ABR 410 – THEME 6
UNFAIR LABOUR PRACTICES
1956: Act broad/catch all concept
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written in broad terms
committed by both employers and employees
included individual and collective labour disputes
dealt with the notion of “fairness” as opposed to lawfulness
LRA: 1995 - codified ULP
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aspects such as dismissals dealt with separately
only committed by employers
exhaustive list
Definition of ULP Section 186(2)
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Must fully understand the various practices that fall within the definition of a ULP
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The definition of ULP requires that:
1. There is a labour practice that arises between an employer and employee
2. That the conduct (act/omission) is unfair
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Definition of employee does not extend to applicants for employment in this definition and does
not extend to independent contractors
The list of unfair labour practices is a closed list – numerus clausus
Two important aspects that appear from the definition of an unfair labour practice ito LRA:
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Unfair labour practice can only be perpetrated by an employer not an employee
It is not an open-ended concept, there are specific practices constituting ULP ito LRA
o If employee cannot locate their claim within one of these stipulated practices, employee
will not be able to challenge his or her dissatisfaction as an ULP
Promotion – can be utilised by an employee to challenge unsuccessful promotion
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Prove that employer refused to promote claimant
o When employees have acted in a position but are not substantively appointed to the
post, the dispute may also fall within the scope of section 186(2)(a).
o Failure to appoint a temporary employee to a permanent position may qualify as a
dispute about promotion.
o Where an employer created a reasonable expectation that an employee would be
promoted, and then frustrated that expectation by failing to promote the employee,
there is authority to the effect that the employee concerned may refer a dispute about
an unfair labour practice on the basis of the reasonable expectation.
Prove that refusal to promote was unfair
o The employer must act in good faith, apply its mind to the selection, and supply reasons
for its decision.
o Employees must show that they possess the attributes and skills necessary for the
position and that the person promoted does not possess the same.
o Where the employer is unable to justify its decision, the failure to promote may be
found unfair.
Dlamini case (book sufficient also the summary by Rycroft) sets out principles to be applied by
CCMA/courts
o CCMA should be hesitant to intervene unless gross unreasonableness - the decision to
promote or not falls within management prerogative and the employer’s exercise of its
discretion to promote is only reviewable if it was seriously flawed.
o Employer unable to justify decision failure to promote may be unfair
o CCMA not employment agencies
o Was a better candidate overlooked on discriminatory grounds
o CCMA should not concern itself with the reason rather the procedure
o reasons for the decision to overlook an employee when selecting a candidate for
promotion are relevant only in so far as they shed light on the fairness of the process’
Department of Rural Development and Agrarian Reform v General Public Service Sectoral Bargaining
Council 2020 4 BLLR 353 (LAC)
1. What was the finding of the GPSSBC commissioner?
a.
The arbitrator considered the fact that the candidate who had declined the post did not
satisfy the experience requirement of the position and was of the view that the
employee should have been appointed notwithstanding that he did not meet the
qualification requirement and that the refusal to promote was irrational, capricious and
unfair. The employer was ordered to appoint the employee to the position with
retrospective effect.
2. Did the LAC find that the decision of the commissioner was reasonable?
a. It was held that the employer’s failure to fill the post when a suitable candidate was
available was unreasonable. The employer’s decision not to appoint the employee to
the post was, therefore, irrational, capricious and unfair. The appeal was dismissed with
costs. Thus the LAC found that the decision of the commissioner was reasonable.
3. What was the basis for the LAC’s decision?
a. The LAC held that when considering such disputes the arbitrator should, in general,
show some deference to the decision made by the employer and should exercise
caution when ordering the appointment of an employee into a promotion position
because there is no right to a promotion. However, the arbitrator may interfere in
circumstances where an employer acted capriciously, arbitrarily or in bad faith. In this
case, it seemed that the only reason why the employee was not appointed was because
he was not in possession of a particular qualification. However, the employer had
dispensed with this requirement when the employee was shortlisted for the position
and there was no rational explanation for the introduction of rigidly applying the
requirement to hold a particular degree. Furthermore, the employee had been acting in
the role for several years and had, therefore, already proved his ability and that he was
qualified for the role.
Demotion
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What constitutes demotion?
o moved to lower rank or level
o loss of status
o loss of pay
Must be a sound reason and procedure
Demotion can be imposed as disciplinary penalty
Probation
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Dismissals relating to probation do not fall within ambit of ULP (constitutes an unfair dismissal
scenario) – however unfairness during the probationary period fall within this claim
The Code of Good Practice Dismissal regulates probation
Unfairness during probationary period can be basis for ULP claim
Examples:
o probationary period unreasonable considering nature of job
o probationary period unreasonably extended
o probationary period extended for reasons unrelated to purpose of probation
if you are dismissed while under probation ≠ ULP
Training
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Context in which such claims may arise:
o Employer acts inconsistently or arbitrarily in providing training – trains some and does
not train others with no valid reason.
o A contract of employment
 Where employer does not honour contractual obligation providing for specific
training. Does not send person on training, instead provides no o inferior
training.
o A Collective agreement – provides for specific training to be given to a designated group
of employees within a specific period of time
o Non-compliance with the implementation of Affirmative Action measures From the EEA
which requires designated employers to implement suitable training measures (in line
with AA)
One of the less used ULP
Benefits
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What falls within the ambit of benefits?
o Note the change in approach (narrow to wide)
o Initially a narrow meaning in Schoeman v Samsung Electronics SA (Pty) Ltd (something
extra apart from remuneration)
 A sales executive was not allowed to return to work when she refused to accept
a reduction in the commission she had been earning. The employer allegedly
had good operational reasons for locking her out.
 Issues before the court - whether one employee could be locked out and
whether the commission earned was a benefit
 Held that a benefit is something extra apart from remuneration, therefore an
employee could not institute an ULP claim to contest reduction in her rate of
commission
 Court said no, was a salary issue
o Had to arise from a contract of employment HOSPERSA case
 Used ULP to claim an acting allowance – due to approach in Schoeman, an
acting allowance is a salary/wage issue, not a benefit
 In order to use ULP relating to benefits, the benefit you are claiming must also
be provided for in your contract of employment otherwise cannot use ULP
provisions
 Narrow approach - Court stated that a benefit is something that arises from
contract/leg
 Narrow approach meant limited the protection employees had because
it excluded pension contributions, medical aid, housing allowances – fall
into definition of remuneration.
 Ito Schoeman and HOSPERSA, remuneration and benefit = two different
things. Thus if remuneration = excluded from being a benefit
o
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Therefore – unless benefit which had to be something other than remuneration was
provided for in a contract of employment or collective agreement, an employee could
not institute an ULP claim
o Proticon = wider approach – rejected Schoeman = remuneration as defined in the LRA is
broad enough to encompass many forms of payment that can be described as benefits
o Apollo Tyres wide definition of benefits (endorsed Proticon)
 Current position that is followed
 Distinction drawn between remuneration and benefits was artificial and
unsustainable. The definition of remuneration (ito LRA) wide enough to include
wages, salaries and most if not all extras or benefits
 Commissioner and labour Court held that an early retirement scheme did not
constitute a benefit for the purposes of the definition of unfair labour practice
 Labour Appeal Court took a different view – a benefit in the context of
an unfair labour practice should be interpreted as including any benefit
to which the employee is entitled:
o As a result of a contract of employment
o As a result of judicial creation, or
o In terms of policy or practice subject to the employer’s
discretion
 Thus, rejected aspect in HOSPERSA that benefit must be located in
contract – can use ULP benefits recourse if the thing you are challenging
as a benefit is provided for in the above.
 It would seem that employees who claim that the employer committed
an unfair labour practice by not granting a benefit do not need to prove
a right to the benefit ito a contract or otherwise
o An employer who denies the benefit must show that there was
a valid reason for excluding the employee from the benefit
 In Appolo Tyres, the employer failed to provide a valid reason why the
employee could not be included in the early-retirement scheme and
was therefore found to have committed an unfair labour practice.
 In addition, when an employee claims a contractual or other right to the
benefit, proceedings in which an unfair labour practice is claimed are
competent.
 An employee who alleges that an employer acted unfairly in exercising
its discretion in terms of an employment policy or practice to refuse a
benefit may also pursue an unfair labour practice claim based on past
practice or on the terms of that policy
 The employer will have to show that it did not act unfairly
Things that are now being claimed as ULP relating to benefits:
o Removal of free transport to and from work
o Nom-awarding of performance bonuses
o Non-payment of acting allowances
o Non-awarding of notch increases
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In order to use ULP relating to benefits = must have a right to it – must be able to show it is
provided for in
o Contract of employment
o Policy in employers discretion
o By agreement
We follow a wide approach to benefits
if an employee believes they’ve been unfairly dismissed, the correct practice is Unfair dismissal
claim
Forms of disciplinary action other than dismissal – ULP (warnings, transfers etc)
Suspensions
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Disciplinary sanction (hearing) – if charged with misconduct – disciplinary sanction of suspension
can be imposed
Precautionary measure – if there is an allegation of misconduct that has come to the fore, the
employee against who the allegation is levelled can be suspended to allow the employer space
to investigate the allegation
o Employer feels cannot have employee at workplace while investigation is being
conducted
o Has to be with full pay because no charge, just investigation
o Some reasons why a precautionary suspension may be challenged:
 Because the suspension is unreasonably long
 No opportunity to make representations prior to suspension
 However in Long v SA Breweries CC
o No need for an employer to allow representations before
suspension if not punitive
o Where a suspension is precautionary and not punitive, there is
no requirement to afford the employee an opportunity to make
representations before the employee is suspended
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Court considered that where the suspension is on full
pay, any cognisable prejudice to the employee would be
ameliorated
 Where a contract, collective agreement, regulatory or
other measure affords an employee the right to make
representations prior to suspension, the employee
remains entitled to enforce that right other than by way
of a claim of ULP
 Does not comply with the disciplinary code of an employer
 E.g person cannot be put on precautionary suspension for more than 30
days etc.
Both types of this suspension can be challenged as a ULP
The case law indicates that for a suspension to be considered fair, it is necessary that at least
five conditions be met:
o The relevant disciplinary code should be followed;
o The suspension is not to be used to punish the employee (as already mentioned
o above);
o The employee should be informed of the reason for the suspension;
o The employee should be informed of the length (which should not be unreasonable) of
the suspension; and
o The employee should be paid for the period in full.
Regarding the last requirement, it has been held that where an employee requests the
postponement of a disciplinary inquiry, an employer does not have to pay such employee from
the date of such postponement
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DISCIPLINARY ACTION SHORT OF DISMISSAL
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Warnings
o For committing misconduct if employee feels it was unfair then can be challenged as an
ULP
Transfers
o Initiated as a disciplinary action because employee was found guilty of misconduct and
is now transferred, can be challenged ito ULP
However, mere scheduling of disciplinary hearing does not constitute disciplinary action short of
dismissal
Refusal to reinstate/re employ – despite entering agreement stating so
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Key phrase in terms of agreement
Agreement individual contract/collective agreement
Common in retrenchments
Note 5 requirements that must be satisfied in order to utilise this ULP:
o The employee must have been previously employed by the employer;
o
o
o
o
There must be an agreement (in other words, not only a collective agreement) on reengagement is a prerequisite (irrespective whether the agreement has been concluded
during the employment relationship or after its termination);
 What constitutes an agreement?
 Retrenchment notice
 A collective agreement – when people are retrenched due to
operational reasons, unions will get involved in order to compel the
employer in some instances to say you need to consider these dismissed
employees if positions arise and enter into an agreement to that effect
 Individual agreement with employee (reengagement, or re-instatement
 Settlement agreement
Must be a suitable vacancy must exist;
The employer must have failed or refused to reinstate or re-employ the (ex-) employee
in terms of the agreement; and
The time period within which to reinstate an employee should be reasonably practical.
Occupational detriment on account of protected disclosure (protection of whistle blowers)
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Purpose: eradicate criminal other irregular conduct
o Protections are aimed at protecting whistle-blowers
o Ito Protected disclosures Act
 Examples:
o An employee may be side-lined by employer for reporting corruption or other illegalities
taking place in an organisation
 Objectives
1. Protect employee from being subjected to occupational detriment for making protected
disclosure
2. Provide remedies
3. Set out procedures that must be followed to disclose info regarding employer improprieties
What = occupational detriment in terms of PDA?
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If one of these happen to an employee = occupational detriment
o Disciplinary action
o Dismissed, suspended, demoted, harassed, intimidated
o Transferred against will
o Refused transfer/promotion
o Unilateral change to terms and conditions of employment which is prejudicial
o Refused reference/provided with adverse reference
o Denied appointment
o Otherwise adversely affected
NB: Cannot institute an ULP if the occupational detriment suffered is a dismissal (if dismissed,
must be challenged automatically as an unfair dismissal)
What is the definition of a disclosure?
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Of information about conduct of employer – something happening at employer’s organisation
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Something being done by employer or employee of employer made by any employee who has
reason to believe that the information concerned shows or tends to show one or more of the
following improprieties:
o That a criminal offence has been committed, is being committed or is likely to be
committed;
o That a person has failed, is failing or is likely to fail to comply with any legal obligation to
which that person is subject;
o That a miscarriage of justice has occurred, is occurring or is likely to occur;
o That the health or safety of an individual has been, is being or is likely to be endangered;
o That the environment has been, is being or is likely to be damaged;
o Unfair discrimination as contemplated in the PEPUDA; or
o That any matter referred to above has been, is being or is likely to be deliberately
concealed.
When is a disclosure protected?
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In order to be a protected disclosure, disclosure made to specific persons or bodies, or so-called
‘regulators’.
The requirements for protected disclosures to specified regulators are as follows:
o To a legal adviser - any disclosure to a legal practitioner or to a person whose
occupation involves the giving of legal advice, and with the object of and in the course
of obtaining legal advice, is a protected disclosure;
o To an employer any disclosure to an employer made in good faith and substantially in
accordance with any procedure prescribed or authorised by the employee’s employer
for reporting or remedying improprieties, or to the employer of the employee where
there is no procedure, is a protected disclosure;
o To a member of Cabinet or a member of the Executive Council of a province:
o any disclosure made in good faith to a member of Cabinet or of the Executive Council of
a province is a protected disclosure if the employee’s employer is an individual or a body
that has been appointed in terms of the relevant legislation by such a member, or an
organ of state falling within the area of responsibility of a member;
o To the Public Protector or the Auditor-General:
 any disclosure made in good faith to the Public Protector, the Auditor-General
or another person or body prescribed for purposes of this section and in respect
of which the employee reasonably believes that:
 – the relevant impropriety falls within any description of matters which
in the ordinary course are dealt with by that person or body; and
 – the information disclosed, and any allegation contained in it, are
substantially true;
What are the specific requirements for a general protected disclosure?
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If a disclosure is not made to the above regulators and is made to the media, for example, then
it would be regarded as a general disclosure and could be protected if it complies with certain
requirements: A general protected disclosure is defined in section 9(1) as any disclosure made
o In good faith,
o
o
o
By an employee who reasonably believes that the information disclosed, and any
allegation contained in it, is substantially true,
And who does not make the disclosure for the purposes of personal gain
You feel that you cannot disclose to the employer either because you envisage that you
will be subjected to an occupational detriment, or evidence will be destroyed or
concealed, or you made a disclosure in terms of similar facts and employer did nothing
about it
Study Tshishonga v Minister of Justice [2007] 4 BLLR 327 (LC)
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Briefly set out the facts of the case
o
The case dealt with the legal position of an employee who makes a general protected
disclosure
o
The managing director of the business unit in the office of the Master of the High Court
was tasked with eradicating corruption relating to the appointment of liquidators of
insolvent estates.
o
He disclosed irregularities to the relevant regulators but months went by with no
investigation.
Who was the information disclosed to?
o
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Did the court find that the disclosure amounted to a general protected disclosure or not?
o
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The information was disclosed to the media
The court found that the disclosures amounted to general protected disclosures
What was the basis for the courts decision?
o
The court based its decision on section 9 of the PDA’s requirements of good faith,
reasonable belief and the absence of personal gain.
o
The court held that these were mutually reinforcing and overlapped so that a weakness
in one could be compensated for by the others. Therefore, each requirement had to be
construed narrowly so as not to defeat the objectives of the Act.
o
Furthermore, the disclosure had to be filtered through two more tests:
o
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Had to satisfy one or more of the conditions set out in section 9(2) and
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It had to be reasonable in terms of the criteria set out section 9(3).
Court held that disclosures to the media were only justifiable if:
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The disclosure was in the public interest
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The complaint had not already beed addressed internally or by a prescribed
regulator.
o
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The court found that Tshishonga’s disclosures to the media complied with the
requirements and so were general protected disclosures.
To prove an ULP claim under these circumstances, the following must be established:
1. The employee made a protected disclosure which falls within the definition of a protected
disclosure/ general disclosure in terms of the Protected Disclosures Act.
2. The employee was subjected to an occupational detriment as defined in the Protected
Disclosures Act.
3. There is a causal link between the making of the protected disclosure and the occupational
detriment that the employee was subjected to.
Dispute Resolution Procedure
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To institute ULP, Referral to BC/CCMA within 90 days for conciliation
BC/CCMA will attempt to resolve for conciliation
If fails, refer to arbitration (by CCMA or BC)
EXCEPTION:
o Disputes regarding occupational detriments, employees who lodge such disputes can decide
to refer to LC instead of arbitration
o Because such ULP can be referred to the LC for adjudication
o Probation: Con/Arb process
o Immediately when conciliation is over and fails to resolve dispute – must
immediately go to arbitration
o
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If employee is successful with ULP dispute, the commissioner can make an order that he
deems reasonable (wide discretion) that may include:
o Reinstatement
o Reemployment
o compensation
REMEDIES: See page 230
Study Theme 6: Question 1
Employer ABC has 40 employees On 1 February ABC arranged a work party for all its employees During
the celebrations some of the liquor disappeared ABC suspects that Ben, Thabo, Moipone and Jack were
involved and the employer adopted different strategies regarding each one of them. An informant who
did not wish to disclose his identity says that he thinks that Ben was the kingpin and that the rest who
knew about the dishonesty joined in. Jack was on the verge of being promoted to team manager and on
15 February it was decided not to consider him on the grounds of the suspicion against him and he was
not offered an interview. Ben’s status was lowered from the position of head of finance to admin clerk
on 28 February Moipone was at the end of her probationary period and it was decided to extend her
probation for another 2 years without giving her an opportunity to state her case. Due to the fact that
some empty bottles were found in Thabo’s locker, an amount of R 200 was deducted from his salary and
the employer decided to cancel his travel allowance
a. Explain in terms of which legislation (and relevant sections) each of the employees could
possibly institute a claim against employer ABC 12
a. On the basis if section 186(2)(a)
b. Jack
i. challenge unsuccessful promotion
ii. Prove that employer refused to promote him
iii. Prove that refusal to promote was unfair
iv. If reasonable expectation of a promotion created - may refer a dispute about an
unfair labour practice on the basis of the reasonable expectation.
v. Occupational detriment as a result of refused promotion
c. Ben
i. Demotion
ii. moved to lower rank or level
iii. loss of status
iv. loss of pay
v. Must be a sound reason and procedure
d. Moipone
i. unfairness during probationary period can be basis for ULP claim
ii. Examples:
iii. probationary period unreasonably extended
b. Can employer ABC institute an ‘unfair labour practice’ dispute against any of the employees?
a. the definition of an unfair labour practice ito LRA: Unfair labour practice can only be
perpetrated by an employer not an employee
Study Theme 6: Question 2
Mr Smith an accountant at KPM who earns R 210 000 per annum was called in by his manager and
informed that he was being moved to the position of assistant accountant due to poor work
performance. However, his salary would remain at R 210 000 There was no previous indication that his
performance did not meet the required standard. He was actually given a performance bonus two
months ago. He lodged an internal grievance The HR manager subsequently wrote to him and informed
him that they consider the actions of his manager to be acceptable and that KPM stands by the decision
of his manager.
What external recourse does he have, if any (6)
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Demotion is listed under the definition of an ULP
The demotion contributed to Mr Smith’s loss of status.
There must be a sound reason and procedure
Study Theme 6: Question 3
Mr Baloyi was appointed by the Gauteng Department of Health as the Head of Administration at
Sebokeng Hospital He is very unhappy with his working environment as his supervisor is not easy to get
along with resulting in continuous conflict He applies for a transfer to another hospital in the Province,
but his transfer is rejected He feels aggrieved by this decision as he was given no reason for the
disapproval.
What external recourse does he have, if any (6)

Mr Baloyi has suffered an occupational detriment due to a refusal to transfer him. He can
institute an ULP claim in terms of section 186(2)(a) of the LRA.
Study Theme 6: Question 4
Assume that Mr Baloyi from question no 3 was happy in his work and did not wish to be transferred
However, due to him disclosing information regarding corruption at the hospital to the Gauteng
Provincial Department of Health, he is transferred without warning or notification.
Is it possible for him to challenge the transfer? If so, how (10)
Study Theme 7:
Unfair Dismissal: Preliminary Topics
L@W Ch 9 par 1
•
Until 1980s – no protection against “unfair dismissal”
•
Many countries adopted legislation that requires:
o
fair reason; and
o
fair procedure
•
Some attack such protection as it undermines flexibility
•
ILO Convention 158 – it influenced how Ch VIII of the LRA was drafted
•
The LRA recognises 3 x acceptable reasons:
o
misconduct;
o
incapacity; and
o
operational requirements.
•
SA (like the ILO) recognise impermissible grounds. The LRA calls it “automatically unfair reasons”
(see the discussion that follows).
•
Until 1980s – no protection against “unfair dismissal”
•
Many countries adopted legislation that requires:
o
fair reason; and
o
fair procedure
•
Some attack such protection as it undermines flexibility
•
ILO Convention 158 – it influenced how Ch VIII of the LRA was drafted
The Labour Relations Act recognises Three acceptable grounds for termination of employment
•
•
•
•
Misconduct
Incapacity
Operational requirement
Three different sets of procedures regulate and apply to the above
•
SA (like the ILO) recognise impermissible grounds. The LRA calls it “automatically unfair reasons”
(see the discussion that follows).
Automatically unfair reasons for dismissal

Employer not permitted to terminate a contract of employment on these reasons at all
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The LRA’s definition of “dismissal” is broader than the common law “termination of
employment”
Resignation can also be a dismissal ito the LRA (see constructive dismissal)
The employee must convince the CCMA or bargaining council there was a “dismissal” and not a
resignation.
Every “dismissal” is not an “unfair dismissal”. The employee must prove the termination falls in
the definition of dismissal, and the employer must prove that it was fair (i.e. – a fair reason and
a fair procedure was present)
Statutory Meaning of Dismissal L@W Ch 9 par 2.1.1 – With, or without, notice
MUST FIRST BE A DISMISSAL ITO S 186(1)(A) OF LRA
•
S 186(1)(a) of the LRA: “termination of employment by the employer with or without notice”
o
Where employer summarily terminates contract, or
o
Where employer gives employee requisite notification period ito BCEA
•
The LRA was amended to change it from the termination of “a contract of employment” to
termination of employment
•
This form of dismissal includes the situation where the employer gives 4 weeks notice or if the
employer summarily terminates the contract
•
Not always easy to detect this form of dismissal. An employee can resign in the heat of the
moment. It can still be a dismissal if the employer refuses to accept a retraction of resignation.
•
It has been accepted that it can constitute a dismissal should the employer terminate a contract
between the conclusion of the contact of employment, but before the employee commences
with employment.
•
Definition of dismissal contains 6 elements:
o
Termination of employment with or without notice;
o
Where an employee reasonably expected the employer to renew a fixed term contract
of employment on the same or similar terms but the employer offered to renew it on
less favourable terms, or did not renew it
o
Employer did not allow employee to resume work after maternity leave
o
Selective re-employment
o
Constructive dismissal
o
Transfer of a business
Not necessary to memorise the names of cases under para 2.1.1
Refusal to renew a fixed-term contract (F-T-C)
•
S 186(1)(b) of the LRA: “employee reasonably expected an employer: to renew a F-T-C; or to
retain the employee indefinitely”
o
Non-standard workers who are engaged in FTC and may not be appointed for longer
than 3 months without those contracts becoming indefinite.
o
Employer creates a reasonable expectation by continuously renewing the FTC or renews
but with less favourable terms of employment and employee reasonably expected to be
reappointed = omission = dismissal
•
Thus, three requirements: reasonable expectation; refused to renew or retain indefinite; or
less favourable terms.
•
Reasonable expectation an objective test.
•
Relevant factors to reasonableness: terms of the contract; past practice; nature of employment;
assurances given to renew the contract; and failure of reasonable notice.
•
LEAVE OUT PAGE 242
Not necessary to memorise the names of cases under para 2.1.2
Refusal to allow an employee to resume work after maternity leave
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Dismissal means that 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.
If an employer refuses to allow an employee to resume work after she takes maternity leave in
terms of any law, collective agreement or her contract of employment, that refusal amounts to
a dismissal.
The purpose of this provision is to prevent employers from relying on absence from work as a
ground to dismiss an employee or refuse her the right to resume work when her absence is
occasioned by maternity leave.
the maternity leave must be taken in accordance with section 25 of the BCEA, a collective
agreement or a contract of employment.
o This means that if the employee is in breach of the relevant provision, either by taking
excess leave or taking leave for any other reason, her employer’s refusal to allow her to
resume work will not be regarded as a dismissal.
The wording of this section simply establishes the existence of a dismissal in circumstances
where the employee intends to resume work but is prevented from doing so. It does not preclude
an employer from dismissing an employee who is on maternity leave for any other legitimate
reason.
If the reason for dismissal is pregnancy or a reason related to pregnancy, the dismissal is
automatically unfair.
Refusal to renew a fixed-term contract (F-T-C)
•
S 186(1)(c) of the LRA
•
Any such refusal amounts to dismissal
•
Only study first two paras and leave rest of the page.
Selective re-employment
•
S 186(1)(d) of the LRA
•
Only 1st and 2nd para and LEAVE OUT rest under par 2.1.4
NB - Constructive Dismissal – employee resigns
•
S 186(1)(e) of the LRA: “employee resigns, with or without notice, because employment has
been made intolerable”
•
The employer’s actions “forces” the employee to resign
•
The courts adopt an objective approach. Not the say-so of the employee. Strict test.
•
o
What is relevant is the conduct of the employer viewed in an objective sense
o
For example lowering of status
o
Bullying
o
Sexual harassment
Study Murray v Minister of Defence. The employer must be culpably responsible. (Textbook
sufficient).
o
The court reiterated that our law and the Constitution impose ‘a continuing obligation
of fairness towards the employee on . . . the employer when he makes decisions
affecting the employee in his work’.
o
The court, however, emphasized that it is not sufficient that an employee resigns
because work has become intolerable – this could after all be due to factors
unconnected to the employer or the employer may have a good and fair reason to make
work intolerable.
o
The employer must be culpably responsible in some way for the intolerable conditions.
In other words, the test is whether the conduct ‘lacked reasonable and proper cause’.
o
The court also held that there is no requirement that the employer must have wanted
or intended to get rid of the employee.
•
Onerous burden on the employee – employment would be “objectively unbearable”
•
Relevant considerations: employee must have terminated; does not have to amount to
repudiation; objectively unbearable; would have carried on; and exhausted all other remedies.
•
Centre for Autism Research v CCMA. Not requirement that grievance should have been lodged.
Get hold of the case. Text book not sufficient.
o
The employees were employed as special needs teachers by the Centre for Autism
Research and Education (the School).
o
Both employees resigned from the School on one month’s written notice. Thereafter,
the employees referred a constructive dismissal claim to the (CCMA), contending that
they had been forced to resign as a result of being bullied by the School’s owner, Ms
Riback.
o
The employees alleged that Ms Riback’s conduct consisted of the following:
o
•
She portrayed significant mood swings and subjected the employees to abusive
language, lewd behaviour and discriminatory remarks. She would commonly
refer to the employees as a ‘screaming queen’ and ‘goblin’, respectively.
•
She made unauthorised deductions from the employees’ salaries and imposed
unreasonable and unlawful demands on the employees.
•
When travelling for work purposes, she insisted on sharing a bedroom and a
bed with one of the employees concerned and insisted on keeping an
interleading door between the bedrooms open, commenting on the employees’
bodies while they were required to dress in front of her.
•
She threw tantrums and screamed at the employees in public areas, including at
conferences and in restaurants, stating that they were ‘disgusting’, ‘pathetic’
and ‘dumb’.
In broad terms, the requirements to be met to establish a constructive dismissal are that
–
•
the employee must have terminated the contract of employment;
•
the reason for the termination must be that the continued employment had,
objectively, become intolerable; and
•
that it was the employer who made continued employment intolerable.
o
the Commissioner found that Ms Riback’s behaviour towards the employees and other
teachers was ‘shockingly unacceptable’ and her conduct continuously impaired the
dignity of the two employees concerned.
o
The Commissioner had no doubt that Ms Riback’s behaviour towards the employees
caused their employment to have become intolerable.
o
The Commissioner observed that an employee is required to exhaust all possible
internal remedies prior to resigning and claiming a constructive dismissal, he noted that
Ms Riback was the employees’ ‘final point of call’ and she had been dismissive of prior
attempts by the employees to raise issues with her.
o
The School sought to review and set aside the Commissioner’s award on the basis that,
inter alia, the –
•
Commissioner had ignored the fact that the employees had not lodged a
grievance prior to their resignation; and
•
•
the fact that the employees resigned on notice was irreconcilable with the
conclusion that their continued employment had become intolerable.
o
The court found that the evidence portrayed a workplace operated by a narcissistic
personality whose offensive and unwelcome conduct created a toxic working
environment for the School’s employees. Ms Riback’s conduct amounted to persistent
workplace bullying, which constituted harassment and had rendered the employees’
employment intolerable.
o
The court held that while it is so that employees who claim that employment is
intolerable should file a grievance before resigning, this is not an inflexible rule; each
case must be decided on its own facts. In the present case, this was not an option
available to the employees, particularly as the person against whom their grievance was
directed was Ms Riback, the owner of the School. To have lodged a grievance in these
circumstances would accordingly have been futile.
o
In conclusion, the court found that the School had rendered the employees’ continued
employment intolerable and the Commissioner’s decision that the employees had been
constructively dismissed was correct.
LEAVE OUT REST OF PARA 2.1.5 on p 247.
Other forms of termination not “dismissal”
Read the parts below and describe it in three lines each:
•
Resignation
o
•
•
A resignation is a unilateral act by an employee that has the effect of terminating an
employment contract
Effluxion of time
o
A contract of employment may be entered into for a fixed period, to terminate either on
a specified date or on the happening of a specified event such as the completion of a
project.
o
Section 198B, recently added to the LRA, expressly provides that a contract of
employment that terminates on the occurrence of a specified event, on the completion
of a specified task or project, or on a fixed date other than an employee’s normal or
agreed retirement age, is a fixed-term contract.
Reaching retirement age
o
when an employee reaches the normal or agreed retirement age, the contract of
employment expires automatically, and termination of employment in these
circumstances does not constitute a dismissal as defined in the LRA
o
Whether an employee has reached normal retirement age is a matter of fact, and must
be determined from the contract of employment and from applicable policies and any
relevant rules of a retirement fund.
•
Insolvency
o
•
•
Mutual agreement
o
Termination of employment in circumstances where an employer and an employee
agree to terminate a contract of employment by mutual consent is generally not a
dismissal, and is sometimes referred to as termination on account of a settlement or
waiver
o
When an employee settles a claim or waives a right to pursue it, there may have been a
dismissal, but the employee agrees not to pursue a claim for relief consequent on the
dismissal.
o
A mutually agreed termination of employment occurs when there is no unilateral
termination of employment by the employer. In these circumstances the contract
terminates as a consequence of their agreement and there is no ‘dismissal’.
Death
o
•
At common law, a contract of employment terminates on the death of either party.
Termination of employment in these circumstances is not a dismissal, although the
affected employees have a claim for outstanding wages and notice pay against the
deceased estate of their employer.
Supervening impossibility of performance
o
•
section 38 of the Insolvency Act provides for the suspension of employment contracts,
subject to termination by the trustee or liquidator, or automatic termination in terms of
section 38(9) (in other words, after the lapse of 45 days).
The common law recognises that a contract may terminate when performance of that
contract becomes impossible
Automatic terminations
o
In the public sector, section 17(3)(a) of the Public Service Act 103 of 1994 provides that
if an employee is absent from work for a period of more than one calendar month he or
she is deemed to have been discharged for misconduct.
o
There are similar provisions in other statutes regulating employment in the public
service, notably in respect of the police and teachers engaged in public schools. This
provision has been upheld, and a ‘deemed dismissal’ in these circumstances is not a
dismissal for the purposes of the LRA.
Date of Dismissal
L@W Ch 9 par 3
•
Any unfair dismissal case must be referred to the CCMA/BC withing 30 days
•
Earlier of date on which the contract of employment was terminated; or the date the employee
left the services.
•
With notice: earlier of date of expiry of the notice; date employee is paid all outstanding salary.
•
However, if an employer has failed to renew a fixed-term contract or offered to renew the
contract but on less favourable terms, the date of dismissal is the date on which the employer
notified the employee of its intention not to renew or the date on which the employer offered
the less favourable terms.
•
If the employer refused to allow an employee to resume work (after pregnancy), the date of
dismissal is the date of such first refusal.
•
In instances where an employer refused to reinstate or reemploy an employee, the date of
dismissal is the date on which the employer first refused to reinstate or re-employ that
employee
•
Section 190(1) does not apply to constructive dismissals as the employee ‘makes the final
decision as to when she ceases providing services’ and, in terms of section 186(1)(e), can do so
with or without notice.
Dispute resolution - Arbitration
L@W Ch 9 par 4.1
•
Disputes about unfair dismissal must be referred to the CCMA or a bargaining council in 30 days
for conciliation after the date of dismissal.
•
For ULP disputes – 90 days
•
If the dispute was not resolved during conciliation, the dispute must be referred to the CCMA or
bargaining council in 90 days for arbitration.
•
If the dismissal relates to operational requirement dismissal, the dispute must be referred to the
Labour Court for adjudication. However, EXCEPTION: if only one employee retrenched, or
earned under the threshold amount, can refer to the CCMA for arbitration
Dispute resolution – Labour Court & Onus
•
Automatically unfair dismissals and dismissal on grounds of operational requirements are
referred to the Labour Court for adjudication if conciliation failed.
•
Onus
The employee must establish that the dismissal occurred (definition of dismissal) and the employer must
prove on a balance of probability that the dismissal was fair (fair reason + fair procedure).
NB: - Sidumo & another v Rustenburg Platinum Mines Ltd & others (CC) Text book sufficient. It is a
reasonable commissioner test – and not a reasonable employer test.


Question – what test should be applied to determine whether it was a fair dismissal or not.
Reasonable employer or employee test?
Court – not one of the two, it is the reasonable decision -maker test.
o How would another CCMA commissioner/ another judge of labour court finalise the
matter

The CCMA should not defer from the decision of the employer
Dispute resolution – Remedies
The CCMA, bargaining councils and the Labour Court may order:
•
Primary remedy = Reinstatement;
•
Re-employment and
•
Compensation
o
For example where employer does not want to return
The first two remedies are the primary remedies. These remedies are not ordered if:
•
Employee does not wish it;
•
circumstances intolerable;
•
impractical; and only reason is unfair procedure for the dismissal. (LEAVE TWO TOP PARAS ON
p262)
Reinstatement and re-employment (par 5.2)
•
Reinstatement means that the period between dismissal and the order remains unbroken.
(ignore the cases on p263)
5.3 Compensation
•
“Just and equitable” compensation to a maximum of 12 months for unfair dismissal and unfair
labour practice;
•
However, maximum of 24 months for “automatically unfair dismissal” discussed under Ch 10.
•
Jansen v Legal Aid South Africa (Get the case and study it – Depression; dismissed for
misconduct; discrimination)
o
The applicant was suffering from depression
o
His employer was aware of his condition, yet he instituted disciplinary proceedings
against the applicant following absenteeism due to a deterioration of his condition.
o
The employee was found guilty of misconduct and was consequently dismissed.
o
The employee approached the Labour Court claiming that the reason for his
dismissal was that he had been unfairly discriminated against on the ground of
disability or analogous arbitrary ground and that his dismissal was automatically unfair.
o
The court found that Jansen’s depression was the actual cause of his dismissal.
o
He had provided his employer with proof of his illness. His employer had declined to
accept this proof without challenging it. Jansen’s employer knew that he had a disability
and was under a duty to reasonably accommodate him. Instead of dismissing Jansen for
misconduct, it had a duty to institute an incapacity enquiry.
o
o
o
The court stated the principles for determining an automatically unfair dismissal.
1. would the dismissal have occurred if Jansen did not suffer from a mental illness?
If the answer was yes, then the dismissal was not automatically unfair.
2. If not the question was whether Jansen’s mental illness was the most likely cause
of the dismissal? If this inference could be drawn then the dismissal was
automatically unfair.
The court found Jansen’s dismissal to be automatically unfair and constituted unfair
discrimination. The court ordered retrospective reinstatement (just less than five
years’ back-pay).
With regard to remedies, the court held declared that the employee’s dismissal was
automatically unfair in terms of section 187(1)(f) of the LRA and awarded
retrospective reinstatement as remedy. It also declared that the employer had
unfairly discriminated against the employee in terms of section 6 of the EEA and
awarded him compensation equivalent to 6 months’ salary.
ONLY THE FIRST 3 PARAS UNDER 5.3 AND LEAVE REST OF P 264-267.
Questions
Question 1
Employer A is experiencing financial hardship due to the Corona Virus. A has 100 employee in their
employ. Employee X reported 5 minutes late for work and stole toilet paper from the storage room; Y
has been making many mistakes due to a lack of skills; and competence and A can’t afford Z anymore
because he earns much more than any of the other employees, and employee B can also do the same
work.
a. What are the three main grounds that the SA law recognises for dismissal and indicate under
which of these grounds could A consider terminating employees X, Y ad Z’s services?
a. The three main grounds recognised in south Africa are misconduct, incapacity and
operational requirements. A could consider terminating X on the grounds of misconduct
for failing to report to work on time and for theft. Y could be dismissed on the ground of
incapacity and A could be dismissed on the ground of operational requirements.
b. Taking account of the statutory definition of “dismissal” name 5 types of situations that could be
classified as dismissal.
a. Dismissal with or without notice
b. Non-renewal of a fixed term contract
c. Refusal to allow an employee to return to work after maternity leave
d. Constructive dismissal – where the employer resigns due to intolerable work conditions
e. Selective re-employment – where the employer dismisses a number of employees and
elects to re-employ some of the dismissed employees.
f.
Transfer of a business from one owner to another.
c. Who has the onus of proving that it was a “dismissal” and who must prove that it was a “fair”
dismissal?
a. The employee has the onus of proving that it was a dismissal and the employer has the
onus of proving that it was a fair dismissal
d. What are the two main requirements for any fair dismissal?
a. The two main requirements for any fair dismissal are that the dismissal must have been
for fair reasons and a fair procedure must have been undertaken
Question 2
Employer B conducts interviews with 3 candidates on 1 December and offers Z a contract to commence
on 2 January. Z signs the contract. On 31 December B informs Z that they don’t have a job for Z on 2
January due to financial hardship caused by Covid-19. Does this constitute dismissal and on what
ground?
(4)
The LRA provides a definition of dismissal which outlines a number of instances. This constitutes a
dismissal with or without notice in terms of section 186(1)(a) of the LRA. Furthermore, section 213 of
the LRA there used to uncertainty as to whether this constitutes dismissal. The Act states “works for
another person”. The definition of dismissal no longer refers to a termination of a contract of
employment but to a termination of employment. This would therefore constitute a dismissal for
purposes of the LRA and Z would be able to claim unfair dismissal even though had not yet started
working.
Question 3
Employer C has 50 employees. 10 of the 50 employees have been appointed on one year fixed term
contracts for 3 years in a row. He also told them that they are doing excellent work and that he would
not mind if they worked with C until 2030. Due to the drop in the value of the Rand, C is making huge
losses. C informs 5 of the fixed term workers that he will not be giving them another 1 year fixed term
contract on 2 January. The five workers feel this is an unfair dismissal. C says that this is not a dismissal,
as he will merely not offer them another contract. Is this a dismissal, and what must the employees
prove? What are the relevant factors to reasonableness?
(10)
In terms of the definition of a dismissal in the LRA, a dismissal occurs where an employee reasonably
expected the employer to renew a fixed term contract of employment on the same or similar terms but
the employer offered to renew it on less favourable terms, or did not renew it. In order for a dismissal to
be considered fair it must have been taken for a fair reason and according to a fair procedure. The
employee bears the onus of proving that a dismissal in terms of the LRA took place and once this hass
been established, the onus shifts to the employer to prove that the dismissal was fair.
The employee must be able to establish that there was a reasonable expectation of renewal of the
contract or of retention on an indefinite basis and that the employer refused to renew the contract or
retain the employee on an indefinite basis, or that there was an offer to renew or retain the employee
but on less favourable terms.
Furthermore, the test for a reasonable expectation is an objective test which takes into account various
factors. There is no single fact that determines what will be reasonable in every case and the following
should be looked:
•
•
The wording of the contract which is of paramount importance
Other external factors relevant to the terms of the contract can be used in determining the
existence of a reasonable expectation
Relevant objective factors to the reasonableness of the expectation include:
•
•
•
•
Terms of the contract
Past practice
Assurances given to renew the contract
Failure to give reasonable notice
The dismissal of the 5 workers fall under the definition of dismissal ito section 186(1)(b) of the LRA as it
is a dismissal that occurred where the employees reasonably expected the employer to renew the fixed
term contract or retain the employees indefinitely. This therefore discharges the onus of the employees
as this is a dismissal as the employer refused to renew the contract. We now look to whether the
dismissal was unfair. On an objective assessment of the reasonableness of the employees’ expectation,
the employer had employed them for three years in a row and stated that they are doing excellent work
and that he would not mind if they worked with C until 2030. This could create a reasonable expectation
for the employees.
Question 4
Employer Boss has a problem with two employees. A is not making targets and he is always unfriendly. C
has done nothing wrong, but Boss doesn’t like her and can’t handle her. Boss demotes C to a lower post
level and he terrorises her by transferring her from Pretoria to Upington even though her children are at
school in Pretoria. Boss called A in and gave him a warning. Both A and C resign due to the fact that they
cant take it any more. Do A and C have cases against Boss, on what ground and what factors need to be
taken into account to determine whether they would succeed?
(6)
Question 5
Name 5 other ways in which a contract of employment can come to an and in the absence of a dismissal.
Question 4
Employer Boss works in the clothing manufacturing industry and has a problem with Z. Boss gives Z one
month written notice on 1 February. Boss pays Z all outstanding money on 15 February. Z wants to refer
an unfair dismissal dispute to the relevant clothing bargaining council.
a. On or before which date should the dispute be referred and why do you say so? If the dispute
cant be resolved during conciliation, where should it be referred to be finalised?
(5)
b.
Assume Boss only has 3 employees and only decided to retrench Z due to financial reasons.
Before when should Z refer the dispute and which tribunal or court should finalise the dispute if
it could not be resolved during conciliation? Who bears the onus in unfair dismissal cases?
(6)
c. Assume it was an automatic unfair dismissal – could the dispute be arbitrated at the bargaining
council? (3)
d. What remedies could Z claim if it was an automatic unfair dismissal? What is the primary
remedy and under which circumstances would reinstatement not be awarded.
(6)
Automatically unfair reasons for dismissal
L@W Ch 10
1. Introduction
•
S 187 of the LRA: if established “automatically unfair” not open for the employer to prove fair
dismissal.
o
unfair simply by virtue of the reason for the dismissal, and it is not open to the employer
to justify its decision to dismiss the employee.
o
In other words, once it has been proven that an employee was dismissed for one of the
automatically unfair reasons listed in section 187, the employer will not be afforded the
opportunity to discharge the onus of showing that the dismissal was fair, and the
proceedings must move directly to a consideration of the remedy to which the
employee is entitled.
•
ILO recognises 2 grounds: discrimination; worker exercising a right.
•
Special compensation: 24 months’ remuneration
•
Onus: employee must only establish dismissal and has no onus to prove it was automatically
unfair.
•
Thus if automatically unfair dismissal according to CCMA/ will not even look into it to see
whether a fair procedure was followed
•
LEAVE FROM 2ND PARA p272 UP TO PAR 2 ON P 274.
In the parts that follow, it is important to be in a position to recognise the instances when a particular
dismissal falls within one of the categories of automatic unfair dismissal (Also called “AUD”). Unless
more detail is provided for in the slides below, students must read through each of the instances in
paras 2-7 and summarise it in 3 lines. The instances relate to:
•
Par 2. Dismissal contrary to section 5
o
Employees have the right to freedom of association (join trade union)
o
If employees are precluded from this right, e.g. dismissing an employee for joining a
trade union = automatic unfair dismissal
•
Par 3. Participation in a protected strike or protest action
o
A dismissal is automatically unfair if the reason for the dismissal is that the employee
participated in or supported, or indicated an intention to participate in or support, a
strike or protest action that complies with the provisions of Chapter IV
o
Section 67(4) of the LRA establishes the right to strike when it states that an employer
may not dismiss an employee for participation in a protected strike or for any conduct in
contemplation or in furtherance of a protected strike.
o
Section 187 bolsters this protection by making a dismissal in these circumstances
automatically unfair and by extending this protection to protected protest action.
o
This requires a two-stage approach:
•
The court should enquire into the actual reason for dismissal;
•
if the reasons are related both to the strike and to the employer’s operational
requirements, then the ‘proximate’ reason for dismissal must be identified.
•
This required a consideration of whether operational requirements played a
role in the dismissal, and if so, whether they were the cause of the dismissal in a
legal sense.
•
This is a matter of law and policy.
•
Par 4. Refusal to do work of striking workers
•
Par 5. Employee’s refusal to accept a demand
•
o
The LRA provides that a dismissal is automatically unfair if the reason for it is ‘a refusal
by employees to accept a demand in respect of any matter of mutual interest between
them and their employer’. The focus has shifted from the employer’s intentions or
motives to the fact of the employees’ refusal to accept the new terms demanded by
their employer.
o
‘Matter of mutual interest’ is not defined but generally includes matters that are the
subject of terms and conditions of employment.
•
Remuneration,
•
leave,
•
and hours of work would all be considered matters of mutual interest.
o
The dismissal of an employee for the purpose of compelling the employee to accept a
o
wage cut or to work longer hours, for example, would certainly be automatically unfair.
Par 6. Dismissal for exercising a right ito the LRA
o
A dismissal is automatically unfair if the reason for the dismissal is that the employee
took action, or indicated an intention to take action, against the employer by:
•
•
Exercising any right conferred by the LRA; or
•
Participating in any proceedings in terms of the Act.
o
The purpose of section 187 is to prevent employers from victimising employees who
exercise any of the rights established by the LRA or who initiate or participate in any
proceedings to enforce those rights.
o
“Proceedings in terms of the LRA can relate, inter alia, to an employee taking part in
conciliation and arbitration proceedings, the establishment of a workplace forum, and
representing a fellow employee in a disciplinary enquiry.
Par 7. Pregnancy
Unfair discrimination (Important!)
•
It is an AUD if the employer dismisses an employee on any of the listed grounds like race,
gender, sex etc.
•
The LRA contains two defences against AUD: fair inherent requirements of the job; and having
reached the retirement age. Get hold of TFD Network Africa (Pty) Ltd v Faris and study it in
detail. Relevant questions regarding TFD Network Africa:
•
On what grounds did Ms F refer her dismissal to the CCMA and LC?
o
•
Why was the dispute not arbitrated by the CCMA, but adjudicated by the LC?
o
•
During arbitration with the CCMA, the parties could not reach a resolution. The CCMA
commissioner issued a certificate of outcome and Ms F then referred a dispute to the
Labour Court contending that she had been unfairly dismissed for incapacity and had
been automatically unfairly dismissed on grounds of her religion and belief as
contemplated in s 187(1)(f) of the LRA 1995.
What defences did the employer raise?
o
•
The case concerned a claim by an employee that she had been dismissed on account of
her religion (which forbade her working on Saturdays, a requirement demanded by her
employer)
TDF argued that the dominant reasons for Ms Faris’ dismissal was not her religion but
her refusal to work on Saturdays. Further, that she failed to prove that her religion
forbid work on Saturday. TDF’s conclusion was that Ms Faris’ religion played no role in
her dismissal.
What test did the LC use regarding operational requirements as a fair inherent requirement of
the job?
o
The Labour Appeal Court applied the causation test in deciding the matter and held that
Ms Faris’ religion was the dominant and proximate reason for her dismissal as had she
not been an Adventist, she would have been able to work on Saturdays.
•
What is the maximum compensation Ms F could have claimed and how much was awarded?
o
The maximum compensation that Ms F could have claimed is compensation equivalent
to 24 months remuneration in cases of automatic unfair dismissal, Ms F was awarded
compensation equivalent to 12 months’ remuneration in respect of her dismissal,
calculated at the rate of remuneration at the date of her dismissal.
NB: leave out National Union of Metal Workers v Aveng Trident Steel even if it is included in the study
guide.
9. A transfer as contemplated by section 197 (Read – for interest sake only)
10. A dismissal in breach of the PDA (Read – for interest sake only)
Pay particular attention to the questions covered at the end of this set of slides. Students should write
out comprehensive answers to these questions and study these for purposes of forthcoming tests and
exams.
Questions – automatically unfair reasons for dismissal NB!
Question 1
Employer A has a shop and the business is open 7 days a week between 7am till 11pm. Employee B is
pregnant, Mr C 66 years old (whilst A’s retirement age is 65) and Ms D belongs to a church where they
hold congregations on Sundays and according to her religion she may not work on Sundays. A decides to
terminate the services of B, C and D. Advise all three former employees about their prospects of success
by referring to the legal grounds on which they should base their claims, the dispute resolution process
they should follow as well as the remedies that they could possibly rely on. Also explain to Employer A
what possible defence he could rely on in relation to Mr C and Ms D and explain on whom the onus rests
in last mentioned cases. Refer to relevant case law in your answer.
(20)
There are two requirements for a dismissal to be fair, the reason for the dismissal must have been fair
and the procedure must also be fair. The ILO requires that the employment of a worker may not be
terminated unless there is a valid reason for the termination connected with the capacity or conduct of
the worker or based on the operational requirements of the undertaking. Section 187 of the LRA lists
reasons that if established are automatically unfair. The dismissal of the employee is unfair due to the
reason for the dismissal and therefore its not open to the employer to justify the decision, therefore
does not need to prove whether it was fair or not. Under International labour law, two reasons are
recognised as automatically unfair:
•
•
Reasons involving discrimination and
Reasons relating to the worker’s exercising of a right
Question 2
A is depressed, has mental problems and is depressed. B knows about the problem but dismisses A on
grounds of misconduct. Is it possible to receive a remedy from the Labour Court on grounds of both the
LRA (AUD) and the EEA (discrimination?
(5)
Study Theme 7: (Week 2) Conduct and Capacity L@W Ch 11 – par 1 Introduction
There are two main requirements for any fair dismissal:







Fair reason; and
fair procedure
Aside from AUD, the LRA recognises three valid “reasons” for dismissal:
o Misconduct;
o incapacity; and
o the employer’s operational requirements
The above comes form the ILO’s Termination Convention
The LRA requires the employer to prove that the reason was fair
The line between what warrants dismissal and what not is not easy to determine
o Reporting 5 mins late for work does not justify dismissal whereas theft always justifies
dismissal
Generally a first offence does not justify dismissal. Corrective discipline (like warnings) should
mostly first be applied
par 1.3 Conduct Justifying Dismissal
Read the following and merely recognise it when you encounter it:
1.2.1
1.2.2
1.2.3
1.2.4
1.2.5
1.2.6
1.2.7
Absenteeism;
Abusive language;
Alcohol and drugs;
Assault;
Conflict of interest;
Damage to property;
Desertion (etc)
1.3 How is substantive fairness established? (NB!!)






Did the employee contravene a rule?
Is it a valid rule?
Was the employee aware of the rule?
Has the rule been consistently applied to all workers?
Is dismissal the appropriate sanction (or should the worker have been warned)?
The above rules are NB. However, merely read p305-310 (par 1.3.1-1.3.4) to understand each of
the above.
What test should be applied by Commissioners in determining whether or not dismissal was the
appropriate sanction and fair? NB
In Sidumo v Rustenburg Platinum Mines
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the Constitutional Court disagreed with the approach adopted by the SCA, which held that the
test of a ‘reasonable employer’ should be applied by the commissioner when considering the
fairness of the dismissal.
The CC held instead that a commissioner must determine the fairness of the sanction imposed
by the employer without reference to the employer and by reference to what is fair in the
circumstances rather than what a reasonable employer might think (reasonable commissioner
rather than reasonable employer)
o The Court mentioned the following factors that a commissioner will have to consider:
 The importance of the rule that the employee breached
 The reason the employer imposed the sanction of dismissal
 The basis of the employee’s challenge to the dismissal
 The harm caused by the employee’s conduct
 Whether additional training and instruction might result in the employee not
repeating the misconduct
 The effect of dismissal on the employee
 The long-service record of the employee
o None of these factors alone will be determinative. What is required is that
commissioners weigh each of these factors when assessing whether the sanction of
dismissal was fair
par 1.4 Procedural Fairness This is the second requirement for any fair dismissal.
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In respect of “misconduct” Item 4 of the Code of Good Practice says: Dismissal requires that an
informal “investigation” must be conducted at the workplace by the Employer to determine
whether there are grounds for dismissal. This need not be a formal enquiry.
In Avril Elizabeth Home for the Mentally Handicapped v CCMA the Labour Court considered the
nature of the word “investigation” and held: (Book sufficient – see next slide)
o The Code clearly envisages something less formal than a court-like disciplinary enquiry.
o What is at least required is an
 (i) investigation into the factual circumstances of the case,
 (ii) the formulation of allegations of misconduct against the employee,
 iii) notice of those allegations to the employee, and
 (iv) an opportunity for the employee to state a case in response to the
allegations.
o The employee ought to be entitled to a reasonable opportunity to respond to
allegations; with assistance of union representative or fellow worker if required.
o After enquiry the employer is obliged to communicate the decision made and should
furnish the employee with the decision in writing.
Finally, the Code provides that the employer may dispense with these guidelines, if in
exceptional circumstances, it cannot reasonably be expected to comply with them.
Unprotected strike
o Where there is an unprotected strike in a workplace, the employer is required to
contact the trade union official to discuss the course of action it intends to take.
o
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The employer must also issue an ultimatum, in clear and unambiguous terms, which
ultimatum should state what is expected of the employees and what the sanction will
be if they should fail to do so (item 6(2)).
o In the case of dismissals for participation in unprotected strike action the Labour Appeal
Court, in a number of decisions that have not always been unanimous, has applied the
audi alteram partem principle.
o The court has held that before an employer may dismiss employees in the
circumstances, some form of hearing is required, but that the nature of the hearing will
be determined by the circumstances of each case. In some cases a formal hearing will be
required, in others an informal hearing will be sufficient. In some instances the court
held that sending a letter to the strikers or their union or other representatives inviting
them to make representations by a given time as to why they should not be dismissed
was adequate.
o In essence, said the court, they should be given a fair opportunity to state their case.
Dispensing with enquiry
o In exceptional circumstances, an employer is entitled to dispense with predismissal
procedures.
o This is an exception to the general rule requiring the application of a fair procedure that
is recognised by both ILO Convention 158 and the Code of Good Practice: Dismissal.
o Item (4) of the code provides that an employer may dispense with pre-dismissal
procedures if it cannot reasonably be expected to comply with the guidelines set out in
that item.
o Cases decided in the labour courts since the requirement for a fair hearing established
by the Industrial Court have recognised exceptions to the rule in a number of
circumstances.
 The first has been described as a ‘crisis-zone’ situation, in other words where
there is a danger to life and property that justifies an employer dispensing with
a hearing.
 These cases have normally involved incidents of unrest and violence in
the workplace.
 The second recognised exception is the failure or refusal by an employee,
without good cause, to attend a hearing.
 The labour courts have generally considered that in these circumstances
an employee has waived the right to a hearing. The Labour Court has
also held that an employer is also not expected to convene a hearing in
respect of an employee who has deserted and cannot be traced.
par 2.1 Incapacity
The Code recognises two forms of incapacity that could justify dismissal:
①Poor work performance;
②Ill health or injury.
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Incapacity is distinguished from misconduct as some degree of “fault” is required on the part of
the employee.
In both instances, the employee is incapacitated in the sense of an inability to do the job for
which the employee was engaged
The Labour Appeal Court has recognised that incapacity extends beyond those grounds
recognised by the code, and that it can take other forms, e.g. the imprisonment of an employee
o The line between the distinction between incapacity in the form of poor work
performance or ill health can sometimes be blurred → generally, if the employee’s
incapacity was occasioned by a loss of the physical or mental faculties necessary to do
the job, this would be regulated by the rules relevant to incapacity in the form of ill
health or injury
Jansen v Legal Aid South Africa (Get the case and study it – Depression and Incapacity – also
covered during the previous week)
o The applicant was employed as a paralegal in 2007
o The applicant was diagnosed with major depression and referred for counselling and
treatment.
o Although the employer was aware of the employee’s condition, it did very little except
agree to put him on the employer’s wellness programme on two occasions.
o His condition was exacerbated by his divorce and disputes with the employer
o In November 2013 the employee faced disciplinary charges relating to absenteeism,
gross insolence and refusal to obey a lawful and reasonable order.
o At his disciplinary enquiry the employee admitted to the charges, but said that he
committed the acts of misconduct while suffering from a mental illness.
o The employee approached the Labour Court claiming that the reason for his dismissal
was that he had been unfairly discriminated against on the ground of a disability or
analogous arbitrary ground and that his dismissal was therefore automatically unfair in
terms of s 187(1)(f) of the LRA 1995.
o He also claimed that he had been unfairly discriminated against as provided for in s 6 of
the Employment Equity Act 55 of 1998.
o The court found that the employee was at all material times suffering from reactive
depression, a mental condition, which was triggered by stress in the workplace. It was
clear to the court that the employer had knowledge that the employee was a person
with a disability. For this reason, the employer was under a duty reasonably to
accommodate him.
o The employer failed to comply with its duty in this regard. • Instead of dismissing the
employee for misconduct, the employer had a duty to institute an incapacity enquiry.
Considering that the employer had been made aware of the employee’s condition, the
employer in deciding to dismiss the employee did not have any regard to the
circumstances under which the infractions happened and the effect of the employee’s
condition upon his conduct.
o The court considered the definition of ‘people with disabilities’ in s 1 of the EEA and was
satisfied that the condition suffered by the employee was not inconsistent with this
definition.
o
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The court, on the basis of the well-established test for determining whether a dismissal
is automatically unfair, was satisfied that the employer would not have dismissed the
employee had he not suffered from his condition. His conduct, as alleged by the
employer and for which he was dismissed, was inextricably linked to his mental
condition. The most probable inference to be drawn from the uncontested evidence of
the employee and the clinical psychologist was that the probable cause for the
employee’s dismissal was his mental condition.
o The court was, therefore, satisfied that the employee had made out a prima facie case
and discharged the evidential burden to show that the reason for his dismissal was on
account of his mental condition. On the contrary, the employer, in electing not to
produce any evidence, had failed to discharge the onus to prove the reason for dismissal
was permissible, as contemplated in s 191(2) of the LRA.
o Having found that the employee’s dismissal was automatically unfair in terms of s
187(1)(f) of the LRA, the court found that the employer had also unfairly discriminated
against the employee for the purposes of s 6 of the EEA.
o The employee sought retrospective reinstatement and the court found that, as the
employer had produced no evidence to show why reinstatement should not be ordered,
reinstatement with full retrospectivity was appropriate for the employee’s automatically
unfair dismissal.
o The court therefore declared that the employee’s dismissal was automatically unfair in
terms of s 187(1)(f) of the LRA and awarded retrospective reinstatement. It also
declared that the employer had unfairly discriminated against the employee in terms of
s 6 of the EEA and awarded him compensation equivalent to six months’ salary.
The labour courts have accepted that incapacity in the form of ill health or injury ≠ limited to
physical illness or injury and extends to an employee’s mental condition
Employers should be cautious in cases of disability → a dismissal that amounts to an act of
unfair discrimination on the grounds of disability is automatically unfair
A dismissal for poor work performance, on the other hand, is usually justified on account of a
lack of the skills or qualities necessary to perform the tasks that the employee is required to
accomplish
Incapacity can be distinguished from misconduct → in the case of misconduct, some degree of
‘fault’ is required on the part of the employee
o An employee who feigns illness is therefore guilty of misconduct rather than
incapacitated
o This distinction between incapacity and misconduct has a practical consequence
par 2.2 Medical Incapacity
The Code sets the following guidelines for medical incapacity:
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Investigate if the illness or injury will be temporary or permanent;
If the employee’s ill health or injury is of a temporary nature, but the employee is likely to be
absent from work for an unreasonably long time, seek alternatives to adapt the job;
o When considering alternatives, the following factors should be taken into account:
 the nature of the job,
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 seriousness of the illness or injury,
 possibility of making use of temporary employees and
 period of absence
o In the case of permanent ill health or injury, the employer should consider the
possibility of securing alternative employment or ways of accommodating the
employee’s disability
Employee should be given the opportunity to state a case; in response to an investigation into
the employee’s medical incapacity and to be assisted by a fellow employee or trade union
representative
If the reason is drug or alcohol related the employee should receive counselling;
Give particular consideration to find alternatives should the injury have occurred during the
performance of duties.
E.g. employee has Covid-19 or flu, or was in a motor vehicle accident
par 2.3 Poor Work performance
This contemplates the situation where an employee “can’t”, rather than “would not be bothered” to do
the work
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The Code of Practice provides that an employee should not be dismissed for poor work
performance unless:
o The employer has given the employee appropriate evaluation, instruction, training,
guidance or counselling; and
o The employee continues to perform unsatisfactorily after a reasonable period of time
for improvement has been given
There ≠ specific procedure prescribed to deal with poor work performance other than that the
procedure leading to dismissal should include an investigation
o The purpose of the investigation should be to establish the reasons for the employee’s
inability to meet the required performance standards and to allow the employer to
consider alternatives, short of dismissal, to remedy the matter
In a dispute as to whether or not a dismissal for poor work performance is unfair, an arbitrator is
enjoined to consider the following ito item 9 of the code:
o Whether or not the employee failed to meet a performance standard
o If the employee did not meet a required performance standard, whether:
 The employee was aware or could reasonably be expected to be aware, of the
required performance standard
 The employee was given a fair opportunity to meet the required performance
standard
 The dismissal was an appropriate sanction for not meeting the required
performance standard
The first stage in any enquiry into an employee’s failure to meet required performance
standards is to establish whether in fact the employee failed to do so:
o To establish a failure to meet the required performance standard → the employer must
adduce evidence of a set of factual circumstances that disclose poor work performance
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on the part of the employee, i.e. the employer must provide sufficient proof of
incompetence
 A failure in itself to meet targets set by management ≠ conclusive proof of poor
work performance – the targets may have been unattainable or arbitrarily set
 Two important principles that affect the assessment of performance:
 An employer is entitled to set the standards that it requires its
employees to meet
 It is for the employer to determine whether or not the required
performance standards have been met
The court will interfere only if either the standard or the assessment made by the employer is
unreasonable ∴ the employer ought to establish that its assessment of the employee’s
performance was objective and reasonable
o Additional supporting evidence, such as complaints by customers or other members of
staff is useful evidence in corroboration of the employer’s assessment
o It is not always necessary that the employer establish a pattern of poor work
performance → in some instances, a ‘single calamitous performance’ will be sufficient to
justify dismissal
 This is particularly so where a mistake made by an employee may result in
serious consequences
 E.g. the driver of a truck or a train or an airline pilot must exercise the
highest degree of professional skill, and the smallest departure from
that standard, even on a single occasion, may justify dismissal
In so far as the appropriateness of dismissal as a sanction is concerned → the employer is
required to consider ways short of dismissal to remedy the employee’s failure to meet the
required performance standard and the employer must satisfy itself that dismissal is an
appropriate penalty for failure
Procedure in terms of the Code:
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Employer should conduct an investigation to establish the reasons for unsatisfactory
performance of the employee;
Employer must give appropriate evaluation, instruction, training, guidance and counselling;
Employer must give the Employee a reasonable time to improve; and
The Employee has the right to be heard (audi alteram partem)
Dismissal: Operational Requirements L@W Ch 12 – par 1
Introduction
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A dismissal for a reason based on the employer’s operational requirements is a ‘no fault’
dismissal → i.e. in these circumstances it is the employer’s constraints and needs rather than
any act or omission on the part of the employee that causes the termination of employment
The law is therefore more prescriptive ito both substance and procedure than in the case of a
dismissal for conduct or capacity
o Why is it more prescriptive?
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o
To effect a balance between the promotion of the social good of preserving
employment and the preservation of the efficiency of the employer’s enterprise
Section 189 and section 189A of the LRA prescribe the procedures to be followed by an
employer intending to dismiss on the basis of its operational requirements
 The LRA distinguishes between two types of dismissals based on operational
requirements, namely:
 Large-scale dismissals as regulated by section 189A of the LRA; and
o Section 189A of the LRA which regulates large-scale
retrenchments affords the affected employees the election to
resort to industrial action on the substantive basis of the
dismissal or to refer the dispute to the Labour Court
o The Labour Court deals with disputes about whether the
employer adopted the required procedure on a separate and
more expeditious basis
 Small-scale dismissals as regulated by section 189 of the LRA
o Section 189 of the LRA continues to regulate retrenchments by
employers employing less than 50 employees and retrenching a
relatively small group of employees
The meaning of “operational requirements”
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The 213 definition: “economic, technological, structural or similar needs of an employer”
o Drawn from ILO Convention 158 on Termination of Employment
o The Code describes:
 economic reasons as those that relate to the financial management of the
enterprise,
 technological reasons refer to new technology that affects work relationships,
and
 structural reasons relate to the redundancy of posts consequent on the
restructuring of the employer’s enterprise.
 These are not the only categories: the expansive definition of operational
requirements has permitted the courts over the years to include in this category
of dismissals for incompatibility, and a refusal to accept changed conditions of
employment consequent upon the need to re-organise work.
Selection criteria
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If employees are selected ito criteria that are unfair, their dismissals will be considered
substantively unfair and possible automatically unfair
o What are selection criteria?
 Selection criteria are one of the matters on which an employer is obliged to
consult
 In the absence of agreement on selection criteria, an employer must apply fair
and objective criteria when selecting employees for dismissal
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This requirement precludes an employer from applying capricious
(unpredictable) or subjective criteria, and excludes the application of any
criteria that would amount to an infringement of a fundamental right
 Choosing employees for retrenchment on the basis of their union membership,
sex, pregnancy, age or another discriminatory ground would result in their
retrenchment’s being unfair and may constitute automatically unfair dismissal
 Generally acceptable selection criteria are based on length of service, skills and
qualification or an amalgam of those criteria
The most commonly employed criterion is that of ‘last in, first out’, often referred to as ‘LIFO’
o This criterion has consistently been accepted by labour courts as a fair, if not preferred,
criterion
 The application of LIFO is generally applied subject to a right to retain special
skills, especially where these are necessary for the continued operation of the
employer’s business
o The application of LIFO presupposes a pool from which the employer will select
employees for dismissal
 In the case of reduction in the workforce and selection is to be based on length
of service, the identity of the group of employees to whom the criterion is
applied can often determine the identity of the selected employee
 E.g. if a company decides to close its Cape Town office, an employee
could potentially challenge his selection for retrenchment on the basis
that the company has operations countrywide and that he had longer
service than other employees based elsewhere
 It is thus not those employees who are actually doing the jobs or occupying the
posts that are identified as redundant who necessarily form the group of
employees selected for retrenchment
Procedural fairness
After determining that the reason for a contemplated dismissal is one relating to the employee’s
operational requirements, a further classification is necessary:

The LRA draws a distinction between smaller and larger retrenchments and regulates each
separately
o S 189 does not allow employees to strike to influence the decision to retrench, s 189A
does.
o S 189 requires consultation for large and small scale retrenchments
o S 189A applies to employer employing more than 50 employees contemplating to
dismiss by reason of operational requirements,
 at least 10 employees. if the employs up to 200 employees
 20 employees, if the employer employs more than 200, but not more than 300
 It should be emphasised that the trigger for the application of section 189A is
the number of employees that the employer contemplates dismissing, not the
number of employees who are ultimately retrenched
Notice of Contemplation of Dismissal
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Consultation is initiated by the employer issuing a written notice ito section 189(3) of the LRA
inviting the other consulting parties to consult with it, and the disclosure, in writing, of the
following:
o The reasons for the proposed dismissals
o The alternatives that the employer considered before proposing the dismissals and the
reason for rejecting each of those alternatives
o The number of employees likely to be affected and the job categories in which they are
employed
o The processes or method for selecting which employees are to be dismissed
o The time when, or the period during which, the dismissals are likely to take effect
o The severance pay proposed
o Any assistance that the employer proposes to offer to those employees likely to be
dismissed
o The possibility of future re-employment of those employees who are to be dismissed o
The number of employees employed by the employer
o The number of employees that the employer has retrenched in the preceding 12
months
When must this written notice ito section 189(3) of the LRA be issued by the employer to the
other consulting parties?
o When the employer contemplates dismissing one or more employees for reasons based
on the employer’s operational requirements
o The employer may not make a final decision to dismiss prior to initiating the
consultation process, since the nature of the consultation process provides for a joint
consensus seeking process
o To permit the employer to make final decisions prior to the consultation defeats the
object of this process
When an employer contemplates dismissing one/more employees for reasons based on its
operational requirements → the employer is obliged to consult with a party whose identity is
determined in accordance with a strict hierarchy established by section 189(1) of the LRA (this
hierarchy is NB)
① Any person with whom the employer is required to consult ito a collective agreement has a
primary claim
② If there is no collective agreement that requires consultation and if the employees likely to
be affected by the proposed dismissal are employed in a workplace iro which there is a
workplace forum → the forum and any registered trade union whose members are likely to be
affected by the proposed dismissals have equal claim to be consulted
③ In the absence of a workplace forum → a registered trade union whose members are likely
to be affected by the proposed dismissals must be consulted
④ If there ≠ registered trade union whose members are likely to be affected → those
employees likely to be affected by the proposed dismissal, or their representatives nominated
for that purpose, must be consulted
This hierarchy is one ito which a potential consulting partner with a primary claim displaces all
others
o
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E.g. a minority union has no claim to be consulted in circumstances where the employer
is required to consult a majority union ito a retrenchment agreement concluded with
that union
Association of Mineworkers and Construction and Others v Royal Bafokeng Platinum Limited
and Others
o Labour Appeal Court rejected a constitutional challenge to the extension of a collective
agreement to non-parties that had the effect that the employer was required to consult
only with parties to the agreement
 The court reaffirmed the principle of majoritarianism and held that there was no
reason why it should not apply to the extension of an agreement that regulated
the right to be consulted in the event of a proposed retrenchment
 The Constitutional Court stated that s 189(1) did not limit the right to fair labour
practices. This was because the right to fair labour practices provided for in s 23
of the Constitution did not expressly, or by implication, guarantee a right to be
individually consulted in the retrenchment process
o The Labour Court has yet to develop a set of definitive guidelines in this regard, but on
the basis that the purpose of section 189 of the LRA is to ensure proper consultation
between an employer contemplating retrenchment and all potentially affected
employees, the net should be spread widely rather than narrowly
o It may therefore be incumbent on an employer to hold separate consultations with nonunionised employees
The consultation process
The purpose of the consultation is to engage in what section 189 of the LRA terms ‘a meaningful joint
consensus-seeking process’
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This represents the compromise between those seeking to impose an obligation to negotiate
the terms of a retrenchment and those seeking the maintenance of an obligation to consult
o Meaningful consensus seeking implies an obligation to act in good faith to seek common
ground and honestly explore the prospects of agreement
o A union delaying or refusing to cooperate could result in the employer continuing
without such union
o The parties to a consultation process must attempt to reach consensus on the
appropriate measures iro the following:
 To avoid retrenchment
 To minimise the number of retrenchments
 To change the timing of retrenchments
 To mitigate the adverse effects of the retrenchments
 The method for selecting the employees to be retrenched
 The severance pay that is to be paid to retrenched employees
o The employer must allow the other consulting party an opportunity to make
representations about any matter and is required to consider and respond to the
representations and, if it does not agree with them, to state its reasons for
disagreement

If any representation is in writing, the employer is obliged to respond to that
representation in writing
Disclosure of info
Section 189(3) of the LRA lists the information that must be given to consulting parties concurrently with
the invitation to commence consultation
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This list ≠ closed
o The Code of Good Practice on Dismissals Based on Operational Requirements suggests
that if considerations other than those listed in section 189(3) become relevant, there
should be additional and appropriate disclosure
The requirement of disclosure is fundamental to the consultation process since the role of the
consulting parties in joint consensus-seeking would be meaningless if they were not able to
participate on an informed basis
o However, the right to disclosure of information ≠ absolute → an employer is only
required to disclose information that is relevant ito section 16(2) and is specifically not
required to disclose information ito section 16(5) that:
 Is legally privileged
 The employer cannot disclose without contravening a prohibition imposed on
the employer by any law or order of any court
 Is confidential and, if disclosed, may cause substantial harm to an employee or
the employer
 Is private, personal information relating to an employee, unless that employee
consents to the disclosure of the information
o What information is relevant will depend on the facts of each case → in general, the
relevance and adequacy of information that may be sought and is to be provided should
be measured against the purpose that the information is intended to serve
In any dispute about the relevance of information, the onus is on any employer that resists
disclosure on the grounds of lack of relevance to prove that the information that it has refused
to disclose is not relevant for the purposes for which the information is sought
o Once relevance is established, the onus is again on the employer to demonstrate that,
notwithstanding the relevance of the information sought, one of the four grounds ito
section 16(5) precludes the other consulting party from access to the information that it
seeks
Remedies
In SA Commercial Catering & Allied Workers Union & others v Woolworths (Pty) Ltd,
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the Constitutional Court noted that reinstatement is the primary remedy that the LRA affords
employees whose dismissals are found to be substantively unfair
The Court found that the dismissals for operational requirements of a number of employees
who had refused to accept proposals regarding their conversion from fulltime employment to a
more flexible working hour arrangement was substantively unfair, primarily because the
employer had failed to establish that the retrenchments were operationally justifiable on
rational grounds
o
o
The court found that the employer had not properly considered alternatives to
retrenchment, including a wage freeze and the possibility of ring-fencing
The affected employees were accordingly reinstated with retrospective effect
Severance Pay
CALCULATE THE SEVERANCE PAY AN EMPLOYEE WHO WAS DISMISSED FOR OPERATIONAL
REQUIREMENTS WILL BE ENTITLED TO.
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The statutory formula for the payment of severance pay is contained in section 41 of the BCEA
The BCEA requires an employer to pay each retrenched employee a minimum of one week’s
remuneration for every contemplated and continuous year of service with that employer
The amount ≠ capped
Employee who ‘unreasonably refuses to accept the employer’s offer of alternative employment
with that employer or another employer’ is not entitled to severance pay
Reasonableness of offer/unreasonableness of refusal??
o It is the unreasonableness of the refusal that is relevant, rather than the reasonableness
of the offer
 A commissioner would be justified in adopting a two-stage test by enquiring
into the reasonableness of the terms of the offer and then into the
reasonableness of the refusal
 The terms of the offer require an evaluation of the proposed terms and
conditions of employment, the nature of the work, the extent of any relocation
that may be required and any change in status and the nature and extent of any
security of employment
 The reasonableness of the employee’s refusal of alternative employment
requires an assessment of personal and family circumstances
Conciliation and arbitration (unless LC is deciding on op req dismissal already)
Dismissal – questions
Question 1
Employer S has 10 employees in her construction and painting business. S has a problem with M, N and
O. M was negligent and has damaged S’s vehicle. He has also done some work for the competition
without informing S. On the other hand, N injured her back whilst on holiday. Since her return she has
missed a couple of days of work and it is not clear that N will be in a position to continue working as a
painter. S is aware of the fact that even if O tries his best, he does not have the ability to render
satisfactory services as the office manager. S wants to terminate M, N and O’s contracts and approaches
you for advice.
a. Advise S regarding the appropriate reason and procedure to be followed in M, N and O’s situations;
and also describe the procedure in M’s instance with specific reference regarding a strict court-like
procedure should be followed or not. Also explain what principles the CCMA would take into account to
establish whether there is substantive fairness in the case of M and also explain which test (subjective,
objective and viewed from the employer or employee’s perspective) the CCMA should adopt. (20)
Question 2
Employer XYZ has 200 workers. Due to the 4 th IR and the implementation of new technology XYZ is
considering to terminate 5 employee’s services. There are two trade unions at the workplace. TU K has
110 members and TU R has 40 members. Explain the procedure XYZ should follow; with which parties
the employer should consult; when and how the employees (or trade unions) should be notified; what
they can receive for every years of service; and whether the courts would be willing to award
reinstatement even though XYZ do not need their services anymore. (18)
Study Theme 8: Freedom of Association and Organisation Rights L@W Ch
14 par 1 Introduction
The right to freedom of association is recognised by the ILO in its Constitution and Convention 87. SA
Constitution recognises freedom of association as well
Protection of Freedom of Assoiation ito section 4 of the LRA
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The right to freedom of association is recognised in Ch II of the LRA.
It protects both employees and employers.
Every employee has the right:
o To form and join a trade union
o Not to be discriminated against
o Not to be victimised
There is some uncertainty regarding the extent to which the right to freedom of association of
senior managerial employees may be limited, or even excluded – the positions held by senior
managers may place them in a situation where they have a conflict of interest on account of
union-related obligations
IMATU v Rustenburg Transitional Local Council
o the court held that senior managerial employees may join trade unions as long as there
is no conflict of interest
 The onus rests on the employee to ensure that there is no conflict of interest
 E.g. a senior managerial employee cannot sit during managerial
meetings and decide on what the annual wage increase will be and then
in the next instance also negotiate obo the trade union for higher wages
 The Labour Court held that the LRA (as well as the Constitution) grants an
unrestricted right to freedom of association and may form and join employer’s
organisations
Employers are allowed to dismiss employees where there is a clear conflict of interest
Exceptions - ito section 25 and 26 of the LRA
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
Closed shop and agency shop agreements can only be described as exceptions to freedom of
association if one accepts that the right to associate and the right not to associate ≠ inseparable
elements of a single concept → i.e. one must ask whether the positive right (the right to
associate) and the negative right (the right not to associate) are two halves that make up a
whole (the right to freedom of association)
If so, any limitations of the right to freedom not to associate may be justifiable ito the limitation
clause ito section 36 of the Constitution
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These limitations seem to ‘fly in the face of’ the right to freedom of association, however, the
Constitution makes provision for such trade union security arrangements and the LRA also
makes provisions for such agreements
Note that these agreements can only be concluded by majority unions
Closed shop agreement:
o collective agreement concluded by a majority union and an employer or employer’s
organisation, which requires all employees covered by that agreement to become
members of the trade union
o It ≠ unfair to dismiss an employee who refuses to join a trade union party to the closed
shop agreement, or who is refused membership of that trade union or who is expelled
from such trade union
o ∴ a closed shop agreement compels employees to become members of the union and
the employer agrees to only hire union members.
o Conditions:
 only a representative trade union
 A ballot must be held of the employees to be covered by the agreement → in
this ballot, two thirds of the employees who vote must vote in favour of the
agreement
 The agreement may not require membership of the trade union before
employment commences
 The agreement must provide that no membership subscription or levy deducted
may be used for inappropriate purposes
 Section 26(7) of the LRA provides that, although an employee may be dismissed
for not being a member of the trade union party, employees who were already
employed at the time that the closed shop agreement comes into effect may
not be dismissed for refusing to join the trade union party to the agreement
 Employees who refuse to join a trade union party on grounds of conscientious
objection may also not be dismissed
 Who is a conscientious objector?
o A person who refuses to belong to a trade union because
his/her moral and/or religious convictions prohibit him/her
from associations with other person in this matter or in such
organisations
Agency shop agreement:
o a majority trade union and an employer may conclude a collective agreement that all
employees working for the employer must pay an amount (not higher than trade union
subscription) as agency fee.
o The employee does not have to become a trade union member of the majority trade
union
Right to organise
SA labour law does recognise an enforceable duty to engage in collective bargaining with a trade union.

Not possible for trade union to take employer to Labour court
LRA encourages trade unions, their activities and rights
NB!! - Ch III of the LRA establishes 5 statutory org rights for trade unions which rights are capable of
enforcement against the employer:
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①Access to the workplace (s 12)
②Deduction of trade union subscriptions (s 13)
③Election of shop stewards (s 14)
④Leave for trade union activities (s 15)
⑤Disclosure of information (s 16).
WHAT TESTS NEED TO BE APPLIED, AND WHAT LEGAL PROCESSES NEED TO BE FOLLOWED TO
DETERMINE IF A TRADE UNION IS “SUFFICIENTLY REPRESENTATIVE”?
Requirements to qualify

Only registered unions that are ‘representative’ may acquire organisational rights ito the LRA
o i.e. trade unions with very low representivity at a workplace ≠ qualify for statutory
organisational rights
 Key word = “representative”
o ∴ only trade unions which are (a) registered and (b) representative (either sufficiently
representative or a majority trade union) may acquire these statutory organisational
rights
 Therefore, very small trade unions with limited representation at the workplace would not be in
a position to claim these statutory organisational rights
 The LRA draws a distinction between unions that are: → merely ‘sufficiently representative’ and
→ ‘sufficiently representative’ unions with majority support in a workplace
 Any “representative” trade union can either be a “majority” trade union (50% = 1 member) at a
workplace, or a big union, but with no majority, that is a “sufficiently representative trade
union”
(1) Union must be registered ito LRA
(2) Union must be 'representative', either:
a. Sufficiently representative, or – can claim 3 of the 5 statutory organisational rights
b. Sufficiently representative with majority support (majority union) – can claim all 5
organisational rights
How is representivity determined?

With reference to the particular workplace where the trade union seeks organisational rights,
not to the unit within which it seeks to exercise those rights
o Unless the context indicates otherwise, a workplace is defined as:
 “the place/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 employees work in connection with each independent operation,
constitutes the workplace for that operation”

In Association of Mineworkers and Construction Union & others v Chamber of
Mines & others ( Very NB)
 The CC refused to apply the definition of ‘workplace’ literally and held
that a workplace ≠ the place where any single employee works → it is
where the employees of an employer collectively work
 ∴ the focus of the definition is on the collective, with location being
relatively immaterial and functional organisation being the more
material signifier
 The court upheld a finding that having regard to the organisational
methodology and practicalities of each mining company, members of
the Chamber of Mines,
 each company constituted a single, industry-wide workplace rather than
the individual mines at which the applicant union had a majority
 Thus, if two or more workplaces in separate locations are integrated
through, for example, IT systems, promotion systems, disciplinary codes
and salary scales, it would constitute one workplace
 Not necessarily the place where the person works. Only qualifies as a
workplace if the different places where the workers work are
genuinely independent of each other
 One IT system, HR, Promotion system – irrespective of where the
workers worked, the collectivity of the employer as a whole = one
workplace
 Thus AMCU bound by collective agreement even if they did not sign it,
the majority of workers working in the workplace signed it
EXPLAIN THE DIFFERENT ORGANISATIONAL RIGHTS THAT MAJORITY AND SUFFICIENTLY
REPRESENTATIVE TRADE UNIONS ARE ENTITLED TO.
Sufficiently representative
union (3 rights in total)
•Leave for trade union activities
•Deduction of trade union
subscriptions
•Access to the workplace
Majority unions (5 rights in total)
•Leave for workplace activities
•deduction of trade union subscriptions
•Access to the workplace
•Disclosure of information
•Trade union representatives
Sufficiently representative unions
For the purposes of Chapter III of the LRA, a ‘representative trade union’ is defined to mean, unless
there is an express reference to a majority union, a registered trade union that is ‘sufficiently
representative’ of the employees employed by an employer in a workplace
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A registered union may act jointly with any one or more unions in order to qualify as ‘sufficiently
representative’
The LRA ≠ stipulate what ‘sufficiently representative’ means, but unions that are sufficiently
representative are those unions that do not have as their members the majority of employees
employed by an employer at the workplace
∴ A relatively big trade union that is not a majority
The Labour Relations Amendment Act 6 of 2014 introduced a basis on which minority unions may
acquire the organisational rights ordinarily reserved for majority unions:

Section 21(8A) of the LRA empowers arbitrators to grant a registered trade union the right to
elect trade union representatives and to disclosure of information if the union meets the
‘sufficient representativeness’ threshold AND if no other union in the workplace has been
granted those rights
o ∴ If there is no majority trade union, a sufficiently representative trade union may also
appoint shop stewards (trade union representatives) and gain the right to access to
information if there is no other majority trade union at the workplace
o Any right granted ito section 21(8A) of the LRA lapses when the trade union concerned ≠
longer the ‘most representative’ trade union in the workplace
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Section 21(8C) of the LRA provides that in a dispute over organisational rights an arbitrator may
grant a union that ≠ meet the thresholds of representativeness established by a collective
agreement to which the employer and other unions are party any of the rights referred to in
section 12, 13 and 15 of the LRA provided that all parties to the collective agreement have been
given an opportunity to participate in the arbitration proceedings and that the union seeking the
rights represents a ‘significant interest’ or ‘substantial number of employees’ in the workplace
o This provision was inserted to discourage employers and majority unions from fixing
thresholds that effectively deny organisational rights to minority unions
o ∴ if there IS a majority trade union, a sufficiently representative trade union can also
apply for the rights of the majority trade union as long as it goes to arbitration and all
parties are present
NB! - NUMSA & others v Bader Bop (Pty) Ltd & another
The Constitutional Court had to decide whether minority unions and their members have the
right to strike in order to compel an employer to recognise the union’s shop stewards (trade
union representatives)
The court took into account the relevant ILO conventions on freedom of association, the right to
organise and the right to collective bargaining
This lead to the court’s conclusion that the right does accrue to minority unions and their
members
The court identified two important principles from the international instruments, namely:
o ① That freedom of association is as a rule to be interpreted to afford unions the right
to recruit members and to represent those members at least in individual workplace
grievances; and
o ② That unions have the right to embark on industrial action to pursue their demands
Nothing prevents a trade union from embarking on industrial action to try to secure
organisational rights in a workplace
Constitutional Court held that, while only certain unions qualify for the organisational rights
afforded ito chapter III of the LRA, nothing prevents a trade union from obtaining organisational
rights through other means, including collective bargaining and industrial action
∴ even though they cannot rely on the LRA, a small trade union may strike to gain organisational
rights
Small Trade unions may have a smaller chance though – court not prepared to limit right to
strike in light of statutory organisational rights
Majority unions
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Majority unions are those registered unions that on their own, or in combination with any one
or more unions, have as their members the majority of the employees employed by an
employer in a workplace o This requires at least 50% plus one of the employees employed in the
workplace must be members of the union(s)
In addition to the rights afforded to ‘sufficiently representative’ unions, majority unions also
have the right to have their members elected and function as trade union representatives in the
workplace and the right to disclosure of information
∴ majority unions are afforded the following rights and thus have all of the organisational rights
afforded by the LRA:
o
o
o
Trade union access to the workplace (section 12 of the LRA)
Deduction of trade union subscriptions (sometimes called ‘check-off’ facilities) (section
13 of the LRA)
Trade union representatives (‘shop stewards’), their election and functions (section 14)
 Some information need not be disclosed by the employer – this includes
information that: ( NB)
 Is legally privileged
 The employer is by law or order of court not allowed to disclose
 Is confidential and, if disclosed, may cause substantial harm to an
employee or the employer
 Is private personal information relating to an employee, unless that
employee consents to the disclosure of that information
Disputes about Statutory Org Rights
EXPLAIN THE PROCEDURE THAT A REGISTERED TRADE UNION MUST FOLLOW WISHING TO ACQUIRE
ORGANISATIONAL RIGHTS
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A registered union wishing to exercise any of the organisational rights must notify an employer
in writing of its intention and must include the following, ito section 21 of the LRA:
o A copy of its certificate of registration
o A submission that it is representative and why it should be considered so
o The workplace in which it wishes to exercise rights
o A description of the rights it wishes to exercise as well as the manner in which it wishes
to exercise them
The employer must meet with the union within 30 days in an endeavour to conclude a collective
agreement
o If a collective agreement ≠ concluded, the dispute may be referred to the CCMA
o where organisation refuses, trade union can refer matter to CCMA and CCMA will set up
conciliation and arbitration
The only requirement in section 21 of the LRA that could realistically be the subject of
disagreement is whether or not the union is sufficiently representative, in which case the
commissioner must consider the following factors in determining whether it is sufficiently
representative:
o In the event of a dispute about whether/not a union is representative, the
commissioner must, ito section 21(8) of the LRA:
 ①Seek to minimise the financial and administrative burden of requiring an
employer to grant organisational rights to more than one registered trade union
 ②Seek to minimise the proliferation of trade union representation in a single
workplace and where possible, to encourage a system of one representative
trade union in a workplace
 ③Have regard to various factors pertaining to the nature of the workplace, the
nature of the organisational rights that the union wants to exercise, the nature
of the sector in which the workplace is situated as well as the organisational
history at the workplace or any other workplace of the employer.
o
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In any other dispute about the interpretation/application of any provision of the Act
relating to organisational rights, the dispute must be referred to the CCMA for
conciliation
o In the event of unsuccessful conciliation → the dispute may be referred for arbitration
 Remember that a dispute that deals with dismissal for participating in a strike
related to organisational rights must be referred to the Labour Court
Ito an amendment to section 22 of the LRA effected by the 2014 Amendment Act, an arbitrator
may extend any arbitration award to clients of a temporary employment service for who any
employee covered by the award is assigned to work, and to any person other than the employer
who controls access to the workplace to which the award applies if that person was provided
with an opportunity to participate in the arbitration proceedings
SACTWU v Marley (SA) (Pty) Ltd (2000) 21 ILJ 425 (CCMA) - application of the criteria to
determine if a trade union is a representative trade union.
Facts:
o SACTWU referred a dispute to the CCMA concerning its entitlement to organisational
rights at the employer’s workplace (Marley Floors) ito section 12 (the right to access)
and section 13 of the LRA (the right to the deduction of union subscriptions)
o Of the 52 employees which were employed at the employer’s workplace (Marley
Floors), 29 (55.8%) of the workforce belonged to NUMSA and 22 (42.3%) belonged to
SACTWU
o The employer (Marley Floors) manufactured PVC flooring and fell under the Metal &
Engineering Industries Bargaining Council
o NUMSA was a member of the council and had an agency shop agreement with the
employer
o SACTWU was not a member of the council and its constitution, which defined the scope
of its activities, did not include the manufacture of PVC flooring
o The commissioner observed that to acquire organisational rights ito section 12 and 13 of
the LRA, the union had to show that it was ‘sufficiently representative’ of the employees
under consideration
Legal question:
o Whether SACTWU is entitled to organisational rights ito section 12 and section 13 of the
LRA, i.e. the right to access to the workplace and the right to deduct subscriptions off its
members’ salaries
Court held:
o In order to acquire organizational rights in terms of ss 12 and 13, the applicant needs to
show that it is sufficiently representative of the employees under consideration.
o The phrase 'sufficiently representative' is not defined in the Act, but in coming to a
finding as to whether the applicant is sufficiently representative and is therefore
entitled to these organizational rights, s 21(8)(a) says that the commissioner must seek
to:
 (1) minimize the proliferation of trade union representation in a single
workplace and, where possible, to encourage a system of a representative trade
union in a workplace,

o
o
o
(2) minimize the financial and administrative burden or requiring an employer
to grant organizational rights to more than one registered trade union.
 Section 21(8)(b) says that the commissioner must consider:
 (1) the nature of the workplace;
 (2) the nature of the one or more organizational rights that the
registered trade union seeks to exercise;
 (3) the nature of the sector in which the workplace is situated; and
 (4) the organizational history at the workplace or any other workplace
of the employer.
In coming to a finding the commissioner had reference to the requirements of section
21(8)(a) and section 21(8)(b) of the LRA and concluded as follows:
 Minimising the proliferation of trade union representation in a single
workplace → NUMSA had an agency shop agreement which avoided
fragmentation of the workforce. Both unions were members of COSATU which
discouraged the poaching of members of other unions. There was no good
reason to allow such proliferation
 Minimising the financial and administrative burden or requiring the employer
to grant organisational rights to more than one union → The agency shop
agreement lessened the administrative burden on the employer. Further, if
rights were granted some employees would have to pay double subscriptions
 The nature of the workplace → a union ostensibly created to represent
employees in the clothing and textile industry had no place in an industry
manufacturing PVC flooring
 The nature of the organisational rights sought → there was already a union in
place and the agency shop agreement ensured continuity and uniformity
regarding the payment of union subscriptions
 The nature of the sector → SACTWU was not a party to the bargaining council
 The organisational history at the workplace → the employer had a long
association with NUMSA. The granting of rights to SACTWU would be the recipe
for conflict and discord, and the unnecessary duplication of administrative tasks,
and would not benefit the employees concerned
the applicant had not shown that it would be of any benefit to the employees
concerned
SACTWU is denied the grant of any organisational rights at Marley Floors
Collective Bargaining and Worker Participation L@W Ch 14 – The principle of Majoritarianism and the
Rights of Minority Trade Unions
Police & Prisons Civil Rights Union v SA Correctional Services Workers Union & Others
Facts:

POPCRU and the Department of Correctional Services signed an agreement under section 18 of
the Labour Relations Act. The agreement set a minimum requirement of 9,000 members for
trade unions to be part of the Bargaining Council and to acquire organisational rights.
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SACOSWU, a minority union with about 1,500 members, approached the Department of
Correctional Services seeking to be granted organisational rights. The request was granted.
But POPCRU opposed the granting of organisational rights to SACOSWU. POPCRU said that the
granting of these rights to a minority union that did not meet the minimum requirements was a
violation of the agreement between POPCRU and the Department of Correctional Services.
SACOSWU argued that agreements under Section 18 of the Act could not prevent minority
unions from entering into other agreements with employers over organisational rights.
The matter was referred to the Bargaining Council and an arbitrator was appointed. The
arbitrator decided that the threshold agreement between POPCRU and the Department of
Correctional Services did not prevent minority unions from negotiating their own agreements
over organisational rights.
POPCRU then appealed this decision to the Labour Court. The Labour Court upheld the appeal
and overturned the decision of the Bargaining Council. The Labour Court found that the
threshold agreement did prohibit minority unions who did not meet the minimum threshold
from accessing organisational rights.
SACOSWU appealed this decision to the Labour Appeal Court. The Labour Appeal Court upheld
the appeal and found that the threshold agreement does not prevent minority unions from
entering agreements for the acquisition of organisational rights.
This led to POPCRU making the appeal to the Constitutional Court.
Issues:

Whether an employer is precluded from according certain of the organisational rights set out in
sections 12, 13 and 15 of the LRA to a minority union when it falls short of the representation
threshold agreed between the employer and the majority trade union in terms of section 18 (1)
Held:
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Constitutional Court held that although the agreement had expired, it was still in the interests of
justice to hear the matter. This was because the decision would have practical consequences in
future for minority unions who would like to exercise their rights.
The Court found that Section 18 of the LRA has an effect on the rights guaranteed in the
Constitution relating to the formation of trade unions and the right to engage in collective
bargaining. Because of this, the LRA had to be interpreted in a manner that would give effect to
the spirit and letter of the Bill of Rights. The Court found that the interpretation put forward by
POPCRU was incorrect. This interpretation would deny minority unions the right to engage in
collective bargaining. The Court also held that the Constitution granted this right to all trade
unions, regardless of whether they were majority or minority unions. This right could therefore
not be limited by way of agreement between a majority union and employer.
Minority unions could acquire organisational rights in three ways:
o First, they would acquire these rights automatically if they met the threshold set out in
the Section 18 agreement between the employer and the majority union.
o Second, if they did not meet the threshold requirement, they could enter into a
separate agreement with the employer for the acquisition of the rights.
o Third, in terms of Section 21 of the LRA, they could refer the matter to an arbitrator who
could determine if the minority union should acquire organisational rights.
Van Eck and Newaj “The Constitutional Court on the Rights of Minority Trade Unions in a Majoritarian
Collective Bargaining System
Introduction
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Constitutional Court cases to be examined have one feature in common. They deal with the
rights of minority trade unions in the context of the LRA’s collective bargaining framework that
is based on the principle of majoritarianism.
National Union of Metalworkers of SA and Others v Bader Bop (Pty) Ltd and Another, the
question was whether minority trade unions are entitled to strike to gain statutory
organisational rights despite the fact that these rights are only accorded to majority and
sufficiently representative trade unions.
o In this instance the minority trade union succeeded in defending its right to strike and
its right to gain organisational rights.
Police and Prisons Civil Rights Union v SA Correctional Services Workers Union and Others
o Dealt with the acquisition of organisational rights.
o However, in this instance the dispute related to threshold agreements concluded
between employers and majority trade unions.
o The question was whether such agreements should be permitted to exclude minority
trade unions from gaining organisational rights through the process of collective
bargaining.
o The Court decided in favour of minority trade unions and held that their right to
freedom of association would unjustifiably be limited if threshold agreements were
permitted to have such a restricting effect.
Association of Mineworkers and Construction Union v Chamber of Mines
o A minority trade union contested the extension of a collective agreement by majority
trade unions to them.
o Here, the collective agreement contained a no-strike clause.
o The Court upheld the argument that the majority trade union’s collective agreement
bound the minority trade union, thereby justifiably limiting the right of its members to
strike. This was a setback for minority trade unions.
Constitution protects the rights of workers and trade unions to freedom of association, to
organise, to strike and to engage in collective bargaining. From the wording of the Constitution
it is apparent that these rights are not only accorded to majority or representative trade unions.
this contribution seeks to consider to what extent the Court has developed coherent and
consistent principles regarding the rights of minority trade unions.
question will be asked whether the architects of the LRA were successful in developing a
coherent framework for collective bargaining; one which adequately acknowledges the
participation of minority trade unions.
CONSTITUTIONAL FRAMEWORK AND INTERNATIONAL NORMS


Section 23(4) to (5) regulates collective labour law - right of ‘every trade union and every
employers’ organisation’ to determine its own administration etc. And the right of ‘every trade
union, employers’ organisation and employer’ to engage in collective bargaining.
s 18 of the Constitution stipulates that ‘[e]veryone has the right to freedom of association’.
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the drafters of the LRA may not have taken account of the distinction between the right to
freedom of association that is accorded to ‘everyone’ and collective bargaining rights that are
accorded to trade unions and employers’ organisations.
Section 232 of the Constitution provides that when ‘interpreting any legislation, every court
must prefer any reasonable interpretation … that is consistent with international law’.
s 39(1) of the Constitution directs that when interpreting the Bill of Rights, courts and tribunals
‘must consider international law’ and ‘may consider foreign law’.
South Africa’s main international law obligations are derived from ratified ILO conventions and
related recommendations.
o ILO conventions only become binding on those member states that have ratified
particular conventions
o Recommendations merely provide support and guidance on the way in which a
particular convention may be interpreted and adopted.1
Section 1(b) of the LRA also confirms the importance of norms established by the ILO. It states
that it is one of the primary objectives of the LRA to ‘give effect to obligations incurred by the
Republic as a member state’ of the ILO.
The ILO and its supervisory bodies are not prescriptive regarding whether member states should
adopt collective labour law models that either promote majoritarianism, or pluralism.
Majoritarianism encourages single, but strong, trade unions and encourages the existence of
trade unions and employers’ organisations that represent the majority of workers in particular
industries.
Pluralism leaves room for multiple trade unions and bargaining agents to exist and bargain on
their members’ behalf, irrespective of their representivity.
South African courts are enjoined to prefer an interpretation of the Constitution and labour
legislation that acknowledges the rights of minority trade unions even though the LRA has
adopted a model that seeks to minimise the proliferation of trade unions in a single workplace.
ORGANISATIONAL RIGHTS FOR MINORITY UNIONS (BADER BOP)
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Despite the positive aspect that the Court was swayed by ILO principles, the question has quite
correctly been posed whether the Court went far enough in protecting the right to freedom of
association
whether a number of the organisational rights, such as the right to appoint shop stewards, and
the right to be represented by trade representatives of choice during individual grievance and
disciplinary hearings, should rather be placed under ch II of the LRA, which deals with freedom
of association for ‘every employee’ and ‘every employer’.
Instead, the court sought a more lenient, almost artificial mid-way, of interpreting the LRA to
leave room for the existence of minority trade unions.
THRESHOLD AGREEMENTS PERTAINING TO ORGANISATIONAL RIGHTS (SACOSWU )
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dealt with the right of minority unions to be accorded organisational rights.
The case essentially turned on the interpretation of ss 18 and 20 of the LRA.
Court advocated for a purposive interpretation of s 18, which avoided a meaning that limited
the applicable constitutional rights.
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The Court further supported the purposive interpretation given to s 20 in the earlier judgment
of Bader Bop
However, there is undoubtedly one area of difficulty in the majority judgment’s interpretation of
the LRA. This is the anomaly created by, on the one hand, giving majority unions the power to
conclude threshold agreements with an employer for the granting of organisational rights, while
on the other, giving a minority union the right to conclude a separate collective agreement with
the same employer that circumvents the purpose of the threshold agreement
o A conclusion that says or implies that an employer may be party to both a section 18(1)
collective agreement fixing a certain threshold of representativeness in the workplace
that unions must meet if they want certain statutory organisational rights and at the
same time also be party to a collective agreement granting those statutory
organisational rights to a trade union which does not meet that threshold will spell the
end of section 18(1) collective agreements.
o This is because such a conclusion will mean that a section 18(1) collective agreement
has no efficacy and is not helpful to anybody, be it the employer or the majority union.
The effect of such a conclusion will be that an employer who is party to a section 18(1)
collective agreement may breach such an agreement with impunity
We agree with Zondo J’s contention.
Section 18(1) of the LRA is in fact irrelevant if it can be overridden by a section-20 agreement.
Against the background of the anomaly created by the majority’s interpretation of s 20, it is
admittedly difficult to understand the purpose of s 20, other than in the way postulated by the
majority.
Considering Zondo’s connotation of s 20, While stating that a minority union is not barred from
negotiating with the employer to obtain organisational rights despite the existence of a
threshold agreement, the Judge sought to distinguish between statutory organisational rights
regulated by a threshold agreement and contractual organisational rights, which are the type of
rights that can be negotiated with the employer.
o s 20 caters for contractual organisational rights. He states as follows, ‘so, section 20
contemplates organisational rights in collective agreements whereas the organisational
rights dealt with in Part A of Chapter III of the LRA are not rights in a collective
agreement but in a statute or conferred by statute.
o he stated that if the rights granted by the DCS to SACOSWU were statutory
organisational rights then it was not permitted, because the s 18 threshold agreement
precluded this.
o in his view the organisational rights granted by the DCS to SACOSWU were not statutory
organisational rights but rather contractual organisational rights
o Zondo DCJ referred to the fact that contractual organisational rights were permitted
under the old dispensation and that nothing in the current LRA suggests that these
rights are no longer available or have been abolished
o It seems that Zondo DCJ’s reference to contractual organisational rights are trade union
rights in general, which could either be the same, overlap with or go beyond those
granted in ss 12, 13, 14, 15 and 16 of the LRA.
o
o
o
o
o
o
The only difference lies in the methods of attainment: the one being through the
mechanisms of s 21 of the LRA, and the other more difficult one for minority trade
unions, through collective bargaining.
Although we agree with the end result of both the majority’s and Zondo’s decisions, the
granting of organisational rights with substantively the same content, but under two
names, seems to be an artificial delineation
While SACOSWU adopted an approach that complies with international and
constitutional law in relation to the right to freedom of association, it does create
incongruity amongst LRA
Therefore, we argue that s 18 should be removed
what is the use of keeping s 18 in the LRA if agreements concluded in terms of it can be
disregarded with impunity when agreements are concluded in terms of s 20?
Added to this, it is suggested that policy-makers should review the whole structure
relating to the granting of organisational rights within the LRA. Some of these rights, like
access to the workplace, the appointment of shop stewards and the right to be
represented by a trade union of choice, fit better under the part of the LRA that deals
with freedom of association than the part that deals with collective bargaining.
Fergus “The Right to Union Representation in Individual Workplace Disputes: Whose Right Is It
Anyway? Thoughts on Solidarity v SA Police Service & others
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Solidarity v SA Police Service & others dealt with an application by an unrepresentative trade
union seeking permission from the employer of one of its members to have a Solidarity official
represent her during an individual grievance hearing.
The Labour Court referred inter alia to the limited provisions of the Labour Relations Act (LRA)
governing organisational rights in finding that there was no statutorily enforceable right
available to unrepresentative trade unions to enter the employer’s premises for the purposes of
representing their members in individual grievance hearings.
the applicant (an unrepresentative trade union) sought permission for one of its officials to
enter the employer’s workplace to represent a member during an individual grievance hearing.
The Labour Court’s Findings
o a warrant officer (WO) of the South African Police Service (SAPS) lodged a grievance
outside of the institutional grievance procedure against a colonel, accusing her of
racism. This being the seventh grievance by the WO against the colonel, she responded
with a complaint of her own, alleging harassment.
o A brigadier was then appointed to investigate the veracity of both the WO’s grievance
and the colonel’s official complaint. He concluded that there was no substance to the
WO’s grievances and his repeated allegations against the colonel amounted to
misconduct in the form of defamation and harassment.
o The brigadier nonetheless recommended transferring the WO to another division and
taking remedial steps to remedy his conduct.
o He did not recommend pursuing a charge of misconduct against him.
o Dissatisfied with this outcome, the colonel (with the help of her union, Solidarity),
lodged another grievance, seeking to review the brigadier’s recommendations. She
asked that a union official from Solidarity represent her during the grievance
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proceedings. But this was not permitted in terms of SAPS’s grievance policy, and her
request was declined.
 The policy states that only co­employees, or office­bearers, shop stewards or
officials of a trade union that is admitted to the Safety and Security Sectoral
Bargaining Council (SSSBC) may represent employees during such proceedings
o This led to an urgent application by the union to permit one of its officials to represent
the colonel during the grievance hearing
o The Labour Court began with the decision of the Constitutional Court in National Union
of Metalworkers of SA & others v Bader Bop (Pty) Ltd & another
o The Labour Court then turned to the decision of the same court in Police & Prisons Civil
Rights Union v SA Correctional Services Workers’ Union & others (POPCRU) that
confirmed the right of minority unions to access organisational rights in ss 12, 13 and 15
of the LRA through various mechanisms, and to do so despite an existing threshold
agreement
o in POPCRU, the Constitutional Court had noted that ‘[f]orcing workers who belong to
one trade union to be represented by a rival union at a disciplinary hearing seriously
undermines their right to freedom of association described earlier’
o Solidarity’s request was for it to be permitted to have one of its officials, rather than one
of its shop stewards, represent the colonel during the grievance proceedings. This
meant that the applicable organisational right was to be found in s 12 — the right to
access the workplace (which pertains to union officials and office bearers) — rather than
s 14 of the LRA (which pertains to shop stewards).
o However, the union had not relied on either of these rights in its application. It
contended that the right of the union to represent the colonel was a discrete right and
an element of freedom of association drawn from s 23 of the Constitution read with ILO
Convention 87
o Firstly, the cases relied upon were not on point: they confirmed only the right of
minority, unions to negotiate for these rights, rather than a judicially enforceable right
of minority union officials to access the employer’s workplace for the purposes of
representing their members during grievance and disciplinary hearings.
o Secondly, the LRA had been enacted to give effect to the rights in s 23 of the
Constitution and ILO Convention 87. The principle of subsidiarity therefore precluded
direct reliance on these rights.
o The applicant had neither sought to rely on any particular right under s 4 of the LRA
(regulating freedom of association) nor had mounted a constitutional challenge to the
section, and no alternative right or basis was put forward for the declarator which
Solidarity sought
o before closing its judgment, the Labour Court commented that while the applicant had
not tried to impugn the provisions of the LRA as unconstitutional (in that they did not
give full effect to freedom of association in this context), ‘[s]uch an attack [was]
foreshadowed by the extract from the Bader Bop judgment reflected
The POPCRU decision similarly implied this
Questions Raised:
o
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The court in Solidarity implied that the LRA’s regulation of representation rights for unre
presentative unions in individual disputes may be unconstitutional.
o Does the LRA limit the right to freedom of association?
o he right must be understood in context — freedom of association as it is given effect to
by the LRA in accordance with s 23 of the Constitution. Both freedom of association in s
18 of the Constitution, and the rights owed to workers and trade unions under s 23(2)
and (4) of the Constitution are therefore at stake
o Section 23(2) is only slightly more revealing: it provides the right of all workers
to form and join trade unions and to participate in their activities and programmes. Sec
tion 23(4) adds to these the rights of trade unions to
organise and to determine their own administration, programmes and activities.
. International principles are an instructive starting point.
o Art 2 of ILO Convention 87 extends the right to establish and to join organisations of
their choice to all workers. Article 3 adds the right of workers’ organisations to
formulate their own rules and constitutions, to elect their own representatives, and to
organise their administration, activities and programmes without interference. In Bader
Bop, cited with emphasis in Solidarity, the Constitutional Court pointed out that art 2 of
this convention had been found by the ILO’s committee of experts to mean that
o ‘a majoritarian system will not be incompatible with freedom of association, as long as
minority unions are allowed to exist, to organise members, to represent members in
relation to individual grievances and to seek to challenge majority unions from time to
time
Factors for consideration in a limitations clause analysis
o it is not clear that the internationally recognised right to be represented by a trade
union official during grievance proceedings is a right which belongs to employees or a
right which accrues to the union officials
o To the extent that the right belongs to officials first and foremost, the Labour Court’s fo
cus in Solidarity on organisational rights was apt and possibly the end of the matter.
o freedom of association rights in the labour context (under s 23 of the Constitution and c
hapter 2 of the LRA) is not limited to trade unions; it begins with the rights of employees
o In contrast, the organisational rights listed in part A of chapter 3 of the LRA
o speak to the collective capacity and rights of trade unions seeking to bargain with
employers there are various factors which suggest that union officials (from
unrepresentative unions) should be allowed access to the workplace to represent their
members in individual workplace disputes, failing which the constitutional right to
freedom of association owed to employees is limited. Such a limitation would be neither
reasonable nor justifiable in an open and democratic society based on human dignity,
equality and freedom
Study Theme 9: Collective Bargaining, Strikes and Lock-outs
THE MEANING, REQUIREMENTS AND FUNCTIONS OF TRADE UNIONS, EMPLOYERS’ ORGANISATIONS,
AND BARGAINING COUNCILS.
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LRA promotes orderly collective bargaining
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Definition of collective bargaining:
o “Employees and employers make claims, negotiation, leading to a collective agreement.
Negotiating for a fair share of the results of work.”
The LRA does not compel collective bargaining and courts do not determine if an employer
should bargain with a TU.
The LRA facilitates and encourages collective bargaining, but does not establish an enforceable
duty like the one that existed during the previous era.
Question 1 Explain whether the LRA imposes a duty to bargain? Describe the meaning of trade union,
employers’ organisation and bargaining council. What are the main requirements for the registration of
the mentioned institutions and what are their main functions? (12)
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The LRA does not compel collective bargaining and the courts have no role in determining
whether an employer should bargain collectively with a trade union, what they should bargain
about, at which level they should bargain or how parties to a negotiation should conduct
themselves
o The SCA has said that “The LRA emphasises the virtues of collective bargaining but
nowhere suggests that the process should be other than voluntary”
o The drafters of the LRA deliberately excluded any mention of a duty to bargain from the
definition of ‘unfair labour practices’
o There is a direct preference for a system that does not rely on a legally enforceable right
to bargain
o The Constitution, while recognising and protecting the central role of collective
bargaining in our labour dispensation, does not impose on employers or employees a
judicially enforceable duty to bargain
o The LRA remains facilitative rather than prescriptive while promoting collective
bargaining as the primary mechanism to establish terms and conditions of employment
and avoid industrial conflict
Bargaining parties
Definition of Trade Union (section 213 of the LRA) an association of employees whose principal
purpose is to regulate relations between employees and employers, including any employers’
organisations
Definition of employers’ organisation (section 213 of the LRA) any number of employers
associated together for the purpose, whether by itself or with other purpose, of regulating
relations between employers and employees or trade unions
What are bargaining councils? Bargaining councils are voluntary bodies, established by
registered trade unions and registered employers’ organisations that have achieved a threshold
of representivity in a defined sector
What is the main function of a bargaining council? ▪ To serve as a forum for the negotiation of
terms and conditions of employment of the members of the union parties to the council, and for
all employees engaged in the sector
Registration and Constitution of trade unions and employers’ organisations
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The process of registration is similar to that which applies to close corporations and companies.
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The process is directed primarily to ensure democratic practices, financial accountability,
independence and non-discrimination within employers’ organisations and trade unions.
Requirements for registration of trade unions or employers’ organisations
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Any trade union may apply to the registrar for registration if it complies with the following
requirements:
o its name or a shortened form of the name does not so closely resemble the name or
shortened form of the name of another trade union that it is likely to mislead or cause
confusion;
o it has adopted a constitution that meets the requirements of section 95(5) and (6);
o it has an address in the Republic; and
o it is independent
o A trade union is regarded as independent if:
 It is not under the direct or indirect control of any employer or employers’
organisation; and
 it is free of any interference or influence of any kind from any employer or
employers’ organisation.
The requirements for registration of employers’ organisations are similar, except that there is no
requirement of independence.
The amendments to the LRA introduced in 2002 require the registrar to be satisfied that a trade
union or employer organisation applying for registration is genuine. This additional requirement
was introduced after an increase in the number of trade unions and employers’ organisations
seeking registration primarily to secure rights of representation before the CCMA and labour
courts
Guidelines have been published by the minister, in consultation with NEDLAC, to provide
indicators of ‘genuineness’. The criteria established by the guidelines include:
o In the case of a trade union,
o the circumstances in which the union was formed,
o qualifications for membership,
o the activities of the union, (for example, the submission and negotiation of demands on
behalf of members),
o independence from employers,
o whether the organisation is an association not for gain,
o financial arrangements with regard to litigation and federation affiliations.
No single factor is conclusive, and the registrar is required to take into account a conspectus of
all relevant factors.
Similar criteria apply, with the necessary changes, to employers’ organisations that apply for
registration.
The constitution of a trade union or employers’ organisation
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The constitution of any trade union or employers’ organisation that intends to register must,
amongst other things,
state that the trade union or employers’ organisation is an association not for gain
prescribe qualifications for, and admission to, membership
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establish the circumstances in which a member will no longer be entitled to the benefits of
membership
provide for the termination of membership
provide for appeals against loss of the benefits of membership or against termination of
membership, prescribe a procedure for those appeals and determine the body to which those
appeals may be made
prescribe a procedure for nominating or electing office-bearers and, in the case of a trade union,
trade union representatives
prescribe a procedure for appointing, or nominating and electing officials
Registration of trade unions and employers’ organisations
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Any trade union or employers’ organisation may apply for registration to the registrar by
submitting:
o a prescribed form that has been properly completed;
o a copy of its constitution; and
o any other information that may assist the registrar in determining whether or not the
trade union or employers’ organisation meets the requirements for registration.
o send the certificate and a certified copy of the registered constitution to the applicant.
Strike ballots – NB!
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Constitution must require a strike ballot. However, does not affect whether it is a protected
strike or not.
There is no requirement for a secret ballot prior to a strike or lock-out.
The effect of the provisions of section 95(5) (p) is that a trade union or employers’ organisation,
before calling a strike or lock-out, must conduct a ballot of those of its members in respect of
whom it intends to call the strike or lock-out.
However, section 67(7) of the LRA provides that the failure of a registered trade union or a
registered employers’ organisation to comply with the provision in its constitution requiring it to
conduct a ballot of those of its members in respect of whom it intends to call a strike or lockout, may not give rise to or constitute a ground for any litigation that will affect the legality of
the strike or lock-out.
Members of the trade union or employers’ organisation may not be disciplined or have their
membership terminated if they fail or refuse to participate in any strike or lock-out if:
o no ballot was held about the strike or lock-out; or
o a ballot was held but a majority of the members who voted did not vote in favour of the
strike or lock-out
Effect of registration Body corporate; may sue in own name; acquire property; and conclude
agreements
National Union of Metalworkers of South Africa v Mahle Behr SA (Pty) Ltd:
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As mentioned, in terms of s95(5)(p) of the Labour Relations Act, trade unions National Union of
Metalworkers of South Africa v Mahle Behr SA (Pty) Ltd (Association of Mineworkers &
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Construction Union as Amicus Curiae) 2020 41 ILJ 2093 (LAC) and employers’ organisations are
required to conduct a secret ballot amongst its members before calling a strike or lock-out in
respect of such members.
The new Labour Relations Amendment Act, No 8 of 2018 (Amendment Act) sets out transitional
provisions in s19 which require trade unions and employers’ organisations to provide for secret
strike ballots in circumstances where their constitutions do not already provide for same.
The transitional provisions require trade unions and employers’ organisations, which are in the
process of amending their constitutions to give effect to section 95(5)(p) of the Labour
Relations Act, to conduct a secret ballot of members before engaging in a strike or lockout.
Issues:
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The Labour Court had to consider the validity of a strike which was not preceded by a secret
ballot in this case.
Facts:
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The respondents, NUMSA and its members who were employed by the applicants, were
engaged in a strike.
NUMSA’s constitution did not provide for a recorded and secret ballot to be held prior to a
strike in terms of section 95(5)(p) of the Labour Relations Act.
The applicants applied to the Labour Court to interdict the respondents from engaging in this
strike until a secret ballot was conducted by NUMSA.
The Labour Court considered whether the transitional provisions in the Amendment Act applied
to the respondents and, if they were applicable, whether the application of the transitional
provisions required a recorded and secret ballot before the respondents could embark upon a
strike.
NUMSA argued that the transitional provisions infringed the constitutional right of the union
and its members to strike.
The Labour Court clarified that the requirement to conduct a secret ballot did not constitute an
infringement on the right to strike.
The respondents’ second argument against the application of the transitional provisions rested
on the specific interpretation of the transitional provisions.
NUMSA argued that the obligation in section 19(2) to conduct a recorded and secret strike
ballot only arose after the registrar issued NUMSA with a section 19(1)(b) directive.
NUMSA argued that since no directive had been issued, it was not obliged to conduct a secret
ballot.
The Labour Court held that this interpretation of section 19(2) was unfounded as the purpose of
section 19 is ultimately to create a uniform requirement of a recorded and secret ballot before a
strike by a union, or a lockout by an employer’s organisation and that section 19(2) seeks to
regulate the position before the registrar completes the section 19(1)(a) and (b) consultation
and directives processes.
The Labour Court also clarified that the transitional provisions applied to all trade unions where
their constitutions are silent on the requirement of a recorded and secret strike ballot.
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Accordingly, a recorded and secret ballot is always required before a strike, and as NUMSA did
not hold such a ballot, the union was not entitled to engage in a strike and was therefore
interdicted from doing so.
This judgment clarifies the position that a strike can be interdicted as a result of the failure to
conduct a recorded and secret ballot.
Constitution must require a strike ballot. However, does not affect whether it is a protected strike or
not. (see Ch 16 on protected and unprotected strikes)
Bargaining councils
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one of the purposes of the LRA is to promote collective bargaining ‘at sectoral level’
The primary vehicle to achieve this purpose is the bargaining council.
Bargaining councils defined as voluntary bodies, established by registered trade unions and
registered employers’ organisations that have achieved a threshold of representivity in a
defined sector.
3 Main functions of bargaining councils:
o Dispute resolution
o Negotiate about higher wages
o Conciliation and arbitration
o Collective bargaining.
 to serve as a forum for the negotiation of terms and conditions of employment
of the members of the union parties to the council, and sometimes, for all
employees engaged in the sector.
The next question is theoretical in nature and this type of question will not be posed in take away tests
or exams. However, you should be able to answer the following:
Question 1 Explain whether the LRA imposes a duty to bargain? Describe the meaning of trade union,
employers’ organisation and bargaining council. What are the main requirements for the registration of
the mentioned institutions and what are their main functions? (12)
No, no duty imposed but LRA makes provision for the registration of trade unions, bargaining councils,
employers organisations – promotes and encourages collective bargaining
Strikes and Lock-outs L@W Ch 16 – par 1 Introduction
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Strikes are destructive
o by definition an act that is destructive in economic and other terms
The right to strike can be derived from the ILO conventions
o derived from Conventions 87 and 98, which respectively regulate the rights to freedom
of association and to bargain collectively. In this sense, the right to strike is an essential
means for the promotion of the social and economic interests of employees and trade
unions, based ultimately on the proposition that trade unions should be free to organise
their activities and formulate their programmes for the purposes of defending the
interests of their members.
Right to strike forms part of collective bargaining (Lord Wright)
o
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“The right of workmen to strike is an essential element in the principle of collective
bargaining.” This is obvious. If the workers could not, in the last resort, collectively
refuse to work, they could not bargain collectively’. Those who subscribe to this view
argue that the right to strike is regarded as an essential component of the collective
bargaining process.
o The right of recourse to industrial action is regarded as a potential weapon that serves
to maintain the equilibrium between labour and the concentrated power of capital.
o On this basis, the exercise of the right to strike would necessarily have to be limited to
industrial action called by a trade union, in support of a demand related to the
bargaining process.
It is a human right
o Others see it as a human right rather than a right dependent on collective bargaining.
o Classifying the right to strike in this way has profound consequences – not least because
it is a right no longer constrained by any rationale related to the need to maintain
equilibrium between capital and labour, the more traditional justification for the right to
strike
o The ILO has stated that although strike action is a fundamental or basic right, it is not an
end in itself
S23(2) of the SA Constitution
o provides that every worker has the right to strike.
The Constitutional Court has recognised both the component of the right to strike which seeks
to protect the dignity of employees (by not being treated as coerced employees) and that, which
enables workers to assert their bargaining power in the workplace.
NUMSA v Bader Bop (Text book sufficient)
o In s 23, the Constitution recognises the importance of ensuring fair labour relations.
o The entrenchment of the right of workers to form and join trade unions and to engage
in strike action, as well as the right of trade unions, employers and employer
organisations to engage in collective bargaining, illustrates that the Constitution
contemplates that collective bargaining between employers and workers is key to a fair
industrial relations environment.
o This case concerns the right to strike. That right is of historical and contemporaneous
significance.
 In the first place, it is of importance for the dignity of workers who in our
constitutional order may not be treated as coerced employees.
 Secondly, it is through industrial action that workers are able to assert
bargaining power in industrial relations. The right to strike is an important
component of a successful collective bargaining system
In re Certification CC Case. Absence of the right to lock-out challenged. Employers may engage
in collective bargaining and therefore they may lock-out
o During the negotiation process of the Constitution
o Included in that was the right to lock-out
o Employer locks the factory to put pressure on the workers to accept the employers’
demand
o
o
o
o
o
When final constitution came out – explicit words that say there is a constitutional right
to lock-out was not included in the constitution
Question before court – whether the final constitution was aligned to the principles
contained in the interim constitution
Held that irrespective of the fact that the words, the right to lock out had not been
included in the final constitution, there was no problem with this
Court said due to the fact that the right to engage in collective bargaining had been
included in the FC, the right to lockout also covered by FC
Much more important to have the right to strike to have those explicit words, but due to
all the other rights employers have such as the right to dismiss workers, and superior
bargaining power it has, it is not necessary to place the right to lock-out in an explicit
way
Definition of a strike
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Section 213 of the LRA defines a strike in the following terms: “the partial or complete
concerted refusal to work, or the retardation (go-slow) or obstruction of work, by persons who
are or have been employed by the same employer or by different employers, for the purpose
of remedying a grievance or resolving a dispute in respect of any matter of mutual interest
between employer and employee, and every reference to ‘work’ in this definition includes
overtime work, whether it is voluntary or compulsory.”
Refusal to work
o The partial or complete refusal to work, or retardation or obstruction of work.
o A strike need not necessarily amount to a complete withdrawal of labour.
o Strikes assume a variety of forms:
 A partial refusal means that employees perform some duties but not others.
 Retardation of work is manifested in the so-called ‘go-slow’ where employees
continue to work, but at a slower pace and the work-to-rule where employees
do only the work they are strictly contractually obliged to do, and no more.
 The obstruction of work refers to the situation where the workers affect
production in one way or another by being obstructive.
 What is work and withdrawal of labour?
o (b) By persons who are or have been employed by the same employers or by different
employers
o Currently?
o Have been employed?
o Different employers?
 includes all those who are currently employed but extends the scope to those
who ‘have been employed’ in the past and who may no longer be employees.
Therefore, if a strike is protected, employees could conceivably continue
striking even after they have been dismissed.
2) Collective Action: - This refers to a concerted refusal by the employees to work.
o The right to strike is part of the collective bargaining process. Therefore, by its very
nature, striking is collective action.
o
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The reference to ‘concerted refusal’ and to ‘persons’ in the definition indicates that
more than one person must be involved in the refusal to work.
o Schoeman & Another v Samsung Electronics (Pty) Ltd: In this case the court held that
owing to the concerted refusal element of the definition of a strike, a single employee
cannot strike.
3) Purpose of the strike: - ''… For the purpose of remedying a grievance or resolving a
dispute...''
The purpose-related requirement distinguishes a strike from other forms of work stoppage.
Central to a strike is the demand that gives rise to it and this should reflect the required
purpose that:
o A grievance be remedied or
o A dispute resolved.
 The word ‘dispute’ includes an alleged dispute.
 Therefore, it is not necessary for the party in dispute to do more than allege
that a dispute exists.
 All employees of an employer are entitled to strike whether or not they are
directly involved in the dispute.
 If there is no dispute, there cannot be a strike:
 If employees refuse to work but do not seek to remedy a grievance or
resolve a dispute, there is no strike in terms of the definition.
 union may not strike in support of an unlawful demand.
 If the dispute giving rise to a strike has been settled or the employer
has agreed to the demands, the strike no longer has a purpose.
o Eg: A strike can terminate in many ways such as when the
strikers abandon the strike and return to work unconditionally.
Eg: The employer concedes to the demands of the strikers by
removing the grievance or by resolving the dispute. In these
examples the act or event that conduced the strike falls away
and the strike no longer has a purpose.
in respect of any matter of mutual interest between employer and employee...''
o The Labour Relations Act does not define a matter of mutual interest, however, the
concept assumes two intertwined elements: the existence of an employment
relationship; and a mutuality of interest shared by the employer and the employee.
o Moreover, the Labour Relations Act does not distinguish between ‘disputes of right’
and ‘disputes of interest’ and thus, the concept is said to include both categories of
dispute.
 ‘Disputes of right’: Are conflicts that arise over the interpretation and
application of existing labour laws, employment contracts, collective
bargaining agreements, custom and practice or common law of employment.
Disputes of right cannot be settled by way of negotiation because of the legal
nature of rights themselves which require judicial adjudication. Examples:
Disputes relating to unfair dismissal, unfair discrimination, and unfair labour
practices.
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o
Disputes of interest’: Are disputes between employers and employees where
neither party has a right to that which it wants as these interests are not legally
recognised or entrenched and thus do not amount to rights. Disputes of
interest can be resolved through negotiation. Example: wage increase
disputes.
Therefore: “A dispute of interest is one in which the claimant party seeks a benefit or
advantage to which [they] have no legal entitlement; a dispute of right is one
concerning the alleged infringement of a legal right, or the conferment of a benefit to
which the claimant is legally entitled.”
Purpose of strike
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For purpose of remedying a grievance or resolving a dispute
o Demand
o Alleged dispute
o Only read p 454 – 456 top of para
(b) In respect of matters of mutual interest
o What is matter of mutual interest
o Mutuality of interest
o It includes “disputes of right” and “disputes of interest” eg – wage dispute.
Protected and unprotected strikes: Substantive limitations (NB!!)
Protected strike: Where employees comply with the substantial and procedural requirements of the
Labour Relations Act.
Unprotected strike: Where employees do not comply with the substantial and procedural requirements
of the Labour Relations Act.
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Section 65 of the LRA provides that no person may take part in a strike or lock-out or in any
conduct in contemplation or furtherance of a strike or lock-out if
o (a) there is a collective agreement in place that binds such persons and prohibits them
from taking part in a strike or lock-out in respect of an issue in dispute;
o (b) that person is bound by an agreement that requires such a dispute to be referred to
arbitration;
o (c) the issue in dispute is one that a party has the right to refer to the Labour Court or
arbitration in terms of the LRA or any other employment law; or
o (d) that person is engaged in an essential service or maintenance service
Protected and unprotected strikes: Substantive limitations
In respect of this limitation:
o (a) there is a collective agreement in place that binds such persons and prohibits them
from taking part in a strike or lock-out in respect of an issue in dispute; There is
important reading material:
o Association of Mineworkers & Construction Union v Chamber of Mines (2017) 38 ILJ 831
(CC) (Get the full case- study it. Text book no sufficient (Majority trade unions can
extend collective agreements to minority trade unions. Majority agreed not to strike.
Limits their right to strike. Definition of “workplace”?
o
Van Eck “In the Name of ‘Workplace and Majoritarianism’: Though Shalt not Strike ―
Association of Mineworkers & Construction Union v Chamber of Mines (2017) 38 ILJ 831
(CC) and National Union of Metalworkers of SA & Others v Bader Bop (Pty) Ltd &
Another (2003) 24 ILJ 305 (CC)” 2017 ILJ 1496- 1510 (Study the full article. Important for
the exam)
 Procedural Requirements: - S.64 of the Labour Relations Act: Every employee has the right to
strike and every employer has recourse to lock-out if:
 1). The issue in dispute has been referred to a bargaining council or to the CCMA for
conciliation, AND
 Additionally, either one of the following two must also be met for the first procedural
requirement to be fulfilled:
o A certificate stating that the dispute remains unresolved has been issued; or
o A period of 30 days has elapsed (or any extension of that period agreed to between the
parties to the dispute) since the date on which the bargaining council or the CCMA
received the referral.
1. There is a collective agreement in place that binds such persons and prohibits them from taking
part in a strike or lockout in respect of an issue in dispute.
 The purpose of this limitation is to prevent employers and employees from resorting to the
right to strike or lock-out in situations where the parties themselves have previously agreed
that it will not be appropriate for them to resort to industrial action over a particular issue.
 Only a registered trade union can agree to waive the right to strike in terms of a specific
issue/dispute by way of a collective agreement.
 AMCU v Chamber of Mines (2017):
o At issue was whether workers at five gold mines may exercise the right to strike
with an agreement prohibiting strikes, to which they were not party, was in force.
o The union representing the majority of workers at each of the mines is the first
applicant, AMCU. The second and further applicants are its members at those
mines. But AMCU is not the majority union at any of the mining companies who
own the mines. - The question is whether an agreement concluded between mining
companies and their collective representative, on the one hand, and unions
representing a majority of workers of those companies, on the other, binds
employees at individual mines where their own union, which is not party to the
agreement, is the majority union.
o The legal issue arises from three provisions of the Labour Relations Act:
 S.23(1)(d) which enables employers and unions to make binding on nonparties, a collective agreement they have concluded if the agreement
expressly binds them and the trade unions party to the agreement has as
their members, the majority of employees employed by the employer in the
workplace.
 S.213 which defines ‘workplace’.
 S.65 which prohibits striking by anyone who ‘is bound by any arbitration
award or collective agreement that regulates the issue in dispute’.
o
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The legal question before the court was: Did the collective agreement concluded by
the Chamber of Mines and NUM, Solidarity and UASA bind AMCU members at the
five mines where it was in the majority, such that it was prohibited from striking?
 If it did bind AMCU, the Labour Relations Act prohibited its members from
striking.
o s 213 of the LRA defines a workplace as ‘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 employees work in connection with each
independent operation constitute the workplace for that operation.’
o each of the individual mining houses shared the same financial, information
technology and human resources systems; and consequently operated in an integral
fashion thereby constituting a single workplace. The Court concluded that ‘no
reason in constitutional principle, legal analysis or factual assessment provides a
reason for this court to overturn those findings’. constructive dismissal
Macsteel Service Centres SA Proprietary Limited v Numsa & Others
o The case dealt with an urgent application by Macsteel to attempt a prevention of a
strike by Numsa.
o Facts:
o Macsteel was in a position to pay 100% of employees’ salaries for March and April,
and 80% of employees’ salaries for May, June and July 2020. They then relied on
the TERS-scheme (Temporary Employee Relief Scheme) to make up the balance.
o Judgement:
o The judgment states that Macsteel was under no legal obligation to pay the
employees who were not legally allowed to work
o employees who “rendered no service, albeit to no fault of their own or due to
circumstances outside their employer’s control, like the global Covid-19 pandemic or
the national state of disaster, are not entitled to remuneration, and Macsteel could
have implemented the principle of ‘no work no pay’.
o where employees rendered 100% of their services, they were entitled to 100% of
their salaries. The court further found that the salary reduction to 80% constituted a
unilateral change to terms and conditions of employment.
o "The reality in law is the employees who rendered no service, albeit to no fault of
their own or due to circumstances outside their employer's control, like the global
Covid-19 pandemic or the national state of disaster, are not entitled to
remuneration and Macsteel could have implemented the principle of 'no work no
pay' "
o Employers who applied the no work no pay principle during lockdown and who
claimed TERS benefits for their employees should therefore not be distressed about
their course of action, which was correct.
o Labour Court correctly held that the employer had no legal obligation to pay
employees during level 5 and level 4 of the lockdown as employees were not legally
able to work.
Dismissal of employees engaged in strike action (NB!)
Roberts Brothers Construction Pty Ltd v NUM (2020) 10 BLLR 1030 (LAC)
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Dismissal for unprotected strike
unprotected industrial action
Employer dismissed employees for not heeding to ultimatum without engaging with union
in terms of Item 6(2) of the Code of Good Practice: Dismissal (Schedule 8 to the LRA 1995) =
Duty of employer to contact a trade union in terms of Item 6(2) of the Code is restricted to trade
union enjoying organisational rights and or is sufficiently represented
NUM not enjoying organisational rights and insufficiently represented
Labour Court’s judgment set aside and Appeal upheld.
Facts (Labour Court):
o The appellants were jointly engaged in a rural bridge construction project in the Eastern
Cape. The employees, who were construction workers residing in huts onsite, embarked
on a 2-day unprotected strike (“the strike”) as they were aggrieved about their living
conditions.
o The employees were given three ultimatums by the employer wherein they were
informed that: the strike was contrary to the provisions of the Labour Relations Act 66
of 1995 (“the LRA”), as amended, the offence would prejudice the company and they
were further instructed to report for duty; failing which, they would be dismissed.
o The employees were ‘called upon to seriously consider the consequences of (their)
actions and the effect of (their) actions on their continued employment with the
company.’ The employees did not comply with the said ultimatums and were dismissed
for embarking on an unprotected strike.
o The National Union of Mine Workers (“NUM”), who represented 7% of the employees,
referred an unfair dismissal dispute to the CCMA.
o The Labour Court (“LC”) accepted that the strike was in response to a legitimate demand
for the provision of better electrical supply for heating, lighting and cooking needs. The
strike was therefore not provoked by unreasonable management conduct.
o However, the employees had failed to engage senior managers on the issue, despite
having had the opportunity to do so the day before the strike when the managers
visited the site.
o Despite the substantive fairness of the appellants response to the strike, the LC was
critical of the their failure to “take the simple precaution of phoning a union official to
try and make the strikers see reason even if the union did not have a majority presence
in the workplace and was not a recognised representative of the employees.”
o The appellants contended that the reason for their failure to contact the union, before
dismissing the employees, was because there was no recognition agreement with it.
o
Judgment:
o The LC thus held that the dismissal of the employees was substantively fair but
procedurally unfair and ordered the appellants to pay the employee’s compensation
equivalent to six months salary each. The appellants contended that the reason for their
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failure to contact the union, before dismissing the employees, was because there was
no recognition agreement with it.
Issues (Labour Appeal Court):
o The only substantive issue on appeal was whether an employer is obliged, in terms of
Item 6(2) of the Code of Good Practice: Dismissal (Schedule 8 to the LRA 1995) (“the
Code”), to contact a trade union official of any trade union regardless of its
representative status at the workplace.
o stated that Item 6(2) of the Code is a guideline, which ought to be followed, but is not
strictly binding in that Schedule 8 is not a legislative part of the LRA.
o However, in its application, it should be interpreted to give effect to the primary object
of the LRA which is to promote orderly collective bargaining.
o The duty of the employer to contact a trade union in terms in terms of Item 6(2) of the
Code is restricted to contacting a trade union that has been granted organisational
rights under Chapter III of the LRA or enjoys contractual rights under a recognition
agreement concluded with the employer.
o In this case, NUM did not enjoy any organisational rights under Chapter III of the LRA,
and it was likely that it was not entitled to them on grounds of it not being sufficiently
representative, nor was it a party to a recognition agreement with the employer. There
was therefore no duty on the appellants to contact the union in terms of Item 6(2) of
the Code before issuing the ultimatums or dismissing the employees.
o It follows that the dismissal was not procedurally unfair.
o The duty of an employer to contact a trade union in terms of Item 6(2) of the Code is
restricted to trade unions enjoying organisational rights and/or unions that are
sufficiently represented.