for rescission or variation are only the following: the award (or ruling) was erroneously
sought or made in the absence of a party; the award (or ruling) contains an ambiguity or obvious
error or omission; the award (or ruling) was granted as a result of a mistake common to the parties
to the proceedings; the award (or ruling) was made in the absence of a party, on good cause shown.
In the latter instance the party who seeks a rescission of the award will have to establish good and
acceptable reasons why he was not present at the arbitration proceedings and will further have to
show that he has reasonable prospects of success in the event that he is afforded an opportunity
to present his case.
There is no right of appeal against an arbitration award, but an award can be reviewed in terms
of section 145. The grounds for review are (a) misconduct by the commissioner in relation to his
duties as arbitrator; (b) a gross irregularity committed by the commissioner during the proceedings;
(c) the commissioner exceeding his powers; and (d) an improperly obtained award. Any party to the
dispute may apply to the Labour Court for a review of the award and an order setting aside the
award. The application must be filed with the Labour Court (in accordance with Labour Court rule
7A) within six weeks from the date on which the award was served on the parties or, if corruption
is alleged, within six weeks from the date on which the corruption was discovered. If the Court sets
the award aside, it may determine the dispute in any appropriate manner or refer the matter back
to the CCMA for fresh arbitration.
The 2014 amendments added sub-sections (5) to (10) to section 145. In terms of these provisions
an applicant in a review application must apply for a date for the application to be heard within six
months of the filing of the application. Judgment in a review application must be handed down as
soon as is reasonably possible. The institution of review proceedings does not suspend the
operation of an arbitration award, unless the applicant furnishes security to the satisfaction of the
Labour Court, which must be an amount equal to the amount of compensation that was ordered
or, if reinstatement or re-employment was ordered, an amount equal to 24 months’ remuneration.
A review application interrupts the running of prescription (as envisaged in the Prescription Act 68
of 1969).

19.4.5 Powers of CCMA commissioners (s 142)

Commissioners have wide powers when attempting to resolve a dispute through conciliation or
arbitration.
A commissioner may subpoena any person, including expert witnesses, for questioning or to
produce any document, book or object relevant to the resolution of the dispute. A commissioner
may administer the oath or accept an affirmation from any person called to give evidence or be
questioned. With the necessary written authorisation a commissioner may enter and inspect any
premises, examine or seize any book, document or object on those premises and retain them for a
reasonable period. In such an event the commissioner must
418 A Practical Guide to Labour Law

issue a receipt for the items seized. Written authorisation to enter and inspect residential premises
must be obtained from the Labour Court and in all other cases from the Director of the CCMA. The
owner or occupier of any premises and all employees are required to provide all the facilities that
the commissioner requires to carry out an inspection.
The CCMA must pay the prescribed witness’ fees to a person who has been subpoenaed by a
commissioner. If a party to the dispute requests the CCMA to issue a subpoena, that party has to
pay the witness’ fee to the CCMA but, on good cause shown, the CCMA may waive such payment.
The law of privilege as it applies to a witness before a court of law applies equally in proceedings
before a commissioner.
A person is in contempt of the CCMA if he inter alia fails without good cause to appear before a
commissioner or to remain in attendance after having been subpoenaed; refuses to take the oath
or affirmation; refuses to answer questions fully; fails to produce any book, document or object
when requested to do so; insults or disparages a commissioner or wilfully interrupts the conciliation
or arbitration proceedings.
A commissioner may make a finding that a party is in contempt. Such a finding, together with
the record of the proceedings, must be referred by the commissioner to the Labour Court who may
confirm, vary or set aside the finding of the commissioner.

19.5 Con-arb (s 191(5A))

A significant innovation in the context of dispute resolution is the con-arb process, introduced by
section 191(5A) of the LRA (following the 2002 amendments). Con-arb is a fusion of the conciliation
and arbitration processes, which means that, as soon as a council or the CCMA has issued a
certificate to the effect that conciliation has failed, the arbitration must commence immediately.
The con-arb process is compulsory in instances of dismissal or unfair labour practices relating to
probation and also in payment claims referred to by an employee earning below the BCEA
threshold. In these instances the parties are not allowed to object to the process.
Dismissal and unfair labour practice disputes other than in the context of probation would
ordinarily be enrolled for conciliation first and arbitration would follow later (in some instances
many months later). In order to avoid unnecessary delays a council or the CCMA may enrol these
matters for con-arb, but in such an instance the parties may object to the con-arb process. A written
objection must be filed with the CCMA at least seven days prior to the date of the arbitration
hearing.

19.6 Inquiry by arbitrator (s 188A)

Another new process brought about by the 2002 amendments to the LRA is the predismissal
arbitration. After the implementation of the new process the unions objected to the terminology,
arguing that it presupposes a dismissal. The name of the process changed to “inquiry by an
arbitrator” in the 2014 amendments.
This process takes the place of a disciplinary hearing in instances where an employer alleges
misconduct or incapacity on the part of an employee. The rationale behind this process is to
circumvent the prolonged “normal” procedures of internal disciplinary and appeal hearings and
thereafter conciliation and arbitration by having just one hearing. A final outcome is therefore
obtained much sooner than going through all of the normal processes.
Dispute resolution 419

The process is for all intents and purposes an arbitration process. Before the 2014 amendments
section 188A indeed referred to “arbitration”. Because of the renaming of the process section 188A
now refers to an “enquiry” but, read in context, the process is in fact arbitration.
The essential components of an inquiry by an arbitrator in terms of section 188A are as follows:
• the allegations against the employee must concern misconduct or incapacity;
• the employee must consent to the process after having been advised of the allegations;
• the employer initiates the process (after having obtained the employee’s consent) by filing the
prescribed form and paying the prescribed fee;
• the arbitrator conducts an enquiry in a fashion that a normal arbitration would be conducted;
• the decision or ruling of the arbitrator has the same status as an arbitration award.
An employee may consent to an inquiry by an arbitrator by signing the prescribed form or an
employee who earns more than the BCEA threshold may consent thereto in his contract of
employment. It is possible that parties consent to the process in a collective agreement. If such an
agreement exists and if the employee in question is subject to that agreement, it is not necessary
to seek the employee’s consent.
When the employee’s consent has been obtained (or where a contract or collective agreement
allows for the process) the employer must file LRA Form 7.19 with the CCMA (or the appropriate
form in a bargaining council) and pay the prescribed fee. The written consent of the employee (or
the contract or collective agreement) must accompany the form.
Upon receipt of the prescribed form and payment the CCMA (or council) must appoint an
arbitrator to conduct the inquiry. The provisions applicable to arbitrations (excluding the provisions
relating to representation) and the arbitration award discussed above apply equally to the inquiry
by an arbitrator. The decision of the arbitrator has the status of an arbitration award and sections
143 to 146, relating to the effect of an award, rescissions, variations and reviews apply.
Representation is regulated by section 188A(5) and not by CCMA or council rules. During the
inquiry the parties may be represented by an office-bearer or official of the party’s registered trade
union or employers’ organisation or the employer may be represented by an employee or a director
of the company. By agreement the parties may be represented by legal practitioners. If agreement
to legal representation cannot be obtained any party may apply for legal representation and the
arbitrator will have to rule on the application (having regard to the issues in CCMA rule 25).
A council may appoint an arbitrator to conduct an inquiry in terms of section 188A only if it has
been accredited by the CCMA to conduct arbitrations.
If an employee in good faith alleges that an inquiry into his alleged misconduct or incapacity
contravenes the provisions of the Protected Disclosures Act, the employee or employer may require
that an inquiry be conducted by an arbitrator in terms of section 188A. The holding of a section
188A inquiry in these circumstances and the suspension of an employee on full pay pending the
outcome do not constitute an occupational detriment as contemplated in the Protected Disclosures
Act.

19.7 Labour Court

The Labour Court is a court of law and equity and has jurisdiction to deal with a variety of disputes,
too many to provide an exhaustive list. The types of disputes that can be entertained by the Labour
Court range from employment contract and constitutional matters to many other labour matters,
such as matters arising out of the LRA (e.g. some dismissals) and the EEA (discrimination). And then
the Labour Court has jurisdiction to review decisions made by other forums or bodies in terms of
the labour statutes and in some instances hear appeals (e.g. discrimination disputes arbitrated by
420 A Practical Guide to Labour Law

the CCMA, awards made by the CCMA relating to the interpretation/application of closed or agency
shop agreements, section 35 of OHASA appeals).
Dispute resolution 421

The list that follows in not intended to be an exhaustive list and provides only the disputes that
are regularly dealt with by the Labour Court:
• freedom of association disputes;
• whether strikes and lock-outs are protected and the consequences of the action taken;
• disputes between a trade union and its members (or employers’ organisation and its members);
• automatically unfair dismissals;
• retrenchments;

Council or CCMA Council or CCMA Labour Court

Types of dispute conciliation arbitration adjudication

1. Unfair dismissal disputes – Chapter 8 of the LRA

Automatically unfair dismissals (s 187) Refer within 30 Refer within

Dismissal in the context of freedom of days to council or 90 days to Labour
association; dismissal for participating in the CCMA for Court for
protected strike; dismissal because an conciliation adjudication (s
employee refused to do work of a 191(5)(b)(i))
protected striker; dismissal lock-out;
dismissal because the employee is
exercising rights in terms of the LRA or
participating in proceedings in terms of
the Act; dismissal because of pregnancy
or intended pregnancy; dismissal
because of the employer’s
discrimination; dismissal in the context
of a transfer in terms of s 197 or 197A;
dismissal because an employee has
made a protected disclosure.
Dismissal based on employer’s Refer within Refer within
operational requirements where s 189 is 30 days to council 90 days to Labour
applicable (“minor retrenchment”) or the CCMA for Court for
conciliation adjudication (s
191(5)(b)(ii))

continued
422 A Practical Guide to Labour Law

Dismissal based on operational Refer within Employee(s) can Adjudication by the

requirements where only one employee 30 days to council elect arbitration by Labour Court (to be
is retrenched or where employees of an or the CCMA for council or CCMA referred within 90
employer who employs fewer than ten conciliation (to be referred days)
employees are retrenched (s 191(12)) within 90 days) OR

• dismissal because an employee refused to join a union in terms of a closed shop agree-ment;
• dismissals because of an unprotected strike;
• transfers from the old to a new employer in terms of section 197 of the LRA;
• discrimination disputes.

19.8 Dispute resolution of specific disputes

It is important that a dispute be referred to the dispute resolution forum that has jurisdiction.
Referring a dispute to the wrong forum causes unnecessary delays and costs.
The table below provides a summary of the types of dispute encountered most often and shows
the dispute resolution forum that has jurisdiction to deal with the dispute.

continued
Dispute resolution 423

Council or CCMA Council or CCMA Labour Court

Types of dispute conciliation arbitration adjudication

1. Unfair dismissal disputes – Chapter 8 of the LRA – continued

Disputes over the reason for dismissal When a facilitator Union or

based on operational requirements has been employees may
appointed, no give notice to
where s 189A is applicable (“major
conciliation is strike (s
retrenchments”) required. When a 189A(7)(b)(i)) OR
facilitator has not within 90 days
been appointed,
refer dispute to
refer to council or
CCMA for con- Labour Court for
ciliation after adjudication (s
189A(7)(b)(ii))
30 days from date of
s 189(3) notice Note: The choice
between a strike
and adjudication is
available only if the
substantive fairness
of the dismissal is
challenged. If
procedure is
challenged, the
strike option is not
available and the
employees or union
can approach the
Labour Court by
way of application
Entitlement to severance pay Refer to council or Refer within
(retrenchment package) only (s 41 of CCMA for 90 days to council
BCEA) conciliation (no or CCMA for
time limit) arbitration
Dismissal for participating in unprotected Refer within Refer within
strike (s 68(5)) 30 days to council or 90 days to Labour
CCMA for Court for
conciliation adjudication (s
191(5)(b)(iii))
Dismissal in context of closed shop Refer within Refer within
agreement (s 26) 30 days to council or 90 days to Labour
CCMA for Court for
conciliation adjudication (s
191(5)(b)(iv))

continued
424 A Practical Guide to Labour Law

Dismissal for misconduct Refer within 30 days Refer within

to council or CCMA 90 days to council
for conciliation or CCMA for
arbitration (s
191(5)(a)(i))
Dismissal for incapacity or poor work Refer within Refer within
performance 30 days to council or 90 days to council
CCMA for or CCMA for
conciliation arbitration (s
191(5)(a)(i))

Council or CCMA Council or CCMA Labour Court

Types of dispute conciliation arbitration adjudication

1. Unfair dismissal disputes – Chapter 8 of the LRA – continued

Constructive dismissal (s 186(1)(e)) Refer within 30 Refer within

days to council or 90 days to council
CCMA for or CCMA for
conciliation arbitration (s
191(5)(a)(ii))
Reason for dismissal unknown to Refer within Refer within
employee 30 days to council 90 days to council
or CCMA for or CCMA for
conciliation arbitration (s
191(5)(a)(iii))
Employee’s fixed-term contract is not Refer within Refer within
renewed, is renewed on less favourable 30 days to council 90 days to council
terms or employee is not appointed or CCMA for or CCMA for
permanently where he reasonably conciliation arbitration (s
expected a renewal, a renewal on similar 191(5)(a))
terms or a permanent appointment (s
186(1)(b))
Selective re-employment (s Refer within Refer within
186(1)(d)) 30 days to council 90 days to council
or CCMA for or CCMA for
conciliation arbitration (s
191(5)(a))
Transfer of employment contract in Refer within Refer within
terms of s 197 or 197A where 30 days to council 90 days to Labour
employee terminates contract because or the CCMA for Court for
new employment conditions are less conciliation adjudication (s
favourable (this could be considered an 191(5)(b)(i))
automatically unfair dismissal – s
187(1)(g))

continued
Dispute resolution 425

Dismissal because employee made a Refer within Refer within

protected disclosure in terms of the 30 days to council 90 days to Labour
Protected Disclosures Act or CCMA for Court for
(s 187(1)(h)) conciliation adjudication (s
191(5)(b)(i))
Dismissal of probationary employee Refer within 30 When conciliation
days to council fails the
or CCMA for conarb council or CCMA
must commence
arbitration
immediately
(s 191(5A))
2. Unfair labour practices – Chapter 8 of the LRA

Unfair employer conduct relating to Refer within Refer within

promotion, demotion, training or 90 days to council 90 days to council
provision of benefits (s 186(2)(a)) or CCMA for or CCMA for
conciliation arbitration (s
191(5)(a)(iv))
Unfair suspension or other disciplinary Refer within Refer within
action short of dismissal 90 days to council 90 days to council
(s 186(2)(b)) or CCMA for or CCMA for
conciliation arbitration (s
191(5)(a)(iv))

continued
426 A Practical Guide to Labour Law

Council or CCMA Council or CCMA Labour Court

Types of dispute conciliation arbitration adjudication

2. Unfair labour practices – Chapter 8 of the LRA – continued

Employer’s failure or refusal to reinstate Refer within Refer within

or re-employ in terms of any agreement 90 days to council 90 days to council
(s 186(2)(c)) or CCMA for or CCMA for
conciliation arbitration (s
191(5)(a)(iv))
Occupational detriment (other than Refer within Refer within
dismissal) in terms of the Protected 90 days to council 90 days to Labour
Disclosures Act (s 186(2)(d)) or CCMA for Court for
conciliation adjudication (s
191(13))
Unfair employer conduct relating to Refer within When conciliation
probation (other than dismissal) 90 days to council fails the
(s 186(2)(a)) or CCMA for con- council or CCMA
arb must commence
arbitration
immediately (s
191(5A))

3. Freedom of association – Chapter 2 of the LRA

Discrimination or victimisation for Refer to council or Refer within

exercising rights to freedom of the CCMA for 90 days to Labour
association conciliation (no Court for
time limit) adjudication (s 9)
Interpretation or application of Chapter 2 Refer to council or Refer within
of the LRA the CCMA for 90 days to Labour
conciliation (no Court for
time limit) adjudication (s 9)
4. Organisational rights – Part A of Chapter 3 of the LRA

Disputes about disclosure of information Refer to CCMA Refer within 90

(s 16) (even if there is a days to CCMA for
council) for arbitration
(s 16)
conciliation (no
time limit)

Disputes about exercising organisational Refer to CCMA Refer within 90

rights (s 21) (even if there is a days to CCMA for
council) for arbitration(s 21)
conciliation (no
time limit)
Dispute resolution 427

Disputes about the application or Refer to CCMA Refer within 90

interpretation of Part A of Chapter 3 of (even if there is a days to CCMA for
the LRA council) for arbitration
(s 22)
conciliation (no
time limit)
5. Collective agreements – Part B of Chapter 3 of the LRA

Dispute about the interpretation or Refer to council (no Refer within 90

application of a council collective time limit) days to council for
agreement arbitration
continued
Council or CCMA Council or CCMA Labour Court
Types of dispute conciliation arbitration adjudication

5. Collective agreements – Part B of Chapter 3 of the LRA – continued

BUT if the agreement does not provide Refer to CCMA Refer within 90
for a dispute resolution procedure, if the (even if there is a days to CCMA for
procedure in the agreement is council) for arbitration
inoperative or if a party to the conciliation (no
agreement frustrates the resolution of time limit)
the dispute (s 24(2))
Disputes about the interpretation or Refer to CCMA Refer within 90 Any person bound
application of agency shop or closed (even if there is a days to CCMA for by an arbitration
shop agreements council) for arbitration (s award pertaining to
the application or
conciliation (no 24(6)) interpretation of an
time limit) agency or closed
shop agreement
may appeal against
the award to the
Labour Court
(s 24(7))

Closed shop agreements – refusal to Refer to CCMA for Refer within

admit registered union as party to closed conciliation (even if 90 days to Labour
shop there is a council) Court for
(no time
adjudication (s
limit)
26(14))

Dismissal in the context of closed shop Refer within Refer within

agreements 30 days to council 90 days to Labour
or CCMA for Court for
conciliation adjudication (s
191(5)(b)(iv))
6. Bargaining and statutory councils – Parts C, D, E & F of Chapter 3 of the LRA
428 A Practical Guide to Labour Law

Disputes about the interpretation or Refer to the Refer within

application of Parts C–F (i.e. disputes CCMA (and not a 90 days to the
concerning the constitution of a council) for Labour Court for
bargaining council; powers and functions conciliation in adjudication (s
of bargaining and statutory councils; terms of s 63(1) (no 63(4))
registration of bargaining or statutory time limit)
councils; binding nature and/or
extension of collective agreements
concluded in bargaining councils;
appointment and powers of designated
agents of councils; amalgamation of
bargaining councils; change of status of
statutory council; accreditation of a
council)
Disputes about jurisdiction between Refer to CCMA for Refer within 90
bargaining councils in the public sector conciliation (no days to CCMA for
time limit) arbitration
(s 38)

continued
Council or CCMA Council or CCMA Labour Court
Types of dispute conciliation arbitration adjudication

6. Bargaining and statutory councils – Parts C, D, E & F of Chapter 3 of the LRA – continued

Disputes about the application or Refer to CCMA for Refer within 90

interpretation of agreements regulating conciliation (not to days to CCMA for
council)
employment conditions where council’s arbitration (s
(no time limit)
registration has been cancelled 61(10)–(13))

Disputes about demarcation between Refer to CCMA for

sectors and areas arbitration (no time
limit)
(s 62)

7. Workplace forums – Chapter 5 of the LRA

Disputes about the application or Refer to CCMA Refer within 90

interpretation of Chapter 5 of the LRA (even if there is a days to CCMA for
arbitration
council), unless
(s 94)
collective
agreement provides
otherwise (no time
limit)
Disputes about matters for joint decision- Employer may refer Employer may
making dispute to CCMA refer dispute
(even if there is a within 90 days to
council) (no time CCMA for
arbitration
limit)
(s 86(4))
Disclosure of information Refer to CCMA Refer within 90
(even if there is a days to CCMA for
council) (no time arbitration
limit) (s 89(6))
Dispute resolution 429

8. Strikes and lock-outs – Chapter 4 of the LRA

Disputes of interest, e.g. wage disputes Refer to council or

CCMA for
conciliation (no
time limit).If
conciliation fails,
give notice (48
hours or, if the
State is the
employer, 7 days)
and then strike or
lock-out can
commence
Note: the
conciliating
commissioner must
establish picketing
rules during
conciliation if
parties do not have
an agreement on
picketing

continued
Council or CCMA Council or CCMA Labour Court
Types of dispute conciliation arbitration adjudication

8. Strikes and lock-outs – Chapter 4 of the LRA – continued

Disputes concerning refusal to bargain Refer to council

or CCMA for
conciliation (no
time limit).
If conciliation
fails, obtain
advisory award,
then give notice
(48 hours or 7
days),
whereafter strike
or lock-out can
commence
Note: the
conciliating
commissioner must
establish picketing
rules during
conciliation if
parties do not have
an agreement on
picketing
430 A Practical Guide to Labour Law

Disputes concerning unilateral changes to Refer to council Labour Court may

conditions of employment or CCMA for be approached for
conciliation (no
interdict
time limit).
Referral to require
employer to restore
status quo. If not,
give notice
(48 hours or 7
days) and then
strike or lock-out
can commence
If strike is intended,
conciliating
commissioner must
establish picketing
rules

Disputes about whether a service is an Must be referred to

essential service or whether parties are the essential
engaged in an essential service services committee
(s 73)
continued

Council or CCMA Council or CCMA Labour Court

Types of dispute conciliation arbitration adjudication

8. Strikes and lock-outs – Chapter 4 of the LRA – continued

Disputes of mutual interest in essential Refer to council Refer to council or

and maintenance services or CCMA for CCMA for
conciliation (no arbitration (ss 74 &
time limit) 75). Arbitration to
be conducted and
award to be issued
within 30 days from
date of outcome
certificate
Disputes concerning picketing Refer to CCMA Refer within
(even if there is a 90 days to Labour
council) (s 69(8)) Court for
(no time limit) adjudication (s
69(11))
Unprotected strike or lock-out Labour Court
may be
approached for
an interdict (s
68(1))
9. Disputes about the application or Refer to CCMA or Refer within 90
interpretation of ss 198A–198C council within 6 days to CCMA or
months council (s
(s 198D(3)) 198D(5))
Dispute resolution 431

10. Disputes under the Basic Conditions of Employment Act 75 of 1997

Disputes about payment owed to an Refer to council or Refer to arbitration Those dismissals
employee in terms of the BCEA or CCMA within 30 within 90 days from that have to be
days of date of date of certificate
NMWA may be consolidated with a adjudicated must
dismissal and state
dismissal dispute (s 74(2) of BCEA) that outstanding Arbitrator can, in be referred to
payments are also addition to Court within 90
claimed considering the
days from the date
fairness of the
dismissal, also of the certificate
consider the and the Labour
claim for payment Court can also
adjudicate the
payment claim
Entitlement to severance pay (s 41 of Refer to council Refer within
BCEA) or the CCMA for 90 days to council
conciliation (no or the CCMA for
time limit) arbitration
continued
Council or CCMA Council or CCMA Labour Court
Types of dispute conciliation arbitration adjudication

10. Disputes under the Basic Conditions of Employment Act 75 of 1997 – continued

An employee earning below the BCEA Refer to CCMA A payment claim is

threshold may refer a dispute about (no time limit) subject to
outstanding payment in terms of the compulsory con-
BCEA, NMWA, an employment contract,
sectoral determination or arb
collective agreement (s 73A of the
BCEA)

Employees who
fall within the
registered scope of
a council will have
to lodge a
complaint with the
council and the
compliance route of
the council must be
followed
Written undertakings secured from or Inspector may
compliance orders issued to employers approach the
by DoL inspectors for CCMA to have the
failure to comply with the BCEA, undertaking or
NMWA, UIA, UICA order made an
arbitration award
(ss 68(3) & 73 of
BCEA)
432 A Practical Guide to Labour Law

Employers who have been issued with a Refer to the The Act is not
compliance order by a DoL inspector and CCMA within the specific about the
who wish to object to the order period the process. The CCMA
employer is sets these matter
supposed to comply
with the down for con-arb
order

Disputes about the application or Refer to the CCMA Refer to the CCMA
interpretation of Part C of Chapter 10 of for for
the BCEA concerning employees’ rights conciliation (no arbitration within
and protection of those rights time limit) 90 days
(s 80 of BCEA)

continued

Council or CCMA Council or CCMA Labour Court

Types of dispute conciliation arbitration adjudication

11. Disputes under the Employment Equity Act 55 of 1998

Disputes about unfair discrimination Refer within Sexual harassment Refer within
(excluding dismissals) 6 months to the disputes can be 90 days to the
CCMA for referred by any Labour Court for
conciliation (even employee within 90 adjudication (s
if there is a council) days to either the 10(6) of EEA).
CCMA or the
Labour Court. If the CCMA
arbitrated a
Other
discrimination discrimination
disputes can be dispute, a right of
referred to the appeal lies against
CCMA within that award to the
90 days if the Labour Court.
employee earns
below the BCEA
threshold (or the
dispute can be
referred to the
Labour Court)

Disputes over the application or Refer to the Refer within

interpretation of Part C of Chapter 5 of CCMA for con- 90 days to the
the EEA relating to protection of ciliation (even if Labour Court for
employee rights there is a council) adjudication (s 52
(no time limit) of EEA)

12. Disputes under the Occupational Health and Safety Act 85 of 1993
Dispute resolution 433

Any person aggrieved by any decision of Appeal to be

an inspector may appeal to the Chief lodged with the
Inspector and thereafter to the Labour Court
Labour Court within 60 days
after the Chief
Inspector’s
decision was given
(s 35 of OHASA
& s 158(1)(i) of
LRA)

13. Disputes under the Skills Development Act 97 of 1998

Disputes over the interpretation or Refer to the CCMA Refer within 90

application of a learnership agreement or for days refer to the
the contract of employment of a learner conciliation (no CCMA for
time limit) arbitration (s
19(5) of SDA)
Disputes over the interpretation or Refer to the CCMA Refer within
application of Chapter 4 of the Act for 90 days to the
(dealing with learnerships) conciliation (no CCMA for
time limit) arbitration (s
19(5) of SDA)
Disputes over the termination of a Refer to the CCMA Refer within
learnership agreement or the learner’s for 90 days to the
contract of employment conciliation (no CCMA for
time limit) arbitration (s
19(5) of SDA)
Questions

Question 1
Describe the nature of the following dispute resolution processes:

1.1 conciliation; (5)

1.2 arbitration; (5)
1.3 con-arb; (2)
1.4 inquiry by an arbitrator in terms of section 188A of the LRA; and (10)
Question 2
Considering each of the following set of circumstances, briefly explain whether a council has
jurisdiction to resolve a dispute:
2.1 the parties to the dispute are all parties to the council; (2)
2.2 one of the parties to the dispute is not a party to the council, but falls within the registered scope
of the council; and (3)
2.3 one of the parties to the dispute falls outside the registered scope of the council. (3)

Question 3
List the disputes over which the CCMA has exclusive jurisdiction. (15)

Question 4
434 A Practical Guide to Labour Law

Explain whether an unresolved dispute (after conciliation) can be arbitrated by the CCMA in an
instance where the Act requires adjudication of the dispute by the Labour Court (e.g. an
automatically unfair dismissal). (5)
Hint: See ss 133(2) & 141.

Question 5
A misconduct dismissal dispute exists between employer A and employee B.
5.1 Complete the prescribed referral form to refer the dispute to the CCMA for conciliation. (20)
5.2 Is there any time limit in which the dispute must be referred to conciliation? (2)
5.3 Assume that the matter remains unresolved after conciliation. The employee wishes to refer his
dispute to arbitration. What is the time limit in which he has to lodge his referral with the
CCMA? (2)
5.4 Complete the referral form for arbitration. (20)
5.5 Is the employee entitled to legal representation in this arbitration? Explain with reference to CCMA
rule 25. (5)
5.6 Discuss the nature and effect of the arbitration award issued by the commissioner. (8)
5.7 Assume that the commissioner found in favour of the applicant and determined that the dismissal
was unfair. Discuss the relief that the applicant may be entitled to. (10)

Question 6
Identify the type of dispute in the following scenarios and then explain the dispute resolution
procedure for each dispute. Include in your answer any timeframes that may be applicable:
6.1 The Leather Goods Company employs 100 employees. Of these employees 47 join the Leather and
Textile Workers Union (LTWU). The union then requests management
to deduct union subscription fees from the wages of its members, but management refuses.
The company is a member of the Leather and Hide Employers’ Organisation. Both the
employers’ organisation and LTWU are parties to the Leather Bargaining
Council. (6)
6.2 The Leather Goods Company employs 100 employees. Forty of these employees join the Leather
and Textile Workers Union (LTWU). The union then requests management to negotiate a
recognition agreement and an increase in wages, but management refuses. The company is
a member of the Leather and Hide Employers’ organisation. Both the employers’ organisation
and LTWU are parties to the Leather
Bargaining Council. (6)
6.3 The Leather Goods Company employs ten employees. Three of these employees join the Leather
and Textile Workers Union (LTWU). The company does not want any union involvement.
When the manager overhears a heated argument among some of the employees, the three
workers who have joined the union are dismissed on the grounds of misconduct. In actual
fact, management does not know who have been involved in the argument. The Leather
Bargaining Council has jurisdiction in this sector. (6)
6.4 The Leather Goods Company is experiencing financial difficulties and, as a result, 20 employees
(all of whom belong to LTWU) have to be retrenched. While management and the union are
consulting on different aspects regarding the retrenchment, the union requests access to all
the financial statements of the company in order to determine whether the financial
situation is such that it justifies retrenchments. Management refuses to give any financial
information to LTWU. Both the company (via its employers’ organisation) and LTWU are
parties to the bargaining council. (6)
6.5 The parties to the Leather Bargaining Council have concluded a collective agreement to regulate
conditions of employment in the industry. Unfortunately, when the agreement was
negotiated, the parties had neglected to incorporate a dispute resolution procedure in their
Dispute resolution 435

agreement. Both LTWU and the Leather Goods Company are bound by this agreement. A
dispute arises between LTWU and the company because they cannot agree on how the
provisions relating to sick leave should be interpreted. (6)
6.6 ABC Union and XYZ Company deadlock during negotiations for wage increases. The union
decides to take strike action and, while it is following the prescribed procedures for a
protected strike, management approaches the employees directly and offer a bonus to those
employees who would not participate in the strike. The union is understandably upset and
claims that management is undermining the union. There is no bargaining council in the
sector and area where the company is conducting its business. (6)
6.7 Vuyo is employed by the Department of Agriculture. The post of Head of Department is
advertised internally. Vuyo applies for the position, which will mean a promotion for him. He
has been acting in the position for the past four months, he has been with the Department
for four years and he has the qualifications required for the post. After the interviews an
external candidate is appointed to the post. Vuyo declares a dispute because he believes he
deserves the promotion. (5)
6.8 Two policemen are dismissed after they assaulted a prisoner. They believe their dismissals are
unfair because SAPS as their employer did not follow the prescribed procedure before
dismissing them. (5)
6.9 The PSA is the majority trade union in the Department of Home Affairs. During wage
negotiations the PSA seeks disclosure of the salaries of senior management. The Department
maintains that the information is confidential and refuses to disclose the salaries. The PSA
insists that it is entitled to the information. (6)
6.10 An educator (teacher) at a public school is dismissed for molesting two of the learners. He
believes his dismissal is unfair. (7)
6.11 All the trade unions involved in the public sector and the State as employer concluded a
collective agreement in the PSCBC to regulate leave across all departments in the public
service. When a police officer applies for special sick leave, as provided for in the collective
agreement, SAPS refuses to grant him such leave. He approaches his union, SAPU, who
advises him that SAPS has either interpreted or applied the collective agreement incorrectly
because, in terms of the agreement, he is entitled to leave. (6)
6.12 The majority of the employees at Super-Save Supermarket are confronted with new
employment contracts in terms of which their conditions of employment will change. They
are required inter alia to work longer hours at no additional pay. They refuse to accept the
amended employment conditions with the result that the supermarket implements the new
conditions without their agreement. There is no bargaining council. (5)
6.13 Employee X is on a six-month probationary period with ABC Bank. During his fourth month of
employment the bank dismisses him because his performance does not meet the required
standards. There is no bargaining council. (5)
6.14 Mohammed is employed by a small clothing shop as a general labourer. He works 40 hours per
week at a rate of R17-50 per hour. He hears from a friend that there is in fact a national
minimum wage of R20 and speaks to his manager about it.
(a) The manager refuses to increase his salary to R20 per hour. Mohammed
believes he is being underpaid and wishes to refer a dispute to claim the money
he believes is owed to him. (5)
Hint: See s 73A of the BCEA.
(b) When Mohammed speaks to the manager about increasing his hourly rate, the
manager agrees but tells Mohammed that his annual Christmas bonus will in
future be paid, not as a once-off payment just before Christmas, but will be used
to make up the difference between his current R17-50 and the prescribed R20
per hour, i.e. the bonus will effectively fall away and will be used to pay the
increase. (5)
436 A Practical Guide to Labour Law

Hint: See s 4(8) of the NMWA.

6.15 Mr Zee is a labour inspector in the employ of the Department of Labour. He investigates a
complaint that was lodged by two employees working at The Pizza Palace and discovers that
the complaint was justified because the employer makes them work overtime very often
without paying them the overtime rates. Mr Zee issues a compliance order to the
owner/manager of The Pizza Palace, ordering him to pay back-pay owed to the two
employees in respect of overtime hours, such payment to be made within 14 days from the
date of the order.
(a) The owner/manager does not comply and does not pay the employees their back-
pay. Mr Zee wants the compliance order enforced. What can he do? (4)
(b) The owner/manager wants to object to the compliance order. How does he go
about it? (4)
Appendix 1
Dispute resolution 437
438 A Practical Guide to Labour Law
Dispute resolution 439
440 A Practical Guide to Labour Law
Dispute resolution 441
442 A Practical Guide to Labour Law
Dispute resolution 443

[LRA Form 7.11 replaced by GNR.24 of 22 January 2019.]

Appendix 2
444 A Practical Guide to Labour Law

[LRA Form 7.12 replaced by GNR.24 of 22 January 2019.] (Editorial Note:

Image as per original Government Gazette.)
Appendix 3
Dispute resolution 445
446 A Practical Guide to Labour Law
Dispute resolution 447
 20
OTHER RELEVANT LEGISLATION

20.1 Introduction

Apart from the Acts covered thus far in this book, which are of a general nature and applicable to
the majority of employers and employees, there are other, less well-known Acts that also regulate
the employment relationship or aspects thereof in specific sectors, such as the Public Service Act of
1994 for the public service as a whole, the Employment of Educators Act 76 of 1998 applicable to
educators (teachers) at public schools and the Local Government: Municipal Systems Act 32 of 2000
for municipal employees.
It is not only labour legislation that influences the employment relationship; other legislation may
have an impact on one or more aspects of the employment relationship and, therefore, deserves
the attention of any labour practitioner. For example, is an employer permitted to intercept personal
e-mails sent to its employee or search an employee’s office and seize personal documents? Can an
employee in the public sector rely on legislation other than labour legislation to challenge the
decisions taken by the State in the employment context? Is an employer entitled to evict an
employee from accommodation provided by the employer once the employee’s services have been
terminated? These and many other questions arise in the employment context and are not always
specifically regulated by labour legislation. An employer should, however, know how to handle these
situations so as to ensure fair and lawful treatment of its employees.
The purpose of this chapter is to make the reader aware of other relevant legislation that has
some bearing on employment. For this reason only a concise overview of the more important
statutes is given. It is beyond the scope of this publication to provide detailed analyses.

20.2 Other labour legislation

20.2.1 Public Service Act

The Public Service Act 103 of 1994 (PSA), as amended, deals primarily with the organisation and
administration of the public service and, therefore, cannot be classified as labour legislation.
However, because it also covers aspects such as conditions of employment, termination of service
and other employment-related issues in the public sector, it deserves attention.
The PSA is applicable to employees whether they are employed within or outside South Africa
and to persons who were employed in the public service or who are to be employed in the public
service (unless the Act specifically states the contrary). An employee is a person appointed, whether
permanently or temporarily, to a post in a fixed establishment (or to a post additional to the fixed
establishment). Certain categories of persons have been expressly excluded from the definition of
“employee” or from the provisions of the Act, such as persons appointed in terms of section 12A of
the Act, members of SAPS, the permanent force of the SANDF, the Department of Correctional
Services, members of the Academy of Intelligence, the Intelligence Services Agency and the Secret
Service and educators employed in terms of the Employment of Educators Act.
439
450 A Practical Guide to Labour Law

The PSA specifically provides for appointments, promotions and transfers, unlike other legislation
such as the Basic Conditions of Employment Act (BCEA) and the Labour Relations Act (LRA) that are
silent on these issues. In making an appointment, due regard must be had to equality and the other
democratic values and principles enshrined in the Constitution. All persons who qualify for an
appointment, transfer or promotion must be considered and the evaluation of these persons must
be based on training, skills, competence, knowledge and the need to redress the imbalances of the
past so as to achieve a public service broadly representative of the South African people, including
representation according to race, gender and disability (s 11).
Specific requirements are laid down for some appointments such as the appointment of a person
to a permanent post on the establishment. Such a person must, for example, be a South African
citizen, be of good character and be a fit and proper person (s 10). Some appointments, such as
those in Division A or B (s 13), must be made on probation. An employee may be transferred from
his or her post to any other post in the same or any other department, irrespective of whether the
new post is in another division, of a lower or higher grade or within or outside the Republic (ss 14 &
15).
Chapter 5 of the PSA provides for the termination of services. An employee may be discharged
on account of misconduct, incapacity, the redundancy of a post or a number of other grounds (s 17).
In most instances the normal retirement age is 65.
An interesting provision is found in section 17(3) of the PSA (previously section 17(5)). An
employee who absents himself from official duties without permission of his head of department,
office or institution for a period exceeding one calendar month shall be deemed to have been
dismissed on account of misconduct with effect from the date immediately succeeding his last day
of attendance at work. If the employee reports for duty at a later stage, the relevant executive
authority may, on good cause shown, approve his reinstatement (in his former or any other post).
The period of absence will in such a case be deemed unpaid vacation leave.
The effect of section 17(3) is that the employee’s services are terminated by operation of law. In
MEC, Public Works, Northern Province v CCMA & Others [2003] 10 BLLR 1027 (LC) the Labour
Court held that “if the deeming provision of the Act applies, there is no dismissal as contemplated
in section 186 of the LRA. The operation of the deeming provision is not dependent on any prior
decision by the employer; if its requirements are met, employment terminates by operation of law”.
A similar provision is found in the Employment of Educators Act. It is still open to the employee,
however, to show that the requirements of the deeming provision have not been met. See also Maidi
v MEC for Department of Education [2003] 8 BLLR 761 (LC); Phenithi v Minister of Education [2006]
9 BLLR 821 (SCA); Mahlangu v Minister of Sport and Recreation [2010] JOL 25011 (LC); PSA obo Van
der Walt v Minister of Public Enterprise [2010] 1 BLLR 78 (LC); Grootboom v National Prosecuting
Authority & Others [2014] 1 BLLR 1 (CC); Gangaram v MEC for the Department of Health, KwaZulu-
Natal & Others [2017] 11 BLLR 1082 (LAC); PSA obo Mohlala v Minister of Home Affairs & Others
[2018] 12 BLLR 1203 (LC).
In conclusion, the PSA deals with issues such as remuneration, work performed outside the public
service, unauthorised remuneration, grievances and political rights of employees.

20.2.2 Employment of Educators Act

The Employment of Educators Act 76 of 1998 (the Educators Act), as amended, provides for the
employment of educators by the State and for their conditions of employment, discipline,
retirement and discharge.
The Educators Act applies to the employment of educators at public schools, departmental offices
and adult basic education centres (ABET). The Act is one of only a few which provides a description
of who the employer is. The Director-General of the Department of Basic Education (DoE) is the
employer of educators in the service of the Department in
Other relevant legislation 451

posts on the educator establishment of the DoE for all purposes of employment. The Head of
Department is the employer of educators in the service of a provincial department in posts on the
educator establishment of that department for all purposes of employment. The Minister of Basic
Education is the employer of all educators for the purposes of determining the salaries and other
conditions of employment of educators. The Minister is the employer for the purposes of creating
posts on the educator establishment of the DoE and the MEC is the employer for such purpose in a
provincial department. A public school may establish posts for educators and employ educators
additional to the establishment, in which case the school is the employer of such an educator.
The Minister determines the salaries and other conditions of employment of educators, subject
to the provisions of the LRA and any collective agreement concluded in the Education Labour
Relations Council (ELRC) (s 4).
Chapter 3 of the Educators Act regulates appointments, promotions and transfers.
Appointments, promotions and transfers to posts at public schools can be made only after the
governing body of the school has made a recommendation to the Head of Department. In
considering applications for appointment, promotion or transfer, the governing body must ensure
that the principles of equity, redress, representativity and democratic values are complied with. The
governing body is further required to adhere to the requirements and procedures for appointment,
promotion and transfer in a collective agreement or determined by the Minister. After the
applications have been considered, the governing body has to submit to the Head of Department a
list of the names of at least three recommended candidates in order of preference. The Head of
Department may accept or reject the recommendation. In the latter instance the Head may appoint
any suitable candidate on a temporary basis or re-advertise the post. If the recommendation is
accepted, the Head may appoint any suitable candidate on the recommended list regardless of that
candidate’s ranking in preference (ss 6–9). An educator may be appointed on probation. If
necessary, the probation period may be extended (ss 7 & 13).
An educator may be discharged on account of misconduct, incapacity or operational
requirements in accordance with the requirements of the LRA (s 11). The normal retirement age is
65, but an educator has the right to retire at 55. An educator may resign by giving 90 days’ notice
in writing. If the name of an educator is struck off the register of educators kept by the South African
Council for Educators, he will be deemed to have resigned (s 15).
The Educators Act contains in section 14 a provision similar to the one in section 17(3) of the PSA
in terms of which an educator’s services are terminated by operation of law. If an educator is absent
from work for more than 14 consecutive days without the permission of the employer, he will be
deemed to have been discharged for misconduct. An educator will be deemed to have been
similarly discharged if he assumes other employment while absent from work without permission,
while suspended from duty or while disciplinary steps are being taken against him.
Chapter 5 of the Educators Act regulates incapacity and misconduct. A Code of Good Practice,
dealing with incapacity and poor work performance, is found in Schedule 1 to the Act. Sections 17
and 18 of the Act provide an extended list of forms of misconduct. Misconduct is dealt with in terms
of the disciplinary code and procedures contained in Schedule 2. In terms of section 17 an educator
must be dismissed if he is found guilty of serious misconduct, including theft, bribery, fraud or an
act of corruption with regard to examinations or promotional reports, sexual assault on a learner or
other employee, having a sexual relationship with a learner of the school where he is employed,
serious assault on a learner, student or other employee, or illegal possession of intoxicating, illegal
or stupefying substances.

20.2.3 Local Government: Municipal Systems Act

The Local Government: Municipal Systems Act 32 of 2000 (the Municipal Systems Act), as amended,
deals primarily with the organisation and administration of municipalities and, therefore, cannot
452 A Practical Guide to Labour Law

be classified as labour legislation. However, because it regulates the appointment, conditions of

employment and related matters of municipal employees it deserves attention.
A municipality must, in accordance with applicable law and subject to any applicable collective
agreement, develop systems and procedures to ensure fair, efficient, effective and transparent
personnel administration. Policies must thus be developed for the recruitment, selection and
appointment of employees, conditions of employment, supervision and management of staff, the
evaluation of performance, promotion, demotion and transfer of staff, disciplinary and grievance
procedures, the investigation of alleged misconduct and dismissal and retrenchment of staff. All
policies must be readily accessible to all employees and all representative unions and must be
explained to illiterate persons (s 67).
A municipal council must appoint a municipal manager. The municipal manager, as head of
administration, is responsible for, inter alia, personnel administration and is consequently required
to approve a staff establishment for the municipality, provide a job description for each post on the
staff establishment and determine the remuneration and other conditions of employment of each
post (other than for so-called s 57 employees) (ss 55 & 66).
A municipal council, after consultation with the municipal manager, also appoints managers who
are directly accountable to the municipal manager. These managers are generally referred to as
“section 57 employees”.
Both the municipal manager and the other managers are appointed in terms of a written
employment contract, which is subject to an annual performance agreement. The municipal
manager and other managers are generally employed for a fixed term. The employment contract
must include details of duties, remuneration, benefits and other terms and conditions of
employment and must provide for the renewal of the contract and cancellation thereof in case of
non-compliance with the contract or the performance agreement.
The performance agreement must include performance objectives and targets, the time frames
within which these objectives and targets must be met, standards, procedures and time frames for
evaluating performance and the consequences of sub-standard performance. The provisions of the
Municipal Finance Management Act conferring responsibilities on the accounting officer of a
municipality, forms part of the municipal manager’s performance agreement. Bonuses based on
performance may be awarded to a municipal manager or the other managers after the end of a
financial year, but only after their performance has been evaluated and that evaluation has been
approved by the municipal council (ss 56 & 57).
All employees other than the section 57 managers are appointed by the municipal manager. All
employees, including the municipal manager and other managers, are subject to a code of conduct
(contained in Schedule 2 to the Act). Copies of the code must be given to every employee and must
be explained to illiterate employees (ss 69 & 70). The code prohibits a staff member inter alia to
use his position or any confidential information for personal gain, disclose confidential information,
unduly influence the municipal council or any person with the view of obtaining an appointment,
promotion, privilege or benefit for him-or herself or for a family member, friend or associate, accept
or solicit a reward or gift or engage in sexual harassment. A staff member is further not allowed to
be in arrears to the municipality for rates and service charges. Any outstanding amount in this
regard may be deducted from the employee’s salary. Any breach of the code constitutes a ground
for dismissal or other disciplinary sanction. Employees are required to report any breach of the code
to a senior.

20.3 Other legislation

Legislation other than labour legislation that has some consequence on employment includes, inter
alia, the Acts outlined below.
Other relevant legislation 453

20.3.1 Extension of Security of Tenure Act

The Extension of Security of Tenure Act 62 of 1997 (ESTA) was promulgated with the express
intention of providing measures to facilitate and protect long-term security of land tenure. The Act
regulates the conditions of residence on land, the circumstances under which the right of a person
to reside on land may be terminated and the eviction of a person whose right of residence has been
terminated.
Understanding ESTA is important since land rights and labour rights become entwined in the
employment contracts of many farm workers. Historically farms workers have been among the most
vulnerable of employees and have often been subject to great hardship and social instability as a
result of unfair evictions. Where a farm worker’s services are terminated his land tenure rights may
be in jeopardy. ESTA seeks to regulate such a situation.
The Act applies to all land other than land in a township, unless the land in the township has
been designated for agriculture. With employment in mind, ESTA applies predominantly to farm
workers who live and work on farms (s 2).
The Act refers to an “occupier” of land. An “occupier” is a person who resides on land which
belongs to another person and who had consent or another right in law to reside on that land on
or after 4 February 1997 (s 1). The definition, however, excludes a person who uses or intends to
use the land mainly for industrial, mining, commercial or commercial farming purposes, unless such
a person works the land himself and does not employ any person other than a family member. A
person who has an income in excess of the prescribed amount (prescribed by the Minister of Land
Affairs) is also excluded from the definition.
Consent or a lawful right to reside on the land is thus the determining factor. Accordingly,
informal settlers who do not have the land owner’s consent do not enjoy the protection of the Act.
An occupier has the right to reside on and use the land and to have access to such services as
were agreed upon with the land owner or person in charge. A person in charge is a person who has
legal authority to give consent to another person’s residing on the land. The rights of an occupier
and of the owner or person in charge need to be balanced. An occupier has the right to security of
tenure, to receive postal or other communication, to family life in accordance with the culture of
that family, to bury a deceased family member who resided on the land at the time of his death in
accordance with the family’s religion or cultural belief and the right of access to water and
educational and health services. A family member of an occupier has the right to bury the occupier
in the land on which he resided in accordance with their religion or cultural belief. An occupier is
also entitled to receive bona fide visitors at reasonable times and for reasonable periods. The owner
or person in charge may impose reasonable conditions applicable to visitors to safeguard life and
property or to prevent undue disruption of work on the land. The occupier is liable for any damage
caused by a visitor (s 6).
An occupier may not intentionally and unlawfully harm, threaten or intimidate any other
person occupying the land. Neither may an occupier cause material damage to the property or
assist unauthorised persons to establish new dwellings on the land (s 6(3)).
The owner or person in charge may have trespassing animals in the care of an occupier
impounded if the occupier has failed to remove the animals after 72 hours’ notice to remove them
has been given. The owner or person in charge may not prejudice an occupier if one of the reasons
for the prejudice is the past, present or anticipated exercise of any legal right (s 7).
Section 8 regulates the termination of the right of residence. Land rights vis-à-vis employment
rights will predominantly be encountered when the services of the employee (farm worker) are
terminated. Section 8 sets out the grounds for termination of the right of residence. Such a right
may be terminated on any lawful ground, provided the termination is just and equitable, having
regard to factors such as the fairness of any agreement or legal provision on which the owner or
person in charge relies, the conduct of the parties giving rise to the termination, the interests of the
parties, including the comparative hardship to the owner or person in charge, the occupier
454 A Practical Guide to Labour Law

concerned and any other occupier if the right of residence is or is not terminated, the existence of
a reasonable expectation that an agreement to reside will be renewed and the fairness of the
procedure followed by the owner or person in charge to terminate the right of residence.
If the right of residence arises solely from an employment contract, such as in the case of many
farm and mining workers, that right may be terminated when the occupier/farm worker resigns or
is dismissed in accordance with the provisions of the LRA. If a farm worker is dismissed and he or
she alleges an unfair dismissal, the dismissal dispute is conciliated by the CCMA and arbitrated by
the CCMA or adjudicated by the Labour Court (depending on the reason for the dismissal). The right
of residence of the employee may not be terminated until such time as the dismissal dispute has
been determined by the CCMA or the Labour Court (s 8(3)).
The right of residence of an occupier who has resided on the land for ten years and who has
reached the age of 60 years may not be terminated, unless that occupier intentionally and
unlawfully harmed other occupiers, damaged the property or allowed unauthorised persons to
erect a dwelling on the land, committed a material breach of contract or a material breach of the
relationship between himself and the owner or the person in charge. The same provisions apply to
an occupier who is an employee or former employee of the owner or person in charge and who, as
a result of ill health, injury or disability, is unable to supply labour to the owner or person in charge
(s 8(4)).
The spouse or dependant of an occupier who is 60 and older and has lived on the land for more
than ten years or of an employee who cannot provide labour because of ill health is allowed to
remain on the land and that right can only be terminated on 12 calendar months’ written notice,
unless the spouse or dependant has committed a material breach (s 8(5)).
An occupier may be evicted only by way of a court order. An eviction order will be granted only
if the right of residence was terminated in compliance with section 8 and the occupier, after due
notice, has not vacated the land. The owner must give an occupier at least two months’ notice of
his intention to apply for eviction. Section 10 deals with the eviction of a person who was an
occupier on 4 February 1997 and section 11 with the eviction of a person who became an occupier
after said date. If the court orders eviction, it will further order the owner or person in charge to
pay just and equitable compensation in respect of structures erected and improvements made by
the occupier and any standing crops planted by him. The court will also order the payment of any
outstanding wages and other payments due to the employee in terms of the BCEA. The court may
order the owner or person in charge to grant the occupier a fair opportunity to demolish and
remove any structures and improvements erected by him and his predecessors and to tend standing
crops to which he is entitled (s 13).
ESTA provides for the mediation and arbitration of any dispute arising from and out of the Act
(ss 21 & 22). Conceivably an occupier who is an employee can have an unfair labour practice dispute
over benefits conciliated and arbitrated by the CCMA if, for example, he is denied access to water
or deprived from health services. It remains to be seen whether the courts will consider these rights
of an occupier as “benefits” as envisaged by section 186(2) of the LRA.
If the occupier is an employee, the labour Acts, such as the BCEA, the NMWA, the LRA and so
forth are applicable. Similarly, collective agreements concluded between registered trade unions
and the owner-employer are applicable and, in the case of farm workers, the sectoral determination
for the farming sector is applicable.

20.3.2 Promotion of Access to Information Act

Section 32 of the Constitution provides that everyone has the right of access to information for the
exercise or protection of his rights. The Promotion of Access to Information Act 2 of 2000 (PAIA), as
amended, was promulgated to give effect to this constitutional right. The right of access to
information held by a public or private body may be limited only to the extent that the limitation is
Other relevant legislation 455

reasonable and justifiable in an open and democratic society based on human dignity, equality and
freedom (s 36 of the Constitution).
The aim of PAIA is to allow access to information in a manner that balances the right to
information with any other rights, including the rights contained in the Bill of Rights. To achieve this,
the Act has established voluntary and mandatory mechanisms and procedures to ensure access to
records of public and private bodies in a swift, inexpensive and uncomplicated manner. Ensuring
such access is a means of promoting transparency, accountability and effective governance of all
public and private bodies (s 9).
PAIA applies to records held by both public and private bodies, regardless of when the records
came into existence (s 3). The Act applies to the exclusion of any provision in other legislation that
prohibits or restricts disclosure of a record of a public or private body and that is materially
inconsistent with an object or a specific provision of this Act (s 5).
The Act does not apply to a record of the Cabinet and its committees, a record relating to the
judicial functions of a court of law or a special tribunal, a judicial officer of such a court or special
tribunal, a record of an individual member of Parliament or of a provincial legislature in that
capacity or a document relating to a decision regarding the nomination, selection or appointment
of a judicial officer (s 12).
The Act further does not apply to a record of a public or private body if that record is requested
for the purpose of criminal or civil proceedings, if it is requested after the commencement of such
proceedings and the production of or access to that record for criminal and civil proceedings is
provided for in any other law. Any record obtained in contravention of these provisions is not
admissible as evidence in the criminal or civil proceedings, unless the exclusion of such record will,
in the opinion of the court, be detrimental to the interests of justice (s 7).
A “public body” is any department of State or administration in the national or provincial sphere
of government or any municipality in the local sphere of government or any other functionary or
institution when exercising a power or performing a duty in terms of the Constitution or a provincial
constitution or exercising a public power or performing a public function in terms of any legislation
(s 1).
A “private body” is a natural person who carries or has carried on any trade, business or
profession, but only in such capacity, a partnership which carries or has carried on any trade,
business or profession or any former or existing juristic person (excluding a public body) (s 1).
The Human Rights Committee has published, in terms of section 10 of the Act, a guide on how
to use the Act. The guide includes information on the postal and street addresses, the phone and
fax numbers and e-mail address of the information officer (and deputy) of every public body, the
manner in which information may be requested, assistance available from the information officers
and the Human Rights Committee and the manuals to be kept by public and private bodies.
A “requester”, that is a person who requests access to a record or a person acting on his or her
behalf, must be given access to a record if he or she has complied with the procedural requirements
of the Act and has included in the request all his or her personal information.
A request for access is made in the prescribed form to the information officer of a public body or
to a private body at the address, fax number or e-mail address of that body. The requester must
provide sufficient particulars so that the records can be identified. The requester must also state
whether the record is preferred in a particular language and specify a postal address or fax number
to which it must be dispatched. If the request is made on behalf of a person, proof thereof must be
submitted. A person who is unable, because of illiteracy or a disability, to make a written request,
may make the request verbally. The information officer must then reduce the oral request to writing
in the prescribed form and provide a copy thereof to the requester (ss 18 & 53).
A requester has the right to access regardless of the reason for making such a request if
information is requested from a public body (s 11(3)). In the case of a private body the requester
456 A Practical Guide to Labour Law

has to identify the right he or she is seeking to exercise or protect and provide an explanation of
why the requested record is required for the exercise or protection of that right (s 53).
Access to a record can be refused only on grounds set out in Chapter 4 of the Act (ss 11 & 33).
Access will, inter alia, be refused if disclosure involves disclosure of personal information,
information held by SARS concerning income tax of a third party, trade secrets, financial,
commercial, scientific or technical information of a third party, if disclosure will constitute a breach
of a duty of confidence owed to a third party in terms of an agreement and if disclosure could
reasonably be expected to endanger the life or physical safety of an individual (s 38).
An information officer of a public body or the head of a private body must, when considering a
request for access to a record, take all reasonable steps to inform a third party to whom the record
relates of the request (s 47). Such a third party may, within 21 days of receiving the notice, consent
to disclosure or submit oral or written representations as to why the request should be refused (ss
48 & 71).
An information officer of a public body may refuse a request for access to a record if the request
is manifestly frivolous or vexatious or if the work involved in processing the request will substantially
and unreasonably divert the resources of the public body (s 45).
Every public and private body is required to compile – and make available as prescribed – a
manual containing, inter alia, a description of its structure and functions, its postal and street
addresses, its telephone and fax numbers and e-mail address of its information officer and deputy
information officer(s), sufficient detail to facilitate a request for access to a record, a description of
the subjects on which the body holds records and the categories of records held on each subject
and the categories of records which are available without having to request access (s 14).
An information officer of a public body must, and the head of a private body may, at least once
a year submit to the Minister responsible for the administration of justice a description of the
categories of records that are automatically available for inspection or for purchase without a
person’s having to request access in terms of the Act (ss 15 & 52). These reports are published in
the Government Gazette.
If a document no longer exists or if an information officer of a public body or the head of a private
body has taken all reasonable steps to find the requested record and cannot find it, he or she must
notify the requester accordingly by way of affidavit or affirmation (ss 23 & 55).
A requester who has been notified that the request for access has been granted must be given
access immediately or, if an access fee is payable, upon payment of that fee (ss 29 & 54). Access to
health records is restricted (ss 30 & 61).
Part 4 of the Act provides for an appeal procedure against the decision of an information officer
of a public body. A requester or third party may lodge an internal appeal with the relevant authority.
A court may not be approached for appropriate relief unless the internal appeal procedure has been
exhausted (ss 74 & 78).

20.3.3 Promotion of Administrative Justice Act

The Promotion of Administrative Justice Act 3 of 2000 (PAJA), as amended, was enacted in
consequence of section 33(1) of the Constitution, which provides inter alia that everyone has the
right to administrative action that is lawful, reasonable and procedurally fair. Section 33(3) of the
Constitution requires that national legislation be enacted to give effect to this constitutional right
and that such legislation provide for the review of administrative actions by a court or by an
independent and impartial tribunal.
The centrepiece of PAJA is thus an “administrative action”. The Act seeks to ensure that
administrative actions are lawful, reasonable and fair. If an action is not fair, lawful or reasonable it
can be challenged.
Section 1 of the Act defines an “administrative action” as any
decision taken, or any failure to take decision, by –
Other relevant legislation 457

(a) an organ of state, when –

(i) exercising a power in terms of the Constitution or a provincial constitution; or
(ii) exercising a public power or performing a public function in terms of any legislation; or
(b) a natural or juristic person, other than an organ of state, when exercising a public power or
performing a public function in terms of an empowering provision, which adversely affects the rights
of any person and which has a direct, external legal effect.
The Act further requires, in section 3, that any administrative action which materially and adversely
affects the rights or legitimate expectations of any person must be procedurally fair. If not, any
person may institute proceedings in a court or a tribunal for the judicial review of such an action (s
6).
There seems to be a degree of overlap between PAJA and labour rights. Every time powers are
exercised or functions are performed by an ‘organ of state’ in respect of conditions of employment
and related matters, the question arises whether labour or administrative laws are applicable.
According to the Labour Court in SAPU & Another v National Commissioner, SAPS & Another
(2005) 26 ILJ 2403 (LC), “[t]he powers and functions concerned, derive from employment law and
are circumscribed by the constitutional rights to fair labour practices and to engage in collective
bargaining. One is instinctively drawn to the conclusion that the concept of administrative action is
not intended to embrace acts properly regulated by private law”. See also Hlope & Others v Minister
of Safety & Security & Others (2006) 27 ILJ 1003 (LC).
The question is whether the conduct of an organ of state or a person exercising a public power
or performing a public function can be regarded as an “administrative action” as envisaged in PAJA
or whether it constitutes conduct of an employer in accordance with labour legislation.
This question has received attention in a number of contradictory judgments, the majority of
those judgments seeming to favour a separation of labour law and administrative law and finding
that any decision regarding employment should be dealt with under the LRA (and other labour
legislation) and would not be justiciable under PAJA.
In PSA obo Haschke v MEC for Agriculture & Others (2004) 25 ILJ 1750 (LC) the Labour Court
held that “if the right to just administrative action competes or is in conflict with the right to fair
labour practice then the LRA and the BCEA, read with the constitutional right to fair labour practices,
must prevail over the right to administrative justice”.
In Greyvenstein v Kommissaris van die SA Inkomste Diens (2005) 26 ILJ 1395 (T) the Court
considered the submission of the applicant that the decision to institute disciplinary proceedings
against him was an administrative act as envisaged in PAJA. Having had regard to relevant case law,
the Court concluded that the act of instituting disciplinary proceedings against an employee could
not be said to constitute the exercise of a public power or the performance of a public function and,
therefore, did not constitute an administrative action. The Court based its finding on the fact that
section 18 of the South African Revenue Service Act 34 of 1997 clearly described the terms and
conditions of employment between SARS and its employees. The Court held that “the labour
relationship between the respondent and its employees is not regulated by any other legislation,
save the protection afforded by the constitutional era labour legislation which falls outside the
scope of ‘administrative action’” (p 1402).
In Western Cape Workers Association v Minister of Labour (2005) 26 ILJ 2221 (LC) the Registrar
of Labour Relations had deregistered the trade union as a result of its failure to comply with its
statutory trade union obligations. The union appealed against the decision of the Registrar and
argued that the appeal should be dealt with under PAJA. The Court dismissed the application and
distinguished between PAJA and the LRA as follows (at 2223):
The LRA is national legislation designed for labour disputes, including administrative law type disputes
arising in labour law. PAJA is also national legislation. However, I have said elsewhere that PAJA does not
apply to labour disputes. Section 210 of the LRA makes it clear that if there is any conflict relating to
matters dealt with in the LRA between the LRA and the provisions of any other law except the
458 A Practical Guide to Labour Law

Constitution, the provisions of the LRA must prevail. The procedures, timelimits and the requirements of
PAJA differ substantially from the LRA. The LRA, for instance, provides a right of appeal to this court against
a decision of the registrar, which is a far wider and more generous right than the right of review, which is
a narrower and more limited right that PAJA offers. The time-limits in PAJA are not the same as those
contemplated in the LRA, which are tailor-made for labour disputes. In all the circumstances, PAJA does
not apply to this dispute.
The High Court in Dunn v Minister of Defence & Others (2005) 26 ILJ 2115 (T) held the opposite
view.
In Hlope & Others v Minister of Safety & Security & Others (2006) 27 ILJ 1003 (LC) the Labour
Court held that the decision of the Area Commissioner of Police to transfer the applicants, all
members of SAPS and engaged as plain-clothes detectives, did not involve the exercise of a public
power or the performance of a public function with a direct external effect. The decision to transfer
them, therefore, did not amount to an administrative action for the purposes of section 33 of the
Constitution or as envisaged in PAJA. The Court further observed that collective bargaining and the
adjudication of rights disputes in terms of the LRA are the appropriate channels for balancing
employer and employee interests in the public sector rather than the judicial review of
administrative actions (p 1011). See also Louw v SA Rail Commuter Corporation Ltd & Another
(2005) 26 ILJ 1960 (W).
In Rustenburg Platinum Mines Ltd (Rustenburg Section) v CCMA & Others [2006] 11 BLLR 1
(SCA) an employee of the appellant, a security guard, was dismissed. His alleged unfair dismissal
dispute was arbitrated by the CCMA and the arbitration award ordered his reinstatement. A review
of the arbitration award by the Labour Court and a subsequent appeal to the Labour Appeal Court
against the decision of the Labour Court followed. The SCA finally had occasion to consider the
matter.
In its judgment the SCA dealt with some important issues, such as the distinction between an
appeal and a review, the question as to whether a CCMA arbitration award constitutes and
administrative action, as defined, and the applicability of the LRA and/or PAJA. The SCA held that
CCMA arbitrations were administrative actions, that PAJA applied and that awards were reviewable
under PAJA.
The Constitutional Court disagreed with the SCA. In Sidumo & Another v Rustenburg Platinum
Mines Ltd & Others [2007] 12 BLLR 1097 (CC) the Constitutional Court confirmed that a decision or
award by a CCMA commissioner constituted an administrative action, but held that it was not
reviewable under PAJA. The Constitutional Court supported the notion of separating labour laws
from administrative laws and the extensive debate about PAJA versus the LRA has now finally been
settled. PAJA is not applicable to decisions in the labour context.

20.3.4 Intercepting and Monitoring Prohibition Act

The Intercepting and Monitoring Prohibition Act 127 of 1992 protects the interception and
monitoring of communication. No person is allowed to intercept or monitor communication
without the knowledge or permission of the other person concerned. This by implication means
that employers will have to develop and implement clear policies on electronic communication in
the workplace. Employees will have to be made aware of such policies and possible disciplinary
action in the event of breach of a policy. An employer instituting disciplinary action against an
employee in this context must have due regard to Schedule 8 of the LRA, the Code of Good Practice:
Dismissal.
20.3.5 Electronic Communications and Transactions Act
In terms of section 86(1) of the Electronic Communications and Transactions Act 25 of 2002 a person
who intentionally accesses or intercepts any data without authority or permission to do so is guilty
of an offence. “Data” is defined as electronic representations of information in any form.
Other relevant legislation 459

The Act makes specific provision for the protection of personal information obtained through
electronic transactions. Translated to the employment situation this means that an employer – or
data controller in the parlance of the Act – needs the written permission of the employee (or data
subject) for the collection, collation, processing or disclosure of his or her personal information (s
51).
In terms of section 51 of the Act the principles for the collection of personal information with
the necessary consent are as follows:
• the employer may not collect information of the employee which is not necessary for the
purpose for which it is required;
• the employer must disclose in writing to the employee the purpose for collecting the personal
information;
• the employer may not use the personal information for a purpose other than for which it was
collected without the written permission of the employee;
• the employer must keep record of the information he collected while it is used and for at least
one year thereafter;
• the employer may not disclose the information to a third party, unless so permitted by the
employee in writing;
• the employer must keep a record of any third party to whom the personal information was
disclosed; and
• the employer must destroy all personal information which has become obsolete.
The ECT Act is further of relevance in the employment context because the LRA allows for the
service and filing of documents by e-mail. The CCMA rules and the rules of many of the bargaining
councils specifically state that notices can be sent by e-mail and that parties can serve and file
documents by e-mail. In these instances the reception theory applies (s 23), meaning that once the
e-mail is in the inbox of the person it was sent to the document has been served or filed, even
before that person has opened and read the e-mail.

20.3.6 Regulation of Interception of Communications and provision of

Communication-related Information Act
The Regulation of Interception of Communications and Provision of Communicationrelated
Information Act 70 of 2002 (RICA), as amended, regulates inter alia the interception and monitoring
of private communications in the workplace.
In terms of section 1 of the Act
“intercept” means the aural or other acquisition of the contents of any communication through the use
of any means, including an interception device, so as to make some or all of the contents of a
communication available to a person other than the sender or recipient or intended recipient of that
communication, and includes the –
(a) monitoring of any such communication by means of a monitoring device;
(b) viewing, examination or inspection of the contents of any indirect communication; and
(c) diversion of any indirect communication from its intended destination to any other destination,
and “interception” has a corresponding meaning.
Section 2 of the Act contains a general prohibition of interception of information, but a number of
exceptions have been created of which sections 4, 5 and 6 are relevant to the employment
relationship.
Section 4 allows a party to a communication, such as a person who makes or receives a telephone
call or sends or receives an e-mail message, to intercept and use the communication.
460 A Practical Guide to Labour Law

Section 5 provides for the interception of any communication under any circumstances, provided
that the person whose communication is being intercepted has consented in writing prior to such
interception.
Section 6 refers to the interception of communication in connection with the carrying on of a
business. This is an important exception to the general prohibition on interception of information
and has a significant impact on the employment relationship. The following requirements apply:
• the communication must relate to a business or take place in the course of the carrying on of a
business;
• the system controller (i.e. a natural person or, in the case of a partnership, any partner or person
duly authorised by the partnership and, in the case of a juristic person, the CEO or any person
duly authorised) must conduct the interception; alternatively, it must be done with his consent;
• the interception must be for a defined purpose – for example, to establish the existence of facts
or to detect the unauthorised use of a telecommunications system;
• the telecommunications system being used for the communication must be provided for use in
connection with the business, for example, an employee’s computer; and
• the interception can be done only with the consent (not necessarily in writing) of the per-son
who uses the relevant system or if all reasonable efforts have been made to alert the user to the
possibility of interception.
From the above it follows that an employer will have to obtain the consent of an employee before
private communication addressed to the employee can be intercepted. It is, therefore, advisable
that an employer develop a policy on the interception and monitoring of information addressed to
employees and that the policy forms part of the employee’s contract of employment. In this way
the employer can obtain the consent of the employee for interception and counter complaints of
unlawful interception or transgression of the Act.

20.3.7 Protection of Personal Information Act

More and more information is being kept in electronic format by various persons and institutions,
from employers to banks, retailers, cellular operators, credit bureaux, direct marketing
organisations, the medical profession and so forth. This information can be accessed from many
different locations and transferred easily and quickly by way of the Internet. Information can be
mixed in any desirable way to create highly sensitive and private personal electronic profiles, which
can be made available to anyone who is able to pay. These profiles may also be used, without an
individual’s consent and, therefore, without the accuracy thereof being verified to make important
decisions regarding individuals, such as access to credit, suitability for employment and suitability
for life insurance cover. The question is no longer how information can be obtained, but whether it
should be obtained at all and, if so, how it should be used and protected.
According to the SA Law Reform Commission “[T]he growth of centralised government and the
rise of massive credit and insurance industries that manage vast computerised databases have
turned the modest records of an insular society into a bazaar of data available to nearly anyone at
a price”. The Internet and the advanced technology of the modern times have simply made
information too readily accessible. It was, for example, reported in 2000 that First National Bank
had made as many as 170 000 banking account details per month available to any person who called
in and some 1,5 million credit records, obtained from Vodac, Teljoy, Nedcor and Standard Bank,
were accidentally made available on a website.
Every individual has the right to privacy. This right is essentially a right to live one’s own life with
a minimum of interference and includes the right to protection of personal and confidential
information. In terms of our common law an individual’s dignitas is protected and breach thereof is
actionable under the actio iniuriarum. Breach includes inter alia entry into a private home, reading
of private documents, disclosure of private information, breach of confidentiality, publishing a
photograph without the person’s consent and a medical practitioner divulging medical information.
Other relevant legislation 461

Some legislation, such as the Employment Equity Act, the Promotion of Access to Information
Act, the Electronic Communications and Transactions Act, the National Credit Act, the Basic
Conditions of Employment Act and the Labour Relations Act, provide limited but inadequate
protection. Hence the need for a statute that focuses on the protection of personal information.
In developing such a statute, particularly for the workplace, guidance was sought in the ILO’s
Code of Practice on the Protection of Workers’ Personal Data. The Code deals with the collection,
storage, security and communication of employees’ personal data and sets out broad guidelines in
this regard. Personal data can be obtained from the individual employee only and only for reasons
directly relevant to his or her employment. The duty is on the employer to justify the collection of
the data. Employees and their representatives should be kept informed of any data collection
process, the rules that govern the process and their rights. The processing of personal data should
not have the effect of unfairly discriminating against anyone and no personal data can be
communicated to third parties without the employee’s explicit consent. Waiver of these rights is
not permitted.
Having regard to these guidelines, the Protection of Personal Information Act 4 of 2013 (POPI
Act) was assented to on 19 November 2013. The POPI Act awaits full commencement, but a few of
its sections took effect on 11 April 2014, i.e. sections 1, 39–54, 112 and 113. These sections deal
with definitions, the establishment and functions of an Information Regulator and regulations. The
Regulator has been established, but is not fully functional yet. Regulations have been issued (GNR
1383, 14 December 2018).
The POPI Act is aimed at promoting the protection of personal information by public and private
bodies, in harmony with international standards and in a manner that gives effect to the right of
privacy.
The POPI Act, once in full operation, will apply to the automated and manual processing of
personal information by a “responsible party”. A “responsible party” is a public or private body or
any other person which alone or in conjunction with others determines the purpose of and means
for processing personal information” (s 1). In short, the POPI Act is applicable to all organisations
that process personal information.
The Act accords a number of rights to persons whose information is being collected, such as
collecting information directly from and with the consent of the person concerned and collecting
information for a specific, explicitly defined and legitimate purpose. Information must not be kept
for longer than is necessary to achieve the purpose for which it was collected and specified personal
information about a person is prohibited.
“Personal information” includes a variety of information such as information relating to race,
gender, marital status, pregnancy, ethnic or social origin, health, disability, religion and language;
information relating to education or employment history; financial, criminal or medical history;
names and identity numbers, e-mail and physical addresses and telephone numbers; personal
views; and private correspondence.
Generally, personal information may not be processed without the consent of the data subject.
The processing of personal information may be justified for exercising a right or obligation in law,
for research purposes or to comply with international Public Law (ss 26–28).
The following are the conditions for the lawful processing of personal information:
• accountability: the responsible party must ensure that all the conditions for lawful processing
are complied with (s 8);
• processing limitation: personal information may only be processed if collected from the data
subject personally, with his consent and in a manner that does not infringe his privacy (ss 9–12);
• purpose specification: the information must be collected for a specific, explicitly defined and
lawful purpose and should not be retained for any longer than is necessary for achieving that
purpose (ss 13 & 14);
462 A Practical Guide to Labour Law

• further processing limitation: the processing of personal information must be compatible with
the purpose for which it was initially collected, taking into account the nature of the information
contractual rights and obligations of the parties (s 15);
• information quality: the responsible party must take reasonably practicable steps to ensure the
information is complete, accurate and not misleading (s 16);
• openness: the responsible party must maintain the information under its responsibility and must
ensure that the data subject is aware of the information that is being collected and the purpose
therefor, the name and address of the responsible party, the consequences of any failure to
provide information and any law requiring the collection of the information (ss 17 & 18);
• security safeguards: the responsible party must secure the integrity and confidentiality of
personal information by taking the necessary measures to prevent any loss, damage, destruction
or unlawful access to the information. The Regulator and data subject must be notified of any
unlawful access to the information (ss 19–22);
• data subject participation: a data subject has the right to ask a responsible party whether it is
holding any personal information and, if so, to provide a record thereof together with the identity
of third parties who have access to the information. A data subject may also request the
responsible party to correct or delete any inaccurate or out-dated information (ss 23–25).
In some instances a responsible party needs the authorisation of the Regulator to process
information, such as information relating to criminal conduct, credit reporting and reporting
information about children to a foreign country (s 57).
The Regulator’s functions include the promotion of an understanding of the lawful processing of
personal information, the monitoring and enforcement of compliance with legal requirements,
investigating complaints and developing codes of good practice (s 40). Private and public bodies
must appoint information officers, who must be registered with the Regulator. The information
officers must ensure compliance with lawful processing of information and assist the Regulator in
investigations (s 55).

20.3.8 Broad Based Black Economic Empowerment Act

The skewed distribution of wealth along racial lines lies at the heart of the drive for economic
transformation in South Africa. For more than a century the South African economy was steered by
race-preferring policies that had the effect of severely limiting the access of black people to
economic resources. In the democratic era it has become one of the greatest challenges of
government to find ways to promote the entry of black people into mainstream economic activity
without damaging the economy itself. Black economic empowerment (BEE) is one of the more
recent efforts in this drive. BEE is not just a “change of ownership of enterprises” in favour of a
different group of persons, but is an effort to eradicate the effects of economic oppression and
unlawful expropriation through diverse socio-economic channels in order to create opportunities
in the sharing of South Africa’s wealth. The aim is not only to distribute wealth, but to expand the
country’s economic base and to reduce poverty in general through a broad-based approach.
The Broad Based Black Economic Empowerment Act 53 of 2003 (the BEE Act) was promulgated
to achieve these goals. Section 1 of the Act defines BEE as follows:
broad-based black economic empowerment means the viable economic empowerment of all black people,
in particular women, workers, youth, people with disabilities and people living in rural areas through
diverse but integrated socio-economic strategies that include, but are not limited to –
(a) increasing the number of black people that manage, own and control enterprises and productive
assets;
(b) facilitating ownership and management of enterprises and productive assets by communities,
workers, co-operatives and other collective enterprises;
(c) human resources and skills development;
(d) achieving equitable representation in all occupational categories and levels in the workforce;
Other relevant legislation 463

(e) preferential procurement from enterprises that are owned or managed by black people; and (f)
investment in enterprises that are owned or managed by black people.
The Act provides for the integration of persons into the economy by way of ownership, corporate
advancement and involvement at small, medium and micro-enterprises level. Some significant
amendments to the Act took effect on 2 October 2014 when the BroadBased Black Economic
Empowerment Amendment Act 46 of 2013 was enacted.
The BEE Amendment Act defines a “fronting practice” as a transaction, arrangement or other act
or conduct that directly or indirectly undermines or frustrates the achievement of the objectives of
the Act or the implementation of any of its provisions. Any person who knowingly engages in such
a practice commits an offence.
The Act also makes provision for the establishment of the BEE Commission with inter alia the
following functions:
(a) to oversee, supervise and promote adherence with the Act in the interest of the public;
(b) to strengthen and foster collaboration between the public and private sector in order to
promote and safeguard the objectives of broad-based black economic empowerment;
(c) to receive and investigate complaints concerning broad-based black economic empowerment;
(d) to promote advocacy, access to opportunities and educational programmes and initiatives of
broad-based black economic empowerment;
(e) to keep a register of BEE transactions;
(f) to receive and analyse reports concerning BEE compliance from organs of state, public entities
and private sector enterprises; and
(g) to promote good governance and accountability by creating an effective and efficient
environment for the promotion and implementation of BEE.
The Amendment Act also provides for specialist committees appointed by the Minister to advise
the Commission on the management of its resources or the performance of its functions.
The BEE Act thus addresses the economic empowerment of black people in seven areas, which
can be referred to as a “generic scorecard”. The scorecard is the tool to be used in determining the
BEE status or progress of a business. It is also a measure of standardisation and allows government
and other procurement agencies to apply qualification criteria for the granting of licences and
concessions, to determine the sale of state-owned enterprises and to develop criteria for entering
into partnerships in the private sector.
The seven elements in the scorecard are ownership, skills development, preferential
procurement, management, employment equity, enterprise development and social investment.
The first three elements each carry a 20% weight; the remaining elements each carry a 10% weight.
Codes of Good Practice have been published on each of the seven elements. Each code has its own
scorecard to test the BEE status of a business in a particular area. Once the scorecards have been
completed, they have to be submitted to an accredited verification agency for validation. If
validated, a verification certificate is issued and remains valid for a year after date of issue.
A so-called “softer” scorecard is applicable to small business, referred to as “qualifying small
enterprises”. They can select five of the seven elements of the scorecard and each element carries
a weight of 20%. A small business with an annual turnover below a prescribed amount does not
have to comply with any of the elements.
Two of the elements contained in the scorecard are of importance to employment, namely skills
development and employment equity. Employment equity, of course, touches on the element of
management.
“Management” is concerned with the number of black men or women in executive managerial
positions or serving on executive board committees. It further refers to effective control of
economic resources and activities. In this context skills development and employment equity
overlap with BEE, conceivably at managerial level only. Practically, “management control” refers to
464 A Practical Guide to Labour Law

representation of black people at executive board level, ownership by blacks, the involvement of
black people in the daily operations and senior managerial decision-making and the representation
of black people in financial and management positions.
While BEE, as a tool for black empowerment in business, is separate and distinct from the
Employment Equity Act, the two overlap in the sense that the EEA requires equitable representation
of designated groups at all occupational levels in the workplace, thereby ensuring that black people
must be considered for the higher echelons in an enterprise. This potentially translates into the
empowerment of members of designated groups and opens the door to senior managerial levels
and ownership.
Skills development focuses on the development of employees, improving their skills. In many
instances this can be done in terms of the Skills Development Act. Training and development
contribute to the growth of the economy because skilled employees are more productive and
deliver better results. The proposed Code of Good Practice on the recognition of skills development
provides specific indicators to guide companies in the way their skills development strategies should
contribute to black economic empowerment. This includes expenditure on continuous professional
development and job specific training of employees as a percentage of the payroll. The proposed
scorecard in the Code sets compliance targets as follows: skills development of black employees:
3% of the leviable amount; skills development on critical or core skills for black employees: 2,6% of
the leviable amount; skills development of black women on critical or core skills: 1.4% of the leviable
amount; skills development of black employees with disabilities: 0,3% of the leviable amount;
number of black employees on SETA accredited learnerships: 5% of the total of employees; black
women on SETA accredited learnerships: 2,5%; and unemployed black people and people from rural
areas on learnerships: 1%.
BEE is not based on the acquisition of ownership or wealth only, but also on the creation of
opportunities in order to widen the economic sphere. Having regard to the purpose of BEE it is
evident that it functions on a different level of the economy as do the labour laws that regulate the
relationship between employer and employee. Although they function on different levels of the
economy, BEE and labour legislation, in particular the Employment Equity Act, are clearly related as
they both facilitate entrance of designated groups into the economic mainstream, creating
opportunities for ownership and sharing in wealth. The Amendment Act provides that from 2
October 2015 the BEE Act shall prevail if the conflict specifically relates to a matter dealt with in the
Act.
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455
 TABLE OF CASES

Pag
eA
Adcock Ingram Critical Care v CCMA & Others [2001] 9 BLLR 979 (LAC) ............................... 349
Administrator, Transvaal & Others v Traub & Others (1989) 10 ILJ 823 (A) ...................... 384, 398
Alpha Plant and Services (Pty) Ltd v Simmond & Others [2001] 3 BLLR 261 (LAC) ................ 361
Amalgamated Beverage Industries (Pty) Ltd v Jonker (1993) 14 ILJ 1232 (LAC) ....................... 363
AMCU & Others v Bafokeng Rasimone Management Services (Pty) Ltd & Others
(2017) 38 ILJ 931 (LC) ................................................................................................................. 355
AMCU & Others v Piet Wes Civils CC & Another (2017) 38 ILJ 1128 (LC) ................................. 355 AMCU
& Others v Tanker Services (Pty) Ltd (2018) 39 ILJ 2265 (LC) ........................................ 355
AMCU v CCMA & Others [2018] 7 BLLR 656 (LC) ...................................................................... 261
AMCU v Hitricon HEMC (Pty) Ltd [2014] 12 BALR 1223 (CCMA) ............................................ 263
Apollo Tyres South Africa (Pty) Ltd v CCMA & Others [2013] 5 BLLR 434 (LAC) ............ 383, 388
April and Gen-Tech Engineering Services CC (2005) 26 ILJ 407 (BCA) ..................................... 390
Arb Electrical Wholesalers (Pty) Ltd v Hibbert [2015] 11 BLLR 1081 (LAC) ............................. 369
Armaments Corporation of South Africa (SOC) Ltd v CCMA & Others
[2016] 5 BLLR 461 (LC) .............................................................................................................. 351
Arries v Afric Addressing (Pty) Ltd t/a Afric Mail Advertising [1998] 5 BALR 525 (CCMA) ..... 386
Asara Wine Estate & Hotel (Pty) Ltd v Van Rooyen & Others (2012) 33 ILJ 363 (LC) ............... 363
Assign Services (Pty) Ltd v CCMA & Others [2015] 11 BLLR 1160 (LC) ............................ 235, 239 Assign
Services (Pty) Ltd v CCMA & Others [2018] 9 BLLR 837 (CC) ........................................ 235 Assign Services
(Pty) Ltd v Krost Shelving & Racking (Pty) Ltd & Another
[2015] 9 BALR 940 (CCMA) ....................................................................................................... 239
Assign Services (Pty) Ltd v Krost Shelving & Racking (Pty) Ltd & Others
[2018] 9 BLLR 837 (CC) ............................................................................................................. 239
Assign Services (Pty) Ltd v NUMSA & Others [2018] 9 BLLR 837 (CC) ....................................... 76
Assistent-ongevallekommissaris v Ndevu 1980 (1) SA 143 (E) ...................................... 173, 174, 175
Astral Operations Ltd v Parry (2008) 29 ILJ 2668 (LAC) .............................................................. 239
Atkins v Datacentrix (Pty) & Others [2010] 4 BLLR 351 (LC) ..................................................... 346
Aviation Union of SA v SA Airways (Pty) Ltd & Others (2011) 32 ILJ 2681 (CC) ........................ 361
Avril Elizabeth Home for the Mentally Handicapped v CCMA & Others
[2006] 9 BLLR 833 (LC) ...................................................................................................... 341, 349
AWAWU obo Lotter v Safcol [2002] 5 BALR 470 (CCMA) ................................................... 383, 387

B
Bakker v CCMA & Others [2018] 6 BLLR 597 (LC) ...................................................................... 344 Basson
v Cecil Nurse (Pty) Ltd [2001] 3 BLLR 321 (LC) .............................................................. 361
Bedderson v Sparrow Schools Education Trust (2010) 31 ILJ 1325 (LC) .................................... 369
Biggs v Rand Water & Others (2003) 24 ILJ 1957 (LC) ......................................................... 343, 346
Billion Group (Pty) Ltd v Ntshangase & Others (2018) 39 ILJ 2516 (LC) ................................... 363
Billiton Aluminium SA Ltd v NUMSA & Others [2002] 1 BLLR 38 (LC) .................................... 305
BMW (South Africa) (Pty) Ltd v Van der Walt [2000] 2 BLLR 121 (LAC) .......................... 349–350 BMW
(South Africa) v NUMSA & Others [2019] 2 BLLR 107 (LAC) .......................................... 369
Booyens NO v OFS Provincial Administration 1924 OPD 120 ...................................................... 174
457
Table of cases 469

Page
Booysen v SAPS & Others [2008] 10 BLLR 928 (LC) .................................................................... 341 Bouwer
v SA Breweries [2002] 7 BALR 699 (CCMA) .................................................................... 391
Brian Joffe t/a J Air v CCMA & Others [2019] 1 BLLR 1 (LAC) .................................................. 369
Buthelezi v Amalgamated Beverage Industries [1999] 9 BLLR 907 (LC) .................................... 352

C
CAMMBAWU v Goldings Orthopaedic Centre [2006] 2 BALR 170 (CCMA) ............................. 263 Cash
Paymaster Services (Pty) Ltd v Browne [2006] 2 BLLR 131 (LAC) ..................................... 369 Catholic
Bishops Publishing Co & Others v State President & Others
1990 (1) SA 849 (A) ............................................................................................................. 384, 398
CCMA & Others v Law Society of the Northern Provinces (Incorporated as the Law
Society of Transvaal) [2013] 11 BLLR 1057 (SCA) .................................................................... 411
CEPPWAWU & Another v Glass & Aluminium 2000 CC [2002] 5 BLLR 399 (LAC) .......... 344, 363
CEPPWAWU obo Mahlabane v Sasol Synfuel [2003] 9 BALR 1022 (CCMA) .............................. 387
CEPPWAWU v EH Waltons Packaging [2000] 12 BALR 1375 (CCMA) ....................................... 263
CEPPWAWU v Tekwani Sawmills (Pty) Ltd [2004] 9 BALR 1094 (CCMA) ................................. 275
Ceramic Industries Ltd t/a Betta Sanitaryware v NCBAWU (2) [1997] 18 ILJ 671 (LAC) .......... 256
Chaba v Iselwa Investment CC [2004] 12 BALR 1534 (CCMA) .................................................... 390
City of Cape Town v SALGBC & Others [2011] 5 BLLR 504 (LC) ............................................... 350
City of Cape Town v SAMWU obo Jacobs [2009] 9 BLLR 882 (LAC) .......................................... 386
City of Tshwane Metropolitan Municipality v Engineering Council of SA & Others
[2010] 3 BLLR 229 (SCA) ........................................................................................................... 395
Confederation of SA Workers Unions v NEDLAC & Others (2011) 32 ILJ 1831 (SCA) ............. 230 County
Fair Foods (Pty) Ltd v CCMA & Others [1999] 11 BLLR 1117 (LAC) ............................ 349 County Fair v
CCMA & Others [1998] 6 BLLR 577 (LC) .............................................................. 390
Crawford v Grace Hotel (2000) 21 ILJ 2315 (CCMA) .................................................................... 352 CWIU
& Others v Plascon Decorative (Inland) (Pty) Ltd [1998] 12 BLLR 1191 (LAC) ............ 305 CWIU obo Sityana
& Mane v Valpa Easigas [2000] 1 BALR 23 (CCMA) ..................................... 386
CWIU v Millner’s Dental Suppliers (Pty) Ltd (1997) 18 ILJ (CCMA) .......................................... 263
CWU & Another v Mobile Telephone Networks (Pty) Ltd [2003] 8 BLLR 741 (LC) ................. 393

D
Datt v Gunnebo Industries (Pty) Ltd [2009] 5 BLLR 449 (LC) .................................................... 369 Davies v
Clean Deale CC (1992) 13 ILJ 1230 (IC) .......................................................................... 352 De Beer v SA
Export Connection CC t/a Global Paws [2008] 1 BLLR 36 (LC) .................. 344, 368
Denel (Pty) Ltd v Gerber [2005] 9 BLLR 849 (LAC) .................................................................... 233
Department of Correctional Services & Another v Police & Prisons Civil Rights Union &
Others (2011) 32 ILJ 2629 (LAC) ................................................................................................ 113
Department of Correctional Services & Another v POPCRU & Others
[2012] 2 BLLR 110 (LAC) ........................................................................................................... 368
Department of Correctional Services v POPCRU & Others [2013] 7 BLLR 639 (SCA) .............. 346
Department of Home Affairs & Another v Ndlovu & Others (2014) 35 ILJ 3340 (LAC) ............ 350
Department of Justice v CCMA & Others [2004] 4 BLLR 297 (LAC) .......................................... 386
Dierks v UNISA [1999] 4 BLLR 304 (LC) ...................................................................................... 343
Dince & Others v Department of Education, North West Province & Others
[2010] 6 BLLR 631 (LC) .............................................................................................................. 389
Director General: Office of the Premier, Western Cape v SA Medical Association
obo Broens (2011) 32 ILJ 1077 (LC) .......................................................................................... 360 Dr D
C Kemp t/a Centralmed v Rawlins [2009] 11 BLLR 1027 (LAC) ........................................ 361 Dube v Otis
Elevators [2005] 7 BALR 695 (MEIBC) ..................................................................... 388
Dunn v Minister of Defence & Others (2005) 26 ILJ 2115 (T) ..................................................... 448

E
470 A Practical Guide to Labour Law

Page
Ekurhuleni Metropolitan Municipality Germiston and Van Rooyen
(2002) 23 ILJ 1104 (ARB) ................................................................................................................ 8
Eastern Cape Tourism Board v CCMA [2010] 11 BLLR 1161 (LC) ............................................. 344 Elliot
International (Pty) Ltd v Veloo & Others [2014] 10 BLLR 955 (LAC) .............................. 345 Enviroserv
Waste Management v Interwaste (Pty) Ltd t/a
Interwaste Environmental Solutions & Others (2016) 37 ILJ 959 (LC) .................................... 361
Equity Aviation Services (Pty) Ltd v CCMA & Others [2008] 12 BLLR 1129 (CC) ..................... 360 Equity
Aviation Services (Pty) Ltd v SATAWU & Others [2009] 10 BLLR 933 (LAC) ................ 305 Eskom Holdings
v NUM obo Coetzee [2018] 2 BLLR 176 (LC) .................................................. 382
Eskom v Marshall & Others [2003] 1 BLLR 12 (LC) ..................................................................... 388
Eskom v Mokoena [1997] 8 BLLR 965 (LAC) ............................................................................... 352
Eskom v NUM [2003] 6 BALR 708 (CCMA) .................................................................................. 382
Esterhuizen v Jet Demolition (2011) 32 ILJ 734 (CCMA) ............................................................. 389
Evans v Japanese School of Johannesburg [2006] 12 BLLR 1146 (LC) ........................................ 346
Ex parte Commissioner: In re Manthe 1979 (4) SA 812 (E) ......................................... 173, 174, 175

F
FAWU v Earlybird Farm (Pty) Ltd [2003] 1 BLLR 20 (LC) .......................................................... 305
FAWU v The Cold Chain & Others [2007] 7 BLLR 638 (LC) ....................................... 258, 345, 369

G
G4S Security Services v NASGAWU (DA 3/08, 26 November 2009) ............................................ 388
Gangaram v MEC for the Department of Health, KwaZulu-Natal & Others
[2017] 11 BLLR 1082 (LAC) ....................................................................................................... 440
Gaylard v Telkom SA Ltd [1998] 9 BLLR 942 (LC) ....................................................................... 387
General Motors (Pty) Ltd v NUMSA obo Ruiters (2015) 36 ILJ 1492 (LAC) ............................... 352
General Motors SA (Pty) Ltd v NUMSA (2018) 39 ILJ 1316 (LC) ................................................ 352 Glass v
University of Zululand [2006] 4 BALR 388 (CCMA) ......................................................... 387
Govender v SA Stevedores Service Co Ltd (1981) 2 ILJ 27 (IC) ............................................ 174, 175
Greeff and Giagas v Nelson Mandela Bay Municipality
(SALGBC, ECD051116, 22 June 2012) ....................................................................................... 387
Greyvenstein v Kommissaris van die SA Inkomste Diens (2005) 26 ILJ 1395 (T) ........................ 447
Grieve v Denel (Pty) Ltd [2003] 4 BLLR 366 (LC) ........................................................................ 394
Grootboom v National Prosecuting Authority & Others [2014] 1 BLLR 1 (CC) ......................... 440
Gumede en Andere v SA Eagle Versekeringsmaatskappy Bpk 1989 (3) SA 741 (T) ........... 173, 174
Gurarnah v South African Weather Services [2004] 4 BALR 454 (CCMA) .......................... 384, 398

H
Halgreen v Natal Building Society (1986) 7 ILJ 769 (IC) .............................................................. 363
Hapwood v Spanjaard Ltd [1996] 2 BLLR 187 (IC) ...................................................................... 352 Harris
v Volkswagen of South Africa (Pty) Ltd [2000] 10 BALR 1140 (CCMA) .......................... 383
Health & Hygiene Services v Seedat NO & Others [1999] 11 BLLR 1153 (LC) .......................... 275
Hendricks v Mercantile & General Reinsurance Co of SA Ltd (1994) 15 ILJ 304 (LAC) ............ 352
High Rustenburg Estate (Pty) Ltd v NEHAWU obo Cornelius & Others
(2017) 38 ILJ 1758 (LAC) ............................................................................................................ 361
Hlope & Others v Minister of Safety & Security & Others (2006) 27 ILJ 1003 (LC) ............ 447, 448
HOSPERSA & Another v Northern Cape Provincial Administration
(2000) 21 ILJ 1066 (LAC) .................................................................................................... 383, 388
HOSPERSA obo Van Wyk v SA National Parks (Golden Gate) [2009] 2 BALR 169 (CCMA) .... 383
HOSPERSA obo Venter v SA Nursing Council & Others [2006] 6 BLLR 558 (LC) .................... 369 Howell v
International Bank of Johannesburg Ltd (1990) 11 ILJ 791 (IC) .................................. 363
Hulett Sugar Ltd (Darnall) (2016) 37 ILJ 2441 (BCA) .................................................................. 349
Table of cases 471

Page
I
IMATU & Others v Rustenburg Transitional Council [1999] 12 BLLR 1299 (LC) ..................... 369 IMATU
obo Bezuidenhout v Witzenberg Municipality & Others [2014] 5 BLLR 443 (LC) ....... 395 IMATU obo
Coetzer v Stad Tygerberg (1999) 20 ILJ 971 (CCMA) ...................................... 384, 398
IMATU obo Strydom v Witzenberg Municipality & Others [2012] 7 BLLR 660 (LAC) .............. 352
IMATU obo Verster v Umhlathuze Municipality [2011] 9 BLLR 882 (LC) ................................. 388
IMATU v City of Johannesburg Metropolitan Municipality & Others
[2014] 6 BLLR 545 (LAC) ........................................................................................................... 343
Innes v Johannesburg Municipality 1911 TPD 12 .................................................. 169, 173, 175, 176

J
Jabari v Telkom SA (Pty) Ltd [2006] 10 BLLR 924 (LC) .............................................................. 352
James & Another v Eskom Holdings SOC & Others (2017) 38 ILJ 2269 (LAC) .......................... 349
Jardine v Tongaat Hulett Sugar Ltd [2002] 4 BALR 426 (CCMA) ............................................... 352
Jele v Premier of the Province of KwaZulu-Natal & Others [2003] 7 BLLR 723 (LC) ................. 386
Johannesburg City Council v Marine & Trade Insurance Co 1970 (1) SA 181 (W) ............ 173, 176
Johnson & Johnson (Pty) Ltd v CWIU & Others [1998] 12 BLLR 1209 (LAC) ........................... 361
Jooste v Transnet Ltd t/a South African Airways [1995] 5 BLLR 1 (LAC) ................................... 344
Joseph v University of Limpopo & Others [2011] 12 BLLR 1166 (LAC) ..................................... 343

K
Kidrogen (Pty) Ltd v CCMA & Others (2018) 39 ILJ 2560 (LC) ................................................... 350
Kleinhans v Parmalat SA (Pty) Ltd [2002] 9 BLLR 879 (LC) ........................................................ 239
Koka v Director-General: Provincial Administration North West Government
[1997] 7 BLLR 874 (LC) .............................................................................................................. 389
Komane v Fedsure Life [1998] 2 BLLR 215 (CCMA) .................................................................... 349
Kompecha v Bite My Sausage CC (1988) 9 ILJ 1077 (IC) .............................................................. 349
Krishna v University of KwaZulu-Natal (2012) 33 ILJ 1688 (LC) .................................................. 361
Kroukam v SA Airlink (Pty) Ltd [2005] 12 BLLR 1172 (LAC)...................................................... 256
Kruger & Others v Aciel Geomatics (Pty) Ltd (2016) 37 ILJ 2567 (LAC) .................................... 361
Kruger v SA Police Service (2003) 24 ILJ 477 (BCA) ..................................................................... 398
Kruse v Gijima AST (Pty) Ltd [2010] JOL 24998 (LC) .................................................................. 239
Kukard v GKD Delkor (Pty) Ltd [2015] 1 BLLR 63 (LAC) ................................................... 342, 363
Kunene & Others v Dunlop Belting Products (Pty) Ltd (2011) 20 CCMA 9.4.2 .......................... 306

L
Labuschagne v Techno Plastics (Pty) Ltd [2005] 6 BALR 610 (MEIBC) ............................. 383, 387
Langa & Others v Active Packaging (Pty) Ltd [2001] 1 BLLR 37 (LAC) ..................................... 276 Liberty
Life Association of Africa Ltd v Niselow [1996] 7 BLLR 825 (LAC) ................................ 233 Limekaya v
Department of Education [2004] 5 BALR 586 (GPSSBC) ................................. 384, 398
Long v SA Breweries & Others [2018] ZACC 7 (CC)..................................................................... 389
Lotter v SA Police Service (2005) 26 ILJ 578 (BCA) .............................................................. 384, 398
Louw v SA Rail Commuter Corporation Ltd & Another (2005) 26 ILJ 1960 (W) ........................ 448
Lukie v Rural Alliance CC t/a Rural Development Specialist [2004] 8 BLLR 769 (LC) ..... 151, 344

M
Mabilo v Mpumalanga Provincial Government & Others [1999] 8 BLLR 821 (LC) ................... 389
Mabinana & Others v Baldwins Steel [1999] 5 BLLR 453 (LAC) ................................................. 349
Mahlamu v CCMA & Others [2011] 4 BLLR 381 (LC) ................................................................. 258
Mahlangu v Minister of Sport and Recreation [2010] JOL 25011 (LC) ....................................... 440 Maidi
v MEC for Department of Education [2003] 8 BLLR 761 (LC) ......................................... 440
Malandho v SABC [1997] 5 BLLR 555 (LC) .................................................................................. 343
472 A Practical Guide to Labour Law

Page
Manana v Department of Labour [2010] 6 BLLR 664 (LC) ......................................................... 384
Mankahla & Others v University of Transkei [2004] 11 BALR 1340 (P) ...................................... 383
Marneweck v SEESA Ltd [2009] 7 BLLR 669 (LC) ................................................................ 342, 363
Marsland v New Way Motor & Diesel Engineering (2009) 30 ILJ 169 (LC) ......................... 172, 176
Maseko v Entitlement Experts [1997] 3 BLLR 317 (CCMA) ......................................................... 381
Mashava v Cuzen & Woods Attorneys [2000] 6 BLLR 691 (LC) ........................................... 151, 343
Mashegoane & Another v University of the North [1998] 1 BLLR 73 (LC) ......................... 383, 385
Mathibeli v Minister of Labour & Others [2015] 3 BLLR 267 (LAC) ........................................... 382
McInnes v Technikon Natal [2000] 6 BLLR 701 (LC) .......................................................... 343, 346 MEC,
Public Works, Northern Province v CCMA & Others [2003] 10 BLLR 1027 (LC) ............ 440
Metcash Trading Ltd t/a Metro Cash & Carry v Fobb & Others [1998] 11 BLLR 1136 (LC) ..... 349
Metro Rail (Wits) v SAFWU [1998] 1 BALR 88 (IMSSA) .............................................................. 386
Metropolitan Health Risk Management v Majatladi [2015] 3 BLLR 276 (LAC) ......................... 344 Minister
of Justice v Khoza 1966 (1) SA 410 (A) ............................................................ 170, 173, 175 MITUSA &
Others v Transnet Ltd & Others [2002] 11 BLLR 1023 (LAC) ......................... 383, 388 MITUSA v Portnet
[2000] 9 BALR 1037 (CCMA) ......................................................................... 388
Miyambo v CCMA & Others [2010] 10 BLLR 1017 (LAC) ........................................................... 349 Mnguni
v Gumbi [2004] 6 BLLR 558 (LC) ............................................................................ 151, 344 Modise &
Others v Steve’s Spar Blackheath [2002] 5 BLLR 496 (LAC)............................... 302, 306 Mogorosi and SA
Reserve Bank (2008) 29 ILJ 439 (CCMA) ......................................................... 344
Mogothle v Premier of the North West Province & Others [2009] 4 BLLR 331 (LC) ................. 341
Monyakeni v SA Police Service & Others (2008) 29 ILJ 3111 (BCA) ............................................ 384
Moropane v Gilbeys Distillers and Vintners (Pty) [1997]10 BLLR 1320 (LC) ............................. 341
Moses v Magnum Security Services [2002] 11 BALR 1166 (CCMA) ............................................. 382
Moslemany v Unilever PLC & Another [2006] 12 BLLR 1167 (LC) ............................................. 239
Mthembu & Another v SA Police Service & Another (2010) 31 ILJ 1014 (BCA) ......................... 384
Mtshali & Others v Nestlé SA [2002] 6 BALR 632 (CCMA) .......................................................... 391
Murray and Independent Newspapers (2003) 24 ILJ 1420 (CCMA) ............................................ 387
Murray v Minister of Defence (2008) 29 ILJ 1369 (SCA) ....................................................... 344, 363
Mzimni & Another v Municipality of Umtata [1998] 7 BLLR 780 (Tk) ....................................... 382

N
NAGEWU v Mr Clean [1998] 7 BALR 844 (CCMA) ...................................................................... 267
Naidoo v Rudolph Chemicals (Pty) Ltd [2008] 6 BALR 497 (NBCCI) ........................................ 390
National Entitled Workers Union v CCMA & Others (2003) 24 ILJ 2335 (LC) ........................... 381
National Health Laboratory Service v Yona [2015] 10 BLLR 1002 (LAC) ................................... 344
National Health Laboratory Services v Yona & Others (2015) 36 ILJ 2259 (LAC) ...................... 363 Nawa
& Another v Department of Trade & Industry [1998] 7 BLLR 701 (LC) ........................... 381 NCAWU obo
Tobias & Others v Pick ’n Pay Family Supermarket
[2003] 12 BALR 1413 (CCMA) ................................................................................................... 390
Ndebele v Foot Warehouse (Pty) Ltd t/a Shoe Warehouse (1992) 13 ILJ 1247 (IC) .................. 363
Ndlovu v Pather (2006) 27 ILJ 2671 (LC) ....................................................................................... 344
NEHAWU obo Makhethu v Robben Island Museum (2008) 29 ILJ 2318 (CCMA) ..................... 389
NEHAWU obo Thomas v Department of Justice (2001) 22 ILJ 306 (BCA) ................................. 398
NEHAWU v University of Cape Town & Others (2003) 24 ILJ 95 (CC) ....................................... 361
Nelson Mandela Metropolitan Municipality (NMMM) v Mkumatela
[2016] 6 BLLR 585 (LAC) ........................................................................................................... 384
Netherburn Engineering CC t/a Netherburn Ceramics v Mudau & Others
[2003] 10 BLLR 1034 (LC) .......................................................................................................... 411
NEWU v CCMA & Others [2004] 2 BLLR 165 (LC) ...................................................................... 381
Ngwenya v Premier of KwaZulu-Natal [2001] 8 BLLR 924 (LC) ........................................... 389, 390
Nicosia v Workmen’s Compensation Commissioner 1954 (3) SA 897 (T) ........... 169, 173, 175, 176
Table of cases 473

Page
Nieuwoudt v All-Pak (2009) 30 ILJ 2451 (LC) ................................................................................ 344
Niland v Ntabeni NO & Others (2017) 38 ILJ 1686 (LC) .............................................................. 363
Nobela v Consulate General USA [1999] 1 BLLR 31 (LC) ........................................................... 239
Nokeng Tsa Taemane Local Municipality v Louw NO [2019] 1 BLLR 35 (LAC) ....................... 344
Noonan v SSBC & Others [2012] 9 BLLR 876 (LAC) ................................................................... 385
Northern Cape Provincial Administration v Hambidge NO & Others
[1999] 7 BLLR 698 (LC) ...................................................................................................... 383, 387
NPSU & Others v The National Negotiating Forum & Others [1999] 4 BLLR 361 (LC) ........... 276 Ntlabezo
& Others v MEC for Education, Eastern Cape & Others [2002] 3 BLLR 274 (Tk) ..... 382
Ntsabo v Real Security CC [2004] 1 BLLR 58 (LC) ............................................................... 344, 363
NULAW v Barnard NO & Another [2001] 9 BLLR 1002 (LAC) ........................................... 342, 363
NUM & Others v Billard Contractors CC & Another (2006) 27 ILJ 1686 (LC) ................... 302, 306 NUM &
Others v Namakwa Sands & Others [2008] 7 BLLR 675 (LC) ........................................ 304 NUM & Others
v RSA Geological Services & Others [2004] 1 BALR 1 (ARB) ............................ 361
NUM v Black Mountain Mining (Pty) Ltd & Others [2010]3 BLLR 281 (LC) ............................ 349
NUMSA & Others v Abancedisi Labour Services [2013] 12 BLLR 1185 (SCA) ................... 342, 363
NUMSA & Others v Aveng Trident Steel & Others [2018] 5 BLLR 500 (LC) ............................. 304 NUMSA
& Others v Bader Bop (Pty) Ltd & Another [2003] 2 BLLR 103 (CC) .......................... 255 NUMSA & Others
v Fibre Flair CC [2000] 6 BLLR 631 (LAC) ..................................................... 361
NUMSA & Others v Fry's Metals (Pty) Ltd [2005] JOL 14141 (SCA) ........................................... 251
NUMSA & Others v Transnet & Others [2019] 2 BLLR 172 (LC) ............................................... 258
NUMSA & Others v Zeuna-Starker Bop (Pty) Ltd [2003] 1 BLLR 72 (LC) ................................. 304
NUMSA obo Khanye & Another v Havco Manufacturing (Pty) Ltd
[2003] 12 BALR 1349 (MEIBC) .................................................................................................. 391
NUMSA obo members v Behr Climate & Control [2004] 3 BALR 364 (CCMA) ......................... 276 NUMSA
obo Tshikana v Delta Motor Corporation [2003] 11 BALR 1302 (CCMA) ................... 390
NUMSA v Assign Services (Pty) Ltd & Others [2017] 10 BLLR 1008 (LAC) ....................... 235, 239
NUMSA v Aveng Trident Steel & others [2018] 5 BLLR 500 (LC) ............................................... 346
NUMSA v Bader Bop (Pty) Ltd [2003] 2 BLLR 103 (CC) ............................................................. 261
NUMSA v Feltex Foam [1997] 6 BLLR 798 (CCMA) .................................................................... 262
NUMSA v Zeuna-Starker Bop (Pty) [2003] 11 BLLR 1081 (LAC) ................................................ 346
NUTESA v Border Technikon [2005] 12 BALR 1302 (CCMA) .................................................... 384
Nxele v Chief Deputy Commissioner, Corporate Services, Department of
Correctional Services & Others [2008] 12 BLLR 1179 (LAC) .................................................. 386
Nyalunga v PP Webb Construction (1990) 11 ILJ 819 (IC) ........................................................... 363

O
OCGAWU obo Mapolie v Metlite Alloys [2002] 10 BALR 1058 (CCMA) .................................... 390
OCGAWU v Total SA (Pty) Ltd [1999] 6 BALR 678 (CCMA) ...................................................... 262
OCGAWU v Woolworths (Pty) Ltd [1999] 7 BALR 813 (CCMA) ................................................. 262
Odayar v Compensation Commissioner 2006 (6) SA 202 (N) .............................................. 172, Error!
Bookmark not defined.
Olkers v Monviso Knitwear (Pty) Ltd (1988) 9 ILJ 875 (IC) .................................................. 349, Error!
Bookmark not defined.
Ouwehand v Hout Bay Fishing Industries [2004] 8 BLLR 815 (LC) .................................... 342,P Error!
Bookmark not defined.

Parexel International (Pty) Ltd v Chakane NO & Others (2018) 39 ILJ 644 (LC) ...................... 352 Parry v
Astral Operations [2005] 10 BLLR 989 (LC) ..................................................................... 361
Pecton Outsourcing Solutions CC v Pillemer [2016] 2 BLLR 186 (LC)....................................... 258
Pedzinski v Andisa Securities (Pty) Ltd (Formerly SCMB Securities (Pty) Ltd)
[2006] 2 BLLR 184 (LC) .............................................................................................. 304, 346, 394
Phenithi v Minister of Education [2006] 9 BLLR 821 (SCA) ........................................................ 440
474 A Practical Guide to Labour Law

Page
Piet Wes Civil CC v AMCU & Others [2018] ZALAC 18 (LAC) .................................................... 360 Piet
Wes Civils CC & Another v AMCU & Others (2019) 40 ILJ 130 (LAC) ................................. 355 POPCRU v
SACOSWU [2018] ZACC 24 (CC) ............................................................................... 261 Pretoria Society
for the Care of the Retarded v Loots [1997] 6 BLLR 721 (LAC) ............... 344, 363 Protekon (Pty) Ltd v
CCMA & Others [2005] 7 BLLR 703 (LC) .......................................... 383, 388 PSA obo Badenhorst v
Department of Justice (1999) 20 ILJ 253 (CCMA) ................... 383–385, 398 PSA obo Dalton & Another v
Department of Public Works
[1998] 9 BALR 1177 (CCMA) ............................................................................................. 385, 398 PSA
obo Haschke v MEC for Agriculture & Others (2004) 25 ILJ 1750 (LC) .............................. 447
PSA obo Mohlala v Minister of Home Affairs & Others [2018] 12 BLLR 1203 (LC) .................. 440 PSA
obo Petzer v Department of Home Affairs (1998) 19 ILJ 412 (CCMA) ................................ 385 PSA obo
Thorne v Department of Community Service (Western Cape) & Others
[2018] 12 BLLR 1173 (LAC) ....................................................................................................... 385 PSA
obo Van der Walt v Minister of Public Enterprise [2010] 1 BLLR 78 (LC) .......................... 440
PTWU obo members v Sahar Security Services [2004] 3 BALR 373 (CCMA) .............................. 275
Pyper v Manchester Liners Ltd 1916 2 KB 691 ....................................................................... 169, 173

Q
Quince Products CC v Pillay [1997] 12 BLLR 1547 (LAC) ........................................................... 363

R
Rainbow Farms (Pty) Ltd v CCMA & Others
[2011] 5 BLLR 504 (LC); [2011] 5 BLLR 451 (LAC) ................................................................ 349 Randall
v Karan (2010) 31 ILJ 2449 (LC) ....................................................................................... 369
Randall v Progress Knitting Textiles Ltd (1992) 13 ILJ 200 (IC) .................................................. 343
Raol Investments (Pty) Ltd t/a Thekwini Toyota v Madlala [2008] 6 BLLR 535 (SCA) ..... 346, 349
Regent Insurance Co Ltd v CCMA & Others (2013) 34 ILJ 410 (LC) .......................................... 363
Rubenstein v Price’s Daelite (Pty) Ltd [2002] 5 BLLR 472 (LC) .................................................. 369
Rubin Sportswear v SACTWU & Others [2004] 10 BLLR 986 (LAC)................................... 346, 369
Rustenburg Platinum Mine v SA Equity Workers Association obo Bester & Others
(2018) 39 ILJ 1503 (CC) .............................................................................................................. 350
Rustenburg Platinum Mines Ltd (Rustenburg Section) v CCMA & Others
[2006] 11 BLLR 1021 (SCA) ....................................................................................................... 251
Rustenburg Platinum Mines Ltd (Rustenburg Section) v NUM & Others
[2001] 3 BLLR 305 (LAC) ........................................................................................................... 349

S
SA Metal & Machinery Co (Pty) Ltd v Gamaroff [2010] 2 BLLR 136 (LAC) ............................... 369
SA Police Service v Safety & Security Sectoral Bargaining Council & Others
(2012) 33 ILJ 453 (LC) ................................................................................................................. 363 SA
Post Office Ltd v Mampeule [2010] 10 BLLR 1052 (LAC) ...................................................... 258 SA Postal
Workers Union obo Dreyer and Others v South African Post Office Ltd & Another
[2013] 2 BALR 216 (CCMA) ....................................................................................................... 263
SA Rugby Players’ Association (SARPA) & Others v SA Rugby (Pty) Ltd & Others
[2008] 9 BLLR 845 (LAC) ........................................................................................................... 343
SA Transport and Allied Workers Union v Garvis & Others [2011] 4 All SA 475 (SCA) ............. 297
SAAPAWU Free State v Fourie & Others [2007] 1 BLLR 67 (LC) ................................................ 346
SABC v McKenzie [1999]1 BLLR 1 (LAC) ..................................................................................... 233
SACCAWU & Another v The Clicks Organisation (Pty) Ltd [1997] 2 BLLR 164 (IC) ................ 349
SACCAWU v Metlife (Pty) Ltd (1997) 18 ILJ (CCMA) .................................................................. 263
SACCAWU v OK Bazaars 1995 (3) SA 622 (A) ............................................................................... 270
SACCAWU v Pep Stores (1998) 19 ILJ 939 (CCMA) ..................................................................... 352
Table of cases 475

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SACCAWU v Speciality Stores Ltd [1998] 4 BLLR 352 (LAC) ...................................................... 275
SACCAWU v The Hub [1998] 12 BALR 1590 (CCMA) ................................................................. 262
SACTWU & Another v Cadema Industries (Pty) Ltd [2008] 8 BLLR 790 (LC) .......................... 343
SACTWU v Bibart Projects [2000] 1 BALR 65 (CCMA) ................................................................ 267
SACTWU v Sheraton Textiles (Pty) Ltd [1997] 5 BLLR 662 (CCMA) ......................................... 263 SACTWU
v WM Eachus and Co (CCMA 1997) .............................................................................. 263 Samancor Ltd
v NUMSA & Others [1999] 11 BLLR 1202 (LC) ................................................... 305 Samancor Tubatse
Ferrochrome v MEIBC & Others [2010] 8 BLLR 824 (LAC) ........................ 351
SAMWU v Rand Airport Management Company (Pty) [2005] 3 BLLR 241 (LAC) ..................... 346 SAR & H
v SA Stevedores Service Co Ltd 1983 (1) SA 1066 (A) ........................................... 174, 175 SARS v CCMA
& Others [[2017] 1 BLLR 8 (CC) .......................................................................... 350
SATAWU & Another v Garvas & Others (City of Cape Town as Intervening Party and
Freedom of Expression Institute as amicus curiae) [2012] 10 BLLR 959 (CC) ......................... 306
Schreuder v Nederduitse Gereformeerde Kerk Wilgespruit & Others
[1999] 7 BLLR 713 (LC) .............................................................................................................. 352
Schwartz v Sasol Polymers & Others (2017) 38 ILJ 915 (LAC) ...................................................... 350
Sekwati v Masiya & Others (2011) 32 ILJ 2219 (LC) ...................................................................... 363
Services (Pty) Ltd v Browne [2006] 2 BLLR 131 (LAC) ................................................................ 369
Services (Pty) Ltd v SATAWU & Others [2009] 10 BLLR 933 (LAC) ........................................... 346
Shoprite Checkers (Pty) Ltd v CCMA & Others (2006) 27 ILJ 2681 (LC) ................................... 312
Sindane v Prestige Cleaning Services [2009] 12 BLLR 1249 (LC) ........................................ 342, 363
SMCWU & Another v Party Design CC (Doll’s Dairy) [2001] 6 BLLR 667 (LC) ......................... 349
Solidarity obo McCabe v SA Institute for Medical Research [2003] 9 BLLR 927 (LC) ....... 151, 343
Solidarity v Mercedes Benz of SA (Pty) Ltd [2011] 11 BALR 1216 (CCMA) ............................... 263
Solutions (Pty) Ltd [2014] 6 BLLR 600 (LC) ................................................................................. 349
South African Freight & Dock Workers Union v Safcor Freight (Pty) Ltd (2011) ...................... 304
Standard Bank of South Africa v CCMA & Others [2008] 4 BLLR 356 (LC) ............................... 352
State Information Technology Agency (SITA) (Pty) Ltd v CCMA
[2008] 7 BLLR 611 (LAC) ........................................................................................................... 233
Steenkamp & Others v Edcon Ltd (2016) 37 ILJ 564 (CC) ........................................................... 356
Strategic Liquor Services v Mvumbi NO & Others [2009] 9 BLLR 847 (CC) ...................... 344, 363
Structural Applications (Pty) Ltd v TAWUSA [2003] 10 BALR 1203 (CCMA) .................... 262, 263
Swanepoel v AECI Ltd (1984) 5 ILJ 41 (IC) ................................................................................... 349
Swart v Greenmachine Horticultural Services (A Division of Sterikleen (Pty) Ltd)
(2010) 31 ILJ 180 (LC) ................................................................................................................. 151
Swissport (SA) (Pty) Ltd v SA Transport & Allied Workers Union & Others
(2011) 32 ILJ 1256 (LC) ............................................................................................................... 305

T
Tasima (Pty) Ltd v Road Traffic Management Corporation & Other (2017) 38 ILJ 385 (LC) ..... 361
TDF Network Africa (Pty) Ltd v Faris [2019] 2 BLR 127 (LAC) ................................................... 346 The Law
Society of the Northern Provinces v Minister of Labour & Others
(NGHC 61197/11, 11 October 2012) ......................................................................................... 411
The National Bargaining Council for the Road Freight Industry & Another v
Carlbank Mining unreported JA 52/10, 20 March 2012 (LAC) .................................................... 8
Thomas (Rockliffe) v Mincom (Pty) Ltd [2007] 10 BLLR 993 (LC) ............................................ 369
TSI Holdings (Pty) Ltd v NUMSA & Others [2006] 7 BLLR 631 (LAC) ...................................... 341
TWK Agri (Pty) Ltd v Wagner & Others (2018) 39 ILJ 797 (LAC) ............................................... 355

U
University of Cape Town v Auf der Heyde [2001] 12 BLLR 1316 (LAC) ..................................... 343
University of Pretoria v CCMA & Others [2012] 2 BLLR 164 (LAC) ........................................... 343
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UPUSA v Komming Knitting [1997] 4 BLLR 508 (CCMA) ........................................................... 263
Urquhart v Compensation Commissioner (2006) 27 ILJ 96 (E) ........................................... 172, 176 Vaal
Toyota (Nigel) v Motor Industry Bargaining Council & Others
[2002] 10 BLLR 936 (LAC) ......................................................................................................... 350

V
Value Logistics Ltd v Basson & Others (2011) 32 ILJ 2552 (LC) .................................................. 363
Van der Merwe v Agricultural Research Council [2013] 9 BALR 1012 (CCMA) ......................... 352
Van der Riet v Leisurenet Ltd t/a Health and Racquet Club
[1998] 5 BLLR 471 (LAC) ................................................................................................... 344, 363
Van der Velde v Business & Design Software (Pty) Ltd (2) [2006] 10 BLLR 1004 (LC) ............. 346 Van Wyk
v Albany Bakeries Ltd [2003] 12 BLLR 1274 (LC) ......................................................... 344 Victor v Finro
Cash & Carry (2000) 21 ILJ 2489 (LC).................................................................... 151 Viljoen v
Johannesburg Stock Exchange Ltd (2017) 38 ILJ 671 (LC) .......................................... 355
Volkswagen SA (Pty) Ltd v Brand NO & Others [2001] 5 BLLR 558 (LC) .................................. 361

W
Wallace v Du Toit (2006) 27 ILJ 1754 (LC) ............................................................................ 151, 344
Ward v Workmen’s Compensation Commissioner 1962 (1) SA 728 (T) ...................... 173, 174, 175
Table of cases 477

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Western Cape Education Department v GPSSBC & Others [2014] 10 BLLR 987 (LAC) ........... 344
WESUSA v Isidingo Security Services [2007] 7 BALR 678 (CCMA) ............................................. 263
Table of cases 479

Whall v BrandAdd Marketing (Pty) Ltd [1999] 6 BLLR 626 (LC) ............................................... 361
WL Ochse Webb & Pretorius (Pty) Ltd v Vermeulen [1997] 2 BLLR 124 (LAC) ............... 344, 363
 Table of cases 481

Woolworths (Pty) Ltd v SACCAWU & Others (2018) 39 ILJ 222 (LAC) ...................................... 355 Workforce
Group v McLintock & Others (2017) 38 ILJ 158 (LAC) ............................................. 350