Theme 6: Labour Relations
Department of Mining Engineering
IPI 410: Engineering Professionalism
Lecturer: Mr PL Ngwenyama
Last Revision: 2025
© Copyright reserved
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“Ignorantia juris non excusat” — Ignorance of the law is no excuse.
Notes: Coetzee v Steenkamp (579/2009) [2010] ZANCHC 25 (18 June 2010).
1. Employer and employee, and their relationship
The workplace environment can be exciting, but yet a complicated one. It is mainly constituted
of an employer and employees, and their relationship, in fulfilling the operational needs of the
business, whether it is producing a product or providing a service to clients. The relationship
between the employer and employee is an important aspect for the success of an organisation
if managed very well. This relationship is comprised of many aspects, such as the employer’s
required technical expertise, time, skills and competency from the employee, but also most
critically, a trust relationship between the employer and the employee. Problems and
complications between the employer and the employee, begin when the trust relationship has
been broken. The employer has to trust that the employee will execute their duties in the best
possible way, and the employee must trust that the employer will fulfil their promises, as
agreed upon in an employment contract. Hence, an employment contract is important for
outlining the requirements, entitlements and expectations between the employer and the
employee. The employment contract would typically include descriptions of the duties of the
employee, key performance indicators (KPIs), and the remuneration, incentives and other
benefits due to the employee. There are some obvious facts that we cannot deny about the
employment arena, such as:
a) It can be an unfair one if the relationship between the employer and the employees is
unstable.
b) There are laws created to try and equalise the employment arena such that disputes
or conflicts between employers and employees and these should be managed and
regulated properly.
c) Core value of the Constitution: Security and sustainability of employment to ensure
socio-economics.
d) The only way to be fair is to understand the rights, responsibilities and accountabilities
of employees and employers in the workplace. Example:
➢
Section 10 of the Basic Conditions of Employment Act (BCEA) (current
threshold R193 805/annum or R16 150/month);
➢
Can be negotiated contractually, always better than minimum (BCEA), but
nothing less; and
➢
Be aware if employee is increased in salary over threshold but still retains
rights contractually.
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Example of employer and employee relationship case: Sidumo & another v Rustenburg
Platinum Mines Ltd & others (CCT 85/06) [2007] ZACC 22; [2007] 12 BLLR 1097 (CC); 2008
(2) SA 24 (CC) and (2007) 28 ILJ 2405 (CC) - In deciding how commissioners should approach
the task of determining the fairness of a dismissal, it is important to bear in mind that security
of employment is a core value of the Constitution which has been given effect to by the LRA.
This is a protection afforded to employees who are vulnerable. Their vulnerability flows from
the inequality that characterises employment in modern developing economies.
The relationship between employer and an isolated employee and the main object of labour
law is set out in the now famous dictum of Otto Kahn-Freund: “The relation between an
employer and an isolated employee or worker is typically a relation between a bearer of power
and one who is not a bearer of power. In its inception it is an act of submission, in its operation
it is a condition of subordination, however, much the submission and the subordination may
be concealed by that indispensable figment of the legal mind known as the ‘contract of
employment’. The main object of labour law has always been, and we venture to say will
always be, to be a countervailing force to counteract the inequality of bargaining power which
is inherent and must be inherent in the employment relationship.’
1.1
Introduction to Labour laws
The practice of labour law is constituted by various entities such as the Common law, the
Constitution of South Africa, statutory bodies, regulations, sectoral determinations, collective
agreements and employment contracts. Labour law is a collective of all legislations pertaining
to the relationship between an employee and an employer in the workplace. The common law
has been the foundation of the principles of employee and employer relationship. The relevant
Acts and major aspects govern the employment relationship and labour legislations are as
follows:
1. Framework of Law:
a) Common law.
i. Origin of contract law
ii. Roman/Dutch Law
iii. Basic understanding of the working of a contract
b) The Constitution of the Republic of South Africa
c) Labour Relations Act [LRA] of 1995 (as amended)
d) Basic Conditions of Employment Act (BCEA) Act No. 75 of 1997
e) Employment Equity Act of 1998
f)
Public Holiday Act No36 of 1994
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g) Skills Development Act No.97 of 1998
2. Trust relationship:
a) Employer
b) Employee
c) Workplace
3. Code of Good Practice:
a) Dismissals
b) Dismissals for operational reasons
c) Employment equity
d) Pregnancy
e) Arrangement of working times
4. Occupational Health and Safety Act (OHSA)
Visit: https://www.labour.gov.za/DocumentCenter/Pages/Acts.aspx
Visit: https://www.labourwise.co.za/downloads/labour-laws
The main employment law statutes of South Africa are the following (extracted from the
International Labour Organization, 2002:
https://www.ilo.org/ifpdial/information-resources/national-labour-law
profiles/WCMS_158919/lang--en/index.htm):
•
The Labour Relations Act 66 of 1995 (LRA) [ NB: this law was amended in 2002. Text
of the Labour Relations Amendment Act, 2002.
•
The Basic Conditions of Employment Act 75 of 1997 (BCEA). [ NB: This law has also
been amended in 2002 by the Basic Conditions of Employment Amendment Act 2002 ]
•
The Employment Equity Act 55 of 1998 (EEA)
•
The Skills Development Act 97 of 1998 (SDA)
•
The Unemployment Insurance Act 30 of 1996 (UIA) [NB: This law has been repealed
and replaced by the Unemployment Insurance Act, 2001 ]
•
The Occupational Health and Safety Act 85 of 1993 (OHSA)
•
The Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA).
Notes: Workplace Law (John Grogan, Juta, 9th Edition) p79 and Chap 10, 11 and 12.
Disputes:
▪
Arena of truth? Settlement versus arbitration, substance and procedure, reasonable,
humanity?
▪
Maximum risk for the employer? Maximum risk for the employees?
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1.2.
The Employee
An employee is defined in Section 213 of the LRA as:
(a) Any person, excluding an independent contractor, who works for another person or for
the state and who receives or is entitled to receive, any remuneration, and
(b) Any other person who in any manner assists in carrying on or conducting the business
of an employer; and “employed” and “employment” have meanings corresponding to that
of “employee”.
Section 200 of the LRA states:
(a) Until the contrary is proved, a person who works or renders services to any other
person is presumed, regardless of the form of the contract, to be an employee, if
anyone or more of the following factors are present.
The manner in which the person works is subject to the control or direction of
i.
another person;
ii.
The person’s hours of work are subject to the control or direction of another person;
iii.
In the case of a person who works for an organisation, the person forms part of
that organisation;
The person has worked for that other person for an average of at least 40 hours
iv.
per month over the last three months;
The person is economically dependent on the other person for whom he or she
v.
works or renders services;
The person is provided with tools of the trade or work equipment by the other
vi.
person; or
The person only works for or renders services to one person.
vii.
In its definitions, the LRA disregards independent contractors from the ambit of protection of
labour laws and legislations. It clearly draws the line between employment and other
commercial relationships but yet does not define the term independent contractor.
Rights of Employees:
(1) Every employee has the right to:
▪
Participate in forming a trade union or federation of trade unions.
▪
Join a trade union, subject to its constitution.
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(2) Every member of a trade union has the right (subject to the constitution of that trade
union) to:
▪
Participate in its lawful activities.
▪
Participate in the election of any of its office-bearers, officials or trade union
representatives.
▪
Stand for election and be eligible for appointment as an office bearer or official and,
if elected or appointed, to hold office.
▪
Stand for election and be eligible for appointment as a trade union representative
and, if elected or appointed, to carry out the functions of a trade union
representative in terms of this Act or any collective agreement.
(3) Every member of a trade union that is a member of a federation of trade unions has
the right, subject to the constitution of that federation to:
▪
Participate in its lawful activities.
▪
Participate in the election of any of its office-bearers or officials.
▪
Stand for election and be eligible for appointment as an office-bearer or official and,
if elected or appointed, to hold office.
1.3.
The Employer
Notes: Workplace Law (John Grogan, Juta, 9th Edition) p59.
An employer can de defined as a person or an organisation in the private sector, within the
government or any business, that hires or employs people to work in providing services or
producing a product for society. The Occupational Health and Safety Act (OHSA) defines an
employer as any person who employs or provides work for any other person and remunerates
that person or expressly or tacitly undertakes to remunerate that person. It excludes labour
brokers from the definition of an employer. The real owners or shareholders, or the board of a
company, can and often will appoint a person in a senior position to represent the company
as the employer. For example, the director, executive, or general manager of a company can
assume all the responsibilities and accountabilities of the role of the employer. The employer
has a duty to provide a safe and fair workplace and the employees' responsibility to fulfil their
job roles as described in the employment contract. Some traits and characteristics of an
employer:
1) They become the bottom line for the company and they carry the responsibility to
ensure profitability and sustainability of the company.
2) Employee is an asset to the employer – therefore must perform as required.
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3) Employer must create and provide a healthy and safe working environment for all their
employees.
4) Employer must develop guidelines and standard operating procedures (SOPs) and
Codes of Practice (COPs) for employees.
5) Employer will always make strategic business decisions – in favour of the business.
6) The employment relationship is built on a fragile trust.
7) The Employer must:
a) Receive the employee into service;
b) Remunerate the employee;
c) Ensure safe working conditions;
d) Perform General Contractual duties; and
e) Execute statutory duties.
According to Section 8 of the OHSA; the General duties of employers are as follows:
1) Every employer shall provide and maintain, as far as is reasonably practicable, a
working environment that is safe and without risk to the health of his employees.
2) Without derogating from the generality of an employer's duties under subsection (1)
above, the matters to which those duties refer include in particular:
a) The provision and maintenance of systems of work, plant and machinery that,
as far as is reasonably practicable; are safe and without risks to health;
b) Taking such steps as may be reasonably practicable to eliminate or mitigate
any hazard or potential hazard to the safety or health of employees, before
resorting to personal protective equipment;
c) Making arrangements for ensuring, as far as is reasonably practicable, the
safety and absence of risks to health in connection with the production,
processing, use, handling, storage or transport of articles or substances;
d) Establishing, as far as is reasonably practicable, what hazards to the health or
safety of persons are attached to any work which is performed, any article or
substance which is produced, processed, used, handled, stored or transported
and any plant or machinery which is used in his business, and he shall, as far
as is reasonably practicable, further establish what precautionary measures
should be taken with respect to such work, article, substance, plant or
machinery in order to protect the health and safety of persons, and he shall
provide the necessary means to apply such precautionary measures;
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e) Providing such information, instructions, training and supervision as may be
necessary to ensure, as far as is reasonably practicable, the health and safety
at work of his employees;
f)
As far as is reasonably practicable, not permitting any employee to do any work
or to produce, process, use, handle, store or transport any article or substance
or to operate any plant or machinery, unless the precautionary measures
contemplated in paragraphs (b) and (d), or any other precautionary measures
which may be prescribed, have been taken;
g) Taking all necessary measures to ensure that the requirements of this Act are
complied with by every person in his employment or on premises under his
control where plant or machinery is used;
h) Enforcing such measures as may be necessary in the interest of health and
safety;
i)
Ensuring that work is performed and that plant or machinery is used under the
general supervision of a person trained to understand the hazards associated
with it and who have the authority to ensure that precautionary measures taken
by the employer are implemented; and
j)
Causing all employees to be informed regarding the scope of their authority as
contemplated in Section 37(1)(b).
Let us look at some employment facts in South Africa: Unemployment rate:
a) The unemployment rate in South Africa was last reported at 24.1% in January 2014.
The unemployment rate in Australia is at 5.8% in April 2014
b) Looking for Employment security – will compromise salary/benefits!!
c) Majority of employees unaware of basic employment rights
d) Lack of knowledge leaves opening for Union/Employer.
Platinum strike talks deadlock – report – by www.Fin24.com
Talks to end the protracted wage strike in the platinum sector have deadlocked, according to
SABC television news, citing unnamed sources. The Association of Mineworkers and
Construction Union (AMCU) and platinum producers met behind closed doors at an
undisclosed location in Johannesburg on Wednesday, the Chamber of Mines said.
Spokesperson Charmaine Russell could not say if talks would continue on Thursday. In the
morning, AMCU chief negotiator Jimmy Gama said in an SMS: “There is no Final offer as yet,
parties are still talking”.
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The AMCU was meeting platinum mining companies in a bid to resolve the wage dispute, now
in its third month. Anglo Platinum (Amplats), Impala Platinum (Implats) and Lonmin have
tabled a wage increase offer of between 7,5% and 10%. The proposed offer would see the
minimum cash remuneration for entry-level underground workers rise to R12 500 a month or
R150 000 per annum by July 2017. In terms of the proposal, the cost-to-company for the
lowest-paid underground worker would be in excess of R17 500 a month or R210 000 a year
by July 2017. AMCU members at Amplats, Impala, and Lonmin mining operations in
Rustenburg in North West and Northam in Limpopo downed tools on January 23, demanding
a basic salary of R12 500 per month. The union rejected a wage increase of nine percent. The
companies in turn rejected AMCU’s revised demand that the R12 500 could be phased in over
four years. The strike has cost the companies over R14bn in revenue and workers have lost
over R6bn in earnings. The R12 500 demand stems from a violent wildcat strike in Marikana
near Rustenburg in August 2012, where Lonmin workers demanded R12 500 as a basic
monthly salary.
Forty-four people were killed during the strike. Thirty four mineworkers were killed on August
16, 2012, when police fired on them while allegedly trying to disarm and disperse them. Ten
people, including two policemen and two security guards, were killed during the preceding
week. President Jacob Zuma appointed retired judge Ian Farlam to chair a commission
probing the 44 deaths. Article published with the kind courtesy of www.fin24.com
Workplace Law (John Grogan, Juta, 9th Edition) p 51
Moloi/Macsteel Service Centres (VRN Reef) [2014] 2 BALR 117 (MEIBC) by Advocate
Nicolene Erasmus.
After being charged with sexual harassment, the applicant on 8 March 2013 in an email with
“resignation” in the subject line, informed the employer that:
Seeing that Macsteel VRN’s future is not that bright and its business taking a nose dive and
that soon enough most of its employees won’t have jobs anyway, I have decided to jump ship
in order to focus on steering my own little ship which I have been privately building with the
little remuneration that you have been paying me for the past 8 years of service to you.
I wish to thank you for the opportunity that you have given me over the years which I have
used to my advantage by empowering myself with the industry knowledge while I acted like a
dom[sic] garden boy.
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On Monday I’ll be coming to render my resignation formally and to claim what is legally mine
in terms of pension pay-outs and outstanding remuneration.
It was nice doing business with you.
Jacob, CEO & Working Capitalist
It was the respondent’s contention that there was no need for the applicant to issue the
employer with a “formal resignation” as that is exactly what the email was — a voluntary
resignation to avoid being subjected to a disciplinary hearing. The following Monday the
employee had a change of heart and decided to withdraw his resignation, a request which he
was told “had to go to head office”. The applicant then claimed that he had been dismissed.
Commissioner B van Wyk had no problem finding that no dismissal had ever taken place:
“In this matter the applicant, Mr Jacob Moloi hopelessly failed to convince me that he had ever
been dismissed. Quite the opposite, the applicant tendered a voluntary written resignation to
Macsteel.” And further with respect to costs: “Mr Moloi’s unreasonable and vexatious
insistence to persist with this frivolous case under the auspices of the MEIBC, well knowing
that the Bargaining Council’s services are free and ultimately being funded by the SA taxpayer,
necessitated in my respectful view an order of costs to mitigate Macsteel’s expenses to defend
this frivolous matter.”
2. The Labour Relations Act (LRA) of 1995
The practice of labour relations in South Africa date back to the primordial times of civilisation
and have continually been redefined and constitutionally amended over the years. This was
particularly during an incident where over 3 million workers embarked on a two-day strike for
the first time ever. This happened on consecutive days, on the 5th and the 6th of September in
1989. This was after the discovery of gold and diamonds in the country and gave effect to the
booming of the mining industry. This created an explosive influx of labour and workers being
employed in the mines. This strike resulted in commercial production coming to a halt at that
firm, but gave rise to the recognition of labour laws. As the mining industry continued to grow,
a number of strikes emerged causing economical instabilities, one particular in 1907, followed
by a series of other strikes in 1913 and 1914 and another major one in 1922.
The first version of the Labour Relations Act (LRA) was the Mines and Works Act that was
enacted in 1911 in South Africa. This was after the formation of the first trade union in 1881,
which was aimed at protecting the interest of workers in the mines.
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Further strikes continued and some of them had political agendas, which gave effect to the
Industrial Conciliation Act of 1924, that was later renamed the Labour Relations Act in 1956.
Since then, labour laws have had to conform to the context of the Constitution of South Africa
which entails executive orders and powers, legislature and the judiciary of the state. The
Constitution of South Africa is the Supreme Law of the State which supersedes all levels of
government. But, there are various levels of other courts below the Constitutional court. The
hierachy of courts and their powers in South Africa is as follows:
1. Constitutional Court (ConCourt):
▪
Location: The ConCourt is located at the Constitutional Hill Precinct, Braamfontein,
Johannesburg, in the Gauteng Province.
▪
▪
Role:
o
The highest authority on constitutional matters in South Africa.
o
Interprets and enforces the Constitution, which is the supreme law of the country.
Key Characteristics:
o
Decisions are final and cannot be overturned or appealed.
o
It comprises of 11 judges, including the Chief Justice and the Deputy Chief Justice.
o
The ConCourt handles constitutional matters and general issues if they involve a
constitutional matter of national importance.
2. Supreme Court of Appeal (SCA):
▪
Location: It is located in Bloemfontein, in the Free State Province
▪
It serves as South Africa’s judicial capital.
▪
Role:
o
The highest court of appeal for all cases except those related to labour and
competition law.
o
▪
Reviews decisions made by the High Courts and certain specialised courts.
Key Characteristics:
o
Usually hears cases with 3 to 5 judges, depending on the complexity of the case.
o
Decisions made by the SCA are binding unless overturned by the Constitutional
Court.
3. High Courts:
▪
Location: There are 13 Provincial High Courts that serve different regions in South
Africa.
▪
Specialised High Courts also exist, including:
o
Labour Court: Handles labour disputes and employment law cases.
o
Competition Appeal Court: Deals with competition law matters.
o
Tax Court: Focuses on tax-related disputes.
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▪
Role:
o
Handles serious criminal cases, civil matters, and appeals from Magistrates’
Courts.
o
Decisions may be appealed to the Supreme Court of Appeal or, in specific cases,
the Constitutional Court.
▪
Labour Courts:
o
There are 4 independednt Labour Courts in South Africa dedicated to resolving
labour disputes under the LRA, located in Johannesburg (Gauteng), Cape
Town (Western Cape), Durban (KwaZulu-Natal) and Gqeberha (Port Elizabeth)
(Eastern Cape).
4. Magistrates’ Courts
▪
Divided into Regional and District courts.
▪
Role:
o
Handle criminal and civil cases at a lower level than the High Courts.
o
Limited jurisdiction in terms of punishments and monetary claims.
o
Regional Magistrates’ Courts:
o
Handle more serious criminal offenses (e.g., theft, assault, and certain
sexual offenses).
o
District Magistrates’ Courts:
o
Handle minor offenses and civil claims with lower monetary values.
5. Other Courts (Established by Acts of Parliament):
▪
Various specialised courts exist, created by specific legislation, including:
o
Children’s Court: Protects the rights and welfare of minors.
o
Small Claims Court: Resolves civil disputes involving amounts up to a specific
limit (there is no legal representation allowed at this stage).
o
Maintenance Court: Ensures financial support for dependents.
o
Equality Court: Enforces anti-discrimination laws.
The labour laws were primarily instituted to deal with all matters relating to the relationship
between an employer and an employee as well as providing the minimum or basic conditions
of the employment through the Labour Court. The Labour Court has the same status as a high
court. The Labour Court is a South African court that handles labour law cases, that is,
disputes arising from the relationship between an employer, employees and/or trade union,
including unfair labour practices. Appeals from the Labour Court are made to the Labour
Appeals Court which has a status or powers similar to that of the Supreme Court of Appeal.
Therefore, the Labour Appeals Court has higher power or is superior to the Labour Court.
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The Labour Court was established on the basis and powers of the LRA of 1995 (No 66 of 1995
as amended) with a status similar to that of a division of the High Court. It was in 1994 that
the Department of Labour revised the labour legislature and and the new LRA that was drafted
and promulgated in 1996. This LRA introduced an administrative tribunal in the form of the
Commission for Conciliation, Mediation and Arbitration (CCMA). Labour rights are enshrined
in the Constitution:
▪
Section 18: Freedom of Association.
▪
Section 23: Labour Relations:
o
Everyone has the right to fair labour practices;
o
Every worker has the right to form and join a trade union and to participate in
the union’s activities;
o
Every worker has the right to strike
o
Every employer has the right to form and join an employers’ organization and
to participate in the activities of the organization; and
o
Every trade union, employers’ organization and employer has the right to
engage in collective bargaining.
The LRA remains the principal labour statute and regulates collective rights and also provides
protection against labour practices. Section 158 of the LRA makes provisions for the Labour
Court to a number of orders relating to labour disputes. The LRA regulates trade unions and
employers' organisations and establishes key dispute resolution agencies in the form of the
CCMA and the Labour Court. Chapter 2 of the Constitution contains several provisions of
relevance to employment and labour laws:
▪
The right to equality,
▪
Protection of dignity,
▪
Protection against servitude, forced labour and discrimination,
▪
The right to pursue a livelihood, and
▪
Protection for children against exploitative labour practices and work that is hazardous
to their well-being.
It is important to interpret all labour legislation in light of the Constitution. Section 23 of the
Constitution deals specifically with labour relations, providing that everyone has the right to
fair labour practices and specifically; the right:
▪
To form and join a trade union;
▪
To participate in the activities and programmes of a trade union; and
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▪
To strike.
Every employer, meanwhile, has the right
▪
To form and join an employers’ organisation; and
▪
To participate in the activities and programmes of an employers’ organisation.
Every trade union and every employers’ organisation has the right
▪
To determine its own administration, programmes and activities;
▪
To organise; and
▪
To form and join a federation.
The LRA was instituted to regulate fairness between employers and employees, and to resolve
disputes between employers and their employees in the workplace. The principle of fairness
must take into consideration the reason to discipline and also the procedure that must be
followed to instil discipline. When dealing with disputes or conflicts in the workplace, the LRA
provides the framework for this platform. If the two aspects are met, then discipline in the form
of a dismissal can follow as prescribed by the employer. Therefore, fairness must meet both
the reason to dismiss and the procedure followed to arrive to the decision to dismiss. A
dismissal cannot be arrived to if one of these two aspects was not met.
Fairness does not only apply to employees but the employer as well. Both employees and
employers are protected under the LRA. The right to fair labour practice is based on Section
23 of the Constitution of South Africa. Employers normally use what is called Code of Good
Conduct to make employees aware of what can be deemed as an offence which can ultimately
result in a dismissal. However, the Code of Conduct by the employer can be overruled by the
LRA in conciliation or arbitration. Employers are not obligated or mandated to draft a Code of
Conduct. The Code of Good Practice: Dismissals in the LRA is always used to evaluate and
assesss the fairness of a dismissal. The LRA does not associate itself with instilling discipline
in the workplace. However, the LRA permits that discipline must be maintained in the
workplace but must be enforced in a fair way. Actually, discipline should not be seen or used
as a punishment measure by the employer, but it is a philosophy of correcting and progressing.
Sources of the labour laws:
▪
Legislation;
▪
Judicial precedent (judicial decisions), including arbitration awards;
▪
Collective agreements;
▪
Common law; and
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▪
Custom and legal writings.
The purpose of LRA is to give effect on:
▪
The rights of employees and employers to organise collectively,
▪
The process of collective bargaining,
▪
Dismissals and unfair labour practices,
▪
Dispute resolution structures including the ,CCMA and bargaining councils,
▪
The Code of Good Practice on Dismissal,
▪
The Code of Good Practice on Dismissal based on Operational Requirements,
▪
The Code of Good Practice on Picketing,
▪
The Code of Good Practice on the Handling of Sexual Harassment Cases in the
Workplace, and
▪
The Code of Good Practice on Key Aspects of HIV/AIDS and Employment.
The purpose of the LRA is to:
▪
Regulate the fundamental rights conferred by Section 23 of the Constitution.
▪
Give effect to the obligations South Africa has as a member state of the International
Labour Organisation (ILO).
▪
Provide a framework within which employees and trade unions, employers and
employers’ organisations can bargain collectively to determine wages, terms and
conditions of employment and other matters of mutual interest.
▪
Promote orderly and effective resolution of labour disputes.
The LRA applies to all employees, except members of:
▪
The National Defence Force.
▪
The National Intelligence Agency.
▪
The South African Secret Service.
▪
The South African National Academy of Intelligence.
3. Dismissals in the workplace
The LRA does not regulate or enforce discipline in the workplace, but it is there to regulate the
reasons and procedures by which employees are dismised by their employers. The LRA is
also very critical in dealing with issues and matters of unfair labour practices and disputes that
can arise in the workplace. It rather protects the rights of employees and employers, and
allows for collective bargaining.
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It also seeks to provide dispute resolutions between employers and employees. But,
nonetheless, in the workplace, dismissals are used to emphasise on discipline by the
employer. As such, dismissals are then the end result or outcome which is used as stick by
employers in order to instill and enforce discipline in the workplace. Dismissal can be
described as the termination of employment relationship by an employer on an employee.
However, the termination of employement must be of a fair and valid reason or course, and
the correct procedure having been followed to arrive on the decision to dismiss.
The LRA provides every employee with the right not to be unfairly dismissed and to dispute
any unfair labour practices in the workplace. This means that an employer may not just willynilly dismiss or mistreat an employee at work. The employer must have a fair and valid reason
for making the decision to dismiss an employee and must follow a fair dismissal procedure.
An employee can be charged on conduct outside the workplace premises but affects the
reputation of the company. The LRA reconises such dismissals as fair if the reason is fair and
the procedure was followed. A dismissal can be deemed unfair if the reason to dismiss is not
fair or valid and the correct procedure to dismiss has not been followed in effecting the
dismissal of an employee. Both the reason to dismiss and the dismissal procedure must be
satisfactory before a dismissal can be effected. According to the Schedule 8 of the LRA Code
of Good Practice: Dismissals; the common types of dismissals are:
▪
Misconduct
▪
Incapacity
▪
Section 186 dismissals
▪
Automatically unfair dismissals
o
▪
3.1.
Section 187 of the LRA
Dismissal due to operational requirements
Misconduct
It happens when an employee contravenes a rule by the employer, whether it is expressed or
implied, or a policy that exists in the workplace. In this case, the employee has been in breach
or transgression of a rule by the employer. Misconduct can also be described as the failure to
adhere or comply with a rule that has been implied or expressed by the employer. The rule
can be in the form of policies or standard operating procedures (SOP). The policies and SOPs
are written by the employer to induct employees on the company’s ethics and governance. In
order to determine whether a rule was contravened or not:
1) A rule must exist whether expressed or implied.
2) The rule must be reasonable.
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3) The rule must be known.
4) The rule must be consistently applied.
The procedure to follow before an employee can be dismissed is through answering the
following questions:
1) Has the employee broken or violated a rule or did the employee fail to comply with the
SOP requirements in conducting work?
2) Was the broken rule within reasonable measures?
3) Are employees made aware of the rule that was broken?
4) Has the broken rule been consistently applied in the workplace?
Misconduct is by far the most common reason for dismissal in companies. So, how do
employers deal with misconduct? An employee who has been alleged for contravening a rule
can be given a:
1) Verbal warning,
2) Written warning – first and second,
3) Final written warning,
4) Immediate dismissal in some cases, or
5) Disciplinary hearing.
Once it has been established that a rule has been broken or contravened with, the following
procedure must be complied with by the employer to dismiss an employee:
1) Inform the accused employee of the allegation in such a way that the employee
understands what they are accused of.
2) Inform the accused employee of the allegations in writing.
3) Allow the accused employee sufficient time to prepare.
4) Allow the accused employee to prepare for the case.
5) Allow the employee o be helped by a colleague or a representative from a trade union.
6) Inform the accused employee of the right to appeal.
Examples of misconduct:
▪
Reporting for duty under the influence of alcohol and drugs or regular absenteeism.
▪
Theft of property, physical altercations, accepting bribe or disclosing confidential
information about the company.
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3.2.
Incapacity
It happens when an employee is unable to perform their job as required or as per the initial
contract of employment. This can be a result of a number of reasons such as physical or
mental disability or continuous poor work performance when the employee does not perform
to the required standard (inability). Incapacity does not automatically become a discipline
offence but may require adjustments in terms of competency assistance such as modified
workplace, skill development, training, course work or mentoring. The employee who has been
accused of incapacity can only be dismissed if all possible and reasonable attempts to assist
that employee have not been successful. In the case of a disability, the employer must first
attempt to accommodate that employee in a different position or by modifying the workplace
to fit the disabled employee. The employer must support employees before considering
issuing dismissal to incapacity. In this instance, the employer should:
▪
Provide the required performance standard in the form of key performance indicators
(KPI).
▪
Explain and discuss the required performance standards.
▪
Conduct regular evaluations of the performances of employees.
▪
Assist employees:
o
Provide training, send employees to course, etc.
However, incapacity is not dealt with in a similar procedure to that of a misconduct case.
Dealing with an incapacity dismissal case requires an investigation to be conducted on the
accused employee. Hence, the incapacity dismissal process is consultative in nature rather
than punitive. The employer has a duty or responsibility to accommodate employees before a
dismissal can be actioned. Therefore, the same procedure for misconduct cannot be applied
for incapacity cases especially those in management positions, dismissal for incapacity is
consultative:
1) Inform the accused employee of the allegations which includes the standard of the
performance required,
2) Allow the employee to tell their side of the story,
3) Help the employee improve in their area of concern,
4) Place the employee in a different position even if it is a demotion, and
5) If an amicable solution cannot be reached – dismissal can be activated.
An employee cannot be charge on misconduct and incapacity at the same time. However, a
case start off as misconduct but later to be discovered as incapacity.
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3.3.
Section 186 dismissals
The Section 186 dismissals include the following:
▪
Termination of employment by employer without notice.
▪
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.
▪
To retain the employee in employment on an indefinite basis but otherwise on the same
or similar terms as the fixed term contract, but the employer offered to retain the
employee on less favourable terms, or did not offer to retain the employee.
▪
An employer refused to allow an employee to resume work after her return from
maternity leave.
▪
An employer who had dismissed a number of employees for the same reason or similar
reasons offers to re-employ one or more of them but refuses to re-employ the others.
▪
Constructive dismissals:
o
An employee terminated employment because the employer made
employment intolerable for the employee.
3.4.
Automatically unfair dismissals (Section 187 of the LRA)
This is mainly related to dismissals that are obviously unfair
▪
The employee’s right to form, join or participate in a trade union.
▪
The employee’s participation in or in support of, a protected strike.
▪
The employee’s refusal to do the work of an employee who is on a protected strike.
▪
Unfair discrimination.
▪
The employee’s pregnancy.
▪
A dismissal following the transfer of a business.
▪
A disclosure made by an employee concerning the unlawful acts of his employer in
terms of the Protected Disclosures Act, 2000.
3.5.
Dismissal due to operational requirement
The LRA also talks about dismissal for operational requirements in which a business has been
affected by other factors. Operational requirements dismissals are associated with
retrenchments which is considered as a dismissal. Operational reason dismissals are based
on the economics, technology, structural and related reason which affect the employer and
the company. Dismissals based on operational requirements are considered be fair by the
LRA. Before employees can be dismissed for operational requirements, a consultation
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process must be initiate to reach a collective agreement. Procedure for dismissal due to
operational requirements:
▪
The dismissal was due to economic, technological, structural or related changes that
have affect the business.
▪
The dismissal is justifiable based on the operational outlook of the business.
▪
Alternatives to the dismissal were comprehensive reviewed.
▪
The criteria followed to select employees affected was fair and explained to all
employees.
The operational requirement dismissals or retrenchments as commonly known, a written
notice called Section 189 must be issued by the employer. The employer must issue this notice
to the affected employees as early as effective indicating the following information.
▪
Reason for dismissal.
▪
Alternatives that were considered before issuing the Section 189 notice and the
reasons for the failure of those alternatives.
▪
The number of employees or positions which have been affected.
▪
The method that was used to selected the affected employees or positions.
▪
An estimate of the time that the retrenchments will take place.
▪
Estimated pay-out.
▪
Discussion of possible re-employing the affected employees in the future.
3.6.
Dismissals due to the transfer or sale of a business
The merger of two companies or the takeover of one company by another (acquisition):
▪
The new employer is automatically substituted in place of the old employer with
regards to all contracts of employment in existence immediately before the transfer.
▪
All rights and obligations between the old employer and employee at the time of the
transfer continue in force as if they had been rights and obligations between the new
employer and the old employee.
▪
Liability for the acts of the old employer (such as dismissals, unfair labour practices
and acts of unfair discrimination) follows a transfer to the new employer.
▪
The transfer does not interrupt the continuity of employment of the transferred
employees.
▪
Unless otherwise agreed, the new employer is bound by arbitration awards and any
collective agreement.
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▪
Neither the old nor the new employer may dismiss an employee by reason of a transfer
or a reason related to a transfer - dismissal may be automatically unfair.
▪
An employer may, of course, dismiss for operational reasons either before or after the
transfer, but the reason cannot be connected to the transfer.
▪
The old employer or the new employer or the old employer and the new employer
acting jointly, may agree in writing, with the employees, a union or a workplace forum,
to vary any of these provisions.
Liabilities and entitlements – (business transfer) the old employer is required to agree with
the new employer the value of the following employee entitlements at the date of transfer:
▪
Accrued leave pay.
▪
Severance pay that would have been made in the event of a retrenchment.
▪
Any other accrued entitlements such as bonuses and commission.
When business is transferred in liquidation:
▪
The employees of the old employer are also automatically transferred to the new
employer.
▪
The transfer does not interrupt the employees’ continuity of employment.
▪
The new employer is bound by the collective agreements and arbitration awards that
bound the old employer.
▪
Anything done before the transfer by the old employer will remain the responsibility of
the old employer.
▪
The new employer is not liable for accrued leave pay, severance pay or other
outstanding payments.
▪
The new employer does not assume liability for any claim.
4. Unfair labour practices
The LRA acknowledges that some dismissals can be unfair based on the manner in which
employers can treat employees or handle certain situations. Unfair labour practices are a big
thing in the workplace. Unfair labour practices are a very sensitive issue that employers and
employees have to deal with on a daily basis. The LRA recognises four categories of unfair
labour practices according to Section 186(2). The four categories include:
▪
Category 1: This category involves the employer’s conduct when dealing with
promotions versus demotions, training, probation and benefits of the employees.
▪
Category 2: This category is based on unfair suspension of employees.
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▪
Category 3: This category relates to the failure by an employer to reinstate a former
employee to their previous employment.
▪
Category 4: This category relates to occupational detriment which contravenes to the
Protected Disclosure Act number 26 of 2000. The Protected Disclosure Act (26) of
2000 permits employees to report an employer or employee whilst being fully protected
legally.
Unfair labour practices occur within the relationship between an employer and an employee.
Unfair labour practices normally occur when an employee has been mistreated by an employer
in the workplace. With unfair labour practices, the employee is required to prove the
misconduct by the employer. Therefore, unfair labour practices can be described as any act
or omission by the employer to the employee which can be deemed as unfair according to the
LRA Section 186(2). The definition of unfair labour practices according to the CCMA “It is
unfair treatment by an employer of an employee or job applicant. There are a limited number
of unfair labour practices that the LRA defines, the types of treatment, which may constitute
an unfair labour practice, are discussed hereunder. Section 185 of the LRA states that “every
employee has the right not to be subjected to an unfair labour practice.” According to the
CCMA, employers can claim unfair labour practices for the following:
▪
Promotion to a higher position: A higher position was existing in which the employee
applied but was unsuccessful.
▪
Demotion to a lower position: Demotion can be deemed unfair if it was it was
actioned without the consent of the employee. However, a demotion can be a fair
practice if it is meant to save the employee from retrenchment, an incapacity dismissal
or an alternative of a disciplinary hearing.
▪
Training: The employee is refused training that is part of the contract or was part a
collective agreement or even when the employee can prove with reasonable
justification that the training will be beneficial.
▪
Benefits: The employee can claim for unfair labour practice for contractual rights or
entitlements.
▪
Unfair suspension: Employees are often suspended from their work due to a number
of reasons. However, a suspension can be unfair if it was issued for an unreasonably
long period or it is without pay.
▪
Employees are entitled to full pay during suspension before a disciplinary hearing. The
suspension period must also be reasonably of a short period. It is within the rights of
an employer to issue suspensions to employees before a hearing can commence.
▪
Sanctions and disciplinary action
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▪
Refusal to reinstate employment after an agreement to do so
▪
Occupational detriment in terms of the Protected Disclosures Act, 26 of 2000 (the
PDA).
5. Disciplinary actions
Maintaining discipline in the workplace is essential for ensuring a productive, safe, and orderly
working environment. Employers establish workplace rules and disciplinary measures to
regulate employee conduct and align workplace behaviour with the organization’s objectives.
The employer has the right to impose workplace rules unilaterally, provided they are
reasonable and aligned with labour laws. These rules help employees understand expected
behaviour and the consequences of misconduct. There are various important reasons for a
written disciplinary code, including:
▪
A disciplinary code is a formal document outlining:
o
Workplace rules and standards that employees must follow.
o
The process for handling misconduct.
o
Possible sanctions or disciplinary actions for violations.
o
The code should be communicated to all employees to ensure awareness and
compliance.
We previously mentioned the steps that the employer can take if an employee breaches a
workplace rule, and this includes:
▪
A verbal or written warning – often used for minor misdemeanours.
▪
Suspension (with or without pay) for serious offenses.
▪
Demotion or final warnings if prior disciplinary measures were ineffective.
▪
Dismissal for serious misconduct such as fraud, theft or insubordination.
Workplace discipline is a key responsibility of employers, ensuring a suitable and efficient
working environment. Having a clear disciplinary code and enforcing rules fairly and
consistently helps maintain order and prevent disputes. Example of workplace discipline
cases:
▪
Case 1: Tardiness:
o
An employee frequently arrives late without a valid reason. The employer may
issue a verbal warning, followed by a written warning if the behaviour is
repetitive and continues from the employee.
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▪
Case 2: Workplace Harassment:
o
An employee is reported for harassment. A formal investigation takes place,
and if found guilty, the employee may face suspension or dismissal based on
company policy.
But it is very important to note that the employer is not mandated to compile and implement a
disciplinary code. In the case where the employer does not have a disciplinary code, the
parties will have recourse to the broad principles of the Code of Good Practice: Dismissal and
the overriding principles of fairness. While it is recommended that an employer compiles and
implement a formal disciplinary code, it is not a legal obligation. Should the employer choose
to have one, it should be based on the principles set out in the Code of Good Practice. Some
guiding principles for disciplinary codes include:
▪
An alignment with the Code of Good Practice: Dismissal, incorporating the following
key principles:
o
Simplicity – The code should be clear and understandable to all employees,
avoiding unnecessary complexity.
o
Pragmatism – It should be practical and relevant to the specific workplace
environment.
o
Efficiency – The disciplinary process must be swift and effective to resolve
issues without unnecessary delays.
o
Cost-effectiveness – Employers should ensure that the system does not create
unnecessary financial burdens while maintaining fairness.
o
Workplace fairness – The disciplinary process must be just and consistent,
treating employees equitably based on the circumstances of each case.
Implications of not having a disciplinary code:
▪
Without a formal disciplinary code, disputes will be assessed based on general fairness
and the principles in the Code of Good Practice: Dismissal.
▪
Employers still must follow due process, ensuring that any disciplinary action is
proportionate to the offense.
▪
Employees can challenge disciplinary action if they believe it was unfair or inconsistent
with workplace policies.
Although not mandatory, a disciplinary code helps create clear expectations between the
employer and the employee, and ensures that both employees and employers understand
their rights and responsibilities in the employment contract. The LRA requires that discipline
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in the workplace be treated as corrective measures rather than punitive, meaning its purpose
is to guide employees toward acceptable behaviour rather than simply punish them for
misdemeanours. This progressive approach ensures that employees understand workplace
expectations and have an opportunity to correct their behaviour before facing severe
consequences by the employer.
Some principles of progressive discipline include:
▪
Educational approach – Employees must be made aware of the required workplace
standards and why they are important.
▪
Fair and consistent application – Disciplinary actions should be proportional to the
offense and applied consistently.
▪
Opportunity for improvement – The goal is to correct behaviour, not immediately
dismiss employees for minor infractions.
▪
Gradual escalation – A structured process is followed, moving from less severe to more
severe disciplinary measures if behaviour does not improve.
Steps that can be followed by the employer when dealing with progressive discipline:
▪
Verbal warning – A first-level warning for minor misconduct, informing the employee of
the issue and expected improvement.
▪
Written warning – If misconduct continues, a formal written warning is issued,
documenting the behaviour and future consequences.
▪
Final written warning – A stronger warning indicating that further violations may lead
to suspension or dismissal.
▪
Disciplinary hearing – For serious or repeated misconduct, the employer may hold a
formal hearing where evidence is reviewed before deciding on further action.
▪
Suspension or eventual dismissal – If the employee fails to improve or commits serious
misconduct, they may face suspension (with or without pay) or termination.
A structured disciplinary process is necessary when informal measures, such as verbal
warnings, are insufficient to address workplace misconduct. This ensures fairness,
consistency, and compliance with labour laws while maintaining workplace discipline.
Situations that may necessitate disciplinary actions in the workplace could include:
▪
Contravening with rules or policies:
o
Employees are expected to follow the workplace rules, policies, and
procedures set by the employer. The employer should make these rules clear
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and available for employees upon commencement of employment through
employee induction.
▪
If an employee violates these rules, formal disciplinary action may be required to
address the misconduct and prevent recurrence. But the employer has a duty to ensure
that the employee is aware of these rules, and that the rules are constantly applied in
the workplace.
▪
Examples:
o
Repeated tardiness despite verbal warnings.
o
Failure to follow safety protocols in a hazardous work environment.
o
Unauthorised absenteeism.
When a formal approach is needed:
▪
Some misconduct requires a structured disciplinary response rather than a casual
verbal warning.
▪
A clear process ensures fairness and gives the employee a chance to present their
side of the story.
▪
Examples:
•
Theft or fraud in the workplace.
•
Harassment or discrimination against colleagues.
•
Gross negligence leading to damage or loss.
Steps in the structured disciplinary process:
1) Investigation – An investigation officer is appointed to gather evidence and determine
the severity of the misconduct.
2) Notification – The employee is informed of the alleged misconduct and possible
consequences.
3) Disciplinary hearing – A formal hearing is conducted, allowing both the employer and
employee to present their cases.
4) Outcome and sanctions – Depending on the findings, disciplinary actions such as
warnings, suspension, or dismissal may be issued based on the evidence and findings.
5) Appeal process – The employees has the right to appeal the disciplinary actions if they
believe the outcome was unfair.
A workplace investigation is a fact-finding process conducted to determine whether an
employee has committed an offense and whether disciplinary action is necessary. The
investigation is not meant to declare guilt, but rather to gather objective evidence about the
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alleged charge. This will either support the charges or clear the employee from the charge. A
fair and thorough investigation ensures that disciplinary actions are based on facts, not
assumptions. It also protects both the employer and employee from unjust outcomes and
reinforces workplace integrity. An investigation will be initiated if:
1. An infringement is discovered:
o
If a violation of company policies or workplace rules is noticed, an investigation
should begin without delay.
o
Example:
➢ An internal audit reveals that company inventory is missing.
2. There is an allegation or suspicion of misconduct:
o
If there are reasonable grounds to believe an employee has breached a
workplace rule, an investigation must follow.
o
Example:
➢ A supervisor suspects an employee of leaking confidential company
information.
3. A complaint or grievance is lodged:
o
If an employee files a formal complaint or grievance, an investigation must be
conducted to ensure fairness.
o
Example:
➢ An employee reports workplace harassment by a colleague.
Steps taken during a workplace investigation:
1) Identify the issue – Determine the nature and seriousness of the alleged misconduct.
2) Gather evidence – Collect relevant documents, witness statements, CCTV footage, or
any other proof.
3) Interview witnesses – Speak to individuals who may provide insights into the situation.
4) Question the accused employee – Allow the employee to provide their version of
events.
5) Analyse findings – Assess whether there is enough evidence to proceed with
disciplinary action.
6) Prepare a report – Summarise the facts and recommend further steps, such as
disciplinary action, mediation, or exoneration.
In the case where an investigation has become necessary, an investigation officer must be
appointed to gather factual information about the case and the alleged charges. This can
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include interviewing witnesses, which must be conducted fairly without leading or influencing
the witnesses. The evidences can be in the form of recordings or filed and documented
statements. The investigation officer plays a crucial role in workplace disciplinary processes,
but their authority is limited and must be exercised fairly and objectively. The role of an
investigation officer is strictly fact-finding. Their powers come from company policies or a
specific assignment and must be exercised with caution and fairness. Their involvement ends
once they have submitted their findings, ensuring a clear separation between investigation
and judgment. The key principles governing the appointment of an investigation officer in a
case include:
▪
Independence from the disciplinary hearing chairperson:
o
The investigation officer cannot be appointed by the chairperson of the
disciplinary hearing.
o
This ensures separation of roles to maintain fairness and avoid bias in the
process.
▪
Limited authority:
o
The investigation officer may not have inherent authority.
o
Their powers come from:
▪
The company’s disciplinary code (if one exists) and specific mandate
assigned by the employer.
o
Example: If the employer tasks an investigation officer with probing allegations
of fraud, their authority is limited to that case and does not extend to other
workplace matters.
▪
Duty to act fairly:
o
All actions must be impartial and based on facts.
o
The investigator should not assume guilt but focus on gathering evidence.
o
Any bias, intimidation, or improper procedure can invalidate the investigation’s
findings.
▪
End of mandate:
o
Once the investigation is completed, the investigating officer’s role ends.
o
They do not take part in the disciplinary hearing or decision-making process.
o
Example: After collecting evidence on a workplace theft case, the officer
submits a report and has no further involvement in determining sanctions.
When an employee transgresses or contravenes workplace rules, the employer must carefully
assess the nature of the misconduct in relation to the company’s Code of Conduct to
determine the potential charge. This ensures that the charge is evident, clear, fair, and
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justifiable. Even if the evidence is undisputable or self-evident, the employer must still follow
the right and fair procedure. For a disciplinary case to be successful, the nature of the offense
must be clearly defined, and each required element must be proven. If evidence for any
element is missing, the charge should be revised or withdrawn to ensure a fair and efficient
disciplinary process. Some key steps in identifying and proving misconduct charges in the
workplace:
1. Contextualise the alleged transgression:
o
Identify the charge based on the specific rule or policy that has been violated
by the charged employee.
o
Align the transgression with the disciplinary code to determine the category and
severity of the offense.
2. Identify and formulate the elements of the offense:
o
Each misconduct charge consists of specific elements that must be proven for
a guilty finding.
o
If any element cannot be established, the charge is invalid and should not be
pursued.
o
Example: Elements of common workplace offenses
➢ Insubordination:
a) An instruction must have been given.
b) The instruction must have come from a person in authority.
c) The instruction must be lawful.
d) The instruction must be reasonable.
e) If any of these elements are missing, then the charge is invalid.
➢ Theft in the workplace:
a) There must be property belonging to the employer or another
employee.
b) The accused must have taken it without permission.
c) There must be intent to permanently deprive the owner of the item.
➢
Gross negligence:
a) The employee must have had a duty of care.
b) The employee’s actions must have deviated from standard conduct.
c) The act must have caused or had the potential to cause harm.
3. Discard unprovable charges:
o
If any element of an offense cannot be proved, pursuing the charge would be
a waste of time and resources.
o
Instead, focus on charges that have clear evidence and legal standing.
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4. Obvious charges require less investigation:
o
Some workplace offenses are self-evident, meaning their elements are
immediately apparent, and thus very easy to prove. Such charges should be a
priority.
o
Examples:
▪
Physical altercations – Physical altercation observed by multiple
witnesses.
▪
Swearing – Use of offensive language directly reported.
▪
Damage to property – CCTV footage shows an employee vandalising
equipment.
6. Dispute resolution
Disputes about unfair labour practices or unfair treatment in the workplace must be handled
in a certain procedure. Dispute can be described as the conflict between an employee and
employer regarding an unfair treatment on the employee by the employer. In this case, the
employee complains about being treated unfairly by the employer. The employer must prove
the unfair treatment or unfair labour practice as such. Such cases are mostly dealt with by the
Commission for Conciliation Mediation and Arbitration (CCMA), bargaining councils and the
Labour Court if a resolution has not been reached. The LRA requires the establishment of
bargaining councils such as the CCMA. The aim of these councils is to try and attempt to
resolve disputes through processes such as conciliation and arbitration. If a dispute is
unresolved from conciliation, then arbitration can follow as per the LRA. However, these
councils do not deal with disputes issues that are concerning organisational rights,
employment equity issues including discrimination and disputes concerning pickets.
6.1.
The CCMA
The CCMA is a statutory body that deals with disputes that have been referred to it in terms
of the LRA. The CCMA acts in the interest of both the employer and the employee to attempt
to resolve the dispute. The CCMA deals with both dismissals and unfair labour practices that
occur in the workplace and an employment relationship exists. Unfair labour practices must
be referred to the CCMA within 30 days of the dismissal while unfair labour practices must be
referred to the CCMA within 90 days from the incident. The CCMA will give effect to a
conciliation process once a dismissal or unfair labour practice has been reported. The CCMA
concerns itself with conciliation and arbitration to resolve disputes between an employer and
an employee. The dispute will be referred for a conciliation and then if unresolved, it will be
referred to arbitration.
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6.2.
Bargaining councils
Certain industries make use of bargaining councils to resolve disputes that arise in the
workplace. The bargaining councils are made up by one or more trade unions and employers’
organisations. During a bargaining council, trade unions are present to represent employees
and employers’ organisations represent employers. Any constitutions developed by the
bargaining councils must be aligned and in compliance to the LRA. In this case, the bargaining
council has a mandate to deal with matters of mutual interest between employees and
employers including dismissals and unfair labour practices. The bargaining council seeks to
reach a collective agreement which represents both the employees and employers. This will
ultimately be used to resolve labour disputes and collective agreements. Disputes regarding
unfair dismissals must be referred to the bargaining council within 30 days of the day of the
dismissal and unfair labour practices must be reported within 90 days of the occurrence of the
incident. According to the LRA in Section 27; the establishment of bargaining councils are as
follows:
1) One or more registered trade unions and one or more registered employers’
organisations may establish a bargaining council for a sector and area by:
(a) Adopting a constitution that meets the requirements of Section 30; and
(b) Obtaining registration of the bargaining council in terms of Section 29.
2) The State may be a party to any bargaining council established in terms of this section
if it is an employer in the sector and area in respect of which the bargaining council is
established.
3) If the State is a party to a bargaining council in terms of subsection (2), any reference
to a registered employers’ organisation includes a reference to the State as a party.
4) A bargaining council may be established for more than one sector.
The statutory time periods for referring disputes to the CCMA are as follow:
▪
Unfair dismissal – a dismissed employee must refer a dismissal dispute to the CCMA
or bargaining council within 30 days of the date of dismissal. If after a dismissal there
was an appeal, the 30-day period is calculated from the date the appeal decision on
that dismissal was taken by the employer or its delegated person.
▪
Unfair labour practices – an employee must refer the matter to the CCMA or
bargaining council within 90 days of the date of the unfair labour practice conduct or
omission complained of. If an employee only became aware of the occurrence at a
later date, the matter must be referred within 90 days of the employee becoming aware
of such occurrence.
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▪
Discrimination – an employee must refer the matter to the CCMA within six months
of the act or omission that constituted the discrimination complained of.
▪
Retrenchment – operational requirement disputes will be conciliated by the CCMA or
bargaining council and then adjudicated by the Labour Court. Relief constitutes
reinstatement, re-employment or compensation up to a maximum of 12 months. This
is based on the Code of Good Practice: Dismissal – Operational Requirements.
6.3.
Condonation
But what if the dates were not met by an employee who is intending to refer a case to the
CCMA? What can or should the employee do in this case? The LRA allows employees to
refer complaints even if they had not met their time limits for referral of disputes. This will be
done by applying for condonation. The request for condonation applies to the CCMA or
bargaining council in which the case must be referred to. The CCMA does not deal with the
merits of a dispute that has been referred outside of the time limits until such time that the
reason for such lateness has been considered and it has been excused or condoned. This
suggests that condonation can only be granted for a good cause for the lateness of the referral.
The condonation process is as follows:
1) The employee must complete a referral form signed by the employee, union official or
a legal representative (within 30 days of the alleged unfair dismissal or 90 days of the
alleged unfair labour practice).
2) The form must be in triplicate: served to the employer, the CCMA and kept by the
employee.
3) The CCMA will allocate a file number to the referral and invite the parties to a
conciliation at a certain date.
4) The conciliation process is informal and will attempt to get the parties to talk to each
other in the hope of resolving the dispute.
5) If the parties reach a settlement, the commissioner will issue a certificate stating that
the matter has been resolved and will conclude the dispute.
6) Should the dispute not be resolved, an outcome certificate will reflect that fact and the
employee may now, depending on the nature of the claim, request arbitration or
proceed to the Labour Court.
7) A party requesting the CCMA to arbitrate a dispute must refer it on the prescribed form
within 90 days of the issuance of the certificate or more than 30 days having expired
from the date that the dispute was referred to the CCMA.
8) The form must be signed by the referring party, a union official or a legal
representative. The CCMA must then give the parties at least twenty-one calendar
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days’ notice of the arbitration (excluding the period between of 16 December and 7
January).
Before condonation can be granted, many factors of a good cause will be considered in
deciding whether to grant condonation or not. A commissioner from the CCMA will determine
whether good cause has been the reason for the late referral of a dispute in the explanation
given by the referring party by weighing the following considerations:
▪
The degree or extent of the lateness of the referral.
▪
The reason for the lateness.
▪
The prospects of success on the merits.
▪
The prejudice to the other party.
▪
Any other relevant factors.
6.4.
Conciliation
As described by the CCMA, conciliation is a process where a commissioner meets with the
parties to a dispute and explores with them ways to settle the dispute by agreement. The
conciliation process is mediatory, in private, informal, flexible and relaxed for both parties. The
involved parties seek to arrive to an amicable resolution to settle their dispute. The conciliation
proceedings are voluntary and must get approval from both parties. There are time limits
applicable for referral of disputes to conciliation, depending on the issue in dispute.
▪
The conciliation process allows the employer and employee to resolve the dispute on
their own in an informal process by providing them with a platform to reach common
ground on their own.
▪
A conciliator is appointed by the CCMA to facilitate the conciliation process without
prejudice.
▪
If dismissal or unfair labour practice dispute remains unresolved – then it can be
referred to arbitration by the conciliator and then the Labour Court if still unresolved at
the arbitration.
▪
During the conciliation process, there are no legal practitioners or labour consultants
permitted to represent the employer or employees (the employee and employer may
appear in person or can be represented by a member of a registered trade union).
▪
At conciliation, a party may appear in person or only be represented as follows:
•
The employee and the employer may appear in person, or be represented only
by an official or office-bearer of his registered trade union or employers’
organisation. If the employer is a juristic person, such as a company or a close
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corporation, the employer can be represented by its director, member or an
employee of that company or close corporation;
•
In the case where the party is the employer, then a director or employee of that
party, or if it is close corporation, by a member of that close corporation can be
nominated to appear;
•
Any member of that party’s registered trade union or employers’ organisation,
or an office bearer or official as defined in the Labour Relations Act (LRA) or
an office bearer or official, as defined in the Act, of a registered federation of
trade unions or registered federation of employers’ organisations;
•
If the party is a registered trade union, any member of that trade union, or an
office bearer or official as defined in the LRA and authorised to represent that
party or an office bearer or official, as defined by the Act, of a registered
federation of trade unions and authorised to represent that party; or
•
If the party is a registered employers’ organisation, any director or employee of
an employer that is a member of that employers’ organisation or any official or
office bearer, as defined in the LRA and authorised to represent that party or
an office bearer or official, as defined by the Act, of a registered federation of
employers’ organisations and authorised to represent that party.
▪
The conciliation meeting is private and confidential between the parties and is not
recorded. The discussions between the parties are intended to find solutions and are
without prejudice and may not be used against any of them in subsequent proceedings
unless agreed to in writing by the parties or ordered by a court of law.
▪
Legal practitioners and labour consultants cannot participate in conciliation
proceedings and the conciliator has no discretion in this regard.
6.5.
Arbitration
At arbitration, the employee will often make a claim that the dismissal was unfair and they
therefore dispute the case or alleged charge. Although a dismissal is not always considered a
dispute, but the arbitration process is aimed at dispute resolution. The arbitration
commissioner, who is neutral and independent, attempts to resolve the dispute without the
need to proceed to the Labour Court, as a first priority for the employer and employee to make
peace and shake hands. The arbitration commissioner allows both parties to present their
cases regarding the dispute. Both parties are given a fair and reasonable opportunity to
provide their evidences, relevant documents, and conduct cross examinations of witnesses.
A party has 90 days within which to refer that dispute to arbitration from the earlier of the date
on which conciliation remains unresolved, or the 30-day conciliation period has expired.
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Failure to adhere to that timeframe will cause the referral to be late and for a condonation
application to be required before that referral can be considered.
▪
The arbitration process comes after the conciliation process but happens before a
dispute can be referred to the Labour Court.
▪
Unlike in conciliation, the arbitration process is a formal one and an arbitrator is
appointed to overseer the process and make the final judgement.
▪
The arbitrator must listen to both sides of the matter and apply the appropriate
arbitration process.
▪
From the cases provided by the employer and employee – the arbitrator determines
the compelling version and makes judgement or makes an award on the merits of the
presented evidence and dispute – either the dismissal was fair or unfair.
▪
The arbitration process requires the provision of evidence regarding the dispute after
the conciliation process.
▪
During arbitration, new evidence may be introduced as well as a repeat of evidence
from the conciliation proceedings.
▪
In an arbitration hearing a party in dispute may appear in person or be represented as
follows:
▪
A party may appear in person or be represented only by:
•
If the party is an employer, a director or employee of that party, or if it is close
corporation, by a member of that close corporation;
•
Any member of that party’s registered trade union or employers’ organisation,
or an office bearer or official as defined in the LRA or an office bearer or official,
as defined in the Act, of a registered federation of trade unions or registered
federation of employers’ organisations;
•
If the party is a registered trade union, any member of that trade union, or an
office bearer or official as defined in the LRA and authorised to represent that
party or an office bearer or official, as defined by the Act, of a registered
federation of trade unions and authorised to represent that party; or
•
If the party is a registered employers’ organisation, any director or employee of
an employer that is a member of that employers’ organisation or any official or
office bearer, as defined in the LRA and authorised to represent that party or
an office bearer or official, as defined by the Act, of a registered federation of
employers’ organisations and authorised to represent that party.
▪
At arbitration, the employee and the employer may appear in person, or they can be
represented by an official or office-bearer of his registered trade union or employers’
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organisation. If the employer is a juristic person, such as a company, it can be
represented by the company’s director, member or an employee.
▪
However, labour consultants may not appear at arbitrations while legal practitioners
may be allowed to represent parties at arbitrations. However, where the dismissal is
for an incapacity or misconduct issue, legal representation can only be allowed for the
following conditions:
o
The parties and the arbitrator agree to the representation, or
o
If the arbitrator permits such representation after considering:
➢ The nature of the questions of law that are raised (they may be intricate
questions that can only be dealt with by legal representatives),
➢ The complexity of the dispute,
➢ The dispute is in the public interest, or
➢ The comparative ability of the parties to deal with the matter.
▪
A legal practitioner, a candidate attorney or an individual entitled to represent the party
at conciliation is allowed to represent a party at arbitration, unless the dispute being
arbitrated is about dismissal for misconduct, ill-health, or poor performance
(incapacity), or is referred in terms of Section 69(5), 73 or 73A of the BCEA.
▪
In such cases the parties and the Commissioner may agree to legal representation, or
a party may apply to be represented following motivation on the basis of factors listed
in Rule 25(1)(c). The Commissioner will then decide whether to allow for such
representation to take place.
▪
The appointed arbitrator in charge of the case will conduct the arbitration process as
follows:
o
Employee and employer may appear in person, and
o
Employee may be represented by member of trade union and employer by
employers’ organisation.
▪
Legal practitioners may represent either the employer or employee during arbitration
hearings. This right is generally limited to cases involving: dismissals for incapacity
(due to poor performance or ill health) and dismissals for misconduct (such as theft,
insubordination, or dishonesty). However, consent is critical as both parties must agree
to the legal representation. The arbitrator will then be required to approve the
involvement of a legal practitioner.
▪
Yet, there may be exceptions for complex cases even if one party objects, the arbitrator
may still allow legal representation if the case involves complex legal or factual issues
that require legal expertise. The need to ensure fairness and proper procedure for both
sides. Public interest considerations or when legal interpretation is crucial.
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▪
The CCMA gives the arbitrator discretion to assess the nature of the dispute and
whether legal representation is essential. This will determine the potential
disadvantage to either party if legal representation is allowed or denied.
6.6.
The con-arb process
If a labour dispute resolution process remains unresolved after conciliation at the CCMA, the
employee must formally request arbitration. But this process often can lead to significant
delays which can significantly lengthen the resolution of the dispute matter and increasing
frustration for both parties. To address these delays, the LRA introduced the con-arb process,
a streamlined procedure designed to expedite dispute resolution. Under this process,
arbitration automatically follows conciliation if the dispute remains unresolved. This means
that, instead of waiting for a separate arbitration hearing, the matter is immediately escalated,
allowing for a quicker resolution. The con-arb process is a crucial process introduced by the
LRA to ensure faster dispute resolution at the CCMA.
By merging both the conciliation and arbitration proceses into a single process, unnecessary
delays can be avoided through the corn-arbs. However, parties must be aware of their rights,
including the ability to object, the restrictions on legal representation, and the obligation to
attend proceedings to avoid an unfavorable outcome. The con-arb process is particularly
useful in cases involving individual unfair labour practices and unfair dismissals. It is
compulsory in cases where the dispute concerns such as the dismissal of an employee for
reasons related to probation or any unfair labour practice related to probation. If conciliation
fails, arbitration must proceed immediately unless one of the parties objects. The arbitrator
must conduct arbitration immediately if the dispute concerns:
▪
Dismissals related to the employee’s conduct or capacity.
▪
Situations where the employment relationship has become intolerable.
▪
Cases where the employee has received less favorable employment conditions after
a business transfer.
▪
Any other unfair labour practice disputes.
▪
However, arbitration will not proceed immediately if a party objects to the con-arb
process in time.
The right to object to con-arb:
▪
A party that does not wish to proceed with con-arb must formally object.
▪
No reason for the objection is required.
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▪
The party must submit a written notice of objection to both the CCMA and the opposing
party at least 7 days before the scheduled hearing.
▪
The referring party can also object by selecting the relevant section.
▪
If a party fails to appear at the con-arb hearing, the arbitrator is still required to conduct
the conciliation phase. Whether arbitration proceeds in the absence of a party is at the
discretion of the arbitrator.
Representation in con-arb processes:
▪
Employees can be represented by trade unions, and employers can be represented
by employers' organisations.
▪
Labour consultants are not permitted to represent either party.
▪
Legal representation:
o
Not allowed at the conciliation stage.
o
Permitted at arbitration, unless the dispute involves misconduct or incapacity –
in which case, the arbitrator has the discretion to decide whether legal
representation is allowed.
Some example of the con-arb process in action:
▪
Case 1: Probation for dismissal:
o
An employee is dismissed after a three-month probation period due to poor
performance. The employee refers the matter to the CCMA, claiming unfair
dismissal. Since the dispute involves probation, con-arb is mandatory, and
arbitration will follow immediately if conciliation fails.
▪
Case 2: Employee dismissed for misconduct:
o
An employee is dismissed for allegedly violating company policies. The
employer insists the dismissal was fair, while the employee argues it was unfair.
The employee refers the dispute to the CCMA. Since this dismissal is based
on conduct, the con-arb process applies unless either party objects at least
seven days before the hearing. If no objection is raised, arbitration will start
immediately after conciliation if the dispute is unresolved.
▪
Case 3: Employee wants legal representation:
o
An employee is dismissed for poor work performance and wants a lawyer to
represent them at conciliation. However, legal representation is not allowed at
the conciliation stage. If the dispute proceeds to arbitration, the arbitrator will
decide whether to allow legal representation, depending on the extent and
nature of the dismissal.
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7. The Basic Conditions of Employment Act (BCEA)
The Basic Conditions of Employment Act (BCEA), Act No. 75 of 1997 was etablished to set
out the minimum employment standards and conditions to protect the rights of workers, but
also to faciliate and regulate fair labour practices, including various types of leave days
entitlements for employees. Similar to the LRA, the BCEA applies to all employees and
employers, except for members of the National Defence Force, National Intelligence Agency,
and South African Secret Service. The BCEA establishes fair working conditions, ensuring
that employees are not exploited and are treated with dignity in the workplace. Employers
must comply with these minimum standards, but they can offer better conditions if agreed
upon in employment contracts or collective agreements.
7.1.
Leave Entitlements for Employees
The BCEA ensures that employees have access to various forms of leave days to provide a
healthy work-life balance and job security for employees. Employers must comply with these
regulations and ensure employees are aware of their leave entitlements. While some leave
categories (e.g. annual leave) are paid, others (e.g. maternity leave) may require employees
to claim from Unemployment Insurance Fund (UIF). Proper leave policies ensure both
employer efficiency and employee well-being.
1) Annual leave:
▪
Annual leave allows employees to take time off to rest while receiving their full
remuneration.
▪
Entitlement:
•
The BCEA makes provisions for employees who work at least 24 hours per
month.
•
Employees are entitled to a minimum of 21 consecutive days of annual
leave with full pay for every 12 months of employment.
•
The employer and employee must mutually agree on a time to take leave,
if not, then a time that suits the employer (Section 10 of the BCEA).
•
This is equivalent to 15 working days for employees working a 5-day week
and 18 working days for employees working a 6-day week.
•
▪
Leave accrual is calculated at:
o
1.25 days per month for employees working a 5-day week.
o
1.5 days per month for employees working a 6-day week.
o
Accrued at 1 hour of leave for every 17 hours worked.
Conditions:
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•
Annual leave must be taken within six months after the end of the 12-month
leave cycle.
•
The employer and employee can agree on when leave is taken, but
employers cannot force employees to forfeit leave.
•
Annual leave days cannot be exchanged for cash by the employer to the
employee, except upon termination of employment, where any outstanding
leave must be paid to the employee (Section 20 of the BCEA).
•
Any unused annual leave days are automatically carried over to the next
cycle.
2) Sick leave:
▪
Sick leave is granted to employees who are unable to work due to the
occurrence of an illness.
▪
Entitlement:
•
Employees are entitled to 30 days sick leave every 36 months (for a 5-day
workweek). This does not mean that employees are entitled to 10 days
leave per year. Any unused sick leave days within the cycle will be forfeited
going into the next cycle. Similarly, upon employment termination, the
employee is not entitled payment for sick leave credits. This also means
that employees can exhaust their sick leave days before the end of a cycle,
but the employer can claim back those days if the employee resigned
before the end of the cycle.
•
Employees working a 6-day workweek are entitled to 36 days sick leave
every 36 months.
•
Employees get 1-day paid sick leave for every 26 days worked. This gives
the employees about a 1-day sick leave in every 5 weeks within the first six
months of employment.
▪
Conditions:
•
Sick leave days are always calculated over a 3-year or 36 months cycle. In
the first six months of employment, an employee accrues one day of sick
leave for every 26 days worked.
•
A medical certificate is required if an employee takes sick leave for more
than two consecutive days or more than twice in eight weeks.
•
The medical certificate must be signed by a medical practitioner or any
other person who is certified to diagnose and treat patients, and who is
registered with a professional body.
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•
Currently, medical certificates issued by a sister at a clinic or a traditional
healer are not recognised by the BCEA.
•
Without a valid certificate, the employer can treat it as absence or unpaid
leave. If an employee is absent for 1-day occasions within the same 8weeks, the employer is entitled to a medical certificate.
•
If an employee has exhausted their sick leave entitlement, they may need
to take unpaid leave or annual leave.
•
An employee who falls sick during annual leave (with a valid medical
certificate), can request the employer to credit them for the sick leave days
taken during the annual leave period, and debit the sick leave days.
3) Family responsibility leave:
▪
Family responsibility leave provides time off for employees dealing with critical
family matters.
▪
Entitlement:
•
Employees qualify for three days of paid family responsibility leave per
year.
•
The employee must have worked for at least four months and at least four
days a week for the same employer.
▪
▪
When can it be taken?
•
Illness of a child under the age of 18.
•
Death of a close family member, including:
o
Spouse or life partner
o
Parent
o
Child
o
Grandchild
o
Grandparent
o
Sibling
Conditions:
•
Family responsibility leave does not accumulate and cannot be carried over
to the next year.
•
The employer may request proof of the event, such as a death certificate
or medical note.
4) Maternity and paternity leave:
▪
Maternity and paternity leave allow employees to take time off due to childbirth
and childcare responsibilities.
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▪
Entitlement (maternity):
•
Female employees are entitled to four consecutive months of unpaid
maternity leave.
•
The leave may begin one month before the due date, or earlier if advised
by a medical practitioner.
▪
Conditions:
•
The employee must give written notice to the employer at least one month
before the due date.
•
The employer is not obliged to pay the employee during maternity leave.
•
However, employees may claim maternity benefits from the UIF.
•
Employees cannot be dismissed for being pregnant or taking maternity
leave, as this is considered automatically unfair dismissal under South
African labour law.
•
Maternity leave does not affect annual leave entitlement, but there may be
concerns regarding leave accrual and job security.
▪
Entitlement (paternity):
•
Fathers or partners are entitled to 10 consecutive days of parental leave,
as per the Labour Laws Amendment Act (2018).
•
This applies to biological fathers, adoptive parents, or surrogate parents.
•
The leave is unpaid but can be claimed through UIF parental benefits.
5) Adoption leave:
▪
One adoptive parent (of a child under 2 years old) is entitled to 10 weeks of
unpaid adoption leave.
▪
The other adoptive parent is entitled to 10 consecutive days of parental leave.
6) Surrogacy leave:
▪
A commissioning parent in a surrogacy agreement is entitled to 10 weeks of unpaid
leave.
7) Public holidays and leave:
•
Employees are not required to work on public holidays unless agreed upon.
•
If an employee works on a public holiday, they must be paid at double the normal
wage or granted an extra day off.
8) Unpaid leave:
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▪
If an employee has exhausted all applicable leave types, an unpaid leave may be
granted at the employer’s discretion. But the BCEA does not have provisions for
unpaid leave for employees. The provision for unpaid leave days are only referred
to in the BCEA but does not provide employees to demand unpaid leave.
9) What about “study leave”?
▪
The BCEA does not mandate, regulate or make specific provisions for “study leave”
days for employees. In a case where an employee requires leave for study purposes,
a leave day will be deducted from the annual leave balance or will be taken as unpaid
leave. The annual leave application procedures and agreement must then be applied
between the employer and employee. However, companies often choose to draft
and implement their own policies with regards to granting study leave days to
employees for the purposes of supporting employee development.
7.2.
▪
▪
Working hours
Maximum normal working hours:
•
Employees may work up to 45 hours per week.
•
This equates to 9 hours per day for employees working a 5-day week.
•
Employees working more than 5 days a week are limited to 8 hours per day.
Lunch breaks:
•
Employees are entitled to 1 continuous hour of unpaid lunch after every 5 hours
of work.
•
If an employee is required to work during their lunch break, the break must be
paid.
▪
Daily rest period:
•
Employees must have at least 12 consecutive hours of rest between working
days.
▪
Weekly rest period:
•
Employees must receive a minimum of 36 consecutive hours of rest per week,
which must include a Sunday.
▪
Night work (18:00 pm – 06:00 am):
•
Definition: Work performed between 18:00 pm and 6:00 am is classified as
night work.
•
Conditions:
o
Night work must be agreed upon between the employer and employee.
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o
Employees who work night shifts must be compensated – either
through additional pay and/or other benefits, such as transport
allowances.
▪
Overtime (voluntary!):
o
These regulations do not include overtime any work beyond these
hours must be compensated accordingly. Certain sectors may have
different agreements based on collective bargaining or specific
employment contracts. Employees working regular night shifts may be
entitled to medical assessments. Some industries may have sectoral
determinations
that
allow
different
overtime
and
night
work
arrangements.
▪
Rate of pay for overtime:
•
Employees working overtime are entitled to 1.5 times their normal wage on
weekdays.
•
If overtime falls on a Sunday or public holiday, the employee must be paid
double (2x) the normal wage.
▪
Overtime limits:
•
Employees are allowed a maximum of 40 hours per month.
•
Up to 10 hours per week.
•
No more than 3 hours of overtime per day.
•
Employers can apply for exceptional overtime hours in agreement with
employees.
•
Voluntary nature:
o
Overtime work is not mandatory unless the employee agrees to it in
their contract or under specific employment terms.
7.3.
Severance payment
Employees who are being dismissed for operational reasons (retrenchment) are entitled for
severance pay from the company they work for. This is based on reasons related to issues
from the employer’s economic, technological, structural, or similar. Section 41 of the BCEA
states that:
▪
An employer must pay an employee who is dismissed for reasons based on
operational requirements or whose contract of employment terminates or is terminated
in terms of Section 38 of the Insolvency Act
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▪
Severance pay is equal to at least 1-week remuneration for each completed continuous
year of service to the employer as calculated in terms of Section 35 of the Act.
▪
An employee will only be entitled to severance pay once retrenchment has been
concluded. The Bargaining Council and Main Agreements to the Council will stipulate
the severance package payable if the employee is a member of a bargaining council.
▪
Calculation:
•
The standard is one week’s salary per completed year of service (it is equal to
or at least 1 week of wage for the number of years of service).
•
This is a minimum requirement, and some employers may offer better
severance packages.
▪
Applicability:
•
Severance pay is only applicable if the dismissal is due to operational
requirements (e.g. restructuring, downsizing, or closure).
•
Employees who decline alternative employment offered by the employer may
forfeit their severance pay.
7.4.
Resignations
A notice is required when an employee has taken the decision to resign from their role in a
company. The notice of intention to resign by an employee must be clear, unambiguous, and
unconditional, with stipulations of the last day of work or end of notice period in a letter or
email. A written notice of termination is better for both the employer and employee, while a
verbal notice can be accepted, but can lead to disputes in certain situations. The notice period
should assist the employer to make the necessary arrangements to cover or even replace the
leaving employee. Section 37 of the BCEA makes provisions for notice periods:
▪
Less than 6 months of employment:
•
▪
Between 6 and 12 months of employment:
•
▪
At least 2-weeks notice is required.
More than 12 months of employment:
•
▪
At least 1-week notice is required.
At least 4-weeks notice is required.
Conditions:
•
The employer cannot refuse a resignation if the employee has given proper
notice, and the employee does not have any entitlement to withdraw their
resignation.
•
The employer does not need to accept a resignation for it to be valid:
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o
Resignation is a unilateral decision by the employee.
o
The employer does not need to acknowledge receipt of the resignation.
o
Once notice has been given, it cannot be revoked without the consent
of the other party, the employer.
•
However, the employer can hold the employee to their notice period, unless
both parties mutually agree to an earlier exit.
•
Resignation with immediate effect?
o
Resignation “with immediate effect” can be constituted as breach of
employment contract.
o
Resignation is recognised and takes full effect at the end of the notice
period.
o
Employees might have to forfeit pay in lieu of notice or face penalties if
a contract specifies otherwise.
7.5.
Employment of Children
BCEA makes it clear that it is a criminal offence to employ a child younger than 15 years,
except when the child is performing arts, but with permission granted by the Department of
Labour. The BCEA states that children aged between 15 and 18 years may not be employed
to do work inappropriate for their age, or work that places them at risk. The BCEA is clear that
it does not permit the employment of any child worker who is under 15 years of age or is
subject to compulsory schooling in terms of any law. But, children under the age of 15 can
work in the performance of advertising, artistic or cultural activities in terms of a permit granted
in terms of Sectoral Determination 10: Children in the Performance of Advertising, Artistic and
Cultural Activities issued by the Minister of the Department of Labour in accordance to the
BCEA.
▪
Conditions for child labour:
o
No child under the age of 15 years may be employed in any job.
o
The law protects children under 18 from work that is hazardous, exploitative,
or interferes with their education.
o
A child worker may not work more than 8 hours on any day.
o
A child worker who is not enrolled at school may not work for more than 40
hours in any week.
o
A child worker may not work before 06:00 or after 18:00 on any day, except
where allowed or permitted.
o
A child worker, other than one who is expected to be at school the following
day, may work between 18:00 and 23:00 if:
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▪
The work is in a restaurant, cinema, theatre or shop where there is
adequate adult supervision.
▪
o
The work is baby-sitting or child minding.
Unless the parent or legal guardian agrees otherwise in writing, any person
who requires or permits a child worker to work after 18:00 must, at the end of
the shift, provide him or her with safe transport home, at no cost to the child,
parent or care-giver.
o
A child worker who is enrolled in school may not work for more than:
▪
20 hours in any week during school term.
▪
40 hours in any week that falls entirely within school holidays.
▪
Two hours on any school day; or four hours on any school day followed
by a non-school day.
▪
Exceptions:
o
Some child actors, performers, or models may work with special permission.
o
Employment in family businesses or apprenticeships may also be regulated
differently.
Visit: CCMA: https://www.ccma.org.za/
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