A Practical Guide

to Labour Law
Eighth Edition
A Practical Guide
to Labour Law
Eighth 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
DURBAN 215 Peter Mokaba Road (North Ridge Road), Morningside, Durban, 4001
JOHANNESBURG Building No. 9, Harrowdene Office Park, 124 Western Service Road,
Woodmead, 2191
CAPE TOWN Office Floor 2, North Lobby, Boulevard Place, Heron Close, Century City, 7441
www.lexisnexis.co.za
Australia LexisNexis, CHATSWOOD, New South Wales
Austria LexisNexis Verlag ARD Orac, VIENNA
Benelux LexisNexis Benelux, AMSTERDAM
Canada LexisNexis Canada, MARKHAM, Ontario
China LexisNexis, BEIJING
France LexisNexis, PARIS
Germany LexisNexis Germany, MÜNSTER
Hong Kong LexisNexis, HONG KONG
India LexisNexis, NEW DELHI
Italy Giuffrè Editore, MILAN
Japan LexisNexis, TOKYO
Korea LexisNexis, SEOUL
Malaysia LexisNexis, KUALA LUMPUR
New Zealand LexisNexis, WELLINGTON
Poland LexisNexis Poland, WARSAW
Singapore LexisNexis, SINGAPORE
United Kingdom LexisNexis, LONDON
USA LexisNexis, DAYTON, Ohio

© 2015
ISBN 978 0 409 12057 8
E-Book ISBN 978 0 409 12058 5
First Edition 1994, Reprinted 1996
Second Edition 1996, Reprinted 1997, 1998, Supplement 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 2014

Copyright subsists in this work. No part of this work may be reproduced in any form or by any means without
the publisher’s written permission. Any unauthorised reproduction of this work will constitute a copyright
infringement and render the doer liable under both civil and criminal law.
Whilst every effort has been made to ensure that the information published in this work is accurate, the
authors, editors, publishers and printers take no responsibility for any loss or damage suffered by any person
as a result of the reliance upon the information contained therein.

Printed and bound by Interpak Books Pietermaritzburg

 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 intro-
duction 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 few 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. The amendments to the EEA came
into operation on 1 August 2014, the amendments to the BCEA came into operation on 1
September 2014 and the amendments to the LRA will come into operation on 1 January
2015. All these amendments have been included in this, the eighth, 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 prin-
ciples 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. Forms prescribed by the various Acts which are required in all labour
connected procedures are also included, such as referring a dispute to the CCMA or
applying for unemployment benefits.
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 new edition of this
publication.

Editor
December 2014

v
vi A Practical Guide to Labour Law

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 .................................................................................... 15
2.4 Essentialia of the employment contract ................................................................ 15
2.4.1 Specified work ........................................................................................... 16
2.4.2 Remuneration ........................................................................................... 16
2.5 Conditions of employment .................................................................................... 16
2.5.1 Vacation leave ........................................................................................... 16
2.5.2 Sick leave ................................................................................................... 17
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 ....................................................... 18
2.6.6 To comply with statutory duties .............................................................. 19
2.7 The employee’s remedies ...................................................................................... 19
2.7.1 Cancellation .............................................................................................. 19
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
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 ........................................................................... 25
vii
viii A Practical Guide to Labour Law

Page
2.10.3 By agreement ............................................................................................ 25
2.10.4 By the death of the parties....................................................................... 26
2.10.5 By the insolvency of the parties............................................................... 26
2.10.6 By the illness of the employee ................................................................. 26
2.10.7 By impossibility of performance.............................................................. 27
2.10.8 By cancellation (summary termination) ................................................ 27
2.10.9 Redundancy of post .................................................................................. 27
2.10.10 Completing a specific task ....................................................................... 27
2.11 The employer’s delictual liability .......................................................................... 27
2.11.1 Employer/employee relationship........................................................... 27
2.11.2 The delict must have been committed by the employee in the
course of the performance of his duties ................................................ 27
2.11.3 The employer’s liability for the delicts of an independent
contractor .................................................................................................. 29
2.12 Restraint of trade .................................................................................................... 29
2.13 The employer and third parties ............................................................................ 30
Questions .......................................................................................................................... 31
Appendix ........................................................................................................................... 35

Part 2: Social Legislation

3 Basic Conditions of Employment Act 75 of 1997 ......................................................... 49
3.1 Introduction ............................................................................................................ 49
3.2 Aims of the Act ........................................................................................................ 49
3.3 Application .............................................................................................................. 50
3.4 Definitions ............................................................................................................... 51
3.5 Ordinary working hours......................................................................................... 52
3.6 Overtime .................................................................................................................. 53
3.7 Compressed working week .................................................................................... 53
3.8 Averaging of hours of work.................................................................................... 54
3.9 Meal intervals and rest periods.............................................................................. 54
3.10 Work on Sundays and public holidays .................................................................. 54
3.11 Night work ............................................................................................................... 55
3.12 Leave ........................................................................................................................ 55
3.12.1 Annual leave .............................................................................................. 55
3.12.2 Sick leave ................................................................................................... 56
3.12.3 Maternity leave .......................................................................................... 56
3.12.4 Family responsibility leave ....................................................................... 57
3.13 Particulars of employment and remuneration .................................................... 57
3.14 Termination of employment ................................................................................. 59
3.15 Prohibition of employment of children and forced labour ............................... 61
3.16 Variation of conditions of employment ............................................................... 61
3.16.1 Variation by agreement............................................................................ 61
3.16.2 Ministerial determinations ...................................................................... 62
3.16.3 Sectoral determinations ........................................................................... 62
3.17 Employment Conditions Committee.................................................................... 64
3.18 Monitoring and enforcement of legal provisions ............................................... 65
3.19 Legal proceedings................................................................................................... 66
3.20 General .................................................................................................................... 67
Questions .......................................................................................................................... 67
Appendices........................................................................................................................ 71
4 Employment Equity Act 55 of 1998 ............................................................................... 87
4.1 Introduction ............................................................................................................ 87
4.2 Constitutional equality ........................................................................................... 87
4.2.1 The equality clause ................................................................................... 87
4.2.2 The affirmative action clause .................................................................. 88
Contents ix

Page
4.2.3 The anti-discrimination clause ................................................................ 88
4.2.4 Proof of discrimination ............................................................................ 89
4.3 The objectives of the Employment Equity Act .................................................... 89
4.4 Application of the Employment Equity Act ......................................................... 90
4.5 Chapter II – Prohibition of unfair discrimination .............................................. 91
4.5.1 Meaning of “unfair discrimination” ....................................................... 91
4.5.2 Provisions of Chapter II ........................................................................... 91
4.5.3 Dispute resolution .................................................................................... 92
4.6 Chapter III – Affirmative action ............................................................................ 93
4.6.1 Affirmative action measures .................................................................... 93
4.6.2 Duties of designated employers .............................................................. 94
4.7 Commission for Employment Equity .................................................................... 96
4.8 Monitoring, enforcement and legal proceedings ............................................... 96
4.8.1 Labour inspectors ..................................................................................... 96
4.8.2 The Director-General............................................................................... 97
4.8.3 The Labour Court .................................................................................... 97
4.9 Protection of employee rights ............................................................................... 98
4.10 General provisions .................................................................................................. 98
Questions .......................................................................................................................... 99
Appendices........................................................................................................................ 105
5 Unemployment Insurance Act 63 of 2001 ..................................................................... 125
5.1 Introduction ............................................................................................................ 125
5.2 Definitions ............................................................................................................... 125
5.3 Application of the Unemployment Insurance Act .............................................. 126
5.4 Framework of the Unemployment Insurance Act .............................................. 126
5.4.1 Unemployment Insurance Fund............................................................. 126
5.4.2 Unemployment Insurance Board ........................................................... 126
5.4.3 Unemployment Insurance Commissioner ............................................. 127
5.4.4 Claims officers ........................................................................................... 127
5.4.5 Director-General....................................................................................... 127
5.5 Benefits .................................................................................................................... 127
5.5.1 Right to benefits........................................................................................ 127
5.5.2 Calculation of benefits ............................................................................. 128
5.5.3 Unemployment benefits .......................................................................... 129
5.5.4 Illness benefits ........................................................................................... 131
5.5.5 Maternity benefits..................................................................................... 132
5.5.6 Adoption benefits ..................................................................................... 132
5.5.7 Dependants’ benefits ............................................................................... 133
5.5.8 General provisions relating to benefits .................................................. 134
5.5.9 Dispute resolution .................................................................................... 134
5.6 Enforcement............................................................................................................ 134
5.7 Duties of employer.................................................................................................. 134
5.8 Miscellaneous .......................................................................................................... 135
5.9 Unemployment Insurance Contributions Act 4 of 2002 .................................... 136
5.9.1 Contributions ............................................................................................ 136
5.9.2 Interest, penalties and offences .............................................................. 138
5.9.3 Application of the Income Tax Act ........................................................ 138
Questions .......................................................................................................................... 139
Appendices........................................................................................................................ 141
6 Compensation for Occupational Injuries and Diseases Act 130 of 1993 .................. 161
6.1 Introduction ............................................................................................................ 161
6.2 Application of the Act ............................................................................................ 162
6.3 Duties of employer.................................................................................................. 162
6.4 Procedure to claim compensation ........................................................................ 163
x A Practical Guide to Labour Law

Page
6.5 The right to compensation .................................................................................... 163
6.6 Compensation ......................................................................................................... 164
6.6.1 Temporary total disablement .................................................................. 164
6.6.2 Permanent disablement ........................................................................... 165
6.6.3 In the event of the death of an employee .............................................. 165
6.6.4 Compensation for occupational diseases ............................................... 166
6.6.5 Increased compensation .......................................................................... 166
6.7 Claiming compensation from the employer or a third party............................. 166
6.8 Occupational Diseases in Mines and Works Act 78 of 1973............................... 167
Questions .......................................................................................................................... 167
Appendices........................................................................................................................ 172
7 Occupational Health and Safety Act 85 of 1993........................................................... 183
7.1 Introduction ............................................................................................................ 183
7.2 Application of the Act ............................................................................................ 183
7.3 Advisory Council for Occupational Health and Safety ....................................... 184
7.4 Duties of employers ................................................................................................ 184
7.5 Duties of employees ................................................................................................ 185
7.6 Health and safety representatives ......................................................................... 185
7.7 Health and safety committees ............................................................................... 186
7.8 Inspectors................................................................................................................. 187
7.9 Miscellaneous .......................................................................................................... 188
7.10 Mine Health and Safety Act 29 of 1996 ................................................................ 189
Questions .......................................................................................................................... 189
Appendix ........................................................................................................................... 193
8 Skills development ........................................................................................................... 195
8.1 Introduction ............................................................................................................ 195
8.2 Skills development strategy.................................................................................... 196
8.3 The skills development strategy in the context of legislation and other
policy proposals ....................................................................................................... 196
8.4 Skills Development Act 97 of 1998 ....................................................................... 197
8.4.1 Introduction .............................................................................................. 197
8.4.2 Purposes of the Act ................................................................................... 197
8.4.3 Structures of learning .............................................................................. 198
8.4.4 National Skills Authority (NSA) .............................................................. 199
8.4.5 Sector Education and Training Authorities (SETAs)........................... 199
8.4.6 Learnerships.............................................................................................. 201
8.4.7 Artisans....................................................................................................... 201
8.4.8 Skills programmes .................................................................................... 202
8.4.9 Labour centres .......................................................................................... 202
8.4.10 Skills development institutes ................................................................... 203
8.4.11 Quality Council for Trades and Occupations ........................................ 203
8.4.12 Productivity South Africa ......................................................................... 203
8.4.13 Department of Labour ............................................................................. 203
8.4.14 Financing of skills development ............................................................. 204
8.4.15 General provisions .................................................................................... 204
8.5 Skills Development Levies Act 9 of 1999 .............................................................. 204
8.5.1 Registration for payment ......................................................................... 205
8.5.2 Employers liable to pay ............................................................................ 205
8.5.3 Payment of levies ...................................................................................... 205
8.5.4 General provisions .................................................................................... 206
8.6 Payment of grants ................................................................................................... 206
Questions .......................................................................................................................... 207
Appendix ........................................................................................................................... 208
Contents xi

Page
9 Employment Services Act 4 of 2014............................................................................... 213
9.1 Introduction...................................................................................................................... 213
9.2 Purpose of the Act ............................................................................................................ 213
9.3 Definitions......................................................................................................................... 214
9.4 Framework of the Act ...................................................................................................... 214
9.4.1 Public employment services..................................................................... 215
9.4.2 Private employment agencies .................................................................. 215
9.4.3 Productivity South Africa ......................................................................... 216
9.4.4 Supported Employment Enterprises ...................................................... 216
9.4.5 Employment Services Board.................................................................... 216
9.5 Work schemes ................................................................................................................... 216
9.6 Employment of foreigners .............................................................................................. 217
9.7 Monitoring and enforcement ......................................................................................... 217

Part 3: Labour Relations

10 Development of South African Labour Law ................................................................. 221
10.1 Introduction ............................................................................................................ 221
10.2 National Economic, Development and Labour Council Act 35 of 1994 .......... 222
10.2.1 Establishment of NEDLAC ...................................................................... 222
10.2.2 Objectives and functions of NEDLAC .................................................... 223
Questions .......................................................................................................................... 224
11 Labour Relations Act 66 of 1995 .................................................................................... 225
11.1 Introduction ............................................................................................................ 225
11.2 Application of the LRA .......................................................................................... 227
11.3 Freedom of association........................................................................................... 231
Questions .......................................................................................................................... 233
12 Framework of the Labour Relations Act ....................................................................... 235
12.1 Introduction ............................................................................................................ 235
12.2 Trade unions and employers’ organisations ........................................................ 236
12.3 Bargaining councils ................................................................................................ 238
12.3.1 Establishment of a council ....................................................................... 238
12.3.2 Functions of bargaining councils ............................................................ 239
12.3.3 Bargaining councils in the public service .............................................. 239
12.4 Statutory councils.................................................................................................... 241
12.4.1 Establishment and registration of statutory councils............................ 241
12.4.2 Powers and functions of statutory councils ............................................ 241
12.5 Commission for Conciliation, Mediation and Arbitration (CCMA)................... 242
12.5.1 Establishment of the CCMA .................................................................... 242
12.5.2 Functions of the CCMA ........................................................................... 242
12.5.3 Governing body ........................................................................................ 243
12.5.4 Finances of the CCMA ............................................................................. 243
12.6 Labour Court ........................................................................................................... 243
12.6.1 Composition .............................................................................................. 243
12.6.2 Jurisdiction ................................................................................................ 244
12.6.3 Powers of the Court .................................................................................. 244
12.6.4 General ...................................................................................................... 245
12.7 Labour Appeal Court ............................................................................................. 245
12.7.1 Composition .............................................................................................. 245
12.7.2 Jurisdiction ................................................................................................ 245
12.8 Workplace forums................................................................................................... 246
Questions .......................................................................................................................... 246
xii A Practical Guide to Labour Law

Page
13 Collective bargaining ....................................................................................................... 249
13.1 Introduction ............................................................................................................ 249
13.2 Recognition and the duty to bargain.................................................................... 250
13.3 Organisational rights .............................................................................................. 250
13.3.1 Right of access to workplace .................................................................... 254
13.3.2 Deduction of trade union subscriptions or levies ................................. 255
13.3.3 Leave for trade union activities ............................................................... 255
13.3.4 Trade union representatives ................................................................... 255
13.3.5 Disclosure of information ........................................................................ 256
13.3.6 Exercise of organisational rights ............................................................. 257
13.3.7 Resolution of disputes about organisational rights............................... 257
13.4 Collective bargaining structures............................................................................ 259
13.4.1 Bargaining councils .................................................................................. 259
13.4.2 Statutory councils ..................................................................................... 260
13.4.3 Workplace forums .................................................................................... 260
13.5 The bargaining process .......................................................................................... 260
13.5.1 Bargaining unit ......................................................................................... 260
13.5.2 Bargaining levels ....................................................................................... 261
13.5.3 Bargaining agenda ................................................................................... 261
13.5.4 Bargaining conduct .................................................................................. 261
13.6 Collective agreements ............................................................................................ 262
13.6.1 Legal effect of collective agreements ..................................................... 262
13.6.2 Agency shop agreements ......................................................................... 263
13.6.3 Closed shop agreements .......................................................................... 264
13.6.4 Resolution of disputes about collective agreements ............................. 265
Questions .......................................................................................................................... 266
Appendices........................................................................................................................ 270

14 Strikes and lock-outs ........................................................................................................ 277

14.1 Introduction ............................................................................................................ 277
14.2 A right to strike ....................................................................................................... 277
14.3 Definition of a strike............................................................................................... 278
14.4 Prohibited strikes (absolute limitations on industrial action) ........................... 278
14.4.1 Essential services ....................................................................................... 279
14.4.2 Maintenance services................................................................................ 280
14.5 Protected strikes ...................................................................................................... 280
14.6 Consequences of a strike ........................................................................................ 282
14.7 Other forms of industrial action ........................................................................... 283
14.7.1 Secondary strikes ...................................................................................... 283
14.7.2 Picketing .................................................................................................... 284
14.7.3 Protest action to promote or defend socio-economic interests ........... 285
14.7.4 Strikes in response to impending retrenchments................................. 286
14.8 Determining the nature and status of industrial action ..................................... 286
14.9 Lock-outs.................................................................................................................. 288
Questions .......................................................................................................................... 289
Appendices........................................................................................................................ 294
15 Worker participation ........................................................................................................ 307
15.1 Introduction ............................................................................................................ 307
15.2 Establishment of a workplace forum .................................................................... 308
15.3 Worker participation .............................................................................................. 309
15.3.1 Disclosure of information ........................................................................ 309
15.3.2 Matters for consultation ........................................................................... 309
15.3.3 Joint decision-making............................................................................... 310
15.4 Dispute resolution .................................................................................................. 311
Questions .......................................................................................................................... 311
Contents xiii

Page
Appendix ........................................................................................................................... 313
16 Dismissals .......................................................................................................................... 317
16.1 Introduction .......................................................................................................... 317
16.2 Definition of dismissal.......................................................................................... 317
16.3 Automatically unfair dismissals ........................................................................... 320
16.4 Date of dismissal ................................................................................................... 322
16.5 Requirements for a fair dismissal ........................................................................ 322
16.5.1 Substantive fairness ............................................................................... 322
16.5.2 Procedural fairness................................................................................ 323
16.6 Dismissal for misconduct ..................................................................................... 324
16.7 Dismissal for incapacity ........................................................................................ 326
16.8 Dismissal for operational requirements ............................................................. 328
16.9 Disputes about unfair dismissals ......................................................................... 330
16.10 Remedies for unfair dismissal ............................................................................. 334
16.11 Transfer of the contract of employment ........................................................... 335
Questions .......................................................................................................................... 336
Appendices........................................................................................................................ 345
17 Unfair labour practices .................................................................................................... 355
17.1 Introduction .......................................................................................................... 355
17.2 Definition of “unfair labour practice” ................................................................ 356
17.3 Promotions ............................................................................................................ 357
17.4 Demotions ............................................................................................................. 360
17.5 Benefits and training ........................................................................................... 361
17.6 Unfair suspension and other disciplinary action .............................................. 362
17.7 Refusal to reinstate or re-employ ........................................................................ 364
17.8 Probation ............................................................................................................... 365
17.9 Protected Disclosures Act of 2000 ...................................................................... 366
17.10 Job applicants ........................................................................................................ 369
17.11 Dispute resolution ................................................................................................ 369
Questions .......................................................................................................................... 370
18 Dispute resolution ............................................................................................................ 377
18.1 Introduction ............................................................................................................ 377
18.2 Structures for dispute resolution .......................................................................... 377
18.3 Dispute resolution by councils .............................................................................. 379
18.3.1 Accreditation ............................................................................................. 379
18.3.2 Jurisdiction of councils............................................................................. 379
18.3.3 Referral of dispute to council .................................................................. 379
18.3.4 Subsidies, fees and confidentiality .......................................................... 379
18.4 Dispute resolution by the CCMA .......................................................................... 381
18.4.1 CCMA jurisdiction .................................................................................... 381
18.4.2 Conciliation ............................................................................................... 383
18.4.3 Arbitration ................................................................................................. 384
18.4.4 The arbitration award .............................................................................. 385
18.4.5 Powers of CCMA commissioners ............................................................. 387
18.5 Con-arb .................................................................................................................... 387
18.6 Inquiry by arbitrator ............................................................................................... 387
18.7 Dispute resolution of specific disputes ................................................................. 389
Questions .......................................................................................................................... 397
Appendices........................................................................................................................ 401
19 Other relevant legislation ................................................................................................ 419
19.1 Introduction ............................................................................................................ 419
19.2 Other labour legislation ......................................................................................... 419
19.2.1 Public Service Act ..................................................................................... 419
xiv A Practical Guide to Labour Law

Page
19.2.2 Employment of Educators Act ................................................................ 420
19.2.3 Local Government: Municipal Systems Act ........................................... 421
19.3 Other legislation ..................................................................................................... 422
19.3.1 Extension of Security of Tenure Act ...................................................... 423
19.3.2 Promotion of Access to Information Act ................................................ 424
19.3.3 Promotion of Administrative Justice Act ................................................ 426
19.3.4 Intercepting and Monitoring Prohibition Act ...................................... 428
19.3.5 Electronic Communications and Transactions Act............................... 429
19.3.6 Regulation of Interception of Communications and provision of
Communication-related Information Act .............................................. 429
19.3.7 ILO Convention and new legislation ..................................................... 430
19.3.8 Broad Based Black Economic Empowerment Act ................................ 431
Bibliography ............................................................................................................................. 435
Table of cases .......................................................................................................................... 437
 PART

1
COMMON LAW
 1
INTRODUCTION

1.1 Background

Labour Law is divided into individual and collective Labour Law. Historically the employ-
ment 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 em-
ployment 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 the provisions of the Labour Relations Act 66
1
of 1995. Collective Labour Law concerns itself with the relationships between employers
and trade unions, between employers inter se and between trade unions inter se. Where the
Act so prescribes, the product of collective labour law, that is, collective agreements, 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 inter-
vention 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 em-
ployment, 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 and collective agreements
in terms of the Labour Relations Act. It is for this reason that some authors question the
nature of the modern employment relationship: is it a purely contractual (that is, a consen-
sual) 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 relation-
ship. 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
________________________

1 The LRA was significantly amended in 2002 and again in 2014 (apart from other minor changes). The
LRA Amendment Act 6 of 2014 was preceded by Bills in 2012 and 2013 and was finally approved in
August 2014. The LRA Amendment Act of 2014 will come into operation on 1 January 2015.

3
4 A Practical Guide to Labour Law

hours per day and with no provision for paid holiday or sick leave. Labour legislation is thus
necessary to provide better protection to an employee and to counter this kind of asym-
metry 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, the Unemployment Insur-
ance Act 63 of 2001, the Occupational Health and Safety Act 85 of 1993, the Compen-
sation for Occupational Injuries and Diseases Act 130 of 1993, the Basic Conditions of
Employment Act 75 of 1997 and other Acts;
• 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 recom-
mendations 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 free-
dom 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 con-
flict. 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 individ-
ual employment contract and this period differs from the required notice period in a col-
lective agreement, which in turn differs from the provisions regulating notice periods in the
Basic Conditions of Employment Act (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 threshold (or “ceiling”) 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.

Bill of Rights

2
Core rights in terms of the BCEA

Bargaining council collective agreements

Collective agreements
(other than council agreements)

Sectoral and ministerial determinations

BCEA

Individual agreements
(contracts of employment)

Common law

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 and will take precedence
over the BCEA only if the contractual provisions are more favourable than those con-
tained in the BCEA;
• the BCEA takes precedence over common law and a contract of employment. However,
if the contract of employment provides for more favourable conditions of employment,
the contract will prevail and not the BCEA;
• collective agreements concluded outside a bargaining council take precedence over
common law principles, individual contracts of employment and the BCEA (except for
the core rights);
• ministerial determinations and sectoral determinations take precedence over the com-
mon law, contracts of employment and the BCEA;

________________________

2 The core rights are the following: the arrangement of working time with due regard to health, safety
and family responsibilities (s 7 of the BCEA); 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) and maternity leave (s 25); the entitlement to annual leave (s 20),
although annual leave may by collective agreement be reduced to two weeks per year; and the pro-
visions contained in Ch 6 of the BCEA relating to the prohibition of child labour and forced labour.
6 A Practical Guide to Labour Law

• collective agreements concluded in a bargaining council take precedence over all pre-
ceding provisions. 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 are subject only to constitutional norms.
The above hierarchy of laws can be found in sections 49 and 50 of the BCEA.
It is not always easy to determine which rules apply. The following guidelines may prove
useful:
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 employ-
ment (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 may not be applicable, such as in the case of a person who earns in ex-
cess of the prescribed threshold amount or a senior managerial employee, who is
excluded from Chapter 2 of the BCEA.
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 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 favour-
able. 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 preceding 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 bar-
gaining 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 this regard.
Step 6: If a collective agreement is in existence, determine whether the agreement was con-
cluded in a bargaining council or at plant level. A council collective agreement
always takes precedence over a collective agreement concluded outside a bargain-
ing council.
Step 7: If none of the above applies, refer to the common law rules.
The above diagram does not reflect legislation applicable to specific sectors, 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 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 con-
flict with the relevant provisions in the Labour Relations Act, the latter will, in terms of sec-
tion 210 of the LRA, prevail.
Introduction 7

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 con-
stitutional 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. Com-
mon 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
Distinguish between individual and collective Labour Law. (4)

Question 2
Give an exposition of the main sources of Labour Law. (10)

Question 3
Briefly explain which of the following applies in the event of a conflict between their provi-
sions:
3.1 the contract of employment and a collective agreement;
3.2 the contract of employment and common law;
3.3 a collective agreement and the Basic Conditions of Employment Act. (6)

Question 4
Briefly explain how the Bill of Rights may affect the employment relationship. (5)

Question 5
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 Basic Conditions of Employment Act.) 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 col-
lective 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 6
Jonas is an employee at Castro’s Steak Ranch and 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 Basic
Conditions of Employment Act limits normal working hours to a maximum of 45 hours per
week and 8 hours per day. Assume that a sectoral determination, promulgated in terms of
the Basic Conditions of Employment Act and applicable to Castro’s, provides for a maximum
of 40 hours per week and 7 hours per day. Which of these provisions are applicable to
Jonas? Motivate your answer. (4)
8 A Practical Guide to Labour Law

Question 7
John’s contract of employment provided for better motor vehicle benefits than those pro-
vided 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 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 (or service) is traditionally considered to be a sub-species of
the common law contract of lease, with its origins in the Roman law. Roman law distin-
guishes 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 em-
ployment (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 con-
sidered 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 indi-
vidual 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 collec-
tive Labour Law, provided for in the Labour Relations Act 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, although they have been greatly aug-
mented 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 remu-
neration 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.
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
reciprocal contract between these parties in terms of which the independent contractor

9
10 A Practical Guide to Labour Law

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, roads, etc.
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 follows: a contract of mandate is 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 Labour Relations Act, such as the CCMA (Com-
mission 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. Furthermore, only employees are entitled to social
security benefits in terms of the Unemployment Insurance Act and the Compensation for
Occupational Injuries and Diseases Act.
An important feature of the ordinary contract of employment is that the employee is sub-
ject 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 con-
trol 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 con-
tractor 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.
The control test proved inadequate to distinguish conclusively between employees and
independent contractors. The courts adopted other tests in the quest to determine the
Common law contract of employment 11

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 result-
ant impression will enable one to decide whether or not the relationship between the par-
ties 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 membership of 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 only for remuneration 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 Dis-
tributors 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 surren-
der 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 pro-
mote 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 pro-
duced 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 Associa-
tion 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 Execu-
tors 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
12 A Practical Guide to Labour Law

(Pty) Ltd v CCMA & Others (2008) 29 ILJ 2234 (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 contract-
ors” 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
Basic Conditions of Employment Act or similar legal provisions and does not have to regis-
ter 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 decisions in terms of which the true nature of the relationship between the par-
ties needs to be determined; and
• by section 83A of the Basic Conditions of Employment Act (mirrored in section 200A of
the Labour Relations Act).
Even if a person is described as an independent contractor in a contract, it remains neces-
sary 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 Basic Conditions of Employment Act (and section 200A of the Labour
Relations Act), 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 con-
trary 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 organ-
isation;
(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).
Common law contract of employment 13

(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 contract-
ing parties may approach the CCMA for an advisory award about whether the persons in-
volved in the arrangement are employees.
The effect of this section is that a person who earns less than the 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), approach the
CCMA for an advisory award about whether the person is an employee, but only if the
alleged employee earns less than the threshold amount.
In 2006 a code was promulgated to assist with determining whether a person is an em-
ployee. The Code of Good Practice: Who is an Employee (GN 1774 of 1 December 2006) is
based, in the main, on the control and dominant impression tests, the section 83A presump-
tion and case law (see the Appendix to this chapter).
In summary, then, 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 determined threshold, section 83A of the
BCEA (or section 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 require-
ments for a valid contract is lawfulness. This particular requirement received some atten-
tion 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 em-
ployed 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 Com-
missioner section 23 of the Constitution 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 defin-
ition of “employee” in section 213 is sufficiently wide to include workers without valid con-
tracts 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 con-
tract, 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
14 A Practical Guide to Labour Law

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, there-
fore, unenforceable under common law or labour legislation. It held that even though the
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 Consti-
tution. 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 exploit-
ation 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-
1
ingly, 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 LAC
expressed the view that sex workers like Kylie would not be entitled to the full range of rem-
edies 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 the
provisions of the Immigration Act that sanction the employment of illegal immigrants in
conjunction with section 39(2) of the Constitution and held that foreigners need to be pro-
tected 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 remuner-
ation due, on the basis of the invalidity of the contract. In these circumstances, the worker would be
2
deprived 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 employ-
3
ment relationship and that the termination of that relationship constituted a dismissal.

________________________

1 “Kylie” v CCMA & Others [2010] 7 BLLR 705 (LAC) par 40.
2 Discovery Health Ltd v CCMA & Others [2008] 7 BLLR 633 (LC) par 30.
3 The new Employment Services Act 4 of 2014 (not yet in operation as at the time of going to print) will
regulate the employment of foreigners.
Common law contract of employment 15

2.3 Conclusion of the contract

The contract of employment, like any other contract, must comply with the basic require-
ments 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 when an employment contract is
concluded. 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 terms of
section 29 of the Basic Conditions of Employment Act, an employer is required to supply the
employee with written particulars of his employment, such as hours of work and remuner-
ation; the Act, however, does not require a written contract as such.
An employment contract may be concluded expressly by way of a verbal or written agree-
ment 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 the 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 dis-
played 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 sys-
tem. By contrast, the Court accepted the SMS sent by J accepting the offer as a valid accept-
ance 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 usual requirements for a valid contract, the essential elements or require-
ments of the contract of employment need to be observed. These requirements or essen-
tialia concern the parties’ consensus as to the work the employee will have to perform and
the remuneration payable by the employer.
16 A Practical Guide to Labour Law

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 unspeci-
fied 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 to claim damages. In Smith v Cycle and Motor Trade Co 1922 TPD 324 a
person was employed as 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 Groe-
newald 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 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.

2.4.2 Remuneration
The parties must agree on the remuneration to be paid to the employee at conclusion of
the contract. Remuneration may be payable in cash and/or in kind (in natura). If remuner-
ation 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; that is, 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. Where remuner-
ation 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
on any amount and the intervals at which it will be payable (i.e. daily, weekly or monthly).
Legislation, on the other hand, prescribes minimum wages, usually in the form of a sectoral
determination. Where legislation does not prescribe minimum wages, employers and trade
unions often determine minimum wages through collective bargaining.

2.5 Conditions of employment

Common law does not prescribe any conditions of service; the parties negotiate matters
such as hours of work, wages or salaries, etc. As has been stated, legislation contains certain
prescriptions in this regard.
Two matters deserving of mention are outlined below.

2.5.1 Vacation leave

Vacation 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 vacation leave. It would appear, however, that
custom implies paid leave as the norm.
The parties may agree at conclusion of the contract that the employer will grant the em-
ployee a certain number of days’ vacation 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 ser-
vice 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 vacation leave.
Common law contract of employment 17

In terms of legislation an employee is entitled to paid vacation leave. Section 20 of the

Basic Conditions of Employment Act of 1997 provides for a minimum of 21 consecutive
days’ vacation leave for all employees. This leave must be taken annually and may not run
concurrently with notice of termination of service.
2.5.2 Sick leave
Sick leave is not paid leave in terms of the common law either. The employee is paid only
for the period actually worked. The parties may agree on paid sick leave when they con-
clude their contract of employment.
If the period of sickness is brief, the employer may not terminate the services of the em-
ployee. If, however, the employee is absent for an unreasonably long period, he may be dis-
missed. 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.
Once again, rules pertaining to sick leave have been created by legislation. The Basic Con-
ditions of Employment Act, in section 22, provides for 30 or 36 working days’ paid sick leave
during a three-year cycle, depending upon whether the person works a five-day or six-day
week.

2.6 Duties of employer

The employer has a number of duties arising from the contract of employment. Should he
neglect to comply with these obligations he would be committing breach of contract and
the employee will then have 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
EMPLOYER • to pay a quantum meruit
• 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 he 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 not legally bound to provide
work for the employee. The employer therefore does not commit breach of contract if he
fails to provide work, provided that he pays the employee the agreed remuneration.
An employer is, however, obliged to provide work under certain circumstances. In the
following instances an employer has to provide work, failing which he will be committing
breach of contract:
• 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;
18 A Practical Guide to Labour Law

• 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 certain instances the employer may withhold work from his em-
ployees in the form of a lock-out, which is the employer’s counterpart of employees’ right
to strike in terms of the Labour Relations Act of 1995.

2.6.3 To pay the remuneration agreed upon

It is certainly the employer’s most important obligation to pay the employee the agreed re-
muneration. As has been stated, this remuneration may be paid in money and/or in natura,
depending on the agreement between the parties.
Where there is no agreement regarding the time of payment, common law prescribes
that payment will take place at the end of the period of service. Where the employee is
working for an undetermined period, it is important that he be paid on a regular basis. Ref-
erence will be made to trade usage in the particular industry and area in order to determine
the time for payment. It is the rule that an employee will first render his services before
receiving 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 sat-
isfactory 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 obliga-
tion to pay remuneration. The employee is entitled to full payment in the case of suspen-
sion. 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 suspension without
pay nowadays seems acceptable as a disciplinary sanction in instances of serious misconduct.

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 con-
tractor) was bona fide in not completing the work. A quantum meruit is a reasonable remuner-
ation 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

It is an obligation of the employer to provide safe working conditions for the employee.
This duty is not clearly described in common law and probably encompasses the provision
of sufficient machinery and equipment, properly trained supervisory staff and a safe system
in terms of which the work is to be carried out.
Common law contract of employment 19

The employer must take reasonable steps to ensure the safety of its employees. Should
failure to do so lead to the injury of the employee, the employer may be held delictually
liable. The doctrine of volenti non fit injuria must be borne in mind in this regard. If an em-
ployee has knowledge of a hazardous state of affairs and realises the nature thereof, yet sub-
jects himself voluntarily to this hazard and it leads to his 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.
Before the employee may claim compensation from his employer, the following will have
to be proved: that the act or omission which caused the employee’s injury 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.
At present the Compensation for Occupational Injuries and Diseases Act 130 of 1993 pro-
vides for the payment of compensation to the employee should he be injured in the course
of his duties. If this Act is applicable to an employer and his employees, claims are not insti-
tuted against the employer personally. However, if the employer does not contribute to the
Compensation Fund, he is likely to be sued personally.

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 pre-
scribed working hours. These duties derive from the Basic Conditions of Employment Act, a
collective agreement or sectoral determination. An employer also has to contribute towards
the Unemployment Insurance Fund in terms of the Unemployment Insurance Act and to
the Compensation Fund in terms of the Compensation for Occupational Injuries and Dis-
eases Act. (These duties are discussed in other sections of this book.)

2.7 The employee’s remedies

If the employer fails to comply with any of his obligations or fails to comply with them prop-
erly, he is in breach of contract. The employee will then have certain remedies against the
employer at his disposal.

• cancellation of the employment contract

REMEDIES • claiming specific performance
OF
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 such breach of contract that have already appeared in the text include a reduc-
tion in status and the non-payment of the agreed remuneration. When the employee claims
cancellation of the contract, it amounts to summary termination of the contract, as opposed
to where the employee gives due notice of termination in the proper fashion. If the breach
is less serious the employee may cancel the contract by giving the required notice of his
intention to cancel.
20 A Practical Guide to Labour Law

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 in his service or to
comply with his 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 en-
titled 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. This is substantiated by the large number of cases in which
the old Industrial Court, and now the Labour Court, has ordered reinstatement in terms of
the Labour Relations Act (of 1956 and 1995).
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 one of the factors which may induce the court not to award specific performance.

2.7.3 Damages
If an employee suffers damages as a result of the breach of contract by the employer, he
may claim damages. The amount of damages is calculated in accordance with the remuner-
ation which he would have received if the breach of contract had not taken place. The em-
ployee 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 his obligations – “no pay, no work”. A refusal to work in these
circumstances does not constitute a strike, but rather a legitimate exercise of contractual
rights.

2.7.5 Statutory remedies

In addition to the common law remedies, the employee may utilise the statutory remedies
provided for in our labour legislation. The Labour Relations Act, for example, provides dis-
pute resolution measures in a variety of cases, such as unfair dismissals, unfair labour prac-
tices, infringement of the freedom of association, disputes over organisational rights and so
forth. Generally speaking, a dispute can be referred to a bargaining council or the CCMA
(Commission for Conciliation, Mediation and Arbitration) for conciliation. If conciliation
fails, the dispute is arbitrated by the council or CCMA or adjudicated by the Labour Court,
depending on the nature of the dispute. The Basic Conditions of Employment Act puts
mechanisms in place for the recovery of outstanding payments and the Employment Equity
Act provides for the resolution of unfair discrimination disputes. These aspects are dealt
with in Chapter 18.
Common law contract of employment 21

2.8 The employee’s duties

A contract of employment creates (expressly or tacitly) the following obligations for the
employee:
• to make his personal services available
• to “warrant” his competence and reasonable
efficiency
DUTIES • to obey the employer
OF • to be subordinate to the employer
EMPLOYEE
• to maintain bona fides
• to exercise reasonable care when using the
employer’s property
• to refrain from misconduct

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 em-
ployee 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 dis-
missal, 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 guaranteed that he was suitable for the work. The
courts have held that every contract of employment contains an implied warranty of reason-
able efficiency or competence. The standard of competence which 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 should prove to be unsuitable for the work, he is committing breach of
contract. According to the labour courts he may, however, not be summarily dismissed, in
other words a single act of incompetence is normally not sufficient to justify a dismissal. The
employee must first be granted the opportunity to improve his performance and the em-
ployer 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 ter-
minate the contract upon expiry of the probationary period if the employee’s performance
does not meet the required standards. At common law nothing prevented the employer
22 A Practical Guide to Labour Law

from terminating the contract on or before expiry of the probationary period by simply
giving notice of termination. In terms of the Labour Relations Act, however, the probation-
ary employee whose performance is unsatisfactory may not be given notice and have his con-
tract 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 em-
ployee must have an opportunity to defend himself.

2.8.3 To obey the employer

Because the employer is in a position of authority in relation to the employee, he is entitled
to issue instructions regarding the activities of the employee. Consequently the employee
will be obliged to obey his employer and to perform all reasonable 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 subordin-
ate to the employer and to show him due respect. He commits a breach of contract if he
does not display the required respect. Examples of insubordination are the following: re-
fusal to obey a lawful instruction, writing an offensive letter to the employer; using rude lan-
guage to a superior; passing insulting remarks to the employer’s customers. Cheekiness of a
serious nature justifies dismissal at common law.

2.8.5 Maintaining bona fides

While an employee is in service he obtains information relating to his employer’s business.
The employee is obliged to act in good faith and not to do anything that may harm the rela-
tionship of trust. He may not, for example, disclose information to the opposition or use it
for personal gain. If he does so, he will be in breach of contract and the employer may dis-
miss him.
It is difficult to determine whether or not the utilisation of information constitutes a
breach of contract. South African courts have considered whether the information, such as
trade secrets, would be of use to anyone in competition with the employer. A disclosure of
such information by the employee constitutes material breach of contract and justifies sum-
mary dismissal. Similarly, where an employee uses information for personal gain dismissal is
warranted.
In order to protect his 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.
Dishonesty also amounts to a breach 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 busi-
ness 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 em-
ployer.
Common law contract of employment 23

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 em-
ployer. 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

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 does not comply with his obligations, he is in breach of contract and the
employer will have the following remedies at his disposal:

• summary termination (cancellation)

REMEDIES • specific performance
OF
EMPLOYER • damages
• statutory remedies

2.9.1 Summary dismissal

Summary dismissal is the termination of an employee’s services without giving the pre-
scribed notice and is, therefore, a cancellation of the contract, also called summary termin-
ation 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 mal-performance of a serious nature.
The following common law grounds for the summary dismissal of an employee have crys-
tallised:
• 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;
24 A Practical Guide to Labour Law

• dishonesty in the scope of his duties, for example fraud and theft. Dishonesty must be
proved;
• putting the employer’s property to private use;
• misconduct, for example drunkenness or assaulting co-workers or customers; and
• insubordination, rebelliousness and conduct undermining discipline.
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 enquiry before dismissing an em-
ployee. Dismissal can be effected with or without notice. Dismissal without notice is referred
to as summary dismissal. However, section 188 of the LRA requires both a valid reason for
dismissal and that the employer follow a “fair procedure” before dismissing an employee. A
fair procedure invariably involves some kind of disciplinary enquiry.
When dismissal has taken place 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 his own
hands and eject the dismissed employee – he 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 remuner-
ation 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 for all annual leave days to his
credit. If an employee is summarily dismissed he is not entitled to notice pay. If he is dis-
missed 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 circumstances courts are loath to grant an order for specific performance against
an employee who has committed breach of contract, because the employee’s future con-
scientious performance of his duties cannot be guaranteed. Thus, the courts are unlikely to
compel a deserting employee to return to his employer. In cases of this nature the employer
will be entitled to damages only.
However, specific performance in other circumstances may 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 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 him damages or losses. On the same basis the employer can claim damages from the
employee if he should abandon his employment in a way which causes the employer dam-
age. 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 remain-
ing 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 damages flowed from the breach of contract and he
must also present evidence to substantiate the amount claimed.
Common law contract of employment 25

2.9.4 Statutory remedies

In addition to the common law remedies the employer may utilise the statutory remedies
provided for in the Basic Conditions of Employment Act and the Labour Relations Act,
such as dispute resolution measures.

2.10 Termination of the contract of employment

The contract of employment may be terminated in the following ways:

• by notice
• by effluxion of time
• by agreement
• by the death of the parties
TERMINATION • by the insolvency of the parties
OF THE
CONTRACT • by the illness of the employee
• by impossibility of performance
• by cancellation (summary termination)
• redundancy of a post
• by completing a specific task

2.10.1 By notice
If the contract of service was concluded for an unlimited period, it may be terminated by
the giving of due notice. Common law does not prescribe minimum periods of notice and
thus reasonable notice must be given. In order to determine what a reasonable notice
period is, the courts are guided by the circumstances, such as whether the employee is paid
on a weekly or a monthly basis. It has been held that in these cases a week’s or a month’s
notice respectively must be given. This is, however, not an inflexible rule and the courts will
consider surrounding circumstances to determine what constitutes a reasonable period of
notice.
Notice may, of course, be given by either party. In other words, the employee may give
notice that he intends to terminate his services, that is, to resign, or the employer may give
notice to the employee to terminate his services. Common law does not require notice to be
writing, although it is advisable to put it in writing.
Section 37 of the Basic Conditions of Employment Act prescribes notice periods and re-
quires notice to be in writing, unless the employee is illiterate. It is interesting to note that,
in terms of section 186(a) of the Labour Relations Act, notice of termination of services
given by an employer to his employee is considered to be a dismissal, unless the employer
has cause to terminate the employee’s services by virtue of the latter’s misconduct or in-
capacity or the employer’s operational requirements.

2.10.2 By the effluxion of time

Where a contract of service has been concluded for a specified period, the so-called “fixed-
term contract”, it comes to an end when that period expires. In this event no notice is re-
quired. A contract concluded in this manner may not be terminated before the period has
expired, unless there are other reasons for the termination or unless the contract provides
for early termination. Where the employee remains in service after the period has expired
with the approval of the employer, the contract will be deemed to have been tacitly renewed.

2.10.3 By agreement
The parties may terminate the contract between them by mutual agreement.
26 A Practical Guide to Labour Law

2.10.4 By the death of the parties

The general rule is that the death of the employer does not terminate the contract of em-
ployment, while the death of the employee terminates it due to impossibility of performance.

2.10.5 By the insolvency of the parties

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. For example, he could claim his salary for a maximum period of
two months and leave pay for a maximum period of 21 (outstanding) 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 sec-
tion 38 is that employment contracts no longer terminate automatically upon the employ-
er’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 require-
ments (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 em-
ployment 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 Labour Relations Act for the specific hierarchy of
persons who must be consulted. Section 189 is discussed in Chapter 16 par 16.8.) The
purpose of the consultation is to endeavour to reach 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 not lose their jobs.
If, however, it is not possible to save the business and thereby secure the continued employ-
ment 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 em-
ployee have agreed on continued employment.
An employee whose contract has been suspended or terminated is entitled to claim com-
pensation from the employer’s insolvent estate for losses suffered as a result of the suspen-
sion or termination. An employee whose contract has been terminated is further entitled to
claim severance pay from the insolvent estate in terms of section 41 of the Basic Conditions
of Employment Act.
The insolvency of the employee does not terminate the employment contract, except
where an employee is prevented from practising a particular profession in terms of the In-
solvency 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 em-
ployer is entitled to dismiss the employee, therefore to terminate the contract, if the absence
due to illness continues for an unreasonable period.
Common law contract of employment 27

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 em-
ployee.

2.10.10 Completing a specific task

Where the employee has been appointed to perform a single or specific task only, for
example to design a suite of computer programs, the contract lapses automatically once the
task has been completed. The contract is effectively one for a “fixed term” and therefore
the comments under paragraph 2.10.2 above are applicable.

2.11 The employer’s delictual liability

As a rule an employer is liable to third parties for delicts committed by its employees, pro-
vided 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 require-
ments must be proved:
• there must be an employer/employee relationship; and
• 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 a contract of employment – locatio conductio operarum – must be proved. Refer to para-
graph 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 course of
the performance of his duties
The employer is not liable to third parties for all delicts committed by his 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. The following are examples of cir-
cumstances the courts have held as falling within the scope of an employee’s employment,
thereby rendering the employer liable.
28 A Practical Guide to Labour Law

• If the delict is committed while the employee is actually working – that is, while he is
occupied 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 doing so 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 in-
jured. 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 sec-
ond 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 con-
nected 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 uni-
form, 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, but the fire caused damage to a third party.
The court decided that the making of the fire was essential for the execution by the em-
ployees 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 com-
mitted 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 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 em-
ployee 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, how-
ever, 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 person-
ally liable. The reason for this is to be found in the fact that the delict is not committed
Common law contract of employment 29

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
decided that the employee was promoting only 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 ar-
gued 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 con-
cluded 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 employ-
er 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 an employee.
Before the employer will be held liable, the commission of a delict by the employee must be
proven. 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. Should
the employer pay the full amount of the damages of the third party, he will be able to claim
this amount 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, how-
ever, been cases where the employer was held liable, but on the basis of his own conduct
only. In order to determine the liability of the employer in this case, his neglect to take pre-
ventative 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 agreement is commonly found in employment contracts. In terms of a
restraint clause an 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.
30 A Practical Guide to Labour Law

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 activi-
ties 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 likeli-
hood, 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 to genuinely protect the employer’s interests;
• the nature of the business; and
• 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 other-
wise, 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 reason-
able, 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 re-
straint.
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. The
employer is bound, however, when his agent or representative acts on his behalf. The rep-
resentative may not, of course, exceed the bounds of his authority.
Normally an employee does not act as the representative or agent of his employer. The
contract of employment may, however, provide for this or the employee may be seen as a
Common law contract of employment 31

representative by the operation of the doctrine of estoppel. According to the doctrine of

estoppel the employer will be bound by a contract concluded by his employee if the em-
ployer indicated to a third party, by words or implication, that his employee is acting on his
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
Distinguish between locatio conductio operarum, locatio conductio operis and a mandate. (6)

Question 2
Discuss in detail, with reference to decided cases, how you will determine whether a person
is an “employee” or an independent contractor. (20)

Question 3
Discuss the common law duty of an employee to maintain bona fides (good faith). (10)

Question 4
Discuss, with reference to decided cases, the employee’s remedies in the event of a reduc-
tion in status. (15)

Question 5
Ben was an assistant manager in the storeroom of Cytex (Pty) Ltd for ten years. One Mon-
day morning he was informed by the general manager that an assistant manager was no
longer required 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 6
Distinguish between termination by notice and summary termination of a contract of em-
ployment. (5)

Question 7
Regarding summary termination of employment, give the following:
7.1 three grounds for such termination by the employer; (3)
7.2 three grounds for such termination by the employee; (3)
7.3 explain how summary dismissal of an employee at common law differs from such dis-
missal in terms of South African labour legislation and the requirements laid down by
the courts. (5)

Question 8
Mr Adonis Smith engages ten people to work in his factory as labourers. He tells them that
he cannot afford to pay them the minimum wage stipulated by the bargaining council. They
are, however, only too pleased to have a job and are willing to work for less than the pre-
scribed minimum. They sign contracts of employment reflecting the lower wage. Is such a
provision valid? Explain. (4)
Hint: A contract of employment must comply with the minimum terms of the applicable
legislation, sectoral determination or collective agreement.
32 A Practical Guide to Labour Law

Question 9
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.
9.1 Can the other person claim R10 000 from the company to have his car repaired?
Give reasons for your answer. (5)
9.2 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 10
A factory is hit by a strike, involving the vast majority of employees. A number of employees
are, however, willing to continue working and tender their services accordingly. The em-
ployer is unable to utilise their services and instructs them to stay at home until the strike
has ended.
10.1 Is the employer obliged to pay the strikers? Give reasons for your answer. (2)
Hint: “No work, no pay.”
10.2 Is the employer obliged to pay the non-strikers? Give reasons for your answer. (4)
Hint: The non-strikers have tendered their services.

Question 11
Employees report to their employer’s pay office on a Friday afternoon to collect their
wages. They are informed that they will be paid on the following Monday because the em-
ployer is experiencing cash-flow problems. They arrive back at work on the Monday, but
still receive no payment. They refuse to commence work until they have been paid. Do they
commit a breach of their contracts of employment? Explain. (4)
Hint: “No pay, no work.” See Coin Security v Vukani Guards (1989) 10 ILJ 239 (C).

Question 12
Annie, a domestic worker, was in the employment of Mr and Mrs Reynolds. Upon her
appointment they agreed that two weeks’ notice would be required for termination of her
services. While Annie was working for the Reynolds family one of Mrs Reynolds’ diamond
rings disappeared. Mrs Reynolds immediately accused Annie of theft and summarily dis-
missed her.
12.1 Can Annie be dismissed under these circumstances? Explain by referring to the
common law position and comparing it with the position as under the Labour
Relations Act. (4)
12.2 Could Mrs Reynolds dismiss Annie summarily or is she supposed to give Annie
two weeks’ notice? Briefly explain. (4)

Question 13
An employer can be held vicariously liable for delicts committed by his employee. Discuss,
with reference to case law, the employer’s liability for the delicts of his employee. (20)
Hint: See Hendrickz v Cutting 1937 CPD 417; Sauer NO v Duursema 1951 (2) SA 222 (D); Mkize
v Martens 1914 AD 382; General Tyre & Rubber Co (SA) Ltd v Kleynhans & Another 1963 (1) SA
533 (N); Feldman v Mall 1945 AD 743; Carter & Co (Pty) Ltd v McDonald 1955 (1) SA 202 (A);
Moghamat v Centre Guards CC [2004] 1 All SA 221 (C); Minister of Safety and Security v Jordaan
Common law contract of employment 33

t/a Andre Jordaan Transport 2000 (4) SA 21 (SCA); Roux v Evkom [2002] 2 All SA 462 (T); Ess
Kay Electronics (Pty) Ltd & Another v First National Bank of Southern Africa Ltd [2001] 1 All SA
315 (A); Energy Measurements (Pty) Ltd v First National Bank of South Africa Ltd [2000] 2 All SA
396 (W); Absa Bank Ltd v Bond Equipment (Pretoria) (Pty) Ltd [2001] 1 All SA 1 (A); K v Minister
of Safety and Security [2005] 8 BLLR 749 (CC); F v Minister of Safety and Security [2012] 3
BLLR 244 (CC).
Question 14
Andrew is working at XYZ Co as a representative, selling farming implements. His remuner-
ation 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 exceeds R100 000, he has 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.
14.1 Is Andrew an employee in terms of locatio conductio operarum? Explain your answer and
consider the presumption created in section 83A of the Basic Conditions of Employ-
ment Act and section 200A of the Labour Relations Act and the Code of Good Prac-
tice: Who is an employee? (20)
14.2 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)
14.3 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)
14.4 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 ex-
penses and repair costs to his car. Advise him. (5)
Question 15
Mr Fisherman was a skipper of a squid vessel for Nemo Fisheries. When he accepted the
appointment as skipper, he signed a written contract with Nemo Fisheries in terms of which
he was, inter alia, entitled to family responsibility leave and sick leave and required to give
three months’ notice of termination of service. The contract furthermore provided that Mr
Fisherman would be responsible for Nemo’s vessel at sea and that he would earn commis-
sion (calculated on the weight of squid caught) and be responsible for hiring, managing
and paying the crew. He had to undertake 21 trips to sea per month and was not allowed to
return to shore early without the permission of Nemo Fisheries. After serving Nemo for
almost a year, his services were terminated.
Advise Mr Fisherman whether he was an employee or an independent contractor and
whether, in consequence, he would be in a position to refer an alleged unfair dismissal dis-
pute to the Statutory Council for the Squid and Related Fisheries of SA. (20)
Hint: See J & J Freeze Trust v Statutory Council for the Squid & Related Fisheries of SA & Others
(2011) 32 ILJ 2966 (LC).
Question 16
Miss Sunshine works as a sex worker for Adult World CC. It is not in dispute that she per-
forms sex deeds for reward, works 12 hours a day, 7 days a week and lives in accommoda-
tion 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.
34 A Practical Guide to Labour Law

Advise Miss Sunshine of her prospects of success, giving reasons for your advice and con-
sidering 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 17
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).

Question 18
Breathe Easy (Pty) Ltd is a respiratory home care company which imports, rents, sells, mar-
kets 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 con-
tract of employment with the company contained both a confidentiality clause and a restraint
of trade. In terms of the contract she 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 em-
ployees or to work for a competitor company for a period of 12 months after leaving
Breathe Easy. Mpho resigned and joined Air For All (Pty) Ltd, a company competing with
Breathe Easy for 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 Air For All and possibly disclosing confidential Breathe Easy infor-
mation? (10)
Hint: See Continuous Oxygen Suppliers (Pty) Ltd t/a Vital Aire v Meintjes & Another (2012) 33 ILJ
629 (LC).

Question 19
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).
Common law contract of employment 35

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 legis-
lation, 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 pro-
tections 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) em-
ployment 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 Oc-
cupational 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 employ-
ee 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 interpret-
ing 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 inter-
preting the statutory presumptions of employment and the statutory definitions of an em-
ployee.
36 A Practical Guide to Labour Law

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 Compensa-
tion for Occupational Injuries and Diseases Act 130 of 1993 and the Unemployment Insur-
ance 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 de-
termined 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 employ-
ee 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 em-
ployment relationship. The issue of the applicant’s employment status cannot be deter-
mined 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 on-
ly labour and the other party directs the manner in which he or she works. In con-
trast, 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,
Common law contract of employment 37

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 relation-
ship.
(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 con-
tract of employment. Sufficient control or direction may be present if the contract be-
tween 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 incom-
patible with an employment relationship.
(c) “in the case of a person who works for an organisation, the person forms part of that organi-
sation”
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 indicat-
ing 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 em-
ployment, 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 termi-
nated, 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 ren-
ders 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, eco-
nomic 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 re-
lationship 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 self-
employment.
(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.
38 A Practical Guide to Labour Law

(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.
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 evi-
dence 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 be-
cause –
(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, how-
ever, 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 per-
son 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”. Sub-
paragraph (b) has the consequence that persons who are not engaged in terms of a con-
tract 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 sub-
paragraph (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 contem-
plates the assistance that a person may render to a person other than their employer. A cate-
gory of persons who clearly fall within the terms of sub-paragraph (b) are unpaid workers
who work for an employer.
Common law contract of employment 39

When does a person become an employee?

26. The definition of an “employee” includes a person who has concluded a contract of em-
ployment 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, it is necessary to evaluate all aspects of the contract and the rela-
tionship 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 cri-
teria 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 rela-
tionship 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. How-
ever, 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 reali-
ties of the relationship or elect not to lead evidence concerning the nature of the relation-
ship. 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 inde-
pendent 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 Recom-
mendation, 2006 of the International Labour Organisation states that a “disguised employ-
ment” 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 dis-
guise 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 previ-
ously 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 simi-
lar 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 em-
ployees, 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
40 A Practical Guide to Labour Law

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 con-
cluded by an independent contractor. These factors, which are frequently cited in judg-
ments, are tabulated 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

services. work 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
services of employee. (or produce result) within period fixed by
contract.
4. Employee obliged to perform lawful Independent contractor is subservient to the
commands 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 Contract terminates on completion of work or
period of 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 fol-
lowing 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 impres-
sion” 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 suffi-
ciently resemble an employment relationship. This may be the case, for example, if the em-
ployee 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 per-
form services personally when required to do so by the employer. This has been described
Common law contract of employment 41

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 re-
quiring 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 perform-
ing 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 neces-
sary 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 ascer-
tain if the relationship is one of employment. Depending upon an examination of all the
factors, including, for instance, the extent of control exercised by the principal sub-
contractor, it is feasible that both the sub-contractor and the workers that he or she has en-
gaged 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 re-
quire an employee to work, while an independent contractor is bound to perform or pro-
duce 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 inde-
pendent 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 ex-
ercised, 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 unsuper-
vised, 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 neces-
sarily 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.
42 A Practical Guide to Labour Law

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

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 regard-
less 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 em-
ployer.
47. Many employees receive variable payments that depend on their performance, such as com-
missions or bonuses based on productivity, attendance or other factors. The receipt of vari-
able 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 appear-
ance 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 self-
employed 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 rela-
tionship of independent contracting.

Place of work
50. The place at which work takes place may sometimes be taken into account as a factor deter-
mining 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
Common law contract of employment 43

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 ma-
chinery or equipment) that it has to be performed at the employer’s premises or if the con-
tractor 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 incon-
sistent 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 in-
dependent 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 inde-
pendent 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
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 tem-
porary 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 employ-
ees 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 subter-
fuge 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 employ-
ment 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 employ-
ment 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 fac-
tor. 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 em-
ployment service of any terms and conditions of employment in a bargaining council col-
lective 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 discrimina-
tion committed by the temporary employment service on the express or implied instruc-
tions of the client.
44 A Practical Guide to Labour Law

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 in-
terpretation of labour legislation.
60. Section 3 of the LRA provides that any person applying the Act must interpret its provi-
sions –
(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 rele-
vant 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, pro-
motion 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 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 em-
ployee 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 Recommend-
ations of the International Labour Organisation (ILO). Two supervisory bodies ensure the
application and observation of these Conventions: the Committee of Experts on the Appli-
cation 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
Common law contract of employment 45

based on the existence of an employment relationship and self-employed workers in gen-

eral should enjoy the right to organise. South Africa has ratified Convention 87 and com-
pliance 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 in-
terpreted 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 re-
spect of services rendered or to be rendered by that person, but excludes any independ-
ent 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 ex-
cluded 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 em-
ployee is –
“a person who has entered into or works under a contract of service or of apprentice-
ship 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 ser-
vice 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 render-
ing 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 employ-
ee 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;”
46 A Practical Guide to Labour Law

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 em-
ployee is —
“any person who is employed by or works for an employer and who receives or is en-
titled 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 em-
ployee 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 employ-
ees that it provides to a client. This provision must now be read as excluding temporary em-
ployment 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 ACT
75 OF 1997

3.1 Introduction
The Basic Conditions of Employment Act 75 of 1997 (BCEA) is of considerable importance
for the day-to-day administration of personnel matters since it sets minimum standards for
the protection of employees in the absence of other protective measures, such as collective
agreements or sectoral determinations. Unfortunately, in most Labour Law courses so
much emphasis is placed on the Labour Relations Act that the importance of the BCEA is
often overlooked.
As seen in Chapter 2, at common law the employment contract is viewed as an ordinary
commercial contract voluntarily entered into by two parties. Disregard for the weaker posi-
tion of the individual employee relative to the employer gives rise to a situation where the
common law gives little (or no) protection to the individual regarding sick leave, annual
leave, maximum working hours and other conditions of employment. At common law the
individual job applicant enjoys freedom to contract and if he wishes to commit himself con-
tractually to work for, for example, seven days a week and 10 hours a day, while no pro-
vision is made for holidays or sick leave, it is his choice. The BCEA guards against this kind
of asymmetry in employment contracts by creating minimum conditions of employment the
parties may not ignore even if both are perfectly willing to do so.

3.2 Aims of the Act

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, replacing the entire
Basic Conditions of Employment Act of 1983 and the Wage Act of 1957. Some significant
amendments to the Act took effect on 1 August 2002 when the Basic Conditions of Employ-
ment Amendment Act 11 of 2002 was enacted. Further important amendments have been
introduced by the Basic Conditions of Employment Amendment Act 20 of 2013, which took
effect on 1 September 2014.
The purpose of the BCEA is to advance economic development and social justice by en-
suring that working conditions of unorganised and vulnerable workers meet minimum
standards that are socially acceptable and by removing rigidities and inefficiencies from the
regulation of minimum employment conditions by the promotion of flexibility.
In terms of section 2 the objectives of the Act are the following:
• to give effect to and regulate the right to fair labour practices as contained in section 23(1)
of the Constitution by establishing and enforcing basic conditions of employment; and
• to give effect to obligations incurred by the Republic as a member state of the Inter-
national Labour Organisation (ILO).

49
50 A Practical Guide to Labour Law

The Act further seeks to establish, enforce and regulate the variation of basic conditions of
employment. It creates a national set of minimum standards, but permits them to be varied.
There are four mechanisms for variation: collective bargaining, sectoral determinations,
contracts of employment and determinations made by the Minister of Labour.

3.3 Application (s 3)
Like the Labour Relations Act of 1995, the BCEA applies to both the public and private
sectors and it covers all employees, except members of the State Security Agency and
unpaid volunteers working for an organisation serving a charitable purpose. These employ-
ees are totally excluded from the BCEA.
Other categories of employees are excluded from some of the provisions of the BCEA.
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 Excluded from the entire BCEA, except s 41
of which the Merchant Shipping Act 57 of (which deals with severance pay) and except
1951 applies to the extent provided for in a sectoral deter-
mination (s 3(3))
Senior managerial employees, employees en- Excluded from ss 8–18 (overtime, compressed
gaged as sales staff who travel to the premises working week, averaging of working hours,
of customers and who regulate their own maximum hours prescribed by Minister, meal
hours of work and employees who work fewer intervals, rest periods, Sunday work, night
than 24 hours per month for an employer work, public holidays)
Employees who work less than 24 hours per Excluded from Chapter 3, dealing with all
month for an employer types of leave; Chapter 4, dealing with par-
ticulars of employment and remuneration;
Chapter 5, dealing with termination of em-
ployment, payments on termination and cer-
tificate of service
Employers who employ fewer than five em- Excluded from s 29(1)(n), (o) and (p) and
ployees ss 30, 31 and 33, dealing with some written
particulars of employment, the duty to inform
employees of their rights and the keeping of
records
Employees engaged in unexpected work Excluded from ss 9, 10(1), 14(1), 15(1), 17(2)
which must be done without delay and which and 18(1), dealing with ordinary hours of
cannot be performed during ordinary work- work, overtime, meal intervals, daily and week-
ing hours ly rest periods, night work and work on public
holidays
Employees whose employment is subject to a Employees to whom a council or other col-
bargaining council collective agreement or lective agreement is applicable are subject to
other collective agreement or to a sectoral that agreement, and the BCEA is not appli-
determination or individual agreement cable to them. If a sectoral determination is
applicable the BCEA does not apply. A con-
tract of employment is applicable only if it is
more favourable than the BCEA
continued
Basic Conditions of Employment Act 75 of 1997 51

Category Exclusion
Employees who earn more than R205 433-30 Excluded from the provisions relating to
1
per annum working time, averaging of hours, hours pre-
scribed by the Minister, meal intervals, daily
and weekly rest periods, Sunday work, night
work and work on public holidays. Working
time is to be arranged with due regard to
health, safety and family responsibilities

3.4 Definitions (s 1)
Some of the more important definitions are provided here:
basic condition of employment means a provision of the Act or sectoral determination that stipulates
a minimum term or condition of employment;
domestic worker means an employee who performs domestic work in the home of his or her em-
ployer 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, and “employed” and “employment” have a corresponding meaning.
This definition mirrors the definition of “employee” in the Labour Relations Act (see the
discussion in Chapter 11 par 11.2). In summary, to determine the existence of the common-
law contract of employment, the locatio conduction operarum, the dominant-impression test is
used (see Chapter 2 par 2.2). To this test must be added the presumption created in section
83A of the BCEA (and in s 200A of the LRA) about who can be considered an employee
and the Code of Good Practice: Who is an Employee (see the Appendix to Chapter 2).
Section 83A creates a rebuttable presumption of who is an employee. This means that if
any 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 con-
trary 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 organ-
isation;
(d) the person has worked for that other person for an average of at least 40 hours per
month over the last three months;

________________________

1 This amount is amended by the Minister of Labour from time to time. This amount refers to gross pay
before deductions (such as income tax, pension, medical and similar contributions), but excludes pay-
ments (contributions) made by the employer in respect of the employee.
52 A Practical Guide to Labour Law

(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.
The presumption created in section 83A 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 (cur-
rently R205 433-30 pa). 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.
In terms of section 79(1), which deals with the protection of employees against discrimin-
ation, an “employee” includes a former employee and an applicant for employment.
Section 82(1) specifies that a person whose services have been procured for or provided
to a client by a temporary employment service (labour broker) is the employee of that tem-
porary employment service and the temporary employment service is that person’s employer.
farm worker means an employee who is employed mainly in or in connection with farming activi-
ties 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 re-
turn for that person working for any other person, including the State. “Remuneration” is given a
specific meaning in section 35(5);
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. A temporary employment service is in common parlance
known as a labour broker.

3.5 Ordinary working hours (ss 7–9)

Chapter 2 of the Act 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.
Employers have to regulate working time with due regard to the health and safety of em-
ployees, the Code of Good Practice on the Regulation of Working Time and the family re-
sponsibilities of employees (s 7).
For the purposes of regulating ordinary hours of work, overtime and a compressed week,
“day” is defined in section 8 as a period of 24 hours measured from the time when an
employee normally commences work.
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:
maximum of 8 hours per day
• If an employee’s duties include serving
the public, the maximum may by agree-
ment be extended by 15 minutes per day
up to a maximum of 60 minutes per week
to enable the employee to continue per-
forming those duties after the completion
of ordinary hours of work
Basic Conditions of Employment Act 75 of 1997 53

One of the goals of the Act is ultimately to reach a 40-hour working week. Schedule 1 to the
Act establishes procedures for the progressive reduction of the maximum ordinary working
hours to a maximum of 40 hours per week and eight hours per day. Such a reduction will
be secured by collective bargaining, sectoral determinations and recommendations made
by the Employment Conditions Commission (ECC) or Department of Labour.

3.6 Overtime (s 10)

Overtime may be worked only by agreement. An agreement between an employer and an
individual employee lapses after one year if it was concluded at the commencement of or
within the first three months of employment.

Per day Per week Remuneration

No limit on overtime Maximum of 10 hours over- 1½ hourly rate
hours per day. It should time per week. A collective or
be borne in mind, how- agreement may increase
ever, that an employee is overtime hours to 15 hours parties can agree to normal hourly
not allowed to work for per week. The increased rate plus paid time off at the rate
more than 12 hours per overtime hours may apply of 30 minutes for every hour of
day including both ordin- for a maximum of 2 months overtime worked
ary and overtime hours in any 12-month period or
parties can agree to no pay and
only paid time off at the rate of 90
minutes for every hour of over-
time worked

The BCEA does not place any limit on overtime hours per day. However, the Act stipulates
than an employee may not work for more than 12 hours on any day. The 12 hours include
ordinary working hours and overtime.
A collective agreement may allow for ordinary working hours and overtime to be aver-
aged over a period of four months (see par 3.8).
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
Mine Health and Safety Act) and after consultation with the ECC (s 13).
Sunday work is considered as overtime if an employee does not ordinarily work on Sun-
days. Thus, when the maximum weekly overtime hours are calculated, the hours worked on
a Sunday must be included.

3.7 Compressed working week (s 11)

A written agreement between the employer and employee may allow the employee to work
a maximum of twelve hours per day without receiving overtime pay, provided that the em-
ployee does not work more than 45 ordinary hours or more than 10 hours’ overtime in any
week or on more than five days in any week. This allows for employees to work a com-
pressed 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 over-
time rates.
54 A Practical Guide to Labour Law

3.8 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 the average ordinary hours not exceed-
ing 45 hours per week and the average overtime not exceeding five hours per week.
The first two collective agreements providing for averaging working hours each lapse
after 12 months, that is, 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.

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

In terms of section 14 an employee must have a meal interval of at least one hour after five
hours of continuous work. By agreement, the parties may reduce the meal interval to not
less than 30 minutes or dispense with a meal interval if the employee works fewer than six
hours per day.
The meal interval is unpaid, but an employee must be remunerated if he is required to
work or to be available for work during the meal interval. Payment is also required for any
portion of a meal interval exceeding 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 con-
secutive hours between ending and recommencing work is prescribed, while the weekly rest
period must be 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.
In respect of weekly rest periods, such an agreement may provide for a rest period of at
least 60 consecutive hours every two weeks. Alternatively, 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. Daily rest periods may be reduced to 10 hours in the case of an
employee who lives on the premises of his workplace and whose meal intervals last for at
least three hours.

3.10 Work on Sundays and public holidays (ss 16 and 18)

Section 16 regulates Sunday work and section 18 work on public holidays. Special permis-
sion from the Department to work on Sundays is no longer required as was required by the
previous Act. Work on public holidays may be performed only by agreement between em-
ployer and employee.

Sunday work Public holiday work

• If an employee ordinarily works on Sun- An employee who works on a public holiday
days he must be paid 1½ times his hourly must be paid:
rate. • at least double his daily rate; OR
• If an employee does not ordinarily work
• his normal daily rate plus the amount for
on Sundays he must be paid double his
actual time worked,
hourly rate.
whichever is the greater.
 In both instances the employee must re-
ceive at least an ordinary day’s wages or the
rates referred to, whichever is the greater
amount.
continued
Basic Conditions of Employment Act 75 of 1997 55

Sunday work Public holiday work

• The parties may agree on the ordinary rate These payments are in respect of public holi-
plus time off, i.e. the employee who works days that fall on days that would otherwise
on a Sunday receives his ordinary hourly have been working days.
rate and is given paid time off equivalent
to the difference in value between the
ordinary wage received and the wage the
employee is entitled to in terms of the
above 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.

3.11 Night work (s 17)

Section 17 regulates night work. Two types of night work are catered for, each attracting dif-
ferent obligations for employers:
• “night work” is defined as work done between 18:00 and 06:00. The employer must pay
to the employee an allowance, which may be a shift allowance or which may take the
form of reducing working hours. Transportation must be available between the employ-
ee’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 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 must inform him 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 haz-
ards and, where practicable, transfer the employee to suitable day work if he suffers from
a health condition associated with the performance of night work.

3.12 Leave (ss 19–27)

Sections 19 to 27, contained in Chapter 3 of the Act, regulate leave which includes annual
and sick leave, maternity leave and family responsibility leave. These provisions do not apply
to employees who work less than 24 hours per month or who are granted leave in excess of
the statutory minimum leave, unless an agreement provides otherwise.
3.12.1 Annual leave
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
• A 12-month leave cycle
• A minimum of 21 consecutive days’ leave per year
• The parties may conclude an agreement which provides for leave of at least one day for
every 17 days of completed work or one hour for every 17 hours worked
• Leave is extended by one day for every public holiday which falls within the leave period
56 A Practical Guide to Labour Law

Remuneration in respect of leave must be paid to the employee on the last day of work
before the leave period commences or, by agreement, on the usual pay day.
Annual leave must be granted to the employee within the first six months of completion
of the leave cycle or in accordance with an agreement between the parties. Leave must be
taken and may not be “traded” for money, but if an employee has leave to his credit upon
termination of employment, such leave must be paid out.
Annual leave may not run concurrently with a period of notice to terminate services or
any period of leave the employee is entitled to, except during a period of unpaid leave. This
means annual leave may not run concurrently with a period of paid sick leave, maternity
leave or family responsibility leave that the employee is entitled to.

3.12.2 Sick leave

Sick leave is provided for in sections 22 to 24. Sick leave is based on a three-year cycle and is
leave with full pay.
Sick leave
• Leave with full pay
• A 36-month leave cycle
• An employee is entitled to a number of days paid sick leave equal to the number of days he
would normally work in a period of six weeks, e.g. 30 days’ sick leave if an employee works
five days per week
• 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.
The 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 or the Occupational Diseases in Mines and Works
Act, unless compensation is not paid to the employee in terms of these Acts.

3.12.3 Maternity leave

Maternity leave is regulated by sections 25 and 26 of the Act.
Maternity leave
• Four consecutive months’ maternity leave
• Leave commences at any time from 4 weeks before the expected date of confinement 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 6 weeks after the birth of her child, unless a medical practi-
tioner 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
Basic Conditions of Employment Act 75 of 1997 57

Unless unable to do so, 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.
The BCEA does not prescribe payment for maternity leave. In other words maternity
leave is unpaid leave. However, an employee is entitled to claim maternity benefits in terms
of the Unemployment Insurance Act. It is possible, though, that she may conclude an
agreement with her employer to provide for payment or a union can, through collective
bargaining, conclude a collective agreement that provides for paid maternity leave.
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 practicable, alter-
native employment is to be offered to the employee during her pregnancy and for six
months thereafter at conditions not less favourable than her normal conditions of employ-
ment.

3.12.4 Family responsibility leave

Section 27 introduces family responsibility leave.

Family responsibility leave

• Employees are entitled to three days’ paid leave per annual leave cycle for the birth, illness
or death of a child or the death of a spouse, life partner, parent, grandparent, grandchild
or sibling
• Only employees who work for four days or more per week are entitled to this leave and
they become so entitled once the first four months of employment have been completed
• Before paying an employee for family responsibility leave, the employer may require proof
of the event for which leave was sought
• Unused days do not accrue

3.13 Particulars of employment and remuneration (Ch 4 ss 28–35)

Chapter 4 of the Act as a whole does not apply to an employee who works less than 24 hours
per month for an employer. Employers who employ fewer than five employees are exempt
from some of the provisions of Chapter 4.
In terms of section 29 an employer is required to provide in writing certain information
to an employee upon the latter’s appointment. This information relates to the particulars of
the employer and employee, the employee’s occupation and place of work, the date of com-
mencement 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 specified period,
the date when employment is to terminate, council or sectoral determinations applicable to
the employer’s business and a list of any other documents that form part of the contract of
employment.
An employer with fewer than five employees does not have to supply the latter two. Where
the employee does not understand the written particulars, it must be explained to him in a
language he understands.
Every employer is required to keep a record of each employee’s name and occupation,
time worked and remuneration paid and the date of birth of any employee under 18 years
of age. 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 records.
The rights of employees must be displayed in all the official languages spoken in the work-
place, except in the workplace of an employer who employs fewer than five employees.
58 A Practical Guide to Labour Law

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 for which the
remuneration is payable or the termination of the contract of employment. With each pay-
ment the employer must give the employee information in writing about his gross pay, in-
cluding pay for overtime, Sundays and public holidays and all deductions made from the
pay.
Wages are calculated by reference to the number of hours an employee ordinarily works.
An employee is: (a) deemed to work 45 hours in a week, unless the employee ordinarily
works less hours in a week; and (b) 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 remuner-
ation or wage. Conversely, the weekly wage is four-and-a-third of the monthly remuneration.
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 re-
muneration or wage during the preceding 13 weeks.
The Minister may, by notice in the Gazette and after consultation with the ECC and NED-
LAC, determine whether a particular category of payment, in money or in kind, forms part
2
of an employee’s remuneration. The Minister issued a regulation in this regard in 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;
• 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).
Excluded from this calculation are the following:
• 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 he agrees thereto
or unless a deduction is required or permitted by law, a collective agreement, a court order
or an arbitration award. An employee may agree that a deduction be made 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;

________________________

2 GN 691 of 23 May 2003.

Basic Conditions of Employment Act 75 of 1997 59

• 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.
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 re-
ceived, except for overpayments made as a result of an error in calculating his remunera-
tion. The employer may also not require or permit an employee to acknowledge receipt of
an amount greater than the remuneration actually received.
The new 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 contribu-
tion 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.

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

Chapter 5 of the Act does not apply to an employee who works less 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.
60 A Practical Guide to Labour Law

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 Labour Relations Act or any other
law. Neither is the right of an employer or an employee to terminate a contract of employ-
ment 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 accommoda-
tion 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 an employee (s 40):
• for overtime not yet paid or any paid time off that the employee is entitled to in respect
of overtime or Sunday work 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, which-
ever is the more favourable to the employee. This provision is applicable only if the em-
ployee has been in employment longer than four months;
• notice pay if the notice period is not worked;
• any outstanding wages/salary; and
• if an employee is dismissed for the operational requirements of his employer (re-
trenched) or if the employee loses his job because of the employer’s insolvency, severance
pay must also be paid to the employee in terms of section 41.
In terms of section 41 of the BCEA an employee must receive severance pay (in addition to
other payments due) if his services are terminated because of the operational requirements
of the employer or the insolvency of the employer in terms of section 38 of the Insolvency
Act 24 of 1936. 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 employ-
ee’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 writ-
ing 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 oper-
ational requirements, it may determine the amount of severance pay. (Originally the pro-
visions relating to severance pay were contained in section 196 of the Labour Relations Act.
Section 196 has since been repealed and those provisions have been included in section 41
of the BCEA.)
Upon termination of employment an employee must be given a certificate of service con-
taining the following information:
• the employee’s full name;
• the name and address of the employer;
• a description of any council or sectoral employment standard by which the employer’s
business is covered;
Basic Conditions of Employment Act 75 of 1997 61

• the date of commencement and date of termination of employment;

• the title of the job or a brief description of the work for which the employee was em-
ployed at date of termination;
• the remuneration at date of termination; and
• if the employee so requests, the reason for termination of employment.

3.15 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, on the advice of the ECC, impose conditions on or prohibit the work of chil-
dren 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. Sec-
tion 44(1A) enables the Minister to make regulations to give effect to South Africa’s interna-
tional 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 well-
being, 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.

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

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

3.16.1 Variation by agreement (s 49)

Bargaining council agreements take preference over other collective agreements and the
latter in turn take preference over individual agreements.
• Bargaining council agreements may vary, replace or exclude any condition of employment,
provided it does not reduce the protection afforded to employees who perform regular
night work, reduce an employee’s entitlement to maternity leave or reduce an employee’s
annual leave to less than two weeks. A council agreement may also not reduce the em-
ployer’s duty to arrange working time with due regard to health, safety and family respon-
sibilities and may not conflict with the prohibitions on child and forced labour.
• Other collective agreements may replace or exclude a basic condition of employment to the
extent permitted by the BCEA or a sectoral determination. Examples of conditions of
employment that may be varied include overtime, weekly rest periods, Sunday work and
sick leave pay.
• Individual agreements or contracts of employment may vary conditions of employment
within the limits set by the Act or a sectoral determination, such as overtime, weekly rest
periods, Sunday work and sick leave pay.
62 A Practical Guide to Labour Law

3.16.2 Ministerial determinations (s 50)

The Minister may make a determination to replace or exclude any basic condition of em-
ployment contained in the BCEA. Such a ministerial determination may be made at the Minis-
ter’s own initiative and on advice of the ECC or on application by an employer and/or a
registered employer’s organisation. In the latter instance the employer or employers’ organ-
isation must obtain the consent of the registered trade union representing the employees
who will be affected by the determination. If such consent cannot be obtained the employer
or employers’ organisation must serve a copy of the application on the union. The employer
must also take reasonable steps to notify his employees of the application if they do not
belong to a union. Once a determination has been made by the Minister, an employer must
notify his employees accordingly and hand a copy thereof to every registered union and
union representative in the workplace.
A ministerial determination in respect of ordinary hours of work may be made only if the
employees’ ordinary working hours, overtime, meal intervals, rest periods and annual leave
are on the whole more favourable than the provisions contained in the Act and if the
determination has been agreed to in a collective agreement, if it is necessitated by the
operational circumstances of the sector or if it applies to the agricultural or private security
sectors.
A ministerial determination may not be made in respect of the regulation of working
time for health and safety reasons, the protection afforded to employees who perform regu-
lar night work, maternity leave and the prohibition of child and forced labour. The Minister
may make a determination to regulate the employment of children only in advertising,
sports, artistic or cultural activities.
An example of a ministerial determination, varying the provisions of the Act, is the one
applicable to small businesses that was issued in November 1999 (GG 20587, 5 November
1999).
In terms of the determination the following provisions apply in the case of an employer
who employs fewer than 10 employees:
• overtime: employees are allowed to work a maximum of 15 hours overtime per week. Pay-
1
ment in respect of the first 10 hours so worked, is 1 /3 (one-and-one third) of the hourly
rate. Hours in excess of 10 hours are paid at 1½ times the hourly rate;
• averaging of hours: ordinary hours and overtime may be averaged over a period of four
months, provided the ordinary hours do not exceed 45 hours per week and overtime
hours do not exceed 10 hours per week;
• leave: by means of a written agreement an employee’s annual leave may be reduced by
the number of days of family responsibility leave on full pay that has been granted to that
employee.
The above-mentioned variations do not apply to domestic workers or in instances where the
employer conducts more than one business.

3.16.3 Sectoral determinations (Ch 8 ss 51–58)

The Minister may make a sectoral determination, establishing basic conditions of employ-
ment and minimum wages for employees in a particular sector and area.
In terms of the new section 55(8) the Minister may make a sectoral determination that
will apply to employers and employees not covered by any other sectoral determination.
Before making a sectoral determination, the Minister must direct the Director-General to
investigate the existing conditions of employment in the sector and area concerned. The
Minister determines the terms of reference for the investigation and publishes the terms in
the Government Gazette, inviting written representations by members of the public. An inves-
tigation can also be conducted at the written request of an employer organisation or em-
ployee organisation in a sector and area. The request is submitted to the Minister and he
instructs the Director-General to conduct an investigation.
Basic Conditions of Employment Act 75 of 1997 63

The Director-General conducts the investigation by questioning any person who may be
able to provide relevant information and requiring any employer or employee in the sector
and area to furnish any information, book, document or object that is material to the in-
vestigation. On completion of an investigation and after considering representations made
by members of the public, the Director-General must prepare a report. A copy of the report
is submitted to the ECC for its consideration.
The ECC considers aspects such as the cost of living, alleviation of poverty, conditions of
employment, wage differentials and inequality and prepares a report. The ECC must in-
clude in its report recommendations on matters which should be included in a sectoral
determination. After considering the ECC’s report and recommendations the Minister may
make a sectoral determination or refer it back to the ECC for reconsideration.
When the Minister makes a sectoral determination it is published in the Government
Gazette and binds employers and employees in that sector and area. Every employer must
keep a copy of the determination at the workplace. A sectoral determination takes prece-
dence over the BCEA and remains binding until it is amended or superseded by a new
sectoral determination.
A sectoral determination generally includes the following:
• 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 em-
ployers’ premises;
• travelling and other work-related allowances;
• minimum conditions of employment for trainees;
• 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
• a sectoral determination for the agricultural sector may, for the purposes of the Land Re-
form (Labour Tenants) Act 3 of 1996, specify methods for determining the value of a
labour tenant’s right to occupy or use part of a farm.
The Minister has already 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 Octo-
ber 2000);
• Sectoral Determination 5: Learnership (GN 519 of 15 June 2001);
64 A Practical Guide to Labour Law

• Sectoral Determination 6: Private Security Sector, South Africa (GNR.1250 of 30 November

2001, corrected by GNR.879 of 9 September 2005), which repealed Sectoral Determin-
ation 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 Decem-
ber 2002);
• 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
• Sectoral Determination 13: Farm Worker Sector, South Africa (GNR.149 of 17 February
2006), which repealed Sectoral Determination 8.
The Minister may not make a sectoral determination in respect of employers and employ-
ees who are bound by a bargaining council collective agreement. If, however, a collective
agreement is concluded after a sectoral determination has come into operation, the collect-
ive agreement will prevail and the sectoral determination ceases to exist. The Minister may
also not make a sectoral determination on a matter that is regulated by a sectoral determin-
ation which has been in effect for less than 12 months.
The Minister may further not make a sectoral determination in respect of the employ-
ment of children above 15 that will risk the child’s well-being, education, health or develop-
ment. A sectoral determination in respect of children under 15 or under the school-leaving
age may be made only to allow for their employment in the performance of advertising,
sports, artistic or cultural activities. Such a determination has been made and is known as
Sectoral Determination 10: Children in the Performance of Advertising, Artistic and Cultural Activ-
ities, 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 deter-
mination. The Code does not impose any legal obligation, but provides guidelines to em-
ployers.

3.17 Employment Conditions Committee (Ch 9 ss 59–62)

The Wage Board was established in terms of the Wage Act 5 of 1957. The Wage Act was
replaced by the BCEA of 1997, with the result that the Wage Board was abolished and the
Employment Conditions Commission (ECC) took its place.
The ECC is established with the primary aim of advising the Minister on sectoral deter-
minations, matters concerning basic conditions of employment and matters arising out of
the application of the Act. The ECC will also advise the Minister on the effect of the policies
of the government on employment, the trends in collective bargaining and whether any of
those trends undermine the purposes of the Act. Advice is also given to the Minister for
Welfare and Social Development on any matter concerning the employment of children
and to the Minister for the Public Service and Administration on any matter concerning
basic conditions of employment in the public service.
The ECC comprises three persons who are appointed by the Minister after consultation
with NEDLAC. Another two persons, nominated by organised business and labour on
NEDLAC, are also appointed to the ECC. The members of the ECC must have knowledge
of the labour market and conditions of employment, including the conditions of employ-
ment of vulnerable and unorganised workers.
Basic Conditions of Employment Act 75 of 1997 65

3.18 Monitoring and enforcement of legal provisions

(Ch 10 ss 63–73)

One of the most radical departures from the previous system is that the monitoring and
enforcement of employment conditions are transferred from the criminal justice system to
the administrative system and the Labour Court. Administrative enforcement is promoted
by investing labour inspectors with wide powers of entry and investigation and empowering
them to issue compliance orders against employers who fail to comply with the Act. A
labour inspector may enter a private home only with the consent of the owner or occupier
or if so authorised by the Labour Court. Evidence given by a person to an inspector may not
be used against that person in any criminal proceedings, except proceedings in respect of a
charge of perjury.
Labour inspectors and accredited bargaining council agents may promote, monitor and
enforce compliance with employment laws by advising employers and employees of their
rights and obligations in terms of any employment law. They may further conduct inspec-
tions, investigate complaints and endeavour to secure compliance with employment laws by
securing undertakings from employers or issuing compliance orders.

Written undertaking (s 68)

A labour inspector who has reasonable grounds to believe that an employer has not complied
with any provision of the Act may endeavour to secure from the employer a written under-
taking to comply. This may be done by meeting with or serving a prescribed document on the
employer.
An inspector may seek to obtain an agreement between an employer and employee as to any
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 re-
quest, to receive payment on his behalf.
In terms of section 68(3) the Director-General may apply to the Labour Court for an order
directing the employer to comply with a written undertaking should the employer fail to
comply, fully or in part, with that undertaking.
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 Act 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;
• any provision 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;
• any steps that the employer is required to take, including the cessation of the contraven-
tion in question and the period within which those steps must be taken;
• the maximum fine that may be imposed upon the employer’s failure to comply;
• the date by which the employer should serve any representations it may wish to make with
the Department and the Labour Court; and
• the date on which, should the employer not comply with the order, application may be
made without further notice to the employer to have the compliance order made an order
of the Labour Court.

An inspector may not issue a compliance order in respect of an amount payable to an em-
ployee:
• if the employee is subject to a collective agreement in terms of which a dispute about
outstanding amounts must be arbitrated;
66 A Practical Guide to Labour Law

• if the employee to whom an amount is owed is a senior managerial employee or an em-

ployee who earns more than the threshold amount determined by the Minister (in terms
of s 6(3));
• if the employee has instituted legal action to recover the outstanding amount, unless
those proceedings have been withdrawn;
• if the amount has been owed to the employee for more than 12 months, which period is
calculated from the date on which the employee lodged a complaint with a labour in-
spector or, if no complaint was lodged, from the date the inspector endeavoured to
secure a written undertaking by the employer or issued a compliance order.
A copy of the compliance order must be served on the employer and each affected employee
(or the employee’s representative). The employer must display a copy of the compliance
order in the workplace.
The Director-General may approach the Labour Court for a compliance order to be
made an order of the court on the date specified in the compliance order (or, with further
notice to the employer, on a subsequent date). The employer concerned can file represen-
tations with the Court before the Court makes its decision. The Labour Court can, after
having considered all representations made by the parties, order the employer to comply
with the provisions of the Act, pay an amount owing to an employee or pay a fine.

3.19 Legal proceedings (ss 74–81)

The Labour Court has exclusive jurisdiction in respect of all matters in terms of the Act.
The Labour Court also has exclusive jurisdiction to grant civil relief arising from a breach
of sections 33A, 43, 44, 46, 48, 90 and 92 of the BCEA.
The Labour Court also has jurisdiction to review the performance of any function pro-
vided for in the BCEA (s 77(2)). The Labour Court has concurrent jurisdiction with the
civil courts to hear and determine any matter concerning a contract of employment, irre-
spective of whether any basic condition of employment constitutes a term of that contract
(s 77(3)).
Disputes about the interpretation or application of Part C of Chapter 10 of the BCEA
(ss 78 and 79), concerning employee rights and their protection, must be referred to a bar-
gaining council with jurisdiction or to the CCMA (if no council has jurisdiction) for concili-
ation. If the dispute remains unresolved after conciliation, it may be referred to the Labour
Court for adjudication (s 80).
If an amount is owing to an employee he may lodge a complaint with the Department of
Labour, approach the Labour Court or institute civil action to recover such amount. Neither
the CCMA nor a bargaining council has jurisdiction to entertain payment disputes. How-
ever, if a payment dispute is consolidated with an unfair dismissal dispute, the CCMA or a
council may determine that dispute. In other words, if an employee is in dispute with his em-
ployer because of payment only, the dispute cannot be referred to the CCMA or a council.
But, if the employee was dismissed and refers a dismissal dispute to the CCMA or a council,
he can combine a claim for payment with his dismissal dispute. Only then can the CCMA or
council determine the claim for payment, provided the claim has not become prescribed
(s 74(2)). Claims for payment ordinarily prescribe after three years. No compliance order
may be issued or enforced and no other legal proceedings may be instituted or enforced in
respect of any claim that has been determined in terms of section 74(2).
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 may be initiated
jointly with a dispute instituted by that employee over the entitlement to severance pay
(s 74(3)).
Basic Conditions of Employment Act 75 of 1997 67

3.20 General
Protection against discrimination (ss 78 and 79): Every employee has the right to lodge a
complaint with his union or a labour inspector about his employer’s alleged failure or
refusal to comply with the Act, discuss his conditions of employment with fellow employees,
refuse to comply with an unlawful instruction, refuse to agree to a conditions of employ-
ment that is contrary to the BCEA or an applicable sectoral determination, inspect any
record in terms of his employment or request a trade union representative or labour in-
spector to inspect such a record and to participate in proceedings in terms of the Act.
Employees, which in this context include former employees and job applicants, are pro-
tected against discrimination for exercising their rights in terms of the Act. No person may
require an employee not to exercise a right or prevent him from exercising a right. An em-
ployee may not be prejudiced because of his past, present or anticipated failure or refusal
to perform an unlawful act, the disclosure of information that he is lawfully entitled to
disclose or the exercise of any right. Nor may any person favour or promise to favour an
employee in exchange for that employee not exercising his rights. This, however, does not
preclude parties to a dispute from concluding an agreement to settle the dispute.
Temporary employment services (s 82): A temporary employment service 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 con-
tractors are, of course, excluded because they are not employees. The temporary employ-
ment service and the client are jointly and severally liable if the temporary employment
service does not comply with the BCEA or an applicable sectoral determination.
Duration of employment (s 84): For the purposes of determining the duration of an em-
ployee’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.
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 Act or for the pur-
poses of the administration of justice.

Questions
Question 1
Give an exposition of which employees are covered by the Basic Conditions of Employment
Act. Include in your answer the persons who are totally and partially excluded from the
Act. (10)
68 A Practical Guide to Labour Law

Question 2
An office worker is employed by a chocolate manufacturing company, works five days per
week (Monday to Friday) and earns R6 000 per month. Briefly explain the following con-
ditions of employment of this employee in accordance with the BCEA:
2.1 ordinary working hours per day and per week; (2)
2.2 overtime and the remuneration therefor; (4)
2.3 annual leave; (1)
2.4 payment for work on Sundays; (3)
2.5 payment for work on public holidays; (3)
2.6 sick leave; (3)
2.7 maternity leave; (3)
2.8` family responsibility leave; (5)
2.9 lunch intervals; (2)
2.10 notice to terminate services. (4)

Question 3
Refer to question 2 and assume the employee is a sales representative, visiting café’s and
supermarkets to sell his company’s products. Will the conditions of employment in ques-
tion 2 be the same as for the office worker? Explain. (6)

Question 4
4.1 A factory worker works from Monday to Friday for eight hours per day, earning R10
per hour. Calculate the payment he must receive if he worked the following hours on
a Sunday:
(a) 3 hours; (3)
(b) 6 hours; (3)
(c) 10 hours. (3)
4.2 Assume that this employee worked in a hospital (not a factory). He was required to
work any five days of every week, which included Sundays. Will his Sunday pay be cal-
culated in the same manner as for the factory worker? (2)

Question 5
You are the personnel manager of a hotel. You have just interviewed and appointed a young
man as a bar tender. You want him to sign a contract of employment before he assumes
duties on the first day of next month. He will be earning R8 000 per month and work day
and night shifts of eight hours each on five days every week. Draw up a contract of employ-
ment for him in accordance with the BCEA. Any other relevant information and additional
benefits may be included. (20)

Question 6
Xolile started his employment with ABC Printers on 1 February 2010. He works from
Monday to Friday every week.
6.1 Briefly explain his entitlement to paid sick leave. (3)
6.2 On 24 March 2010 he fell ill and his doctor booked him off for ten working days.
Explain whether he is entitled to ten days’ paid sick leave. (3)
6.3 Would your answer be any different if he fell ill and was booked off for ten days on
24 October 2010? Briefly explain. (2)
Basic Conditions of Employment Act 75 of 1997 69

Question 7
Thandi works at Beauty Wise, a health and beauty shop, together with 11 other employees.
7.1 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)
7.2 Advise her employer what payments should be made to Thandi upon her departure
from Beauty Wise. (5)
7.3 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)
7.4 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 8
John is retrenched from B&M Fisheries after 10 years of service. His monthly salary is
R10 000 at the time of retrenchment.
8.1 Calculate the amount of severance pay that must be paid to him. (2)
8.2 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.
8.3 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 re-
trenches him, but pays no severance pay. John is of the opinion that he is entitled
to severance pay. Explain the procedures he must follow to have his dispute
about entitlement to severance pay be resolved. (4)

Question 9
A farmer decides to terminate the services of one of his weekly paid workers after this
worker was absent from work for five days.
9.1 Before he absented himself the worker in question requested the farmer to take him
to a doctor because he was ill. The farmer refused. As a result the worker was unable
to produce a medical certificate and in consequence was not paid for the days he was
absent. Discuss the legal ramifications of the farmer’s conduct. (5)
9.2 Assume that the dismissed worker lived in a house on the farm owned by his em-
ployer. Explain what effect the termination of his services has on his accommoda-
tion. (10)
Hint: See s 39 of the BCEA and s 8 of the Extension of Security of Tenure Act of
1998.
70 A Practical Guide to Labour Law

Question 10
While on annual leave an employee receives a letter informing him that his services have
been terminated. Discuss the legal consequences of this action by the employer. (6)

Question 11
Ten employees work in a bookstore. For the past two years their normal working hours have
been from 08:00 to 16:00. At the manager’s request these employees now have to report for
duty at 07:30 and the manager undertakes to remunerate them for the additional half an
hour. After working the additional half an hour for five weeks, and having received re-
muneration in respect thereof, the employees are told that a mistake has been made, that
they need not work the additional half an hour any longer and that the remuneration which
was paid in respect of the additional hours would be deducted from their next salary cheque.
Discuss the legal position of these employees and explain whether the employer is
allowed to make such a deduction. (5)

Question 12
12.1 The conditions of employment contained in the BCEA can be varied. List the means
by which variation can be effected. (5)
12.2 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, provid-
ing for conditions of employment and minimum wages. Considering this situation,
there are obviously different sets of employment conditions in existence. How will
Lindiwe and her employer know which set of employment conditions applies to
them? Explain and motivate your answer. (10)
12.3 Explain what a sectoral determination is and how such a determination is made. (8)
12.4 List six issues that are normally included in a sectoral determination. (6)
12.5 Several sectoral determinations have been promulgated by the Minister of Labour.
Name five sectors which are currently covered by sectoral determinations. (5)

Question 13
13.1 Explain how compliance with the provisions of the BCEA can be enforced. (10)
13.2 Employees working for a bank often work overtime and during their lunch breaks
without receiving any additional remuneration. Explain what the employees can do
to secure payment for the long hours that they work. (6)

Question 14
Does the Labour Court have jurisdiction to hear disputes concerning a contract of employ-
ment? Motivate your answer by reference to case law. (6)
Hint: See Schoeman v Samsung Electronics SA (Pty) Ltd [1997] 10 BLLR 1364 (LC).

Question 15
An employee often works overtime, but his employer never remunerates him for the over-
time hours.
15.1 Can the employee refer a dispute about non-payment of overtime to the CCMA?
Explain. (3)
15.2 Assume this employee was dismissed. He believes his dismissal was unfair and he
wants payment for the overtime he worked. He approaches the CCMA. Explain
whether the CCMA can entertain both his dismissal dispute and his claim for pay-
ment of overtime. (5)
Basic Conditions of Employment Act 75 of 1997 71

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

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 allow-
ance, etc:
Accommodation: R ..........................
Food: R ..........................
Transport allowance: R ..........................
Use of land etc: R ..........................
Other: R ..........................
continued
72 A Practical Guide to Labour Law

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;
• 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.
continued
Basic Conditions of Employment Act 75 of 1997 73

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.
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.

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, 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
74 A Practical Guide to Labour Law

11. 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.

12. 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.

13. 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
Basic Conditions of Employment Act 75 of 1997 75

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, partic-
ularly 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 work-
places. 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 assess-
ment 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 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)
76 A Practical Guide to Labour Law

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 cir-
culating 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 appro-
priate, 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 inter-
changeable 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 lim-
ited 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.
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.
Basic Conditions of Employment Act 75 of 1997 77

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 em-
ployees 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 installa-
tions 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 agree-
ment 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;3
8.4.3 any psychological, emotional and social stresses experienced by the employee, strate-
gies 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 dis-
orders, 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 em-
ployee.

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.
________________________

3 Among the health conditions that should be investigated are mild asthma; non-insulin-dependent dia-
betes 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 nutri-
tional status.
78 A Practical Guide to Labour Law

10. Management services

10.1 Employers should provide appropriate management services to employees working out-
side 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 depart-
ment. 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 pat-
terns. The need will be greatest if employees are working at night for long periods or perma-
nently; 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 sec-
tion 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.
Basic Conditions of Employment Act 75 of 1997 79

Glossary
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 ele-
ments 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.
80 A Practical Guide to Labour Law

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 breast-
feeding.
1.2 The objective of this Code is to provide guidelines for employers and employees concern-
ing 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 sec-
tion 26(1) of the BCEA which prohibits employers from requiring or permitting pregnant or
breast-feeding 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 work-
places. 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 preg-
nant and breast-feeding employees;
3.2 sets out a method for assessing and controlling the risks to the health and safety of preg-
nant 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.4
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 em-
ployees. 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, as-
sessing the risk that they pose to the health and safety of employees. and recording the results of
the risk assessment.
________________________

4 The relevant provisions establishing this right are section 9(3) and (4) of the Constitution; sec-
tion 187(1) of the Labour Relations Act 66 of 1995 and section 6 of the Employment Equity Act of 1998.
Basic Conditions of Employment Act 75 of 1997 81

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 par-
ticipate 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 child-
bearing 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.5
5.4 Employers should inform employees about hazards to pregnant and breast-feeding em-
ployees 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 work-
place 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 work-
ing 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.

________________________

5 In terms of section 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 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.
82 A Practical Guide to Labour Law

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 con-
trol of:
6.1.1 exposure to noise, vibration, radiation, electric and electromagnetic fields and radioact-
ive 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 em-
ployee’s e needs for health, safety and comfort. A range of ergonomic risk factors may pose haz-
ards 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 em-
ployers 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 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 em-
ployees about, and in any substance to which they are or may be exposed. This must include
Basic Conditions of Employment Act 75 of 1997 83

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 reproduct-
ive 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
6
exposure levels of specific applications for women of childbearing age or pregnant women. In
view of the absence of occupational health standards for the exposure of pregnant or breast-
feeding 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 breast-
feeding 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. Ex-
posure 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 consid-
eration 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.

________________________

6 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 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.
84 A Practical Guide to Labour Law

Appendix 4

Basic Conditions of BCEA 4

Employment Act, 1997
Section 33 PAYSLIP

READ THIS FIRST NAME OF EMPLOYER: ................................................................................

Ð
ADDRESS: .....................................................................................................
........................................................................................................
........................................................................................................
NAME OF EMPLOYEE:.................................................................................
ID NO: ........................................ EMPLOYEE NUMBER: ...........................
OCCUPATION/GRADE: ..............................................................................
PAY PERIOD: FROM .................. TO ...........................................................
WHAT IS THE PUR- BASIC WAGE:................................................................................................
POSE OF THIS FORM? MANNER OF PAYMENT: m PER HOUR m PER DAY m PER WEEK
This form is a record of informa- m PER FORTNIGHT m PER MONTH
tion about remuneration.
Rate No. of Rand
hours earned
WHO FILLS IN
THIS FORM? Ordinary hours worked ......... ............... ..................
Overtime worked ......... ............... ..................
The employer.
Sundays time worked ......... ............... ..................
Public holidays time worked ......... ............... ..................
WHERE DOES THIS
FORM GO? Payment in kind ......... ............... ..................
Allowances (specify) ......... ............... ..................
To the employee.
............................................. ......... ............... ..................
INSTRUCTIONS ............................................. ......... ............... ..................

This information must be given TOTAL R

to each employee –
z At the workplace or at a place DEDUCTIONS: P.A.Y.E. ...........................................................
agreed to by the employee;
and
UIF .................................................................
z during the employee’s ordin- UNION ...........................................................
ary working hours or within OTHER (Full details) ...................................................
15 minutes of the commence-
ment or conclusion of those ........................................................................
hours.
TOTAL R
z The full value of remunera-
tion including payment in
kind must be specified. TOTAL AMOUNT DUE R
z This is only a model and not a
prescribed form. Completing a
document in another format
containing the same informa-
tion is sufficient compliance
with the regulation.
Basic Conditions of Employment Act 75 of 1997 85

Appendix 5

Basic Conditions of BCEA 5

Employment Act, 1997
Section 42
CERTIFICATE OF SERVICE
READ THIS FIRST
I ........................................................................................................

Ð
(name and designation of person)

of

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

address: ............................................................................................
..........................................................................................................
WHAT IS THE PUR-
POSE OF THIS FORM? in the .................................................................................... (trade)
This form is proof of employ- declare that
ment with an employer.
..........................................................................................................
(full name of employee)
WHO FILLS IN
THIS FORM? ..........................................................................................................
(I.D. no.)
The employer.
was in employment

WHERE DOES THIS from .............................................. until ...........................................

FORM GO?
as
To the employee.
..........................................................................................................
(type of work/occupation)
INSTRUCTIONS
..........................................................................................................
This form may be issued upon
termination of employment. any other information .....................................................................

On termination of service this employee was earning: R ...............

NOTE
........................................................................... (amount in words)
In terms of section 42(g) the
reason for termination of em- m per hour m per day m per week
ployment must only be given if
requested by the employee. m per fortnight m per month m per year
This is only a model and not a pre-
scribed form. Completing a docu-
ment in another format con-
taining the same information is .............................................. ...............................................
sufficient compliance with the Employer’s signature Date
regulation.
 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
II 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 Act 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 back-
drop of the Employment Equity Act and should always be considered when studying em-
ployment 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 II of the Constitution, bestows on every South African a num-
ber 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 per-
sons, 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 pro-
hibit 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.

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
equality as a fundamental value that must be upheld.

87
88 A Practical Guide to Labour Law

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

In the old South Africa many people were discriminated against unfairly and measures are
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 dis-
advantaged 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 gen-
eral, 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 discrimin-
ation. Affirmative action is the measure introduced by law to create equal opportunities in
the workplace for all peoples of South Africa.
Affirmative action is 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. For an interesting case of a challenge to
affirmative action see Motala & Another v University of Natal 1995 (3) BCLR 374 (D). See also
Minister of Finance & Another v Van Heerden 2004 (6) SA 121 (CC).

4.2.3 The anti-discrimination clause (s 9(3) and (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 treat-
ment 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 Em-
ployment 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.
It is not differentiation as such that is prohibited by the Constitution and the Employ-
ment Equity Act, 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).
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 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 discrimin-
ation occurs where a person is treated differentially 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 disadvan-
tage 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
Employment Equity Act 55 of 1998 89

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 Air-
ways 2001 (1) SA 1 (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 discrimina-
tion 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 s 9(3), the onus rests with the per-
son 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.

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 Act is to achieve
equity in employment through promoting equal opportunities and fair employment prac-
tices. This can be done through the elimination of unfair discrimination and the implemen-
tation 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 affirmative-
action measures to achieve equitable representation at all occupational levels. Designated
employers must further take measures to progressively reduce disproportionate income
90 A Practical Guide to Labour Law

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 and one can expect constitutional
challenges to certain aspects of the Act, as well as to employers’ interpretation and im-
plementation 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 organisa-
tion 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).
The ends of employment equity can broadly be described as a situation where all people
truly have an equal chance 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 II (the prohibition of unfair discrimination) and Chapter III (affirmative-action
measures) of the Act.

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 Ser-
vice, 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 II of the Act, which prohibits unfair discrimination, applies to all employees and
employers. All employers must take steps to promote equal opportunity in the workplace
and to eliminate unfair discrimination in employment policies and practices. Job applicants
are, for the purposes of Chapter II, regarded as “employees” and can rely on the provisions
of Chapter II if they allege that their non-appointment to a post was based on unfair dis-
crimination.
Chapter III of the Act requires affirmative action to be implemented and applies to “des-
ignated employers” and people from “designated groups” only.
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 Sched-
ule 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 III
of the Act 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 III as if it were a designated employer (s 14); and
• if the Labour Court decides that an employer has unfairly discriminated against any
employee, the Court may make an order directing an employer to comply with Chap-
ter III as if it were a designated employer (s 50(2)(d)).
Employment Equity Act 55 of 1998 91

Designated groups are:

• black people, which is used in a broad context to include Africans, Coloureds and In-
1
dians;
• 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 naturalisa-
tion 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 Act distinguishes between Africans, Coloureds and Indians and between
blacks, women and people with disabilities, no preferential ranking is specified. No pro-
vision is made for compound groups, such as black women.

4.5 Chapter II – 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: discrimin-
ation 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.
In the employment context this definition implies the following:
• 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 out-
standing performance, whilst not rewarding others. This means that differentiation
based on merit is not unfair.

4.5.2 Provisions of Chapter II

Chapter II 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 pol-
icy 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)).
________________________

1 Chinese people have been declared part of the designated groups following the decision in Chinese Asso-
ciation of South Africa & Others v The Minister of Labour & Others, case no. 59251/2007.
92 A Practical Guide to Labour Law

Harassment on any one or a combination of the grounds referred to is considered a

form of unfair discrimination (s 6(3)). So is a difference in terms and conditions of em-
ployment 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 may by way of regulation
prescribe the criteria and methodology for assessing “work of equal value”. Employers are
thus 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 guidelines that may be published by the Minister, in
accordance with the provisions of a sectoral determination or other legislation or by way of
collective bargaining. Two forms of discrimination are not considered unfair and are
consequently allowed: affirmative action and differentiation based on the inherent re-
quirements of a job (s 6(2)).
Testing of an employee for any medical condition is prohibited, unless legislation per-
mits or requires testing or where it is justifiable to do so in light of medical facts, employ-
ment 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 scientifi-
cally 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 Profes-
sions 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, must be dealt with
in terms of Chapter II of the Employment Equity Act. Initially these provisions formed part
of Schedule 7 of the Labour Relations Act of 1995, but have been removed and are now
included in section 10 of the EEA.
Note that disputes over alleged unfair dismissals are dealt with in terms of the Labour
Relations Act 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/she has made a reasonable attempt to resolve the dispute. A late referral may be
condoned.
The CCMA must attempt to resolve the dispute through conciliation. If the dispute re-
mains 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 discrim-
ination disputes by the CCMA is possible under certain circumstances. Instead of approach-
ing 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
threshold determined by the Minister in terms of section 6(3) of the BCEA (currently
R205 433-30). A CCMA award is appealable to the Labour Court within 14 days from the
date of the award.
Employment Equity Act 55 of 1998 93

Sexual harassment disputes:

Adjudication Arbitration

Refer to Labour Court OR Refer to CCMA

Dispute unresolved

Conciliation

CCMA (not council)

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,
not unfair and justifiable. If unfair discrimination is alleged on an arbitrary ground the
employee must prove that the conduct complained of is not rational, amounts to discrimi-
nation and is unfair.

4.6 Chapter III – Affirmative action

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 repre-
sented 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.
94 A Practical Guide to Labour Law

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) and (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 en-
sure 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 desig-
nated 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 his 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 submit-
ted to the Director-General.
CONSULT
(ss 16–18) • The employer must consult with trade unions,
workplace forums and representatives of non-
union employees.
• The employer has to disclose relevant infor-
mation that will allow effective consultation.

• The employer must conduct an analysis of its

employment practices, policies and pro-
cedures and identify employment barriers.
ANALYSIS
(s 19) • The analysis must include a profile of the
workforce within each occupational level and
under-representation must be identified.
continued
Employment Equity Act 55 of 1998 95

• The employer must prepare and implement

an equity plan, which must include the fol-
lowing:
– the objectives to be achieved for each
year of the plan;
– the affirmative-action measures to be
implemented;
– the numerical goals to achieve the equit-
able 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;
EQUITY PLAN – the timetable for each year of the plan
(s 20) for the achievement of objectives other
than numerical goals;
– the duration of the plan (not shorter than
one year and not longer than five years);
– the procedures for monitoring and evalu-
ating the plan and whether reasonable
progress is being made;
– the internal dispute resolution procedures
to resolve disputes about the interpret-
ation or implementation of the plan;
– the persons, including senior managers,
responsible for monitoring and imple-
menting the plan.
• The plan must be displayed at the workplace
and made available to employees.

• Designated 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 employ-
ers 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.
REPORT TO • The report has to refer to progress made in
DG (ss 21 and 22) the implementation of affirmative action and
must include information on the remuner-
ation and benefits received in each occupa-
tional level*.
• The report is a public document.
• A public company must publish the report in
its annual financial report.
• A report in respect of an organ of state is to
be tabled in Parliament.

* 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
96 A Practical Guide to Labour Law

Employment Conditions Commission, relevant measures contained in skills development legis-

lation and/or other measures that are appropriate in the circumstances (s 27). This informa-
tion 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 IV)

The Commission for Employment Equity (CEE) is established in terms of Chapter IV 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 stake-
holders in NEDLAC (s 29).
The CEE is, in the main, an advisory body. It advises the Minister on codes of good prac-
tice, regulations made by the Minister and policy and any other matter concerning the Act.
It may research and report to the Minister on any matter relating to the Act and award em-
ployers 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 V)

In terms of Chapter V of the Act employees, trade unions, labour inspectors, the Director-
General and the Labour Court play a role in monitoring compliance with the Act. Any em-
ployee 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 Act. 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 work-
places 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
Employment Equity Act 55 of 1998 97

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 com-
ply 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 Act and to conduct a review 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 desig-
nated 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 qual-
ified people from the designated groups are equitably represented within each occu-
pational 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 a copy of its analysis, equity plan or any other relevant document; request a meet-
ing 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 compli-
ance 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 recom-
mendation, the Director-General must institute proceedings in the Labour Court. If pro-
ceedings 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 interpret-
ation 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 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
98 A Practical Guide to Labour Law

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 III 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 test-
ing 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 in terms of Chapter II 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 in terms of Chapter
II 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 V 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 partici-
pating 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 prom-
ise to favour an employee in exchange for not exercising any right or not participating in
any proceedings.
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 adju-
dication. 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 perform-
ance of any function in terms of the Act constitutes a criminal offence, unless such disclo-
sure 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 Chap-
ters 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 em-
ployer 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
Employment Equity Act 55 of 1998 99

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 contraven-
tion of certain provisions of the Act.

Questions

Question 1
John applies for a job with XYZ Company and is invited to a selection interview. At the
conclusion of the interview the interviewer tells him that, although he is the best candidate,
he will not be appointed as the company has a policy of not employing people of colour.
The interviewer is very apologetic and points out that if John did not have an English
surname he would not have been invited for an interview in the first place. Describe the
appropriate dispute resolution procedure for this dispute and compare it with the appro-
priate procedure applicable if: (a) John was dismissed; and (b) if John was refused promo-
tion because of his race. (20)

Question 2
A hospital superintendent is informed by a female radiologist that she is pregnant.
2.1 May the hospital terminate her services on the grounds that her work exposes her to
radiation which may endanger the life of her unborn child? (3)
2.2 May the hospital refuse to re-employ her after her confinement? (3)

Question 3
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
and section 187 of the LRA. (10)

Question 4
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 expec-
tancy 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 5
Assume that the Department of Correctional Services has a minimum job specification that
all prison guards should weigh not less than 70 kilograms and be at least 1,7 metres tall.
Assume further that national statistics from the Department of Central Statistical Services
show that these requirements exclude 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 reject-
ed on the grounds that she does not meet the minimum height and weight requirements.
5.1 Discuss whether the Correctional Services regulation amounts to unfair discrimin-
ation. (10)
5.2 Discuss why, if it does amount to unfair discrimination, the employer would not be
able to rely on the “business necessity” justification. (10)
100 A Practical Guide to Labour Law

Hint: Discuss indirect discrimination and the difference between providing a rational basis
for discrimination and adducing empirical proof of the relationship between a job specifi-
cation and the inherent requirements of a particular job.

Question 6
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 suc-
ceeding in his claim based on unfair discrimination. (10)
Hint: See Langemaat v Minister of Safety and Security & Others 1998 (4) BCLR 444 (T).

Question 7
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 busi-
ness necessity. Discuss Andy’s prospects of being successful in claiming unfair discrimin-
ation and the airline’s defence. (10)

Question 8
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 9
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 hold at least 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 technikon 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 engin-
eering within one year and register as a professional engineer one year later.
9.1 Assume that this applicant is not appointed. Write a brief in support of his appli-
cation to the Labour Court, challenging the employer’s failure to appoint him by ref-
erence to appropriate provisions of the Employment Equity Act. Also formulate the
employer’s replying affidavit. (15)
9.2 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 pro-
cedures to be followed in each case. (20)
Hint: See George v Liberty Life Association of Africa Ltd [1996] 8 BLLR 985 (IC).
Employment Equity Act 55 of 1998 101

Question 10
A company advertises the position of an administrative department head. The advertise-
ment 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 11
In comparison with other job applicants Thabo is clearly the best qualified and experienced
person for the job. However, he is not appointed because of his obesity. The recruitment
officer informs him that the company does not have a place for a 300 kg freak. Thabo’s
obesity does not have any known medical cause; he is simply very fat.
11.1 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)
11.2 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 12
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 examin-
ation 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 non-
appointment 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 13
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 employ-
ees 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.)
13.1 Briefly explain whether the outlets owned by Mr Khumalo are “designated em-
ployers”. (2)
13.2 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)
13.3 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 whatso-
ever) and she has a diploma in medical technology. When they hear about Ms Zuma’s
102 A Practical Guide to Labour Law

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 experi-
ence in a large company and in the head office of Spur Steak Ranches, totalling seven
years. When Mr Naidoo and Ms Van der Merwe raise the issue of unfair discrimin-
ation, 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 14
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 exception-
ally 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 15
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.
15.1 Consider both the employer’s and Mr Marley’s arguments and explain whether the
employer is unfairly discriminating against Mr Marley. (10)
15.2 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)
15.3 Assume that Mr Marley was dismissed because of his refusal to cut his hair. He main-
tains his claim of unfair discrimination. How will the dispute resolution procedures in
this case differ from your answer in 17.2? Explain. (5)
Hint: See Department of Correctional Services & Another v Police & Prisons Civil Rights Union &
Others (2011) 32 ILJ 2629 (LAC).
Employment Equity Act 55 of 1998 103

Question 16
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 17
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 18
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).
104 A Practical Guide to Labour Law

Question 19
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 conse-
quently terminated his employment. Do the actions of Easy PC amount to unfair discrimin-
ation? (5)
Hint: See Atkins v Datacentrix (Pty) Ltd (2010) 31 ILJ 1130 (LC).

Question 20
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 work-
ing 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 dis-
pute 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 con-
sensual 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)
Employment Equity Act 55 of 1998 105

Appendix 1

Sector or sub-sectors in accordance with the Total annual

Standard 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
Transport, Storage and Communications R30 m
Finance and Business Services R30m
Community, Social and Personal Services R15 m
106 A Practical Guide to Labour Law

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 in-
clude:
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 prohib-
ited 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 em-
ployee and constitutes a barrier to equity in the workplace, taking into account all of the follow-
ing 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.

Employment Equity Act 55 of 1998 107

4.3 the nature and extent of the sexual conduct; and

4.4 the impact of the sexual conduct on the employee.

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 con-
tact, 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 sex-
ual 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 har-
assment 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 en-
gagement, promotion, training, discipline, dismissal, salary increments or
other benefits) by coercing or attempting to coerce an employee to sur-
render 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.
108 A Practical Guide to Labour Law

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 com-
plainants 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:
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 cre-
ating 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 em-
ployees.
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 determin-
ing 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 gen-
der 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 com-
plainant or any other person aware of the sexual harassment, for example a friend,
Employment Equity Act 55 of 1998 109

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
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 coun-
selling 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 man-
ner 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 man-
agement who complainants may approach for confidential advice and/or counsel-
ling. 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 pro-
cedure 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 pro-
cedure;
8.5.1.5 advise the complainant that the matter will be dealt with confidentially if
the complainant so chooses.
110 A Practical Guide to Labour Law

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 perpetra-
tor that the conduct in question is not welcome, that it offends the com-
plainant, makes him or her feel uncomfortable and that it interferes with
his or her work; or
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 unwel-
come, 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 deal-
ing 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 em-
ployer 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 em-
ployer 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 pro-
cedure, 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 out-
line 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 pro-
cedures 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 com-
plainant 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 serious-
ness 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 warn-
ings, as well as for serious instances of sexual harassment;
8.8.3 in appropriate circumstances upon being found guilty of sexual harassment, a per-
petrator may be transferred to another position in the workplace.

9. Confidentiality
9.1 Employers and employees must ensure that grievances about sexual harassment are investi-
gated and handled in a manner that ensures that the identities of the persons involved are
kept confidential.
Employment Equity Act 55 of 1998 111

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, wit-
nesses 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

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 seri-
ous sexual harassment, where the employee, on medical advice, requires trauma counsel-
ling.
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.
112 A Practical Guide to Labour Law

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 re-
sponses in order to manage HIV and AIDS, TB and STIs in the world of work within the frame-
work 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 person-
al problems that might adversely impact their work perfor-
mance, health, and well-being;
“the Act” : means the Employment Equity Act, 1998 (Act No. 55 of 1998);
“HIV” : means the Human Immunodeficiency Virus, a virus that
weakens the human immune system;
continued
Employment Equity Act 55 of 1998 113

“Informed consent” : means a process of obtaining consent from a patient/worker

to ensure that the person fully understands the nature, impli-
cations 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 work-
ing environment that enables a person living with HIV and
AIDS to have access to or participate or advance in employ-
ment;
“STIs” : means Sexually Transmitted Infections which are spread by the
transfer of organism from person to person during sexual con-
tact 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 under-
stand 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, unemploy-
ment 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, employ-
ment 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.
114 A Practical Guide to Labour Law

2.4 HIV thrives in an environment of poverty, rapid urbanisation, violence and destabilisa-
tion. Transmission is exacerbated by disparities in resources and patterns of migration
from rural to urban areas. Women are particularly more vulnerable to infection in cul-
tures 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 em-
ployers, 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 objec-
tives 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 devel-
oped 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 work-
place; 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, includ-
ing –
(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.
Employment Equity Act 55 of 1998 115

5. KEY PRINCIPLES
The guiding principles in this Code are based on International Conventions and Recom-
mendations, The Constitution of the Republic of South Africa and national laws, which in-
clude:
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 ele-
ments 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 oppor-
tunity 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 eve-
ry 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 dis-
proportionately 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, pre-
vent violence and harassment, protect sexual and reproductive health and rights and
involve men and women workers, regardless of their sexual orientation, in the HIV re-
sponse.
5.5 The right to access and continue in employment
Real or perceived HIV status is not a valid cause for termination of employment. Work-
ers 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 compre-
hensive 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 work-
ers 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 co-
operation and trust amongst government, employers and workers and their represen-
tatives. Employers and workers should engage in the design, implementation and
evaluation of national and workplace programmes, with the active involvement of per-
sons living with HIV and AIDS.
116 A Practical Guide to Labour Law

5.9 Occupational Health and Safety

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 confi-
dentiality 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 in-
cludes –
(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 priv-
acy, 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 employ-
ment 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 117

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 justi-
fiable 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 em-
ployer 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 employ-
ment, 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 perform-
ing 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 per-
formed 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 provid-
ed 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.
118 A Practical Guide to Labour Law

7.1 Counselling and Informed Consent

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 deter-
mine 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 under-
take 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 work-
place 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 reason-
able 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 re-
lated 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 em-
ployer or to other workers, this information must not be disclosed to others
without the worker’s express written consent. Where written consent is not pos-
sible, 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 opportun-
ities.
7.4.2 The obligation to make reasonable accommodation may arise when a worker
voluntarily discloses his or her HIV status.
Employment Equity Act 55 of 1998 119

7.4.3 Employers must also accommodate workers when the work or the work environ-
ment 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 –
(a) adapting existing facilities to make them accessible;
(b) adapting existing equipment or acquiring new equipment including com-
puter 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 de-
pendants 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 sec-
tion 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 em-
ployment. 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 em-
ployer 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 em-
ployer 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 confiden-
tiality regarding his or her HIV status is maintained during any incapacity pro-
ceedings. 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.
120 A Practical Guide to Labour Law

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

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 con-
cerns.
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 dif-
ferent 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-to-
child transmission and to understand the importance of changing risk behaviours
related to infection;
(c) effective occupational safety and health measures, including harm-reduction strat-
egies;
(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 appro-
priate information about correct use and the availability of post-exposure prophyl-
axis; 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 rep-
resentatives 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 pro-
vided 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 ill-
nesses, 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 accom-
modation 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 respond-
ing 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.
Employment Equity Act 55 of 1998 121

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.
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 reason-
able accommodation.
8.2.8 Workers with HIV and AIDS should be encouraged to use expertise and assis-
tance from within the organisation for counselling. Where this is not available,
employers may then acquire the necessary assistance and expertise from the out-
side.
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 transmis-
sion of HIV and TB in the workplace.
8.3.4 Every workplace must ensure that it complies with the provisions of the Occupa-
tional 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 work-
place.
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’ expo-
sure 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 contrib-
uting 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 re-
sult 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 stand-
ards 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 in-
formation on HIV and AIDS through vocational training and in youth employ-
ment programmes and services.
122 A Practical Guide to Labour Law

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 inte-
grated 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, environmen-
tal assessment, vulnerability and susceptibility to HIV infection; and
(b) the development and implementation of HIV and AIDS workplace policies and
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 evi-
dence; 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 infor-
mation 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 ac-
count 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’ rep-
resentatives to make informed decisions and take appropriate measures in the
workplace.
9.3.4 Workers including the most vulnerable must receive awareness raising infor-
mation 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.
9.3.5 Workers 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.
Employment Equity Act 55 of 1998 123

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 strat-
egies 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, rele-
vant and time-bound; and
(d) gather and analyse qualitative and/or quantitative information and communicate
it effectively.
10.2 Employers in collaboration with the workers must establish monitoring and evalua-
tion 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 evalu-
ating 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 ACT
63 OF 2001

5.1 Introduction
The Unemployment Insurance Act of 1966 was repealed and replaced by the new Unem-
ployment Insurance Act 63 of 2001 and the Unemployment Insurance Contributions Act 4
of 2002, both of which came into operation on 1 April 2002.
Like its predecessor, the new Act provides for the payment of benefits in instances of
unemployment, illness, maternity and adoption. Dependants of a deceased contributor can
also become entitled to benefits.
The purpose of the Unemployment Insurance Act of 2001 (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 beneficiar-
ies, 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 old Act, have been abolished and a new Fund and Board have been established
under the new Act. The income of the Fund is derived mainly from contributions made by
employers and employees in terms of the Unemployment Insurance Contributions Act.
The Unemployment Insurance Commissioner and claims officers are appointed to pro-
cess claims for benefits.
The Unemployment Insurance Act will receive some detailed attention below, after
which an exposition of the Unemployment Insurance Contributions Act will be given.

5.2 Definitions (s 1)
Some of the more important definitions in the Unemployment Insurance Act 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) who is under the age of 21 years and in-
cludes any person under the age of 25 who is a learner and who is wholly or mainly dependent
on the deceased;
“domestic worker” means an employee who performs domestic work in the home of his or her em-
ployer, and includes a –
(a) gardener;

125
126 A Practical Guide to Labour Law

(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 pay-
ment 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. In terms of the latter Act 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 Unemployment Insurance Contribu-
tions Act.)

5.3 Application of the Unemployment Insurance Act (s 3)

The Unemployment Insurance Act of 2001 applies to all employers and employees, other
than:
• employees employed for fewer than 24 hours per month with a particular employer and
their employers;
• employees under a contract of employment contemplated in section 18(2) of the Skills
Development Act of 1998 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;
• persons who enter the Republic for the purpose of carrying out a contract of service,
apprenticeship or learnership within the Republic if, upon the termination thereof, the
employer of such a person is required by law, by an employment, apprenticeship or
learnership contract or by any other agreement or undertaking to repatriate that person,
or that person is required to leave the Republic, and their employers.

5.4 Framework of the Unemployment Insurance Act

5.4.1 Unemployment Insurance Fund
In terms of Chapter 2 (ss 4–11) of the Unemployment Insurance Act 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 Parlia-
ment and several other sources. The Fund must be used for the payment of benefits, reim-
bursement of excess contributions to employers and payment of remuneration and
allowances to members of the Unemployment Insurance Board and its committees.
The Director-General is the accounting authority for 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.
Unemployment Insurance Act 63 of 2001 127

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 insur-
ance 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 Depart-
ment 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 activi-
ties 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 Act. 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
Act and the activities of the Unemployment Insurance Fund.

5.5 Benefits (Ch 3)

5.5.1 Right to benefits
Chapter 3 of the Unemployment Insurance Act 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 of the Act a contributor is entitled to unemployment benefits, ill-
ness benefits, maternity benefits or adoption benefits and a dependant of a contributor is
entitled to dependant’s benefits. A domestic worker who is employed by more than one
employer and who loses a job is, despite still being employed by another employer(s),
entitled to benefits if his or her total income falls below the benefit level that he or she
would have received had he or she become completely unemployed. For the purposes of
calculating the benefits for the domestic worker in these circumstances, 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 un-
employed. 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 earned, will not exceed 100% of
the employee’s wages had he or she been fully employed.
128 A Practical Guide to Labour Law

Unlike the repealed Act, a person who earns in excess of the threshold or “ceiling”
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 con-
tributor earned the threshold amount. Currently that amount is R178 464 per annum,
R14 872 per month or R3 432 per week.
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 provisions of Schedule 2. Benefits are paid on a
sliding scale, with lower income contributors receiving a larger percentage of benefits than
higher income contributors.
In terms of section 14 a contributor is not entitled to benefits for any period that he or
she:
• was in receipt of:
– any benefit in terms of the Compensation for Occupational Injuries and Diseases Act
as a result of an occupational injury or disease, which injury or disease caused the total
or temporary unemployment of the contributor;
– benefits from any unemployment fund or scheme established by a bargaining or statu-
tory council under the LRA of 1995;
• fails to comply with any provision of the UIA or any other law relating to unemployment;
or
• is suspended from receiving benefits.
The Commissioner may suspend a contributor or a dependant for a period of up to five
years from receiving benefits if he or she submitted a false or fraudulent claim, failed to
inform a claims officer of the resumption of work or failed to repay, on demand, any bene-
fits that were paid in error to him or her (s 36). The decision to suspend a contributor from
receiving payments does not absolve an employer from his 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 com-
pleted six days of employment as a contributor, subject to a maximum accrual of 238 days’
benefit in the four-year period immediately preceding the date of application for benefits.
If the contributor received any days of benefits during the preceding four years, that num-
ber of days is subtracted from the total days accrued over the four years, excluding mater-
nity benefits that have been paid (s 13(3)).
For the purposes of determining completed days of employment in this context the peri-
od includes (s 13(4)):
• the day that a contributor commenced employment and runs up to and includes the day
on which employment was terminated; and
• any period in respect of which an employee was paid remuneration in lieu of notice or, in
the case of a merchant seaman, the period in respect of which he received remuneration
in terms of section 140 of the Merchant Shipping Act of 1951.
The Act provides the method for calculating days of benefits that a contributor is entitled
to.
Step 1: Determine the total number of days that an employee was employed as a con-
tributor in the four-year period immediately preceding the date of application
for benefits.
Step 2: Divide the total number of days by 52, multiply by 7 and disregard any fraction of
the resultant figure.
Unemployment Insurance Act 63 of 2001 129

Step 3: Subtract from this number any days (excluding maternity benefits) received in
the four-year period immediately preceding the date of application for benefits.
Step 4: The resultant figure determines the days of benefits that a contributor is entitled
to.
GN 98 of 5 February 2007, “Calculation of benefits in terms of section 13 of the Unem-
ployment Insurance Act”, was promulgated to illustrate the calculation of days that accrue
as a benefit to a contributor. The following illustration is of a contributor who has been
continuously employed for 4 years and is eligible to claim the maximum benefits (i.e.
1 day’s benefit for every 6 completed days of employment up to a maximum of 238 days
(34 weeks)).
If a contributor is employed for a period of 4 years then the total days worked will be
equal to 1 460 days. Dividing 1 460 days by 6 to calculate the total credits gives us 243.33
days which is 5 days more than the 238 days prescribed in section 13(3). To calculate
correctly the number of days of benefit in terms of section 13(3) and Schedule 2 of the Act,
apply the following practical steps:
Total weeks of benefit to be provided = 34 weeks
Period to which the calculation applies = 4 years
Unique weeks per year (34 weeks ÷ 4 years) = 8.5 weeks per year
Unique number of days allocated per year = 8.5 × 7 = 59.5 days
Total credits to be allocated in 4 years = 59.5 × 4 = 238 days
The following method is followed in allocating credits:

Application of maximum
4-year cycle Days worked
prescribed credits
Year 1 365 59.5
Year 2 365 59.5
Year 3 365 59.5
Year 4 365 59.5
238

For purposes of calculating the benefits payable to a contributor, his daily rate of remuner-
ation, subject to the prescribed maximum, must be determined:
• if paid monthly, by multiplying the monthly remuneration by 12 and dividing it by 365;
• if paid weekly, by multiplying the weekly remuneration by 52 and dividing it by 365.
If the contributor’s remuneration fluctuates significantly from period to period, the calcula-
tion must be based on his or her average remuneration over the previous six months.

5.5.3 Unemployment benefits

The provisions relating to unemployment benefits are contained in Part B (ss 15–18) of
Chapter 3 of the Act.
130 A Practical Guide to Labour Law

An unemployed contributor is entitled to un-

employment benefits for any period of unem-
ployment 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-
UNEMPLOYMENT seeker with a labour centre established under
BENEFITS (s 16) the Skills Development Act of 1998;
• if the contributor is capable of and available
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 voca-
tional 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
six 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 Act, the claims officer must approve the application, determine the amount of the
benefits, authorise the payment of the benefits and stipulate when the applicant must re-
port 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)).
Unemployment Insurance Act 63 of 2001 131

If the application does not comply with the provisions of the Act, the claims officer must
advise the applicant accordingly in writing 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 any other employment office determined by the appli-
cant at the time of application (s 18).

5.5.4 Illness benefits

The provisions relating to illness benefits are contained in Part C (ss 19–23) of Chapter 3 of
the Act. 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 or she is unable to perform work on
account of illness;
– he or she fulfils any prescribed require-
ments in respect of any specified illness;
and
ILLNESS
BENEFITS (s 20) – application is made in accordance with the
prescribed provisions of the Act.
• A contributor is not entitled to illness benefits
if the period of illness is less than 14 days and
for any period during which he or she is en-
titled to unemployment benefits or adoption
benefits. The contributor is further not en-
titled to illness benefits if he or she, without
just reason, refuses or fails to undergo medi-
cal treatment or to carry out the instructions
of a medical practitioner, chiropractor or
homeopath.

When considering any sick leave paid in terms of any law, collective agreement or contract
of employment, the illness benefit may not be more than the remuneration the contributor
would have received if he or she had not been 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 commence-
ment 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 Act, the claims officer must approve the application, determine the amount of bene-
fits, authorise the payment of the benefits and stipulate how the benefits are to be paid
(s 22(3) and (4)).
If the application does not comply with the provisions of the Act, the claims officer must
advise the applicant thereof in writing and advance reasons for the defectiveness of the
application (s 22(5)).
When payment of illness benefits has been authorised, the benefits must be paid at the
employment office at which the application was made or any other employment office
determined by the applicant at the time of application. Payment is made to the contributor
or to any other person authorised by the contributor who is accepted by the claims officer
to be so authorised (s 23).
132 A Practical Guide to Labour Law

5.5.5 Maternity benefits

The provisions relating to maternity benefits are contained in Part D (ss 24–26) of Chap-
ter 3 of the Act.

• A contributor who is pregnant is entitled to

the 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 (s 24) • The 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 a maximum maternity benefit of
six weeks after the miscarriage or stillbirth.

When considering maternity leave that is paid in terms of any law, collective agreement or
contract of employment, the maternity benefit 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 mater-
nity 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 at least eight
weeks before childbirth. The Commissioner may, on good cause shown, condone a late
application or extend the period of submission of the application up to a period of six
months after the date of childbirth (s 25(1) and (2)).
The claims officer must investigate the application and, if it complies with the provisions
of the Act, the claims officer must approve the application, determine the amount of the
benefits and stipulate how the benefits are to be paid (s 25(3) and (4)).
If the application does not comply with the provisions of the Act, the claims officer must
advise the applicant in writing that the application is defective and advance reasons why it is
defective (s 25(5)).
Once payment of maternity benefits has been authorised, the benefits must be paid to
the contributor at the employment office at which the application was made or any other
employment office determined by the applicant at the time of application (s 26).

5.5.6 Adoption benefits

The provisions relating to adoption benefits are contained in Part E (ss 27–29) of Chapter 3
of the Act.
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 child has been adopted in terms of the

Child Care Act of 1983;
ADOPTION • If the period during which the contributor
BENEFITS (s 27) was not working was spent caring for the
child;
• If the adopted child is below two years of age;
and
• If the application is made in accordance with
the provisions of Part E.
Unemployment Insurance Act 63 of 2001 133

The entitlement to adoption benefits commences on the date that a competent court grants
an order for adoption in terms of the Child Care Act of 1983 (s 27(2)).
Having regard to any leave paid to the contributor in terms of any law, collective agree-
ment or contract of employment, the benefit may not be more than the remuneration the
employee would have earned had he or she been at work. The “top-up” principle is again
applicable (s 27(3) and (4)).
An application for adoption benefits must be made in the prescribed form within six
months after the date of the order for adoption, but the Commissioner may condone a late
application on good cause shown (s 28(1) and (2)).
The claims officer must investigate the application and, if it complies with the provisions
of the Act, the claims officer must approve the application, determine the amount of the
benefits, authorise the payment of the benefits and stipulate how the benefits are to be paid
(s 28(3) and (4)).
If the application does not comply with the provisions of the Act, the claims officer must
advise the applicant in writing that the application is defective and provide reasons why it is
defective (s 28(5)).
The adoption benefits must be paid to the contributor at the employment office at which
the application was made or any other employment office determined by the applicant at
the time of application (s 29).

5.5.7 Dependants’ benefits

The provisions relating to dependants’ benefits are contained in Part F (ss 30–32) of Chap-
ter 3 of the Act.

• The surviving spouse or life partner of a de-

ceased contributor is entitled to dependant’s
benefits if application is made in accordance
with the prescribed requirements and within
BENEFITS TO six months of the death of the contributor.
DEPENDANTS
(s 30) • A child, including an adopted child, is entitled
to benefits if there is no surviving spouse or if
the surviving spouse has not made application
for the benefits within six months of the con-
tributor’s death.

The benefit payable to a dependant is the amount of the unemployment benefit that would
have been payable to the deceased contributor if he or she had been alive (s 30(3)).
An application for dependant’s benefits must be made in the prescribed form and within
six months after the contributor’s death or, where a dependent child applies for benefits,
within 14 days after the expiration of the six-month period in which the spouse or life part-
ner could have applied (s 31(1) and (2)).
The claims officer must investigate the application and, if it complies with the provisions
of the Act, the claims officer must approve the application, determine the amount of the
benefits and to whom it must be paid, authorise the payment of the benefits and stipulate
how the benefits are to be paid (s 31(3) and (4)).
If the application does not comply with the provisions of the Act, the claims officer must
advise the applicant in writing that the application is defective and provide reasons for its
defectiveness (s 31(5)).
Once the payment of benefits has been authorised, the benefits must be paid to the de-
pendant at the employment office at which the application was made or any other employ-
ment office determined by the applicant at the time of application (s 32).
134 A Practical Guide to Labour Law

5.5.8 General provisions relating to benefits

Benefits may not be assigned, attached by an order of any court, except by a court order
relating to maintenance of the dependants, including a former spouse, 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 Act (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 Commissioner determines that a person has been paid benefits in error or in excess
of his or her entitlement, the Commissioner must, within 18 months of the date of the
determination, make a written demand for repayment from that person (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)).

5.5.9 Dispute resolution (s 37)

A person who is entitled to benefits in terms of the Act may appeal to a regional appeals
committee against:
• a decision of the Commissioner to suspend his or her right to benefits; or
• a decision of a claims officer relating to the payment or non-payment of benefits.
A regional appeals committee is established by the Minister, after consultation with the
Board, for each region determined by the Minister. A regional appeals committee is com-
posed of at least one representative each from organised labour, organised business, organ-
isations of community and development interests and an officer (as defined in the Public
Service Act).
A person who is dissatisfied with the decision of the regional appeals committee may re-
fer the matter to the National Appeals Committee for a decision. The National Appeals
Committee may confirm, vary or rescind the decision of a regional appeals committee and
substitute that decision with a decision it deems appropriate.

5.6 Enforcement
The provisions relating to the enforcement of the Unemployment Insurance Act, contained
in Chapter 4, closely resemble the corresponding provisions in the Basic Conditions of Em-
ployment Act of 1997.
Labour inspectors may call for a written undertaking (s 38) from an employer or issue a
compliance order (s 39). An employer is entitled to object to a compliance order by refer-
ring a dispute to the Director-General (s 40). Where an employer fails to comply with a
compliance order, the Director-General may approach the Labour Court to have the order
made an order of court (s 41).

5.7 Duties of employer (s 56)

Every new employer must, as soon as it commences activities as an employer, provide the
following information regarding its employees to the Commissioner, irrespective of the
earnings of such employees:
• the street address of the business and any of its branches of the employer;
• 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 this Act;
• the names, identification numbers and monthly remuneration of each of its employees;
and
Unemployment Insurance Act 63 of 2001 135

• the address at which the employee is employed.

Every employer must, before the seventh day of each month, inform the Commissioner of
any change during the previous month in any information furnished as stated above. The
Commissioner may request the employer to provide such additional particulars as may
reasonably be required to give effect to the purpose of the Act within 30 days of the request
or within such extended period as the Commissioner may allow.
As soon as a newly appointed employee is appointed the employer is obliged to register
the employee with the Department of Labour for the purposes of unemployment and other
benefits.

5.8 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 deter-
mination 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 em-
ployees (s 60).
Any person who causes any loss or damage to the Fund is guilty of an offence. Upon con-
viction, the court may determine the amount of the loss or damage caused to the Fund 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 may be permitted. If the loss to
the Fund is due to a fraudulent claim, it may be recovered from any outstanding benefit
payments due to the contributor or dependant (s 61).
Evidence (s 62): if any of the following documents are produced in a court of law, they are
presumed to be certified by their author without proof of the author’s signature, unless evi-
dence 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 Act 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 Act; that any person is or
was lawfully required under the Act 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
or her own accord, or must at the request of any party to the proceedings require the de-
ponent 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 admis-
sible 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.
In any proceedings under the Act any of the following documents are admissible in evi-
dence 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
136 A Practical Guide to Labour Law

such statement or entry, certified by a commissioner of oath to be a true copy or reproduc-

tion 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 dam-
age 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.
Labour Court (ss 66 and 67): unless the Act provides otherwise, the Labour Court has juris-
diction in respect of all matters in terms of this Act, except in respect of an offence in terms
of this Act.
If any question of law arises concerning the application of the Act, the Director-General
may of his or her own initiative or at the request of a party with sufficient interest in this
matter, state a case for decision by the Labour Court. The Director-General must set out in
the stated case the facts found to have been proved and the interpretation of the law adopt-
ed in relation to those facts.
If the Director-General has any doubt as to the correctness of a decision given by the
Labour Court regarding a question of law concerning the application of the Act, he or she
may submit such decision to the Labour Appeal Court.

5.9 Unemployment Insurance Contributions Act 4 of 2002

The new Unemployment Insurance Act (UIA) does not address the issue of contributions
by employers and employees to the Unemployment Insurance Fund. The Unemployment
Insurance Contributions Act (UICA) has been implemented alongside the UIA to provide
for such contributions.
The UICA applies to all employers and employees, the exclusions being the same as
those excluded from the UIA.

5.9.1 Contributions
Chapter 2 of the UICA deals with the duty to contribute to the Unemployment Insurance
Fund and the collection or recovery of contributions.
Every employer and every employee to whom this Act applies must, on a monthly basis,
make contributions for the benefit of the Unemployment Insurance Fund. The contribu-
tions must be paid by the employer to the Commissioner for the South African Revenue
Service or to the Unemployment Insurance Commissioner, depending on whether sec-
tion 8 or section 9 is applicable to the employer (s 5).
The amount of the contribution payable by the employee is 1% of his or her monthly
remuneration and that payable by the employer is 1% of the employee’s monthly remuner-
ation (s 6). This provision is not applicable to the portion of the employee’s monthly
remuneration that exceeds the threshold amount determined from time to time by the
Minister of Finance by notice in the Gazette after consultation with the Minister of Labour
and the Unemployment Insurance Commissioner. Currently this amount is R14 872 per
month.
The employer must deduct the 1% payable by the employee from the employee’s re-
muneration every month (or week or other interval at which remuneration is paid) (s 7(1)
and (2)). An employer who fails to deduct the contribution as aforesaid 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 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)).
Unemployment Insurance Act 63 of 2001 137

When the employer effects the deductions, he 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 during which it was payable (s 7(3)).
Where an employer deducts a contribution from the employee’s remuneration and sub-
sequently 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 the total amount of contributions deducted from the em-
ployees plus the employer’s contributions in respect of the employees on a monthly basis.
The payment must be effected not later than seven days after the end of the month or such
longer period as the Commissioner may determine. The employer must, together with the
payment, submit a statement that reflects the amount of the payment.
If the amount of any contribution, interest or penalty paid by an employer to the Com-
missioner was not due or payable or was in excess of the actual amount due, such amount
or excess amount must be refunded to the employer.
The Commissioner must notify the Director-General of the amount of the contributions,
interest and penalties collected from and refunds made to employers during the previous
month.
An employer who ceases to carry on business or otherwise ceases to be an employer must
within 14 days notify the SARS Commissioner accordingly and submit such return as the
Commissioner may prescribe.
The contributions, interest and penalties collected by the SARS Commissioner must,
after deduction of any refunds, be paid into the National Revenue Fund. The total amount
so paid is for the credit of the Unemployment Insurance Fund. Within 14 days from receipt
of the notice from the Commissioner, the Director-General must authorise the transfer of
the amount of the contributions, interest and penalties paid into the National Revenue
Fund to the Unemployment Insurance Fund.

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.
The employer is required to pay to the Unemployment Insurance Commissioner the total
amount of contributions deducted from the employees plus the employer’s contributions in
respect of the employees on a monthly basis. The payment must be effected not later than
seven days after the end of the month or such longer period as the Commissioner may
determine. The employer must, together with the payment, submit a statement which re-
flects the total amount of the payment.
The Unemployment Insurance Commissioner must pay all contributions, interest and
penalties into the Unemployment Insurance Fund. If the amount of any contribution, in-
terest or penalty paid by an employer to the Commissioner was not due or payable or was in
excess of the actual amount due or payable, the amount or excess must be refunded to the
employer by the Unemployment Insurance Commissioner from the Unemployment Insur-
ance Fund.
138 A Practical Guide to Labour Law

Where an employer on reasonable grounds believes that the total amount of contribu-
tions payable in respect of all its employees 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). If the employer discovers that the amount paid, is less than the required
amount, he must pay the outstanding amount to the Unemployment Insurance Commis-
sioner as soon as possible, but before the end of the financial year in question.

5.9.2 Interest, penalties and offences

An employer who fails to pay the full amount on the due date must pay interest on the out-
standing amount at the rate fixed by the Minister from time to time, calculated from the
day following the last day for payment to the day that payment is received by the SARS Com-
missioner or Unemployment Insurance Commissioner (s 12).
Where an employer fails to perform any duty imposed by the Act or does or omits to do
anything with the intention of evading the payment of contributions in respect of any em-
ployee or to cause a refund to him of any amount of contribution, interest or penalty which
is not refundable or is in excess of the refundable amount, an additional penalty not ex-
ceeding an amount equal to double the amount of the evaded contribution, the amount
not refundable or the excess of the refundable amount may be imposed on the employer
(s 13(2)). The amount of the additional penalty must be determined by the SARS Commis-
sioner or the Unemployment Insurance Commissioner, as the case may be, and must be
paid by the employer within such period as the Commissioner may determine (s 13(3)).
In terms of section 17 a person commits an offence if he or she:
• fails to pay any amount due in terms of this Act on the day determined for the payment
thereof;
• fails to submit or deliver any statement or other document or thing required to be sub-
mitted or delivered by or under this Act; disclose any information required by or under
this Act; reply to or answer truly and fully any question put to him or her in terms of this
Act; attend and give evidence at an enquiry under this Act where duly required to do so;
or
• hinders or obstructs any person in carrying out his or her functions in terms of this Act.
Any person convicted of an offence in terms of this Act is liable to a fine or imprisonment
for a period not exceeding 12 months or both.

5.9.3 Application of the Income Tax Act (s 14)

The provisions of the Income Tax Act apply to any contribution paid or payable in terms of
the UICA in respect of:
• the administration of this Act as regards the exercise of powers and performance of
duties and the preservation of secrecy;
• statements, the production of information, documents or things, enquiries, searches and
seizures and evidence on oath for purposes of obtaining full information in respect of
the calculation of the contributions due and payable in terms of this Act;
• any assessment, objection and appeal;
• the payment, recovery or refund of any contribution, interest or penalty;
• representative taxpayers and representative employers;
• any transaction, operation or scheme entered into or carried out for the purposes of
avoiding or postponing any liability for the contribution or of reducing the amount of
the contribution;
• reporting of unprofessional conduct; and
• the jurisdiction of the courts.
Unemployment Insurance Act 63 of 2001 139

Questions
Question 1
Define the following:
1.1 domestic worker; (4)
1.2 employer; and (4)
1.3 contributor. (4)

Question 2
Discuss the application of the Unemployment Insurance Act. (8)

Question 3
Name the categories of benefits provided for by the Unemployment Insurance Act. (5)

Question 4
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:
4.1 unemployment benefits; (10)
4.2 illness benefits; (8)
4.3 maternity benefits; (8)
4.4 adoption benefits; and (8)
4.5 benefits paid to dependants of a deceased contributor. (6)

Question 5
Discuss the liability of 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 6
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.
6.1 Is Lorraine liable to contribute to UIF? Briefly explain. (4)
6.2 Assume Lorraine is a contributor in terms of the Act. Two weeks ago she was re-
trenched 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 deteri-
orate and that she only has eight months to live. Does she qualify for unemployment
benefits under these circumstances? Explain. (4)
6.3 Assume Lorraine is a contributor in terms of the Act. 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 preg-
nancy. (2)
(b) Her employer grants her four months’ unpaid maternity leave. Explain whether
she qualifies for benefits in terms of the Act. (4)
140 A Practical Guide to Labour Law

(c) Lorraine has always been considered a good worker. When her employer finds
out about her pregnancy, he dismisses her because, according to him, he can-
not 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 ref-
erence 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 of the Labour
Relations Act.
6.4 Assume that Lorraine is a contributor in terms of the Act. 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)
6.5 Assume that Lorraine is a contributor in terms of the Act. She is dismissed because
she has been found guilty of theft. After her dismissal she fails to find other employ-
ment. Does she qualify for benefits in terms of the Act? Explain. (8)
6.6 Assume that Lorraine is a contributor in terms of the Act. 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. (4)
6.7 Assume Lorraine is a contributor in terms of the Act. She is unemployed because of
retrenchments in her factory. She applies for unemployment benefits and is in-
formed that she does not qualify for any benefits in terms of the Act. Explain the pro-
cedure Lorraine can follow to have her dispute resolved. (4)

Question 7
Catherine was a contributor in terms of the Unemployment Insurance Act. She was em-
ployed as a domestic worker for 5 years until the sudden death of her employer and is now
unemployed. She is 50 years of age and is of the view that she can no longer perform the
duties of a domestic worker. Therefore, she is not prepared to work as a domestic worker
in future. Does she qualify for benefits in terms of the Unemployment Insurance Act?
Explain. (5)

Question 8
Fred is a gardener. He works for Anton on Mondays, Bennie on Tuesdays, Carl on Thurs-
days, Danny, also on Thursdays, and Ewan on Fridays. Danny dismisses Fred. Is Fred eligible
for unemployment benefits from the Fund? (4)

Question 9
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 sick benefits in terms of
the Unemployment Insurance Act? Explain. (6)
Unemployment Insurance Act 63 of 2001 141

Appendix 1
Unemployment Insurance Act
Schedule 2
MATHEMATICAL CALCULATION OF CONTRIBUTOR’S ENTITLEMENT
The benefit to which a contributor is entitled is calculated in one of two ways, depending on a
contributor’s income prior to becoming unemployed:
1. Contributors who earned less than a particular amount (known as the “benefit transition
income level”) are entitled to a percentage of their previous pay.
2. Contributors who earned more than a benefit transition income level are entitled to a
flat benefit, equal to the entitled of a contributor who was previously paid at the benefit
transition income level.

The benefit transition income level

The 1953 International Labour Organisation Convention (Convention No. 102) stipulates that
the wage of a skilled manual worker should determine the appropriate income level at which to
set a ceiling for membership of a social insurance scheme. Over the years, South Africa’s Unem-
ployment Insurance scheme has roughly kept pace with this guideline. The benefit transition
income is therefore linked to this rate.
The current income ceiling is R14 872 per month. This will become the initial benefit transi-
tion income level for the purposes of this Act. However, in terms of section 12(3)(a), the Minis-
ter may change the benefit transition income level from time to time to reflect changing patterns
of income.

Contributors who previously earned less than the benefit transition income level
For contributors who earned less than the benefit transition income level, entitlement to benefit
is earnings-related. The contributor’s entitlement is calculated according to the following for-
mula:
Benefit = Daily Income * IRR
where IRR is the Income Replacement Rate corresponding to the contributor’s daily income.
Daily Income
If a contributor was paid weekly, daily income is the weekly rate of pay divided by 7.
If the contributor was paid fortnightly, daily income is the fortnightly rate of pay divided by 14.
If a contributor was paid monthly, daily income is the monthly rate of pay multiplied by 12,
then divided by 365.
Income Replacement Rate
The Income Replacement Rate (IRR) determines the percentage of a contributor’s previous
income to which the contributor is entitled in the form of benefits. The IRR is a variable, so it
defines a sliding scale. A contributor who previously earned a low wage is entitled to receive
benefits representing a larger portion of her or his previous income than a contributor who
previously earned a higher wage.
The IRR is at its maximum when income equals zero, and it reaches its minimum where in-
come is equal to the benefit transition income level. The maximum IRR is fixed at 60%. The
minimum IRR is currently set at 38%. However, the Minister may vary the minimum IRR in
terms of section 12(3)(b).
Using current values, the IRR can be calculated according to the following formula:
IRR = 29.2 + (99779.68 / (3239.6 + Yi))
where Yi represents a contributor’s normal monthly rate of income. (Consistency of units is
essential. To calculate IRR from daily or weekly rates of pay, please refer to the more detailed ex-
planation of the IRR formula in the technical note below.)
142 A Practical Guide to Labour Law

Contributors who previously earned more than the benefit transition income level
Contributors who earned more than the benefit transition income level are entitled to a flat
benefit equal to the benefit transition income level multiplied by the minimum IRR.
At the current benefit transition income level of R14 872 per month, this works out to R185.80
per day:
Daily Income = (14872 * 12)/365) = 488.94
IRR = 38% or 0.38
Benefit = 488.94 * 0.38 = 185.80
Duration of benefits
In terms of section 13(3), a contributor is eligible to receive one day’s benefit for every six com-
pleted days of employment, up to a maximum of 238 days (34 weeks). A contributor will there-
fore be eligible to claim benefits for the maximum duration after being continuously employed
for four years. If a contributor has already drawn benefits (other than maternity benefits) in
terms of this Act in the preceding four years, the number of days for which the contributor is
eligible to claim benefits will be reduced accordingly.
To calculate the number of days of benefits to which a contributor is entitled:
1. Determine the total number of days that the contributor was employed (and contribu-
ting) in the four-year period immediately preceding the date of application for benefits.
2. Divide the total number of days by 6, disregarding any remainder or fractional portion of
the result.
3. Subtract the number of days (if any) for which the contributor claimed benefits (other
than maternity benefits) in terms of this Act during the preceding four years.

Amount of benefit payment

The benefit payment to which a contributor is entitled in any given period shall be the amount
of the benefit entitlement multiplied by the number of days for which the contributor is eligible
to receive benefits during the payment period.

Technical note on the Calculation of IRR

The sliding scale for the Income Replacement Rate (IRR) is represented by a portion of the curve
(rectangular hyperbola) produced by a graph of the function y = l/x, where the y axis represents
the IRR and the x axis represents income. However, in order to associate this curve with values
that are meaningful for this purpose, it is necessary to apply adjusting formulae.
Calculating the IRR associated with any given level of income below the benefit transition in-
come level can be done in three steps:
l. The rate of income is transformed into a corresponding value on the x axis (xi). The
formula for this is:
Yi = (xi – x1) YLRR / (x2 – x1) (1)
where:
Yi is the contributor’s rate of income;
YLRR if the benefit transition income level; and
x1 and x2 are constants that determine the portion of the curve that is used to calculate
IRR.
The current values of the parameters YLRR, x1 and x2 are:
YLRR = R14 872 per month
x1 = 2
x2 = 7
Using these values, expression (1) can be simplified to:
xi = 2 + (Yi / 1619.8) (1a)
where Yi is expressed as a monthly rate of income. [It is important to ensure that both
the contributor’s rate of income (Yi) and the benefit transition income level (YLRR) are
expressed in the same units – monthly, weekly, or daily.]
Unemployment Insurance Act 63 of 2001 143

2. The y values corresponding to the x values are calculated using the general formula:
y = 1 / x (2)
thus:
y1 = l / x1
y2 = 1 / x2
yi = 1 / x i
3. The yi value is then converted to the corresponding IRR. The formula for this is:
IRR = LRR + (yi – y2)(URR – LRR) / (y1 – y2) (3)
where:
IRR is the income replacement rate;
LRR is the lower (minimum) income replacement rate; and
URR is the upper (maximum) income replacement rate.
The current values of the parameters LRR, URR, y1 and y2 are:
LRR = 38%
URR = 60%
y1 = 1 / 2
y2 = 1 / 7
Using these values, expression (3) can be simplified to:
IRR = 61.6yi + 29.2 (3a)
144 A Practical Guide to Labour Law

Appendix 2

SCHEDULE 3
SCALE OF CONTRIBUTOR’S ENTITLEMENT TO BENEFITS
(Section 12(2))
(1) Table One is the scale of benefits to which a contributor may be entitled. A contributor’s
monthly rate of remuneration is set out in column 1. The percentage of the contributor’s monthly
income that will be paid as a benefit is set out in column 2. The actual benefit payable in Rand
terms is set out in column 3.
(2) Benefits below the transitional income level are earnings-related and fall as a proportion
of income as income rises.
(3) Contributors and employers of contributors earning above the income threshold of
1
R97 188 per annum shall contribute 1% of the threshold and such income contributors shall
receive benefits payable at this threshold level.
Tables to illustrate benefits at various earnings levels
Based on a transition income of R97 188 per annum.
The various amounts on [sic] these tables are calculated in terms of the equation in Schedule 2.
IRR = Income replacement rate
Approximate benefits payable on monthly basis:
Income IRR = UI benefit
150.00 58.64 87.96
300.00 57.39 172.17
500.00 55.88 279.41
700.00 54.53 381.69
1 000.00 52.74 527.35
1 500.00 50.25 753.79
2 000.00 48.24 964.87
3 000.00 45.19 1 355.74
3 075.57 45.00 1 384.01
4 000.00 42.98 1 719.30
5 000.00 41.31 2 065.49
6 000.00 40.00 2 399.95
7 410.00 38.57 2 857.99
8 099.00 38.00 3 077.62
10 000.00 30.78 3 077.62
continued

________________________

1 Sch 3 has not yet been amended to reflect the new threshold amount.
Unemployment Insurance Act 63 of 2001 145

Approximate benefits payable on weekly basis

Income IRR = UI benefit
34.62 58.64 20.30
69.23 57.39 39.73
115.38 55.88 64.48
161.54 54.53 88.08
230.77 52.74 121.70
346.15 50.25 173.95
461.54 48.24 222.66
692.31 45.19 312.86
709.75 45.00 319.39
923.08 42.98 396.76
1 153.85 41.31 476.65
1 384.62 40.00 553.83
1 710.00 38.57 659.54
1 869.00 38.00 710.22
2 307.69 30.78 710.22
Approximate benefits payable on daily basis
Income IRR = UI benefit
4.93 58.64 2.89
9.86 57.39 5.66
16.44 55.88 9.19
23.01 54.53 12.55
32.88 52.74 17.34
49.32 50.25 24.78
65.75 48.24 31.72
98.63 45.19 44.57
101.11 45.00 45.50
131.51 42.98 56.52
164.38 41.31 67.91
197.26 40.00 78.90
243.62 38.57 93.96
266.27 38.00 101.18
328.77 30.78 101.18
The UI benefits payable in the tables will be paid for
the duration of benefit days that have been accrued
by a contributor.
146 A Practical Guide to Labour Law

Appendix 3

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 .................................................................................................................
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 ........................................................................................................................
Unemployment Insurance Act 63 of 2001 147

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 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 .............../............... / ..............

148 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)
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
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) ..........................................................................................
Unemployment Insurance Act 63 of 2001 149

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

150 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)
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-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
6.1 Commencement of employment with employer ..........................................................
6.2 Termination of service ...................................................................................................
Unemployment Insurance Act 63 of 2001 151

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 mid-
wife)
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.

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

152 A Practical Guide to Labour Law

UI-2.4
APPLICATION FOR ADOPTION BENEFITS IN TERMS OF SECTION 28(1)
Read with Regulation 6(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 .................................................................................................................
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 ...................................................................................................
Unemployment Insurance Act 63 of 2001 153

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

154 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
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
Unemployment Insurance Act 63 of 2001 155

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 above-
mentioned 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: .............../ ............. /..............
156 A Practical Guide to Labour Law

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 ..................................................................................................................
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 ...................................................................................................................
Unemployment Insurance Act 63 of 2001 157

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. 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 state-
ment.

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

158 A Practical Guide to Labour Law

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 Commis-
sioner 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. 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?
.........................................................................................................................................
.........................................................................................................................................
.........................................................................................................................................
Unemployment Insurance Act 63 of 2001 159

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 the employer to pay wages
to the employee who is absent due to illness or injuries. The only recourse which the em-
ployee thus has is to institute action against his employer for compensation. This is an
onerous route to follow, since the employee will not succeed with his claim unless he can
prove intent or negligence on the part of his employer, that is, 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
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 the intent or negligence of the employer. Compensation in terms of this Act
was paid in the event of injuries sustained on duty, to dependants of an employee if the lat-
ter had died because of his 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 material
loss caused by the accident, that is, loss of income and medical expenses. The employee,
however, did not lose his right to recover compensation from the wrongdoer personally, be
it his employer or a third party.
On 1 March 1994 the Compensation for Occupational Injuries and Diseases Act 130 of
1993 came into operation and the Workmen’s Compensation Act was repealed. This Act,
like its predecessor, also provides for the payment of compensation in respect of occupa-
tional injuries, death as a result of such injuries and occupational diseases. Both the
repealed Workmen’s Compensation Act and the Compensation for Occupational Injuries
and Diseases Act (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 con-
cept. The Compensation for Occupational Injuries and Diseases Act, 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 this Act.
Another feature of the 1993 Act is that its application is much wider than that of the old
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 com-
pensation, such as casual employees, seamen and airmen. Also excluded from the applica-
tion of the old Act were employees who earned more than a specified income per year. This
exclusion has been removed from the 1993 Act, with the result that employees will now
receive compensation regardless of their income. However, compensation for an employee

161
162 A Practical Guide to Labour Law

1
who earns more than R332 479 per annum will be calculated as if he earned R332 479 per
annum.
“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 the
definition are the following: any payment for intermittent overtime; payment for non-
recurrent occasional services; amounts paid by an employer to his employee to cover special
expenses; and ex gratia payments, whether by the employer or any other person (s 63).
The Compensation Fund was created in terms of section 15 of the Act and replaces the
old Accident Fund. It derives its income from contributions by employers and is adminis-
tered by the Director-General.

6.2 Application of the Act

The majority of employees enjoy the protection of this Act.
An employee is defined as a person who has entered into or works under a contract of
employment with an employer. The definition also includes persons who work in terms of
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, apprentice-
ship or learnership with the body corporate and persons provided by a labour broker
against payment to a client for the rendering of services, while the labour broker pays such
persons. The definition further includes the dependants of a deceased employee and a
curator who acts on behalf of a disabled person who by law is subject to curatorship, such as
a minor or a lunatic.
Excluded from the application of the Act (see the definition of “employee” in section 1
of the Act) 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 (that is 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 compensa-
tion 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 out-
side 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 him with the details of the business (s 80). The State, Parliament,
________________________

1 This amount is revised and increased from time to time by the Minister of Labour.
Compensation for Occupational Injuries and Diseases Act 130 of 1993 163

provincial governments and local authorities may be exempted from furnishing these
details (ss 80(4) and 84(1)). Persons who are not resident in South Africa and body corpor-
ates 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 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 (re-
turn) setting out the wages paid to employees must be submitted to the Commissioner
(s 82). On the strength of this information the Director-General determines an amount to
be paid by the employer to the Compensation Fund (s 83). The employer must pay that
amount within 30 days of a date specified by the Commissioner (s 86). The State, Par-
liament, 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 and 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 em-
ployment. To claim compensation the prescribed forms must be submitted to the Commis-
sioner (ss 39 and 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”, that is,
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 acci-

dent – that is, the employee must be an employee in terms of
EMPLOYEE
the definition of “employee” in the Act when the accident
occurs.

• 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.
• The accident must result in an injury (internal or external)
or death of the employee.
164 A Practical Guide to Labour Law

• The accident must take place in the “scope of the em-

ployee’s employment” – that is, in the nature of his duties
and in the course of his service.
• The accident must thus stand in relation to the employee’s
duties.
• 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;
– 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);
– if it occurs while the employee, with the consent of his
employer, is receiving training in first aid, rescue work or
other emergency services;
– 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 further-
ance of his own interests, he does not enjoy the protection
of the Act.

6.6 Compensation
No periodical payments are 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 set
formula (see Schedule 4).

6.6.1 Temporary total disablement (s 47(1))

Compensation is calculated as follows:
75
Periodic payments of × monthly earnings
100
Compensation for Occupational Injuries and Diseases Act 130 of 1993 165

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 amount the compensation is calculated as if the employee earned the prescribed
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 applic-
able here.
• 100% disablement
A monthly pension for life is paid equal to 75% of the employee’s monthly earnings,
subject to the prescribed amount.
• 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
employee had been 100% permanently disabled (that is, 75% of monthly earnings up
to the prescribed amount) plus
166 A Practical Guide to Labour Law

– a monthly pension of 40% of the monthly pension that would have been payable if the
employee had been 100% permanently disabled (that is, 40% of 75% of the monthly
earnings up to the prescribed amount).
The widow or widower will receive the monthly pension until the day of his or her death.
Remarriage does not change this situation.
• Children under 18 years of age will receive a monthly pension of 20% of 75% of monthly
th
earnings up to the prescribed amount. They receive this monthly pension until their 18
birthday or until their marriage or death before the age of 18.
• 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 to the Director-General that
the employee has contracted an occupational disease as set out in Schedule 3 of the Act. An
employee who contracts a disease other than an occupational disease is entitled to compen-
sation 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 Commissioner
within 14 days (s 68).
In Urquhart v Compensation Commissioner (2006) 27 ILJ 96 (E) the Court pointed out 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 this 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 – that is, compen-
sation in addition to that which would normally be payable. The application must be lodged
in the prescribed form and within 24 months from the date of the accident or of the com-
mencement of the disease. If the Director-General is satisfied that the accident or disease
was due to the negligence of the employer, he will award such additional compensation as
he may deem equitable.
“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 en-
gineer 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 of the
injured or deceased employee in respect of injuries, death or an occupational disease
arising out of the employment of the employee (s 35). As mentioned before, an employee
may, however, apply to the Director-General for increased compensation in addition to
compensation ordinarily paid (s 56).
Compensation for Occupational Injuries and Diseases Act 130 of 1993 167

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 em-
ployee 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 the Director-
General is obliged to pay.

6.8 Occupational Diseases in Mines and Works Act 78 of 1973

Mining is an important industry in South Africa and is in nature and character so different
from other places of business that specialised legislation has been implemented to cater for
its unique requirements, such as the Occupational Diseases in Mines and Works Act of 1973.
The Medical Certification Committee for Occupational Diseases, established under the
Act, is responsible for deciding whether a disease contracted while an employee was per-
forming risk work is a compensable one.
Risk means “the risk for the employee to contract a compensable disease while perform-
ing risk work in or at or in connection with a mine or works”. The Minister may by notice in
the Government Gazette declare any particular work or all work performed in or at or in con-
nection with any mine or works to be risk work. 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.
The owner of a mine must keep a register of all persons performing risk work. The Risk
Committee for Mines and Works, also established under the Act, determines the risks in-
volved 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 con-
tracted 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.

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. (8)

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

Question 3
Define the following:
3.1 employee; (10)
3.2 dependants of an employee; (5)
3.3 employer; and (6)
3.4 earnings. (6)
168 A Practical Guide to Labour Law

Question 4
For someone to qualify for compensation in terms of the Act 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 5
Give the formula for the calculation of compensation in each of the following instances:
5.1 temporary total disablement; (2)
5.2 permanent disablement; and (8)
5.3 death of an employee. (4)

Question 6
Is an employee who has sustained injuries at work entitled to institute a claim against his
employer for compensation? Briefly explain. (3)

Question 7
Section 36 of the Compensation for Occupational Injuries and Diseases Act makes it pos-
sible for an employee who has been injured to claim compensation from both the Compen-
sation 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 par-
ties’ liability” (1983) 4 ILJ 261.

Question 8
State whether the persons in the following circumstances will qualify for compensation in
terms of the Compensation for Occupational Injuries and Diseases Act. Motivate each
answer.
8.1 A pupil 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.
8.2 A corporal in the SA National Defence Force is injured while defending the borders
of the country. (3)
8.3 A domestic worker who works at an orphanage is injured while performing her duties.
There are normally twelve workers employed at the orphanage. (2)
8.4 A farm labourer is injured while servicing a tractor. (2)
8.5 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)
8.6 A general manager of a company who earns remuneration of R22 000 per month is
injured while taking visitors on a factory tour. (3)
Compensation for Occupational Injuries and Diseases Act 130 of 1993 169

8.7 A person who operates a machine for the owner thereof hires out his services as well
as the machine. His remuneration consists of a percentage of the profits only (no
fixed salary). He sustains injuries while operating the machine. (5)
Hint: See De Beer v Thomson 1918 TPD 70.

Question 9
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 10
Ruben is employed as a truck driver by KwaZulu-Natal Wholesale Liquors. His duties com-
prise the loading and unloading of cases of liquor and the delivery of orders to clients of
KWL. He earns R800 per week.
10.1 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 para-
lysed. He is hospitalised for four months, after which time he slowly starts to regain
mobility. Seven months after the date of the accident he is well enough to resume
work.
(a) Is Ruben entitled to compensation in terms of the Compensation for Occupa-
tional Injuries and Diseases Act under these circumstances? Explain and refer to
case law to substantiate your answer. (8)
Hint: See Nicosia v Workmen’s Compensation Commissioner 1954 (3) SA 897 (T); Min-
ister 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) Briefly describe the nature of Ruben’s injuries. (2)
(c) Assume that Ruben qualifies for compensation. Give the formula and then calcu-
late the amount of compensation which 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.
10.2 Because of a stayaway in which most workers participate, there is an insufficient num-
ber of workers at KWL to complete all the different tasks. Consequently Ruben assists
a co-worker in the warehouse, putting cases of liquor on shelves. Management is
unaware of Ruben helping the other worker. While Ruben is picking up a case he
170 A Practical Guide to Labour Law

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 the Act? Explain and refer to case
law to substantiate your answer. (8)
Hint: See cases mentioned above.
(b) Briefly describe the nature of Ruben’s injuries. (2)
(c) Assume that Ruben qualifies for compensation. Give the formula and then calcu-
late the amount of compensation which he will receive. (4)
10.3 Ruben is conveyed to and from work by an independent driver who has been hired by
the company to transport its workers. 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 morn-
ing 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 was injured in the accident: he lost his left leg and
suffered a few other minor injuries.
(a) Is Ruben entitled to compensation in terms of the Act under these circumstances?
Explain and refer to case law to substantiate your answer. (8)
Hint: See Assistent-ongevallekommissaris v Ndevu 1980 (1) SA 143 (E); Innes v Johan-
nesburg Municipality 1911 TPD 12; and Le Roux “Beheer oor werkersvervoer en
die Ongevallewet” (1980) 1 ILJ 100.
(b) Consider your answer in (a) and explain whether the situation would be different
since the amendment of section 22(5) of the Act. (5)
(c) Briefly describe the nature of Ruben’s injuries. (2)
(d) Assume that Ruben qualifies for compensation. Give the formula and then calcu-
late the amount of compensation which he will receive. (4)
10.4 While Ruben is on his way to make deliveries to a client of KWL he stops for refresh-
ments 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 bro-
ken, with the result that he cannot work for six weeks.
Is Ruben entitled to compensation in terms of the Act? Explain and refer to case law
to substantiate your answer. (8)
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 11
Gerald Smith is one of several truck drivers in the employ of BP Gas. The drivers’ duties
include the transport of gas and delivery of orders to customers of BP Gas. Gerald noticed a
number of orders ready for delivery. Without the required inspection by the safety unit, he
loaded 150 gas bottles for delivery to a customer. He had on several previous occasions
been reprimanded for not adhering to safety regulations and procedures. On his way to
deliver the gas bottles he negligently caused an accident. He was severely injured and
remained in hospital for seven weeks. Thereafter he had to undergo rehabilitation therapy
for injuries sustained to his legs.
With reference to the above facts, discuss:
(a) the requirement that an accident must take place in the scope of an employee’s
employment; (8)
(b) whether Gerald is eligible for compensation under the Act; (4)
Compensation for Occupational Injuries and Diseases Act 130 of 1993 171

(c) what the position would have been had Gerald caused the accident while under the
influence of liquor and died in the accident. (4)

Question 12
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 post-
traumatic stress disorder. He claimed compensation from the Compensation Commissioner
in terms of the Act. In his application he submitted that he had during the course of his
work been exposed to numerous deaths, shootings, murders, armed robberies, culpable
homicides, 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 atten-
tion 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).
172 A Practical Guide to Labour Law

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
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 percent-
age.
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.
Compensation for Occupational Injuries and Diseases Act 130 of 1993 173

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 occupa-
tional 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
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 hydro-
carbons
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
174 A Practical Guide to Labour Law

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, periph-
eral blood vessels or peripheral nerves)
1.2.3. Diseases caused by work in compressed air/abnormal atmospheric or water pres-
sure
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)
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
Compensation for Occupational Injuries and Diseases Act 130 of 1993 175

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 environ-
ment 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
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 resi-
dues 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
176 A Practical Guide to Labour Law

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-
ner in the business? ....................................................................................................................
13. Surname ........................................................... 14. First names ..............................................
15. Id. No. ......................................... 16. Date of Birth ...../...../..... 17. Sex Male Female

18. Marital state Married Single 19. Citizen of .......................................................

20. Personnel No. ..................................... 21. Occupation .........................................................
22. Street address ............................................................................... 23. Postal code ..................
Period in your employ Expected period of
24. 25. 0–13 days 14 and more
(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
Yes No
or business? (If “no” state reasons on reverse side)
Compensation for Occupational Injuries and Diseases Act 130 of 1993 177

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)
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 em- Poisoning Lifting machines
ployee
Fault of supervisor Burns Hand tools

Other machinery (specify) ........................................................................................................

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

.............................................................................................................................................................
.............................................................................................................................................................
.............................................................................................................................................................
.............................................................................................................................................................
.............................................................................................................................................................
.............................................................................................................................................................
.............................................................................................................................................................
.............................................................................................................................................................
.............................................................................................................................................................
.............................................................................................................................................................
.............................................................................................................................................................
.............................................................................................................................................................
178 A Practical Guide to Labour Law

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?
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
Compensation for Occupational Injuries and Diseases Act 130 of 1993 179

(b) Reckless disregard of the terms of any law or statutory regulation

designed to ensure the safety or health of employees or the pre- Yes No
vention of accidents?
(c) Action while under the influence of liquor or drugs? Yes No
(N.B.: If any reply is in the affirmative, the employee must furnish an explanatory state-
ment 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.

180 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 ..........................................................................................................
Compensation for Occupational Injuries and Diseases Act 130 of 1993 181

4. THE EMPLOYEE’S EARNINGS AT TIME OF ACCIDENT

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
 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 Machinery and Occupational Safety Act 6 of 1983 was replaced with the Occupa-
tional Health and Safety Act 85 of 1993 (OHASA) 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 pro-
vide for matters connected therewith.
OHASA incorporates a number of improvements on its predecessors. Some of these are:
• an employer’s right to unilaterally appoint health and safety representatives is attenuated
by the requirement that he should consult with his employees or their representatives in
this regard (s 17(2));
• 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);
• the Act 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 employer’s duties to inform his workforce of dangers present in the working environ-
ment and to provide training are extended (s 8);
• if directed to do so by the Chief Inspector, employers must prepare written health and
safety policies (s 7);
• protection of the public from health and safety hazards emanating from the workplace
has been increased (s 9).

7.2 Application of the Act

The scope of this Act 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

183
184 A Practical Guide to Labour Law

exposed to hazards, even though this is not supposed to occur in the context of employ-
ment. In addition, the Minister may declare that, for the purposes of the Act or some sec-
tions of the Act, a person or category of persons specified by him will be deemed to be an
employee.
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 this Act.

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 repre-
sented 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 publica-
tion of standards, specifications and other forms of guid-
FUNCTIONS ance in order to assist employers and employees to
OF maintain appropriate standards.
THE COUNCIL • Advise the Department on the promotion of education
and training in occupational health and safety.
• 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
performance 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 with-
out 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;
(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;
Occupational Health and Safety Act 85 of 1993 185

(g) to ensure that work is performed and that plant or machinery is used under the super-
vision of a trained person;
(h) to conduct his business in such a manner so as to ensure that persons other than em-
ployees are not exposed to hazards to their health and safety;
(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, inves-
tigations or formal enquiries of which he 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 (s 11) and, if possible,
prevent the exposure of employees to such work. If prevention is not possible, their ex-
posure must be minimised. An employer must also conduct an occupational hygiene
and biological monitoring programme (ss 11 and 12);
(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 regard-
ing the use of any article or substances;
(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)

An employee also has duties with regards health and safety at the workplace. An employee
must:
(a) take reasonable care of the health and safety of himself and other workers;
(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 his 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 con-
sultation with his workforce or their representatives) in writing one or more of his full-time
employees as health and safety representatives for the workplace or different sections there-
of. 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. Such appointments must be made within
four months after the commencement of this Act, within four months after the employer
186 A Practical Guide to Labour Law

commences business or within four months from such time as the number of employees
exceeds 20, as the case may be.
Before an employer appoints one or more health and safety representatives he must con-
sult with the employees or their representative(s), such as a trade union, regarding the
arrangements and procedures for the nomination or election, terms of office and subse-
quent designation of health and safety representatives. If the employer and his employees
cannot agree on the appointment of health and safety representatives, the matter must be
referred to private 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
in the Labour Relations Act, the CCMA must perform the functions previously performed
by the Industrial Court. The counter-argument is that, because the Industrial Court no
longer exists, this provision in the Act falls away. An amendment to this provision in
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 train-
ing 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
FUNCTIONS OF other matters regarding the health and safety of employees.
HEALTH • Inspect the workplace, articles, substances, machinery and
AND SAFETY safety equipment at such intervals as may be agreed upon
REPRESENTATIVES with the employer.
• Consult with and accompany inspectors on inspections.
• Attend meetings of health and safety committees.
• 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 estab-
lish 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.
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
Occupational Health and Safety Act 85 of 1993 187

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 in 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 in-
spector 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.
• Must discuss any incident in which a person was injured,
FUNCTIONS became ill or died and may in writing report on the incident
OF to a labour inspector.
COMMITTEES • Must keep record of all recommendations made to the em-
ployer 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.
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 and 32). These
functions 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 doc-
uments.
• May examine such books, records or documents
• May require an explanation of any entry in such books,
records or documents.
• May seize any such book, record or document which may
GENERAL serve as evidence at a trial of a person charged with an of-
FUNCTIONS & fence under this Act;
POWERS • 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.
188 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.
• May designate any person to lead evidence and to examine
INVESTIGATIONS 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 his employ-
ees at work, including a description of his organisation and the arrangements for carrying
out and reviewing the policy. Such direction must be accompanied by guidelines concern-
ing 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.
Occupational Health and Safety Act 85 of 1993 189

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 in-
dustry is governed by the Mine Health and Safety Act 29 of 1996. This Act applies to mines,
mining areas and works.
According to the Act, the employer must 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 neces-
sary 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 circum-
stances 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 tripar-
tite 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 the
Occupational Health and Safety Act of 1993.
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 em-
ployer 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 commit-
tees.

Questions

Question 1
Discuss the appointment and functions of health and safety representatives. (15)
190 A Practical Guide to Labour Law

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) and 28(1).
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 and 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) and 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 and 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 the Act, the employer is exempted from notifying the Compensation Commissioner
of that accident as is normally required by the Compensation for Occupational
Injuries and Diseases Act of 1993. (2)
Question 5
The manager 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 general union. The shop steward of the union at
the new plant approaches the manager, requesting that he should be appointed as health
and safety representative for the new plant. The manager 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 ques-
tions. 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 repre-
sentative? (5)
Occupational Health and Safety Act 85 of 1993 191

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) and 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 aug-
ment 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
the Act, as well as s 24 (in particular paragraph 24(1)(a)). See also regs 12 and 16 of
the General Administrative Regulations (issued under the Machinery and Occupa-
tional Safety Act).
6.3 The situation is similar to the one described in question 6.2, except that the backyard
mechanic hired the saw from Y. Explain who could be held responsible, Y or the
backyard mechanic. (3)
Hint: See the definition of “user” in s 1 of the Act.

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
Discuss the duties of employees and employers in terms of the Act. (20)

Question 9
Mr X, the Chief Executive Officer of XYZ Co, discovers that the welding equipment recently
purchased by him does not meet the prescriptions of the Act. Since the replacement of this
equipment will be costly he tries to recoup some of this cost by selling all but one of the
welding machines to a small mechanical workshop. The remaining welding machine he
gives to his neighbour, Mr Y, who is a full time “backyard mechanic”. Mr Y gives Mr X a
verbal assurance that he knows how to adapt the welding machine so that it will comply with
the prescribed requirements. Discuss the legality of both these transactions by reference to
the applicable provisions of the Act. (10)

Question 10
On instruction of an inspector an employer put up no-smoking notices in those sections of
the factory where flammable materials were used. All employees were informed of the
192 A Practical Guide to Labour Law

no-smoking rule in those areas and the supervisors in those sections were instructed to see
to it that employees do not smoke in the demarcated areas. Despite the rule a practice has
developed over time that workers light up at their work stations when they are about to
leave for lunch or going off duty. They then smoke while walking through the non-smoking
areas to the exits. No one seemed to regard this practice as unacceptable and, indeed, some
supervisors were seen doing the same. One day a fire broke out in one of the non-smoking
areas and it was established that the fire was caused by a spark when a worker lit his pipe. As
a result of the fire three workers sustained severe injuries. Explain whether the employer
can be held liable in terms of the Act. (10)

Question 11
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 circum-
stances. (5)
Occupational Health and Safety Act 85 of 1993 193

Appendix
1
ANNEXURE 1
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
Eye Trunk Finger Hand
neck
Arm Foot Leg Internal Multiple

7. Effect on person Sprains or Contusion

Fractures Burns Amputation
strains or wounds
Occupa-
Electric Asphyxi- Uncon-
Poisoning tional
shock ation sciousness
Disease

8. Expected period of > 52 weeks or

0–13 2–4 > 4–16 > 16–52
disablement permanent Killed
days weeks weeks weeks
disablement
9. Description of occupational disease ..........................................................................................
10. Machine/process involved/type of work performed/exposure** ...........................................
.....................................................................................................................................................
.....................................................................................................................................................
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.
194 A Practical Guide to Labour Law

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

...................................................................... ......................................................................
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 Employ-
ees In-Service Training Act was introduced in 1976 and the In-Service Training Act in 1979.
The Wiehahn Commission recommended the consolidation of 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 employment-
related 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 fol-
lowed, 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 Develop-
ments 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
and the Higher Education Laws Amendment Act 26 of 2010. A significant change was the
transfer of certain responsibilities in terms of the Act 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
1
the Minister of Higher Education and Training. The Minister of Labour retained responsi-
bility for administering the provisions of the SDA dealing with employment services and
workplace productivity.

________________________

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

195
196 A Practical Guide to Labour Law

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” encom-
passes three kinds of competence: practical competence (the demonstrated ability to per-
form 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 cur-
rent vision, principles and objectives of the National Skills Strategy. This strategy applies until
2015 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 self-
employment, 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 was the first of four major policy initiatives by the Ministry
of Labour. Thereafter, in partnership with the then Minister of Education, the South Afri-
2
can Qualifications Authority Act of 1995 was promulgated. In 1996 two Green Papers were

________________________

2 The National Qualifications Framework Act 67 of 2008 has repealed the South African Qualifications
Authority Act 58 of 1995 in its entirety.
Skills development 197

developed: Policy Proposals for a new Employment 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 2015.
The Labour Relations Act stipulates that bargaining and statutory councils have “to pro-
mote and establish training and education schemes” (ss 28(f) and 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 intermediar-
ies, 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 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 a 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 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 is the result of in-depth discussions and work within the Depart-
ment of Labour and the social partners in the National Training Board and in industry
training boards. This Act replaces the Manpower Training Act, the Guidance and Place-
ment Act of 1981, the Local Government Training Act of 1985 and sections 78 to 87 of the
Telecommunications Act of 1996. The Act 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
– to improve the quality of life of workers, their prospects of work and labour mobility;
– to improve productivity in the workplace and the competitiveness of employers;
– to promote self-employment; and
– to 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;
• to improve the employment prospects of persons previously disadvantaged by unfair dis-
crimination and to redress those disadvantages through training and education;
198 A Practical Guide to Labour Law

• to ensure the quality of learning in and for the workplace;

• to help workseekers find work, retrenched workers to re-enter the labour market and
employers to find qualified employees; and
• to provide and regulate employment services.

8.4.3 Structures of learning

The Department of Higher Education and Training is primarily responsible for the admin-
istration of the regulatory scheme of the Skills Development Act and the Skills Develop-
ment Levies Act. The Department of Labour remains responsible for the administration of
the provisions of the SDA dealing with employment services and workplace productivity.
The following bodies play an important role in skills development:

DEPARTMENT OF HIGHER EDUCATION

NSA
AND TRAINING

QCTO

SETA SETA NATIONAL ARTISAN MODERATION BODY

CHAMBER CHAMBER

LEARNERSHIP SKILLS PROGRAMMES

AND

DEPARTMENT OF LABOUR PROVINCIAL OFFICES LABOUR CENTRES

AND

SKILLS DEVELOPMENT INSTITUTE WORKPLACE PRODUCTIVITY

Skills development 199

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

The NSA is introduced as a vehicle to promote the strategic focus of skills development and
co-ordination between the different stakeholders. The NSA replaces the old National Train-
ing Board (NTB) and has wider powers than the NTB had, thereby giving industry, com-
munity 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 Act and is composed of a voting
chairperson, 24 voting and 6 non-voting members appointed by the Minister. These mem-
bers are nominated by NEDLAC and represent organised business, organised labour, the
State, community development organisations, training providers, employment services,
SAQA and the Quality Council for Trades and Occupations (QCTO). The Director-General
appoints a non-voting executive officer for the NSA. The executive officer assists the NSA
and its committees in the performance of their functions.
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 sub-
sidies 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.

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

A Sector Education and Training Authority (SETA) is the authority which combines the
functions of industry training boards, education and training quality assurers and those
additional functions required to implement the Skills Development Strategy.
The Minister may, by notice in the Government Gazette and for a period specified in the
notice, establish or re-establish a SETA for any national economic sector. In determining
that specific sector, the Minister must take into account 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. The Minister must also consider the
potential of the proposed sector for coherent occupational structures and career-pathing,
the scope of any national strategy for economic growth and development and the financial
and organisational ability of the proposed sector to support a SETA. The organisational
structures of trade unions, employers’ organisations and government departments must be
considered and consensus among them with regard to the sector must be sought (s 9).
The Minister may, after consulting with the NSA and the SETA concerned, change the
sector of a SETA, amalgamate two or more SETAs or dissolve a SETA which is unable to
perform its functions. Notice of these changes must be given in the Government Gazette (ss 9
and 9A).
The Minister must provide every SETA with a constitution in line with a standard consti-
3
tution prescribed by him. The standard constitution must inter alia set out the composition,
________________________

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

200 A Practical Guide to Labour Law

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; estab-
lish and identify the functions of committees, such as executive, audit and finance commit-
tees; 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 sys-
tem. 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 is recommended by the
NSA (s 13).
The Minister must appoint the accounting authority of every SETA. The authority is
composed of a chairperson and 14 members representing organised labour, organised
business, relevant government departments, professional bodies, bargaining councils and
community organisations. In appointing these members the Minister should have regard to
the interests identified in the national skills development strategy, to the knowledge, skills
and expertise required for the effective running of the SETA and to the representation of
disadvantaged groups (s 11).
The accounting authority must within six months of its appointment and after following
a transparent process submit a list of three persons with experience in accounting, financial
and senior management matters to the Minister. The Minister must appoint one of the
three as Chief Executive Officer of the SETA (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 Min-
ister, 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 strat-
egy;
• 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 the Department and any other
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 pro-
vide the SETA (s 10A).
A SETA is financed mainly from skills development levies collected in its sector and mon-
ies 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).
Skills development 201

If a SETA is not performing its functions, fails to comply with the service-level agreement,
is not managing its finance according to the Act, is not representative or does not have an
employment equity plan, the Minister may issue a written instruction, setting out the steps
the SETA is required to take and the period within which such steps must be taken (s 14A).
If a SETA fails to perform its functions, is guilty of mismanagement or is no longer rep-
resentative of the stakeholders, the Minister may, after consultation with the NSA and by
notice in the Government Gazette, direct the Director-General to appoint an administrator to
take over the administration of the SETA (s 15).

8.4.6 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. Once a learnership has been established, the SETA
must register it 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 the
specified practical work experience and allow him to attend the specified education and
training;
• the learner must work for the employer and attend the specified education and training;
and
• the skills development provider must provide the learner with the specified education
and training and the necessary support.
Every learnership agreement must be registered with the relevant SETA and a record of
learnership agreements must be presented to the Director-General.
A learnership agreement can be terminated before the specified date if the learner suc-
cessfully completes the learnership, if the SETA approves such termination or if the learner,
as an employee, is fairly dismissed for incapacity or misconduct. It is possible to substitute
the employer or the skills development provider, with the consent of the learner and the
approval of the SETA.
Any dispute arising from learnership agreements must be dealt with through the dispute
resolution procedures set out in section 133 of the Labour Relations Act.
The employer and the learner must enter into a contract of employment if the learner was
not in the employment of the employer when the learnership agreement was concluded. The
contract of employment is subject to any terms and conditions determined by the Minister
on recommendation by the Employment Conditions Commission (ECC). The parties to an
agreement must also take cognisance of any sectoral determinations that may be applicable
to them (s 18(3) and (4)).
The Act also makes provision for training programmes other than learnerships. A SETA
or any other body authorised by the Minister may manage the implementation of such a
training programme. If the programme has been registered by SAQA it qualifies for finan-
cial assistance.

8.4.7 Artisans (Ch 6A ss 26A–26D)

The Skills Development Amendment Act 37 of 2008 introduced into the SDA a new chapter
to regulate artisan development. A person who wishes to qualify as an artisan in a specific trade
must undergo an apprenticeship. An apprenticeship is a learnership in respect of a listed
trade. A listed trade is a trade designated by the Minister as one for which a formal artisan
qualification is required. The person is employed in, works and does a learnership in a
listed trade. Once the learner or apprentice has completed the learnership, he has to write
a trade test and, if successful, becomes an artisan.
202 A Practical Guide to Labour Law

Chapter 6A provides for the establishment and functions of a national artisan modera-
tion body, the listing of trades, trade tests and the establishment and maintenance of a
national register of artisans.
• National artisan moderation body: The Director-General must establish a national artisan
moderation body to monitor the performance of accredited artisan trade test centres,
moderate artisan trade tests, record artisan achievement, develop and maintain a nation-
al data-bank of assessors and moderators and recommend the certification of artisans to
the QCTO.
• Listing of trades: The Minister may, on application by one or more SETAs, by notice in the
Government Gazette list any occupation as a trade for which an artisan qualification is re-
quired.
• National register of artisans: The Director-General is required to maintain a register of per-
sons who have obtained an artisan qualification and who are practising that trade. The
Act prohibits anyone, whether employed or self-employed, from holding himself or her-
self out as a qualified artisan in a listed trade unless he or she is registered on the nation-
al register.
• Trade tests: No person may obtain an artisan qualification unless he or she has successfully
undergone a trade test administered by an accredited trade test centre. A person may
apply to undergo a trade test if he or she has completed a learnership relevant to the
trade or satisfied the relevant requirements of an apprenticeship or if an accredited
trade test centre has certified that he or she has acquired sufficient prior learning related
to that trade. The applicant must also have completed any other learning programme
resulting in an occupational or vocational qualification that entitles him or her to un-
dergo the relevant trade test. The QCTO must issue trade certificates to persons who suc-
cessfully complete trade tests.

8.4.8 Skills programmes (Ch 5 ss 20–21)

A “skills programme” is a programme that is occupationally based and, when completed,
will constitute a credit towards a qualification registered in terms of the National Qualifica-
tions Framework.
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 may be funded if it is a “skills pro-
gramme” by definition, if it has been developed in accordance with the sector skills plan
and the national skills strategy and if all requirements set by the SETA or the Director-
General have been complied with. 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 train-
ing 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.

8.4.9 Labour centres (ss 23–26)

The Director-General must establish labour centres within the Department of Labour. In
addition, private employment services may be registered. They must be registered before
they may provide any employment service for gain.
Employment services are rendered to employees, unemployed persons, workseekers and
employers. These services comprise counselling on career choices, assessing workseekers for
entry or re-entry into the labour market or for education and training, referring workseek-
ers to employers or education and training providers, assisting employers by providing re-
cruitment and placement services, advising employers on the availability of workseekers and
advising them on retrenchments and the development of social plans.
The main functions of labour centres are:
• to provide information for workers, employers, skill development providers and the un-
employed;
Skills development 203

• to register workseekers and placement opportunities;

• to help workers and categories of persons prescribed by regulation enter learning pro-
grammes, find placement opportunities, start income-generating projects and participate
in placement programmes;
• to develop plans, programmes and strategies to extend employment services to rural
communities; and
• to perform any other related functions prescribed by regulation.
The Minister may by notice in the Government Gazette require employers to notify a labour
centre of any vacancy and of the employment of any workseeker referred to them by a
labour centre.
Should an employment service fail to comply with the prescriptions of the Act, its regis-
tration may be cancelled. An aggrieved person may appeal to the Labour Court against the
decision of the Director-General not to register an employment service or to cancel the
registration of such a service.

8.4.10 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
may provide advisory services on skills development, mentoring and the recognition of
prior learning and may provide learning programmes.

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

The QCTA was established as a juristic person in terms of section 26G of the Act and is
composed of 16 members appointed by the Minister.
The main functions of the QTCA are to advise the Minister on all matters of policy con-
cerning occupational standards and qualifications and to develop and manage the occupa-
tional qualifications framework. The QTCA must also promote the objectives of the National
Qualifications Framework and liaise with the NSA, SAQA and other quality councils and
professional bodies on occupational standards and qualifications.

8.4.12 Productivity South Africa (ss 26K–26N)

Productivity South Africa was established as a juristic person in terms of section 26K of the
Act. It is composed of seven members appointed by the Minister. The functions of Product-
ivity 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.

8.4.13 Department of Labour

The Director-General must ensure that the Department of Labour, its provincial offices and
labour centres have the personnel and financial resources to perform its functions in terms
of the Act. The functions of the Department are to research and analyse labour market
trends in order to determine skills development for South Africa as a whole and for each
sector of the economy and organ of state and assist in formulating the national skills devel-
opment strategy and sector skills development plans. The Department must also provide
the Minister, NSA, SETAs, education and skills development providers, organs of state, skills
development forums in each province and the QCTO with information on skills.
The functions of provincial offices of the Department in respect of employment services
are to plan, co-ordinate, support, monitor and report all activities occurring at all labour
centres, establish a skills development forum and maintain a database of skills development
providers.
204 A Practical Guide to Labour Law

8.4.14 Financing of skills development (ss 27–30)

The Act provides for the establishment of the National Skills Fund (NSF). The NSF derives
its funding from 20% of the levies contemplated in section 8(3)(a) of the Skills Develop-
ment Levies Act, levies collected in respect of those sectors in which there are no SETAs
(s 8(3)(c)), money appropriated by Parliament, interest earned on investments and dona-
tions to the Fund.
The Fund may be used for only those projects identified in the national skills develop-
ment strategy as national priorities or any other projects related to the achievement of the
purpose of the Skills Development Act.
The Fund is under the control of the Director-General, who acts as the accounting officer
of the Fund and he must keep proper records and prepare the necessary financial state-
ments.
Every public service employer in the national and provincial governments must allocate
at least 1% of its payroll for the training and education of their employees.

8.4.15 General provisions

The Labour Court has exclusive jurisdiction in respect of all matters arising from the Act. In
this regard the Labour Court may review any act of any person in connection with this Act
on any grounds permissible in law (s 31).
The monitoring and enforcement of this Act will be done in exactly the same manner as the
Basic Conditions of Employment Act. For this purpose Chapter 10 and Schedule 2 of the
latter Act is applicable in the case of the Skills Development Act (s 32).
A number of offences are created in the Act, for example, the obstruction or undue influ-
ence of any person performing a function in terms of the Act, furnishing false information
and the provision of employment services for gain without having being registered. A con-
viction can lead to a fine or imprisonment not exceeding one year.
Schedule 2A caters for several transitional arrangements. Any contract of apprenticeship
registered by a training board and in existence immediately before the commencement of
the Amendment Act of 2008 remains in force as if the Manpower Training Act had not
been repealed. Any function of the registrar must be performed by an official appointed in
writing by the Minster; any function of a training board by the corresponding SETA and
any function of the National Training Board by the NSA. Any disputes about contracts or
conditions of apprenticeships are deemed to be disputes about learnership and must be
dealt with in terms of section 19 of the SDA. If certain requirements are met a contract of
apprenticeship between an employer and an apprentice may be converted into a learner-
ship agreement.

8.5 Skills Development Levies Act 9 of 1999

Funding for education and training envisaged by the Skills Development Act is to be ob-
tained from government grants and a levy payable by employers. The payment of levies is
governed by the Skills Development Levies Act 9 of 1999, which came into effect on 1 Sep-
tember 1999.
The Levies Act makes provision for a compulsory levy scheme to fund education and
training and is administered by both the Director-General of Higher Education and Train-
ing and the Commissioner for the South African Revenue Service. The SARS Commissioner
is involved in only the collections of the levies, whilst the Director-General of Higher Educa-
tion administers the balance of the provisions of the Act.
Employers who are not exempted from the provisions of the Act must register with the
Commissioner of the SARS and pay the prescribed monthly levy.
Skills development 205

8.5.1 Registration for payment (s 5)

All employers who are liable to pay the levy must apply to the SARS Commissioner for regis-
tration. The jurisdiction of the SETA within which the employer falls must be indicated in
the application. The employer must also apply to the relevant SETA to be registered as an
employer for the purposes of the payment of the levy.
If an employer falls within the jurisdiction of more than one SETA it must, with regard to
the composition of the workforce, the amount of remuneration payable to the different cate-
gories of employees and their training needs, select one SETA within which it must be
classified.

8.5.2 Employers liable to pay (s 4)

Every employer who is not exempt from the payment of the levy must pay a skills develop-
ment levy. The following employers are exempt:
• any public service employer in the national or provincial sphere of government;
• any employer whose total payroll for the next 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 organ-
isation (ss 10(1)(cN) and 30 of the Income Tax Act);
• any national or public entity if 80% or more of its expenditure is defrayed, directly or in-
directly, 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.

8.5.3 Payment of levies (ss 3 and 6–12)

The levy or leviable amount is based on the total amount of the remuneration paid or
payable (or deemed to be paid or payable) during any month by the employer to employ-
ees, as determined in accordance with the Fourth Schedule to the Income Tax Act. With
effect from 1 April 2001 the levy payable, amounts to 1% of the employer’s payroll or the
leviable amount.
The leviable amount includes all remuneration paid to employees from which employ-
ees’ tax has been withheld and includes remuneration paid to employees who are below the
tax threshold. Excluded from the leviable amount is any amount paid or payable as a pen-
sion, superannuation allowance or retiring allowance and any amount payable to a learner
under a contract of employment.
At the request of a SETA the Minister may, after consultation with the Minister of
Finance, determine a rate and basis for the calculation of a levy payable by employers within
the jurisdiction of that SETA that differs from the determined rate and basis, provided that
such levies are not less than the amount of the specified levies.
Levies are payable to the Commissioner of the SARS, unless the Minister provides for
payment directly to a particular SETA.
An employer must pay the levy to the Commissioner within seven days after the end of
each month. If the amount paid to the Commissioner was not leviable or payable, or if it
was in excess of the amount leviable or payable, the Commissioner must refund the amount
overpaid.
The Commissioner must notify the Director-General each month of:
• the names of employers within each SETA and the amounts collected from and refunded
to them;
• the names of those employers who do not fall within the jurisdiction of a SETA and the
amounts collected from and refunded to them.
206 A Practical Guide to Labour Law

The levies collected by the Commissioner must be paid into the National Revenue Fund.
The Director-General must allocate the funds as follows:
(a) if there is a SETA 20% of the levies must be allocated to the National Skills Fund and
80% to the SETA (provided the SETA has complied with the provisions of the Skills
Development Act);
(b) if there is no SETA 100% of the levies must be allocated to the NSF.
Certain provisions of the Income Tax Act are applicable to the levies paid or payable to the
Commissioner (s 13). These provisions relate, inter alia, to administration, assessments,
objections and appeals, refunds and reporting of unprofessional conduct.
The Minister may determine that the levy is payable to a SETA and not to the Commis-
sioner. Before making such a determination the Minister and the Minister of Finance must
be satisfied that sufficient grounds exist for the SETA to collect the levies from the employ-
ers in its jurisdiction, that the SETA (or nominated body) has demonstrated that it is com-
petent to collect the levy and that the costs of collection will not exceed 2% of the total
amount of the levies collected.
Where the levies are to be paid to a SETA, they may be paid directly to that SETA or to a
body nominated by the SETA to collect the levies on its behalf. The executive officer of the
SETA must then pay 20% of the levies collected to the NSF.
A labour inspector appointed in terms of the Basic Conditions of Employment Act is
regarded as an inspector for the purposes of this Act in so far as it relates to the collection
of levies by a SETA. The Director-General may designate any person to be an inspector of a
SETA or its nominated body. Inspectors have the same powers and functions as provided
for in the Basic Conditions of Employment Act.
A levy payable by an employer to a SETA or its nominated body is regarded as a debt due
to the SETA. Any amount that remains unpaid on the due date may be recovered by action
in a magistrate’s court having jurisdiction in the area in which the employer carries on busi-
ness.
The Commissioner or the SETA that collected the levies, may withhold a collection fee
and pay the remainder to the NSF. Interest, as well as a penalty of 10% of the unpaid
amount are payable on the late payment of levies.

8.5.4 General provisions (ss 20–24)

The Act provides for a number of offences, such as the failure to apply for registration, the
failure to pay a levy or the furnishing of false information. Upon conviction a person is
liable to a fine or imprisonment not exceeding one year (s 20).
An employer must prove that the information supplied by him in any statement is accurate
(s 21).

8.6 Payment of grants

In terms of the regulations published by the Minister employers who are up to date with the
payment of the skills levy can claim skills grants from their SETA. Such employers may
claim mandatory grants or discretionary grants. The relevant SETA must pay mandatory
grants to an employer who has adopted and implemented a work skills plan. This grant may
be the equivalent of 50% of the total levies paid by the employer in the financial year.
A SETA may determine and allocate a discretionary grant for the funding of inter alia
research; the training of sector specialists; employers who provide learners with work ex-
perience opportunities; learnerships; adult basic education and training; and institutions of
sectoral or occupational excellence. The criteria for the payment of these different categor-
ies of discretionary grants must be set by the relevant SETA.
Skills development 207

These grants may be allocated to employers falling within the jurisdiction of the SETA,
including employers who are not liable to pay the skills levy, to other associations or organ-
isations that meet the criteria for the payment of such grants and to public service employ-
ers in the national and provincial sphere of government.

Questions
Question 1
Discuss the objectives of the National Skills Development Strategy. (20)

Question 2
Give a detailed exposition of the purposes of the Skills Development Act. (12)

Question 3
Briefly state the purpose for which each of the following bodies has been established and
give its main functions:
(a) the National Skills Authority; (8)
(b) a SETA; (10)
(c) labour centres; (5)
(d) national artisan moderation body; and (4)
(e) Quality Council for Trades and Occupations. (4)

Question 4
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 5
A learner is fairly dismissed by his employer due to misconduct. Briefly discuss the conse-
quences of such a dismissal. (5)

Question 6
6.1 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)
6.2 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 7
Discuss the establishment and financing of the National Skills Fund. (4)

Question 8
Discuss the purpose of the Skills Development Levies Act and then refer to:
8.1 employers who are liable to pay the levy; (6)
8.2 registration of those employers; (4)
8.3 the payment of levies; (20)
8.4 grants that employers who provide training may apply for. (8)
208 A Practical Guide to Labour Law

Appendix

GN 691 – Government Gazette 35626 – 31 August 2012

DEPARTMENT OF HIGHER EDUCATION AND TRAINING

SKILLS DEVELOPMENT ACT, 1998 LISTING OF OCCUPATIONS AS TRADES
FOR WHICH ARTISAN QUALIFICATIONS ARE REQUIRED
I, Bonginkosi Emmanual Nzimande, MP, Minister of Higher Education and Training, hereby
issue a definition and criteria to classify an occupation as a trade and a list of trade occupations
in terms of Section 26B of the Skills Development Act, 1998 (Act No. 97 of 1998) attached in the
schedules 1 and 2 respectively.
(Signed)
DR BE NZIMANDE, MP
MINISTER OF HIGHER EDUCATION AND TRAINING

SCHEDULE 1
Definition and Criteria to Classify an Occupation as a Trade
Section 26B of the Skills Development Act indicates that SETAs may apply to the Minister in the
prescribed form to include an occupation as a listed trade in the Gazette.
In order to align the inclusion of any such occupation as a trade on the gazetted list with estab-
lished skills development planning processes, SETAs will be required to include such an appli-
cation on the form as prescribed in the procedure of submitting new occupations to the
Department for inclusion on the Organizing Framework of Occupations (OFO).
However any occupation that a SETA wants to be included as a trade on the OFO must first be
submitted to the National Artisan Moderation Body (NAMB) for evaluation and possible en-
dorsement that the occupation meets the criteria for classification of an occupation as a Trade.
The relevant forms to request new occupations on the OFO have been adjusted to include the
submission of such an application by a SETA to NAMB should the SETA wish to do so.
In this regard the Skills Development Amendment Act defines:
• An artisan as “a person who has been certified as competent to perform a listed trade in
accordance with the Skills Development Act”
• A trade is “an occupation for which an artisan qualification is required in terms of section 26
B” of the Skills Development Act.
The NAMB will utilize the titles, descriptors, alternate titles, and tasks from the prevailing version
of the OFO as the basis to determine which occupations are trades and can be listed by the Min-
ister.
Criteria that will be utilized by NAMB to classify occupations as Trades.
The occupational titles, descriptors, alternate titles, and tasks will be compared to the following
broad generic description of a trade:
An occupation where in a qualified person applies a high level of practical skills supported
and re-enforced by underpinning and applied knowledge to:
• Manufacture, produce, service, install or maintain tangible goods, products or equipment
in an engineering and/or technical work environment (excluding process controllers and oper-
ators).
• Uses tools and equipment to perform of his/her duties.
• Measure and do fault finding on process, manufacturing, production and/or technical
machinery and equipment to apply corrective or repair actions.
• Apply and adhere to all relevant health, safety and environmental legislation.
• Has an accumulative learning period covering knowledge, practical and workplace learn-
ing that is equivalent to three or more years.
Skills development 209

The route to achieve artisan status will also be considered as such a route is uniquely character-
istic of a trade and usually includes features such as:
• a structured learning programme of knowledge, practical and work experience;
• a structured learning programme that must be successfully completed before a final assess-
ment is attempted;
• a final external summative assessment that must be passed and is known as a trade test.
Historic and global classification of occupations as trades will also be considered.
Any occupation that is determined by NAMB to align to the above criteria will be endorsed for
classification as a trade.

SCHEDULE 2
Occupations to be listed as trades for which artisan qualifications are required:
The list below is based on the prevailing version of the Organising Framework for Occupations
(OFO).
Specialisations under trades as listed could be checked using the prevailing version of the Organ-
ising Framework for Occupations.

OFO Code Trade

343401 Chef
514101 Hairdresser
641201 Bricklayer
641301 Stonemason
641303 Refractory Mason
641501 Carpenter and Joiner
641502 Carpenter
641503 Joiner
642201 Wall and Floor tiler
642302 Plasterer
642501 Glazier
642601 Plumber
642603 Gas Practitioner
642607 Pipe Fitter
642701 Air-Conditioning and Refrigeration Mechanic
642702 Refrigeration Mechanic
643101 Painter
643202 Vehicle Painter
651101 Moulder
651202 Welder
651203 Fitter-Welder
651301 Sheet Metal Worker
651302 Boiler Maker
651401 Metal Fabricator
651404 Structural Plater
continued
210 A Practical Guide to Labour Law

OFO Code Trade

651501 Rigger
652101 Blacksmith
652201 Toolmaker
652202 Gunsmith
652203 Locksmith
652204 Patternmaker
652206 Die Sinker
652301 Metal Machinist
652302 Fitter and Turner
652403 Saw Maker and Repairer
653101 Automotive Motor Mechanic
653103 Motorcycle Mechanic
653109 Automotive Engine Mechanic
653201 Aircraft Maintenance Mechanic
653202 Aircraft Structures Worker
653301 Industrial Machinery Mechanic
653303 Mechanical Fitter
653304 Diesel Fitter
653305 Small Engine Mechanic
653306 Diesel Mechanic
653307 Heavy Equipment Mechanic
653308 Tractor Mechanic
653309 Forklift Mechanic
661101 Precision Instrument Maker and Repairer
661102 Watch and Clock Maker and Repairer
661103 Scale Fitter
661201 Musical Instrument Maker or Repairer
661301 Goldsmith
661302 Diamond and Gemstone Setter
661501 Glass Maker
661502 Optical Mechanic
661601 Signwriter
661602 Engraver
662101 Pre-Press Technical Worker
662104 Electronic Originator
662105 Gravure Cylinder Preparation Technician
662106 Process Engraver
662201 Printing Machinist
continued
Skills development 211

OFO Code Trade

662203 Screen Printer
662204 Paper Sheetfed offset Lithography Technician
662205 Metal Sheetfed Offset Lithography Technician
662207 Monoblock Offset Machine Technician
662208 Roll Label Machine Technician
662210 Heatset Rotary Offset Lithography Technician
662211 Coldset Rotary Offset Lithography Technician
662212 Rotary Printing and Re-reeling Flexographic Machine Technician
662213 Rotary Printing And Re-Reeling - Gravure Machine Technician
662215 Stationery Machine Technician
662301 Binder and Finisher
662304 Craft Bookbinding Technician
662305 Mechanised Hard Cover Bookbinding Technician
662306 Guillotine Operator
671101 Electrician
671202 Millwright
671203 Mechatronics Technician
671204 Lift Mechanic
671205 Weapon Systems Mechanic
671206 Electrical Equipment Mechanic
671207 Armature Winder
671208 Transportation Electrician
671301 Electrical Line Mechanic
671302 Cable Jointer
672101 Avionics Mechanician
672102 Radar Mechanic
672103 Business Machine Mechanic
672104 Electronic Equipment Mechanician
672105 Instrument Mechanician
672107 Special Class Electrician
672108 Radiotrician
672201 Data and Telecommunications Cabler
672203 Computer Engineering Mechanic / Serviceperson
672204 Telecommunications Line Mechanic
672205 Telecommunications Technician
681103 Butcher
681201 Confectionary Baker
681202 Pastry Cook
continued
212 A Practical Guide to Labour Law

OFO Code Trade

681203 Confectionery Maker
682201 Cabinetmaker
682303 Wood Machinist
682304 Wood Turner
682305 Cooper
683101 Tailor
683401 Upholsterer
684901 Textile, Clothing, Footwear and Leather Processing Machine Mechanic
684902 Farrier
684904 Panelbeater
684905 Vehicle Body Builder
684906 Vehicle Trimmer
684907 Boatbuilder and Repairer
684908 Shipwright
684909 Survival Equipment Fitter
684910 Ammunition Fitter
684913 Melter
711203 Diamond Cutter
712201 Electroplater
714208 Plastics Manufacturing Machine Setter
714209 Reinforced Plastics and Composite Trades Worker
718304 Packaging Manufacturing Machine Minder
718904 Integrated Manufacturing Line Machine Setter
734212 Railway Track Master
 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 has not
1
yet come into operation.
ESA is the product of an in-depth review by the Department of Labour, with the
assistance of the ILO, into the effectiveness of its programmes relating, inter alia, to the
provision of public employment services and the promotion of employment for work
seekers. After a comparative study among countries with similar economic conditions as
South Africa, three areas of focus were identified and prioritised by the Department: public
employment services, labour policy and industrial relations and inspection and enforce-
ment.
The Act is, therefore, aimed at the re-organisation of existing public employment ser-
2
vices and bringing programmes in line with the priorities. To this end, the ESA’s aims
include the establishment of public employment services; the establishment of schemes to
promote the employment of young work seekers and other vulnerable persons; the pro-
vision of assistance to employees in distressed companies to retain their employment; to
facilitate the employment of foreign nationals in a manner consistent with the objects of
the Immigration Act 13 of 2002; and the regulation of private employment agencies. In
order to achieve these goals the Act establishes the Employment Services Board, Produc-
tivity South Africa and Supported Employment Enterprises.
In its quest to realise the purposes of the ESA, the legislature decided to remove all the
statutory provisions relating to employment services and Productivity South Africa, at
present contained in the Skills Development Act (see Chapter 8), from that Act and rather
include them in the ESA in the hope that the changes will provide an invigorated legal basis
for the provision of public employment services.
The Act is intended to contribute to government’s objective of “more jobs, decent work
and sustainable livelihoods”. Public employment services will be 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 pro-
vides 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.

9.2 Purpose of the Act (s 2)

The overall purpose of this Act is to promote employment. This will be achieved by
improving access to the labour market, including employment prospects for vulnerable
________________________

1 As at the time of going to print.

2 Memorandum on the objectives of the Employment Services Bill, 2012.

213
214 A Practical Guide to Labour Law

work seekers; providing opportunities for new entrants to the labour market to gain work
experience; improving re-employment prospects for employees facing retrenchments;
facilitating access to education and training for work seekers, in particular vulnerable work
seekers; promoting employment, growth and workplace productivity; and facilitating the
employment of foreign nationals in a manner that gives effect to the constitutional right to
fair labour practices, but at the same time not impacting adversely on existing labour
standards and the rights and expectations of South African workers.
The purposes are to be achieved by providing comprehensive and integrated free public
employment services, co-ordinating the activities of public sector agencies whose activities
impact on the provision of employment services; establishing schemes to promote employ-
ment and regulating private employment agencies.
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.

9.3 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;
(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:
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, self-
employment 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.

9.4 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.
Employment Services Act 4 of 2014 215

9.4.1 Public employment services (s 5)

The Department of Labour 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.
In order to facilitate the matching of work seekers and work opportunities the Depart-
ment may provide vocational and career counselling, assessment of work seekers to deter-
mine suitability and any other related life skills to secure employment.
The Minister may make regulations for the reporting and registration of existing and
new vacancies. The Department has to maintain an employment information system to
monitor, evaluate, research and analyse trends in the provision of employment services.
The provision of public employment services is financed from monies defrayed from the
budget vote of the Department, 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 Department. The
financial resources earmarked for public employment services can be utilised only for the
activities and functions related to the service, as well as for schemes for 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, subsidising organi-
sations and private employment agencies that provide work opportunities or special pro-
jects for vulnerable work seekers and ministerial projects that promote the provision of
public employment services.

9.4.2 Private employment agencies (Ch 3 ss 13–19)

Private employment agencies will be 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.
The Minister must appoint a Registrar of private employment agencies. 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.
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.
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.
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 employ-
ment 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 Department of Labour.
216 A Practical Guide to Labour Law

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 con-
sider 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.

9.4.3 Productivity South Africa (Ch 5 ss 31–47)

Productivity South Africa was originally established under the Skills Development Act. 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.
The Board of Productivity South Africa, consisting of seven members appointed by the
Minister, must report to the Minister on its activities at least once a year and its report must
be tabled in Parliament.
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.

9.4.4 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.
The Minister appoints the CEO, who is also the accounting officer, of the SEE.
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.

9.4.5 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.
The Employment Services Board comprises 11 persons appointed by the Minister to
represent the State, NEDLAC, organised labour, organised business and organisations of
community and development interest.
The Board must report on its activities to the Minister at least once a year.

9.5 Work schemes

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 em-
ployed in accordance with such a scheme is subject to employment conditions as contained
in the Basic Conditions of Employment Act 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 strate-
gies, lay-offs, re-training and alternative employment opportunities (s 7).
Employment Services Act 4 of 2014 217

9.6 Employment of foreigners (ss 8 and 9)

Section 8 protects the employment of South African citizens and permanent residents by
prohibiting the employment of foreign nationals without a valid work permit (as con-
templated in the Immigration Act). The Minister can issue regulations to facilitate the
employment of foreign nationals. These regulations may include measures such as em-
ployers 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.
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.

9.7 Monitoring and enforcement

Monitoring and enforcement of compliance with the provisions of the Act 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).
The contravention of some of the provisions of the ESA is declared 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.
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).
 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 regu-
late the labour market. The first step in this process was to overhaul the laws regulating
labour relations.
1
The following problems with labour relations laws were experienced at the time:
• 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 legis-
lation over the years;
• the reliance on post hoc rule-making by the courts under the unfair labour practice juris-
diction;
• 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;
• the lack of compliance with the Constitution of the Republic and public international
law; and
• the fact that the Labour Relations Act of 1956 did not take the objectives of the Recon-
struction and Development Programme into account.
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 (NMC), representing the inter-
ests of the State, employers and employees, conducted investigations and submitted rec-
ommendations 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. This body had to be fully representa-
tive 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 of 1994.
________________________

1 For a detailed discussion see the Explanatory Memorandum in Government Gazette 16259 of 10 February
1995.

221
222 A Practical Guide to Labour Law

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 1995
bodies such as the National Manpower Commission (NMC), a statutory body, and the
National Economic Forum (NEF), a non-statutory body, played an important role in bring-
ing together organised business, organised labour and government. The object was to dis-
cuss and negotiate labour matters and policy in the case of the NMC and, in the case of the
NEF, to achieve consensus on general economic policy issues. To address economic, labour
and development issues more effectively organised business, organised labour and govern-
ment supported the establishment of one statutory body which would include the NMC and
NEF. As a result, the National Economic, Development and Labour Council (NEDLAC)
was established on 18 February 1995. It does more than any previous institution to bring to
the negotiating table mandated representatives of business, labour, government and organ-
isations representing community and development interests. According to section 9(8) of
the Act NEDLAC replaces the NMC. All the rights, duties, assets and liabilities, whether
contractually or otherwise obtained or accumulated in connection with matters entrusted
to the NMC, passed to NEDLAC on 18 February 1995.

10.2.1 Establishment of NEDLAC (s 2)

The Act provides for the establishment of the National Economic, Development and La-
bour Council. 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 finan-
cial 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
Development of South African Labour Law 223

CHAMBERS
• Composition: 6 delegates per constituency
• Drafts reports and makes recommendations to
NEDLAC

FINANCE LABOUR MARKET

TRADE AND
AND • Composition: 6 dele- DEVELOPMENT
INDUSTRY
MONETARY gates each from
organised business,
labour and the State
• Considers all mat-
ters pertaining to
the world of work
• Drafts reports and
makes recommen-
dations on labour
matters to NEDLAC

Members representing organised business and organised labour are appointed by the Min-
ister from nominations made by the different organisations, while members representing
government are appointed by the President. Members representing community and devel-
opment interests are appointed by the Minister without Portfolio in the Office of the
2
President from nominations by democratically constituted organisations. These organisa-
tions 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. This council possesses extensive competencies and may, inter alia, exercise and
perform all the powers and functions allocated to NEDLAC, adopt a constitution for NED-
LAC 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 relation-
ship with Parliament and its standing committees, develop rules and protocols for the con-
duct 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 decision-
making and social equity;
________________________

2 This Ministry was abolished in 1996. Its functions were transferred to the office of the Deputy President.
224 A Practical Guide to Labour Law

(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 econom-
ic matters.
In pursuing its goals NEDLAC has to conduct the necessary investigations and research on
social and economic matters, keep abreast of international development in social and eco-
nomic policy, continually evaluate the effectiveness of legislation and work in close co-op-
eration with departments of State, statutory bodies and other forums and non-govern-
mental agencies engaged in the formulation and the implementation of social and eco-
nomic policy.

Questions
Question 1
Briefly discuss the developments which culminated in the establishment of NEDLAC. (8)

Question 2
Name the key role-players in NEDLAC and discuss NEDLAC’s functions and objectives. (10)

Question 3
Give an exposition of NEDLAC’s structure and then briefly discuss the composition and
functions of the separate structures within NEDLAC. (20)

Question 4
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 35 of 1994, the constitution of NEDLAC must provide for:
(c) the manner in which organised labour may nominate persons for appointment as members
and
(d) the criteria by which and manner in which organised labour shall admit federations of trade
unions . . .
Clause 9 of the NEDLAC constitution provides for membership of NEDLAC. Clauses 9.4
and 9.5 stipulate that an application must be referred to the constituency concerned – i.e.
business, labour or the State – for that constituency to determine possible membership. In
compliance with clause 9, COSAWU’s application for membership was referred to the con-
venor of the labour constituency. The founding federations of the labour constituency,
COSATU, NACTU and FEDUSA, had informally set as a criterion for membership the re-
quirement that a federation represent at least 300 000 workers. Consequently, because
COSAWU represents only 250 000 workers, 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

NOTE
The Labour Relations Act 66 of 1995 (LRA) has been amended by the Labour Relations Amend-
ment Act 6 of 2014. The Amendment Act was assented to on 15 August 2014 and comes into effect
on 1 January 2015 (save for section 37(c) of the Amendment Act inserting section 198(4F) into the
principal Act).

11.1 Introduction
The Industrial Conciliation Act was enacted in 1956 to regulate labour relations. It provided
for collective bargaining and dispute resolution, but was applicable to whites in the private
sector only, 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 in-depth 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 intro-
duced in late 1979 and early 1980. The more important changes included changing the
name of the Act to the Labour Relations Act, 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 establish-
ment 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 prom-
ulgated 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, that is, the State as employer and all employees in public

225
226 A Practical Guide to Labour Law

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 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
(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 NED-
LAC, 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, pub-
lic submissions, the submissions from the Public Service Bargaining Council and the Edu-
cation 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 (the LRA).
The new LRA did not come into operation immediately because new structures had to
be created under the 1995 LRA, such as the Labour Court, a new Labour Appeal Court and
the Commission for Conciliation, Mediation and Arbitration (CCMA). After the establish-
ment 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 (International Labour Organisation). Some
of the significant changes brought about by the Act 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 introduction of statutory councils where no bargaining councils exist.
The main objectives of the Act are to advance economic development, social justice, labour
peace and the democratisation of the workplace (s 1). These goals are to be reached by
furthering the primary objectives of the Act, which are:
• to give effect to the fundamental rights conferred by the Bill of Rights contained in the
Constitution;
• to give effect to obligations incurred by the Republic of South Africa as a member state
of the ILO;
Labour Relations Act 66 of 1995 227

• to provide a framework for collective bargaining between trade unions and employers
and employers’ organisations; and
• to promote orderly collective bargaining, collective bargaining at sectoral level, employ-
ee participation in decision-making in the workplace and the effective resolution of la-
bour disputes.
In an attempt to give greater effect to the objectives of the Act, significant amendments
were introduced in 2002 by means of the Labour Relations Amendment Act 12 of 2002
which took effect on 1 August 2002. Further important amendments have been enacted in
the Labour Relations Amendment Act 6 of 2014 which take effect on 1 January 2015.

11.2 Application of the LRA (s 2)

The LRA is applicable to every employer and every employee in every undertaking, indus-
try, trade or occupation in South Africa, the only exclusions being:
• members of the National Defence Force;
• members of the State Security Agency.
Because the Act is applicable to every employer and every employee (with only the above
exclusions), it is necessary to determine who an employer and who an employee is. The Act
does not provide a definition for “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 the independent contractor (working in terms of locatio conductio
operis). The distinction between an employee and a contractor is not always clear, but it is
necessary to determine who an employee is as only an employee enjoys the protection of
our labour legislation. 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 to determine whether a person is an employee or a contractor and the
courts consequently adopted the dominant impression test which has proved to result in a
more accurate answer. (See Chapter 2 paragraph 2.2 for a discussion of the dominant
impression test.)
Whether a person is an employee or an independent contractor is further clarified by
section 200A of the LRA (and s 83A of the Basic Conditions of Employment Act).
Section 200A provides that if any one or more of the following factors are present, the
person who works for or renders services to another person is presumed to be an employee,

________________________

1 “Employee” is given a different and very specific meaning in the context of a workplace forum (see Ch 5
of the Act). The LRA (and other labour legislation) is applicable to ‘employees’ only, meaning that a per-
son who is not an employee does not enjoy the protection of the LRA. However, in one instance a work
seeker or job applicant is protected and that is in the instance of freedom of association, the provisions
of which are found in Ch 2 of the Act. Job applicants also enjoy protection against unfair discrimination
in terms of the Employment Equity Act (EEA). The protection against unfair discrimination initially
formed part of Sch 7 of the LRA, but was removed from the LRA and included in Ch 2 of the EEA.
228 A Practical Guide to Labour Law

regardless of the form of the contract. The onus is on the employer to prove the contrary.
This rebuttable 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.
A person is presumed to be an employee if he:
(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;
(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.
This presumption does not apply to persons who earn in excess of the threshold amount
stipulated by the Minister in terms of section 6(3) of the Basic Conditions of Employment
Act (currently R205 433-30). If a person in a proposed or existing work arrangement earns
an amount equal to or less than the amount determined by the Minister, any of the parties
may approach the CCMA for an advisory award on whether that person is an employee or
not.
Persons who do not receive or are not entitled to receive remuneration in cash and/or
kind for the work they perform are also excluded from the definition of “employee”. These
include persons performing unpaid or “volunteer” work, for example, in charitable organ-
isations and a family member of an employer who performs services without payment (see
s 213 for a definition of remuneration.)
The second part of the definition is wider and does not specifically refer to the require-
ment of remuneration in order to be considered an employee. Persons who receive no re-
muneration may thus be included; as may, apparently, independent contractors and other
persons ordinarily not regarded as employees, such as partners and agents. When interpret-
ing the similarly worded definition of “employee” in the 1956 Act 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 pro-
viding such assistance”. Persons involved in the latter category, such as the independent
contractor, are thus excluded.
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 other temporary employees. An employee who was dismissed and who, therefore, can
no longer be termed an “employee” has access to the dispute resolution procedures of the
LRA to challenge the fairness of his or her dismissal.
Because “employer” is not defined in the LRA it is necessary to refer to the definition of
“employee” in order to determine who is an employer. An employer is a person who
receives services from an employee for remuneration or who is assisted in the conduct of its
business by an 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.
A difficult situation arises where a labour broker provides labour to a client (e.g. a com-
pany) in return for a fee. The client concludes an agreement with a temporary employment
service (the labour broker) for this purpose. Who then is the employer of the employee?
The Act expressly stipulates in section 198 that the labour broker is the employer and the
Labour Relations Act 66 of 1995 229

person whose services have been procured (excluding an independent contractor) is the
employee of the labour broker. However, the labour broker and its client are liable in soli-
dum if the former contravenes a bargaining council collective agreement that regulates
employment conditions, an arbitration award dealing with conditions of employment, the
Basic Conditions of Employment Act or a sectoral determination (s 198(4)). This is the
position prior to the enactment of the 2014 amendments.
The furore over labour brokers and the exploitation of labour broker employees and
other temporary employees prompted the legislature to include a number of provisions in
the 2014 amendments to regulate employment by labour brokers and the employment of
vulnerable employees on a temporary basis. Section 198 has been amended and a new
section 198A inserted to regulate labour brokers or temporary employment services (TES).
A new section 198B has been inserted and deals with the employment of fixed-term con-
tract employees earning below the threshold determined by the Minister (in terms of
section 6(3) of the BCEA, currently R205 433-30). A new section 198C deals with part-time
employees earning below the threshold and a new section 198D provides for conciliation
and arbitration of disputes arising from the interpretation or application of sections 198A,
198B and 198C.
The amended section 198 includes the following additions to the existing 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, an inspector acting in terms of the BCEA may se-
cure 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;
• a TES may not employ an employee on terms and conditions of employment contrary to
the LRA or other employment law or contrary to a sectoral determination or bargaining
council collective agreement applicable to the client;
• in any proceedings the Labour Court or an arbitrator may determine whether a provi-
sion 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;
• no person may perform the functions of a TES unless it has been registered in terms of
applicable legislation. The fact that the TES has not been registered is, however, no de-
fence to any claim instituted in terms of section 198A. This is the only of all the 2014
amendments that will not take effect on 1 January 2015;
• a TES must provide an employee assigned to a client with written particulars of em-
ployment in accordance with section 29 of the BCEA.
In terms of the new section 198A, which is applicable only to TES employees who earn
below the threshold, a “temporary service” means 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. An
employee who performs temporary services, as defined, is considered the employee of the
TES. If the employee is not performing temporary services (as defined), he is deemed to be
the employee of the client and must be treated on the whole not less favourably than
employees of the client who perform the same or similar work, unless there is a justifiable
2
reason for different treatment. Thus, if a person is employed by a TES and deployed to

________________________

2 In terms of the new s 198D 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.
230 A Practical Guide to Labour Law

work at a client of the TES and if that employee renders services at the client in excess of
three months, for example, the employee is not rendering a “temporary service” and,
therefore, the client is deemed to be the employer; the TES is no longer the employer
(after the initial three months). And, then the employee is deemed to be employed on an
indefinite basis, subject to the fixed-term provisions in the new section 198B. In the event of
a TES terminating the services of the employee, at the instance of the TES or the client, in
order to avoid the deeming provision in section 198A, the termination constitutes a dismis-
sal. If an employee was employed by a TES and placed with a client prior to the com-
mencement of the 2014 amendments, the new provisions will apply only three months after
the date the new provisions come into operation.

The new section 198B provides for fixed-term contracts concluded with employees who
earn below the threshold. For the purposes of this section a fixed-term contract is a con-
tract of employment that terminates on the occurrence of a specified event, on the com-
pletion of a specified task or project or on a fixed date (other than the normal or agreed
retirement age).

Section 198B does not apply to employers who employ fewer than 10 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.

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. 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. An employee on a fixed-term
contract must be afforded the same opportunities to apply for vacancies as other employ-
ees may have.

If a fixed-term contract of longer than 24 months is justifiable the employer must, on ex-
piry of the contract and subject to any applicable collective agreement, pay the employee
one week’s remuneration for each completed year of the contract. 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 condi-
tions which employment commences no later than 30 days after expiry of the contract.

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.

Section 198C regulates part-time employment of employees who earn below the thresh-
old. For the purposes of this section a part-time employee is an employee who is remuner-
ated wholly or partly by reference to time worked and who works fewer hours than a
comparable full-time employee. Section 198C does not apply to employers who employ
fewer than 10 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). Sec-
tion 198C also does not apply to employees who work less than 24 hours per month or
Labour Relations Act 66 of 1995 231

during an employee’s first 6 months of continuous employment with an employer. 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 devel-
opment and given an opportunity to apply for vacancies as full-time employees.

11.3 Freedom of association (ss 4–10)

Freedom of association is a fundamental right contained 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.
The LRA guarantees the fundamental right of freedom of association. Every employee
has the right to take part in the formation of a trade union (or a federation of trade un-
ions) and to become a member of a trade union. As a member of a trade union an em-
ployee 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 take part as a candidate in
elections or be eligible for such an appointment. The same rights accrue to a member of a
trade union who is a member of a federation of trade unions.

Employees
• has the right to participate in the formation
of a trade union
An employee
• has the right to become a member of a trade
union

• has the right to participate in lawful activities

of the trade union
Employee/
member of trade • has the right to participate in elections of the
union/member of trade union
federation • has the right to be elected or appointed as
office-bearer, official or trade union represen-
tative of union or federation

No person may discriminate against an employee for exercising any right conferred on him
by the LRA. Therefore, no person may require of an employee or of a person seeking em-
ployment not to be a member or to become a member of a trade union or a workplace
forum. An employee or a person seeking employment may not be prejudiced because of his
membership of or participation in the forming of a trade union or workplace forum or
because of his participation in the lawful activities of the trade union or workplace forum.
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.
The Act further stipulates that a provision in any contract, whether entered into before
or after the commencement of the Act, that directly or indirectly contradicts or limits any of
these rights or the protection thereof, is invalid, unless such a contractual provision is per-
mitted by the Act.
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’ organ-
isation. 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
232 A Practical Guide to Labour Law

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.
An employer is granted the same protection of his rights as described above for employees.

Employers
• has the right to participate in the formation
of an employers’ organisation
Employer
• has the right to be a member of an employ-
ers’ organisation

Employer/member • has the right to participate in lawful activities

of employers’ of the employers’ organisation
organisations/
• has the right to participate in elections
member of feder-
ation of employers’ • has the right to be elected or appointed
organisation office-bearer, official or representative

Trade unions and employers’ organisations

According to the Act every trade union and every employers’ organisation has the right to
determine its own constitution and rules, to hold elections for its office-bearers and offi-
cials, 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.

Disputes about freedom of association

Order

Labour Court

No resolution

Conciliation

Council/CCMA

Dispute

Any dispute about the interpretation or application of the rights in Chapter II of the Act
must be referred in writing to a bargaining council or, if no council has jurisdiction, to the
CCMA. 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.
The council or the CCMA must attempt to resolve the dispute through conciliation, fail-
ing which, any party may refer it to the Labour Court for adjudication.
Labour Relations Act 66 of 1995 233

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
Discuss the main objectives and the application of the LRA. Also refer to persons who are
excluded from the Act. (10)

Question 3
Briefly explain whether the LRA is applicable to the following persons:
3.1 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)
3.2 Xoliswa works as a volunteer for an NGO. She does not receive any payment for her
services; (2)
3.3 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)
3.4 Jonathan is a general in the National Defence Force; (2)
3.5 Mr Van der Merwe is the Managing Director of a large insurance company and earns
R800 000 per year. (2)
3.6 Ben and Thandi both live in Johannesburg and are employed by a private airline
company registered in Namibia. The company flies it planes on charter only to Afri-
can countries. When a plane is chartered Ben is the pilot and Thandi the flight attend-
ant on the flight. They get paid per flight in US dollars. (2)
3.7 April is employed by the Moroccan embassy and works at the embassy’s offices in
Pretoria. (2)

Question 4
Discuss the rights connected with the freedom of association that employees and employers
may claim. Refer in your answer to the dispute resolution procedures that apply to resolving
disputes over the freedom to associate. (20)

Question 5
Employee A works for employer B and wishes to become a member of trade union C. A’s
employment contract stipulates that A does not have the right to become a member of any
trade union. Discuss whether this stipulation in A’s contract is valid. (5)

Question 6
A small family business is hit by a protected strike. Because the business deals in perishable
foods it is necessary that the stock is packed and sold immediately. The manager cannot
perform these tasks on his own and, therefore, promises a bonus of R500 to those employ-
ees who are willing to return to work. Explain the validity or otherwise of the manager’s
promise of a bonus. (5)

Question 7
A dispute arises between a trade union and an employer about what constitutes “the lawful
activities” of the trade union. Discuss how this dispute may be resolved. (8)
234 A Practical Guide to Labour Law

Question 8
John, a shop steward (union representative) at ABC Company, complains of victimisation
by his immediate superior. He is convinced that he is being victimised because of his union
affiliation and his forthrightness in challenging management on behalf of the union’s
members. In fact, on one occasion his superior told him to cease his union activities, under
threat of dismissal. Identify the true nature of John’s grievance and then explain how his
grievance may be resolved. (8)

Question 9
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 services were no
longer required because there was no alternative position for him. Jerome believed he had
been treated unfairly and referred an unfair dismissal dispute to the CCMA. Alert denied
Jerome’s claim of dismissal as his contract provided for automatic termination.
Does the termination of Jerome’s services 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).

Question 10
Discuss the legal position of labour broker (TES) employees, fixed-term contract employees
and part-time employees in light of the amended section 198 and the new sections 198A–C
(inserted into the LRA by the 2014 amendments). (15)
 12
FRAMEWORK OF THE LABOUR RELATIONS ACT

12.1 Introduction
The Labour Relations Act is certainly the most important piece of labour legislation on the
statute book. In addressing the problems experienced with the Labour Relations Act 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, together with the CCMA and the Labour Courts, are
responsible for dispute resolution. To promote worker participation in decision-making at
the workplace the Act provides for the establishment of workplace forums.
The structures created by the LRA for collective bargaining and dispute resolution can be
illustrated as follows:
Labour Appeal Court
Labour Court

CCMA

Dispute resolution Collective bargaining

Bargaining councils Consultation

Statutory councils Joint decision-making

Workplace forum

Trade union Organisational rights Employers’ organisation

Freedom of association

Employees Employer

235
236 A Practical Guide to Labour Law

In simplified form the structures for collective bargaining are the following:

Bargaining council*
Sector-/industry-
level bargaining
Trade union Employers’ organisation

Plant-/enterprise-level
Trade union Employer
bargaining

* 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 bargain-
ing council.

The structures for dispute resolution are as follows:

Labour Appeal Court Labour Appeal Court

Arbitration Adjudication Arbitration Adjudication

Council Labour Court CCMA Labour Court

No resolution No resolution

Conciliation Conciliation

Bargaining council OR CCMA*

Statutory council

Dispute

* Some disputes must be referred to the CCMA for conciliation and arbitration even though a coun-
cil 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 18.4.

12.2 Trade unions and employers’ organisations (ss 95–106)

A trade union is defined as “an association of employees whose principle purpose is to regu-
late 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 em-
ployers and employees or trade unions”.
Registration of a trade union or an employers’ organisation is required in order to exer-
cise the rights contained in the Act.
The requirements which must be met by a trade union or employers’ organisation to be
registered are:
Framework of the Labour Relations Act 237

• the name must not be misleading or cause confusion;

• the constitution must meet the requirements of the Act;
• it must have an address in the Republic;
• it must be a genuine trade union or employers’ organisation in conformity with prin-
ciples 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,
the banking and investing of money and a procedure for the changing of its constitution. A
constitution may not include any provision that discriminates directly or indirectly against
any person on the grounds of race or gender.
Any trade union or employers’ organisation may apply for registration by submitting to
the Registrar the prescribed form, as well as a copy of its constitution and any further infor-
mation that the Registrar may require. If the application for registration is in compliance
with the requirements set out in the Act, the Registrar must register the applicant by enter-
ing its name in the register of trade unions or employers’ organisations. Notice thereof is
given in the Government Gazette.
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. Upon registration the voluntary association becomes a body corporate, en-
abling it, inter alia, to sue and be sued in its own name.
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 appeal to the Labour Court against the refusal of registration.
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 mem-
bers. 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.
The Registrar must cancel the registration of a union or employers’ organisation if the
Labour Court has ordered that that trade union or employers’ organisation be wound up or
declared that the registered union is not independent. (The provisions regarding winding-
up apply to registered as well as unregistered trade unions and employers’ organisations.)
The 2014 amendments insert a new section 103A into the LRA. In terms of section 103A
an administrator can be appointed. If a trade union or an employers’ organisation fails
materially to perform its functions or if there is serious mismanagement of its finances the
Labour Court may make an order for the appointment of an administrator to administer
the trade union or employers’ organisation on such conditions as the Court may determine
and if the Court is satisfied that it is just and equitable to do so. The application may be
made by the trade union or employers’ organisation or by the Registrar.
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
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
238 A Practical Guide to Labour Law

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 com-
plied with the above-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.

12.3 Bargaining councils (ss 27–30, 53–59 and 61)

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 new Act. 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 council

One or more registered trade unions on the one hand and one or more registered employ-
ers’ 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 regis-
tration 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. 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 constitu-
tion 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.
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 cir-
cumstances 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. (The dispute resolution procedures may not entrust dis-
pute resolution functions to the CCMA, unless the CCMA’s governing body has agreed
thereto.) The Act provides for a council to amend its constitution, change its name or
change its registered scope.
Registration: The parties who wish to establish a bargaining council apply for registration by
submitting to the Registrar the completed prescribed form, together with a copy of its con-
stitution. The Registrar will invite objections from the public by way of a notice in the Gov-
ernment 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
Framework of the Labour Relations Act 239

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 sec-
tor 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 application,
he must give the applicant a period of 30 days to meet the requirements for registration,
failing which he must refuse to register the applicant.
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 representa-
tive. 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.
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 agree-
ment and details of the admission and resignation of parties to the council must be provided
to the CCMA. Minutes of meetings must be kept and all documentation must be preserved
for a period of three years.
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.

12.3.2 Functions of bargaining councils

The powers and functions of a bargaining council are:
(a) to conclude and enforce collective agreements;
(b) to prevent and resolve labour disputes. Refer to Chapter 18 for dispute resolution by
bargaining councils;
(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 edu-
cation 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.
If the council concludes collective agreements it may request the Minister to appoint a per-
son as the designated agent of the council to help it enforce these agreements.

12.3.3 Bargaining councils in the public service (s 35)

The Public Service Bargaining Council was established under the now repealed Public Ser-
vice Labour Relations Act of 1993 (PSLRA) to make collective bargaining at central and
240 A Practical Guide to Labour Law

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 Act, has taken 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. 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.
The PSCBC may designate a sector in the public service for the establishment of a bargain-
ing council. Such a bargaining council must be established in terms of the PSCBC’s con-
stitution (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 thus 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 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 adminis-
trative staff – must refer their disputes to the SSSBC. Employees in government depart-
ments 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.
Framework of the Labour Relations Act 241

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 concilia-
tion 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 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 constitu-
tion 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 coun-
cil, taking into account factors such as the number of representatives, proportional repre-
sentation 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 (see Chapter 18);
(b) to promote and establish training and education schemes;
(c) to establish and administer pension, provident, medical aid, sick pay, holiday and un-
employment 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 func-
tions to include any of the functions of a bargaining council.
If a statutory council is not sufficiently representative within its registered scope, the Min-
ister 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
242 A Practical Guide to Labour Law

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 arbi-
tration.

12.5 Commission for Conciliation, Mediation and Arbitration

(CCMA)
12.5.1 Establishment of the CCMA (ss 112–114)
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 prov-
inces of the Republic. The Commission must maintain an office in each province and as
many local offices as it considers necessary.

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;
• to assist employees who earn below the threshold (determined by the Minister in terms
of section 6(3) of the BCEA) with the service of documents in conciliation and arbitra-
tion 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.
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 pre-
scribed 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 limita-
tions to representation); the consequences of not attending proceedings; and the circum-
stances 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 18.
Framework of the Labour Relations Act 243

12.5.3 Governing body

The CCMA is governed by a governing body nominated by NEDLAC and appointed by the
Minister.

GOVERNING BODY
Director and 10 members

Appoint members

MINISTER

NOMINATE 9 persons and

independent chairperson

NEDLAC

ORGANISED LABOUR ORGANISED BUSINESS STATE

Propose 3 Propose 3 Propose 3

The governing body consists of the Director of the CCMA, appointed by the Commission,
and 10 members appointed by the Minister. The Director manages and directs the activities
of the CCMA and supervises the Commission’s staff. The 10 members nominated by NED-
LAC consist of an independent chairperson and nine other members. Organised labour,
organised business and the State propose the nine members in equal proportion.
The governing body appoints adequately qualified persons as commissioners on either a
full-time or a part-time basis for a fixed term. When making these appointments, the gov-
erning body must have due regard to the need to constitute a Commission that is inde-
pendent and competent and representative in respect of race and gender. The governing
body determines the remuneration and other terms and conditions of appointment of the
commissioners and prepares a code of conduct for the commissioners.

12.5.4 Finances of the CCMA

The CCMA is financed from public funds and fees payable to the Commission. The CCMA
offers its services to the public free of charge and may only charge a fee for: (a) resolving
disputes if the Act allows a fee to be charged; (b) conducting, overseeing or scrutinising any
election or ballot at the request of a registered trade union or employers’ organisation; (c)
providing advice or training; and (d) conducting an arbitration in circumstances where the
Act makes provision for the payment of a fee by any party to that arbitration. The fees so
charged must be in accordance with the tariff of fees which has been published in the
Government Gazette.

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
(Johannesburg) 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.
244 A Practical Guide to Labour Law

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 viola-
tion 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 administra-
tive 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 at-
tempt has been made to resolve the dispute through conciliation.

12.6.3 Powers of the 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;
(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 pur-
ported 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 re-
gard 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 re-
quirements 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.
Framework of the Labour Relations Act 245

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 proceed-
ings 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
The Act established a Rules Board for the Labour Court to make rules to regulate the con-
duct of proceedings in the Court. These rules must be published in the Government Gazette.
The Judge President must ensure that the Rules Board meets at least once every two years
to review the rules.
Proceedings in the Labour Court must be conducted in open court. A party to any pro-
ceedings may appear in person or be represented by a legal practitioner, by an office-bearer
or official of that party’s trade union or employers’ organisation, by a designated agent or
official of a 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.

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 jurisdic-
tion in all the provinces of the Republic. It is the final court of appeal in respect of all judg-
ments and orders made by the Labour Court in matters within the latter court’s exclusive
jurisdiction. The Labour Appeal Court has the same powers as the Supreme Court of
Appeal in relation to matters under its jurisdiction. The seat of the Labour Court is also the
seat of the Labour Appeal Court, but the functions of the Court may be performed at any
place in the Republic.
The Labour Appeal Court 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 judges from the High Court as may be required for the
effective functioning of the Labour Appeal Court. If the proposed 2012 amendments to sec-
tion 168 are enacted, the other judges will be drawn not only from the High Court but also
from the Labour Court.
The Labour Appeal Court is constituted before any three of the appointed judges.

12.7.2 Jurisdiction (s 173)

The Labour Appeal Court has exclusive jurisdiction to hear and determine all appeals
against the final judgments and orders of the Labour Court and to decide on questions of
law referred to it by the Labour Court. A judgment of the Labour Appeal Court is binding
on the Labour Court.
246 A Practical Guide to Labour Law

It is possible that the Labour Appeal Court, on the hearing of an appeal, may receive fur-
ther 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.
The Judge President may direct that any matter before the Labour Appeal Court be
heard by the court sitting as a court of first instance, in which case the court is entitled to
make any order that the Labour Court would have been able to make.
The decision of the Labour Appeal Court is final and there is no right of appeal against
its final judgment or against its decision on a question of law or against its judgment or
order when sitting as a court of first instance.

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. Consult-
ation 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 Act
requires that the employer and the workplace forum take joint decisions, such as on the
disciplinary code and procedures and an affirmative-action policy.

Questions

Question 1
Give a broad outline of the structures created by the Act for collective bargaining, worker
participation and the resolution of disputes. (30)

Question 2
An unregistered trade union wishes to apply for membership of a bargaining council. Can
this trade union be admitted as member to the bargaining council? (2)

Question 3
Employees in the building industry in Bloemfontein established a trade union and there-
after applied for membership of a bargaining council.
3.1 Discuss the prerequisites that need to be complied with before applying for registra-
tion of the trade union. (6)
3.2 Discuss the procedure for registration of the trade union. (6)
3.3 The application for registration of the trade union is refused by the Registrar. Briefly
discuss any steps that can be taken in this regard. (4)
Framework of the Labour Relations Act 247

Question 4
Employers’ organisation A and trade unions B and C in the furniture industry in the East-
ern 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 5
The parties to a newly registered bargaining council are uncertain about the functions of a
bargaining council and seek information in this regard. As legal representative of the
council, briefly explain to the parties the functions of the council. (10)

Question 6
Explain how a bargaining council can enforce compliance with a collective agreement con-
cluded in the council. (15)

Question 7
Name the bargaining councils established in the public sector and describe the jurisdiction
of each council. (20)

Question 8
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:
8.1 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)
8.2 a dispute in the Department of Sea Fisheries over an increase in wages/salaries and
improvement of other conditions of employment; (5)
8.3 a dispute in a service which has been designated an essential service – a state hospital,
say – over wage increases; (5)
8.4 a dispute in the Department of Justice and Constitutional Development over the
dismissal of an employee for incapacity; (5)
8.5 a dispute in SAPS over the dismissals of employees for misconduct; (5)
8.6 a dispute over the dismissal of a number of educators at public schools for operational
reasons; (5)
8.7 a dispute concerning the interpretation or application of a collective agreement on
sick leave entitlements that was concluded in the PSCBC. (5)

Question 9
Discuss the functions of the CCMA. (10)

Question 10
Discuss the jurisdiction and functions of the Labour Court. (20)
 13
COLLECTIVE BARGAINING

13.1 Introduction
The emphasis of the Labour Relations Act of 1995 (LRA) is on co-operation and construct-
ive engagement between labour and management. To achieve these goals collective bar-
gaining – the centre-piece of industrial relations – has undergone fundamental changes
with the introduction of the 1995 Act.
New structures have been established, such as statutory councils and workplace forums
and the old industrial councils have become bargaining councils with extended functions.
New rights and obligations have been created and a new court, the Labour Court, and the
Commission for Conciliation, Mediation and Arbitration (CCMA) have been established for
dispute resolution. The duplicity of legislation regulating labour relations has been aban-
doned and the LRA is, unlike its predecessor, applicable to all employers and employees
(save for a few exceptions). The recognition of trade unions is no longer interpreted with
reference to the concept of unfair labour practice.
The workplace forum, in particular, has been a concerted effort on the part of the legis-
lature to democratise enterprise-level labour-management relations and make them less
adversarial. By providing for workplace forums an effort has been made to encourage
unions to abandon their adversarial manner of operating, while managerial prerogative is
curbed.
Organised labour wishes to play a significant role in the development of social policy.
NEDLAC, bargaining councils and statutory councils provide the necessary mechanisms to
achieve this goal. Collective bargaining is encouraged rather than compelled, unlike the
situation under the old LRA where the refusal to bargain was considered an unfair labour
practice.
Representative unions enjoy organisational rights and the 1995 Act gives effect to the con-
stitutional right of freedom of association and the right to strike without fear of dismissal.

13.2 Recognition and the duty to bargain

The Act 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 arrange-
ments.
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 with-
out fear of dismissal of its members, provided the strike takes place in accordance with the

249
250 A Practical Guide to Labour Law

requirements of the Act. Section 64 makes it compulsory to obtain an advisory award from
the CCMA (or a bargaining council) before notice of the strike is given. The role of the
CCMA (or council) in this instance is to promote collective bargaining by facilitating an
agreement between the disputing parties, but it cannot dictate to the parties what to do, so
that voluntarism is largely kept intact. The CCMA or council must thus attempt to conciliate
the dispute and issue an advisory arbitration award.

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 this form of advisory arbitration
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.

Conflict is bound to arise because of the absence of a duty to bargain and the dispute reso-
lution structures must guide and assist the parties.

Recognition of a union is the beginning of collective bargaining. Under the LRA of 1956
the Industrial Court, through its unfair labour practice jurisdiction, obliged employers to
deal with and to accord rights to unions. The decisions of the Industrial Court were in con-
flict: some required an employer to bargain with a majority union only, some compelled the
employer to negotiate with any union in its organisation, while 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 which are “representative”. “Rep-
resentativeness” has the following connotations:

• Sufficient representation. Only a registered union which is sufficiently representative of em-

ployees 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 suffi-
ciently representative union. The Industrial Court, under the old Act, sought a member-
ship 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 un-
ions may act jointly in order to establish sufficient representation;

• Majority membership. “Majority” indicates a clear majority of union members in the work-
place, that is, 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 with re-
gard to agency shop, closed shop and workplace forum arrangements. Two or more un-
ions may join to establish majority support in order to be accorded these rights.
Furthermore, rights to disclosure of information, to appoint workplace representatives
and to paid leave for representatives are enjoyed only by a majority union;
Collective bargaining 251

• 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 join
together for this purpose. The 30% membership is used only in the context of statutory
councils.

13.3 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 six organisational
rights 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.

When the LRA of 1995 was enacted a clear delineation was made between majority un-
ions and sufficiently representative unions. A registered majority union was accorded all six
of the organisational rights, while a sufficiently representative registered union enjoyed
three of the rights, namely the rights of access, deduction of union subscriptions and paid
leave for office bearers. The 2014 amendments to the LRA obscured this clear distinction
somewhat by allowing a sufficiently representative union to obtain the rights previously
accorded majority unions only if that union is the most representative union in the work-
place. In terms of the new section 21(8A) the CCMA can, in an arbitration, grant such a
union that already has the rights of access, deductions and leave for office bearers also the
right to elect shop stewards and paid time off for shop stewards if no other union in the
workplace has the latter two rights relating to shop stewards. Or, such a 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 that right. These
“additional” rights lapse when the union is no longer the most representative union in the
workplace.
An employer and a registered majority union or parties to a bargaining council can con-
clude 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 these three rights. If XYZ union also recruits employees as members in that
workplace it will not have the three organisational rights until it reaches a membership of
35%. However, in terms of the 2014 amendments it is possible for a union that does not
meet the threshold to be granted these rights. In an arbitration the CCMA can grant these
rights to the union that does not meet the threshold if the union represents a significant
interest or has a substantial number of members in the workplace and if all the parties to
the collective agreement participated in the arbitration proceedings (s 21(8C)). Thus, in
the example XYZ union may be granted these rights even if it has less than a 35% member-
ship 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 such unions’ representativeness in any particu-
lar workplace (s 19).
Nothing prohibits an employer and a (smaller) union to bargain and conclude a collec-
tive agreement to regulate organisational rights in instances where the union is not accorded
organisational rights in terms of the Act (s 20).
252 A Practical Guide to Labour Law

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 em-
ployees in the workplace that must be considered to determine the union’s representative-
ness. It is consequently necessary to consider the meaning of a “workplace”.

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 consul-
tation with the Public Service Co-ordinating Bargaining Council, demarcates as a work-
place;

(b) . . . [repealed]

(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 em-
ployees 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 follow-
ing 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 con-
duct of a serious nature, such as dividing an enterprise into different companies in order to
frustrate the intention of the Act, 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 co-
ordinating 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.
Collective bargaining 253

In the early days of the 1995 LRA the concepts “workplace” and “union representative-
ness” 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 con-
sidered 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.
Once the “workplace” has been established, the union’s representativeness in that work-
place 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 repre-
sented 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 arbi-
trator is required to have regard to the interests represented by the union and not exclu-
sively 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 representa-
tive and it was granted limited organisational rights.
In UPUSA v Komming Knitting [1997] 4 BLLR 508 (CCMA) a union with 22% member-
ship 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 submit-
ted 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, ac-
cording to the company, thus fell short of a majority. The directors’ wives handled confi-
dential 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
254 A Practical Guide to Labour Law

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 whom belonged to the union. A very narrow majority!
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. The 2014
amendments are bound to undo the certainty, especially in light of the new provisions
relating to a union with a “significant interest” or a “substantial number” of members and
the fact that, in terms of the new section 21(b)(v), labour broker employees, fixed-term
and part-time employees and other employees in non-standard employment will now have
to be included in the calculations of the total workforce and a union’s representativeness.

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
• appointment of union representatives at the workplace;
RIGHTS
• 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 employ-
ees in the workplace.
– Registered unions that are parties to a council auto-
matically have the right of access and the right to de-
ductions of union subscriptions from members’ wages,
regardless of their representativeness in the workplace.

13.3.1 Right of access to workplace (s 12)

Any office-bearer or official of a sufficiently representative union or a majority union is en-
titled to enter the employer’s premises in order to recruit members, to 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 en-
titled 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 enter the premises, but does not have the right to enter the home of the
employer, unless the latter agrees thereto (s 17).
Collective bargaining 255

13.3.2 Deduction of trade union subscriptions or levies (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 author-
ised deduction as soon as possible and must remit the amount deducted to the union by not
later than the fifteenth day of the month following the date each deduction was made. The
remittance must be accompanied by a list of names of members from whose wages deduc-
tions were made, details of the amounts deducted and a copy of every notice which revokes
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’ writ-
ten notice. The employer must make the deductions until this notice period has expired.

13.3.3 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 agree on the
number of days’ paid leave and the conditions attached to that leave. An arbitration award
which regulates leave for union activities remains in force for 12 months from the date of
the award.
A registered union that has as members the majority of employees in the workplace has,
in addition to the three rights already mentioned, the right to appoint representatives and
the right to disclosure of relevant information.

13.3.4 Trade union representatives (s 14)

The lowest level of bargaining facilitated by the Act relates to trade union representatives or
shop stewards in the workplace. Union representatives may be elected in a workplace where
a union enjoys majority support. Two or more registered unions may act jointly in order to
demand these rights.
In any workplace in which at least 10 union members are employed, union represen-
tatives may be elected by the members from among themselves. The ratios of union repre-
sentatives to the number of employees who are union members are the following:
• if 10 members of the union are employed in the workplace, one trade union represen-
tative;
• if more than 10 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 mem-
bers, plus one additional representative for every additional 50 members up to a maxi-
mum 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 representatives.
256 A Practical Guide to Labour Law

A union representative 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.
A union representative is, subject to reasonable conditions, entitled to take reasonable paid
leave during working hours to perform his functions and to be trained in any relevant
subject.
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).
13.3.5 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 domes-
tic 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 information is confidential and the employer believes that it cannot be
revealed, he must notify the union or the union representative accordingly.
An employer is not required to disclose information that:
• is legally privileged;
• the employer cannot disclose without contravening a prohibition imposed on him by any
law or order of court;
• is confidential and, if disclosed, may cause substantial harm to an employee or the em-
ployer; 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 em-
ployer. The CCMA must attempt to resolve the dispute through conciliation and if concilia-
tion is unsuccessful, through arbitration.
The commissioner must first decide whether or not the information is relevant. If he
decides that confidential information or information relating to personal information of an
employee is relevant, he must balance the harm that the disclosure is likely to cause the
employer or employee against the harm that the failure to disclose is likely to have on the
ability of the union or union representative to perform, consult or negotiate effectively.
Where the balance of harm favours the disclosure of the information, the commissioner
may order disclosure on terms designed to limit the harm likely to be caused to the em-
ployee or employer. When making an order, the commissioner must take into account any
breach of confidentiality in respect of information disclosed at that workplace and may
refuse to order disclosure of the information or any other confidential information which
might otherwise be disclosed for a period specified in the arbitration award. In any dispute
about an alleged breach of confidentiality, the commissioner may order the withdrawal of
the right to disclosure.
Collective bargaining 257

13.3.6 Exercise of organisational rights (s 21)

A registered trade union must notify an employer in writing that it seeks to exercise one or
more of the organisational rights. Such notification must be accompanied by a certified
copy of the trade union’s certificate of registration and must specify:
• the workplace in respect of which the trade union seeks to exercise the rights;
• the representativeness of the trade union in that workplace and the facts relied upon to
demonstrate that it is a representative trade union; and
• the rights that the trade union seeks to exercise and the manner in which it seeks to
exercise those rights.
If a union seeks to exercise any of the organisational rights in respect of labour broker
(temporary employment service or TES) employees, it may seek to exercise those rights in
the labour broker’s workplace or in the workplace of the labour broker’s client.
Within 30 days of receiving the notice the employer must meet with the trade union and
endeavour to conclude a collective agreement as to the manner in which the union will
exercise the rights in respect of that workplace. If a collective agreement is not concluded
either the union or the employer may refer a dispute to the CCMA for conciliation and
arbitration. In deciding whether to grant the union any of the organisational rights, the
CCMA commissioner must have regard inter alia to the nature of the workplace, the organi-
sational history at that workplace and the composition of the workforce. In considering the
composition of the workforce TES (labour broker) employees, part-time employees and
employees on fixed-term contracts must be included.

13.3.7 Resolution of disputes about organisational rights (ss 21–22)

If a collective agreement with regard to organisational rights is not concluded, either the
trade union or the employer may refer the dispute in writing to the CCMA (not a bargain-
ing council). The CCMA must receive proof that a copy of the referral has been served on
the other party to the dispute.
The CCMA must appoint a commissioner to attempt to resolve the dispute through con-
ciliation. If the dispute remains unresolved, either party may request arbitration by the
CCMA.
If the unresolved dispute is about whether or not the union is a representative trade un-
ion, the commissioner must seek to encourage a system that features a single representative
trade union rather than a proliferation of union representation and must try to minimise
the financial and administrative burden of requiring an employer to grant organisational
rights to more than one union. The commissioner must also consider the nature of the
workplace, the nature of 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
(amended s 21(8)).
A CCMA commissioner may withdraw any of the organisational rights that are exercised
by any other union in respect of that workplace if the other union has ceased to be a repre-
sentative trade union.
258 A Practical Guide to Labour Law

In order to determine the membership or support of the registered trade union the
commissioner may make any necessary inquiries, where appropriate, conduct a ballot of the
relevant employees and take any other relevant information into account. The employer is
required to co-operate with the commissioner in this regard and must make available to the
commissioner any information and facilities that are reasonably necessary.
An employer who alleges that a union is no longer a representative trade union may
apply to the CCMA to withdraw any of its organisational rights, in which case the procedure
set out above for the resolution of disputes over organisational rights are mutatis mutandis
applicable.
A dispute about the interpretation or application of Part A of Chapter 3, dealing with
organisational rights, may be referred to the CCMA (not a bargaining council) for concilia-
tion and, if necessary, arbitration, following the procedure set out in this paragraph.
In terms of the amended section 22 an arbitration award can be made binding on
employers, clients of temporary employment services and any person (other than the em-
ployer) who controls access to the workplace if this person has been given an opportunity
to participate in the arbitration proceedings.
The procedure for exercising organisational rights and the resolution of disputes in this
regard may be illustrated as follows:1
2
Determination
14 days
Arbitration

No resolution

Conciliation

CCMA

Collective agreement No agreement

3
Meeting
30 days
Notification of intention
4
to exercise organisational rights

________________________

1 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 merely as guidance to the parties. This diagram has been slightly adapted.
2 The Act contemplates determinations about the definition of a workplace, the representativeness of a
union and the manner in which organisational rights are exercised.
3 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.
4 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.
Collective bargaining 259

13.4 Collective bargaining structures

13.4.1 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 in
this regard, 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 mem-
bers of the other party;
• 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 collective agreement may be extended to non-parties who are with-
in the registered scope of the council if one or more registered trade unions representing a
majority of employees vote in favour of such an extension, the majority of all employees
who will fall within the scope of the agreement, if extended, are members of the trade
unions and the affected employers are found to employ the majority of all employees. The
bargaining council then has to request the Minister in writing to extend the application of
the agreement. The Minister must publish a notice in the Government Gazette stating that an
application for extension has been received, where a copy thereof may be inspected and
inviting comment within a period of not less than 21 days from the date of the publication
of the notice. The Minister must consider all comments before deciding to extend the agree-
ment.
Within 60 days of receiving the request (application) the Minister must extend the
agreement by publishing a notice in the Government Gazette declaring that, from a specified
date and for a specified period, the collective agreement will be binding on the non-parties
specified in the notice. At the request of the council the Minister may, by further notice in
the Government Gazette, extend the period or, after expiration of the initial period, deter-
mine a further period for the application of the extension.
A collective agreement may not be extended, unless the Minister is satisfied that:
• one or more trade unions have voted in favour of the extension;
• the majority of employees employed within the registered scope of the bargaining
council are members of the trade unions that are party to the bargaining council;
• the members of the employers’ organisations that are party to the bargaining council
employ the majority of the employees employed within the registered scope of the bar-
gaining council;
• the non-parties specified in the request fall within the bargaining council’s registered
scope;
• the bargaining council has in place an effective procedure to deal with applications by
non-parties for exemptions from the collective agreement and is able to decide an appli-
cation for exemption within 30 days;
260 A Practical Guide to Labour Law

• provision is made in the collective agreement for an independent body to hear and
decide appeals against the bargaining council’s refusal to grant exemptions to non-
parties or the withdrawal of an exemption. The appeal must be decided within 30 days
and in accordance with fair criteria (which must be included in the collective agree-
ment). Union and employers’ organisation representatives, office-bearers and officials
may not be members of or participate in the deliberations of the appeal body; and
• the terms of the collective agreement do not discriminate against non-parties.
If the Minister is satisfied that a failure to extend the agreement may undermine collective
bargaining at sectoral level or in the public service as a whole, the extension may be ap-
proved if the parties to the bargaining council are sufficiently representative within the
registered scope of that council. When determining sufficient representativeness, the
Minister has to take into account the composition of the workforce, including employees
assigned to work by temporary employment services, employees engaged on fixed-term con-
tracts, part-time employees and employees in other categories of non-standard employ-
ment.
For the purposes of extending collective agreements concluded in bargaining councils in
the public service any reference to an employers’ organisation refers to the State as an em-
ployer.

13.4.2 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. Such agreements
may also be extended to non-parties and the provisions for the extension of agreements
concluded in a bargaining council are mutatis mutandis applicable.
Collective bargaining is not expressed in the Act as a function of the statutory councils.
However, provision is made in section 43 for the constitution of a statutory council to be
adapted so that it includes any of the functions of a bargaining council, including the con-
clusion of collective agreements in general. The provisions relating to collective agreements
are then applicable to such agreements.

13.4.3 Workplace forums

Workplace forums are consultative bodies rather than negotiating ones. However, the Act
compels an employer to consult intensively with a workplace forum over a wide range of
matters of mutual interest. Section 86 goes further in that it requires an employer to con-
sult with the forum in an attempt to reach agreement on certain issues, such as disciplinary
procedures and affirmative action policies. In the event of a disagreement the matter can
be conciliated and arbitrated. This arrangement effectively amounts to a limited duty to
bargain.

13.5 The bargaining process

13.5.1 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.
Collective bargaining 261

13.5.2 Bargaining levels

Bargaining levels refer to whether bargaining takes place at plant or enterprise level, that
is, between an individual employer and a union or at sector or industry level (centralised
bargaining), that is, between one or more unions and a group of employers from a particu-
lar 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 em-
ployment.
The structure for centralised bargaining is the bargaining council where unions and
employers’ organisations negotiate and conclude collective agreements. These agreements
bind the parties who have concluded them, but can be extended to non-parties. No person
may take part in a strike or a lock-out if that person is bound by a council agreement in
respect of the issue in dispute.
It is possible for bargaining to take place at both plant and industry level. 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 certain level and, unless bargaining
at a particular level will result in unfairness or discrimination, the parties will have to de-
termine the level or levels of bargaining through agreement.
In SACCAWU v Elite Industrial Cleaning (Pty) Ltd (CCMA 1997) the union based its claim
for plant-level bargaining on the allegation that it represented only 148 out of a possible
615 employees. Evidence was accepted by the CCMA commissioner that the majority of
employers in the contract cleaning industry regulated wages and working conditions
through a centralised bargaining forum (in the process of developing into a bargaining
council). The centralised bargaining forum regulated both minimum and actual wages
because “commercial exigencies of the industry preclude individual employers from paying
more than the minimum rate if their tenders for a cleaning contract are to be accepted by a
client”. The commissioner declined to issue a ruling in favour of plant-level bargaining.

13.5.3 Bargaining agenda

The LRA of 1995 does not require negotiations on any particular subject, except in the case
of workplace forums where certain issues for consultation and joint decision-making are
expressed.
Any matter of mutual interest concerning the employment relationship may form the
subject-matter of negotiations between the parties. Bargaining is not possible in matters which
are clearly illegal or contrary to public policy. 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.

13.5.4 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 exam-
ple, 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 and negotiating directly with employees and unilat-
erally 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. However, in terms of the 1995 Act 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
262 A Practical Guide to Labour Law

bargaining practice as an “unfair labour practice”. This, of course, does not mean that em-
ployers 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 em-
ployer 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 previous Act, 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 entrenched in the Bill of
Rights.
Moreover, a union’s rights to disclosure of information and reasonable access to its
members at the workplace also 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.

13.6 Collective agreements

Part B of Chapter III of the Act contains the provisions relating to collective agreements.
Collective agreements are written agreements concluded between registered trade unions
and employers or employers’ organisations and deal with terms and conditions of employ-
ment or any other matter of mutual interest (s 213).
These agreements may be negotiated and concluded between an employer and a union
at plant or enterprise level or by the parties to a bargaining or statutory council in the council.
Section 24(1) requires that every collective agreement (excluding agency shop and
closed shop agreements) contain a dispute resolution procedure for disputes concerning
the interpretation or application of the agreement. The dispute must first be conciliated
and, if conciliation proves unsuccessful, arbitrated.
A dispute concerning the interpretation or application of a collective agreement can be
conciliated and arbitrated by a bargaining council unless section 24(2) is applicable. In
terms of section 24(2) an interpretation or application dispute is conciliated and arbitrated
by the CCMA if the collective agreement does not contain a dispute resolution procedure
(as required in s 24(1)), if the procedure in the agreement is inoperative or 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 em-
ployees 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).

13.6.1 Legal effect of collective agreements (s 23)

Every collective agreement binds:
• the parties to the agreement;
• each party to the agreement and the members of every other party thereto in so far as
the provisions are applicable between them;
Collective bargaining 263

• the members of a registered trade union and the employers who are members of a regis-
tered 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 it by giving reasonable notice to the other parties, unless the agreement provides
otherwise.
Where a collective agreement has been concluded in a council, it may be enforced with
the assistance of a designated agent. The council may request the Minister to appoint a
person as a designated agent of the council 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 a compliance order, requiring any person bound
by the agreement to comply with that agreement. Any unresolved dispute concerning com-
pliance may be referred to arbitration by an arbitrator appointed by the council. If a non-
party to the council objects to the appointment of the arbitrator by the council, the CCMA
must, on request of the council, appoint an arbitrator. While 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 agree-
ment, 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 the arbitrator. The table of fines is contained in item 29 of
Schedule 7 to the Act.

13.6.2 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 non-union members must be identified in the agree-
ment and they must be eligible for union membership. Only a registered majority union
(or two or more registered unions acting jointly) may conclude such an agreement with an
employer or employers’ organisation. However, there is no statutory obligation upon an
employer or employers’ organisation to conclude an agency shop agreement.
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 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
264 A Practical Guide to Labour Law

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 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.

13.6.3 Closed shop agreements (s 26)

A registered majority union (or two or more unions acting jointly) may negotiate and con-
clude a closed shop agreement with an employer.
A closed shop agreement is binding only if a ballot is held amongst employees covered by
the agreement and two-thirds of them support such an arrangement. The ballot is to be
conducted in accordance with the provisions of a collective agreement, if any, or the guide-
lines published by the CCMA. Only post-entry closed shop agreements are provided for,
that is, 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 socio-
economic interests of 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 this, one third of the employees covered
by the agreement must sign a petition, calling for its termination. If the majority of employ-
ees vote against the closed shop agreement, it must be terminated.
The Act expressly states that it is not unfair for an employer to dismiss an employee who
refuses to join the union which is party to the closed shop or who is refused union member-
ship or who is fairly expelled from the union.
However, an employee may not be unfairly refused membership of the union or be un-
fairly expelled from it. The employees who are already in employment at the time a closed
shop agreement takes effect may not be dismissed for refusing to join a union party to the
agreement. Conscientious objectors are also not obliged to join the union. The latter two
groups of employees may be required, after their refusal to join the union, to pay an agency
fee as if an agency shop agreement is applicable to them.
If the Labour Court decides that a dismissal is unfair because an employee was unfairly
refused union membership or unfairly expelled from the union, the dismissal is dealt with
in the same manner as any other unfair dismissal, except that any order of compensation
must be made against the trade union.
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 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.
Collective bargaining 265

13.6.4 Resolution of disputes about collective agreements (s 24)

If there is a dispute about the interpretation or application of a collective agreement the
procedure included in the agreement must be followed. The majority of council collective
agreements provide for conciliation and arbitration of such a dispute by the council itself.
However, conciliation and arbitration must be conducted by the CCMA if no procedure has
been included in the agreement, if the agreed procedure is inoperative or if the procedure
is frustrated by a party.
A dispute concerning the interpretation or application of an agency shop or a closed
shop agreement is referred to the CCMA (and not a bargaining council) for conciliation
and arbitration.
An arbitration award is generally final and binding with no right of appeal against it. In a
few instances, however, a person bound by an arbitration award has the right to appeal
against it to the Labour Court. This right of appeal exists where an arbitration award has
been issued concerning closed shop or agency shop agreements. Where the dispute arose
as a result of the payment of closed shop or agency shop fees to a political party as affilia-
tion 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 socio-economic 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.
The following diagram is provided in an attempt to assist parties to a dispute concerning
5
the interpretation or application of collective agreements:
Award

Arbitration

Award No resolution

Agreed council
arbitration proce- Conciliation
dure

No resolution CCMA

No agreed procedure,
Agreed
agreed procedure
council concilia-
OR inoperative or its oper-
tion
ation frustrated by a
procedure
party

Dispute about interpretation

or application of collective
agreement
Agency shop and closed shop agreements do not have to provide for a dispute resolution
procedure and, in terms of section 24(6) read with section 127, the CCMA has exclusive
jurisdiction to conciliate and arbitrate disputes concerning the interpretation or application
________________________

5 Flow diagrams 3 and 4 of Sch 4 of the Act (adapted).

266 A Practical Guide to Labour Law

of these agreements. Keep in mind that, once the CCMA has issued an arbitration award, a
limited right of appeal to the Labour Court exists – but only in the context of agency shop
6
and closed shop agreements.

Questions
Question 1
Is there a duty to bargain in terms of the Labour Relations Act of 1995? Explain. (12)

Question 2
Name and discuss the organisational rights accorded a representative trade union. (20)

Question 3
A trade union has a 51% membership at Coltex (Pty) Ltd.
3.1 Briefly discuss the procedure to be followed by the union in order to exercise the
right of access to the workplace and the right to stop-order facilities. (8)
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).
3.2 Assume that the management of Coltex (Pty) Ltd refuses to deduct union subscrip-
tion 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 re-
solved. (5)
Hint: See ss 21 and 22.
3.3 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 4
Discuss the nature and legal effect of collective agreements by discussing the provisions of
sections 23 and 31 of the LRA. Include in your answer the extension of collective agree-
ment in terms of section 32 of the Act. (30)

Question 5
A dispute exists between trade union A and employer B over the interpretation of a pro-
vision in an agreement that they concluded three months before. Discuss the procedure to
be followed to have this dispute resolved. (8)
Hint: See s 24.

________________________

6 The 2013 amendments to the Employment Equity Act creates a second instance in which a CCMA award
is appealable: if the CCMA arbitrates a sexual harassment dispute or any other discrimination dispute
referred to it by an employee earning below the BCEA threshold, that award can be taken on appeal to
the Labour Court.
Collective bargaining 267

Question 6
Trade union A and employer B have negotiated and concluded a collective agreement
providing for organisational rights, a resolution procedure for disputes about the interpret-
ation and application of the agreement, a resolution procedure for disputes about organisa-
tional 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 7
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. Manage-
ment 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.
7.1 Is management obliged to disclose information to MAWU under these circumstanc-
es? Explain. (6)
7.2 Assume that MAWU and GWU act jointly in requesting disclosure. Management re-
fuses 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 fol-
lowed 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).
7.3 Explain whether, in light of the 2014 amendments to the LRA, it is at all possible for
MAWU to obtain the right to disclosure of information. (6)

Question 8
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 9
Is a workplace forum a negotiating body in the true sense of the word? Explain. (5)

Question 10
An arbitration award is generally final and binding with no right of appeal against it. How-
ever, in two instances it is possible to appeal against a CCMA award. Discuss the circum-
stances in which such a right of appeal lies. (8)
Hint: S 24(7) of the LRA and s 10 of the EEA.

Question 11
An agency shop agreement has been concluded between employer A and trade union B.
11.1 Discuss the main characteristics of an agency shop agreement. (5)
11.2 According to A, the union does not enjoy majority membership anymore and there-
fore A wishes to terminate the agency shop agreement. Discuss the requirements that
should be complied with in order to terminate such an agreement. (5)
268 A Practical Guide to Labour Law

Question 12
Freedom of association is guaranteed in terms of the Constitution, as well as the Labour
Relations Act of 1995. Give your opinion as to the constitutionality of a closed shop agree-
ment vis-à-vis the right to freedom of association. (8)

Question 13
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.
13.1 Can X be dismissed as a result of his refusal to join the union? Briefly explain. (3)
13.2 Assume that X refuses to join the union on conscientious grounds. Can he be dis-
missed under these circumstances? (3)
13.3 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 14
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.
14.1 NUM approaches the management of Rand Mining Company with a request to exer-
cise organisational rights. Management responds by informing NUM that it cannot
exercise any organisational rights at the Welkom mine because of its small member-
ship 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, taking into ac-
count the 2014 amendments to the LRA, and explain whether NUM is entitled to or-
ganisational rights at any or all three of the mines. (10)
14.2 Consider NUM’s representativeness and then list the organisational rights, if any,
that it is entitled to. (8)
14.3 Explain what NUM must do to exercise its organisational rights (assuming that it is
entitled to such rights). (6)
14.4 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 re-
quest to negotiate bonuses for its members at that mine only. Management’s re-
sponse 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)
Collective bargaining 269

(b) When management declares its unwillingness to negotiate bonuses, NUM is of

the opinion that management should negotiate and declares a dispute. Iden-
tify this type of dispute and describe how it can be resolved. (6)

Question 15
One for All Union and 34 of its members, reactor operators employed by Electro, claimed
that Electro had agreed to the early retirement of those employees without loss of benefits.
They contended that the in-principle agreement had been reduced to writing and was
embodied in a management directive signed by the power station manager, Mr Phale.
Electro denied the existence of an agreement between the union, the employees and the
employer on three grounds: the management directive had been withdrawn because it had
not been authorised by head office, no consensus had been reached and the Electro repre-
sentative had not been authorised to enter into such an agreement. In the alternative,
Electro argued that, even if there was an agreement between the parties, it was not en-
forceable because early retirement was a condition of service that could only be negotiated
centrally and not at enterprise level.
Decide, with reference to Solidarity & Others v Eskom Holdings Ltd (2012) 33 ILJ 464 (LC),
whether a binding agreement was concluded between the parties. (8)

Question 16
After requesting organisational rights in Hough’s Stores, SACCAWU presented the em-
ployer with a draft recognition agreement that would have extended to SACCAWU the
right to bargain over its members’ terms and conditions of employment. Citing the “Sec-
toral Determination for the Retail Industry” as the reason, Hough’s Stores objected to
extending that right to the union and declined to sign the agreement. SACCAWU referred
a dispute and sought an order declaring that it had collective bargaining rights in the
employer’s workplace. Hough’s Stores contended that the referral was premature because
it had agreed to extend all statutory organisational rights to the union and the clause
relating to collective bargaining was still being negotiated. Advise SACCAWU which further
steps can be taken in this matter. (5)
Hint: See SACCAWU v Cash Crusaders (2010) 19 CCMA 4.7.3.
270 A Practical Guide to Labour Law

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
• Identify the market
PERIOD
• 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,

NEGOTIATION agreements and trends in similar industries
TEAMS
• Do not include chief executive of company in team

• 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
NEGOTIATION • The bargaining range is the area between the union’s de-
PROCESS mands and the company’s first offer and it sets the limits with-
in which to 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 pos-
sible

OUTCOME OF
When the parties have settled all issues an agreement is drawn up
COLLECTIVE
and signed by them
BARGAINING
Collective bargaining 271

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 bar-
gaining 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.
272 A Practical Guide to Labour Law

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 struc-
ture 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 be-
long to a 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 work-
ing 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 agree-
ment 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.
Collective bargaining 273

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 man-
agement 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 re-
quest 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.
274 A Practical Guide to Labour Law

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, pro-
vided that work is not disrupted thereby or, alternatively, a general meeting may be ar-
ranged 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 un-
ion 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 agree-
ment 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 proce-
dure.
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 dec-
laration 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 fi-
nal 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. How-
ever, 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.
Collective bargaining 275

20. Disciplinary procedure

Both parties agree to abide by the disciplinary procedure as set out in Annexure 2.
21. Retrenchment procedure
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 representa-
tives 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) work-
ers. 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 his
signature hereto and shall be binding on both parties for a period of one year, unless the
parties agree otherwise.
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 circum-
stances.
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 amend-
ment(s) must be reduced to writing and signed by or on behalf of both parties.
(Signed)
 14
STRIKES AND LOCK-OUTS

14.1 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 (that is, to strike) is part and
parcel of this process (“collective bargaining without the right to strike is collective beg-
ging”), 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 clearly embraces the view that strikes are functional to
collective bargaining and as such the integrity of the bargaining agents is of paramount im-
portance. Therefore, strikers should enjoy considerable job security, provided they play the
collective bargaining game according to the rules as laid down by the Act.

14.2 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 IV of the Labour Relations Act of 1995 gives statutory effect to the consti-
tutional protection afforded industrial action by making it much easier to strike legally and
by protecting the job security of strikers if the strike is in compliance with the Act. Where
employees have complied with the procedural prerequisites of the Act their strike is pro-
tected 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 the previous dispensation in which employees
had the freedom – and not the right – to strike. A strike constituted a material breach of the
common law contract of employment and strikers could be dismissed, irrespective of the
legality or otherwise of the strike.
The 1995 LRA classifies strikes into three categories:
• protected strikes (s 67) are strikes that conform with the procedural requirements of the
Act (and strike procedures contained in a collective agreement or the constitution of a
bargaining council). The most important consequence is that workers may not be dis-
missed for their involvement in a protected strike (pars 14.5 and 14.6 below);

277
278 A Practical Guide to Labour Law

• unprotected strikes (s 68) are strikes that do not conform with the procedural require-
ments of the Act. The most important consequence is that workers can be dismissed for
striking, provided the dismissals are fair. Procedural and substantive fairness standards
still apply (par 14.6 below);
• prohibited strikes (s 65(1)) are strikes that are absolutely prohibited by the Act, for
example, strikes in essential services. The consequences are the same as in the case of
unprotected strikes (par 14.4 below).

14.3 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 em-
ployers, 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 exist-
ence of a strike:
• collective action of workers or ex-workers, having a common goal. An individual worker
who withholds his labour is not on strike. The employees or ex-employees who partici-
pate 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 pres-
sure 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.

14.4 Prohibited strikes (absolute limitations on industrial action)

(s 65)

The LRA places an absolute prohibition on strikes and lock-outs 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 the issue in dispute is subject to compulsory arbitration;
• 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 any other employment law, for example, dismissals
and unfair discrimination;
• if the employee is employed in essential or maintenance services;
Strikes and lock-outs 279

• no strike or lock-out may occur during the first year of a sectoral determination made in
terms of the Basic Conditions of Employment Act, which regulates the issue in dispute;
and
• no strike or lock-out may occur when an arbitration award, a collective agreement or a
ministerial determination that regulates the issue in dispute has been made.

14.4.1 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 deter-
mine 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 the new section 70A the ESC is to be composed of eight persons: an inde-
pendent chairperson and deputy chairperson, both of whom must be senior CCMA com-
missioners, and six other persons nominated by organised business, labour and govern-
ment.
In terms of the new 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 the new 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 the new 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;
280 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, in accordance with the provisions of the Act, 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.
The new 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 inter-
ested 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 negotia-
tions 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 indus-
trial 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.

14.4.2 Maintenance services (s 75)

In terms of the Act 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 arbitra-
tion. In return for having to forsake the strike weapon an employer may not employ re-
placement 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 cannot participate in a protected strike, this provision envisages the
situation where an employer employs maintenance workers and non-maintenance workers
and the latter category of workers participate in a protected strike.

14.5 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 lock-out). One must distinguish between the
Strikes and lock-outs 281

procedure that is generally applicable and deviations in respect of specific issues and cir-
cumstances. The general procedure may be illustrated as follows:

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 commence-
ment of strike or lock-out (if the State is
the employer 7 days’ notice is required)

STEP 4 Protected strike/lock-out commences

after expiry of notice period
In certain circumstances a strike or lock-out is protected even though the prescribed pro-
cedures 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 lock-out, the strike will be a protected
strike even though it does not comply with the general procedures;
• if the lock-out is in response to an unprocedural strike, the lock-out will be a protected
lock-out 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 lock-
out is protected although it does not comply with the general procedures;
• if there is a collective agreement containing a procedure for strikes and lock-outs and
the strike or lock-out conforms with the procedure in the agreement, it is protected al-
though 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 re-
quest 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 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, there is no need
to refer the dispute over the substantive fairness of the dismissals to conciliation. Once the

1 If the dispute is about a refusal to bargain an advisory award must also be issued before the notice to
strike is given.
282 A Practical Guide to Labour Law

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 challenged. Refer
to paragraph 16.8 (“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
Act, 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.

14.6 Consequences of a strike (s 67)

If the procedures required by the Act have been followed in calling for a strike, the strike is
designated 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
remuneration 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 per-
son 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
constitution) may not give rise to litigation which will affect
the legality or protection of a strike.
PROTECTED
STRIKES • Some limitations apply in respect of the employer’s ability
to employ replacement workers (scab labour):
– in the case of a protected strike in an undertaking the
whole or part of which has been designated a mainten-
ance service an employer may not employ replacement
labour to continue or maintain production (s 76(1)(a));
– employers who embark on an offensive lock-out (i.e. a
lock-out that is not in response to a strike) may not em-
ploy replacement labour to do the work of the locked-
out employees irrespective of whether the lock-out 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)).
Strikes and lock-outs 283

• The Labour Court may interdict the strike.

• The Labour Court may award just and equitable compen-
sation 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 pro-
visions of the chapter on strike law and the extent of
those attempts;
– whether the strike or lock-out was premeditated;
– whether the strike or lock-out was in response to unjusti-
UNPROTECTED fied conduct by another party to the dispute;
OR – whether there was compliance with a Labour Court
PROHIBITED order or interdict restraining any person from participa-
STRIKES ting in industrial action;
– the interests of orderly collective bargaining;
– the duration of the strike or lock-out;
– the financial position of the employer, trade union or
employees.
• Involvement in an unprotected or prohibited strike may
constitute 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 gather-
ing 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.

14.7 Other forms of industrial action

The LRA of 1995 specifically provides for secondary strikes, picketing and socio-economic
protest action.

14.7.1 Secondary strikes (s 66)

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 him; it
is to make life more difficult for the primary employer. In this situation one may feel justifi-
ably sympathetic towards the secondary employer; hence the legislature deemed it neces-
sary to limit the scope of protected secondary strikes.
284 A Practical Guide to Labour Law

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 em-
ployer 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”.
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 second-

ary 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
PROTECTED for operational reasons) prior to the commencement of the
SECONDARY secondary strike; 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 ex-
tent 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 busi-
ness.

A secondary employer may apply to the Labour Court for an interdict limiting or prohibit-
ing the secondary strike on the basis that the nature and extent of the secondary strike will
cause disproportionate harm to his 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 10 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 in-
vestigation 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.

14.7.2 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 workers to stop working and to join the picket.
Strikes and lock-outs 285

The right to picket is a protected fundamental right in terms of the Constitution and is
regulated in section 69 of the 1995 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
to any lock-out;
PROTECTED • the picket takes place in a public place outside the employer’s
PICKETING 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 prescribed by the CCMA)
are followed.

When a picket is planned the employer and the union would normally negotiate and con-
clude a picketing agreement which regulates the picket. They would typically include in
such an agreement the place and times for the picket. In the event of the parties not being
able to conclude a picketing agreement, they can approach the CCMA to establish picket-
ing rules. These rules may, for example, include the picket to take place on the employer’s
premises, outside the premises or even on premises owned or controlled by a person other
than the employer. Picketing on another person’s premises can only be included in the
rules established by the CCMA if that person was afforded an opportunity to make
submissions to the CCMA before the rules were established (s 69(6)).
A dispute concerning the right to picket or any alleged contravention of the statutory
requirements, a picketing agreement or the rules established by the CCMA may be referred
to the CCMA (and not a bargaining council) for conciliation and, if not resolved, to the
Labour Court. The referring party may be the employer, the union or a person who owns
or is in control of premises on which a picket has been allowed (s 69(8)).

14.7.3 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 “stay-
aways”, for example, stay-aways called by COSATU against amendments to the LRA.
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”. Thus, the purpose of protest action must be limited to the promotion or defence of
the socio-economic interest of workers; 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
Act does not define. The connection between the reason for the protest action and the
286 A Practical Guide to Labour Law

employees’ socio-economic interest will presumably have to be reasonably clear and obvi-
ous. The more overtly political the aims of the action are, the greater will be the presump-
tion 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-
PROTECTED tered trade union or federation;
PROTEST • NEDLAC must be given notice of the intention to embark
ACTION on protest action, including the reasons for and nature of
the 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.

14.7.4 Strikes in response to impending retrenchments

This has been discussed in paragraphs 14.5 and 16.8.

14.8 Determining the nature and status of industrial action

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 Act. There-
fore, 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 recognised by the Act. Once this has been
established, one has to ascertain whether there is compliance with the procedural require-
ments laid down by the Act. 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 by the Act. 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 Status
Does the action fall within the Did employees com- Yes – protected
definition of a strike, secondary If yes ply with prescribed No – unprotected
strike, picket or protest action? procedures?

Determine with reference to the

• nature of the action
• aims of the action
Strikes and lock-outs 287

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 To resolve disputes about matters of
at the disruption of their own mutual interest between employer
employer’s operations. and employees or to remedy a griev-
ance.
SECONDARY Employees’ action is directed To exert pressure on the primary em-
STRIKE at the disruption of another ployer (whose employees are on a pro-
employer’s operations. tected strike).
PICKETING Peaceful public demonstration To make grievances publicly known, to
by employees against their elicit external support and to urge
own employer in support of a other workers to join the picket line.
protected strike or in opposi-
tion of a lock-out.
PROTEST It is not aimed at any particu- To bring pressure to bear upon a non-
ACTION lar employer, but more often employer agency (typically a govern-
than not against government mental authority) to do or not to do
in pursuit of socio-economic something that will impact on the
interests. socio-economic interests of employ-
ees.

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 em-
ployees protected against dismissal.
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
Act. 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 workers 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 workers 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 workers 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 workers can 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).
288 A Practical Guide to Labour Law

It is important to have regard to item 6 of the Code of Good Practice: Dismissal (Sched-
ule 8):
6. Dismissals and industrial action
(1) Participation in a strike that does not comply with the provisions of chapter IV is miscon-
duct. However, like any other act of misconduct, it does not always deserve dismissal. The sub-
stantive 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 of-
ficial 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 al-
lowed 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 employ-
ees in question, the employer may dispense with them.

14.9 Lock-outs
The lock-out is the employer’s economic weapon during the collective bargaining process
to compel workers to accept his 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 employ-
ees’ 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 his business, totally or partially, or to dismiss em-
ployees (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.
The definition of a lock-out implies two elements: (a) an act by the employer (the exclu-
sion 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 sec-
tion 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 employ-
ees 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.
Strikes and lock-outs 289

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 and 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
List the requirements that have to be met for
4.1 a sympathy strike to qualify as a protected secondary strike; (5)
4.2 a picket to qualify as protected industrial action. (6)

Question 5
A trade union went on a strike in compliance with the Act, upon which the employer issued
an ultimatum that the strikers should return to work. Although the workers returned to
work, the union informed the employer that it regarded the ultimatum as being without
justification, that the strike was only suspended pending legal advice and that it regarded
the dispute over which the strike was called as unresolved. Two months later the employees
went out on strike again. The employer argued that this was a new strike and not in compli-
ance with the Act as the procedures of the LRA were not complied with. The employer thus
tried to obtain an interdict preventing the strike. The union argued that the strike was a
legitimate continuation of the earlier strike and thus a “protected strike”. Was this a “pro-
tected strike”? (12)
Hint: See AECI Chlor-Alkali & Plastic Ltd & Others v SA Chemical Workers’ Union & Others
(1986) 7 ILJ 300 (W) and Chapter IV of the LRA of 1995. See also Chamber of Mines of SA v
National Union of Mineworkers (1986) 7 ILJ 304 (W); Free State Consolidated Gold Mines v Na-
tional Union of Mineworkers (1987) 8 ILJ 606 (O); Chamber of Mines of SA v National Union of
Mineworkers (1987) 8 ILJ 68 (A).

Question 6
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 item 6 of Schedule 8 (the Code of Good Practice: Dismissal).
290 A Practical Guide to Labour Law

Question 7
ZYX CC is a small fresh produce retailer. It manages to compete against the large retail
stores by staying open seven days a week from 07:00 to 20:00. Although ZYX and its employ-
ees 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. As a result of this
refusal ZYX is no longer able to compete with the chain stores and is rapidly losing busi-
ness. 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 8
Explain when an employer is prohibited from employing replacement labour (“scab
labour”). (3)

Question 9
9.1 Is it possible for the members of an unregistered trade union to go on a protected
strike? Explain. (4)
9.2 Can employees who do not belong to a trade union go on a protected strike?
Explain. (4)

Question 10
Suppose the employees of XYZ Company go out on strike, demanding that the local author-
ity should institute a public transport service in the area where they live as they find it
difficult to get to and from work.
10.1 Would this constitute a strike? (5)
10.2 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 the public transport service. Would this make a difference to your answer? (5)

Question 11
The employees of the XYZ Company embarked on a protected strike in support of a wage
demand. Subsequently, the employees of PTY Company also went on strike in support of
the demands made by the employees of XYZ company. Can the latter strikers rely on the
legality of the primary strike (that is the strike by the employees of XYZ company) to render
their strike (the secondary or sympathy strike) legal or must they also comply with the pro-
visions contained in sections 64? (10)

Question 12
The employees of XYZ Company embark on a protected strike in pursuit of their wage
demands. The employer counters the strike by (a) offering bonuses to non-striking employ-
ees 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 and will they survive a chal-
lenge in the Labour Court? (10)
Hint: See Chemical Workers’ Industrial Union v BP South Africa (1991) 12 ILJ 599 (IC); OK
Bazaars (1929) Ltd v SACCAWU (1993) 14 ILJ 362 (LAC). Compare this with s 5(3) of the
LRA.
Strikes and lock-outs 291

Question 13
During a strike an employer requests an employee who is not on strike to do the work of
one of the strikers. If the employee refuses to comply with this request, may he be dismissed
if:
13.1 it is an unprotected strike; (3)
13.2 it is a protected lock-out; (3)
13.3 the work he was requested to do was necessary to prevent a health hazard? (3)

Question 14
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 Act. After three weeks typhoid fever
breaks out in the area. Medical authorities are of the opinion that this alarming develop-
ment is a direct consequence of the fact that refuse is not being removed and processed.
Given this situation, answer the following questions:
14.1 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)
14.2 May the local authority employ replacement labour to do the work of the strikers? (3)
14.3 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)
14.4 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, ex-
plain the process that the ESC must follow in designating this service as an essential
service. (6)

Question 15
Employees and their employer deadlock on the employer’s final offer during wage negotia-
tions. 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 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)

Question 16
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 Johannes-
burg 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 Act. The strike of the employees at ABC Wizardry is not successful as the company man-
ages 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 subsid-
iary company provides a maintenance service to the ABC Wizardry. As maintenance is re-
quired 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 diffi-
culties 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,
292 A Practical Guide to Labour Law

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 would use in opposing
the application. (20)

Question 17
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 em-
ployer the maximum financial harm. The employer twice issued ultimatums for the employ-
ees 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 dis-
missed. 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 rein-
state 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:
17.1 Will the employees be successful in their court application for reinstatement? (8)
17.2 Will the employer be successful in his claim for damages? (8)
Hint: See ss 67 and 68 (especially s 68(1)(b)) of the LRA and Swissport (SA) (Pty) Ltd v SA
Transport & Allied Workers Union & Others (2011) 32 ILJ 1256 (LC). Compare this with the
position under the 1956 LRA and Food and Beverage Workers’ Union v Hercules Cold Storage
(1989) 10 ILJ 457 (IC); Food and Beverage Workers’ Union v Hercules Cold Storage (1990) 11 ILJ
47 (LAC).

Question 18
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 embez-
zling 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:
18.1 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).
18.2 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 19
May an employer reward employees who did not take part in a protected strike merely
because they did not strike? (5)
Hint: See FAWU & Others v Pets Products (Pty) Ltd (2000) 9 LC 6.12.3; NUM v Namakwa Sands
– A division of Anglo Operations Ltd [2008] 7 BLLR 675 (LC).
Strikes and lock-outs 293

Question 20
Mr Malabane is the director of Malabane Enterprises. His employees approach him with a
request to extend the 30-minute lunch break to an hour. After negotiations it is agreed that
the lunch break will be 45 minutes. The next day, however, the employees hand over a
letter of grievance regarding lunch breaks and the day after that all the employees go on
strike. Mr Malabane approaches you for advice.
20.1 Do the employees enjoy protection? Explain. (5)
20.2 Discuss the legal consequences of the employees’ strike. (10)

Question 21
The trade union FADUSA approaches you for advice. The members of the union employed
by ZZ Trading have been on strike for five days because of a dispute over fringe benefits.
The strike has not been a success and the members of the union are complaining because
they do not receive any wages as a result of the “no work, no pay” rule. The trade union
wants to put more pressure on the employer. Advise the trade union on other possible
industrial action and on the procedures that must be followed to protect the employees
against dismissal. (10)

Question 22
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 bo-
nuses 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.
22.1 Does the employees’ refusal to work constitute a strike and, if it does, is the strike
protected or unprotected? (5)
22.2 Can the employer dismiss the employees in the circumstances? (2)
22.3 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 23
Peter, Sam and Lebo were among a number of employees that Nicholas, the employer, dis-
missed for misconduct after a protected strike characterised by intimidation and widespread
violence, including shooting and the murder of a non-striking employee. Nicholas claimed
that the employees had broken the picketing rules and defied an order of the Labour Court.
A disciplinary hearing was subsequently convened outside Nicholas’s premises. The employ-
ees claimed that the strike was peaceful, that they could not afford transport to the hearing
and that their dismissals were procedurally and substantively unfair. Discuss whether their
dismissals were fair. (10)
Hint: See Kunene & Others v Dunlop Belting Products (Pty) Ltd (2011) 20 CCMA 9.4.2.
294 A Practical Guide to Labour Law

Appendix 1

CODE OF GOOD PRACTICE ON PICKETING

1. Introduction
(1) This code of good practice is intended to provide practical guidance on picketing in support of
any protected strike or in opposition to any lock-out. 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 un-
armed. Section 69 of the Labour Relations Act, No. 66 of 1995, seeks to give effect to this
right in respect of a picket in support of a protected strike or a lock-out.
(3) This code does not impose any legal obligations and the failure to observe it does not by
itself render anyone liable in any proceedings. But section 69(5)(d) of this Act provides that
the Commission must take account of this code of good practice when it establishes picketing
rules.
(4) Any person interpreting or applying this Act in respect of any picket must take this code of
good practice into account. This is the effect of section 203 of this Act. This applies to the
Commission, Labour Court, the Labour Appeal Court, and the South African Police Services.
(5) This 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 sec-
tion 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 pro-
tected strike or in opposition to any lock-out;
(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 em-
ployer is subject to overrule by the CCMA, if such permission is unreasonably denied.
(6) 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 Reg-
ulation of Gatherings Act, 205 of 1993.
(7) A picket with purposes other than to demonstrate in support of a protected strike or a lock-
out is not protected by this Act. The lawfulness of that picket or demonstration will depend
on compliance with the ordinary laws.
2. Authorisation
(1) A picket contemplated in section 69 of this Act must be authorised by a registered trade union.
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 permit-
ting a trade union official to authorise a picket in terms of section 69(1). The actual authorisa-
tion should be formal and in writing. A copy of the resolution and, if necessary, the formal
authorisation ought to be served on the employer before the commencement of the picket.
(2) The authorisation applies to its members and its supporters.
3. Purpose of the picket
(1) The purpose of the picket is to peacefully encourage non-striking employees and members
of the public to oppose a lock-out or to support strikers involved in a protected strike. The
nature of that support can vary. It may be to encourage employees not to work during the
strike or lock-out. It may be to 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.
Strikes and lock-outs 295

(2) The strike must be a protected strike. In normal cases, employees picket at their own place of
work 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 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 of this Act. This is because the definition of “secondary
strike” in section 66 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 pos-
sible direct or indirect effect 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
this Act.
(5) Pickets may be held in opposition to a lock-out. Section 69(1) does not distinguish between
protected and unprotected lock-outs. This means that a picket may be authorised and held
in opposition to a protected or an unprotected lock-out.
4. Picketing rules
(1) The registered trade union and employer should seek to agree to picketing rules before the
commencement of the strike or picket.
(2) A collective agreement may contain picketing rules. When they negotiate an agreement the
following factors should be considered:
(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 employees and any other relevant
parties;
(f) access to the employer’s premises for purposes other than picketing for example access
to toilets, the use of telephones, etc;
(g) the conduct of the picketers on the employer’s premises; and
(h) this code of good practice.
(3) The factors listed in subparagraph (2) apply to the determination of picketing rules by a
commissioner.
5. Pickets on the employer’s premises
(1) A picket may take place on the employer’s premises 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 for example a shop, a factory, a mine, etc;
(b) the particular situation of the workplace for example distance from place to which pub-
lic 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 areas designated for the picket;
(e) time and duration of the picket;
296 A Practical Guide to Labour Law

(f) the proposed movement of persons participating in the picket;

(g) the proposals by the trade union to exercise control over the picket;
(h) the conduct of the picketers.
6. Conduct in the picket
(1) The registered trade union must appoint a convenor to oversee the picket. The convenor
must be a member or an official of the trade union. That person should have, at all times, a
copy of section 69 of this Act, a copy of these guidelines, and collective agreement or rules
regulating pickets and a copy of the resolution and formal authorisation of the picket by the
registered trade union. These documents are important for the purposes of persuading the
persons participating in the picket to comply with the law. These documents may also be
important to establish the lawfulness and the protected nature of the picket to the employee,
the public and in particular to the police.
(2) The convenor must notify the employer, the responsible person appointed in terms of
section 2(4)(a) of the Regulation of Gatherings Act, 1993 and the police of the intended
picket. The notice should contain:
(a) notification that the picket is in compliance with section 69 of this Act;
(b) the name, address and telephone number of the trade union and the convenor;
(c) details of the picket, including the details of the employer being picketed, the date of
the commencement of the picket, the location of the picket, etc.
(3) The employer must, on receipt of the notification, provide the convenor with the name,
address and telephone number of the person appointed by the employer to represent it in
any dealings arising from the picket.
(4) The registered trade unions should appoint picket marshals to monitor the picket, they should
have the telephone numbers of the convenor, the trade union office and any persons
appointed to oversee the picket, in the absence of the convenor. The marshals should wear
arm bands to identify themselves as marshals. The trade union should instruct the marshals
on the law, any agreed picketing rules or where no agreed rules exist any picketing rules that
have been stipulated by the CCMA, this Code of Conduct and the steps to be taken to en-
sure that the picket is conducted peacefully.
(5) 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.
(6) 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.
(7) Picketers may not:
(a) physically prevent members of the public, including customers, other employees and
service providers, from gaining access to or leaving the employer’s premises;
(b) commit any action which may be unlawful, including but not limited to any action which
is, or may be perceived to be violent.
7. Role of the police
(1) It is not the function of the police to take any view of the merits in particular of the dispute
giving rise to a strike or a lock-out. They have a general duty to uphold the law and may take
reasonable measures to keep the peace whether on the picket line or elsewhere.
(2) The police have no responsibility for enforcing the Labour Relations Act. An employer can-
not require the police to help in identifying pickets against whom it wishes to seek an order
from the Labour Court. Nor is it the job of the police to enforce the terms of an order of the
Labour Court. Enforcement of an order on the application of an employer is a matter for
the courts and its officers, although the police may assist officers of the court when there is a
breach of the peace.
Strikes and lock-outs 297

(3) The police have the responsibility to enforce the criminal law. They may arrest picketers for
participation in violent conduct or attending a picket armed with dangerous weapons. They
may take steps to protect the public if they are of the view that the picket is not peaceful and
is likely to lead to violence.
8. General rights, obligations and immunity
(1) A person who takes part in a picket protected in terms of this 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.
(2) The employer may not take disciplinary action against an employee for participating in a
lawful picket. Where the employee’s conduct during a picket constitutes misconduct the em-
ployer may take disciplinary action in accordance with the provisions of this Act.
298 A Practical Guide to Labour Law

Appendix 2

LRA Form 4.1

Section 69(4)
Labour Relations Act, 1995

READ THIS FIRST

REQUEST TO ESTABLISH PICKETING RULES

Ð
1. PARTY MAKING REQUEST
Name:........................................................................................
..................................................................................................
WHAT IS THE Postal Address:..........................................................................
PURPOSE ..................................................................................................
OF THIS FORM? ..................................................................................................
This form is a request by a Tel: .......................................... Fax: ..........................................
party to the CCMA to secure
agreement on picketing rules Contact Person: ........................................................................
during a strike or lock-out. Reference Number: ..................................................................
WHO FILLS IN Details of Request: ....................................................................
THIS FORM? ..................................................................................................
A registered trade union or ..................................................................................................
employer.
..................................................................................................
WHERE DOES THIS
FORM GO? 2. OTHER PARTY’S DETAILS
The Registrar, Provincial Office Name:........................................................................................
of the CCMA. Please refer to the
last page for details. ..................................................................................................
Postal Address:..........................................................................
OTHER
..................................................................................................
INSTRUCTIONS
A copy of this form must be
..................................................................................................
served on the other party. Tel: .......................................... Fax: ..........................................
Proof that a copy of this form
has been served on the other
Contact Person: ........................................................................
party must be supplied by Reference Number: ..................................................................
attaching:
y A copy of a registered slip
from the Post Office;
y A copy of a signed receipt if
hand delivered;
y A signed statement
confirming service by the
person delivering the form;
y A copy of a fax confirmation
slip; or
y Any other satisfactory proof
of service.
If more than one party is
referring the dispute or if the
dispute is referred against more
than one party, write down the
additional names and
particulars on a separate piece
of paper and attach details to
this form.

CCMA Ref. Number .................... . . . please turn over Î

Strikes and lock-outs 299

LRA Form 4.1

Request to establish picketing rules
Page 2 of 3

3. ARE YOU REQUESTING THE CCMA TO DEAL WITH THIS MATTER URGENTLY?
Yes ‰ No ‰
If so, provide reasons.
.....................................................................................................................................................
.....................................................................................................................................................
.....................................................................................................................................................
.....................................................................................................................................................
.....................................................................................................................................................

4. PROVIDE DETAILS OF THE DISPUTE OVER PICKETING RULES

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

5. PROVIDE ANY PROPOSALS FOR SETTLEMENT OF THE DISPUTE

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

6. CONFIRMATION OF ABOVE DETAILS:

Form submitted by (name): ..............................................................................................................
Signature: ......................................................................................................................................
Position: ........................................................................................................................................
Date: .............................................................................................................................................
Place: ............................................................................................................................................
. . . please turn over Î
300 A Practical Guide to Labour Law

LRA Form 4.1

Request to establish picketing rules
Page 3 of 3
PROVINCIAL OFFICES
OF THE CCMA
CCMA EASTERN CAPE
EAST LONDON
Physical address: Rennies Building, Ground Floor
Cnr Church & Oxford Streets
East London 5201
Postal address: Private Bag X9068
East London
5200
Tel: (043) 743-0826
Fax: (043) 743-0810
E-mail: pe@ccma.org.za
PORT ELIZABETH
Physical address: 107 Govan Mbeki Avenue
Port Elizabeth
6001
Postal address: Private Bag X22500
Port Elizabeth
6000
Tel: (041) 505-4300
Fax: (041) 586-4585/4410
E-mail: pe@ccma.org.za

CCMA FREE STATE

Physical address: NBS Building
Cnr. Elizabeth & West Burger Streets
Bloemfontein
9301
Postal address: Private Bag X20705
Bloemfontein
9300
Tel: (051) 505-4400
Fax: (051) 448-4468/9
E-mail: blm@ccma.org.za

CCMA GAUTENG
JOHANNESBURG
Physical address: Johannesburg Regional Office
127 Fox Street
Johannesburg
2001
Postal address: Private Bag X96
Marshalltown
2107
Tel: (011) 220-5000
Fax: (011) 220-5101/02/03/04/05/0861 392 262
E-mail: johannesburg@ccma.org.za
Strikes and lock-outs 301

TSHWANE (PRETORIA)
Physical address: Metro Park Building
351 Schoeman Street (Cnr Prinsloo)
Pretoria
0002
Postal address: Private Bag X176
Pretoria
0001
Tel: (012) 392-9700
Fax: (012) 392-9701/2
E-mail: pretoria@ccma.org.za

CCMA KWAZULU NATAL

DURBAN
Physical address: Embassy Building, 6th & 7th Floors
199 Smith Street (Cnr Aliwal)
Durban
4001
Postal address: Private Bag X54363
Durban
4000
Tel: (031) 362-2300
Fax: (031) 368-7387/ 7407
E-mail: kzn@ccma.org.za
PIETERMARITZBURG
Physical address: Gallwey House, 3rd Floor
Gallwey Lane
Pietermaritzburg
3201
Postal address: P O Box 72
Pietermaritzburg
3200
Tel: (033) 345-9249/71
Fax: (033) 345-9790
E-mail: kzn@ccma.org.za
RICHARDS BAY
Physical address: Promenade Building, Suite 15, 1st Floor
Cnr. Tassel Berry & Lira Link Streets
Richards Bay
3901
Postal address: Private Bag X1026
Richards Bay
3900
Tel: (035) 789-0357/1415
Fax: (035) 789-7148
E-mail: kzn@ccma.org.za
302 A Practical Guide to Labour Law

CCMA LIMPOPO
Physical address: CCMA House
104 Hans van Rensburg Street
Polokwane
0699
Postal address: Private Bag X9512
Polokwane
0700
Tel: (015) 297-5010
Fax: (015) 297-1649/7343
E-mail: ptb@ccma.org.za

CCMA MPUMALANGA
Physical address: CCMA House
Diedericks Street
Witbank
1035
Postal address: Private Bag X7290
Witbank
1035
Tel: (013) 656-2800
Fax: (013) 656-2885/6
E-mail: wtb@ccma.org.za

CCMA NORTHERN CAPE

Physical address: CCMA House
3-15 Compound Street
Kimberley
8301
Postal address: Private Bag X6100
Kimberley
8300
Tel: (053) 831-6780
Fax: (053) 831-5947/8
E-mail: kmb@ccma.org.za

CCMA NORTH WEST

KLERKSDORP
Physical address: CCMA House
47 Siddle Street
Klerksdorp
2570
Postal address: Private Bag X5004
Klerksdorp
2571
Tel: (018) 464-0700
Fax: (018) 462-4126/4053/(018) 474 0752
E-mail: kdp@ccma.org.za
Strikes and lock-outs 303

RUSTENBURG
Physical address: Shop SG7 11B
Rustenburg Sanlam Centre
43–45 Boom Street
Rustenburg
0299
Postal address: Private Bag X82104
Rustenburg
0300
Tel: To be confirmed
Fax: (014) 538-2167
E-mail: to be confirmed

CCMA WESTERN CAPE

Physical address: CCMA House
78 Darling Street
Cape Town
8001
Postal address: Private Bag X9167
Cape Town
8000
Tel: (021) 469-0111
Fax: (021) 465-7193/97/87/462 5006
E-mail: ctn@ccma.org.za
304 A Practical Guide to Labour Law

Appendix 3

LRA Form 4.4 NOTICE TO NEDLAC ABOUT

Labour Relations Act, 1995
POSSIBLE PROTEST ACTION
READ THIS FIRST

Ð NOTICE TO NEDLAC IN TERMS OF SECTION 77(1)(b)

STATING REASONS FOR AND NATURE OF PROTEST
ACTION

1) PROTEST ACTION DETAILS

WHAT IS THE PURPOSE We, ..............................................................................................
OF THIS FORM? ....................................................................................................
(name of registered trade union or federation of trade unions)
This form notifies NEDLAC that a
trade union or a trade union intend protesting because ..........................................................
federation is considering protest
action. ....................................................................................................
....................................................................................................
(give reasons)
WHO FILLS IN We will protest by .......................................................................
THIS FORM? ....................................................................................................
The secretary of a trade union or ....................................................................................................
trade union federation. (describe nature of protest)
The protest is directed at ...........................................................
....................................................................................................
WHERE DOES THIS ....................................................................................................
FORM GO? (name and address of other party)
Executive Director
NEDLAC 2) GENERAL
PO Box 443
Auckland Park Address of union/federation: ....................................................
2006 ....................................................................................................
. Tel: ................................................Fax: .......................................

Signature of Secretary: ...............................................................

Name:..........................................................................................

Date:............................................................................................
Strikes and lock-outs 305

Appendix 4

LRA Form 4.5

Labour Relations Act, 1995
NOTICE TO NEDLAC OF
READ THIS FIRST INTENTION TO PROCEED WITH

Ð
PROTEST ACTION

NOTICE TO NEDLAC IN TERMS OF SECTION 77(1)(d) OF

INTENTION TO PROCEED WITH PROTEST ACTION

1) PROTEST ACTION DETAILS

WHAT IS THE PURPOSE We, ..............................................................................................
OF THIS FORM? ....................................................................................................
This form notifies NEDLAC that a
(name of trade union or federation of trade unions)
trade union or a trade union intend to proceed with the protest action of which notice was
federation intends proceeding
with protest action.
served on NEDLAC on ..............................................................
(date)

The protest action will begin at ...................................... on the

WHO FILLS IN (place)
THIS FORM?
............................................................ at ....................................
The secretary of the trade union (date) (time)
or trade union federation.
2) GENERAL
Address of trade union/federation:...........................................
WHERE DOES THIS
FORM GO? ....................................................................................................

Executive Director Tel: ...................................................... Fax: ................................

NEDLAC
PO Box 443
Auckland Park
2006
Signature of Secretary: ...............................................................

OTHER INSTRUCTIONS Name:..........................................................................................

This form must be received by
NEDLAC at least 14 days before Date:............................................................................................
the start of the protest action.
 15
WORKER PARTICIPATION

15.1 Introduction
A new and important development in South African labour relations is the introduction of
workplace forums, in terms of which worker participation in decision-making at the work-
place has been established. Workplace forums are designed to facilitate a shift from adver-
sarial 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 Act 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, namely 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 appli-
cation of the provisions of the Act;
• parties other than those defined in the Act 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 Act, 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 Ad-
ministration.
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 enhance-
ment of efficiency in the workplace. In order to achieve this goal the forum must be
consulted by the employer on certain matters. In some instances it participates in joint
decision-making.
The workplace forum has to meet regularly to ensure the efficient functioning of the
forum. In addition, the employer is required to meet with the forum on a regular basis. Fur-
thermore, the members of the workplace forum must meet with the employees to report on
its activities and on those matters discussed with the employer. All meetings must be held
during working hours without loss of pay on the part of the employees.

307
308 A Practical Guide to Labour Law

15.2 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 a 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 work-
place 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 provi-
sions 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 (App 1).
If a representative union (that is a registered majority union or two or more unions act-
ing jointly) 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 mem-
ber the same remuneration that he/she earned prior to the appointment. After expiry of
the term served, the member must be reinstated to the position held prior to the appoint-
ment 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 who voted support the
dissolution, the workplace forum must be dissolved.
Worker participation 309

15.3 Worker participation

The Act provides for three different forms of participation by the workplace forum, varying
from information-sharing to joint decision-making.

15.3.1 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 employ-
ees. 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 work-
place 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 concili-
ation 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.

15.3.2 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 fol-
lowing 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 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 em-
ployer must invoke the procedure agreed upon to resolve any differences before imple-
menting the proposal.
310 A Practical Guide to Labour Law

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.

15.3.3 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 discrimin-
ation; 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 concilia-
tion, failing which the employer may request that the dispute be resolved through arb-
itration.
This process may be illustrated as follows:

Award

Implementation Arbitration

Resolved Failure to resolve

Award Conciliation

Employer refers dispute to

Implementation Employer refers
arbitration in terms of agreed
of proposal OR dispute to CCMA
procedure

Consensus No consensus

Employer and workplace forum

discuss issues for joint decision-making

Proposal by employer
Worker participation 311

15.4 Dispute resolution (s 94)

Any party to a dispute over the interpretation or application of Chapter V of the Act (deal-
ing with workplace forums) may refer the dispute to the CCMA. The appointed commis-
sioner must attempt to resolve the dispute through conciliation, failing which any party to
the dispute may request that it must be resolved through arbitration.

Questions
Question 1
Give a summary of the salient features of a workplace forum. (6)

Question 2
Define the following in terms of Chapter V of the Act dealing with workplace forums:
2.1 a “representative” union; (3)
2.2 an employee. (4)

Question 3
3.1 Discuss the establishment of a workplace forum. (15)
3.2 Name the general functions of a workplace forum. (5)

Question 4
Give a summary of the provisions that must be included in the constitution of a
workplace forum. (10)

Question 5
Name the different forms of worker participation by way of a workplace forum. (3)

Question 6
6.1 Discuss the disclosure of information by an employer to a workplace forum
and to employees. (8)
6.2 A dispute arises about the disclosure of information by an employer. Discuss the
procedure that must be followed to resolve the dispute. (6)

Question 7
Discuss the matters for consultation between a workplace forum and the employer. (12)

Question 8
Is it possible for the parties to regulate by way of a collective agreement the matters
that a workplace forum must be consulted on by an employer? Briefly explain. (2)

Question 9
Describe the procedure that must be followed before the employer may implement a
proposal on which a workplace forum must be consulted. (6)

Question 10
10.1 Name the matters for joint decision-making prescribed by the Act. (3)
10.2 Describe the manner in which the matters for decision-making prescribed by the
Act may be altered. (2)
312 A Practical Guide to Labour Law

10.3 Describe the procedure that must be followed if the parties cannot reach
consensus on a matter for joint decision-making. (3)

Question 11
A supermarket with its head office in Cape Town has ten branches dispersed around the
country. Discuss the possibility of the establishment of one or more workplace forums:
11.1 if the branches are not regarded as separate workplaces;
11.2 if the branches are regarded as separate workplaces. (10)

Question 12
An employer in the food industry has 300 employees in his employment. These employees
are all working in the same workplace and their occupational structure is as follows: 200
employees are manual workers; 50 are administrative and clerical employees and 50 are
supervisory, managerial and technical employees. Discuss how the workplace forum
should be composed. (8)
Worker participation 313

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 in-
tended to guide representative trade unions that wish to establish a workplace forum, em-
ployers and commissioners.
(2) This Act places the highest value on the establishment of workplace forums by agree-
ment 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 em-
ployees, 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.
Example:
There are 300 employees in a workplace. The occupational structure is as follows: 200 employ-
ees are manual employees; 50 are administrative and clerical employees; and 50 are super-
visory, 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 administra-
tive 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-elec-
tion.
314 A Practical Guide to Labour Law

(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 work-
place 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 work-
place forum is eligible for re-election.
(d) Fourteen days before each election of members of the workplace forum, the elec-
tion 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 alphabet-
ical 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))
(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 pro-
visions 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.
Worker participation 315

(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 elec-
tion 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 work-
place 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.
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 for-
um 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 mem-
bers of the workplace forum to perform their functions and duties.
316 A Practical Guide to Labour Law

(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 para-
graphs (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 func-
tions.
(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, ad-
dress 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 men-
tioned 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 mat-
ters that are of local interest rather than general interest, the constitution may establish a co-
ordinating workplace forum with general jurisdiction and subsidiary workplace forums with
local interest jurisdiction.
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 work-
place 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.
 16
DISMISSALS

16.1 Introduction
Many of the current principles pertaining to dismissals have been 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.
The Industrial Court laid down two requirements for a fair dismissal: substantive fairness
and procedural fairness. A dismissal was thus unfair, according to the Industrial Court, if
the employer did not have a valid and fair reason to dismiss and/or if the employer failed
to follow a fair procedure by affording an employee an opportunity to state his case before
dismissing him. The numerous decisions of the Industrial Court over its 25 years of exist-
ence left little doubt as to when a dismissal would be considered unfair.
The Labour Relations Act of 1995 codifies the laws, court decisions and principles relating
to dismissals which existed prior to its introduction and creates the right not to be unfairly
dismissed (s 185). A definition of “dismissal” is for the first time provided (in s 186(1)) and
some dismissals are declared automatically unfair (s 187). Section 188 of the Act recognises
three grounds as valid reasons for a dismissal: the misconduct or incapacity of an employee
or the operational requirements of the employer.

16.2 Definition of dismissal (s 186(1))

In terms of section 185 every employee has the right not to be unfairly dismissed. Sec-
tion 186(1) defines a dismissal and section 188 sets out the requirements for a fair dismissal.
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 ex-
pected 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, af-
ter a transfer in terms of section 197 or section 197A, provided that employee with

317
318 A Practical Guide to Labour Law

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).
The termination of a contract of employment has in certain circumstances always been
considered a dismissal, such as in the case of a summary dismissal for serious misconduct, but
legislation has never provided a definition of the concept “dismissal”. The 1995 LRA is the
first statute that defines dismissal and gives a much broader meaning to “dismissal” than the
narrower interpretation of the past by incorporating a variety of terminations of employment.
In the first instance the definition states that termination with or without notice consti-
tutes a dismissal. Until the advent of the 1995 LRA it was possible for an employer to termi-
nate the services of an employee on notice of a duration required by the employment
contract, legislation or a collective agreement, for example one month. The employer was
not required to have a valid and fair reason or to observe a fair procedure before giving
notice and terminating employment. The LRA, however, now requires an employer to
adhere to the requirements of substantive and procedural fairness so that even if the re-
quired 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 em-
ployment 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).
The second instance of dismissal found in the definition relates to the renewal of a fixed-
term contract. A fixed-term contract is concluded for a specified period, say six months, and
based on the principles of Contract Law the contract terminates automatically upon expira-
tion of that period. The old Industrial Court did not accept this principle in the context of
fixed-term contracts of employment because of the ongoing nature of the employment
relationship. If, according to the Industrial Court, the fixed-term contract created an expecta-
tion of an ongoing relationship, the failure to renew the contract constituted a dismissal. This
sentiment has been incorporated in the definition of “dismissal” in the 1995 LRA.
Initially section 186(1)(b) of the LRA 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 provided less favourable conditions), the employee
has been dismissed 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); Auf der Heyde v University of Cape Town [2000] 8 BLLR 877 (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). In the
Dierks judgment the Court enumerated criteria that should be considered in determining
whether a reasonable expectation exists. While the list is not exhaustive it is a good indica-
tion of what should be considered and has been followed in numerous other cases.
Dismissals 319

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 em-
ployment.
The purpose of section 186(1)(b) is to prevent the unfair practice of keeping an employ-
ee 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. See para-
graph 11.2 (application of the LRA) for a detailed discussion of section 198B. 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 of a definite
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.
For the first time the job security of a pregnant female employee is entrenched in our
labour legislation. Female employees will certainly welcome this inclusion because for many
years it was possible for employers to terminate the services of a female employee because
of her pregnancy. It was only during the last few years of the Industrial Court’s existence
that a change in thinking could be detected. The Court ruled that in certain circumstances
termination of the services of a pregnant employee was unfair (Randall v Progress Knitting
Textiles Ltd (1992) 13 ILJ 200 (IC)). Now, in terms of section 187 of the 1995 Act, dismissal
on the grounds of pregnancy or for reasons related to pregnancy is automatically unfair.
See in this regard 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); Ndlovu v Pather (2006)
27 ILJ 2671 (LC); Nieuwoudt v All-Pak (2009) 30 ILJ 2451 (LC); Lukie v Rural Alliance CC t/a
Rural Development Specialist [2004] 8 BLLR 769 (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.
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 em-
ployees were dismissed – in other words, when their contracts of employment were terminat-
ed – 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 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”.
Rightly so, because everyone would agree that the resignation of an employee due to un-
reasonable and excessive pressure by his employer is not a voluntary resignation or termin-
ation 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); Strategic Liquor Services v Mvumbi
320 A Practical Guide to Labour Law

NO & Others (case no. CCT33/09, [2009] ZACC 17 (CC). The employee who claims construc-
tive dismissal bears the onus to prove that his employer had rendered the working relationship
intolerable (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 intro-
duced 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 threshold. If an employee performs a temporary service (as defined in
section 198A(1)) the TES (labour broker) is the employer. If the employee is not perform-
ing 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
section 198B). 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 Act is a dismissal (s 198A(4)).

16.3 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 Act.

• 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 preg-
nancy, intended pregnancy or any reason re-
lated 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 Act 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
Dismissals 321

associate. Dismissal because an employee is exercising any of the rights pertaining to free-
dom of association is an automatically unfair dismissal.
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.

The termination of the services of an employee because he refuses or indicates an inten-

tion 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 as-
sumed 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 lock-
out to compel his employees to accept his 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 dis-
miss his 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.

An employee is protected in that he may freely exercise his rights, participate in proceed-
ings 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 preg-
nancy, intended pregnancy or any reason related to her pregnancy is automatically unfair.

If an employer unfairly discriminates (on the basis of race, gender, age, etc or any arbi-
trary ground) against an employee and, because of the discrimination, an employee is dis-
missed, the dismissal is automatically unfair. The emphasis is on unfair discrimination. Fair
discrimination, that is, discrimination on valid grounds, is permissible. Section 187(2) spe-
cifically declares a dismissal fair if the reason for dismissal is based on the inherent re-
quirements of a particular job or if an employee has reached the normal or agreed
retirement age and his services are terminated. Such termination will not be considered an
automatically unfair dismissal.

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 employ-
ment 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.

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 with-
out 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. Other occupa-
tional detriments as a result of the disclosure, such as demotion, non-promotion, suspen-
sion or other disciplinary action or a change in employment conditions constitute unfair
labour practices (see Chapter 17 par 17.9).
322 A Practical Guide to Labour Law

16.4 Date of dismissal (s 190)

Although the date of a dismissal is in the majority of cases obvious or can easily be deter-
mined, 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 Act 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, re-
fusal to allow an employee to resume work, refusal to reinstate or re-employ and termina-
tion 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 his 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 em-
ployer 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 em-
ployee’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.

16.5 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 re-
quirements 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).

16.5.1 Substantive fairness

Substantive fairness as a requirement for a fair dismissal can be described as a “valid and
fair reason”, in other words, the employer can dismiss his employee only if he has a valid
and fair reason to do so.
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 em-
ployment. Misconduct, incapacity and poor work performance constitute valid reasons for
Dismissals 323

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 rela-
tionship 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 per-
formance an employee is generally less blameworthy or entirely blameless – he cannot con-
trol 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 discrim-
inate 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 dis-
missal 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 a worker with notice.

16.5.2 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 miti-
gating 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 crim-
inal 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 decid-
ing 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 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
324 A Practical Guide to Labour Law

[2006] 9 BLLR 833 (LC) the Labour Court confirmed that the “criminal model” of a dis-
ciplinary procedure is no longer applicable to internal disciplinary proceedings. An em-
ployer 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.

16.6 Dismissal for misconduct

Because misconduct is prevalent in every workplace and its consequences may have far-
reaching 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 dis-
missal 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 with-
out prior warnings include theft, fraud and all forms of dishonesty, assault and intimida-
tion. The Code of Good Practice, in item 3(4), also recognises these forms of misconduct as
sufficiently serious to justify 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). 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 & Anoth-
er v Party Design CC (Doll’s Dairy) [2001] 6 BLLR 667 (LC). For intimidation refer to Kom-
pecha 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).
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).
There is no fixed rule about 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
Dismissals 325

breaches of contract 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 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, ultim-
ately, 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 must take into account only those facts known
to him 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 com-
pany. An unfair dismissal constitutes such a breach.
Based on what has been said, the requirements for a fair dismissal in the case of miscon-
duct 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, insubordination, assault).
• A lawful reason is not per se fair. A reason is fair only if a con-
tinued employment relationship is impossible. Other alterna-
tives must be considered so that dismissal is used as a last resort.
• Repeated incidents of misconduct are required before a dis-
missal 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 about 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 em-
ployee, mitigating factors, the nature of the misconduct and
possible prejudice to the employer.
• The onus is on the employer to prove, on a balance of prob-
abilities, that the dismissal is fair in accordance with the facts
known to him.

Check List
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?
326 A Practical Guide to Labour Law

The summary of procedural fairness that follows reflects the elements of a fair procedure as
it was developed in the old Industrial Court and as it is applied by most employers. The
majority of CCMA commissioners have regard to these elements when determining whether
a dismissal was procedurally fair. Although the Code of Good Practice: Dismissal and recent
Labour Court judgments favour a less formal procedure, most of what follows is still consid-
ered an inherent part of a fair 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 suffi-
cient 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 con-
sider whether dismissal is the most appropriate sanction.
• The employee must be informed of the outcome of the
appeal.

16.7 Dismissal for incapacity

Incapacity includes incapacity due to ill health and poor work performance. 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 per-
formance. If the employee is incapable of doing the work on account of poor health or injury
he can be dismissed for incapacity. Incompatibility is also considered a form of incapacity.
Dismissal for physical incapacity or poor work performance is dealt with differently as it is
with dismissal for misconduct. A distinction is drawn between an employee who is unwilling
to perform (misconduct) and one who cannot perform (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, despite the fact that the em-
ployee is unable to perform his duties. But, 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.
Dismissals 327

The test for substantive fairness is whether the employer can fairly be expected to con-
tinue 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 de-
fend 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 rela-
tionship, bearing in mind the merits of the case.
• Factors to be considered include
– the nature of the incapacity;
– the extent and degree of the employee’s inability to per-
form;
SUBSTANTIVE – the likelihood of recovery or improvement;
FAIRNESS – the size of and possible effect on the employer’s oper-
ations;
– the effect on the welfare, safety and morale of other em-
ployees;
– the status of the employee, his service record and length
of service;
– period of absence in the case of incapacity;
– the cause of the incapacity or poor performance.

• 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
PROCEDURAL should be considered.
FAIRNESS • 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.

Any person who, in the event of misconduct or incapacity, has to consider whether or not
the reason for dismissal is fair or whether or not the dismissal was effected in accordance
with a fair procedure, must take into account the Code of Good Practice: Dismissal, con-
tained in Schedule 8 of the Act (App 1).
328 A Practical Guide to Labour Law

16.8 Dismissal for operational requirements (ss 189 and 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 redun-
dant, a downturn in the economy which necessitates retrenchments and the closure, reloca-
tion or sale and transfer of the business.
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 (some-
times 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 agree-
ment, 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 con-
sultation. This notice is referred to as the section 189(3) notice and the employer is re-
quired 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 dis-
missed; 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 require-
ments during the preceding 12 months.
Relevant information must be disclosed, unless such information is legally privileged, confi-
dential 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 apply mutatis mutandis. If an employer refuses to
disclose information, the onus is on him to prove that the information is not relevant.
Dismissals 329

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 select-
ing the employees to be dismissed and the severance pay for dismissed employees.
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 if he disagrees with them. 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 going
on strike or referring a dispute to the Labour Court for adjudication if the substantive fair-
ness 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 sec-
tion 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
330 A Practical Guide to Labour Law

referral, the employer may give notice of termination. This in effect means that the em-
ployer will not be able to dismiss the employees before a period of 60 days has lapsed. The
union or affected employees may either give 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.
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
on expiration 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 ter-
mination 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 dis-
pute 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 Basic Conditions of Employment Act. Sever-
ance 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 pay-
ment of severance pay.
If there is a dispute about the entitlement to severance pay only, that dispute may be re-
ferred to a bargaining council or, if there is no council with jurisdiction, to the CCMA for
conciliation and, if necessary, arbitration.

16.9 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 Act provides for some dismissal cases to
be finalised by a bargaining or statutory council or the CCMA, whilst others must be refer-
red to the Labour Court.
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 331

• 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 em-
ployee 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 em-
ployees 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 dis-
missals (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 ex-
pelled from a trade union party to a closed shop agreement; and
• dismissals (and unfair labour practices) that constitute occupational detriments as envis-
aged in the Protected Disclosures Act of 2000 (see Chapter 17). A dismissal in this con-
text 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. 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 with-
in 30 days of receiving the referral (the so-called 30-day conciliation period). The parties
can agree to extend the 30-day period. 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 must be issued. The employee can then refer the dis-
pute 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. 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.
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 dis-
pute 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.
332 A Practical Guide to Labour Law

In any proceedings concerning a dismissal the employee must prove the existence of the
dismissal. Once this has been established, the employer must prove that the dismissal was
fair (s 192).
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 arbitra-
ble 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 allega-
tions. 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 (currently R5 131 per day). Upon receipt of
the form and payment the CCMA will appoint an arbitrator to conduct the inquiry. Coun-
cils 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 18.
The following diagrams are provided to illustrate the procedures to be followed for dis-
1
missals based on different grounds:

________________________

1 These diagrams are contained as flow diagrams 10, 11, 12 and 13 of Sch 4 of the Act. Sch 4, however,
does not have the force of law and the diagrams therein are intended only to provide guidance and as-
sistance to parties involved in a dispute. The diagrams have been slightly adapted.
Dismissals 333

AUTOMATICALLY UNFAIR DISMISSALS AND DISMISSALS FOR

2
OPERATIONAL REQUIREMENTS

Order, for example reinstatement,

re-employment or compensation and,
in addition, any other appropriate
order

Labour Court

Referral to Labour Court

90 days
No resolution

Conciliation

Council CCMA

30 days Date of dismissal 30 days

DISMISSAL FOR MISCONDUCT OR INCAPACITY

Award
14 days
Arbitration

Referral to arbitration
90 days
No resolution

Conciliation

Council CCMA

30 days Date of dismissal 30 days

________________________

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 employ-
ees 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.
334 A Practical Guide to Labour Law

UNFAIR DISMISSAL
unprotected strikes and reasons related to closed shop agreements

Order, for example reinstatement,

re-employment or compensation

Labour Court

Referral to Labour Court

90 days
No resolution

Conciliation

Council CCMA

30 days Date of dismissal 30 days

16.10 Remedies for unfair dismissal (ss 193–195)

• an order for reinstatement

or
• an order for re-employment
REMEDIES or
• an order for compensation
• in a case of an automatically unfair dismissal or dismissal for
operational requirements the Labour Court may in addition
to the above make any appropriate order

If the Labour Court or an arbitrator finds a dismissal to be unfair, reinstatement may be

ordered. The Court or the arbitrator will determine the date from which the reinstatement
is to take effect, but such date may not be earlier than the date of the dismissal.
Instead of reinstatement the Court or the arbitrator may order the employer to re-em-
ploy the employee, either in the work in which the employee was employed before the dis-
missal or in other reasonably suitable work on any terms. The Court or the arbitrator will
determine the date for re-employment, which may not be earlier than the date of dismissal.
Reinstatement or re-employment must be ordered when a dismissal is found to be sub-
stantively unfair, unless one of the following circumstances applies (s 193):
• the employee does not wish to be reinstated or re-employed;
• the circumstances surrounding the dismissal are such that a continued employment
relationship would be intolerable;
• it is not reasonably practicable for the employer to reinstate or re-employ the employee;
or
• the dismissal is only procedurally unfair.
Dismissals 335

Where a dismissal is substantively unfair and one of the above circumstances applies, com-
pensation can be considered as a remedy. When a dismissal is found to have been pro-
cedurally unfair the only remedy that can be considered is compensation. Compensation is
at the discretion of the Court or arbitrator and does not have to be awarded.
If a dismissal is automatically unfair or if a dismissal based on the employer’s operational
requirements is found to be 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 com-
pensation.
Where the Court or an arbitrator orders compensation, the amount of compensation
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 con-
tract of employment (s 195).

16.11 Transfer of the contract of employment (ss 197 and 197A)

The amended 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.
All the employment rights and obligations of employees pass over automatically as well. So
do collective agreements applicable to the old employer.
The effect of these provisions is that the old employer is not required to seek the em-
ployees’ consent before their contracts are transferred; neither does he 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 suffi-
cient if he 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 (in terms of s 189(1)) on the other, may reach
an agreement to vary the default 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 amended section 197 introduces new employee protections. For the first time 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.
336 A Practical Guide to Labour Law

The old and new employers are required to agree on the value of accrued leave pay, sev-
erance 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 subse-
quent liquidation.
A new provision, in the form of section 197A, has been inserted in the Act 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, un-
less 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 se-
questration;
• 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 employ-
ment 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 appli-
cable where contracts of employment are transferred in the event of insolvency.

Questions

Question 1
Discuss the definition of “dismissal” with reference to case law. (20)

Question 2
Name and discuss the requirements that must be complied with in order to ensure a fair
dismissal. (20)

Question 3
Name and discuss dismissals which are automatically unfair. Include in your answer also the
remedies for automatically unfair dismissals. (20)
Hint: See ss 187, 193 and 194 of the LRA.
Dismissals 337

Question 4
Compile the following documents for the company of your choice:
4.1 a disciplinary code (code of conduct); (20)
4.2 disciplinary procedures. (20)

Question 5
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 6
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); Bonthuys and Central District Munic-
ipality (2007) 28 ILJ 951 (CCMA); Pienaar v Family Funeral Services (2011) 32 ILJ 2048
(CCMA); 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 (case no.
CCT33/09, [2009] ZACC17 (CC). See also ss 186, 193 and 194 of the LRA.

Question 7
Assume an employee has been dismissed and he believes the dismissal to be unfair. He
wishes to have the dispute resolved. Describe in detail the procedures to be followed in the
following instances:
7.1 a dismissal based on misconduct or incapacity; (10)
7.2 a dismissal based on the employer’s operational requirements; (10)
7.3 a dismissal based on the participation of the employee in an unprotected strike; (10)
7.4 a dismissal which is automatically unfair. (10)
Hint: See s 191 of the Act.

Question 8
Discuss, with reference to case law, the relief that may be granted to an employee whose dis-
missal has been found to be unfair. (20)

Question 9
Explain whether the following circumstances meet the requirement of substantive fairness:
9.1 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 has been issued
which is still valid. He is again caught drinking during working hours and dismissed.
338 A Practical Guide to Labour Law

The employer’s code of conduct provides for summary dismissal in the case of drink-
ing on duty, but because the temptation to drink is so great while working 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)
9.2 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,
with the result that after a few months it was no longer applied. This situation was
accepted by management and for a period of approximately ten months the employ-
ees did not clock in or out over the lunch period. One Monday two employees ar-
rived 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)
9.3 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 sum-
monses for traffic violations. Upon investigation management discovers that the driv-
er’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 driv-
er and dismisses him. (5)
9.4 An employee (A) was charged with assaulting a fellow worker (B). During the inves-
tigation 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 con-
duct provided for dismissal in the event of assault.) (5)
9.5 Peter was one of ABC Company’s longest-serving employees, having worked for the
company for fifteen years. He was observed by a colleague surfing the Internet on his
work computer during working hours, downloading child pornography and dissemin-
ating 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 ve-
hemently denied the accusations. He was nevertheless summoned to a disciplinary
hearing and subsequently dismissed. (5)

Question 10
Explain whether the following circumstances meet the requirement of procedural fairness:
10.1 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 per-
mission of his supervisor to take the tyres because they were rejects – a fact of which
management was unaware. (5)
10.2 An employee made himself guilty of fraud. When his fraud was discovered by the pro-
duction 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 discip-
linary hearing was duly held the following day, but the employee did not attend and
in his absence the dismissal was confirmed. (5)
10.3 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
Dismissals 339

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 informed that he would have an opportunity to
present his case and would be able call a co-worker as his representative. (5)
10.4 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 perform-
ance still did not meet the required standards, he was called in by the supervisor and
summarily dismissed. (5)
10.5 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 poor-
performance 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 11
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 admit-
ted guilt and was dismissed without a disciplinary hearing. When she objected to her dis-
missal because of the absence of a hearing, the manager argued that a hearing would have
made no difference since she had already admitted guilt.
11.1 Is Julia’s dismissal a fair or an unfair dismissal? Explain and refer to decided cases to
substantiate your argument. (20)
11.2 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. (10)

Question 12
Zola applied for the post of supervisor at National Textile Manufacturers (Pty) Ltd, a textile
factory. At his final interview he made it clear to the personnel manager of the company
that he had had no experience in the textile industry as he used to be employed in the
liquor industry. The personnel manager nevertheless appointed Zola in the post of supervi-
sor and the company gave him an undertaking that he would receive training. During the
first three months of his employment Zola received two verbal warnings from Mr Cart-
wright, the manager of his section, because two of the company’s clients had been com-
plaining about the poor quality of the fabrics delivered to them. When a third customer
complained about the poor quality of the fabric and cancelled all his orders Mr Cartwright
reported the incident to the general manager who called Zola to his office. The general
manager impressed upon Zola the importance of good quality fabrics and informed him
that the company could not afford losing clients because of his failure to ensure the quality
of their products. When Mr Cartwright informed the general manager that this was the
third occurrence of this nature, the general manager dismissed Zola without further ado.
Zola protested and tried to explain that he had never received training and did not know
exactly what was expected of him. Mr Cartwright, however, informed the general manager
that a fellow worker had been provided to train Zola. Zola requested the general manager
to reconsider his decision, but the latter confirmed the dismissal and asked Zola to leave
340 A Practical Guide to Labour Law

the company premises immediately. It was later proved that the fellow worker who was
supposed to train Zola was on leave for three weeks at the time of Zola’s appointment and
upon his return he spent half an hour with Zola to show him what he had to do.
12.1 Considering the requirements for a fair dismissal decide whether or not Zola’s dis-
missal was fair. (20)
12.2 Zola believes his dismissal to be unfair and wishes to take the matter further. There is
no council with jurisdiction in the area where the company conducts its business and,
therefore, Zola has to refer the dispute to the CCMA.
(i) Complete LRA Form 7.11 in order to refer the dispute to conciliation. (20)
(ii) Complete LRA Form 7.13 in order to refer the dispute to arbitration. (20)

Question 13
Discuss the procedures an employer is required to follow to ensure fair dismissals in the
instances of (a) a minor retrenchment and (b) a major retrenchment. (30)

Question 14
Seaview Investments (Pty) Ltd employs 177 employees. Due to financial difficulties the com-
pany 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.
14.1 Which provisions of the LRA are applicable in these circumstances? (2)
14.2 Is the company compelled to consult or negotiate about the pending retrenchments?
If so, explain who must be consulted. (5)
14.3 What information is the employer required to disclose, to whom must it be disclosed
and what format should such a disclosure take? (12)
14.4 Discuss in detail the process that must be followed before the affected employees can
be dismissed. (20)
14.5 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)
14.6 Assume that the company dismissed 5 employees in a first round of retrenchments
and five months later another 13 employees were dismissed. Which provisions are
applicable? (2)
14.7 Assume that the company retrenched only eight employees in total. Which provisions
are applicable? (2)

Question 15
Assume a number of employees had to be retrenched because their employer was experi-
encing financial difficulties.
15.1 Discuss the payment of severance pay to these employees. (5)
15.2 Assume that the employer failed to make a severance payment to these employees.
They declare a dispute with regard to the payment of severance pay. Discuss the pro-
cedure to be followed in order to resolve this dispute. (5)
Hint: See s 41 of the Basic Conditions of Employment Act.

Question 16
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
Dismissals 341

nature of the particular dismissal dispute; and (b) explain the dispute resolution procedure
for each of the disputes:
16.1 Employer A treats employee X very poorly by making him work long hours, withdraw-
ing 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)
16.2 Employer A is a manufacturer of car parts. A terminates the services of employee X
for no other reason than the fact that he does not agree with X’s religious convic-
tions. 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)
16.3 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)
16.4 The Department of Labour as employer summarily dismissed employee X for theft
and fraud because X had allegedly embezzled money and then made incorrect en-
tries 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)
16.5 Employer A is not satisfied with the work performance of his employee X, who is a
carpenter. A often complains that X is not cutting the wood properly and has
instructed X to use the new machine that has been installed for this purpose on sev-
eral occasions. X, however, cannot operate the new machine as he has never had
training on it. One day when X again cuts the pieces of wood incorrectly, A shouts
at him and instructs him to leave the premises. There is no bargaining council. (5)
16.6 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)
16.7 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)
16.8 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)
16.9 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 is unfair and declares a dispute with her employer, the Depart-
ment of Education. (5)
16.10 Jonas was on probation for six months as a newly appointed electrician at Blitz Elec-
trical Services CC. Since his appointment he struggled to understand the work and
often did his job incorrectly. After some counselling his performance did not im-
prove and in his fifth month of employment the manager dismissed him. The Elec-
trical Bargaining Council has been registered for the sector and area in which Blitz
conducts its business. (5)
342 A Practical Guide to Labour Law

16.11 Employee X works at VW in Uitenhage. The company has a strict policy against em-
ployees 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 17
Refer to each of the situations in question 16. Assume that each of these dismissals is unfair.
17.1 Identify the main reason for the unfairness of each of the dismissals. (11)
17.2 Explain in each instance which remedy would be the most appropriate. (22)

Question 18
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 func-
tions 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 ill-
nesses (the reason for his regular sick leave) and that the week of his absence was spent
with a traditional healer.
18.1 Explain in detail whether or not Joshua’s dismissal was fair. (20)
18.2 Joshua believes his dismissal was unfair. Explain the dispute resolution procedure he
can follow to have the dispute about his dismissal resolved. (5)
Dismissals 343

18.3 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 19
Discuss the transfer of contracts of employment in the context of the transfer of a business
as a going concern in terms of section 197. (20)

Question 20
Susan was employed 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 reason-
ably 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
whether she is entitled to permanent employment. (8)
Hint: See University of Pretoria v CCMA & Others (2012) 33 ILJ 183 (LAC). But also see the
2014 amendments to s 186(1)(b) of the LRA.

Question 21
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 22
Indicate whether the following retrenchments are fair or not. Motivate your answer.
22.1 A company encountered such financial difficulties that none of its employees was
paid on time. The employer consulted with five employees and retrenched them after
an agreement was reached. One employee refused to participate in the consultation
process, but was also retrenched. She regards the retrenchment as unfair. (3)
22.2 An employer retrenched 40 employees and outsourced the human resources func-
tions to a third-party service provider. The service provider employed the retrenched
employees on contract to do the jobs they had performed when they had been em-
ployed by the company. (3)
22.3 Mr Lebone was in the employ of Goldcash Trading Co for 18 years. He entered into a
settlement agreement setting out the terms of his retrenchment on the strength of
representations made to him by the company that his position was redundant. Two
months after his retrenchment he learned that the MD’s nephew was appointed to
the post he used to occupy. (5)
22.4 The Hilroy Hotel had to retrench ten employees because it was experiencing finan-
cial difficulties. On the last day of the month the manager called the ten employees
to his office, explained the situation to them, terminated their services and gave them
each two weeks’ notice pay. (5)
344 A Practical Guide to Labour Law

Question 23
Moketsi was employed as a security officer at Makwasi mine. He was responsible for con-
ducting searches of employees leaving a high-security area to prevent the theft of the mine’s
valuable metals. When he failed to follow the company’s stringent search procedures he was
dismissed. He referred an unfair dismissal dispute to the CCMA. The CCMA commissioner
found him guilty of misconduct but, having regard to his clean service record of fifteen
years, ordered the mine to reinstate him, subject to a written warning valid for three
months. Discuss, with reference to case law, whether the commissioner’s decision was
reasonable. (10)
Hint: See Sidumo & Another v Rustenburg Platinum Mines Ltd & Others (2007) 28 ILJ 2405
(CC); Theewaterskloof Municipality v SA Local Government Bargaining Council (Western Cape
Division) & Others (2010) 31 ILJ 2475 (LC).

Question 24
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 implement-
ed 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 intro-
duced. She received a letter from the school notifying her 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) and 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).

Question 25
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 super-
market faced financial difficulties it offered him a managerial position as an alternative to
retrenchment on condition that he relinquish his union positions. When Amman rejected
this 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).
Dismissals 345

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 re-
lated 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 agree-
ments, 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 opera-
tion 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 pro-
cedure, 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 legit-
imate. These are: the conduct of the employee, the capacity of the employee, and the operation-
al 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 re-
quired of their employees. The form and content of disciplinary rules will obviously vary accord-
ing 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 ap-
proach 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.
(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 them-
selves may be graded according to degrees of severity. More serious infringements or
346 A Practical Guide to Labour Law

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 en-
dangering 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 em-
ployer should communicate the decision taken, and preferably furnish the employee with writ-
ten 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 miscon-
duct. However, like any other act of misconduct, it does not always deserve dismissal. The sub-
stantive 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 ultima-
tum 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.
Dismissals 347

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 be-
fore the appointment of the employee is confirmed.
(b) The purpose of probation is to give the employer an opportunity to evaluate the em-
ployee’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 em-
ployees 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 dura-
tion. 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 employ-
ment.
(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 em-
ployer 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 peri-
od 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 represen-
tations 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.
(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 coun-
selling; and
348 A Practical Guide to Labour Law

(b) after a reasonable period of time for improvement, the employee continues to per-
form 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 dis-
missal, 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 con-
sider –
(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 perform-
ance 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 alterna-
tives 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 possibil-
ity 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 repre-
sentative or fellow employee.
(3) The degree of incapacity is relevant to the fairness of any dismissal. The cause of the in-
capacity 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 con-
sider.
(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.
Dismissals 349

Appendix 2

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, technologi-
cal, 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 alterna-
tives 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 sec-
tion 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 re-
dundancies, 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 pro-
posals put forward.
(4) The Act also provides for the disclosure by the employer of information on matters rele-
vant to the consultation. Although the matters on which information for the purposes of consul-
tation 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 dis-
pute 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 circum-
stances 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
350 A Practical Guide to Labour Law

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.
(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 en-
titled to severance pay of at least one week’s remuneration for each completed year of continu-
ous 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 consen-
sus 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 reason-
ableness 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.
Dismissals 351

Appendix 3

GENERAL CLOTHING MANUFACTURERS

The following is an extract of a typical disciplinary code:
DISCIPLINARY CODE
Category one – very serious

First Second Third Fourth

Offence
offence offence offence offence
Theft of company Dismissal
property
Fraud Dismissal
Insubordination Final written warning Dismissal

Category two – serious

First Second Third Fourth

Offence
offence offence offence offence
Drinking on duty Final written warning Dismissal
Unauthorised absence Final written warning Dismissal
Insolence/cheekiness Written warning Final written warning Dismissal

Category three – less serious

First Second Third Fourth

Offence
offence offence 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
352 A Practical Guide to Labour Law

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 unaccepta-
ble, intolerable or unsatisfactory performance and/or behaviour of an employee.
The workforce is considered to be an important component of the Company and the Com-
pany 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 behav-
iour 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 main-
tain 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 depart-
ment, 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 dis-
ciplinary 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
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 commit-
ting the same or a similar offence again. This warning is used for less serious offences.
Dismissals 353

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 circum-
stances which justify the dismissal of an employee, so that suspension without pay shall be adopt-
ed 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)
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 infor-
mation 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.
354 A Practical Guide to Labour Law

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 Man-
agement, 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.
 17
UNFAIR LABOUR PRACTICES

17.1 Introduction
The concept of unfair labour practice under the 1956 LRA was a catch-all category of conduct
by employers, employees and their organisations which, in the opinion of the Industrial
Court, fell within the definition of an unfair labour practice. With the implementation of
the Labour Relations Act of 1995 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 VIII, unfair employer conduct towards employees for exercising their free-
dom of association in Chapter II, organisational rights in Part A of Chapter III and unilat-
eral amendment to employment conditions in section 64. These forms of conduct are no
longer termed “unfair labour practices”; specific reference is made to the type of conduct
or practice and is called “unfair dismissal”, “infringing freedom of association” and so on.
They are derived from what the old Industrial Court identified as unfair practices.
Only a small number of practices 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 of 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 Act 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 prac-
tice can, in terms of the repealed item 2(1) of Schedule 7 and now section 186(2), be com-
mitted 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 an unfair
labour practice against him by his 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 Act. This approach was endorsed by the Labour Court in NEWU v CCMA &
Others [2004] 2 BLLR 165 (LC).

355
356 A Practical Guide to Labour Law

17.2 Definition of “unfair labour practice” (s 186(2))

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 dis-
missal 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 Disclo-
sures Act of 2000 (see par 15.9 below), on account of the employee having made a protect-
1
ed disclosure defined in that Act.
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). Similarly, 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 and remuneration is not a “benefit” as contemplated in section 186(2)(a)
(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)). Bonuses and car, hous-
ing and other allowances have been held to concern remuneration and not benefits (see
Labuschagne v Techno Plastics (Pty) Ltd [2005] 6 BALR 610 (MEIBC); Zondo v Group 4 Security
Services [2009] 12 BALR 1329 (CCMA); 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 Pro-
vincial 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 con-
sistent in their decisions on what in fact constitutes a “benefit”. Whilst the majority of the
decisions subscribed to the notion of any payment in return for services rendered constitut-
ing remuneration and not a benefit, a few interesting decisions over the past few years
departed from this idea. See paragraph 17.5 below.
________________________

1 When unfair labour practices were initially defined in item 2 of Sch 7, the definition included unfair dis-
crimination based on race, gender, age, religion, disability, language, marital status, etc. With the ad-
vent 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 discrimina-
tion”. 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 detri-
ments as contemplated in the Protected Disclosures Act, have been inserted by the 2002 amendments.
Unfair labour practices 357

The unilateral amendment to conditions of employment is not an unfair labour practice

2
as defined and is regulated by section 64 of the LRA only.

17.3 Promotions
The Oxford Dictionary defines “promotion” as “raise to a higher rank or office”. In Mashe-
goane & 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 promo-
tion.
The employer’s unfair conduct relating to promotion constitutes an unfair labour prac-
tice. “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 disappoint-
ed. This is not unfair” (see 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 De-
partment 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 per-
ception that the process had been unfair, but it does not make the process actually unfair”.
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 pro-
cedurally and substantively, meaning that the employer must act procedurally and substan-
tively fairly in the promotion or non-promotion of an employee.
Procedural fairness implies the following considerations.
• 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 can-
didature (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 his own procedures – the source of these procedures may be
legislation, a collective agreement, company policy or an established practice (see NUTE-
SA v Border Technikon [2005] 12 BALR 1302 (CCMA); Manana v Department of Labour
[2010] 6 BLLR 664 (LC)). 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”.

________________________

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 prac-
tice”. 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.
358 A Practical Guide to Labour Law

• 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 (see 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. Or, as is sometimes argued, the em-
ployer must at least consider some form of remuneration. However, a claim for remunera-
tion is not arbitrable by the CCMA or a council because it is not “unfair conduct relating to
the provision of benefits”: remuneration does not constitute a benefit. 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 expecta-
tion 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, Trans-
vaal & 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, how-
ever, 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. Pro-
motion 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 prac-
tice. 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 the 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 em-
ployer will be allowed a margin of latitude in coming to its 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 consid-
erations in preferring one candidate to another: one selection criterion carries more weight
than the rest of the criteria (Rafferty v Department of the Premier [1998] 8 BALR 1017 (CCMA);
and preferring one candidate with a lower evaluation mark 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)).
Unfair labour practices 359

A fair amount of doubt existed as to the difference between a promotion and an appoint-
ment. 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 evalu-
ation, progress from one grade to the next. The second system is where vacancies are adver-
tised and current employees are invited to apply for the posts.
If the latter system is used, employees, alongside external candidates, have to apply for
these 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 ma-
jority 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 em-
ployee 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 pro-
motion. 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 evi-
dence 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 promo-
tion 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).
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 a legitimate 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
360 A Practical Guide to Labour Law

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
3
Court.

17.4 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 prac-
tice.
“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 em-
ployee. 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 Johan-
nesburg 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 cir-
cumstances, 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
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 em-
ployee 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 commis-
sioner 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.
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)).

________________________

3 In the paragraph on promotions frequent 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.
Unfair labour practices 361

17.5 Benefits and training

An employer is also guilty of an unfair labour practice if his conduct relating to the pro-
vision 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 em-
ployee by virtue of the employment relationship – from wages to issues such as pension and
medical aid – the decisions of the CCMA and the Labour Court favour a narrow interpret-
ation of the concept “benefits”, so that all payments that could be interpreted as falling
under the broad ambit of “remuneration” are excluded.
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 con-
dition of an employment contract and often not. Remuneration is always a term and con-
dition 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 allow-
ance 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 suggests 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 con-
templated 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 proving a contractual entitlement thereto consequently does not consti-
tute an unfair labour practice.
362 A Practical Guide to Labour Law

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 bene-
fits. 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 defini-
tion 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 award-
ing 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 he 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 his 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.

17.6 Unfair suspension and other disciplinary action

An employer is guilty of an unfair labour practice if he 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 implemented as a “holding operation” pending
an inquiry into alleged misconduct. The suspension contemplated in the Act 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
Unfair labour practices 363

of unfair labour practice. It was confirmed in Sappi 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 legit-
imate 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 Ester-
huizen v Jet Demolition (2011) 32 ILJ 734 (CCMA) it was held that suspension pending a dis-
ciplinary 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 con-
duct 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 substan-
tive 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 discip-
linary hearing has received some attention, but the judgments in this regard are contradict-
ory. 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 hear-
ing is invalid.
The Court in Ngwenya further held that an employee may not be kept on suspension in-
definitely 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 (see 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 postpone-
ment of a disciplinary hearing and such postponement is granted, the employee is not en-
titled to pay (see 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.
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
364 A Practical Guide to Labour Law

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.

17.7 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 em-
ployee 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 Manufactur-
ing (Pty) Ltd [2003] 12 BALR 1349 (MEIBC)).
It is to be noted that, whereas ex-employees do not have access to the dispute resolution
mechanisms of the Act, 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
4
re-employ in terms of an agreement.

________________________

4 In the discussion of unfair labour practices frequent reference was made to Du Toit et al. Labour Rela-
tions Law: A Comprehensive Guide 5th edn, LexisNexis (2006) and Du Toit et al. Labour Law Through The
Cases, LexisNexis (2002– ).
Unfair labour practices 365

17.8 Probation
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 substan-
tive 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 em-
ployer has taken reasonable steps to help improve the employee’s performance and his per-
formance 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 em-
ployees of the status of permanent employment. For example, a practice of dismissing em-
ployees 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 em-
ployment.
(e) During the probationary period, the employee’s performance should be assessed. An em-
ployer 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 em-
ployer should advise the employee of any aspects in which the employer considers the em-
ployee 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 proba-
tion. 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.
366 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 un-
satisfactorily.
(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 dismis-
sal, 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 dismis-
sal, 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. See paragraphs 15.11
and 16.5 below.

17.9 Protected Disclosures Act of 2000

The Protected Disclosures Act 26 of 2000 was assented to on 1 August 2000 and came into
operation on 16 February 2001.
The Act 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 employ-
ees 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 dis-
closure;
• 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 Act 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 em-
ployee 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 com-
mitted;
(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
Unfair labour practices 367

(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 unsub-
stantiated allegations of alleged fraud by management was held not to be protected by the
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 mis-
carriage 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 Protected Disclosures
Act and that it must be made in good faith – that is, 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 dis-
closure 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 au-
thorises disclosure to a person other than the employer, disclosure to that person is con-
sidered 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 mat-
ter normally dealt with by the Public Protector, etc and if the information and/or allega-
tion 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 confiden-
tiality 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 em-
ployer, that evidence relating to the impropriety will be concealed or destroyed if dis-
closed 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 com-
mits 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 or her 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;
368 A Practical Guide to Labour Law

(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;
(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 dis-
pute 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 for health reasons, was required to
work full days, after she 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 Protected Disclosures Act 26 of 2000 and that her
dismissal was automatically unfair.
All occupational detriments (other than dismissal) are deemed to be unfair labour prac-
tices 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 con-
cerning 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 con-
stitute an occupational detriment. In Tshishonga v Minister of Justice and Constitutional Devel-
opment & 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 prac-
tice.
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.
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 em-
ployee’s written consent, be less favourable than the terms and conditions applicable imme-
diately 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 Protected Disclo-
sures Act or precludes the institution of any proceedings under the Act.
Unfair labour practices 369

The Companies Act 71 of 2008, in section 159 and with reference to the Protected Dis-
5
closures Act, extends protection to registered trade unions in certain circumstances.

17.10 Job applicants

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 discrimin-
ation 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 II 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 (see par 17.9 above) and
must be adjudicated by the Labour Court.

17.11 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 concilia-
tion. 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 unfair labour practice. If conciliation fails the dispute
may be referred to arbitration (s 191(5)(a)(iv)), except a dispute concerning an occupa-
tional 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)).

________________________

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.
370 A Practical Guide to Labour Law

Arbitration

Refer to CCMA or council

90 days
Conciliation

Refer to CCMA or council

90 days
Unfair labour practice dispute
(excluding occupational detriment)*

* 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 prac-
tice dispute on terms he or she deems reasonable, including but not limited to ordering
reinstatement, re-employment or compensation. The compensation awarded to an em-
ployee in respect of an unfair labour practice must be just and equitable in all the circum-
stances, 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
Discuss or illustrate by means of a diagram the dispute resolution procedures for disputes
concerning unfair labour practices. (7)

Question 3
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 estab-
lished 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 recom-
mended candidate to Head Office and the National Commissioner appoints the recom-
mended 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
requires that the preferred candidate should have experience in border policing because of
the specialist functions that have 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 can-
didates 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
Unfair labour practices 371

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 Cap-
tain 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 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.
3.1 Analyse the situation and determine whether or not Captain Van der Merwe should
have been promoted to Superintendent. (20)
3.2 Assume that, when Captain Van der Merwe refers his dispute for resolution, he does
not claim that he has been discriminated against in the promotion process. He simply
challenges his non-promotion on the grounds of experience and qualifications. Dis-
cuss the dispute resolution procedure that has to be followed in order to have his
dispute resolved. (6)
Hint: There is a bargaining council for the safety and security sector (see Chapter 11
par 11.3.3).
3.3 Assume that Captain Van der Merwe alleges that he has 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 II of the Employment Equity Act.

Question 4
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 inter-
viewed 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.
4.1 Discuss Ms Smith’s legal position and consider the validity or otherwise of the com-
pany’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 Depart-
ment of the Premier [1998] 8 BALR 1017 (CCMA); PSA obo Dalton & Another v Depart-
ment 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).
372 A Practical Guide to Labour Law

4.2 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); Gurarnah v South African Weather Services [2004] 4 BALR 454
(CCMA); Limekaya v Department of Education [2004] 5 BALR 586 (GPSSBC).

Question 5
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.
5.1 Is Mr Chang’s employer guilty of an unfair labour practice? Explain. (5)
Hint: See Van Niekerk v Medicross Health Care Group (Pty) Ltd [1998] 8 BALR 1038
(CCMA).
5.2 Discuss the dispute resolution procedure that must be followed in order to resolve
the dispute between Mr Chang and his company. (5)
5.3 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)
5.4 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 la-
bour practice? Explain and include in your answer the dispute resolution procedure,
if any, that must be followed in this case. (10)
Hint: See the definition of “occupational detriment” and sections 3 and 4 of the
Protected Disclosures Act.
5.5 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 6
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 train-
ing 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.
6.1 Is the company guilty of an unfair labour practice by not providing training to the
employees? (5)
6.2 Assume that training was part of the employees’ contracts of employment. Does this
alter your position in 6.1? (5)

Question 7
Mr Ndlebe is a lecturer at a university. He has been appointed on a two-year contract. In
terms of the contract he is entitled to his monthly salary only and will enjoy no additional
Unfair labour practices 373

benefits. When Mr Ndlebe discovers that other contract lecturers participate in the univer-
sity’s medical aid scheme and that they receive additional payment for lecturing night
classes, he refers a dispute relating to “benefits” to the CCMA.
7.1 Can the issues complained about be termed “benefits”? Substantiate your answer by
referring to decided cases. (10)
7.2 Would a salary increase be deemed a benefit? (5)
7.2 Explain whether the university is committing an unfair labour practice in these
circumstances. (10)
7.3 Does the CCMA have jurisdiction to arbitrate Mr Ndlebe’s dispute? (5)
Hint: See Schoeman v Samsung Electronics SA (Pty) Ltd [1997] 10 BLLR 1364 (LC);
Gaylard v Telkom SA Ltd [1998] 9 BLLR 942 (LC); Hoelson v Vista University [1998] 5
BALR 554 (CCMA); Postal & Telekom Association of SA v SA Post Office Ltd [1998] 8
BALR 1012 (CCMA); Northern Cape Provincial Administration v Hambidge NO & Others
[1999] 7 BLLR 698 (LC); NEHAWU v Government of the Eastern Cape [1999] 5 BALR
550 (CCMA); FFATU obo Prinsloo & Others v Johnston [1999] 8 BALR 909 (CCMA);
SAWU obo Green v Buycom Group [1999] 10 BALR 1213 (CCMA); IMATU obo Baker v
East London Transitional Local Council [2000] 3 BALR 280 (CCMA); SAPSAWU obo Jika
v Department of Justice [2000] 3 BALR 309 (CCMA); FAWU v Kelvin Grove Club [2000] 9
BALR 999 (CCMA); Harris v Volkswagen of South Africa (Pty) Ltd [2000] 10 BALR 1140
(CCMA); Sithole v Nogwaza NO & Others (1999) 20 ILJ 2710 (LC); Abrahams v
Lukhanyou Clinic CC t/a Kensington Treatment Centre (2011) 32 ILJ 2773 (CCMA); SA
Post Office Ltd v CCMA & Others [2012] 11 BLLR 1183 (LC); IMATU obo Verster v
Umhlathuze Municipality [2011] 9 BLLR 882 (LC); Apollo Tyres SA (Pty) Ltd v CCMA &
Others [2013] 5 BLLR 434 (LAC); South African Airways (Pty) Ltd v GJJVV [2014] 8
BLLR 748 (LAC).

Question 8
After a post was advertised five external candidates were shortlisted and invited to an
interview. One of them was appointed to the post. Ms Pillay, one of the unsuccessful candi-
dates, believed that she should have been appointed as she was the best candidate.
8.1 Is this matter arbitrable by the CCMA? (5)
8.2 Assume that Ms Pillay claimed that her non-appointment was due to gender discrimi-
nation. Explain whether this matter can be determined under our labour legislation
and, if so, what procedure must be followed. (10)
Hint: Refer to Chapter II of the Employment Equity Act.

Question 9
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.
9.1 Is this matter arbitrable in terms of the LRA? (5)
9.2 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 administra-
tion 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 sections 3 and 4 of the Pro-
tected Disclosures Act.
374 A Practical Guide to Labour Law

Question 10
Identify the nature of the dispute in the following instances and then explain how the dis-
pute can be resolved:
10.1 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 experi-
ence 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)
10.2 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 experi-
ence than the person who was appointed. (5)
10.3 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 prac-
tise 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)
10.4 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 11
Briefly explain whether the following constitute unfair labour practices:
11.1 Employer A dismisses employee B, a Rastafarian, because he does not agree with B’s
religion and does not like his habit of smoking dagga. (2)
11.2 Employer A does not give his employee B, a Rastafarian, a promotion because he
does not agree with B’s religion and does not like his habit of smoking dagga. (2)
11.3 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)
11.4 Employee C is transferred from the Department of Foreign Affairs to the Depart-
ment of Labour against his will. (2)
11.5 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)
11.6 Employer H unilaterally amends the conditions of employment of employee K so
that K must now work longer hours. (2)
11.7 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)
11.8 Employee R resigns after working a notice month. When he leaves his employer, the
latter refuses to pay him for his annual leave credits. (2)
11.9 In terms of the sick leave policy of Company W employees are entitled to 36 days
sick leave in a three-year cycle. If they have exhausted their normal sick leave and
require more leave, they can apply for additional sick leave on full pay. The policy
Unfair labour practices 375

states that the employer may grant additional sick leave if it is satisfied that the em-
ployee is still ill. Employee X has exhausted his normal sick leave, applies for addi-
tional sick leave and is not granted any more leave. (2)
11.10 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)
11.11 Employee J works for the Department of Agriculture. He tells his attorney in confi-
dence of the corrupt and other criminal practices in the Department. His supervisor
finds out that J was responsible for the leak and transfers him to another depart-
ment. (2)

Question 12
Harry, a member of the SA Police Service, was notified by letter that he had been perma-
nently transferred to a new position. Harry was convinced that his transfer amounted to a
demotion because, although he remained on level 13 and his salary and benefits were not
changed, his status was diminished in that in his previous position he reported to the Area
Commissioner, but in his new position he was expected to report to a person below the
Area Commissioner. Does Harry’s transfer constitute a demotion? (5)
Hint: See SA Police Service v Salukazana & Others (2010) 31 ILJ 2465 (LC).

Question 13
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 to the
CCMA, 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 Direc-
tor when he had a legitimate expectation of promotion. His expectation, according to him,
was based on the promises made by the CFO.
13.1 Consider Peter’s claim of a legitimate expectation and decide whether he has any
prospect of succeeding with his claim. (10)
13.2 Did the employer commit an unfair labour practice by suspending Peter? Ex-
plain. (10)
Hint: See Ramoroka v Robben Island Museum (2012) 33 ILJ 500 (CCMA).

Question 14
Dr Joe, a medical practitioner for 22 years employed by both the Department of Correc-
tional Services and the Department of Health (DOH), provided medical care to prisoners
at Pollsmoor Prison. He had on numerous occasions submitted complaints to officials of
both departments about the significant problems with the standard of health care at the
prison. Out of desperation he eventually submitted a report to the Inspecting Judge of
376 A Practical Guide to Labour Law

Prisons and the Parliamentary Select Committee on Correctional Services. After an investi-
gation both the judge and the committee compiled reports highly critical of health care at
the prison. Dr Joe was charged by the Department of Health for reporting the matter
without first approaching departmental officials and summoned to a disciplinary hearing.
He launched an urgent application in the Labour Court to have the disciplinary proceed-
ings interdicted and referred a dispute to the bargaining council for conciliation. A settle-
ment was reached and the charges were withdrawn. When Dr Joe attempted to return to
work, he was informed that his services were no longer required at Pollsmoor and he was
deployed to a community health centre.
Could Dr Joe’s removal from Pollsmoor be considered an occupational detriment? If it
can be, describe the dispute resolution path that he needs to follow to have his dispute
resolved and include in your answer the relief that could possibly be ordered should he
succeed with his claim. (20)
Hint: See Theron v Minister of Correctional Services & Another (2008) 29 ILJ 1275 (LC).

Question 15
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 dura-
tion 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 allow-
ances 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).
 18
DISPUTE RESOLUTION

18.1 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 Act were ineffective in that they were lengthy and com-
plex, 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 Act provides a fundamentally new statutory dispute resolution system. It estab-
lishes the Commission for Conciliation, Mediation and Arbitration (CCMA) for the concili-
ation and arbitration of certain disputes, allows bargaining and statutory councils to resolve
disputes that arise within their jurisdiction and also recognises and actively promotes
private dispute resolution procedures negotiated between the parties. In principle, the Act
provides that all disputes must be referred for conciliation and, if conciliation fails, that
certain 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 “pre-
dismissal arbitration” of the 2002 Amendment Act was renamed an “inquiry by an arbitra-
tor” in the amendments of 2014, but the process is essentially the same.

18.2 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 body for resolution if it is found that a private
agreement between the parties governs the issues in dispute.

377
378 A Practical Guide to Labour Law

The structures for dispute resolution are as follows:

Labour Appeal Court Labour Appeal Court

Arbitration Adjudication Arbitration Adjudication

Council Labour Court CCMA Labour Court

No resolution No resolution

Conciliation Conciliation

Bargaining Council CCMA*

OR
Statutory council

Dispute

* 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 par 18.4.1 below.
The resolution of disputes takes place in accordance with the two-step procedure intro-
duced by the Act:
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 settle-
ment 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, de-
pending on the nature of the dispute, any party to the dispute may refer it to arbitration or
to the Labour Court.
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.
Dispute resolution 379

18.3 Dispute resolution by councils (s 51)

18.3.1 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 arbitra-
tions. However, in terms of section 127 a council cannot be accredited to perform concilia-
tion 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 par 18.4.1 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.

18.3.2 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 the council they must attempt to resolve the dispute
in accordance with the constitution of the council. The 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 arbitra-
tion;
• 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;
• dismissals in the context of selective re-employment;
380 A Practical Guide to Labour Law

• 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 permanent employment, but the
employer did not renew the contract, renewed it on less favourable terms or did not ap-
point 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 over 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 em-
ployee 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
1
LRA.
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 arbi-
trated. The most common examples of such disputes include disputes over dismissal for
operational requirements (save where only one employee is dismissed or where an employ-
er employs fewer than ten employees), automatically unfair dismissals, dismissals because of
an unprotected strike and an alleged infringement of freedom of association.

18.3.3 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 Act by including the pre-
scribed periods of the Act 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) and a section 198D referral within six
months. In terms of the Act 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.

18.3.4 Subsidies, fees and confidentiality

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.

________________________

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 the new s 198D.
Dispute resolution 381

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 func-
tions 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.

18.4 Dispute resolution by the CCMA

18.4.1 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
Protected 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 em-
ployee 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
2
LRA.
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);

________________________

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 re-
ferred to a council or the CCMA in terms of the new s 198D.
382 A Practical Guide to Labour Law

• 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 con-
cluded, the dispute must be referred to the CCMA for conciliation and, if necessary, ar-
bitration;
• disputes about the application or interpretation of Part A of Chapter III, which contains
the provisions relating to organisational rights, may not be dealt with by a council or pri-
vate 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 agree-
ment 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 III of the Act.
Part C deals with bargaining councils, Part D with bargaining councils in the public ser-
vice, Part E with statutory councils and Part F with general provisions concerning coun-
cils. The disputes referred to here include disputes concerning the constitution of a
bargaining council; powers and functions of bargaining and statutory councils; registra-
tion 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 con-
ciliation must be referred to the Labour Court for adjudication;
3
• disputes about picket 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 V of the Act, which deals
with workplace forums; and
• 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 accred-
ited 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
________________________

3 See Ch 14, par 14.7.2.

Dispute resolution 383

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.

18.4.2 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 Act does not prescribe time limits for referral to conciliation, except in disputes
4
concerning dismissals, unfair labour practices and section 198D referrals. Dismissal dis-
putes must be referred to the CCMA within 30 days of the date of dismissal. 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 (s 191(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 commis-
sioner 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 dis-
pute, which may include mediation, a fact-finding exercise or an advisory arbitration 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).
In terms of CCMA rule 13 a party to the dispute must appear in person, irrespective of
whether he is represented. Should a party fail to appear rule 13 permits the commissioner
to dismiss the matter, continue with conciliation or postpone it. This in effect means that
should the applicant fail to appear or be represented the matter can be dismissed, but
should the respondent fail to appear conciliation will continue and a certificate will be
issued.
CCMA rule 13 has, however, been held to be invalid by the Labour Appeal Court. In
Premier of Gauteng & Another v Ramabulana NO & Others [2008] 4 BLLR 299 (LAC) the
________________________

4 In terms of s 198D a dispute concerning the interpretation or application of ss 198A–C can be referred
to the CCMA (or a council) for conciliation and arbitration.
384 A Practical Guide to Labour Law

Court held that rule 13 is ultra vires as the LRA, particularly in section 135, does not allow
for the dismissal of a matter at conciliation. The effect of this judgment is that should an
applicant fail to attend the conciliation proceedings a certificate of non-resolution must be
issued; the matter cannot be dismissed.
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 has not been conducted and the 30-day or
extended 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 his representative and the original is filed with 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 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 settle-
ment agreement may be made an order of the Labour Court (s 158(1)(c)) or an arbitra-
tion 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 con-
text 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.

18.4.3 Arbitration (ss 136–138)

Referral: Where a dispute remains unresolved after conciliation and a certificate of non-
resolution 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. 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 commis-
sioner 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 writ-
ten 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 sup-
port of all the parties.
A party to a dispute may apply to the Director of the CCMA to have a senior commis-
sioner 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 commis-
sioner.
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 refer-
ence, 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
Dispute resolution 385

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)(b) a party may be represented by a legal
practitioner 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 a party will have to apply for legal representation (in 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 mis-
conduct 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 unconstitu-
tional 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 Su-
preme 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 (CCMA
rule 30).
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).

18.4.4 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 each party to the dispute or on the representative of a party. 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 com-
missioner 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
386 A Practical Guide to Labour Law

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. The
amendments, however, made the implementation of the amended section 138(10) subject
to the CCMA’s issuing rules on costs. As the CCMA has not yet issued such rules the basis
for awarding costs remains frivolity or vexatiousness.
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 arbitra-
tion award (s 143(1)).
An arbitration award may be enforced in terms of section 143(1) only if it has been certi-
fied 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 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 errone-
ously 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 improper-
ly 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 add new subsections (5) to (10) to section 145. In terms of the
new 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 applica-
tion 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 (in terms of the Prescription Act of 1969). The new provisions
apply to review applications after the commencement of the 2014 amendments (i.e. after 1
January 2015).
Dispute resolution 387

18.4.5 Powers of CCMA commissioners (s 142)

Commissioners have wide powers when attempting to resolve a dispute through concilia-
tion 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 that event the commissioner
must issue a receipt for the items seized. Written authorisation to enter and inspect residen-
tial 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 inspec-
tion.
The CCMA must pay the prescribed witness’ fees to a person who has been subpoenaed
by a commissioner. If a person requested the CCMA to issue a subpoena, that person is re-
quired 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 pro-
ceedings 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.

18.5 Con-arb (s 191(5A))

A significant innovation in the context of dispute resolution is the con-arb process, intro-
duced 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. In other instances of dismissal and unfair labour practice disputes
that can ordinarily be arbitrated by a council or the CCMA con-arb may be proposed, but
the parties may object to the con-arb process. The employee who is referring the dispute
may indicate his objection on the referral form. The employer must, in terms of CCMA rule
17(2), lodge its written objection with the CCMA at least seven days prior to the date of the
hearing.

18.6 Inquiry by arbitrator (s 188A)

Another new process brought about by the 2002 amendments to the LRA is the pre-
dismissal 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.
388 A Practical Guide to Labour Law

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 one hearing. A
final outcome is therefore obtained much sooner than going through all of the normal
processes.
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
an 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 the employer must file LRA Form 7.19
with the CCMA (or the appropriate form in a bargaining council) and pay the prescribed
fee (in the CCMA the fee currently is R5 131 per day). The consent of the employee must
accompany the form. It is accordingly necessary that the employee’s signature indicating
consent appears on the form or that the contract of employment or the collective agree-
ment is attached to 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. Dur-
ing 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. By agreement the parties may be represented by legal practi-
tioners. 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 contravenes the provisions of the
Protected Disclosures Act the employee or employer may require that an inquiry be con-
ducted in terms of section 188A into allegations by the employer into the conduct or
capacity of the employee. The holding of an inquiry in terms of section 188A and the
suspension of an employee on full pay pending the outcome of the inquiry do not consti-
tute an occupational detriment as contemplated in the Protected Disclosures Act.
Dispute resolution 389

18.7 Dispute resolution of specific disputes

It is important that a dispute be referred to the dispute resolution forum that has jurisdic-
tion to deal with it. 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.

Council or CCMA Council or CCMA Labour Court

Types of dispute
conciliation arbitration adjudication
1. Unfair dismissal disputes – Chapter VIII of the LRA
Automatically unfair dismissals (s 187) Refer within 30 Refer within 90
Dismissal in the context of freedom of days to council or days to Labour
association; dismissal for participating the CCMA for Court for
in protected strike; dismissal because conciliation adjudication
an employee refused to do work of a (s 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 30 Refer within 90
operational requirements where s 189 days to council or days to Labour
is applicable (“minor retrenchment”) the CCMA for Court for
conciliation adjudication
(s 191(5)(b)(ii))
Dismissal based on operational Refer within 30 Employee(s) can Adjudication by
requirements where only one days to council or elect arbitration the Labour Court
employee is retrenched or where the CCMA for by council or (to be referred
employees of an employer who conciliation CCMA (to be within 90 days)
employs fewer than ten employees are referred within 90
retrenched (s 191(12)) days) OR

continued
390 A Practical Guide to Labour Law

Council or CCMA Council or CCMA Labour Court

Types of dispute
conciliation arbitration adjudication
1. Unfair dismissal disputes – Chapter VIII of the LRA – continued
Disputes over the reason for dismissal When a facilitator Union or em-
based on operational requirements has been ployees may give
where s 189A is applicable (“major appointed, no notice to strike
retrenchments”) conciliation is (s 189A(7)(b)(i))
required. When a OR
facilitator has not
been appointed, within 90 days
refer to council or refer dispute to
CCMA for con- Labour Court for
ciliation after 30 adjudication (s
days from date of 189A(7)(b)(ii)).
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 Refer within 90
(retrenchment package) only or CCMA for days to council or
(s 41 of BCEA) conciliation CCMA for
(no time limit) arbitration
Dismissal for participating in Refer within 30 Refer within 90
unprotected strike (s 68(5)) days to council or days to Labour
CCMA for Court for
conciliation adjudication
(s 191(5)(b)(iii))
Dismissal in context of closed shop Refer within 30 Refer within 90
agreement (s 26) days to council or days to Labour
CCMA for Court for
conciliation adjudication
(s 191(5)(b)(iv))
Dismissal for misconduct Refer within 30 Refer within 90
days to council or days to council or
CCMA for CCMA for
conciliation arbitration
(s 191(5)(a)(i))
Dismissal for incapacity or poor work Refer within 30 Refer within 90
performance days to council or days to council or
CCMA for CCMA for
conciliation arbitration
(s 191(5)(a)(i))
continued
Dispute resolution 391

Council or CCMA Council or CCMA Labour Court

Types of dispute
conciliation arbitration adjudication
1. Unfair dismissal disputes – Chapter VIII of the LRA – continued
Constructive dismissal (s 186(1)(e)) Refer within 30 Refer within 90
days to council or days to council or
CCMA for CCMA for
conciliation arbitration
(s 191(5)(a)(ii))
Reason for dismissal unknown to Refer within 30 Refer within 90
employee days to council or days to council or
CCMA for CCMA for
conciliation arbitration
(s 191(5)(a)(iii))
Employee’s fixed-term contract is not Refer within 30 Refer within 90
renewed, is renewed on less favourable days to council or days to council or
terms or employee is not appointed CCMA for CCMA for
permanently where he reasonably conciliation arbitration
expected a renewal, a renewal on similar (s 191(5)(a))
terms or a permanent appointment
(s 186(1)(b))
Selective re-employment Refer within 30 Refer within 90
(s 186(1)(d)) days to council or days to council or
CCMA for CCMA for
conciliation arbitration
(s 191(5)(a))
Transfer of employment contract in Refer within 30 Refer within 90
terms of s 197 or 197A where days to council or days to Labour
employee terminates contract because the CCMA for Court for
new employment conditions are less conciliation adjudication
favourable (this could be considered (s 191(5)(b)(i))
an automatically unfair dismissal –
s 187(1)(g))
Dismissal because employee made a Refer within 30 Refer within 90
protected disclosure in terms of the days to council or days to Labour
Protected Disclosures Act CCMA for Court for
(s 187(1)(h)) conciliation adjudication
(s 191(5)(b)(i))
Dismissal of probationary employee Refer within 30 When concili-
days to council ation fails the
or CCMA for council or CCMA
con-arb must commence
arbitration
immediately
(s 191(5A))
2. Unfair labour practices – Chapter VIII of the LRA
Unfair employer conduct relating to Refer within 90 Refer within 90
promotion, demotion, training or days to council or days to council or
provision of benefits (s 186(2)(a)) CCMA for CCMA for
conciliation arbitration
(s 191(5)(a)(iv))
Unfair suspension or other discip- Refer within 90 Refer within 90
linary action short of dismissal days to council or days to council or
(s 186(2)(b)) CCMA for CCMA for
conciliation arbitration
(s 191(5)(a)(iv))
continued
392 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 VIII of the LRA – continued
Employer’s failure or refusal to Refer within 90 Refer within 90
reinstate or re-employ in terms of any days to council or days to council or
agreement (s 186(2)(c)) CCMA for CCMA for
conciliation arbitration
(s 191(5)(a)(iv))
Occupational detriment (other than Refer within 90 Refer within 90
dismissal) in terms of the Protected days to council or days to Labour
Disclosures Act (s 186(2)(d)) CCMA for Court for
conciliation adjudication
(s 191(13))
Unfair employer conduct relating to Refer within 90 When concili-
probation (other than dismissal) days to council or ation fails the
(s 186(2)(a)) CCMA for council or CCMA
con-arb must commence
arbitration
immediately
(s 191(5A))
3. Freedom of association – Chapter II of the LRA
Discrimination or victimisation for Refer to council Refer within 90
exercising rights to freedom of or the CCMA for days to Labour
association conciliation Court for adjudi-
(no time limit) cation (s 9)
Interpretation or application of Refer to council Refer within 90
Chapter II or the CCMA for days to Labour
conciliation Court for adjudi-
(no time limit) cation (s 9)
4. Organisational rights – Part A of Chapter III of the LRA
Disputes over disclosure of Refer to CCMA Refer within 90
information (s 16) (even if there is a days to CCMA for
council) for arbitration
conciliation (s 16)
(no time limit)
Disputes over exercising Refer to CCMA Refer within 90
organisational rights (s 21) (even if there is a days to CCMA for
council) for arbitration
conciliation (s 21)
(no time limit)
Disputes over the application or Refer to CCMA Refer within 90
interpretation of Part A of chapter III (even if there is a days to CCMA for
(s 22) council) for arbitration
conciliation (s 22)
(no time limit)
5. Collective agreements – Part B of Chapter III of the LRA
Dispute over the interpretation or Refer to council Refer within 90
application of a council collective (no time limit) days to council
agreement for arbitration

continued
Dispute resolution 393

Council or CCMA Council or CCMA Labour Court

Types of dispute
conciliation arbitration adjudication
5. Collective agreements – Part B of Chapter III of the LRA – continued
BUT if the agreement does not Refer to CCMA Refer within 90
provide for a dispute resolution (even if there is a days to CCMA for
procedure, if the procedure in the council) for arbitration
agreement is inoperative or if a party conciliation
to the agreement frustrates the (no time limit)
resolution of the dispute (s 24(2))
Disputes over the interpretation Refer to CCMA Refer within 90 Any person
or application of agency shop or (even if there is a days to CCMA for bound by an
closed shop agreements council) for arbitration arbitration award
conciliation (s 24(6)) pertaining to the
(no time limit) application or
interpretation of
an 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 Refer within 90
admit registered union as party to for conciliation days to Labour
closed shop (even if there is a Court for adjudi-
council) cation (s 26(14))
(no time limit)
Dismissal in the context of closed Refer within 30 Refer within 90
shop agreements days to council or days to Labour
CCMA for Court for
conciliation adjudication
(s 191(5)(b)(iv))
6. Bargaining and statutory councils – Parts C, D, E & F of Chapter III of the LRA
Disputes over the interpretation or Refer to the Refer within 90
application of Parts C–F (i.e. disputes CCMA (and not a days to the
concerning the constitution of a council) for Labour Court for
bargaining Council; powers and conciliation in adjudication
functions of bargaining and statutory terms of s 63(1) (s 63(4))
councils; registration of bargaining or (no time limit)
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 of status of statutory council;
accreditation of a council)
Disputes over jurisdiction between Refer to CCMA Refer within 90
bargaining councils in the public for conciliation days to CCMA for
sector (no time limit) arbitration
(s 38)

continued
394 A Practical Guide to Labour Law

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 III of the LRA – continued
Disputes over the application or Refer to CCMA Refer within 90
interpretation of agreements for conciliation days to CCMA for
regulating employment conditions (not to council) arbitration
where council’s registration has been (no time limit) (s 61(10)–(13))
cancelled
Disputes over demarcation between Refer to CCMA
sectors and areas for arbitration
(no time limit)
(s 62)
7. Workplace forums – Chapter V of the LRA
Disputes over the application or Refer to CCMA Refer within 90
interpretation of Chapter V (even if there is a days to CCMA for
council), unless arbitration (s 94)
collective agree-
ment provides
otherwise (no
time limit)
Disputes over matters for joint Employer may refer Employer may refer
decision-making dispute to CCMA dispute within 90
(even if there is a days to CCMA for
council) arbitration
(no time 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))
8. Strikes and lock-outs – Chapter IV 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
Disputes concerning refusal to Refer to council
bargain 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
continued
Dispute resolution 395

Council or CCMA Council or CCMA Labour Court

Types of dispute
conciliation arbitration adjudication
8. Strikes and lock-outs – Chapter IV of the LRA – continued
Disputes concerning unilateral Refer to council Labour Court
changes to conditions of employment or CCMA for may be
conciliation approached for
(no time limit). interdict
Referral to re-
quire employer to
restore status quo.
If not, give notice
(48 hours or 7
days) and then
strike or lock-out
can commence
Disputes over whether a service is an Must be referred
essential service or whether parties to the essential
are engaged in an essential service services com-
mittee (s 73)
Disputes of mutual interest in Refer to council Refer to council or
essential and maintenance services or CCMA for CCMA for
conciliation arbitration
(no time limit) (ss 74 & 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 90
(even if there is a 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 198D(3)) (s 198D(5))
10. Disputes under the Basic Conditions of Employment Act 75 of 1997
Disputes over an amount owed to an Can only be con- Where dismissal Where dismissal
employee in terms of the BCEA ciliated (and disputes have to disputes have to
arbitrated) by be arbitrated, the be adjudicated,
council or the arbitrator can, in the Court can,
CCMA if the addition to in addition to
claim for payment considering the considering the
has been fairness of the fairness of the
consolidated with dismissal, also dismissal, also
unfair dismissal consider a claim consider a claim
proceedings for payment for payment

continued
396 A Practical Guide to Labour Law

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
Entitlement to severance pay Refer to council Refer within 90
(s 41 of BCEA) or the CCMA for days to council or
conciliation the CCMA for
(no time limit) arbitration
Disputes over the application or Refer to council Refer within 90
interpretation of Part C of Chapter 10 or CCMA for days to the
of the BCEA concerning employees’ conciliation Labour Court for
rights and protection of those rights (no time limit) adjudication
(s 80 of BCEA)
11. Disputes under the Employment Equity Act 55 of 1998
Disputes over unfair discrimination Refer within 6 Sexual Refer within 90
(excluding dismissals) months to the harassment days to the
CCMA for disputes can be Labour Court for
conciliation (even referred by any adjudication
if there is a employee within (s 10(6) of EEA).
council) 90 days to either
the CCMA or the If the CCMA
Labour Court. arbitrated a
discrimination
Other discrimina- dispute a right of
tion disputes can appeal lies against
be referred to the that award to the
CCMA within Labour Court.
90 days if the
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 90
interpretation of Part C of Chapter V CCMA for con- days to the
of the EEA relating to protection of ciliation (even if Labour Court for
employee rights there is a council) adjudication
(no time limit) (s 52 of EEA)
12. Disputes under the Occupational Health and Safety Act 85 of 1993
Any person aggrieved by any decision Appeal to be
of an inspector may appeal to the lodged with the
Chief Inspector and thereafter to the Labour Court
Labour Court within 60 days
after the Chief
Inspector’s de-
cision was given
(s 35 of OHASA &
s 158(1)(i) of
LRA)

continued
Dispute resolution 397

Council or CCMA Council or CCMA Labour Court

Types of dispute
conciliation arbitration adjudication
13. Disputes under the Skills Development Act 97 of 1998
Disputes over the interpretation or Refer to the Refer within 90
application of a learnership CCMA for days refer to the
agreement or the contract of conciliation CCMA for
employment of a learner (no time limit) arbitration
(s 19(5) of SDA)
Disputes over the interpretation or Refer to the Refer within 90
application of Chapter IV of the Act CCMA for days to the CCMA
(dealing with learnerships) conciliation for arbitration
(no time limit) (s 19(5) of SDA)
Disputes over the termination of a Refer to the Refer within 90
learnership agreement or the CCMA for days to the CCMA
learner’s contract of employment conciliation for arbitration
(no time limit) (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)
1.5 adjudication by the Labour Court. (5)

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 regis-
tered 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 in which the CCMA has exclusive jurisdiction. (15)

Question 4
Describe the procedure a CCMA commissioner has to follow when arbitrating a dispute.(10)

Question 5
Explain, with reference to CCMA rule 25, whether the parties to a dispute about the fair-
ness of a dismissal for misconduct or incapacity are entitled to legal representation. (15)

Question 6
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. (5)
398 A Practical Guide to Labour Law

Question 7
A dispute is referred to the CCMA. Explain how the dispute will be dealt with in each of the
following circumstances:
7.1 the dispute is about the interpretation or application of a collective agreement; (3)
7.2 the parties to the dispute are parties to a council; (3)
7.3 the parties to the dispute fall within the registered scope of the council, but one or
more are not parties to the council; (3)
7.4 the dispute should have been resolved by private dispute resolution in terms of an
agreement between the parties; and (3)
7.5 the dispute should have been referred to an accredited agency in terms of a collective
agreement. (3)

Question 8
A misconduct dismissal dispute exists between employer A and employee B.
8.1 Complete the prescribed referral form for conciliation. (20)
8.2 Is there any time limit in which the dispute must be referred to conciliation? (2)
8.3 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)
8.4 Complete the referral form for arbitration. (20)
8.5 Is the employee entitled to legal representation in this arbitration? Explain. (5)
8.6 Discuss the nature and effect of the arbitration award issued by the commissioner.(10)
8.7 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 9
Identify the type of dispute in the following scenarios and then explain the dispute reso-
lution procedure for each dispute. Include in your answer any timeframes that may be
applicable:
9.1 The Leather Goods Company employs 100 employees. Of these employees 47 join
the Leather and Textile Workers Union (LTWU). The union then requests man-
agement to deduct union subscription fees from the wages of its members, but man-
agement refuses. The company is a member of the Leather and Hide Employers’
Organisation. Both the employers’ organisation and LTWU are parties to the Leath-
er Bargaining Council. (6)
9.2 The Leather Goods Company employs 100 employees. Forty of these employees join
the Leather and Textile Workers Union (LTWU). The union then requests man-
agement to negotiate a recognition agreement and an increase in wages, but man-
agement 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)
9.3 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)
Dispute resolution 399

9.4 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 manage-
ment 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
and LTWU are parties to the bargaining council. (6)
9.5 The Leather Goods Company, employing 210 employees, is experiencing financial
difficulties and, as a result, 20 employees (all of whom belong to LTWU) have to be
retrenched. Management can prove that the retrenchments are justified, but fails to
follow the procedure prescribed by the LRA when retrenching the employees. Both
the company and LTWU are parties to the bargaining council. (6)
9.6 The parties to the Leather Bargaining Council have concluded a collective agree-
ment to regulate conditions of employment in the industry. Unfortunately, when the
agreement was negotiated, the parties had neglected to incorporate a dispute resolu-
tion procedure in their agreement. Both LTWU and the Leather Goods Company
are subject to the provisions of 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)
9.7 B is employed at Guestro Wheels. He applies for a supervisory post because it would
mean a promotion for him. A colleague with lesser qualifications and experience is
appointed as supervisor. B wishes to challenges his non-promotion. The MEIBC
(Metal and Engineering Industries Bargaining Council) has jurisdiction in the sector
and area where Guestro Wheels operates its business. (7)
9.8 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 proce-
dures for a protected strike, management approaches the employees directly and of-
fer 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)
9.9 Vuyo is employed by the Department of Agriculture. The post of Head of Depart-
ment is advertised internally. Vuyo applies for the position, which will mean a promo-
tion for him. He has been acting in the position for the past six 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 de-
clares a dispute because he believes he deserves the promotion. (7)
9.10 Two policemen are dismissed after they assaulted a prisoner. They believe their dis-
missals are unfair because SAPS as their employer did not follow the prescribed pro-
cedure before dismissing them. (7)
9.11 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)
9.12 An educator (teacher) at a public school is dismissed for molesting two of the learn-
ers. He believes his dismissal is unfair. (7)
9.13 All the trade unions involved in the public sector and the State as employer conclud-
ed 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 col-
lective agreement incorrectly because, in terms of the agreement, he is entitled to
leave. (6)
400 A Practical Guide to Labour Law

9.14 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)
9.15 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. (7)
Dispute resolution 401

Appendix 1 *

LRA Form 7.11 PART A

Sections 133, 135, 191(1) and REFERRING A DISPUTE TO
191(5A)
Labour Relations Act, 1995
THE CCMA
FOR CONCILIATION
READ THIS FIRST
(INCLUDING CON-ARB)

Ð
PROVINCIAL OFFICES OF
THE CCMA

CCMA EASTERN CAPE CCMA LIMPOPO

EAST LONDON CCMA House
WHAT IS THE Rennies Building, Ground Floor 104 Hans van Rensburg Street
Cnr Church and Oxford Streets Polokwane
PURPOSE
East London 0699
OF THIS FORM? Private Bag X9512
This form enables a person or 5201
Private Bag X9068 Polokwane
organisation to refer a dispute
to the CCMA for conciliation East London 0700
and Con-Arb. 5200 Tel: (015) 297-5010
Tel: (043) 743-0826 Fax: (015) 297-1649/7343
WHO FILLS IN E-mail: ptb@ccma.org.za
Fax: (043) 743-0810
THIS FORM? E-mail: pe@ccma.org.za
Employer, employee, union
or employers’ organisation. PORT ELIZABETH CCMA MPUMALANGA
107 Govan Mbeki Street CCMA House
WHERE DOES THIS Port Elizabeth Diedericks Street
FORM GO? 6001 Witbank
The Registrar, Provincial
Private Bag X22500 1035
Office of the CCMA in the
Port Elizabeth Private Bag X7290
province where the dispute
arose. See details on this 6000 Witbank
page. Tel: (041) 505-4300 1035
Fax: (041) 586-4585/4410 Tel: (013) 656-2800
WHAT WILL HAPPEN E-mail: pe@ccma.org.za Fax: (013) 656-2885/6
WHEN THIS FORM IS E-mail: wtb@ccma.org.za
SUBMITTED?
When you refer the dispute to CCMA FREE STATE
the CCMA, it will appoint a NBS Building CCMA NORTHERN CAPE
commissioner who must Cnr Elizabeth & West Burger Streets CCMA House
attempt to resolve the dispute Bloemfontein 5-13 Compound Street
within 30 days. 9301 Kimberley
OTHER Private Bag X20705 Private Bag X6100
Bloemfontein Kimberley 8300
INSTITUTIONS
9300 Tel: (053) 831-6780
Please note that if you are
covered by a bargaining council, Tel: (051) 505-4400 Fax: (053) 831-5947/8
a statutory council or an accred- Fax: (051) 448-4468/9 E-mail: kmb@ccma.org.za
ited agency you may have to take E-mail: blm@ccma.org.za
the dispute to that council or
agency.
You may also need to deal with
the dispute in terms of a private
procedure if one applies.
If in doubt contact the CCMA
for assistance.

________________________

* It is expected that, because of the 2014 amendments, some forms will change. The amended forms (if
any) were not yet available at the time of going to print.
402 A Practical Guide to Labour Law

CCMA GAUTENG CCMA NORTH WEST

FURTHER
INSTRUCTIONS JOHANNESBURG KLERSDORP
Johannesburg Regional Office CCMA House
A copy of this form must be
127 Fox Street 47 Siddle Street
served on the other party.
Johannesburg Klerksdorp
Proof that a copy of this form 2001 2570
has been served on the other
Private Bag X96 Private Bag X5004
party must be supplied by
Marshalltown Klerksdorp
attaching:
2107 2571
• A copy of a registered slip Tel: (011) 220-5000 Tel: (018) 464-0700
from the Post Office; Fax: (011) 220-5101/02/03/04/05/ Fax: (018) 462-4126/4053/ (018)
• A copy of a signed receipt 0861 392 262 474 0752
if hand delivered; E-mail: johannesburg@ccma.org.za E-mail: kdp@ccma.org.za
• A signed statement
TSHWANE (PRETORIA) RUSTENBURG
confirming service by the
Metro Park Building Shop SG 7 11B
person delivering the
form;
351 Schoeman Street (Cnr Prinsloo) Rustenburg Sanlam Centre
Pretoria 43-45 Boom Street
• A copy of a fax confirma-
0002 Rustenburg
tion slip; or
Private Bag X176 0299
• Any other satisfactory Pretoria Private Bag X82104
proof of service. 0001 Rustenburg
Tel: (012) 392-9700 0300
Fax: (012) 392-9701 Tel: To be confirmed
E-mail: pretoria@ccma.org.za Fax: (014) 538 2167
E-mail: to be confirmed

CCMA KWAZULU-NATAL
CCMA WESTERN CAPE
DURBAN
CCMA House
Embassy Building, 6th & 7th Floors
78 Darling Street
199 Smith Street
Cape Town
Durban
8001
4001
Private Bag X9167
Private Bag X54363
Cape Town
Durban
8000
4000
Tel: (021) 469-0111
Tel: (031) 362-2300
Fax: (021) 465-7193/97/87/ 462
Fax: (031) 368-7387/7407
5006
E-mail: kzn@ccma.org.za
E-mail: ctn@ccma.org.za
PIETERMARITZBURG
Gallwey House, 3rd Floor
Gallwey Lane
Pietermaritzburg
3201
P O Box 72
Pietermaritzburg
3200
Tel: (033) 345-9249/71
Fax: (033) 345-9790
E-mail: kzn@ccma.org.za
RICHARDS BAY
Promenade Building, Suite 15, 1st
Floor
Cnr. Tassel Berry & Lira Link Streets
Richards Bay
3901
Private Bag X1026
Richards Bay Visit the CCMA website at:
3900 http://www.ccma.org.za
Tel: (035) 789-0357/1415
Fax: (035) 789-7148
E-mail: kzn@ccma.org.za . . . please turn over Î
Dispute resolution 403

LRA Form 7.11

Referring a dispute to the CCMA for conciliation (including Con-Arb)
Page 2 of 5
1. DETAILS OF PARTY REFERRING THE DISPUTE
As the referring party, are you:
‰ An employee ‰ A trade union
Tick the correct box ;
‰ An employer ‰ An employer’s organisations
The name of the employee or (a) Name of the party if the referring party is an employee
an employer that is referring
or employer
the dispute must be filled in
(a). Name: ................................................................................
If there is more than one ID Number: ........................................................................
employee to the dispute and
the referring party is not a Postal Address: ...................................................................
trade union, then each ............................................ Postal Code: ..........................
employee must supply their
personal details and signature Tel: ..................................... Cell: .......................................
on a separate page, which Fax: ..................................... E-mail: ...................................
must be attached to this form.
Alternative contact details of employee:
These alternate contact details
should be of a union official Name: .................................................................................
or representative, a relative or Postal Address: ...................................................................
a friend.
............................................ Postal Code: ..........................
The name of the trade union
or employers organisation
Tel: ..................................... Cell: .......................................
that is referring the dispute or Fax: ..................................... E-mail: ...................................
assisting a member to refer a
(b) Name of the referring party if the referring party is an
dispute must be filled in (b).
employer’s organisation or trade union, or if the em-
OTHER PARTIES ployer’s organisation is assisting a member to the dis-
If more than one party is pute
referring the dispute or if the Name: .................................................................................
dispute is referred against
more than one party, write Postal Address: ...................................................................
down the additional names ............................................ Postal Code: ..........................
and particulars on a separate
page and attach to this form. Tel: ..................................... Cell: .......................................
Fax: ..................................... E-mail: ...................................
2. DETAILS OF OTHER PARTY (PARTY WITH WHOM YOU
ARE IN DISPUTE)
The other party is:
Tick the correct box ; ‰ An employee ‰ A trade union
‰ An employer ‰ An employer’s organisation
Name: ........................................................................................
Postal Address: ..........................................................................
.................................... Postal Code: .........................................
Tel:........................................... Cell: .........................................
Fax: ...................................... E-mail: .........................................

. . . please turn over Î

404 A Practical Guide to Labour Law

LRA Form 7.11

Referring a dispute to the CCMA for conciliation (including Con-Arb)
Page 3 of 5
3. NATURE OF THE DISPUTE
What is the dispute about (tick only one box)?
Tick the correct box ; ‰ Unfair dismissal
‰ Unfair Labour Practice (Give details)
If the dispute concerns
dismissals, also complete part
‰ Refusal to bargain ‰ Organisational Rights
B (See Page 5). ‰ Mutual Interest ‰ S. 80 BCEA
‰ Unilateral change to terms and conditions of employ-
ment
‰ Severance pay S. 41 BCEA
‰ Unfair Discrimination S. 10 of the Employment Equity
Act (Give details)
‰ Interpretation/Application of Collective Agreement
‰ Disclosure of ‰ S. 19 Skills Development
Information Act
‰ Freedom of ‰ Unfair Labour
Association Practice (probation)
‰ Other (please describe).....................................................
............................................................................................
............................................................................................

Î Summarise the facts of the dispute you are referring: ............

This section must be com- ...................................................................................................
pleted!
...................................................................................................
If necessary write the details ...................................................................................................
on a separate page and attach
to this form. ...................................................................................................
UNFAIR LABOUR 4. DATE DISPUTE AROSE
PRACTICE
The dispute arose on: ...............................................................
If the dispute(s) concerns an (give the date, day, month and year)
unfair labour practice the
dispute must be referred (i.e. The dispute arose where:..........................................................
received by the CCMA) (give the city/town in which the dispute)
within 90 days of the act or
omission which gave rise to If the dispute concerns a dismissal the date inserted here
the unfair labour practice. If must be the same as that set out in Item 2 of Part B.
more than 90 days has
elapsed you are required to
apply for condonation.

continued
Dispute resolution 405

5. DETAILS OF DISPUTE PROCEDURES

FOLLOWED
Have you followed all internal grievance/disciplinary
procedures before coming to the CCMA? ....... ‰ YES ‰ NO
Describe the procedure followed: ............................................
...................................................................................................
...................................................................................................
...................................................................................................
...................................................................................................
6. RESULT OF CONCILIATION
What outcome do you require? ................................................
...................................................................................................
...................................................................................................
...................................................................................................
...................................................................................................
...................................................................................................

. . . please turn over Î

406 A Practical Guide to Labour Law

LRA Form 7.11

Referring a dispute to the CCMA for conciliation (including Con-Arb)
Page 4 of 5
7. SECTOR
Indicate the sector or service in which the dispute arose.
‰ Retail sector ‰ Private Security
Tick the correct box ;
‰ Public Service ‰ Mining
‰ Paper & Printing ‰ Health
‰ Motor ‰ Services
‰ Chemical ‰ Distribution
‰ Food and Beverage ‰ Agriculture
‰ Wholesale ‰ Building & Construction
‰ Contract Cleaning ‰ Domestic
‰ Other (please describe) ..........................................................
8. INTERPRETATION SERVICES
Parties may, at their own cost, Do you require an interpreter at the
bring interpreters for lan-
conciliation/Con-Arb?.....................................‰ YES ‰ NO
guages other than the official
South African languages. If yes, please indicate for what language:
Please indicate this under ‰ Afrikaans ‰ isiNdebele
“other”.
‰ isiZulu ‰ isiXhosa
‰ Sepedi ‰ Sesotho
‰ Setswana ‰ siSwati
‰ Tshivenda ‰ Xitsonga
‰ Other (please indicate)..........................................................

9. SPECIAL FEATURES/ADDITIONAL INFORMATION

Special features might be the Briefly outline any special features/additional information
urgency of the matter, the
the CCMA needs to note:
large number of people
involved, important legal or ....................................................................................................
labour issues etc. ....................................................................................................
....................................................................................................
10. DISPUTE ABOUT UNILATERAL CHANGE TO TERMS
AND CONDITIONS OF EMPLOYMENT (s. 64 (4))
Only fill this in if this is a
dispute about unilateral
I/we require that the employer party not implement unilat-
change to terms and condi- erally the proposed changes that led to this dispute for 30
tions of employment. days, or that it restore the terms and conditions of employ-
ment that applied before the change.

Signed: .......................................................................................
(Employee party referring the dispute)
continued
Dispute resolution 407

11. OBJECTION TO CON-ARB PROCESS

The con-arb process involves I/we object to the arbitration commencing immediately
arbitration being held imme-
after the conciliation in terms of Section 191(5A)(c).
diately after the conciliation if
the dispute remains unre-
solved.
Signed: .......................................................................................
Only fill this in if you object to If the employer objects to the arbitration commencing
the arbitration commencing
immediately after the conciliation the employer must sub-
immediately after conciliation.
An objection cannot be made
mit a written notice in terms of CCMA Rule 17(2) at least 7
in disputes relating to proba- days prior to the scheduled date of the conciliation. The
tion. employer must attend the conciliation regardless of whether
it makes this objection.
12. CONFIRMATION OF ABOVE DETAILS

Signature of party referring to dispute: ....................................

Signed at: ........................... on this ..........................................

(place) (date)

. . . please turn over Î

408 A Practical Guide to Labour Law

LRA Form 7.11

Referring a dispute to the CCMA for conciliation (including Con-Arb)
Page 5 of 5

LRA Form 7.11

Section 135
Labour Relations Act, 1995
Section 191 (5A)
DATE OF REFERRAL PART B
Dismissal disputes must be ADDITIONAL FORM FOR DISMISSAL DISPUTES ONLY
referred (i.e. received by the
CCMA) within 30 days of 1. COMMENCEMENT OF EMPLOYMENT
dismissal or, if it is a later
date, within 30 days of the When did you start working at the company? .........................
employer making a final ...................................................................................................
decision to dismiss or to
uphold the dismissal. If more 2. NOTICE OF DISMISSAL
than 30 days has elapsed since
When were you dismissed (date)?............................................
the date of your dismissal, you
are required to apply for How were you informed of your dismissal?
condonation.
‰ In writing ‰ Orally
‰ Other (please describe) ..........................................................
Tick the correct box ;

3. REASON OF DISMISSAL
Why were you dismissed?..........................................................
Tick the correct box ; ‰ Misconduct ‰ Incapacity
‰ Operational Requirements ‰ Unknown
(Retrenchment)
‰ Constructive
‰ Other (please describe).........................................................
4. WAS THE DISMISSAL RELATED TO
PROBATION .................................................... ‰ YES ‰ NO
5. FAIRNESS/UNFAIRNESS OF DISMISSAL
(a) Procedural Issues
Was the dismissal procedurally unfair?..... ‰ YES ‰ NO
If necessary write the details If yes, why?
on a separate page and attach
to this form. ............................................................................................
............................................................................................
............................................................................................
(b) Substantive Issues
Was the reason for the dismissal unfair? .. ‰ YES ‰ NO
If yes, why?
............................................................................................
............................................................................................
............................................................................................
Dispute resolution 409

Appendix 2

LRA Form 7.12

Labour Relations Act, 1995
Section 64(1)(a), 135(5)(a), 136(1)(a)

CERTIFICATE
OF OUTCOME OF DISPUTE
REFERRED TO CONCILIATION

CASE NUMBER ...............................................

I certify that the dispute between

........................................................................................................................................................
........................................................................................................................................................
(referring party)

and
........................................................................................................................................................
........................................................................................................................................................
(other party/parties)

Referred to conciliation on:

........................................................................................................................................................
(give date)

Concerning
........................................................................................................................................................
........................................................................................................................................................
........................................................................................................................................................
• was resolved on the ..............................................................or
(give date)
• remains unresolved as at ........................................................
(give date)

. . . please turn over Î

410 A Practical Guide to Labour Law

LRA Form 7.12

Labour Relations Act, 1995
Section 64(1)(a)(i), 135(5)(a), 136(1)(a)
Page 2 of 2
Condonation: Granted Not applicable

If this dispute remains unresolved, Arbitration Labour Strike/ None

it can be referred to: Court Lockout

..........................................................................
Name of Commissioner

..........................................................................
Signature of Commissioner
Official stamp of the CCMA
(or Bargaining Council or Accredited ..........................................................................
Agency) Place

..........................................................................
Date
Dispute resolution 411

Appendix 3
LRA Form 7.13
Section 136
Labour Relations Act, 1995

READ THIS FIRST REQUEST FOR ARBITRATION

Ð
1. DETAILS OF PARTY REQUESTING ARBITRATION
Name: ......................................................................................
.................................................................................................
Postal Address: ........................................................................
.................................................................................................
WHAT IS THE .................................................................................................
PURPOSE
OF THIS FORM? Tel: ...................................... Fax: ............................................
If conciliation fails, a party may Cell: ..................................... E-mail: .......................................
request that the CCMA resolve
the dispute by arbitration.
2. DISPUTE DETAILS
Case Reference Number: .......................................................
WHO FILLS IN The case between....................................................................
THIS FORM? (party)
The party requesting the arbitra- and ............................................................................................
tion. (other party)
WHERE DOES THIS was referred for conciliation but remains unresolved.
FORM GO? The certificate confirming the failure of conciliation is
To the Registrar, at the Provincial attached.
Office of the CCMA. (Please refer
to the last page for details.) In terms of section ..................................................................
This should be the same office (see chart on page 3)
which conducted the conciliation.
I/we now request that the matter be resolved through
If an accredited council or agency
is to arbitrate the dispute, this
arbitration.
form must be sent to their office. The issues still in dispute are .................................................
If in doubt contact the CCMA for
help.
.................................................................................................
Referrals in terms of section 37 .................................................................................................
(2) of the UIF Act must be made .................................................................................................
in the province where the appeals
(Give a brief description. The commissioner may
committee made the decision re:
benefits.
require a more detailed statement of case later.)

CCMA Ref. No. .......... . . . please turn over Î

412 A Practical Guide to Labour Law

LRA Form 7.13

Request for Arbitration
Page 2 of 4
OTHER 3. WHAT DECISION WOULD YOU LIKE THE COMMISSION-
INSTRUCTIONS ER TO MAKE:
A copy of this form must be .......................................................................................................
served on the other party.
Proof that a copy of this .......................................................................................................
form has been served on the .......................................................................................................
other party must be supplied
by attaching: .......................................................................................................
• A copy of a registered slip .......................................................................................................
from the Post Office;
• A copy of a signed receipt
.......................................................................................................
if hand delivered; .......................................................................................................
• A signed statement
.......................................................................................................
confirming service by the
person delivering the The commissioner may require more detailed statement of
form; case later.
• A copy of a fax confirma-
tion slip; or
4. CONFIRMATION OF ABOVE DETAILS:
• Any other satisfactory
proof of service. Form submitted by (name): .........................................................
The certificate confirming Signature: ......................................................................................
that the dispute was unre-
solved through conciliation Designation: ..................................................................................
must also be attached to this
Date: ..............................................................................................
form.
If a party does not want the Place: .............................................................................................
commissioner who conduct-
ed the conciliation proceed-
5. DETAILS OF OTHER PARTY:
ings to arbitrate this dispute,
that party must fill in LRA Name: ............................................................................................
Form 7.14.
Designation: ..................................................................................
If both parties agree on a
particular commissioner to Postal Address: ..............................................................................
arbitrate then they must
inform the CCMA within 48
.......................................................................................................
hours of the dispute being .......................................................................................................
certified as unresolved.
Tel:....................................... Fax: .................................................
If a party wants a senior
commissioner to arbitrate Cell: ..................................... E-mail: ............................................
they must fill in LRA Form
7.15.

CHECK!
Have you sent a copy of this
completed form to the other
party?
Have you included proof
(that you have sent a copy to
the other party) with this
form?
Have you attached the
certificate confirming that
the dispute was unresolved
through conciliation?

. . . please turn over Î

Dispute resolution 413

LRA Form 7.13

Request for Arbitration
Page 3 of 4
ARBITRATION REQUESTS
SECTION LIST/NATURE OF DISPUTE

LRA Section Dispute

16 (9) Disclosure of information
21 (7) Acquisition of organisational rights
21 (11) Withdrawal of organisational rights
22 (4) Interpretation or application of any provision of Part A of Chapter 3
other than a dispute in terms of section 21
24 (5) Interpretation or application of collective agreement in respect of
statutory council
24 (6) Interpretation or application of agency or closed shop agreement
45 (4) Interpretation or application of ministerial determination in respect
of statutory council
61 (13) Interpretation or application of lapsed Bargaining Council collec-
tive agreement
74 (4) Essential services
86 (7) Joint decision-making (workplace forum)
89 (6) Disclosure of information (workplace forum)
94 (4) Dispute about application or interpretation – Chapter 5
(workplace forum)
133 (2) (b) / 141 Consent to arbitration where Labour Court has jurisdiction
(1)
191 (5) (a) Unfair dismissal
191 (5) (a) Unfair labour practices
191 (12) Unfair dismissal for operational requirements
BASIC CON- Severance pay
DITIONS OF
EMPLOYMENT
ACT SECTION 41
SKILLS DEVELOP- Interpretation and application of learner agreement/learner con-
MENT ACT tract of employment/s. 18 (3) determination.
SECTION 19(5)
NB: Demarcation disputes (section 62) must be processed on LRA Form 3.23
414 A Practical Guide to Labour Law

LRA Form 7.13

Request for Arbitration
Page 4 of 4
PROVINCIAL OFFICES
OF THE CCMA
CCMA EASTERN CAPE
EAST LONDON
Physical address: Rennies Building, Ground Floor
Cnr Church & Oxford Streets
East London 5201
Postal address: Private Bag X9068
East London
5200
Tel: (043) 743-0826
Fax: (043) 743-0810
E-mail: pe@ccma.org.za
PORT ELIZABETH
Physical address: 107 Govan Mbeki Avenue
Port Elizabeth
6001
Postal address: Private Bag X22500
Port Elizabeth
6000
Tel: (041) 505-4300
Fax: (041) 586-4585/4410
E-mail: pe@ccma.org.za

CCMA FREE STATE

Physical address: NBS Building
Cnr. Elizabeth & West Burger Streets
Bloemfontein
9301
Postal address: Private Bag X20705
Bloemfontein
9300
Tel: (051) 505-4400
Fax: (051) 448-4468/9
E-mail: blm@ccma.org.za

CCMA GAUTENG
JOHANNESBURG
Physical address: Johannesburg Regional Office
127 Fox Street
Johannesburg
2001
Postal address: Private Bag X96
Marshalltown
2107
Tel: (011) 220-5000
Fax: (011) 220-5101/02/03/04/05/0861 392 262
Dispute resolution 415

E-mail: johannesburg@ccma.org.za
TSHWANE (PRETORIA)
Physical address: Metro Park Building
351 Schoeman Street (Cnr Prinsloo)
Pretoria
0002
Postal address: Private Bag X176
Pretoria
0001
Tel: (012) 392-9700
Fax: (012) 392-9701/2
E-mail: pretoria@ccma.org.za

CCMA KWAZULU NATAL

DURBAN
Physical address: Embassy Building, 6th & 7th Floors
199 Smith Street (Cnr Aliwal)
Durban
4001
Postal address: Private Bag X54363
Durban
4000
Tel: (031) 362-2300
Fax: (031) 368-7387/ 7407
E-mail: kzn@ccma.org.za
PIETERMARITZBURG
Physical address: Gallwey House, 3rd Floor
Gallwey Lane
Pietermaritzburg
3201
Postal address: P O Box 72
Pietermaritzburg
3200
Tel: (033) 345-9249/71
Fax: (033) 345-9790
E-mail: kzn@ccma.org.za
RICHARDS BAY
Physical address: Promenade Building, Suite 15, 1st Floor
Cnr. Tassel Berry & Lira Link Streets
Richards Bay
3901
Postal address: Private Bag X1026
Richards Bay
3900
Tel: (035) 789-0357/1415
Fax: (035) 789-7148
E-mail: kzn@ccma.org.za
416 A Practical Guide to Labour Law

CCMA LIMPOPO
Physical address: CCMA House
104 Hans van Rensburg Street
Polokwane
0699
Postal address: Private Bag X9512
Polokwane
0700
Tel: (015) 297-5010
Fax: (015) 297-1649/7343
E-mail: ptb@ccma.org.za

CCMA MPUMALANGA
Physical address: CCMA House
Diedericks Street
Witbank
1035
Postal address: Private Bag X7290
Witbank
1035
Tel: (013) 656-2800
Fax: (013) 656-2885/6
E-mail: wtb@ccma.org.za

CCMA NORTHERN CAPE

Physical address: CCMA House
3-15 Compound Street
Kimberley
8301
Postal address: Private Bag X6100
Kimberley
8300
Tel: (053) 831-6780
Fax: (053) 831-5947/8
E-mail: kmb@ccma.org.za

CCMA NORTH WEST

KLERKSDORP
Physical address: CCMA House
47 Siddle Street
Klerksdorp
2570
Postal address: Private Bag X5004
Klerksdorp
2571
Tel: (018) 464-0700
Fax: (018) 462-4126/4053/(018) 474 0752
E-mail: kdp@ccma.org.za
Dispute resolution 417

RUSTENBURG
Physical address: Shop SG7 11B
Rustenburg Sanlam Centre
43-45 Boom Street
Rustenburg
0299
Postal address: Private Bag X82104
Rustenburg
0300
Tel: To be confirmed
Fax: (014) 538 2167
E-mail: to be confirmed

CCMA WESTERN CAPE

Physical address: CCMA House
78 Darling Street
Cape Town
8001
Postal address: Private Bag X9167
Cape Town
8000
Tel: (021) 469-0111
Fax: (021) 465 7193/97/87/462 5006
E-mail: ctn@ccma.org.za
 19
OTHER RELEVANT LEGISLATION

19.1 Introduction
Apart from the Acts covered thus far in this book, which are of a general nature and appli-
cable 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 of 1998 applicable to educators (teachers) at public schools and the Local Government:
Municipal Systems Act of 2000 for municipal employees.
It is not only labour legislation that influences the employment relationship; other legis-
lation 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 employ-
ment 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 im-
portant statutes is given. It is beyond the scope of this publication to provide detailed analyses.

19.2 Other labour legislation

19.2.1 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 legisla-
tion. 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 per-
son appointed, whether permanently or temporarily, to a post in a fixed establishment (or
to a post additional to the fixed establishment). Certain categories of person have been ex-
pressly 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 em-
ployed in terms of the Employment of Educators Act.
The PSA specifically provides for appointments, promotions and transfers, unlike other
legislation such as the Basic Conditions of Employment Act (BCEA) and the Labour

419
420 A Practical Guide to Labour Law

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, compe-
tence, 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 em-
ployee 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 and 15).
Chapter V of the PSA provides for the termination of services. An employee may be dis-
charged 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, other than a member of the services, an educator or a member of the Intelli-
gence Services, 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 imme-
diately 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 rein-
statement (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
Court held that “if the deeming provision of the Act applies, there is no dismissal as con-
templated in section 186 of the LRA. The operation of the deeming provision is not de-
pendent 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 Educa-
tors 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); Lebese v SAPS [2003] 7 BALR 755 (SSSBC); 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).
In conclusion, the PSA deals with issues such as remuneration, work performed outside
the public service, unauthorised remuneration, grievances and political rights of employees.
19.2.2 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
1
offices and adult basic education centres (ABET). The Act is one of only a few which
________________________

1 Educators (lecturers) at FET colleges were initially also included under the Employment of Educators
Act and were employees of the Department of Education (later known as the Department of Basic Educa-
tion), but with the enactment of the Further Education and Training Colleges Act the vast majority of
them were transferred to college employment, with the college being the employer. In terms of the FET
Colleges Act the colleges were the employers of both lecturing and support staff. Amendments to the
FET Colleges Act and the transfer of colleges to the Department of Higher Education resulted in a
transfer back of college employees to the public service, this time to the Department of Higher Educa-
tion. This process is underway.
Other relevant legislation 421

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
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 deter-
mining 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 public 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 Educa-
tion 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, representivity 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 deter-
mined 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 rec-
ommendation. 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 re-
quirements 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. See the discussion and case law in 18.2.1 above.
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. Miscon-
duct 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 miscon-
duct, 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 relation-
ship 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.

19.2.3 Local Government: Municipal Systems Act

The Local Government: Municipal Systems Act 32 of 2000 (the “Systems Act”), as amended,
deals primarily with the organisation and administration of municipalities and, therefore,
422 A Practical Guide to Labour Law

cannot 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 col-
lective 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 man-
agement of staff, the evaluation of performance, promotion, demotion and transfer of staff,
disciplinary and grievance procedures, the investigation of alleged misconduct and dismis-
sal 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 conse-
quently required to approve a staff establishment for the municipality, provide a job de-
scription 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 and 66).
A municipal council, after consultation with the municipal manager, also appoints man-
agers who are directly accountable to the municipal manager. These managers are gener-
ally 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 munici-
pal manager is employed for a fixed term and the municipality may decide to appoint the
other managers also 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 perform-
ance. The provisions of the Municipal Finance Management Act conferring responsibilities
on the accounting officer of a municipality, forms part of the municipal manager’s per-
formance agreement. Bonuses based on performance may be awarded to a municipal man-
ager or the other managers after the end of a financial year, but only after their perform-
ance has been evaluated and that evaluation has been approved by the municipal council
(ss 56 and 57).
All employees other than the section 57 managers are appointed by the municipal man-
ager. 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 and 70). The code pro-
hibits a staff member inter alia to use his or her 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.

19.3 Other legislation

Legislation other than labour legislation that has some consequence on employment in-
cludes, inter alia, the Acts outlined below.
Other relevant legislation 423

19.3.1 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 ter-
minated 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 predomin-
antly 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. Currently the prescribed amount is R5 000 per month.
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 ser-
vices 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 prop-
erty or to prevent undue disruption of work on the land. The occupier is liable for any dam-
age 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 re-
move 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 employ-
ment 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 resi-
dence. 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
424 A Practical Guide to Labour Law

rise to the termination, the interests of the parties, including the comparative hardship to
the owner or person in charge, the occupier concerned and any other occupier if the right
of residence is or is not terminated, the existence of a reasonable expectation that an agree-
ment 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 10 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 10 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 per-
son 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 and 22). Conceivably an occupier who is an employee can have an unfair
labour practice dispute over benefits conciliated and arbitrated by the CCMA or a bargain-
ing council 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 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 deter-
mination for the farming sector is applicable.

19.3.2 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
Other relevant legislation 425

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 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 uncom-
plicated manner. Ensuring such access is a means of promoting transparency, accountabil-
ity 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 com-
mencement 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 Con-
stitution 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 informa-
tion.
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 re-
quester must provide sufficient particulars so that the records can be identified. The re-
quester 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
426 A Practical Guide to Labour Law

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 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
and 33). Access will, inter alia, be refused if disclosure involves disclosure of personal infor-
mation, 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 consid-
ering 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 and 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 and 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 and 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 and
54). Access to health records is restricted (ss 30 and 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 and 78).

19.3.3 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. Sec-
tion 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.
Other relevant legislation 427

The centrepiece of PAJA is thus an “administrative action” and the Act seeks to ensure
that administrative actions are lawful, reasonable and fair and, if not, that such actions can
be challenged.
Section 1 of the Act defines an “administrative action” as
any decision taken, or any failure to take decision, by –
(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 pow-
ers 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 Commis-
sioner, 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 major-
ity 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 pro-
ceedings 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 SA 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 Regis-
trar 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
428 A Practical Guide to Labour Law

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 Constitution, the provisions of the LRA must prevail. The procedures, time-
limits 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 fur-
ther 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 rein-
statement. 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 be-
tween an appeal and a review, the question as to whether a CCMA arbitration award consti-
tutes 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 Plat-
inum 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.

19.3.4 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 communica-
tion without the knowledge or permission of the other person concerned. This by implica-
tion 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.
Other relevant legislation 429

19.3.5 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 permis-
sion to do so is guilty of an offence. “Data” is defined as electronic representations of
information in any form.
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.

19.3.6 Regulation of Interception of Communications and provision of

Communication-related Information Act
The Regulation of Interception of Communications and Provision of Communication-
related Information Act 70 of 2002 (RICA), as amended, regulates inter alia the intercep-
tion 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 recipi-
ent 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 destina-
tion,
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 communica-
tion.
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.
430 A Practical Guide to Labour Law

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, there-
fore, advisable that an employer develop a policy on the interception and monitoring of in-
formation 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 inter-
ception and counter complaints of unlawful interception or transgression of the Act.

19.3.7 ILO Convention and new legislation

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 com-
puter networking. 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 individ-
uals, 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 data-
bases have turned the modest records of an insular society into a bazaar of data available to
nearly anyone at a price”.
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. At present, regulatory measures to protect personal data are in-
adequate, with the result that data are easily accessible. In 2000, for example, First National
Bank’s telephone banking system allowed any caller to obtain balance statements and credit
levels of the banking accounts of any client. Reportedly 170 000 calls per month were re-
ceived. Some 1,5 million credit records, obtained from Vodac, Teljoy, Nedcor and Standard
2
Bank were accidentally made available on a website.
________________________

2 Jordaan B “Protection of Confidentiality and Privacy Issues in South Africa”, paper delivered at the
SASLAW National Conference, October 2006.
Other relevant legislation 431

Protection of personal data is clearly required. The current legal position is that, in terms
of our common law, the 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 facts, breach of confidentiality, publishing a photo-
graph without the person’s consent and a medical practitioner divulging medical infor-
mation.
In addition to common law, limited protected is granted by the Employment Equity Act,
the Promotion of Access to Information Act, the Electronic Communications and Transac-
tions Act, the National Credit Act, the Basic Conditions of Employment Act and the Labour
Relations Act. However, none of these provisions provide adequate protection, hence the
new Protection of Personal Information Act 4 of 2013, which awaits full commencement. A
few sections of the POPI Act entered into force on 11 April 2014 (ss 1, 39–54, 112 and 113).
In considering the development of statutory protection of personal information – in the
workplace in particular – guidance was sought in the ILO’s Code of Practice on the Protec-
tion 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 con-
sent. Waiver of these rights is not permitted.
The Protection of Personal Information Act is aimed at promoting the protection of per-
sonal information processed by public and private bodies. Once fully in force, the Act will
apply to the automatic and manual processing of personal information. In this regard one
of the objects of the Act is to give effect to the constitutional right to privacy by safeguard-
ing a person’s personal information when processed by public or private bodies.
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. Infor-
mation 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.

19.3.8 Broad Based Black Economic Empowerment Act3

The skewed distribution of wealth along racial lines lies at the heart of the drive for eco-
nomic 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 owner-
ship 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.

________________________

3 LL M dissertation by Nicolene Schoeman, UFS, 2006.

432 A Practical Guide to Labour Law

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 peo-
ple, 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 pro-
ductive assets;
(b) facilitating ownership and management of enterprises and productive assets by communi-
ties, 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 work-
force;
(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 Broad-
Based 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 empow-
erment;
(d) to promote advocacy, access to opportunities and educational programmes and initia-
tives 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 pro-
curement, management, employment equity, enterprise development and social invest-
ment. 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.
Other relevant legislation 433

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 pre-
scribed amount does not have to comply with any of the elements. The proposed amount is
R300 000.
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 mana-
gerial 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 representation of black people at executive board level, ownership by
blacks, the involvement of black people in the daily operations and senior managerial deci-
sion-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 (EEA), 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 enter-
prise. This potentially translates into the empowerment of members of designated groups
and opens the door to senior managerial levels and ownership.
A Code of Good Practice: The Recognition of Employment Equity Contributions has
been published for public comment and its promulgation is awaited. The Code proposes a
scorecard that includes the following: black people with disabilities employed as full-time
employees: 4%; black people employed at senior management level: 60%; black women em-
ployed at senior management level: 30%; black people employed as professionally qualified,
experienced specialists and at mid-management level: 75%; black women employed at
professionally qualified, experienced specialists and mid-management level: 40%; and black
people employed as skilled technical and academically qualified workers, junior manage-
ment, supervisors, foremen and superintendents: 80%.
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 recogni-
tion of skills development provides specific indicators to guide companies in the way their
skills development strategies should contribute to black economic empowerment. This in-
cludes expenditure on continuous professional development and job specific training of
employees as a percentage of the payroll. The proposed scorecard in the Code sets com-
pliance 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; num-
ber 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.
 BIBLIOGRAPHY

Albertyn C & Kentridge J “Introducing the right to equality in the interim Constitution”, South
African Journal on Human Rights vol 10(2), 1994.
Anstey M Negotiating Conflict Cape Town: Juta (1991).
Bendix S Industrial Relations in South Africa Cape Town: Juta (1989).
Blumenfeld J “Workmen’s compensation: Third parties’ liability” (1983) 4 ILJ 261.
Brand J, Lotter C, Mischke C & Steadman F Labour Dispute Resolution Cape Town: Juta (1997).
Brassey M, Orleyn T & Myburgh A Employment Equity and Contemporary Labour Law Developments
Seminar 1997 Durban: Butterworths (1997).
Cheadle H et al Current Labour Law Cape Town: Juta (1994–1997).
De Villiers D The Small Businessman’s Guide to Labour Legislation Pretoria: Academica (1989).
Du Plessis JV, Fouché MA, Jordaan B & Van Wyk MW A Practical Guide to Labour Law 2nd edn,
Durban: Butterworths (1996).
Du Toit D et al Labour Law Through the Cases Durban: LexisNexis (2002– ).
Du Toit D et al Labour Relations Law: A Comprehensive Guide 5th edn, Durban: LexisNexis (1999).
Finnemore M & Van der Merwe R Introduction to Industrial Relations in South Africa 5th edn,
Johannesburg: Lexicon (1989).
Fouché MA et al Legal Principles of Contracts and Commercial Law 8th edn, Durban: LexisNexis
(2015).
Fullinwider RK The Reverse Discrimination Controversy: A Moral and Legal Analysis Totowa, New
Jersey: Rowman and Littlefield (1980).
Garbers C “Promotions: Keeping abreast with ambition (an overview of the current law on
promotion of employees)” Contemporary Labour Law, vol 9(3), October 1999.
Gibson JTR South African Mercantile and Company Law 6th edn, Cape Town: Juta (1988).
Grogan J Riekert’s Basic Employment Law 2nd edn, Cape Town: Juta (1993).
Grogan J Workplace Law 2nd edn, Cape Town: Juta (1997).
Israelstam I & Marais P Making Workplace Forums Work Labour Law Group (1996).
Jordaan B “Protection of confidentiality and privacy issues in South Africa”, paper delivered at
the SASLAW National Conference, October 2006.
Le Roux P “Beheer oor werkersvervoer en die Ongevallewet” (1980) 1 ILJ 100.
Le Roux PAK & Van Niekerk AJ “The dismissal of strikers – Ten years on . . .” Contemporary
Labour Law vol 2(12), 1993.
Levy A Unfair Dismissal Johannesburg: Divaris Steyn (1984).
Mureinik E “A bridge to where? Introducing the Interim Bill of Rights” South African Journal on
Human Rights vol 10(1), 1994.
Mureinik E “Workmen’s compensation and the mugging that arose ‘out of’ employment”
(1980) 1 ILJ 33.
Ringrose HG The Law and Practice of Employment 2nd edn, Cape Town: Juta (1976).
Rycroft A & Jordaan B A Guide to South African Labour Law 2nd edn, Cape Town: Juta (1992).
Thompson C “Collective bargaining” in Current Labour Law (1995).
Van Jaarsveld SR Suid-Afrikaanse Handelsreg vol 1, 3rd edn, Johannesburg: Lex Patria (1988).
Van Jaarsveld SR & Van Eck BPS Principles of Labour Law Durban: Butterworths (1998).

435
 TABLE OF CASES

Page
A
Abrahams v Lukhanyou Clinic CC t/a Kensington Treatment Centre
(2011) 32 ILJ 2773 (CCMA).......................................................................................................373
Absa Bank Ltd v Bond Equipment (Pretoria) (Pty) Ltd [2001] 1 All SA 1 (A) ....................... 29, 33
Adcock Ingram Critical Care v CCMA & Others [2001] 9 BLLR 979 (LAC) ...............................324
Administrator, Transvaal & Others v Traub & Others (1989) 10 ILJ 823 (A) ...................... 358, 372
AECI Chlor-Alkali & Plastic Ltd & Others v SA Chemical Workers’ Union & Others
(1986) 7 ILJ 300 (W) ..................................................................................................................289
Allpass v Mooikloof Estates (Pty) Ltd t/a Mooikloof Equestrian Centre
(2011) 32 ILJ 1637 (LC).............................................................................................................101
Amalgamated Beverage Industries (Pty) Ltd v Jonker (1993) 14 ILJ 1232 (LAC) .......................337
Apollo Tyres SA (Pty) Ltd v CCMA & Others [2013] 5 BLLR 434 (LAC)............................ 362, 373
April and Gen-Tech Engineering Services CC (2005) 26 ILJ 407 (BCA) .....................................364
Arries v Afric Addressing (Pty) Ltd t/a Afric Mail Advertising [1998] 5 BALR 525 (CCMA) .....360
Asara Wine Estate & Hotel (Pty) Ltd v Van Rooyen & Others (2012) 33 ILJ 363 (LC) ...............337
Assistent-ongevallekommissaris v Ndevu 1980 (1) SA 143 (E) ..................................... 168, 169, 170
Atkins v Datacentrix (Pty) Ltd (2010) 31 ILJ 1130 (LC)...............................................................104
Auf der Heyde v University of Cape Town [2000] 8 BLLR 877 (LC) ...........................................318
Avril Elizabeth Home for the Mentally Handicapped v CCMA & Others
[2006] 9 BLLR 833 (LC).................................................................................................... 323, 324
AWAWU obo Lotter v Safcol [2002] 5 BALR 470 (CCMA) .................................................. 356, 361
B
Bedderson v Sparrow Schools Education Trust (2010) 31 ILJ 1325 (LC) ....................................345
Biggs v Rand Water (2003) 24 ILJ 1957 (LC) ........................................................................ 102, 319
BMW (South Africa) (Pty) Ltd v Van Der Walt [2000] 2 BLLR 121 (LAC) .................................324
Board of Executors Ltd v McCafferty [1997] 7 BLLR 835 (LAC)...................................................11
Bonthuys and Central District Municipality (2007) 28 ILJ 951 (CCMA)......................................337
Booyens NO v OFS Provincial Administration 1924 OPD 120 .....................................................168
Borchards v Pearce & Sheward t/a Lubrite Distributors 1993 2 LCD 28 (LAC)............................11
Bouwer v SA Breweries [2002] 7 BALR 699 (CCMA) ...................................................................364
Building Bargaining Council (Southern & Eastern Cape) v
Melmons Cabinets CC & Another [2001] 3 BLLR 329 (LC) ......................................................12
C
Callanan v Tee-Kee Borehole Casings (Pty) Ltd & Another 1993 2 LCD 43 (IC)..........................11
Carter & Co (Pty) Ltd v McDonald 1955 (1) SA 202 (A).......................................................... 29, 32
Cash Paymaster Services (Pty) Ltd v Browne [2006] 2 BLLR 131 (LAC) .....................................345
Catholic Bishops Publishing Co & Others v State President & Others
1990 (1) SA 849 (A) ........................................................................................................... 358, 372
CCMA & Others v Law Society of the Northern Provinces (Incorporated as the Law Society of
Transvaal) [2013] 11 BLLR 1057 (SCA) ...................................................................................385
CEPPWAWU v Tekwani Sawmills (Pty) Ltd [2004] 9 BALR 1094 (CCMA) .................................266
CEPPWAWU & Another v Glass & Aluminium 2000 CC [2002] 5 BLLR 399 (LAC) .......... 319, 337
437
438 A Practical Guide to Labour Law

Page
CEPPWAWU obo Mahlabane v Sasol Synfuel [2003] 9 BALR 1022 (CCMA) ..............................360
Chaba v Iselwa Investment CC [2004] 12 BALR 1534 (CCMA) ...................................................363
Chamber of Mines of SA v National Union of Mineworkers (1986) 7 ILJ 304 (W) ..................... 289
Chamber of Mines of SA v National Union of Mineworkers (1987) 8 ILJ 68 (A) ........................ 289
Chemical Workers’ Industrial Union v BP South Africa (1991) 12 ILJ 599 (IC) ......................... 290
Chinese Association of South Africa & Others v The Minister of Labour & Others
case no. 59251/2007 ....................................................................................................................91
Chirach Tyre Company (Pty) Ltd t/a Falcon Tyre Centre v
Minister of Trade and Industry & Another 1997 (3) BCLR 319 (T)) ........................................88
City Council of Pretoria v Walker 1998 (3) BCLR 257 (CC) ..........................................................89
City of Cape Town v SALGBC & Others [2011] 5 BLLR 504 (LC) .............................................. 324
City of Cape Town v SAMWU obo Jacobs [2009] 9 BLLR 882 (LAC)..........................................359
CMS Support Services v Briggs [1997] 5 BLLR 533 (LAC) ............................................................11
Coetzer & Others v Minister of Safety & Security & Another (2003) 24 ILJ 163 (LC)................. 103
Coin Security v Vukani Guards (1989) 10 ILJ 239 (C) ....................................................................32
Commissioner, Ex parte: In re Manthe 1979 (4) SA 812 (E) .................................................. 168, 169
Confederation of SA Workers Unions v NEDLAC & Others (2011) 32 ILJ 1831 (SCA) ............. 224
Continuous Oxygen Suppliers (Pty) Ltd t/a Vital Aire v Meintjes & Another
(2012) 33 ILJ 629 (LC).................................................................................................................34
County Fair v CCMA & Others [1998] 6 BLLR 577 (LC) .............................................................363
County Fair Foods (Pty) Ltd v CCMA & Others [1999] 11 BLLR 1117 (LAC) ............................ 324
CWIU v Millner’s Dental Suppliers (Pty) Ltd (1997) 18 ILJ (CCMA) ..........................................253
CWIU obo Sityana & Mane v Valpa Easigas [2000] 1 BALR 23 (CCMA) ..................................... 360
CWU & Another v Mobile Telephone Networks (Pty) Ltd [2003] 8 BLLR 741 (LC) ................. 367

D
De Beer v SA Export Connection CC t/a Global Paws [2008] 1 BLLR 36 (LC) ..........................344
De Beer v Thomson 1918 TPD 70 .................................................................................................169
De Lange v ABSA Makelaars (Edms) Bpk (2010) 31 ILJ 885 (SCA) ..............................................12
Denel (Pty) Ltd v Gerber [2005] 9 BLLR 849 (LAC) .....................................................................11
Department of Correctional Services & Another v
Police & Prisons Civil Rights Union & Others (2011) 32 ILJ 2629 (LAC) ................................102
Department of Justice v CCMA & Others [2004] 4 BLLR 297 (LAC) ..........................................359
Dierks v UNISA [1999] 4 BLLR 304 (LC) .....................................................................................318
Dince & Others v Department of Education, North West Province & Others
[2010] 6 BLLR 631 (LC)............................................................................................................ 363
Discovery Health Ltd v CCMA & Others
[2008] 7 BLLR 633 (LC), (2008) 29 ILJ 1480 (LC) ........................................................ 12, 14, 34
Dube v Otis Elevators [2005] 7 BALR 695 (MEIBC) ....................................................................361
Dunn v Minister of Defence & Others (2005) 26 ILJ 2115 (T).....................................................428

E
Ekurhuleni Metropolitan Municipality Germiston and Van Rooyen
(2002) 23 ILJ 1104 (ARB) ..............................................................................................................8
Energy Measurements (Pty) Ltd v First National Bank of South Africa Ltd
[2000] 2 All SA 396 (W) ......................................................................................................... 29, 33
Eskom v Marshall & Others [2003] 1 BLLR 12 (LC) ....................................................................361
Eskom v NUM [2003] 6 BALR 708 (CCMA) .................................................................................356
Ess Kay Electronics (Pty) Ltd & Another v First National Bank of Southern Africa Ltd
[2001] 1 All SA 315 (A).......................................................................................................... 29, 33
Esterhuizen v Jet Demolition (2011) 32 ILJ 734 (CCMA) ............................................................363
Evans v Japanese School of Johannesburg (2006) 27 ILJ 2607 (LC) ............................................345

F
F v Minister of Safety and Security [2012] 3 BLLR 244 (CC) ................................................... 28, 34
FAWU v Kelvin Grove Club [2000] 9 BALR 999 (CCMA) ............................................................373
Table of cases 439

Page
FAWU & Another v The Cold Chain [2007] 7 BLLR 638 (LC) ................................................... 345
FAWU & Others v Pets Products (Pty) Ltd (2000) 9 LC 6.12.3 ....................................................292
Feldman v Mall 1945 AD 743 ..................................................................................................... 28, 32
FFATU obo Prinsloo & Others v Johnston [1999] 8 BALR 909 (CCMA) ....................................373
Fidelity Guards Holdings (Pty) Ltd v Pearmain [1998] 3 BLLR 335 (SE) .....................................30
Fisher v Clinic Holdings Ltd [1995] 8 BLLR 27 (IC)......................................................................30
Food & Allied Workers Union & Others v Rainbow Chicken Farmers
(2000) 21 ILJ 615 (LC)...............................................................................................................103
Food and Beverage Workers’ Union v Hercules Cold Storage (1989) 10 ILJ 457 (IC) ...............292
Food and Beverage Workers’ Union v Hercules Cold Storage (1990) 11 ILJ 47 (LAC) ..............292
Free State Consolidated Gold Mines v National Union of Mineworkers
(1987) 8 ILJ 606 (O) ..................................................................................................................289

G
G4S Security Services v NASGAWU (DA 3/08, 26 November 2009) ............................................362
Gaylard v Telkom SA Ltd [1998] 9 BLLR 942 (LC).............................................................. 361, 373
General Tyre & Rubber Co (SA) Ltd v Kleynhans & Another 1963 (1) SA 533 (N) ............... 28, 32
George v Liberty Life Association of Africa Ltd [1996] 8 BLLR 985 (IC) ....................................100
Glass v University of Zululand [2006] 4 BALR 388 (CCMA) ........................................................360
Gordon v St John’s Ambulance Foundation
[1997] 3 BLLR 313 (CCMA), [1997] 6 BLLR 785 (CCMA) .......................................................11
Govender v SA Stevedores Service Co Ltd (1981) 2 ILJ 27 (IC) ........................................... 168, 169
Greeff and Giagas v Nelson Mandela Bay Municipality
(SALGBC, ECD051116, 22 June 2012) ......................................................................................361
Greyvenstein v Kommissaris van die SA Inkomste Diens (2005) 26 ILJ 1395 (T) ........................ 427
Grieve v Denel (Pty) Ltd [2003] 4 BLLR 366 (LC).......................................................................368
Groenewald v Cradock Munisipaliteit en ’n Ander 1980 (4) SA 217 (E) .......................................16
Gumede en Andere v SA Eagle Versekeringsmaatskappy Bpk 1989 (3) SA 741 (T) ........... 168, 169
Gurarnah v South African Weather Services [2004] 4 BALR 454 (CCMA) ......................... 358, 372

H
Halgreen v Natal Building Society (1986) 7 ILJ 769 (IC) .............................................................337
Harksen v Lane NO & Others 1997 (11) BCLR 1489 (CC)............................................................89
Harris v Volkswagen of South Africa (Pty) Ltd [2000] 10 BALR 1140 (CCMA) .................. 356, 373
Health & Hygiene Services v Seedat NO & Others [1999] 11 BLLR 1153 (LC) ..........................266
Hendrickz v Cutting 1937 CPD 417 ........................................................................................... 28, 32
Hlope & Others v Minister of Safety & Security & Others (2006) 27 ILJ 1003 (LC)............ 427, 428
Hoelson v Vista University [1998] 5 BALR 554 (CCMA) ..............................................................373
Hoffmann v South African Airways 2001 (1) SA 1 (CC), (2000) 21 ILJ 2357 (CC) ............... 89, 101
HOSPERSA & Another v Northern Cape Provincial Administration
(2000) 21 ILJ 1066 (LAC) .................................................................................................. 356, 361
HOSPERSA obo Van Wyk v SA National Parks (Golden Gate) [2009] 2 BALR 169 (CCMA) .... 356
Howell v International Bank of Johannesburg Ltd (1990) 11 ILJ 791 (IC) ................................. 337

I
IMATU & Others v Rustenburg Transitional Council [1999] 12 BLLR 1299 (LC) .....................345
IMATU obo Baker v East London Transitional Local Council [2000] 3 BALR 280 (CCMA) ..... 373
IMATU obo Coetzer v Stad Tygerberg (1999) 20 ILJ 971 (CCMA)...................................... 358, 372
IMATU obo Verster v Umhlathuze Municipality [2011] 9 BLLR 882 (LC) ......................... 362, 373
Ingwane v Med-Afrique [1997] 2 BLLR 210 (CCMA) ....................................................................15
Innes v Johannesburg Municipality 1911 TPD 12 ................................................................. 168, 170
440 A Practical Guide to Labour Law

Page

J
J & J Freeze Trust v Statutory Council for the Squid & Related Fisheries of SA & Others
(2011) 32 ILJ 2966 (LC)......................................................................................................... 12, 33
Jafta v Ezemvelo KZN Wildlife (2009) 30 ILJ 131 (LC)...................................................................15
Jele v Premier of the Province of KwaZulu-Natal & Others [2003] 7 BLLR 723 (LC) .................359
Johannesburg City Council v Marine & Trade Insurance Co 1970 (1) SA 181 (W) ............ 168, 170
Jooste v Transnet Ltd t/a South African Airways [1995] 5 BLLR 1 (LAC) ..................................320
Joy Mining Machinery (A division of Harnischfeger (SA) (Pty) Ltd) v
NUMSA & Others (2002) 11 LC 6.12.1 .....................................................................................101

K
K v Minister of Safety and Security [2005] 8 BLLR 749 (CC)................................................... 28, 33
Knox D’Arcy Ltd v Shaw 1996 (2) SA 651 (W)................................................................................30
Koka v Director-General: Provincial Administration North West Government
[1997] 7 BLLR 874 (LC)............................................................................................................ 362
Komane v Fedsure Life [1998] 2 BLLR 215 (CCMA) ...................................................................324
Kompecha v Bite My Sausage CC (1988) 9 ILJ 1077 (IC) .............................................................324
Kotze & Genis (Edms) Bpk v Potgieter 1995 (3) SA 783 (C) .........................................................30
Kruger v SA Police Service (2003) 24 ILJ 477 (BCA) ....................................................................371
Kunene & Others v Dunlop Belting Products (Pty) Ltd (2011) 20 CCMA 9.4.2 .........................293
“Kylie” v CCMA & Others [2008] 9 BLLR 870 (LC) ................................................................. 13, 34
“Kylie” v CCMA & Others [2010] 7 BLLR 705 (LAC)............................................................... 14, 34
“Kylie” v CCMA & Others (2010) 31 ILJ 1600 (LAC)......................................................................12
“Kylie” v Van Zyl t/a Brigittes [2007] 4 BALR 338 (CCMA) ..................................................... 13, 34

L
Labuschagne v Techno Plastics (Pty) Ltd [2005] 6 BALR 610 (MEIBC) ............................. 356, 361
LAD Brokers v Mandla [2001] 9 BLLR 993 (LAC) .........................................................................11
Langa & Others v Active Packaging (Pty) Ltd [2001] 1 BLLR 37 (LAC) .....................................267
Langemaat v Minister of Safety and Security & Others 1998 (4) BCLR 444 (T) ................... 89, 100
Larbi-Odam & Others v Member of the Executive Council for Education & Another
1997 (12) BCLR 1655 (CC) .........................................................................................................89
Law Society of the Northern Provinces, The v Minister of Labour & Others
(NGHC 61197/11, 11 October 2012)........................................................................................385
Lebese v SAPS [2003] 7 BALR 755 (SSSBC) .................................................................................420
Leon-Cachet v De Jager 1994 3 LCD 47 (IC) ..................................................................................11
Leonard Dingler Employee Representative Council & Others v
Leonard Dingler (Pty) Ltd & Others [1997] 11 BLLR 1438 (LC) .............................................99
Liberty Life Association of Africa Ltd v Niselow [1996] 7 BLLR 825 (LAC) ..................................11
Limekaya v Department of Education [2004] 5 BALR 586 (GPSSBC) ................................ 358, 372
Lotter v SA Police Service (2005) 26 ILJ 578 (BCA) ............................................................. 358, 371
Louw v SA Rail Commuter Corporation Ltd & Another (2005) 26 ILJ 1960 (W)........................ 428
Lukie v Rural Alliance CC t/a Rural Development Specialist [2004] 8 BLLR 769 (LC) ..... 140, 319

M
Mabilo v Mpumalanga Provincial Government & Others [1999] 8 BLLR 821 (LC) ...................363
Mabinana & Others v Baldwins Steel [1999] 5 BLLR 453 (LAC) .................................................324
McInnes v Technikon Natal [2000] 6 BLLR 701 (LC) ................................................................. 318
McKenzie v SABC [1996] 5 BLLR 635 (IC), [1999] 1 BLLR 1 (LAC) ...........................................12
Magna Alloys and Research (SA) (Pty) Ltd v Ellis 1984 (4) SA 874 (A) ........................................30
Mahlamu v CCMA & Others [2011] 4 BLLR 381 (LC).................................................................234
Mahlangu v Minister of Sport and Recreation [2010] JOL 25011 (LC).......................................420
Maidi v MEC for Department of Education [2003] 8 BLLR 761 (LC) .........................................420
Malandho v SABC [1997] 5 BLLR 555 (LC) .................................................................................318
Table of cases 441

Page
Manana v Department of Labour [2010] 6 BLLR 664 (LC).........................................................357
Mankahla & Others v University of Transkei [2004] 11 BALR 1340 (P)......................................356
Marneweck v SEESA Ltd [2009] 7 BLLR 669 (LC).......................................................................318
Marsland v New Way Motor & Diesel Engineering (2009) 30 ILJ 169 (LC)......................... 166, 171
Maseko v Entitlement Experts [1997] 3 BLLR 317 (CCMA) ........................................................355
Mashava v Cuzen & Woods Attorneys [2000] 6 BLLR 691 (LC) .......................................... 140, 319
Mashegoane & Another v University of the North [1998] 1 BLLR 73 (LC) ................................357
MEC, Public Works, Northern Province v CCMA & Others [2003] 10 BLLR 1027 (LC) ............420
Medical Association of SA v Minister of Health & Another [1997] 5 BLLR 562 (LC) ..................11
Metcash Trading Ltd t/a Metro Cash & Carry v Fobb & Others [1998] 11 BLLR 1136 (LC) ..... 324
Metro Rail (Wits) v SAFWU [1998] 1 BALR 88 (IMSSA) .............................................................360
Minister of Finance & Another v Van Heerden 2004 (6) SA 121 (CC)..........................................88
Minister of Justice v Khoza 1966 (1) SA 410 (A)............................................................. 28, 168, 169
Minister of Safety and Security v Jordaan t/a Andre Jordaan Transport
2000 (4) SA 21 (SCA)....................................................................................................... 28, 32, 33
MITUSA v Portnet [2000] 9 BALR 1037 (CCMA) ........................................................................362
MITUSA & Others v Transnet Ltd & Others [2002] 11 BLLR 1023 (LAC) ......................... 357, 362
Miyambo v CCMA & Others [2010] 10 BLLR 1017 (LAC)...........................................................324
Mkize v Martens 1914 AD 382.................................................................................................... 28, 32
Mncube v Transnet (2009) 30 ILJ 698 (CCMA) ..............................................................................15
Mnguni v Gumbi [2004] 6 BLLR 558 (LC)........................................................................... 140, 319
Modise & Others v Steve’s Spar Blackheath [2002] 5 BLLR 496 (LAC) .............................. 287, 293
Moghamat v Centre Guards CC [2004] 1 All SA 221 (C) ......................................................... 28, 32
Mogorosi and SA Reserve Bank (2008) 29 ILJ 439 (CCMA) ........................................................319
Monyakeni v SA Police Service & Others (2008) 29 ILJ 3111 (BCA) ........................................... 358
Moses v Magnum Security Services [2002] 11 BALR 1166 (CCMA) ............................................356
Motala & Another v University of Natal 1995 (3) BCLR 374 (D) ...................................................88
Mthembu & Another v SA Police Service & Another (2010) 31 ILJ 1014 (BCA)......................... 357
Mthembu & Others v Claude Neon Lights (1992) 13 ILJ 422 (IC) ................................................91
Mtshali & Others v Nestlé SA [2002] 6 BALR 632 (CCMA) .........................................................364
Murray and Independent Newspapers (2003) 24 ILJ 1420 (CCMA)............................................360
Murray v Minister of Defence (2008) 29 ILJ 1369 (SCA)...................................................... 319, 337
Myers v Sieradzki 1910 TPD 869 ......................................................................................................17
Mzimni & Another v Municipality of Umtata [1998] 7 BLLR 780 (Tk) .......................................356

N
Naidoo v Rudolph Chemicals (Pty) Ltd [2008] 6 BALR 497 (NBCCI) ........................................363
National Bargaining Council for the Road Freight Industry, The & Another v
Carlbank Mining Contract (Pty) Ltd & Another
(unreported case, no. JA 52/10, 20 March 2012 (LAC))..............................................................8
National Coalition for Gay and Lesbian Equality & Others v
Minister of Home Affairs & Others 2000 (2) SA 1 (CC) .............................................................89
National Entitled Workers Union v CCMA & Others (2003) 24 ILJ 2335 (LC) ........................... 355
National Union of Textile Workers & Others v Stag Packings (Pty) Ltd & Another
1982 (4) SA 151 (T) .....................................................................................................................20
Nawa & Another v Department of Trade & Industry [1998] 7 BLLR 701 (LC) ..........................355
NCAWU obo Tobias & Others v Pick ’n Pay Family Supermarket
[2003] 12 BALR 1413 (CCMA)..................................................................................................364
Ndebele v Foot Warehouse (Pty) Ltd t/a Shoe Warehouse (1992) 13 ILJ 1247 (IC) .................. 337
Ndikumdavyi v Valkenberg Hospital & Others [2012] 8 BLLR 795 (LC) ................................ 14, 34
Ndlovu v Pather (2006) 27 ILJ 2671 (LC) .....................................................................................319
NEHAWU v Government of the Eastern Cape [1999] 5 BALR 550 (CCMA) .............................. 373
NEHAWU obo Makhethu v Robben Island Museum (2008) 29 ILJ 2318 (CCMA) ..................... 363
NEHAWU obo Thomas v Department of Justice (2001) 22 ILJ 306 (BCA) .................................371
Netherburn Engineering CC t/a Netherburn Ceramics v Mudau & Others
[2003] 10 BLLR 1034 (LC) ........................................................................................................ 385
NEWU v CCMA & Others [2004] 2 BLLR 165 (LC).....................................................................355
442 A Practical Guide to Labour Law

Page
Ngwenya v Premier of KwaZulu-Natal [2001] 8 BLLR 924 (LC) ..................................................363
Nicosia v Workmen’s Compensation Commissioner 1954 (3) SA 897 (T) .................. 168, 169, 170
Nieuwoudt v All-Pak (2009) 30 ILJ 2451 (LC)...............................................................................319
Niselow v Liberty Life Association of Africa Ltd (1998) 19 ILJ 752 (SCA) .....................................11
Northern Cape Provincial Administration v Hambidge NO & Others
[1999] 7 BLLR 698 (LC)............................................................................................ 356, 361, 373
NPSU & Others v The National Negotiating Forum & Others [1999] 4 BLLR 361 (LC) ...........267
Ntlabezo & Others v MEC for Education, Eastern Cape & Others [2002] 3 BLLR 274 (Tk)...... 356
Ntsabo v Real Security CC [2004] 1 BLLR 58 (LC) .............................................................. 319, 337
NULAW v Barnard NO & Another [2001] 9 BLLR 1002 (LAC) ..................................................318
NUM v Namakwa Sands – A division of Anglo Operations Ltd [2008] 7 BLLR 675 (LC)........... 292
NUM & Others v Billard Contractors CC & Another (2006) 27 ILJ 1686 (LC) ................... 287, 293
NUMSA v Feltex Foam [1997] 6 BLLR 798 (CCMA) ...................................................................253
NUMSA obo Khanye & Another v Havco Manufacturing (Pty) Ltd
[2003] 12 BALR 1349 (MEIBC).................................................................................................364
NUMSA obo members v Behr Climate & Control [2004] 3 BALR 364 (CCMA)......................... 267
NUMSA obo Tshikana v Delta Motor Corporation [2003] 11 BALR 1302 (CCMA) ...................363
NUTESA v Border Technikon [2005] 12 BALR 1302 (CCMA) ...................................................357
NUTESA v Technikon Northern Transvaal [1997] 4 BLLR 467 (CCMA) ................................... 101
Nxele v Chief Deputy Commissioner, Corporate Services,
Department of Correctional Services & Others [2008] 12 BLLR 1179 (LAC ..........................360
Nyalunga v PP Webb Construction (1990) 11 ILJ 819 (IC) ..........................................................337
O
OCGAWU v Total SA (Pty) Ltd [1999] 6 BALR 678 (CCMA) ......................................................253
OCGAWU v Woolworths (Pty) Ltd [1999] 7 BALR 813 (CCMA) ................................................ 253
OCGAWU obo Mapolie v Metlite Alloys [2002] 10 BALR 1058 (CCMA) ....................................364
Odayar v Compensation Commissioner 2006 (6) SA 202 (N).............................................. 166, 171
OK Bazaars (1929) Ltd v SACCAWU (1993) 14 ILJ 362 (LAC)....................................................290
Olkers v Monviso Knitwear (Pty) Ltd (1988) 9 ILJ 875 (IC) ................................................. 324, 337
Opperman v Research Surveys (Pty) Ltd [1997] 6 BLLR 807 (CCMA) .........................................11
Ouwehand v Hout Bay Fishing Industries [2004] 8 BLLR 815 (LC)............................................318
P
Pam Golding Properties (Pty) Ltd v Erasmus & Others (2010) 31 ILJ 1460 (LC) .........................12
Pedzinski v Andisa Securities (Pty) Ltd (Formerly SCMB Securities (Pty) Ltd)
[2006] 2 BLLR 184 (LC)............................................................................................................ 368
Phenithi v Minister of Education [2006] 9 BLLR 821 (SCA) .......................................................420
Pienaar v Family Funeral Services (2011) 32 ILJ 2048 (CCMA) ...................................................337
Postal & Telekom Association of SA v SA Post Office Ltd [1998] 8 BALR 1012 (CCMA) ........... 373
Premier of Gauteng & Another v Ramabulana NO & Others [2008] 4 BLLR 299 (LAC) ..........383
Pretoria Society for the Care of the Retarded v Loots [1997] 6 BLLR 721 (LAC) .............. 319, 337
Protekon (Pty) Ltd v CCMA & Others [2005] 7 BLLR 703 (LC) .................................................362
PSA obo Badenhorst v Department of Justice (1999) 20 ILJ 253 (CCMA) .................. 357, 359, 371
PSA obo Dalton & Another v Department of Public Works
[1998] 9 BALR 1177 (CCMA)............................................................................................ 358, 371
PSA obo Haschke v MEC for Agriculture & Others (2004) 25 ILJ 1750 (LC) .............................427
PSA obo Petzer v Department of Home Affairs (1998) 19 ILJ 412 (CCMA) ................................ 358
PSA obo Van der Walt v Minister of Public Enterprise [2010] 1 BLLR 78 (LC)..........................420
PTWU obo members v Sahar Security Services [2004] 3 BALR 373 (CCMA) .............................266
Public Servants’ Association of South Africa & Another v Minister of Justice & Others
1997 (5) BCLR 577 (T) ................................................................................................................90
Pyper v Manchester Liners Ltd 1916 2 KB 691..............................................................................168

Q
Quince Products CC v Pillay [1997] 12 BLLR 1547 (LAC) ..........................................................337
Table of cases 443

Page
R
R v Feun 1954 (1) SA 58 (T)............................................................................................................10
Radebe & Another v Mashoff, Premier of the Free State Province & Others
[2009] 6 BLLR 564 (LC)............................................................................................................ 367
Rafferty v Department of the Premier [1998] 8 BALR 1017 (CCMA) ................................. 358, 371
Rainbow Farms (Pty) Ltd v CCMA & Others
[2011] 5 BLLR 504 (LC); [2011] 5 BLLR 451 (LAC) ...............................................................324
Ramoroka v Robben Island Museum (2012) 33 ILJ 500 (CCMA) ................................ 358, 372, 375
Randall v Progress Knitting Textiles Ltd (1992) 13 ILJ 200 (IC)..................................................319
Rossouw v Central News Agency 1948 (2) SA 267 (W) ...................................................................29
Roux v Evkom [2002] 2 All SA 462 (T) ..................................................................................... 28, 33
Rubenstein v Price’s Daelite (Pty) Ltd [2002] 5 BLLR 472 (LC) .................................................345
Rubin Sportswear v SACTWU & Others [2004] 10 BLLR 986 (LAC) .......................................... 345
Rustenburg Platinum Mines Ltd (Rustenburg Section) v CCMA & Others
[2006] 11 BLLR 1 (SCA)............................................................................................................ 428
Rustenburg Platinum Mines Ltd (Rustenburg Section) v NUM & Others
[2001] 3 BLLR 305 (LAC) ......................................................................................................... 324

S
SA Metal & Machinery Co (Pty) Ltd v Gamaroff [2010] 2 BLLR 136 (LAC) ...............................345
SA Police Service v Safety & Security Sectoral Bargaining Council & Others
(2012) 33 ILJ 453 (LC)...............................................................................................................337
SA Post Office Ltd v CCMA & Others [2012] 11 BLLR 1183 (LC) .............................. 356, 362, 373
SA Post Office Ltd v Mampeule [2010] 10 BLLR 1052 (LAC) .....................................................234
SA Rugby Players’ Association (SARPA) & Others v SA Rugby (Pty) Ltd & Others;
SA Rugby Pty Ltd v SARPU & Another [2008] 9 BLLR 845 (LAC) ..........................................318
SA Transport and Allied Workers Union v Garvis & Others [2011] 4 All SA 475 (SCA).............283
SABC v McKenzie [1999] 1 BLLR 1 (LAC) .....................................................................................11
SACCAWU v Cash Crusaders (2010) 19 CCMA 4.7.3 ...................................................................269
SACCAWU v Elite Industrial Cleaning (Pty) Ltd (CCMA 1997) ..................................................261
SACCAWU v Garden Route Chalets (Pty) Ltd [1997] 3 BLLR 325 (CCMA)...............................361
SACCAWU v The Hub [1998] 12 BALR 1590 (CCMA)................................................................253
SACCAWU v Metlife (Pty) Ltd (1997) 18 ILJ (CCMA) .................................................................253
SACCAWU v OK Bazaars 1995 (3) SA 622 (A) .............................................................................262
SACCAWU v Speciality Stores Ltd [1998] 4 BLLR 352 (LAC) .....................................................266
SACCAWU & Another v The Clicks Organisation (Pty) Ltd [1997] 2 BLLR 164 (IC) ................324
SACSAAWU obo Nguyuza v Premier Loss Control CC [1998] 9 BALR 1190 (CCMA) ...............358
SACTWU v Sheraton Textiles (Pty) Ltd [1997] 5 BLLR 662 (CCMA)......................................... 253
SACTWU v WM Eachus and Co (CCMA 1997).............................................................................253
SACWU v Longmile/Unitred (1999) 20 ILJ 244 (CCMA)............................................................361
SAEWA obo Members v Aberdare Cables [2007] 2 BALR 106 (MEIBC).....................................363
St Clair v CFS Aviation CC t/a Corporate Flight Services (2010) 31 ILJ 486 (CCMA) ..................12
SALSTAFF v Spoornet [2002] 10 BALR 1025 (AMSSA) ...............................................................361
SALSTAFF obo Vrey v Datavia [1999] 6 BALR 757 (IMSSA) .......................................................360
SAMWU v City of Cape Town & Others (2010) 31 ILJ 724 (LC)..................................................376
SAMWU obo Damon v Cape Metropolitan Council (1999) 20 ILJ 714 (CCMA)......... 357, 358, 371
Sanlam Life Insurance Ltd v CCMA & Others (2009) 30 ILJ 2903 (LAC) .....................................12
SAPO Ltd v Jansen van Vuuren NO & Others [2008] 8 BLLR 798 (LC) .....................................363
Sappi Forests (Pty) Ltd v CCMA & Others [2009] 3 BLLR 254 (LC)...........................................363
SAPS v Solidarity obo Barnard [2014] ZACC 23 (CC)..................................................................103
SAPS v SSSBC & Others [2010] 8 BLLR 892 (LC)........................................................................358
SAPSAWU obo Jika v Department of Justice [2000] 3 BALR 309 (CCMA) .................................373
SAPU & Another v National Commissioner, SAPS & Another (2005) 26 ILJ 2403 (LC) ............ 427
SAR & H v SA Stevedores Service Co Ltd 1983 (1) SA 1066 (A) .......................................... 168, 169
444 A Practical Guide to Labour Law

Page
SARHWU v Transtel [1999] 2 BALR 224 (IMSSA) .......................................................................362
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) ..................292
SATDU v Marine Taxi’s CC [1997] 6 BLLR 823 (CCMA) ..............................................................11
Sauer NO v Duursema 1951 (2) SA 222 (D) ............................................................................. 28, 32
SAWU obo Green v Buycom Group [1999] 10 BALR 1213 (CCMA) ...........................................373
Schoeman v Samsung Electronics SA (Pty) Ltd [1997] 10 BLLR 1364 (LC) ................. 70, 361, 373
Sekwati v Masiya & Others (2011) 32 ILJ 2219 (LC) .....................................................................337
Sidumo & Another v Rustenburg Platinum Mines Ltd & Others
(2007) 28 ILJ 2405 (CC) .................................................................................................... 345, 428
Simela & Others v MEC for Education, Province of the Eastern Cape & Another
[2001] 9 BLLR 1085 (LC) .......................................................................................................... 356
Sithole v Nogwaza NO & Others [1999] 12 BLLR 1348 (LC), (1999) 20 ILJ 2710 (LC) ..... 361, 373
SMCWU & Another v Party Design CC (Doll’s Dairy) [2001] 6 BLLR 667 (LC)......................... 324
Smith v Cycle and Motor Trade Co 1922 TPD 324 .........................................................................16
Solidarity & Others v Eskom Holdings Ltd (2012) 33 ILJ 464 (LC) .............................................269
Solidarity obo Barnard v SA Police Service (2010) 31 ILJ 742 (LC) .............................................103
Solidarity obo Du Plessis v ABB Services [2005] 8 BALR 820 (MEIBC) .......................................361
Solidarity obo Kern v Mudau & Others [2007] 6 BLLR 566 (LC)................................................360
Solidarity obo McCabe v SA Institute for Medical Research [2003] 9 BLLR 927 (LC) ....... 140, 319
Sonka v Johnny Bags (Pty) Ltd [2001] 10 BALR 1116 (CCMA) ...................................................356
South African Airways (Pty) Ltd v GJJVV [2014] 8 BLLR 748 (LAC)................................... 362, 373
South African Breweries Ltd (Beer Division) v Woolfrey & Others
[1999] 5 BLLR 525 (LC)............................................................................................................ 363
State Information Technology Agency (Pty) Ltd v CCMA & Others
(2008) 29 ILJ 2234 (LAC) ...................................................................................................... 11, 12
Strategic Liquor Services v Mvumbi NO & Others
(case no. CCT33/09, [2009] ZACC 17 (CC) ............................................................. 319, 320, 337
Swanepoel v AECI Ltd (1984) 5 ILJ 41 (IC) ..................................................................................324
Swart v Greenmachine Horticultural Services (A Division of Sterikleen (Pty) Ltd)
(2010) 31 ILJ 180 (LC)...............................................................................................................140
Swissport (SA) (Pty) Ltd v SA Transport & Allied Workers Union & Others
(2011) 32 ILJ 1256 (LC).............................................................................................................292

T
TGWU obo Malahla v Red Alert Security [2000] 10 BALR 1165 (CCMA) ..................................356
Theewaterskloof Municipality v SA Local Government Bargaining Council
(Western Cape Division) & Others (2010) 31 ILJ 2475 (LC) ...................................................345
Theron v Minister of Correctional Services & Another (2008) 29 ILJ 1275 (LC) ........................ 376
Thomas (Rockliffe) v Mincom (Pty) Ltd [2007] 10 BLLR 993 (LC) ........................................... 345
Transtel Johannesburg v TWU [1998] 8 BALR 1127 (IMSSA).....................................................360
Tsaperas & Another v Clayville Cold Storage (Pty) Ltd [2002] 11 BALR 1225 (CCMA).............363
Tshishonga v Minister of Justice and Constitutional Development & Another
[2007] 4 BLLR 327 (LC)............................................................................................................ 368
Tsweleng v Conron Spring Manufacturing & Engineering [2005] 2 BALR 159 (MEIBC).......... 360
TWU obo Van Zyl v Metrorail [1999] 7 BALR 888 (IMSSA) ........................................................360

U
University of Cape Town v Auf der Heyde [2001] 12 BLLR 1316 (LAC) ....................................318
University of Pretoria v CCMA & Others
[2012] 2 BLLR 164 (LAC), (2012) 33 ILJ 183 (LAC) ....................................................... 318, 344
UPUSA v Komming Knitting [1997] 4 BLLR 508 (CCMA) ..........................................................253
Urquhart v Compensation Commissioner (2006) 27 ILJ 96 (E) .......................................... 166, 171
UTATU obo Fourie & Another v Transnet Ltd (2002) 23 ILJ 1117 (ARB) .................................372
Table of cases 445

Page
V
Vaal Toyota (Nigel) v Motor Industry Bargaining Council & Others
[2002] 10 BLLR 936 (LAC) .......................................................................................................324
Value Logistics Ltd v Basson & Others (2011) 32 ILJ 2552 (LC)..................................................337
Van Amstel v Eskom [2002] 9 BALR 995 (CCMA) .......................................................................361
Van der Riet v Leisurenet Ltd t/a Health and Racquet Club
[1998] 5 BLLR 471 (LAC) ......................................................................................... 319, 337, 360
Van Niekerk v Medicross Health Care Group (Pty) Ltd [1998] 8 BALR 1038 (CCMA) ..... 360, 372
Van Rensburg v Northern Cape Provincial Administration
(1997) 18 ILJ 1421 (CCMA)............................................................................................... 358, 371
Van Wyk v Albany Bakeries Ltd & Others [2003] 12 BLLR 1274 (LC) ........................................360
Venter v South African Tourism Board [1999] 10 BLLR 1111 (LC)............................................363
Victor v Finro Cash & Carry (2000) 21 ILJ 2489 (LC) .......................................................... 140, 319
Visser v Vodacom (Pty) Ltd [2002] 10 BALR 1031 (AMSSA).......................................................360

W
Wallace v Du Toit (2006) 27 ILJ 1754 (LC)........................................................................... 100, 140
Waltons Stationery Co (Edms) Bpk v Fourie 1994 (4) SA 507 (O) ................................................30
Ward v Workmen’s Compensation Commissioner 1962 (1) SA 728 (T) ............................. 168, 169
Wespro (Cape Town) v Stephenson [1995] 4 BLLR 86 (IC) .........................................................30
Western Cape Workers Association v Minister of Labour (2005) 26 ILJ 2221 (LC) .................... 427
Whitehead v Woolworths (Pty) Ltd (1999) 20 ILJ 2133 (LC) .......................................................100
WL Ochse Webb & Pretorius (Pty) Ltd v Vermeulen [1997] 2 BLLR 124 (LAC) ............... 319, 337
Woolworths (Pty) Ltd v Beverley Whitehead [2000] 6 BLLR 640 (LAC).....................................100
Workforce Group (Pty) Ltd v CCMA & Others (2012) 33 ILJ 738 (LC) ........................................12
Workmen’s Compensation Commissioner v FA Stewart (Pty) Ltd (1991) 12 ILJ 1015 (Z) ......... 168

Z
Zondo v Group 4 Security Services [2009] 12 BALR 1329 (CCMA).............................................356